Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Jun 04 2014, 9:33 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: DONALD R. SHULER GREGORY F. ZOELLER Barkes, Kolbus, Rife & Shuler, LLP Attorney General of Indiana Goshen, Indiana JESSE R. DRUM Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
CORDAY C.DIXON, ) ) Appellant-Defendant, ) ) vs. ) No. 20A03-1311-CR-00448 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE ELKHART SUPERIOR COURT The Honorable George W. Biddlecome, Judge Cause No. 20D03-1009-FA-00032
June 4, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge Corday C. Dixon appeals his conviction and sentence for three counts of Child
Molesting,1 two as class C felonies and one as a class A felony. Dixon presents the following
restated issues for review:
1. Was the evidence sufficient to support the convictions?
2. Is Dixon’s sentence inappropriate?
We affirm.
The facts favorable to the convictions are that in May 2010, twelve-year-old L.M.
lived in a two-bedroom apartment in Elkhart with her mother, her sister Sarah, Sarah’s
fiancé, and Sarah’s two children. Sarah, her fiancé and her two children slept in one
bedroom, while L.M. and her mother shared the other. Either L.M. or her mother, however,
would usually sleep in the living room because their bedroom was messy. Dixon, Sarah’s
fiancé’s cousin, was invited to stay at the apartment for one week that May. He was twenty-
four years old at the time. While there, he slept in the living room. One day, at
approximately 4 o’clock in the morning, L.M. woke up on the couch and observed Dixon
sleeping in the living room chair. Thinking he looked uncomfortable, L.M. offered to let him
sleep on the couch. He accepted the offer, and L.M. moved to the chair. A moment later,
Dixon asked L.M. if she wanted to lie on the couch with him, and she accepted. He asked
her if she ever had sex before and she said that she had not. He replied, “we’re all good
here.” Transcript at 127.
1 Ind. Code Ann. § 35-42-4-3 (West, Westlaw current with all legislation of the Second Regular Session of the 118th General Assembly (2014) with effective dates through May 1, 2014).
2 L.M. was wearing shorts and underwear at the time. Dixon put his hand underneath
her shorts and underwear, put his finger in her vagina, and began moving it in a circular
motion. The experience was “[v]ery painful” for L.M. Id. at 124. Dixon left the room for
five minutes and then returned. After returning, he began to touch L.M. again. This time, he
pulled down her shirt and bra “and started licking and kissing” her chest. Id. at 126. After
doing that for several moments, Dixon again stood up and left the room. He returned five to
ten minutes later, sat down on the couch, and placed L.M.’s legs across his lap. Then, he
pressed L.M.’s hand against his erect penis on the outside of his pants and squeezed her
hand.
At approximately 5:00 a.m., they heard L.M.’s mother approaching the door. Dixon
pushed L.M.’s legs off of his lap and moved to the chair. When L.M.’s mother entered the
room, L.M. did not tell her what had happened. Later that morning at school, L.M. told two
friends what Dixon had done. They told her that she should tell Sarah. When she went home
from school, L.M. told Sarah that Dixon had touched her and that she wanted him to leave
immediately. Nothing was done that day, however, and Dixon once again spent the night at
Sarah’s house. L.M. slept in her locked bedroom that night. When Dixon was still at Sarah’s
house the next day, L.M. became alarmed and once again asked her sister to make Dixon
leave. Shortly thereafter, L.M.’s father visited Sarah’s house and L.M. told him what had
happened. When L.M.’s mother arrived home, L.M. told her what had happened with Dixon.
At that point police were called.
3 As a result of the foregoing events, the State charged Dixon with three counts of child
molesting, one as a class a felony, and two as class C felonies. Following a two-day jury
trial, Dixon was found guilty as charged. The trial court sentenced Dixon to forty years
imprisonment.
1.
Dixon contends the evidence was not sufficient to prove that he committed the three
acts of child molesting. According to Dixon, “the sole evidence against [Dixon] is the
uncorroborated testimony of the alleged victim.” Appellant’s Brief at 8. Our standard of
reviewing challenges to the sufficiency of the evidence supporting a criminal conviction is
well settled.
When reviewing a challenge to the sufficiency of the evidence underlying a criminal conviction, we neither reweigh the evidence nor assess the credibility of witnesses. The evidence—even if conflicting—and all reasonable inferences drawn from it are viewed in a light most favorable to the conviction. “[W]e affirm if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.” Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004). A conviction can be sustained on only the uncorroborated testimony of a single witness, even when that witness is the victim.
Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012) (some citations omitted). These principles
apply with equal force in cases involving a conviction for child molesting. See Bowles v.
State, 737 N.E.2d 1150 (Ind. 2000).
We note initially that Dixon’s entire argument on this issue is based upon a faulty
premise: “the uncorroborated testimony of a single witness, without any other witness or
evidence of this particular event, does not constitute evidence of sufficient probative value of
4 [sic] sustain his convictions.” Appellant’s Brief at 11. This premise flies in the face of a
long line of Indiana cases that have held precisely the opposite, as reflected in the foregoing
authority. In point of fact, we will reverse for insufficient evidence upon the particular claim
that Dixon advances here only when we conclude that the “incredible dubiosity” rule applies.
Pursuant to this rule, “we will reverse a conviction if the sole witness presents inherently
improbable testimony and there is no circumstantial evidence of the defendant’s guilt.”
Young v. State, 973 N.E.2d 1225, 1226 (Ind. Ct. App. 2012), trans. denied. It seems that
Dixon seeks to invoke the rule here. It does not apply.
In support of his argument, Dixon points out what he perceives to be contradictions
and inconsistencies in and between the testimonies of the various witnesses called by the
State. We have considered these purported inconsistencies and contradictions, both
individually and in the aggregate. We will not discuss Dixon’s claims individually, but will
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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Jun 04 2014, 9:33 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: DONALD R. SHULER GREGORY F. ZOELLER Barkes, Kolbus, Rife & Shuler, LLP Attorney General of Indiana Goshen, Indiana JESSE R. DRUM Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
CORDAY C.DIXON, ) ) Appellant-Defendant, ) ) vs. ) No. 20A03-1311-CR-00448 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE ELKHART SUPERIOR COURT The Honorable George W. Biddlecome, Judge Cause No. 20D03-1009-FA-00032
June 4, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge Corday C. Dixon appeals his conviction and sentence for three counts of Child
Molesting,1 two as class C felonies and one as a class A felony. Dixon presents the following
restated issues for review:
1. Was the evidence sufficient to support the convictions?
2. Is Dixon’s sentence inappropriate?
We affirm.
The facts favorable to the convictions are that in May 2010, twelve-year-old L.M.
lived in a two-bedroom apartment in Elkhart with her mother, her sister Sarah, Sarah’s
fiancé, and Sarah’s two children. Sarah, her fiancé and her two children slept in one
bedroom, while L.M. and her mother shared the other. Either L.M. or her mother, however,
would usually sleep in the living room because their bedroom was messy. Dixon, Sarah’s
fiancé’s cousin, was invited to stay at the apartment for one week that May. He was twenty-
four years old at the time. While there, he slept in the living room. One day, at
approximately 4 o’clock in the morning, L.M. woke up on the couch and observed Dixon
sleeping in the living room chair. Thinking he looked uncomfortable, L.M. offered to let him
sleep on the couch. He accepted the offer, and L.M. moved to the chair. A moment later,
Dixon asked L.M. if she wanted to lie on the couch with him, and she accepted. He asked
her if she ever had sex before and she said that she had not. He replied, “we’re all good
here.” Transcript at 127.
1 Ind. Code Ann. § 35-42-4-3 (West, Westlaw current with all legislation of the Second Regular Session of the 118th General Assembly (2014) with effective dates through May 1, 2014).
2 L.M. was wearing shorts and underwear at the time. Dixon put his hand underneath
her shorts and underwear, put his finger in her vagina, and began moving it in a circular
motion. The experience was “[v]ery painful” for L.M. Id. at 124. Dixon left the room for
five minutes and then returned. After returning, he began to touch L.M. again. This time, he
pulled down her shirt and bra “and started licking and kissing” her chest. Id. at 126. After
doing that for several moments, Dixon again stood up and left the room. He returned five to
ten minutes later, sat down on the couch, and placed L.M.’s legs across his lap. Then, he
pressed L.M.’s hand against his erect penis on the outside of his pants and squeezed her
hand.
At approximately 5:00 a.m., they heard L.M.’s mother approaching the door. Dixon
pushed L.M.’s legs off of his lap and moved to the chair. When L.M.’s mother entered the
room, L.M. did not tell her what had happened. Later that morning at school, L.M. told two
friends what Dixon had done. They told her that she should tell Sarah. When she went home
from school, L.M. told Sarah that Dixon had touched her and that she wanted him to leave
immediately. Nothing was done that day, however, and Dixon once again spent the night at
Sarah’s house. L.M. slept in her locked bedroom that night. When Dixon was still at Sarah’s
house the next day, L.M. became alarmed and once again asked her sister to make Dixon
leave. Shortly thereafter, L.M.’s father visited Sarah’s house and L.M. told him what had
happened. When L.M.’s mother arrived home, L.M. told her what had happened with Dixon.
At that point police were called.
3 As a result of the foregoing events, the State charged Dixon with three counts of child
molesting, one as a class a felony, and two as class C felonies. Following a two-day jury
trial, Dixon was found guilty as charged. The trial court sentenced Dixon to forty years
imprisonment.
1.
Dixon contends the evidence was not sufficient to prove that he committed the three
acts of child molesting. According to Dixon, “the sole evidence against [Dixon] is the
uncorroborated testimony of the alleged victim.” Appellant’s Brief at 8. Our standard of
reviewing challenges to the sufficiency of the evidence supporting a criminal conviction is
well settled.
When reviewing a challenge to the sufficiency of the evidence underlying a criminal conviction, we neither reweigh the evidence nor assess the credibility of witnesses. The evidence—even if conflicting—and all reasonable inferences drawn from it are viewed in a light most favorable to the conviction. “[W]e affirm if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.” Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004). A conviction can be sustained on only the uncorroborated testimony of a single witness, even when that witness is the victim.
Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012) (some citations omitted). These principles
apply with equal force in cases involving a conviction for child molesting. See Bowles v.
State, 737 N.E.2d 1150 (Ind. 2000).
We note initially that Dixon’s entire argument on this issue is based upon a faulty
premise: “the uncorroborated testimony of a single witness, without any other witness or
evidence of this particular event, does not constitute evidence of sufficient probative value of
4 [sic] sustain his convictions.” Appellant’s Brief at 11. This premise flies in the face of a
long line of Indiana cases that have held precisely the opposite, as reflected in the foregoing
authority. In point of fact, we will reverse for insufficient evidence upon the particular claim
that Dixon advances here only when we conclude that the “incredible dubiosity” rule applies.
Pursuant to this rule, “we will reverse a conviction if the sole witness presents inherently
improbable testimony and there is no circumstantial evidence of the defendant’s guilt.”
Young v. State, 973 N.E.2d 1225, 1226 (Ind. Ct. App. 2012), trans. denied. It seems that
Dixon seeks to invoke the rule here. It does not apply.
In support of his argument, Dixon points out what he perceives to be contradictions
and inconsistencies in and between the testimonies of the various witnesses called by the
State. We have considered these purported inconsistencies and contradictions, both
individually and in the aggregate. We will not discuss Dixon’s claims individually, but will
observe only that neither individually nor in the aggregate do they seriously undermine the
jury’s verdicts. L.M.’s account of what occurred is entirely plausible and the
“inconsistencies,” such as they were, were comparatively minor. L.M. did not waver in her
account of what Dixon did to her. Her testimony was sufficient to support the convictions.
2.
Dixon contends his sentence is inappropriate in light of his character and the nature of
his offense. Article 7, section 4 of the Indiana Constitution grants our Supreme Court the
power to review and revise criminal sentences. Pursuant to Ind. Appellate Rule 7, the
Supreme Court authorized this court to perform the same task. Cardwell v. State, 895 N.E.2d
5 1219 (Ind. 2008). Per Indiana Appellate Rule 7(B), we may revise a sentence “if, after due
consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in
light of the nature of the offense and the character of the offender.” Wilkes v. State, 917
N.E.2d 675, 693 (Ind. 2009), cert. denied, 131 S.Ct. 414 (2010). “[S]entencing is principally
a discretionary function in which the trial court’s judgment should receive considerable
deference.” Cardwell v. State, 895 N.E.2d at 1223. Dixon bears the burden on appeal of
persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073 (Ind.
2006).
The determination of whether we regard a sentence as appropriate “turns on our sense
of the culpability of the defendant, the severity of the crime, the damage done to others, and
myriad other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d at
1224. Moreover, “[t]he principal role of appellate review should be to attempt to leaven the
outliers, and identify some guiding principles for trial courts and those charged with
improvement of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each
case.” Id. at 1225. Accordingly, “the question under Appellate Rule 7(B) is not whether
another sentence is more appropriate; rather, the question is whether the sentence imposed is
inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in
original).
In order to assess the appropriateness of a sentence, we first look to the statutory
ranges established for the classification of the relevant offenses. Dixon was convicted of one
class A felony and two class C felonies, all for child molesting. The advisory sentence for a
6 class A felony is thirty years, with a minimum of twenty years and a maximum of fifty years.
The advisory sentence for a class C felony is four years, with a minimum of two years and a
maximum of eight years. Dixon received an executed sentence totaling forty years,
consisting of a forty-year sentence for the class A felony, and concurrent six-year sentences
for each of the class C felonies.
Dixon cultivated a relationship with L.M. by paying attention to her and expressing an
interest in her life. L.M. testified that one of the things that stood out to her was that he
would ask her how her day was at school or ask whether she was having problems.
According to L.M., she “never really got that kind of attention from anyone in the house.”
Transcript at 160. Shortly thereafter, Dixon perpetrated three separate acts of molestation on
L.M., one of which was “very painful” for her. In doing so, he took advantage of the
unstable living condition in which L.M. found herself.
Turning now to Dixon’s character, this court has noted that a trial court may consider
a defendant’s criminal history in assessing the defendant’s character. See, e.g., Childress v.
State, 848 N.E.2d 1073. The significance of a defendant’s criminal history in assessing his
character is based on the gravity, nature, and number of prior offenses relative to the current
offense. Boling v. State, 982 N.E.2d 1055 (Ind. Ct. App. 2013). Even a minor criminal
history is nonetheless a poor reflection on the defendant’s character. See id. The trial court
noted that he had one prior felony conviction for strangulation, and that he failed to appear in
that case and subsequently violated his probation. The court also noted at least one prior
7 misdemeanor marijuana conviction,2 and that he failed to appear in that case. At the time
Dixon committed the present offenses, he was on probation for an unrelated offense and yet
other charges were pending against him.
Dixon bore the burden of convincing us that his sentence is inappropriate. Upon
consideration of the nature of his offenses and, in particular, his character, we cannot say that
the forty-year sentence imposed by the trial court is inappropriate.
Judgment affirmed.
MATHIAS, J., and PYLE, J., concur.
2 At sentencing, the court identified only one prior misdemeanor conviction, which must necessarily have referred to a marijuana conviction. The pre-sentence investigation report, however, reflects that two separate cases alleging use of marijuana were filed against Dixon in Michigan, both of which were adjudicated and both of which resulted in fines and fees assessed against Dixon. Only one of those resulted in a jail term, albeit suspended.