MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 22 2020, 6:18 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Andrew R. Falk Curtis T. Hill, Jr. Hendricks County Public Defender’s Attorney General of Indiana Office John R. Millikan Danville, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
David P. Guerriero, January 22, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1039 v. Appeal from the Hendricks Superior Court State of Indiana, The Honorable Mark A. Smith, Appellee-Plaintiff. Judge Trial Court Cause No. 32D04-1708-F4-24
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1039 | January 22, 2020 Page 1 of 8 Case Summary [1] David P. Guerriero (“Guerriero”) appeals his two convictions for child
molesting, as Level 4 felonies,1 and his two convictions for sexual misconduct
with a minor, as Level 4 felonies,2 following a jury trial. The only issue he
raises on appeal is whether there was insufficient evidence to support his
convictions due to the victim’s “incredibly dubious” testimony.
[2] We affirm.
Facts and Procedural History [3] Guerriero and Michael Hill (“Hill”) met in 1995 as cadets at West Point
Military Academy in New York, where they were roommates for four years.
Guerriero and Hill were both initially stationed at Fort Sill, Oklahoma before
being assigned to different locations. Guerriero and Hill reunited in 2012 in
Richmond, Virginia, where Guerriero moved in with Hill and Hill’s family.
Hill’s family includes two minor children, M.H. and a younger daughter, and
Hill’s wife, “Mary.” Guerriero and the Hill family moved to Indiana in 2013,
and Guerriero, who stayed with the family periodically after the move, began
living with the Hill family on a full-time basis around August of 2016.
1 Ind. Code § 35-42-4-3(b). 2 I.C. § 35-42-4-9(a)(1).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1039 | January 22, 2020 Page 2 of 8 [4] On August 2, 2017, the State charged Guerriero with Counts I and II, child
molesting as Level 4 felonies, and Counts III and IV, sexual misconduct with a
minor as Level 4 felonies. The victim was M.H. At Guerriero’s March 12 and
13, 2019, jury trial, the following testimony and evidence was presented.
[5] M.H.’s mother and father testified that Guerriero developed a relationship with
M.H., who called him Uncle Dave. While living with the Hill family beginning
in 2016, Guerriero had his own room in the basement, a key to the house, and
knowledge of the garage door code. Guerriero was also left alone with M.H.
“often” and watched the girls “[a]ll the time.” Tr. Vol. II at 238.
[6] M.H. testified that Guerriero engaged in sexual conduct with her on four
occasions between 2013 when the Hill family moved to Indiana and July 12,
2017, when Guerriero moved out. The first instance of sexual conduct
happened when M.H. was twelve years old. M.H. was startled awake in the
middle of the night by Guerriero, who began touching her while she was in bed.
M.H. stated that Guerriero touched “around my private parts and just rubbing
like along my thighs and my stomach.” Tr. Vol. III at 13. Guerriero began
rubbing M.H. on top of her clothes and then touched her underneath her
clothes. M.H. stated that the touching “would vary from like my stomach and
thighs to around my vagina above where you would put a tampon.” Id. at 14.
M.H. pretended she was asleep because she was afraid and then eventually
went to her mother’s bedroom and asked her mother if she could sleep with her.
Mary told M.H. to return to her room. M.H. did not tell her mother about the
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1039 | January 22, 2020 Page 3 of 8 assault at the time because she was afraid of how her mother would react and
that she would doubt what M.H. was saying.
[7] The second instance happened when M.H. was twelve or thirteen years old.
Guerriero got in bed with M.H. again and started rubbing her under her clothes.
M.H. stated that Guerriero “made me hold his penis and continued to just rub
around my private parts and my stomach and thighs.” Id. at 15. The third
instance happened after M.H. had turned fourteen years old when M.H. was on
a couch in a downstairs living room. M.H. was sitting under a blanket on the
couch while her family was outside, and Guerriero approached her and began
rubbing her thighs. M.H. stated that Guerriero then sat on the ground and
“started licking around my private parts ... under my clothing … right above
where you would put a tampon.” Id. at 18-20.
[8] The fourth instance happened after M.H. returned from church camp in mid-to-
late June of 2017. The rest of the Hill family was not at home, and M.H. was
sitting on a couch in an upstairs loft, where Guerriero approached her and
began rubbing her thighs. M.H. stated that Guerriero “sat down on the ground
and put my calves on his shoulders and pulled down my pants and started
licking around my private parts again.” Id. at 21. Guerriero also touched M.H.
on the stomach and breasts. The encounter lasted ten to fifteen minutes before
M.H. got up to take a shower. Guerriero asked if he could take a shower with
her, but M.H. went into the bathroom and locked the door. However, M.H.
was still scared because there was a key to the bathroom above the doorframe.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1039 | January 22, 2020 Page 4 of 8 [9] M.H. first told “one of [her] really good friends at the time” about the sexual
assaults in a telephone conversation. Id. at 24. Although M.H. described her
friendship with this friend as “toxic,” she also stated that they were “really good
friends.” Id. at 26. Mary testified that Guerriero abruptly moved out of the
house on July 12, 2017, after hearing M.H. read a book out loud to Mary about
sex and dating. Mary and Hill testified that, after learning that Guerriero
would be returning to the Hill home for a cookout, M.H. told her mother on
July 29 about the sexual assaults. Mary and Hill contacted the police about the
accusations on July 31, desiring to wait until Monday morning because they
assumed that “the people who do this all the time are the people that are there
Monday to Friday.” Tr. Vol. II at 247.
[10] Detective Jesse Fulwider (“Det. Fulwider”) of the Hendricks County Sheriff’s
Department also testified. He stated that, after Guerriero’s arrest on August 3,
2017, Det. Fulwider obtained a search warrant and searched the short-term
rental “facility” where Guerriero was staying. Tr. Vol. III at 59. During that
search he recovered an Apple iPad from Guerriero’s bedroom. Detective
Jeremy Chapman (“Det. Chapman”) of the Avon Police Department testified
that he did a forensic download of the iPad and printed the downloaded
content. Det. Fulwider testified that the printed download from the iPad was
contained in State’s Exhibit 8, which was admitted over Guerriero’s objection.
Exhibit 8 contained an article entitled “I Worked as a Lawyer on Child
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 22 2020, 6:18 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Andrew R. Falk Curtis T. Hill, Jr. Hendricks County Public Defender’s Attorney General of Indiana Office John R. Millikan Danville, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
David P. Guerriero, January 22, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1039 v. Appeal from the Hendricks Superior Court State of Indiana, The Honorable Mark A. Smith, Appellee-Plaintiff. Judge Trial Court Cause No. 32D04-1708-F4-24
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1039 | January 22, 2020 Page 1 of 8 Case Summary [1] David P. Guerriero (“Guerriero”) appeals his two convictions for child
molesting, as Level 4 felonies,1 and his two convictions for sexual misconduct
with a minor, as Level 4 felonies,2 following a jury trial. The only issue he
raises on appeal is whether there was insufficient evidence to support his
convictions due to the victim’s “incredibly dubious” testimony.
[2] We affirm.
Facts and Procedural History [3] Guerriero and Michael Hill (“Hill”) met in 1995 as cadets at West Point
Military Academy in New York, where they were roommates for four years.
Guerriero and Hill were both initially stationed at Fort Sill, Oklahoma before
being assigned to different locations. Guerriero and Hill reunited in 2012 in
Richmond, Virginia, where Guerriero moved in with Hill and Hill’s family.
Hill’s family includes two minor children, M.H. and a younger daughter, and
Hill’s wife, “Mary.” Guerriero and the Hill family moved to Indiana in 2013,
and Guerriero, who stayed with the family periodically after the move, began
living with the Hill family on a full-time basis around August of 2016.
1 Ind. Code § 35-42-4-3(b). 2 I.C. § 35-42-4-9(a)(1).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1039 | January 22, 2020 Page 2 of 8 [4] On August 2, 2017, the State charged Guerriero with Counts I and II, child
molesting as Level 4 felonies, and Counts III and IV, sexual misconduct with a
minor as Level 4 felonies. The victim was M.H. At Guerriero’s March 12 and
13, 2019, jury trial, the following testimony and evidence was presented.
[5] M.H.’s mother and father testified that Guerriero developed a relationship with
M.H., who called him Uncle Dave. While living with the Hill family beginning
in 2016, Guerriero had his own room in the basement, a key to the house, and
knowledge of the garage door code. Guerriero was also left alone with M.H.
“often” and watched the girls “[a]ll the time.” Tr. Vol. II at 238.
[6] M.H. testified that Guerriero engaged in sexual conduct with her on four
occasions between 2013 when the Hill family moved to Indiana and July 12,
2017, when Guerriero moved out. The first instance of sexual conduct
happened when M.H. was twelve years old. M.H. was startled awake in the
middle of the night by Guerriero, who began touching her while she was in bed.
M.H. stated that Guerriero touched “around my private parts and just rubbing
like along my thighs and my stomach.” Tr. Vol. III at 13. Guerriero began
rubbing M.H. on top of her clothes and then touched her underneath her
clothes. M.H. stated that the touching “would vary from like my stomach and
thighs to around my vagina above where you would put a tampon.” Id. at 14.
M.H. pretended she was asleep because she was afraid and then eventually
went to her mother’s bedroom and asked her mother if she could sleep with her.
Mary told M.H. to return to her room. M.H. did not tell her mother about the
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1039 | January 22, 2020 Page 3 of 8 assault at the time because she was afraid of how her mother would react and
that she would doubt what M.H. was saying.
[7] The second instance happened when M.H. was twelve or thirteen years old.
Guerriero got in bed with M.H. again and started rubbing her under her clothes.
M.H. stated that Guerriero “made me hold his penis and continued to just rub
around my private parts and my stomach and thighs.” Id. at 15. The third
instance happened after M.H. had turned fourteen years old when M.H. was on
a couch in a downstairs living room. M.H. was sitting under a blanket on the
couch while her family was outside, and Guerriero approached her and began
rubbing her thighs. M.H. stated that Guerriero then sat on the ground and
“started licking around my private parts ... under my clothing … right above
where you would put a tampon.” Id. at 18-20.
[8] The fourth instance happened after M.H. returned from church camp in mid-to-
late June of 2017. The rest of the Hill family was not at home, and M.H. was
sitting on a couch in an upstairs loft, where Guerriero approached her and
began rubbing her thighs. M.H. stated that Guerriero “sat down on the ground
and put my calves on his shoulders and pulled down my pants and started
licking around my private parts again.” Id. at 21. Guerriero also touched M.H.
on the stomach and breasts. The encounter lasted ten to fifteen minutes before
M.H. got up to take a shower. Guerriero asked if he could take a shower with
her, but M.H. went into the bathroom and locked the door. However, M.H.
was still scared because there was a key to the bathroom above the doorframe.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1039 | January 22, 2020 Page 4 of 8 [9] M.H. first told “one of [her] really good friends at the time” about the sexual
assaults in a telephone conversation. Id. at 24. Although M.H. described her
friendship with this friend as “toxic,” she also stated that they were “really good
friends.” Id. at 26. Mary testified that Guerriero abruptly moved out of the
house on July 12, 2017, after hearing M.H. read a book out loud to Mary about
sex and dating. Mary and Hill testified that, after learning that Guerriero
would be returning to the Hill home for a cookout, M.H. told her mother on
July 29 about the sexual assaults. Mary and Hill contacted the police about the
accusations on July 31, desiring to wait until Monday morning because they
assumed that “the people who do this all the time are the people that are there
Monday to Friday.” Tr. Vol. II at 247.
[10] Detective Jesse Fulwider (“Det. Fulwider”) of the Hendricks County Sheriff’s
Department also testified. He stated that, after Guerriero’s arrest on August 3,
2017, Det. Fulwider obtained a search warrant and searched the short-term
rental “facility” where Guerriero was staying. Tr. Vol. III at 59. During that
search he recovered an Apple iPad from Guerriero’s bedroom. Detective
Jeremy Chapman (“Det. Chapman”) of the Avon Police Department testified
that he did a forensic download of the iPad and printed the downloaded
content. Det. Fulwider testified that the printed download from the iPad was
contained in State’s Exhibit 8, which was admitted over Guerriero’s objection.
Exhibit 8 contained an article entitled “I Worked as a Lawyer on Child
Molestation Cases and Just Because Woody Allen Wasn’t Prosecuted Doesn’t
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1039 | January 22, 2020 Page 5 of 8 Necessarily Mean He’s Innocent” that had been saved as a bookmark on
Guerriero’s iPad. Id. at 65.
[11] On March 14, 2019, the jury found Guerriero guilty as charged. Following an
April 9 sentencing hearing, the trial court imposed an eight-year sentence on
Count I and a six-year sentence on Count II, to run concurrently; a six-year
sentence on Count III, to run consecutively to Counts I and II, and a six-year
sentence on Count IV, to run consecutively to Counts I, II, and III, with three
years suspended to probation. This appeal ensued.
Discussion and Decision [12] Guerriero contends that the evidence was insufficient to support his convictions
because M.H.’s testimony was the only evidence of his guilt, and it was
incredibly dubious.3 Our standard of review of the sufficiency of the evidence is
well-settled:
When reviewing the sufficiency of the evidence needed to support a criminal conviction, we neither reweigh evidence nor judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence supporting the judgment and any reasonable inferences that can be drawn from such evidence.” Id. We will affirm if there is substantial evidence of probative value such that a reasonable trier of fact
3 Guerriero does not challenge the sufficiency of the evidence on any grounds other than the alleged incredible dubiosity of M.H.’s testimony.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1039 | January 22, 2020 Page 6 of 8 could have concluded the defendant was guilty beyond a reasonable doubt. Id.
Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013), trans. denied.
Moreover, a conviction may 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).
[13] Guerriero asserts that the rule of incredible dubiosity applies to the testimony of
M.H. and renders the evidence as a whole insufficient to support his
convictions. The rule of incredible dubiosity permits the appellate court to
impinge upon the factfinder’s determination of credibility issues when it is
confronted with inherently improbable, coerced, equivocal, or wholly
uncorroborated testimony of incredible dubiosity. Moore v. State, 27 N.E.3d
749, 755 (Ind. 2015). Application of the rule is “limited to cases with very
specific circumstances because [the Court is] extremely hesitant to invade the
province of the jury.” Smith v. State, 34 N.E.3d 1211, 1221 (Ind. 2015). The
standard for invoking the incredible dubiosity rule is not an impossible burden
to meet, but it is a difficult one, and testimony must be such that no reasonable
person could believe it. Clark v. State, 62 N.E.3d 460, 462 (Ind. Ct. App. 2016).
In order for the incredible dubiosity rule to apply, there must be (1) a sole
testifying witness, (2) testimony that is inherently improbable, contradictory, or
coerced, and (3) a complete absence of circumstantial evidence. Moore, 27
N.E.3d at 756; cf. Murray v. State, 761 N.E.2d 406, 408 (Ind. 2002) (finding the
incredible dubiosity rule inapplicable even when there was a single eyewitness).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1039 | January 22, 2020 Page 7 of 8 [14] M.H.’s testimony was not inherently improbable, contradictory, or coerced.
“Cases where we have found testimony inherently improbable have involved
situations either where the facts as alleged ‘could not have happened as
described by the victim and be consistent with the laws of nature or human
experience,’ or where the witness was so equivocal about the act charged that
her uncorroborated and coerced testimony ‘was riddled with doubt about its
trustworthiness.’” Carter v. State, 31 N.E.3d 17, 31 (Ind. Ct. App. 2015)
(quoting Watkins v. State, 571 N.E.2d 1262, 1265 (Ind. Ct. App. 1991). M.H.’s
testimony did not describe scenarios that were so inconsistent with human
experience that they could not have happened as described, and her testimony
was not equivocal. Furthermore, there was not a complete lack of
circumstantial evidence in this case. M.H.’s parents testified that Guerriero had
the opportunity and means to be alone with M.H. to commit the acts M.H.
described, and the police found an article regarding child molestation cases
saved on Guerriero’s iPad. That was circumstantial evidence of Guerriero’s
guilt.
[15] The evidence was sufficient to support Guerriero’s convictions.
[16] Affirmed.
Kirsch, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1039 | January 22, 2020 Page 8 of 8