MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 26 2016, 9:10 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Larry Crawford Thomas Gregory F. Zoeller Clinton, Indiana Attorney General of Indiana
Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Deryk Hutton, April 26, 2016 Appellant-Defendant, Court of Appeals Case No. 61A05-1504-CR-162 v. Appeal from the Parke Circuit Court State of Indiana, The Honorable Sam A. Swaim, Appellee-Plaintiff. Judge Trial Court Cause No. 61C01-1307-FA-168
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 61A05-1504-CR-162 | April 26, 2016 Page 1 of 18 [1] Deryk Hutton appeals his convictions of Class A felony attempted child 1 2 3 molesting, Class A felony child molesting, Class B felony child molesting, 4 and two counts of Class B felony sexual misconduct with a minor. He raises
three issues on review, which we consolidate and restate as:
1. Whether the trial court abused its discretion when it admitted the results of his polygraph examination; and
2. Whether the State presented sufficient evidence he committed the crimes.
[2] We affirm.
Facts and Procedural History [3] Hutton and the victim, B.H., are adopted siblings. 5 Hutton is nine years older
than B.H. When B.H. was in sixth grade and twelve years old, she and Hutton
were in a pole barn together and played “strip pool.” (Tr. at 93.) Sometime
during that incident, Hutton and B.H. went into a nearby wooded area and
Hutton tried to “force himself” on B.H., but “the actual insertion didn’t
happen.” (Id. at 94.)
1 See Ind. Code §§ 35-42-4-3(a)(1) (2007); 35-41-5-1 (1977). 2 Ind. Code § 35-42-4-3(a)(1) (2007). 3 Ind. Code § 35-42-4-3(a) (2007). 4 Ind. Code § 35-42-4-9(a)(1) (2007). 5 B.H.’s father, Glen Hutton, married Deryk Hutton’s mother, Lori Hutton. Lori adopted B.H. and Glen adopted Deryk. (Tr. at 91-92, 128, 207-208.)
Court of Appeals of Indiana | Memorandum Decision 61A05-1504-CR-162 | April 26, 2016 Page 2 of 18 [4] When B.H. was between sixth and seventh grade, Hutton took B.H. to the pole
barn and “tried to do things there.” (Id. at 96.) Hutton was interrupted when a
child entered the pole barn. Hutton then took B.H. into the bathroom in the
house, locked the door, and forced B.H. to engage in sexual intercourse.
Sometime in 2009, when B.H. was in seventh grade, Hutton asked B.H. to enter
his bedroom. Hutton and B.H. watched a pornographic video and Hutton
forced B.H. to perform oral sex on him.
[5] B.H. testified that when she was in seventh grade, while at school, she told
three of her friends “[her] brother had done some things to [her.]” (Id. at 99.)
After school, B.H. was instructed to go to the police station or the jail to 6 provide a report on the incidents. B.H. talked to a sheriff’s deputy, but was
afraid her mother would be angry with her if she reported the incidents. She
told the deputy nothing happened.
[6] In 2011, during the spring of B.H.’s eighth grade year, Hutton forced B.H. to 7 submit to sexual intercourse in his apartment bedroom. That summer, B.H.
told her mother about the incidents with Hutton and B.H. testified that her
mother confronted Hutton. (Id. at 102.) B.H. testified Hutton “said he was
6 It is unclear from the record who reported to the Department of Child Services B.H.’s conversation with her friends and who instructed B.H. to go the police station or jail to report the incidents. 7 Hutton, his wife, and their children moved out of the house where B.H. lived and into their own apartment in September, 2010. (Tr. at 245.) At some point, Hutton and his wife separated and Hutton filed for divorce on June 10, 2011. (Id. at 263.) Hutton’s wife moved from the apartment “a couple weeks” before Hutton filed for a divorce. (Id. at 262-63.)
Court of Appeals of Indiana | Memorandum Decision 61A05-1504-CR-162 | April 26, 2016 Page 3 of 18 sorry, that he screwed up.” (Id.) B.H. further testified that her mother asked
B.H. if she wanted Hutton to lose everything, and B.H. indicated she did not,
so B.H.’s mother told B.H. and Hutton they would keep the matter secret. (Id.
at 103.)
[7] In 2012, when B.H. was in tenth grade and fifteen years old, B.H.’s mother
would drop B.H. off at Hutton’s house in the morning so B.H. could sleep an 8 extra hour before walking to her school, which was near Hutton’s house. One
day, B.H. returned to Hutton’s house after school to take a shower between
volleyball practice and the homecoming game. Hutton attempted to enter the
shower with B.H. and get her “to do things” and “do things to [her].” (Id. at
123.) After the shower, Hutton performed oral sex on B.H. He took pictures of
B.H. with his cell phone, but the pictures were deleted. B.H. testified Hutton
told her he was sorry. (Id. at 125.)
[8] In 2013, B.H. visited her sister in Indianapolis. B.H. told her sister about the
sexual incidents with Hutton, but asked her sister not to tell anyone. B.H.’s
sister reported the incidents to Child Protective Services (CPS) and CPS
initiated an investigation. Chief Deputy Jason Frazier, with the Parke County
Sheriff’s Office, was the investigating officer for the case. He was present when
B.H. recounted the incidents to a forensic child examiner from Susie’s Place, a
child-advocacy center that investigates allegations of crimes against children.
8 Hutton had moved from the apartment to a house. (See Tr. at 103; see also App. at 163.)
Court of Appeals of Indiana | Memorandum Decision 61A05-1504-CR-162 | April 26, 2016 Page 4 of 18 [9] At some point during the investigation, Chief Deputy Frazier contacted Hutton
and asked him if he would be willing to take a polygraph examination. On July
2, 2013, Charles L. Bollinger, who worked for the Parke County Prosecutor’s
Office at the time, met with Hutton at the Rockville Police Department.
Bollinger provided Hutton with a “polygraph stipulation and agreement,” (Tr.
at 158), which Hutton signed. Bollinger administered the polygraph test and
asked Hutton questions about the incidents involving B.H., specifically: “Has
your penis ever touched your stepsister [B.H.’s] vagina?” and “Are you lying
when you say your penis has never touched your stepsister [B.H.’s] vagina?”
(Id. at 163.) The polygraph results indicated Hutton answered deceptively
when he answered “no” to both questions.
[10] On July 12, 2013, the State charged Hutton with two counts of Class A felony
child molesting, one count of Class B felony child molesting, and two counts of
Class B felony sexual misconduct with a minor. On June 10, 2014, Hutton filed
a motion to suppress the results of the polygraph test. The trial court held a
hearing and denied Hutton’s motion on July 2, 2014. Hutton moved to certify
the order for interlocutory appeal, and the trial court denied the motion on
August 8, 2014. A jury found Hutton not guilty of Count I Class A felony child
molesting, but found him guilty of the lesser included offense of Class A felony 9 attempted child molesting. Hutton also was found guilty of the other charges.
9 Before the case went to the jury, the prosecution, defense counsel, and the court discussed the court’s proposed final jury instruction that included language indicating the jury could consider whether Hutton
Court of Appeals of Indiana | Memorandum Decision 61A05-1504-CR-162 | April 26, 2016 Page 5 of 18 Discussion and Decision Admission of Polygraph Evidence
[11] Hutton’s argument on admission of polygraph evidence is two-fold. He argues
the polygraph evidence is inadmissible because: 1) the stipulation agreement
that he signed prior to taking the examination was ambiguous, speculative, and
vague and, therefore, not a valid contract; and 2) he was not advised of his
Sixth Amendment right to counsel.
[12] Hutton objected to the admission of the polygraph evidence in a pre-trial 10 motion to suppress and renewed his objection at trial. Because Hutton
appeals following his conviction and is not appealing the trial court’s order
denying his motion to suppress, the question before us is properly framed as
whether the trial court erred in admitting the polygraph evidence. Shell v. State,
927 N.E.2d 413, 418 (Ind. Ct. App. 2010). Admission of evidence at trial is left
to the discretion of the trial court. Clark v. State, 994 N.E.2d 252, 259-60 (Ind.
2013). We review its determinations for abuse of that discretion and reverse
committed attempted child molesting if the State failed to prove he committed child molesting as alleged in Count I. (Tr. at 293-95.) The instruction was submitted to the jury over defense counsel’s objection. Hutton does not challenge that instruction on appeal. 10 In its brief, the State asserts Hutton’s challenge to the admission of the polygraph evidence is waived because Hutton did not object to the evidence at trial. (Appellee’s Br. at 20.) He did. Hutton’s counsel stated to the prosecutor and the judge, “And Judge, we pretty much agreed on instead of going through the entire Motion to Suppress before the Court that we would submit the transcript of the evidence from the suppression hearing as evidence . . . .” (Tr. at 148.) The prosecutor stated, “Yes, they are renewing their objection for the record, Judge. We stand on the argument the State’s already [sic] – motion to suppress hearing and the Court’s ruling.” (Id.) Thereafter, a detailed record of defense counsel’s objection to the polygraph evidence was made, at the conclusion of which, the trial court “overruled [defense counsel’s] objection to the polygraph as per our previous court order.” (Id. at 152.)
Court of Appeals of Indiana | Memorandum Decision 61A05-1504-CR-162 | April 26, 2016 Page 6 of 18 only when admission is clearly against the logic and effect of the facts and
circumstances and the error affects a party’s substantial rights. Id. at 260. We
will not reweigh evidence and we consider conflicting evidence most favorable
to the trial court’s ruling. Marcum v. State, 843 N.E.2d 546, 547 (Ind. Ct. App.
2006). We will also consider uncontested evidence favorable to the defendant.
Id. The record must disclose substantial evidence of probative value that
supports the trial court’s decision. Gonser v. State, 843 N.E.2d 947, 949 (Ind. Ct.
App. 2006). The trial court’s ruling will be upheld if it is sustainable on any
legal theory supported by the record, even if the trial court did not use that
theory. Id.
[13] We have expressed reservations about the reliability of polygraph results.
McVey v. State, 863 N.E.2d 434, 440 (Ind. Ct. App. 2007), reh’g denied. As a
general rule the results of a polygraph examination are not competent evidence
and are inadmissible at trial. Owens v. State, 176 Ind.App. 1, 3, 373 N.E.2d 913,
914 (1978). But where all the parties by stipulation have waived any objection,
the court may allow the results to be admitted. Id. at 3, 373 N.E.2d at 914-15.
Validity of Polygraph Stipulation
[14] Hutton argues the polygraph stipulation and agreement he signed “contain[ed]
misrepresentations of the law and fact, [was] ambiguous, and [was] speculative
and vague.” (Appellant’s Br. at 20.) He maintains he could not knowingly,
voluntarily, and intelligently enter into the stipulation because he did not
request the examination; he did not know whether the polygraph examiner
Court of Appeals of Indiana | Memorandum Decision 61A05-1504-CR-162 | April 26, 2016 Page 7 of 18 qualified as an expert; and the language of the stipulation was too vague to
inform him what testimony might be offered in court against him.
[15] As our Supreme Court observed in Sanchez v. State, 675 N.E.2d 306, 308 (Ind.
1996), there are four prerequisites to the admission of polygraph results: (1) the
prosecutor, defendant, and defense counsel must all sign a written stipulation
providing for the defendant’s submission to the examination and for the
subsequent admission at trial of the results; (2) the admissibility of the test
results must be within the trial court’s discretion as it relates to the examiner’s
qualifications and the test conditions; (3) the opposing party must have the right
to cross-examine the polygraph examiner if his graphs and opinion are offered
in evidence; and (4) the jury must be instructed that, at most, the examiner’s
testimony tends only to show whether the defendant was being truthful at the
time of the examination, and that it is for the jury to determine the weight and
effect to be given such testimony.
[16] A stipulation entered into by a defendant and the State before a polygraph
examination is a contract. Willey v. State, 712 N.E.2d 434, 440 (Ind. 1999).
Contract law principles control the use and interpretation of such stipulations.
Id. In order for polygraph evidence to be admissible, it must be agreed to in
unambiguous terms and the stipulation agreement, like any other contract,
must not be the product of misrepresentation or mistake of fact. Id. at 441.
[17] Hutton stipulated as follows:
Court of Appeals of Indiana | Memorandum Decision 61A05-1504-CR-162 | April 26, 2016 Page 8 of 18 1. Said Deryk S. Hutton understands that he or she is not under arrest nor in the custody of law enforcement in any way. He/she further understands that he/she has the right to remain silent and that anything he/she says can be used against them [sic] in a court of law. He/she further understands that he/she has the right to have an attorney present during questioning and that if they [sic] cannot afford an attorney, one will be appointed for them [sic]. Further, he/she acknowledges that no promises or threats have been made, and that no pressure or coercion of any kind has been used.
2. Said Deryk S. Hutton, in person, has requested that he/she be given a polygraph examination by Charles L. Bollinger.
3. That the Prosecuting Attorney for the 68th Judicial Circuit consents to the said Deryk S. Hutton[] taking the polygraph examination.
4. That Charles L. Bollinger, is a qualified polygraph examiner and is qualified by his education, training and experience to testify as an expert witness in interpreting the results of the polygraph examination performed by him and the use of the polygraph as means of detection of deception.
5. That the questions of the examiner, the answers by the said Deryk S. Hutton, and the record of his reactions to said questions, and interrogation or other things relating to said examination including the results and the opinions of the examiner relating to said examination be admitted as evidence, on behalf of the State of Indiana.
6. That Deryk S. Hutton[] hereby waives his/her constitutional privilege against self-incrimination to the extent
Court of Appeals of Indiana | Memorandum Decision 61A05-1504-CR-162 | April 26, 2016 Page 9 of 18 that the same may be involved in the presentation of evidence in the foregoing matters.
7. That the results from the polygraph examination may be used either by Deryk S. Hutton, [sic] or the State of Indiana in future trials or criminal proceedings.
(State’s Ex. 2.)
1. Request for Polygraph Examination
[18] Hutton contends he did not request the polygraph examination, and the
stipulation was not a binding contract because it said he did. We disagree.
[19] A police officer contacted Hutton about taking a polygraph examination.
Hutton agreed and voluntarily met with the polygraph examiner. Before the
examination, the stipulation was read to Hutton by the examiner as Hutton
followed along. Hutton indicated that he understood the terms of the
stipulation and he signed it. Hutton could have indicated that the stipulation
was incorrect, requested the stipulation language be changed, or not signed the
stipulation. He chose to sign the stipulation as written. See, e.g., Pinnacle
Computer Servs., Inc. v. Ameritech Publ’g, Inc., 642 N.E.2d 1011, 1017 (Ind. Ct.
App. 1994) (court cannot relieve party from terms of contract because of party’s
failure to read all or part of it, as party is bound to know the contents of the
contract it signs), reh’g denied; see also, Buschman v. ADS Corp., 782 N.E.2d 423,
428 (Ind. Ct. App. 2003) (citing Lake Cnty. Trust Co. v. Wine, 704 N.E.2d 1035,
1040 (Ind. Ct. App. 1998)) (a person is presumed to understand and assent to
Court of Appeals of Indiana | Memorandum Decision 61A05-1504-CR-162 | April 26, 2016 Page 10 of 18 the terms of the contract he signs). We cannot find error on the ground the
stipulation was not a binding contract.
2. Polygraph Examiner’s Qualifications
[20] Hutton next takes issue with paragraph 4 of the stipulation, which indicates the
polygraph examiner is qualified to testify as an expert witness and interpret the
examination results. Hutton argues he had “no knowledge of [the examiner’s]
qualifications or lack thereof as a polygraph examiner and could not
intelligently, voluntarily and knowingly agree to something he had no
knowledge of.” (Appellant’s Br. at 20.) As noted above, Hutton stipulated the
examiner was qualified. He did not challenge the examiner’s qualifications.
[21] Hutton asserts the language in paragraph 4 “is an attempt to take the
determination as to whether someone is an expert out of the hands of the trial
judge which is solely the trial court’s determination.” (Id.) Hutton’s assertion
fails. The trial court heard testimony about the polygraph examiner’s
qualifications. The examiner testified about his qualifications and how many
polygraph examinations he has administered. A video recording was entered
into evidence showing the stipulation being read to Hutton and the pre-
examination interview that followed. The trial court determined the polygraph
evidence was admissible. There was sufficient evidence to determine the
examiner’s qualifications and the admissibility of the polygraph evidence. See
Davidson v. State, 558 N.E.2d 1077, 1086 (Ind. 1990) (finding that polygraph
examiner’s testimony at suppression hearing regarding his training, experience,
Court of Appeals of Indiana | Memorandum Decision 61A05-1504-CR-162 | April 26, 2016 Page 11 of 18 and the conditions of the examination was sufficient to find polygraph results
admissible at trial). We find no error here.
3. Vagueness of Stipulation
[22] Hutton next directs us to paragraph 5 of the stipulation, which allows for the
admissibility of the polygraph results: “the questions of the examiner, the
answers by [Hutton], and the record of his reactions to said questions, and
interrogation or other things relating to said examination including the results
and the opinions of the examiner relating to said examination be admitted as
evidence . . . .” (State’s Exhibit 2) (emphasis added). Hutton maintains the
“other things” language of the stipulation was too vague to allow him to
determine what testimony might be offered in court against him. We cannot
agree.
[23] Hutton attempts to compare the language found in paragraph 5 of his
stipulation to the language of the stipulation in Willey. The Willey stipulation
provided: “the questions of the examiner, the answers by the individual [and]
any interrogation or other things relating to said examination, may be admitted
as evidence. . . .” 712 N.E.2d at 440 (emphasis added). Our Supreme Court
found that language “plainly and unambiguously” allowed the examiner’s
relevant questions and Willey’s answers to be admitted into evidence, but was
ambiguous as to the admission of the examiner’s opinion as to Willey’s
Court of Appeals of Indiana | Memorandum Decision 61A05-1504-CR-162 | April 26, 2016 Page 12 of 18 11 truthfulness. Id. (emphasis added). The Court determined Willey’s polygraph
results were erroneously admitted at trial but the admission was harmless. Id.
at 442. In reaching its decision, the Court provided examples of stipulations
that
unambiguously provide for the admission of a polygraph examiner’s opinion testimony regarding the defendant’s truthfulness in answering questions. See, e.g., Willis v. State, 268 Ind. 269, 273, 374 N.E.2d 520, 523 (1978) (stipulation provided ‘any interrogation or other things related to said examination including the results and the opinions of the examiner relating to said examination, be admitted as evidence . . . .’).
Id. at 441 (second citation omitted).
[24] Hutton’s stipulation, unlike Willey’s, explicitly provided for the admission of
his polygraph results and the opinions of the examiner and stated “the results
from the polygraph examination may be used either by [Hutton] or the [State]
in future trials or criminal proceedings.” (See State’s Ex. 2, paragraph 7.)
Hutton’s stipulation was not vague or ambiguous as to the admission of the
11 Our Supreme Court specifically found: (1) “in the context of a polygraph stipulation entered into without the assistance of counsel, ‘other things’ is too vague to alert a reasonable defendant that the [examiner would] be permitted to give an opinion that the defendant was deceptive or a liar,” Willey, 712 N.E.2d at 440; (2) the stipulation did not “spell out” that the examiner’s testimony might be offered in court against Willey, or that “‘interpreting the results’” might include an opinion as to Willey’s truthfulness, id. at 441; (3) another paragraph of the stipulation excluded from introduction into evidence items commonly referred to as the results, such as the polygraph charts and the examiner's notes and worksheets, id.; and (4) Willey submitted to the polygraph examination after being falsely informed that someone had implicated him in the crime. Id.
Court of Appeals of Indiana | Memorandum Decision 61A05-1504-CR-162 | April 26, 2016 Page 13 of 18 examiner’s opinion on Hutton’s truthfulness or which results would be
admissible at trial.
Right to Counsel
[25] Hutton argues the trial court abused its discretion when it admitted the results
of his polygraph test because the polygraph was administered without the
presence of counsel. According to Hutton, his right to have counsel at the
examination is guaranteed under the Sixth Amendment of the United States
Constitution and under Article I, Section 13 of the Indiana Constitution
because the polygraph examination was a critical stage of the criminal
proceedings against him. Assuming, arguendo, a right to counsel attached,
Hutton waived it.
[26] In Caraway v. State, 891 N.E.2d 122, 127 (Ind. Ct. App. 2008), reh’g denied, we
determined Caraway’s right to counsel attached immediately before a detective
asked him to sign the stipulation agreement. “Caraway had to stand alone
against the State, and make a decision that may damage his defense at trial. At
that critical stage, the absence of Caraway’s right to an attorney derogated his
right to a fair trial.” Id. As Caraway was not “informed of his right to counsel
prior to stipulating the results of a polygraph examination, he could not have
waived it.” Id. Hutton, by contrast, was informed of his right to counsel and
he waived it. Caraway’s stipulation did not include a Miranda warning or
notice of Caraway’s right to counsel. Id. Hutton’s did.
Court of Appeals of Indiana | Memorandum Decision 61A05-1504-CR-162 | April 26, 2016 Page 14 of 18 [27] The first paragraph of Hutton’s stipulation included Miranda warnings and an
advisement of his right to counsel. Before administering the polygraph
examination, the examiner read to Hutton the stipulation and the waiver of
rights. Hutton indicated that he understood the rights and the stipulation. By
signing the stipulation, Hutton waived his right to counsel. We cannot say the
trial court erred in admitting into evidence the results of Hutton’s polygraph
examination. See Casada v. State, 544 N.E.2d 189, 199 (Ind. Ct. App. 1989)
(Polygraph examiner properly advised Casada of his Miranda rights, so
Casada’s “full awareness, before he took the examination, of his right to
counsel and his failure to exercise that right constituted a clear waiver of it.”),
trans. denied.
Sufficiency of Evidence
[28] Hutton maintains there was insufficient evidence to support his convictions.
When reviewing sufficiency of evidence to support a conviction, we consider
only the probative evidence and reasonable inferences supporting the trial
court’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the fact-
finder’s role, and not ours, to assess witness credibility and weigh the evidence
to determine whether it is sufficient to support a conviction. Id. To preserve
this structure, when we are confronted with conflicting evidence, we consider it
most favorably to the trial court’s ruling. Id. We affirm a conviction unless no
reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt. Id. It is therefore not necessary that the evidence overcome
every reasonable hypothesis of innocence; rather, the evidence is sufficient if an
Court of Appeals of Indiana | Memorandum Decision 61A05-1504-CR-162 | April 26, 2016 Page 15 of 18 inference reasonably may be drawn from it to support the trial court’s decision.
Id. at 147.
[29] Hutton invokes the “incredible dubiosity rule” under which we may impinge on
the jury’s responsibility to judge the credibility of the witness only when it has
confronted “‘inherently improbable’ testimony [] or coerced, equivocal, wholly
uncorroborated testimony of ‘incredible dubiosity.’” Rodgers v. State, 422
N.E.2d 1211, 1213 (Ind. 1981) (citations omitted). We may reverse a
conviction if the sole witness presents inherently improbable testimony and
there is no circumstantial evidence of the defendant’s guilt. White v. State, 706
N.E.2d 1078, 1079 (Ind. 1999). Application of this rule is rare and the standard
to be applied is whether the testimony is so incredibly dubious or inherently
improbable that no reasonable person could believe it. Stephenson v. State, 742
N.E.2d 463, 498 (Ind. 2001) (citations omitted).
[30] Hutton maintains B.H., the sole witness, presented inconsistent testimony at
trial. Specifically, Hutton argues: (1) B.H. reported to friends that Hutton “had
done some things to [her],” (Tr. at 99), but later recanted the allegations; (2) the
polygraph examiner’s opinion that Hutton’s results showed deception was
“highly suspect” because B.H. recanted the allegations against Hutton,
(Appellant’s Br. at 16); (3) there were inconsistencies in B.H.’s testimony
regarding how much clothing she wore after the game of “strip pool” and
whether Hutton engaged her in sexual intercourse after the game ended; (4)
B.H. did not testify clearly to when Hutton first engaged in sexual intercourse
with her; (5) her testimony regarding being forced to perform oral sex on
Court of Appeals of Indiana | Memorandum Decision 61A05-1504-CR-162 | April 26, 2016 Page 16 of 18 Hutton was “highly questionable,” (id. at 14); (6) testimony from other
individuals contradicted B.H.’s testimony; (7) regarding B.H. taking a shower at
Hutton’s house, “no reasonable person would have placed themselves [sic] in
her position” and “any reasonable person would have taken a shower at
school,” (id. at 15); and (8) there was no circumstantial evidence to support the
convictions.
[31] B.H.’s testimony was not incredibly dubious. A conviction of child molesting
may rest on the uncorroborated testimony of the victim. Barger v. State, 587
N.E.2d 1304, 1308 (Ind. 1992), reh’g denied. “The fact that a witness gives trial
testimony that contradicts earlier pre-trial statements does not necessarily
render the trial testimony incredibly dubious.” Murray v. State, 761 N.E.2d 406,
409 (Ind. 2002). As for testimony from other individuals contradicting B.H.’s
testimony, inconsistencies between the testimony of multiple witnesses do not
make the evidence “incredible” as a matter of law. Stephenson, 742 N.E.2d at
497. Any inconsistencies in the testimony of multiple witnesses goes to the
weight and credibility of the witnesses’ testimony. Id. “It is for the trier of fact
to resolve conflicts in the evidence and to decide which witnesses to believe or
disbelieve. . . . If the testimony believed by the trier of fact is enough to support
the verdict, then the reviewing court will not disturb it.” Ferrell v. State, 746
N.E.2d 48, 51 (Ind. 2001) (citation omitted).
[32] B.H. testified in detail regarding multiple incidents during which Hutton forced
her to engage in sexual intercourse with him or forced her to perform or submit
to oral sex. Hutton has not indicated, nor do we observe, any of B.H.’s
Court of Appeals of Indiana | Memorandum Decision 61A05-1504-CR-162 | April 26, 2016 Page 17 of 18 testimony that is inherently improbable, contradictory, or equivocal. Hutton’s
arguments are an invitation to reweigh the evidence and judge the credibility of
the witness, which we cannot do. See Drane, 867 N.E.2d at 146. The jury
believed B.H.’s testimony. Hutton has not shown her testimony was so
inherently improbable that no reasonable trier of fact could believe it, and there
is probative evidence from which the jury could have found Hutton guilty
beyond a reasonable doubt. We affirm his convictions.
Conclusion [33] The trial court did not abuse its discretion when it admitted the results of
Hutton’s polygraph examination, and the State presented sufficient evidence he
committed the offenses of which a jury found him guilty. Accordingly, we
affirm.
[34] Affirmed.
Najam, J., and Riley, J., concur.
Court of Appeals of Indiana | Memorandum Decision 61A05-1504-CR-162 | April 26, 2016 Page 18 of 18