MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Mar 07 2016, 8:18 am
regarded as precedent or cited before any 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 P. Stephen Miller Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana
Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Diverlo Georges, March 7, 2016 Appellant-Defendant, Court of Appeals Case No. 02A03-1508-CR-1094 v. Appeal from the Allen Superior Court State of Indiana, The Honorable John F. Surbeck, Appellee-Plaintiff Jr., Judge Trial Court Cause No. 02D06-1410-FA-45
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1094 | March 7, 2016 Page 1 of 8 Case Summary [1] Diverlo Georges (“Georges”) was convicted after a jury trial of two counts of
Child Molesting, as Class A felonies,1 and one count of Child Molesting, as a
Class C felony.2 He was sentenced to an aggregate term of imprisonment of
thirty years, and now appeals.
[2] We affirm.
Issues [3] Georges presents two issues for our review, which we restate as:
I. Whether there was sufficient evidence to sustain his conviction of Child Molesting, as a Class C felony; and
II. Whether the evidence supporting his convictions for Child Molesting, as Class A felonies, was incredibly dubious.
Facts and Procedural History [4] J.N. and Georges were both Haitian immigrants and part of the same extended
family. J.N. came to the United States from Haiti in August 2011 at the age of
eleven. J.N., Georges, J.N.’s father, J.N.’s stepmother, and several of J.N.’s
1 Ind. Code § 35-42-4-3(a)(1). Georges’s offenses were committed prior to the July 1, 2014, effective date of substantial revisions to Indiana’s criminal statutes. We refer throughout to the versions of the statutes in effect at the time of Georges’s offenses. 2 I.C. § 35-42-4-3(b).
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1094 | March 7, 2016 Page 2 of 8 siblings shared a home in Fort Wayne until December 30, 2011, when Georges
and his wife moved into their own apartment. After Georges and his wife
moved to their own residence, J.N. and her siblings would visit Georges’s home
from time to time.
[5] On one Sunday during the winter of 2011 or early 2012, J.N. and several
siblings were visiting Georges’s home after church. Georges told J.N. to sit on
his lap, and J.N. complied. Georges touched J.N.’s leg and rubbed a part of her
body, and then got up and took a shower.
[6] After Georges was done showering, he told J.N. to come into a bedroom with
him. Georges turned off the light and closed the door in the room. J.N., who
was wearing a skirt, was sitting on the edge of the bed. Georges used his hand
to push J.N.’s underwear aside and initiated sexual intercourse with J.N. J.N.
pushed Georges away; Georges told J.N. not to push him, and again initiated
sexual intercourse with J.N. Georges eventually ceased intercourse and
ejaculated onto a towel he had placed on the floor. He then told J.N. not to tell
anyone what had happened because both he and J.N. would get in trouble.
[7] On another occasion, J.N. and several siblings were staying with Georges and
his wife for the weekend. While J.N.’s siblings were playing or watching
television, Georges had J.N. come into the same bedroom as before, and again
engaged in sexual intercourse with J.N. As on the prior occasion, Georges
ejaculated onto a towel he had placed on the floor.
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1094 | March 7, 2016 Page 3 of 8 [8] J.N. eventually reported these incidents to a school guidance counselor, who in
turn contacted Child Protective Services and the Fort Wayne Police. On
October 15, 2014, the State charged Georges with two counts of Child
Molesting, as Class A felonies, and one count of Child Molesting, as a Class C
felony.
[9] A jury trial was conducted on June 9 and 10, 2015. At the conclusion of the
trial, the jury found Georges guilty as charged. A sentencing hearing was
conducted on July 24, 2015, during which the trial court entered judgment
against George and sentenced him to thirty years imprisonment for each of the
Class A felony convictions and to four years imprisonment for the Class C
felony conviction, with all three terms run concurrent with one another,
yielding an aggregate sentence of thirty years.
[10] This appeal ensued.
Discussion and Decision Sufficiency of the Evidence [11] Georges contends that there was insufficient evidence to sustain his conviction
for Child Molesting, as a Class C felony. Our standard of review in sufficiency
challenges is well settled. We consider only the probative evidence and
reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144,
146 (Ind. 2007). We do not assess the credibility of witnesses or reweigh
evidence. Id. We will affirm the conviction unless “no reasonable fact-finder
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1094 | March 7, 2016 Page 4 of 8 could find the elements of the crime proven beyond a reasonable doubt.” Id.
(quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)). “The evidence is
sufficient if an inference may reasonably be drawn from it to support the
verdict.” Id. at 147 (quoting Pickens v. State, 751 N.E.2d 331, 334 (Ind. Ct. App.
2001)).
[12] To convict Georges of Child Molesting as a Class C felony, as charged, the
State was required to prove beyond a reasonable doubt that Georges performed
or submitted to fondling or touching with J.N., then a child under fourteen
years of age, with the intent of arousing or satisfying either his own or J.N.’s
sexual desires. See I.C. § 35-42-4-3(b); App’x at 16.
[13] Here, Georges contends that there was insufficient evidence to sustain the
verdict based upon: 1) a difference between what the State argued it would
establish in opening argument and J.N.’s trial testimony, and 2) purported lack
of sexual intent on Georges’s part. As to the first point, Georges argues that the
State failed to produce evidence that he touched J.N.’s leg, a point the State
said during opening argument it would prove, and thus there is insufficient
evidence. However, J.N.’s testimony at trial is that Georges had J.N. sit on his
lap and that, while she was sitting on Georges’s lap, he touched J.N. “right
here, like he just rubbed it.” (Tr. at 196-97.) That is, J.N.’s testimony
established touching in the form both of sitting on Georges’s lap and some
additional form of touching J.N.’s body. J.N.’s testimony, including the phrase
“right here,” indicates that the jury was made aware visually of what part of
J.N.’s body Georges may have touched. Neither the statute nor the charging
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1094 | March 7, 2016 Page 5 of 8 information specifically require proof that Georges touched J.N.’s leg, and we
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Mar 07 2016, 8:18 am
regarded as precedent or cited before any 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 P. Stephen Miller Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana
Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Diverlo Georges, March 7, 2016 Appellant-Defendant, Court of Appeals Case No. 02A03-1508-CR-1094 v. Appeal from the Allen Superior Court State of Indiana, The Honorable John F. Surbeck, Appellee-Plaintiff Jr., Judge Trial Court Cause No. 02D06-1410-FA-45
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1094 | March 7, 2016 Page 1 of 8 Case Summary [1] Diverlo Georges (“Georges”) was convicted after a jury trial of two counts of
Child Molesting, as Class A felonies,1 and one count of Child Molesting, as a
Class C felony.2 He was sentenced to an aggregate term of imprisonment of
thirty years, and now appeals.
[2] We affirm.
Issues [3] Georges presents two issues for our review, which we restate as:
I. Whether there was sufficient evidence to sustain his conviction of Child Molesting, as a Class C felony; and
II. Whether the evidence supporting his convictions for Child Molesting, as Class A felonies, was incredibly dubious.
Facts and Procedural History [4] J.N. and Georges were both Haitian immigrants and part of the same extended
family. J.N. came to the United States from Haiti in August 2011 at the age of
eleven. J.N., Georges, J.N.’s father, J.N.’s stepmother, and several of J.N.’s
1 Ind. Code § 35-42-4-3(a)(1). Georges’s offenses were committed prior to the July 1, 2014, effective date of substantial revisions to Indiana’s criminal statutes. We refer throughout to the versions of the statutes in effect at the time of Georges’s offenses. 2 I.C. § 35-42-4-3(b).
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1094 | March 7, 2016 Page 2 of 8 siblings shared a home in Fort Wayne until December 30, 2011, when Georges
and his wife moved into their own apartment. After Georges and his wife
moved to their own residence, J.N. and her siblings would visit Georges’s home
from time to time.
[5] On one Sunday during the winter of 2011 or early 2012, J.N. and several
siblings were visiting Georges’s home after church. Georges told J.N. to sit on
his lap, and J.N. complied. Georges touched J.N.’s leg and rubbed a part of her
body, and then got up and took a shower.
[6] After Georges was done showering, he told J.N. to come into a bedroom with
him. Georges turned off the light and closed the door in the room. J.N., who
was wearing a skirt, was sitting on the edge of the bed. Georges used his hand
to push J.N.’s underwear aside and initiated sexual intercourse with J.N. J.N.
pushed Georges away; Georges told J.N. not to push him, and again initiated
sexual intercourse with J.N. Georges eventually ceased intercourse and
ejaculated onto a towel he had placed on the floor. He then told J.N. not to tell
anyone what had happened because both he and J.N. would get in trouble.
[7] On another occasion, J.N. and several siblings were staying with Georges and
his wife for the weekend. While J.N.’s siblings were playing or watching
television, Georges had J.N. come into the same bedroom as before, and again
engaged in sexual intercourse with J.N. As on the prior occasion, Georges
ejaculated onto a towel he had placed on the floor.
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1094 | March 7, 2016 Page 3 of 8 [8] J.N. eventually reported these incidents to a school guidance counselor, who in
turn contacted Child Protective Services and the Fort Wayne Police. On
October 15, 2014, the State charged Georges with two counts of Child
Molesting, as Class A felonies, and one count of Child Molesting, as a Class C
felony.
[9] A jury trial was conducted on June 9 and 10, 2015. At the conclusion of the
trial, the jury found Georges guilty as charged. A sentencing hearing was
conducted on July 24, 2015, during which the trial court entered judgment
against George and sentenced him to thirty years imprisonment for each of the
Class A felony convictions and to four years imprisonment for the Class C
felony conviction, with all three terms run concurrent with one another,
yielding an aggregate sentence of thirty years.
[10] This appeal ensued.
Discussion and Decision Sufficiency of the Evidence [11] Georges contends that there was insufficient evidence to sustain his conviction
for Child Molesting, as a Class C felony. Our standard of review in sufficiency
challenges is well settled. We consider only the probative evidence and
reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144,
146 (Ind. 2007). We do not assess the credibility of witnesses or reweigh
evidence. Id. We will affirm the conviction unless “no reasonable fact-finder
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1094 | March 7, 2016 Page 4 of 8 could find the elements of the crime proven beyond a reasonable doubt.” Id.
(quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)). “The evidence is
sufficient if an inference may reasonably be drawn from it to support the
verdict.” Id. at 147 (quoting Pickens v. State, 751 N.E.2d 331, 334 (Ind. Ct. App.
2001)).
[12] To convict Georges of Child Molesting as a Class C felony, as charged, the
State was required to prove beyond a reasonable doubt that Georges performed
or submitted to fondling or touching with J.N., then a child under fourteen
years of age, with the intent of arousing or satisfying either his own or J.N.’s
sexual desires. See I.C. § 35-42-4-3(b); App’x at 16.
[13] Here, Georges contends that there was insufficient evidence to sustain the
verdict based upon: 1) a difference between what the State argued it would
establish in opening argument and J.N.’s trial testimony, and 2) purported lack
of sexual intent on Georges’s part. As to the first point, Georges argues that the
State failed to produce evidence that he touched J.N.’s leg, a point the State
said during opening argument it would prove, and thus there is insufficient
evidence. However, J.N.’s testimony at trial is that Georges had J.N. sit on his
lap and that, while she was sitting on Georges’s lap, he touched J.N. “right
here, like he just rubbed it.” (Tr. at 196-97.) That is, J.N.’s testimony
established touching in the form both of sitting on Georges’s lap and some
additional form of touching J.N.’s body. J.N.’s testimony, including the phrase
“right here,” indicates that the jury was made aware visually of what part of
J.N.’s body Georges may have touched. Neither the statute nor the charging
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1094 | March 7, 2016 Page 5 of 8 information specifically require proof that Georges touched J.N.’s leg, and we
decline Georges’s apparent invitation to reweigh the evidence on this point.
[14] Turning to the question of intent, J.N. testified that immediately after Georges
had J.N. sit on his lap, he got up to take a shower and, after the shower,
brought J.N. to a bedroom and engaged in sexual intercourse with her. Given
the brief span of time and J.N.’s testimony that Georges had rubbed some part
of her while she sat on Georges’s lap, the jury could reasonably infer that
Georges’s conduct before the shower was intended to arouse his sexual desires.
We accordingly conclude that there was sufficient evidence to sustain Georges’s
conviction for Child Molesting, as a Class C felony.
Incredible Dubiosity [15] Georges also argues that J.N.’s testimony supporting his Class A felony
convictions was incredibly dubious.
Under the incredible dubiosity rule, a court will impinge on a jury's responsibility to judge witness credibility only when confronted with inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity. Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994). The incredible dubiosity rule, however, is limited to cases where a sole witness presents inherently contradictory testimony which is equivocal or the result of coercion and there is a complete lack of circumstantial evidence of the defendant’s guilt. Id.
Majors v. State, 748 N.E.2d 365, 367 (Ind. 2001) (emphasis added). “The
incredible dubiosity rule applies to conflicts in trial testimony rather than
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1094 | March 7, 2016 Page 6 of 8 conflicts that exist between trial testimony and statements made to the police
before trial.” Buckner v. State, 857 N.E.2d 1011, 1018 (Ind. Ct. App. 2006)
(citing Reyburn v. State, 737 N.E.2d 1169, 1171 (Ind. Ct. App. 2000)). For
testimony to be so incredibly dubious as to warrant reversal of a conviction or
delinquency adjudication, the single witness’s testimony must be coerced or
“inherently improbable [so] that no reasonable person could believe it.” Love v.
State, 761 N.E.2d 806, 810 (Ind. 2002).
[16] The incredible dubiosity rule does not apply here. In Moore v. State, 27 N.E.3d
749 (Ind. 2015), the Indiana Supreme Court addressed an appeal from a murder
case in which there was only one eyewitness to a shooting. Id. at 757. The
Moore Court held that the incredible dubiosity rule did not apply because, while
there was only one eyewitness to the shooting, other witnesses’ testimonies
“placed Moore at the scene” or provided other forms of corroboration. Id. The
court reiterated that “the testimony of multiple witnesses alone precludes the
application of the incredible dubiosity rule.” Id. at 758.
[17] Here, multiple witnesses provided testimony. Georges is correct that the only
eyewitness to the offense was J.N. However, several of J.N.’s and Georges’s
family members testified as to J.N.’s age and the timing of her arrival in the
United States, the timing of Georges’s move out of J.N.’s family home, and the
timing of instances in which Georges would have had access to J.N. without
other adults present in his home. The incredible dubiosity rule therefore does
not apply. And because Georges stated in his brief that he would “concede[]
this issue” if he was incorrect as to the applicability of the incredible dubiosity
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1094 | March 7, 2016 Page 7 of 8 rule in this case (Appellant’s Br. at 8), we find no other contention of error or
basis for reversal.
Conclusion [18] There was sufficient evidence to support Georges’s conviction for Child
Molesting, as a Class C felony. The evidence supporting Georges’s convictions
for Child Molesting, as Class A felonies, is not subject to analysis under the
incredible dubiosity rule.
[19] Affirmed.
Vaidik, C.J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1094 | March 7, 2016 Page 8 of 8