Jason Levi Bellamy v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 15, 2020
• Docket: 19A-CR-1540
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 15 2020, 6:17 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jason Levi Bellamy, April 15, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1540 v. Appeal from the Jackson Circuit Court State of Indiana, The Honorable Appellee-Plaintiff. Richard W. Poynter. Judge Trial Court Cause No. 36C01-1703-F1-1

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1540 | April 15, 2020 Page 1 of 9 [1] Following a jury trial, Jason Levi Bellamy (“Bellamy”) was found guilty of two

counts of child molesting1 as Level 1 felonies and sexual misconduct with a

minor2 as a Level 4 felony. He was sentenced to thirty-five years for each of the

Level 1 felonies and ten years for the Level 4 felony, with the sentences ordered

to run consecutively for an aggregate sentence of eighty years executed.

Contending that the evidence was insufficient to support his convictions and

that his sentence is inappropriate, Bellamy now appeals.

[2] We affirm.

Facts and Procedural History [3] In April of 2016, thirteen-year-old D.F. began living with her great-aunt

because her mother was being held in the Jackson County Jail. D.F. visited her

mother at the jail on numerous occasions. On one of these occasions, she met

Bellamy who was her mother’s boyfriend. Bellamy was in his mid-thirties at

the time.

[4] In May of 2016, Bellamy moved into D.F.’s great-aunt’s home, and D.F.’s

great-aunt allowed Bellamy to stay with her for several months. He soon

developed a sexual relationship with D.F. and had sex with her on an almost

1 See Ind. Code § 35-42-4-3(a)(1). 2 See Ind. Code § 35-42-4-9(a)(1).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1540 | April 15, 2020 Page 2 of 9 daily basis in May and June of 2016. They continued to engage in sexual

intercourse after D.F’s fourteenth birthday in June of 2016.

[5] D.F.’s grandfather worked at Jackson County Dispatch, which was located in

the jail, and he frequently saw D.F. and Bellamy visiting D.F.’s mother. He

was uncomfortable with the way in which Bellamy and D.F. sat next to each

other in Bellamy’s truck and held hands when walking through the parking lot.

D.F.’s great-aunt was also uncomfortable with the amount of time that D.F.

and Bellamy spent together and how closely they would sit together on the

couch. She confronted Bellamy about her concerns and told Bellamy that he

was going to be D.F.’s step-father and that he should act differently toward her.

[6] In June of 2016, D.F.’s great-aunt was arrested and jailed for operating a motor

vehicle while intoxicated. D.F. was placed in foster care where she remained

for approximately a year. She tried to stay in contact with Bellamy while she

was in foster care, but the rules of the facility made that difficult. In September

of 2016, D.F. and Bellamy began communicating via Facebook, but when D.F.

later attempted to contact Bellamy by phone and learned that he was out with

two women from his work, she became upset.

[7] In November of 2016, D.F. attended a seminar at her school about

inappropriate sexual contact. After the seminar, she spoke with a school

counselor and reported what had happened with Bellamy. She later went to a

forensic interview at a child advocacy center. Police were notified and

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1540 | April 15, 2020 Page 3 of 9 interviewed Bellamy about D.F.’s allegations. Bellamy denied the allegations

and stated that he did not engage in any inappropriate conduct with D.F.

[8] On March 21, 2017, the State of Indiana charged Bellamy with three counts of

child molesting as Level 1 felonies and one count of sexual misconduct with a

minor as a Level 4 felony. While Bellamy was incarcerated prior to his trial, he

was incarcerated with a man named Rocky Drake (“Drake”). The police

interviewed Drake, and he told them that Bellamy admitted to having sex with

D.F. when she was thirteen and described it as the “best sex he has ever had.”

Tr. Vol. II at 129.

[9] A jury trial was held, and Bellamy was found guilty of two counts of child

molesting as Level 1 felonies and one count of sexual misconduct with a minor

as a Level 4 felony. The trial court sentenced Bellamy to thirty-five years for

each of the Level 1 felonies and ten years for the Level 4 felony and ordered the

counts to run consecutively for an aggregate sentence of eighty years executed.

Bellamy now appeals.

Discussion and Decision

I. Sufficiency of the Evidence [10] When we review the sufficiency of evidence to support a conviction, we do not

reweigh the evidence or assess the credibility of the witnesses. Lehman v. State,

55 N.E.3d 863, 868 (Ind. Ct. App. 2016), trans. denied. We consider only the

evidence most favorable to the verdict and the reasonable inferences that can be

drawn from that evidence. Fuentes v. State, 10 N.E.3d 68, 75 (Ind. Ct. App.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1540 | April 15, 2020 Page 4 of 9 2014), trans. denied. We also consider conflicting evidence in the light most

favorable to the trial court’s ruling. Oster v. State, 992 N.E.2d 871, 875 (Ind. Ct.

App. 2013), trans. denied. We will not disturb the verdict if there is substantial

evidence of probative value to support it. Fuentes, 10 N.E.3d at 75. We will

affirm unless no reasonable factfinder could find the elements of the crime

proven beyond a reasonable doubt. Delagrange v. State, 5 N.E.3d 354, 356 (Ind.

2014). A conviction can be sustained on only the uncorroborated testimony of

a single witness, even when that witness is the victim. Dalton v. State, 56 N.E.3d

644, 648 (Ind. Ct. App. 2016), trans. denied.

[11] Bellamy argues that the State presented insufficient evidence to support his

convictions. He specifically contends that his conviction was based on the

inherently incredible and dubious testimony of D.F. “The incredible dubiosity

rule provides that a court may impinge on the jury’s responsibility to judge

witness credibility only when confronted with inherently improbable testimony

or coerced, equivocal, wholly uncorroborated testimony of incredible

dubiosity.” Carter v. State, 31 N.E.3d 17, 30-31 (Ind. Ct. App. 2015) (citing Love

v. State, 761 N.E.2d 806, 810 (Ind. 2002)), trans. denied. The rule only applies

“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 appellant’s guilt.” Moore v. State, 27 N.E.3d 749, 755 (Ind. 2015).

This rule is only applied rarely and the standard to be applied is whether the

testimony is so incredibly dubious or inherently improbable that no reasonable

person could believe it. Carter, 31 N.E.3d at 31. The rule applies only when a

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1540 | April 15, 2020 Page 5 of 9 witness contradicts herself or himself in a single statement or while testifying

and does not apply to conflicts between multiple statements. Id. “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.’” Id.

(quoting Watkins v. State, 571 N.E.2d 1262, 1265 (Ind. Ct. App. 1991), aff’d in

relevant part, 575 N.E.2d 624 (Ind. 1991)).

[12] Bellamy asserts that the rule of incredible dubiosity applies because D.F.’s

testimony was incredible and inherently unreliable in that she could not

remember certain details of their encounters, the lack of physical evidence on

the couch where D.F. claimed many of the molestations occurred, and the

absence of physical trauma to D.F. However, there are no inconsistencies in

the testimony of D.F. She consistently testified about the molestations

perpetrated by Bellamy, and her description of Bellamy’s molestations of her

were not inconsistent with the laws of nature or human experience.

Additionally, there was no indication that D.F.’s testimony was coerced or

equivocal about the fact that Bellamy had molested her. As to Bellamy’s

contention that there was no physical evidence on the couch, the lack of such

evidence could be the result of a number of different possibilities which Bellamy

fails to negate. Regarding the lack of physical injuries experienced by D.F.,

Bellamy does not identify any evidence or authority indicating that a victim in

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1540 | April 15, 2020 Page 6 of 9 D.F.’s circumstances would usually experience injuries. We, therefore,

conclude that Bellamy’s reliance on the incredible dubiosity rule fails.

[13] Furthermore, the incredible dubiosity rule also does not apply because D.F.’s

testimony was not completely uncorroborated. See Moore, 27 N.E.3d at 755

(stating that testimony of multiple witnesses alone precludes the application of

the incredible dubiosity rule). D.F.’s testimony was corroborated by Drake,

Bellamy’s fellow inmate, who testified that Bellamy had stated that he had sex

with the thirteen-year-old daughter of his girlfriend. Tr. Vol. II at 129.

Although Bellamy claims that Drake’s testimony should not be credited for

various reasons, it is for the trier of fact to resolve conflicts in the evidence and

to decide which witnesses to believe or disbelieve. Moore, 27 N.E.3d at 758.

Therefore, because D.F.’s testimony was not completely uncorroborated,

Bellamy’s claim that the incredible dubiosity rule precludes his convictions fails,

and we affirm his convictions.

II. Inappropriate Sentence [14] Bellamy also contends that his eighty-year aggregate sentence is inappropriate.

Pursuant to Indiana Appellate Rule 7(B), this court “may revise a sentence

authorized by statute if, after due consideration of the trial court’s decision, the

[c]ourt finds that the sentence is inappropriate in light of the nature of the

offense and the character of the offender.” The principal role of an appellate

court’s sentence review is to leaven the outliers, not achieve a perceived correct

sentence. Harbet v. State, 51 N.E.3d 267, 278 (Ind. Ct. App. 2016). We

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1540 | April 15, 2020 Page 7 of 9 independently examine the nature of Bellamy’s offense and his character under

Appellate Rule 7(B) with substantial deference to the trial court’s sentence.

Satterfield v. State, 33 N.E.3d 344, 355 (Ind. 2015). “In conducting our review,

we do not look to see whether the defendant’s sentence is appropriate or if

another sentence might be more appropriate; rather, the test is whether the

sentence is ‘inappropriate.’” Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App.

2013), trans. denied. Whether a sentence is inappropriate ultimately depends

upon “the culpability of the defendant, the severity of the crime, the damage

done to others, and a myriad of other factors that come to light in a given case.”

Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The defendant has the

burden of persuading the appellate court that his sentence is inappropriate and

should be revised. Kayser v. State, 131 N.E.3d 717, 723 (Ind Ct. App. 2019).

[15] Here, Bellamy was sentenced to an aggregate sentence of eighty years. As this

court has recognized, the nature of the offense is found in the details and

circumstances of the commission of the offense and the defendant’s

participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). In looking at

the nature of Bellamy’s offenses, the evidence showed that, over the course of

several months, he repeatedly engaged in acts of sexual intercourse with a girl

who was only thirteen years old when he began and continued to do so after

she turned fourteen years old. Bellamy’s actions were especially egregious

because D.F. was at a particularly vulnerable time in her life as her mother and

great-aunt were incarcerated, and she was estranged from her father. Further,

Bellamy held a position of trust with D.F., and he abused that trust. “D.F. did

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1540 | April 15, 2020 Page 8 of 9 not have the care and attention of adults in her family,” Appellant’s Br. at 15,

and Bellamy stepped into this void and took advantage of this to molest D.F.

on a regular basis. We do not find Bellamy’s sentence to be inappropriate in

light of the nature of the offense.

[16] The character of the offender is found in what we learn of the offender’s life and

conduct. Perry, 78 N.E.3d at 13. When considering the character of the

offender, one relevant fact is the defendant’s criminal history. Johnson v. State,

986 N.E.2d 852, 857 (Ind. Ct. App. 2013). The evidence showed that Bellamy

has an extensive history of criminal activity. He was convicted of reckless

driving in 1999; disorderly conduct and public intoxication in 2001; operating a

motor vehicle while intoxicated in 2003; criminal trespass in 2004; driving

while suspended in 2005; disorderly conduct and public intoxication in 2006;

resisting law enforcement in 2008; possession of marijuana as a Class D felony

in 2012; and operating a vehicle while intoxicated in 2016. Bellamy’s criminal

history consists of approximately a dozen prior convictions before he

committed the present offenses and shows a continuous pattern of failing to

abide by the law. We, therefore, conclude that his sentence is not inappropriate

in light of the nature of the offense and his character.

[17] Affirmed.

Bailey, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1540 | April 15, 2020 Page 9 of 9