Roger D. Campbell v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 21, 2018
• Docket: 18A-CR-1473
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 21 2018, 10:58 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Steven Knecht Curtis T. Hill, Jr. Vonderheide & Knecht, P.C. Attorney General of Indiana Lafayette, Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Roger D. Campbell, December 21, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1473 v. Appeal from the White Superior Court State of Indiana, The Honorable Robert B. Mrzlack, Appellee-Plaintiff Judge Trial Court Cause No. 91D01-1705-F4-69

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1473 | December 21, 2018 Page 1 of 6 [1] Roger Campbell appeals his convictions for three counts of Child Molesting, 1

one as a Level 1 felony and two as Level 4 felonies, arguing that the evidence is

insufficient. Finding the evidence sufficient, we affirm.

Facts [2] J.G., who was five to six years old at the time of the incidents, lived in

Monticello with her grandmother. J.G.’s mother also lived at the residence,

along with many other family members. Campbell’s house was nearby in the

same neighborhood. Her grandmother’s home was not always a stable place

for J.G., and Campbell acted as a family support. J.G. would go over to

Campbell’s house three to four times a week, ask for food, and spend time with

Campbell and his wife.

[3] In October 2016, J.G. was removed from her mother’s care and from her

grandmother’s home because of suspected drug use and lack of proper

supervision. J.G. was placed in foster care. About a month after being placed

with her foster family, J.G. disclosed that Campbell had touched her

inappropriately, leading to a forensic interview. J.G. was later placed with a

second foster family and divulged further details, leading to a second forensic

interview.

1 Ind. Code § 35-42-4-3.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1473 | December 21, 2018 Page 2 of 6 [4] On May 2, 2017, the State charged Campbell with two counts of Level 4 felony

child molesting, later adding one count of Level 1 felony child molesting.

Campbell’s jury trial began on April 17, 2018. J.G. testified at the trial,

explaining that Campbell had touched her “girl part up there” and had done so

on multiple occasions. Tr. Vol. II p. 71-72. He told J.G. to touch his “boy

part” with her hands and mouth; J.G. explained that she complied “[b]ecause

he told me to. And he said if I do it, he’ll let me go home.” Id. at 74.

Campbell touched J.G.’s vagina with his hands and mouth and put his fingers

in her anus. Id. at 74, 80-81. At least once, Campbell called J.G. a “bad word”

that started with a “b” and told her that he loved her. Id. at 74-75. Campbell

once attempted to insert his penis into J.G.’s anus but did not penetrate her. He

told her not to tell anyone about these sexual incidents and threatened her if she

told anyone. J.G. later told her grandfather that she did not want to go back to

Campbell’s house, but still went over there on occasion because her

grandmother asked her to do so.

[5] The jury found Campbell guilty as charged. At Campbell’s May 25, 2018,

sentencing hearing, the trial court imposed a thirty-year sentence for the Level 1

felony conviction and concurrent six-year sentences for each of the two Level 4

felony convictions, to be served consecutively to the thirty-year sentence, for an

aggregate term of thirty-six years imprisonment. Campbell now appeals.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1473 | December 21, 2018 Page 3 of 6 Discussion and Decision [6] Campbell’s sole argument on appeal is that the evidence does not support his

conviction. When reviewing the sufficiency of the evidence to support a

conviction, we must consider only the probative evidence and reasonable

inferences supporting the conviction and will neither assess witness credibility

nor reweigh the evidence. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We

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

proved beyond a reasonable doubt. Id.

[7] To convict Campbell of Level 1 felony child molesting, the State was required

to prove beyond a reasonable doubt that Campbell, who was over the age of

twenty-one, knowingly or intentionally performed or submitted to sexual

intercourse or other sexual conduct with J.G., who was under the age of

fourteen. I.C. § 35-42-4-3(a). To convict Campbell of Level 4 felony child

molesting, the State was required to prove beyond a reasonable doubt that

Campbell performed or submitted to any fondling or touching of or by J.G.,

who was under the age of fourteen, with intent to arouse or to satisfy the sexual

desires of either J.G. or himself. I.C. § 35-42-4-3(b).

[8] Campbell does not raise an argument regarding any of the statutory elements.

Instead, he argues that his conviction is based on incredibly dubious evidence.

The rule of incredible dubiosity allows the court to impinge upon a jury’s

responsibility to judge the credibility of witnesses. Moore v. State, 27 N.E.3d

749, 754 (Ind. 2015). This rule applies only when a sole witness provides

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1473 | December 21, 2018 Page 4 of 6 testimony that is inherently contradictory, equivocal, or the result of coercion.

Smith v. State, 34 N.E.3d 1211, 1221 (Ind. 2015). Its application is very rare,

and the “‘testimony must be so convoluted and/or contrary to human

experience that no reasonable person could believe it.’” Moore, 27 N.E.3d at

756 (quoting Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001)).

[9] J.G.’s testimony was neither inherently contradictory nor equivocal, nor was

there any evidence that she was coerced to testify. And unfortunately, her

testimony was not contrary to human experience.

[10] The gravamen of Campbell’s argument is his claim that J.G.’s version of events

changed significantly between her two forensic interviews. Initially, we note

that her version of events did not change significantly; instead, she merely

divulged more details and information the second time. This is an eminently

reasonable course for a sexual assault survivor to take—especially when the

survivor is a young child.

[11] Moreover, J.G.’s forensic interviews were not introduced into evidence at trial.

Instead, the young girl testified, and her testimony—which is the focus of the

incredible dubiosity rule—was unequivocal. See Murray v. State, 761 N.E.2d

406, 409 (Ind. 2002) (explaining that a successful claim of incredible dubiosity

must show contradictions inherent in the testimony itself rather than

inconsistencies between testimony and other external sources). Campbell’s

attorney cross-examined J.G., raising the issue of her consistency and

questioning her level of certainty regarding her allegations. It was for the jury

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1473 | December 21, 2018 Page 5 of 6 to evaluate J.G.’s credibility, and we may not and will not second-guess the

jurors’ determination that she was believable.

[12] We do not find J.G.’s testimony to be incredibly dubious. Therefore, the

evidence is sufficient to support Campbell’s convictions. See Bailey v. State, 979

N.E.2d 133, 135 (Ind. 2012) (holding that a conviction may be sustained on

only the uncorroborated testimony of a single witness, even when that witness

is the victim).

[13] The judgment of the trial court is affirmed.

May, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1473 | December 21, 2018 Page 6 of 6