Timothy M. Roberts, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 21, 2015
• Docket: 89A05-1410-CR-500
• Status: Published

Opinion

MEMORANDUM DECISION Apr 21 2015, 8:21 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be 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 Mark I. Cox Gregory F. Zoeller The Mark I. Cox Law Office, LLC Attorney General of Indiana Richmond, Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Timothy M. Roberts, Jr., April 21, 2015

Appellant-Defendant, Court of Appeals Case No. 89A05-1410-CR-500 v. Appeal from the Wayne Circuit Court. The Honorable David A. Kolger, State of Indiana, Judge. Appellee-Plaintiff. Cause No. 89C01-1302-FA-5

Darden, Senior Judge

Court of Appeals of Indiana | Memorandum Decision 89A05-1410-CR-500 | April 21, 2015 Page 1 of 5 Statement of the Case [1] Timothy M. Roberts, Jr., appeals his conviction of child molesting, a Class A 1 felony. We affirm.

Issue [2] Whether there is sufficient evidence to sustain Roberts’s conviction.

Facts and Procedural History [3] Laura Rubino gave birth to D.F. on October 25, 2000. Rubino subsequently

began a relationship with Roberts, and they had two children together. After

the relationship ended, Rubino and her three children moved to Richmond,

Indiana.

[4] In March 2009, Roberts moved to Richmond and cared for the children while

Rubino was at work. One evening, Roberts had D.F. leave her bedroom and go

to the living room. He removed her clothes and rubbed his penis against her

vagina. Next, Roberts had D.F. put her mouth on his penis. He ejaculated and

told her to swallow it instead of spitting it out. D.F. asked Roberts what he was

doing to her, and he told her “he couldn’t tell me because I’d tell someone.”

Tr. p. 217. Roberts had D.F. put her mouth on his penis at least “ten, fifteen”

times in the months following the first incident. Id. at 220.

1 Ind. Code § 35-42-4-3 (2007).

Court of Appeals of Indiana | Memorandum Decision 89A05-1410-CR-500 | April 21, 2015 Page 2 of 5 [5] D.F. later disclosed to Rubino’s boyfriend what Roberts had done to her.

When D.F. was later in foster care, she also told her foster mother about

Roberts’s molestations.

[6] The State charged Roberts with child molesting as a Class A felony. A jury

determined that Roberts was guilty as charged. The trial court sentenced

Roberts, and this appeal followed.

Discussion and Decision [7] Roberts claims the State failed to present sufficient evidence to sustain his

conviction beyond a reasonable doubt. In considering challenges to the

sufficiency of the evidence, we neither reweigh the evidence nor judge witness

credibility. Caruthers v. State, 926 N.E.2d 1016, 1022 (Ind. 2010). Instead, we

consider only the evidence supporting the judgment and any reasonable

inferences drawn from the evidence. Tin Thang v. State, 10 N.E.3d 1256, 1258

(Ind. 2014). We affirm a conviction unless no reasonable trier of fact could find

every element proved beyond a reasonable doubt. Blount v. State, 22 N.E.3d

559, 565 (Ind. 2014).

[8] In order to convict Roberts of child molesting as a Class A felony, the State was

required to prove beyond a reasonable doubt that Roberts: (1) a person of at

least twenty-one years of age (2) performed or submitted to sexual intercourse

or deviate sexual conduct (3) with a child under fourteen years of age. Ind.

Code § 35-42-4-3. During the period of time relevant to this case, “deviate

sexual conduct” was defined as “an act involving . . . a sex organ of one person

Court of Appeals of Indiana | Memorandum Decision 89A05-1410-CR-500 | April 21, 2015 Page 3 of 5 and the mouth or anus of another person . . . or the penetration of the sex organ

or anus of a person by an object.” Ind. Code § 35-41-1-9 (repealed 2012).

[9] There is no dispute that Roberts was older than twenty-one years of age or that

D.F. was under fourteen years of age when the acts at issue occurred. Further,

D.F. testified specifically and in in detail about the first time that Roberts forced

her to put her mouth on his penis, and she further testified that it happened

again at least ten to fifteen other times during the time period at issue here.

This is sufficient evidence that Roberts submitted to deviate sexual conduct

with D.F. See Ware v. State, 816 N.E.2d 1167, 1174 (Ind. Ct. App. 2004)

(victim’s testimony that defendant performed deviate sexual conduct on

multiple occasions during time period sufficient to sustain convictions).

[10] Roberts asserts that there is no physical evidence, but considering the manner in

which the crimes were committed and the totality of the facts and

circumstances surrounding the incidents, it is unlikely that there would ever be

any physical evidence available. Roberts also claims that D.F.’s testimony was

inconsistent. However, a molested child’s uncorroborated testimony is

sufficient to sustain a conviction. Carter v. State, 754 N.E.2d 877, 880 (Ind.

2001). Furthermore, any inconsistencies were a matter for the jury to weigh in

assessing D.F.’s credibility.

Conclusion [11] For the reasons stated above, we affirm the judgment of the trial court.

[12] Affirmed. Court of Appeals of Indiana | Memorandum Decision 89A05-1410-CR-500 | April 21, 2015 Page 4 of 5 Najam, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 89A05-1410-CR-500 | April 21, 2015 Page 5 of 5