FOX v. STATE (2024)

MEMORANDUM DECISION

[1] Joel Fox appeals his convictions for child molesting, two counts as Class A felonies and one count as a Class C felony, following a bench trial. Fox presents a single issue for our review, namely, whether the State presented sufficient evidence to support his convictions.

[2] We affirm.

Facts and Procedural History

[3] In 2013, Fox was living in Indianapolis with his mother, Candy Whitesides, his daughter, C.M., and his son, D.M. C.M. turned nine years old that year, and D.M. is her younger brother.¹ During that time, Fox and C.M. shared a bed, and D.M. slept on a mattress in the same room. One night while C.M. was in bed with Fox, he pulled down her underwear, touched the outside of her vagina with his fingers, and attempted to penetrate her vagina with his erect penis, but “it wouldn't go in.” Tr. p. 106. Fox then began rubbing his penis on the outside of her vagina and just barely inside her vagina, and he finally ejaculated into a rag. Fox repeated these same actions with C.M. “periodically.” Id. at 112.

[4] On another occasion, Fox asked C.M. “to kiss his penis” and he “shoved her head down there.” Id. at 108. Fox told C.M. that she “wasn't doing it right and then he showed [her] a porn video” depicting a woman fellating a man. Id. C.M. told Fox that she did not want to do that, but he pushed her head down towards his penis, and she complied. After a short time, C.M. stopped and went to lie down with her brother on his mattress.

[5] A few years later, C.M. went into foster care, and she began living with Tina McIntyre. Sometime in 2018, C.M. told her cousin K.N. about what Fox had done to her in 2013. But K.N., who was also a teenager, did not tell anyone what C.M. had said. In December 2018, C.M. tried to tell McIntyre what had happened with Fox in 2013, but she “couldn't really get the words out.” Id. at 118. At that point, McIntyre contacted the Department of Child Services. After an interview with C.M., DCS contacted law enforcement.

[6] In January 2019, the State charged Fox with three counts of child molesting, two as Class A felonies and one as a Class C felony, and Class D felony dissemination of matter harmful to minors. The State dismissed the Class D felony count prior to trial. C.M. was nineteen years old when she testified at Fox's trial. D.M., K.N., and McIntyre testified at trial also, and they corroborated some of C.M.’s testimony. The trial court found Fox guilty of all three child molesting counts, entered judgment of conviction, and imposed an aggregate forty-year sentence. This appeal ensued.

Discussion and Decision

[7] Fox contends that the State failed to present sufficient evidence to support his convictions. Our standard of review on a claim of insufficient evidence is well settled:

For a sufficiency of the evidence claim, we look only at the probative evidence and reasonable inferences supporting the verdict. We do not assess the credibility of witnesses or reweigh the evidence. We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.

Love v. State, 73 N.E.3d 693, 696 (Ind. 2017) (citations omitted). Further, a conviction can be based on the uncorroborated testimony of one witness, “even when that witness is the victim.” Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012).

[8] To prove that Fox committed Class A felony child molesting as charged, the State was required to show that he was at least twenty-one years old when he performed or submitted to sexual intercourse or deviate sexual conduct on two occasions with C.M., who was less than fourteen years old. Ind. Code § 35-42-4-3(a)(1) (2013). To prove that Fox committed Class C felony child molesting, the State was required to show that C.M. was less than fourteen years old when he performed or submitted to any fondling or touching, of either C.M or himself, with intent to arouse or to satisfy the sexual desires of either C.M. or himself. I.C. § 35-42-4-3(b) (2013). Id. On appeal, Fox argues that there was insufficient evidence because his convictions were based on C.M.’s testimony, which he contends was incredibly dubious.

[9] As our Supreme Court has stated:

Under our “incredible dubiosity” rule, we will invade the jury's province for judging witness credibility only in exceptionally rare circumstances. The evidence supporting the conviction must have been offered by a sole witness; the witness's testimony must have been coerced, equivocal, and wholly uncorroborated; it must have been “inherently improbable” or of dubious credibility; and there must have been no circumstantial evidence of the defendant's guilt.

McCallister v. State, 91 N.E.3d 554, 559 (Ind. 2018). “Incredible dubiosity is a difficult standard to meet, requiring ambiguous, inconsistent testimony that ‘runs counter to human experience.’ ” Carter v. State, 44 N.E.3d 47, 52 (Ind. Ct. App. 2015) (quoting Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2012)).

[10] Fox contends that C.M.’s testimony was incredibly dubious because her testimony was uncorroborated and was “so inherently improbable and equivocal that the evidence was not sufficient to support the convictions.” Appellant's Br. at 8. In essence, Fox argues that, because neither D.M., who was in the room when the alleged molestations occurred, nor Whitesides knew about the molestations, C.M.’s testimony simply cannot be believed. Fox is incorrect.

[11] The incredible dubiosity rule does not apply here. First, C.M. was not the sole witness at Fox's trial. See Moore v. State, 27 N.E.3d 749, 756 (Ind. 2015) (holding that the incredible dubiosity rule “requires that there be [a] sole testifying witness”). Second, C.M.’s testimony was neither coerced or equivocal, and nothing about the events to which C.M. testified “runs counter to human experience.” Carter, 44 N.E.3d at 52. Third, the State presented ample circumstantial evidence of Fox's guilt, including testimony corroborating some of C.M.’s testimony.

[12] Accordingly, Fox's argument that the incredible dubiosity rule applies fails. The State presented sufficient evidence to support his convictions.

[13] Affirmed.

FOOTNOTES

1.   We cannot find C.M.’s date of birth in the record.

Mathias, Judge.

Altice, C.J., and Bailey, J., concur.