SMITH v. STATE (2025)

MEMORANDUM DECISION

[1] Kaine Smith appeals his five convictions for Level 1 felony child molesting following a bench trial. Smith raises two issues for our review, which we reorder and restate as follows:

1. Whether the testimony of one of his victims, G.W., was incredibly dubious.

2. Whether the State presented sufficient evidence to show Smith was at least twenty-one-years old at the time he committed the offenses alleged in Counts 1, 2, 5, and 6.

[2] We conclude that G.W.’s testimony was not incredibly dubious, and, thus, we affirm his conviction on Count 3. However, the State concedes, and we agree, that it did not present sufficient evidence to show that Smith was at least twenty-one-years old at the time he committed the offenses alleged in Counts 1, 2, 5, and 6. Accordingly, as to those four convictions, we reverse and remand with instructions for the trial court to enter Smith's convictions as lesser-included Level 3 felonies and to resentence Smith.

Facts and Procedural History

[3] Smith was born on March 12, 1999. He became romantically involved with K.T. in February 2017, when he was seventeen years old. At that time, K.T. had two children: M.R., born in 2011, and G.W., born in 2012. Smith and K.T. then had two children together, and they all began to live together in October 2019 in Indianapolis. They initially lived in a trailer together, but sometime in 2021 they moved into a house together.

[4] After they had moved into the house, G.W.’s school contacted K.T. and informed her that G.W. was defecating on the floors of the school bathrooms. K.T. spoke to G.W., and G.W. did not disclose any abuse to K.T. However, around December 2022, G.W. did disclose to a family friend that Smith had sexually abused him.

[5] That resulted in K.T. arranging for G.W. to meet with a forensic interviewer. During that interview, G.W. disclosed various instances in which Smith had touched G.W.’s penis with Smith's hands and mouth. G.W. also disclosed that Smith had forced G.W. to touch Smith's penis with G.W.’s hands and mouth. And G.W. disclosed that, on at least one occasion after the family had moved into the house, Smith had anally penetrated G.W.

[6] Thereafter, M.R. also disclosed having been sexually abused by Smith. M.R. specifically recalled an occasion when the family lived at the trailer in which Smith had performed oral sex on both M.R. and G.W. and then had both children perform oral sex on him.

[7] The State charged Smith with six counts. Counts 1, 2, and 3 alleged Level 1 felony child molesting of G.W. for other sexual conduct; Count 4 alleged Level 4 felony child molesting for fondling G.W.; and Counts 5 and 6 alleged Level 1 felony child molesting of M.R. for other sexual conduct. Each Level 1 felony allegation was premised on Smith having been at least twenty-one-years old at the time of the offense.

[8] Smith waived his right to a jury trial. At his ensuing bench trial, both G.W. and M.R. testified against Smith. G.W. was eleven years old at the time of his testimony. Although G.W. could not recall certain facts such as specific dates and locations of the molestations, he repeatedly described the molestations themselves in clear detail. Indeed, G.W. twice testified that Smith had anally penetrated him and ejaculated on a nearby bed. When asked about that incident a third time, G.W. then answered that he was unsure about the incident.

[9] During closing argument, the State made clear that Counts 1, 2, 5, and 6 were for the acts of oral sex that had involved both M.R. and G.W. while the family lived in the trailer. Tr. Vol. 2, p. 130. Count 3, meanwhile, was premised on G.W.’s testimony that Smith had anally penetrated him. The trial court found Smith guilty on all counts. The court then entered judgment of conviction against Smith on all counts except Count 4 and sentenced Smith accordingly.

[10] This appeal ensued.

Standard of Review

[11] Smith's arguments on appeal challenge the sufficiency of the evidence underlying his convictions. For challenges to the sufficiency of the evidence, we consider only the probative evidence and the reasonable inferences therefrom that support the judgment of the trier of fact. Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). We will neither reweigh the evidence nor judge witness credibility. Id. We will affirm a conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id.

1. G.W.’s testimony underlying Count 3 was not incredibly dubious.

[12] We first address Smith's argument on appeal that G.W.’s testimony in support of Count 3 was incredibly dubious. Indiana's appellate courts may impinge upon a fact-finder's function to judge the credibility of a witness under the “incredible dubiosity” rule. Smith v. State, 34 N.E.3d 1211, 1221 (Ind. 2015). Application of the incredible dubiosity rule is “limited to cases with very specific circumstances because we are extremely hesitant to invade the province” of the fact-finder. Id. Thus, to warrant application of the incredible dubiosity rule, there must be: “1) a sole testifying witness; 2) testimony that is inherently contradictory, equivocal, or the result of coercion; and 3) a complete absence of circumstantial evidence.” Id. (quoting Moore v. State, 27 N.E.3d 749, 756 (Ind. 2015)). The incredible dubiosity rule is a “difficult standard to meet” and “requires great ambiguity and inconsistency in the evidence” such that the testimony is “so convoluted and/or contrary to human experience that no reasonable person could believe it.” Moore, 27 N.E.3d at 756 (emphasis added; quotation marks omitted).

[13] According to Smith, G.W.’s testimony was unworthy of credit because, upon being asked about Smith's anal penetration of him at trial for a third time, G.W. expressed uncertainty about the incident. Smith thus asserts that G.W.’s testimony was “inherently, and completely, contradictory” such that Smith's conviction for Count 3 must be set aside. Appellant's Br. at 16.

[14] We disagree. G.W. repeatedly described in detail Smith's molestations of him to the court. On redirect, the State sought to clarify the location of the molestations, asking a series of questions to G.W. that focused on whether a certain act had occurred “at the house,” a “hotel,” or “the trailer.” Tr. Vol. 2, p. 86. Those series of questions resulted in the following exchange:

Q: ․ Okay. And you remember [Smith] touching your [anus] with his [penis]? You just don't remember where?

A: No.

Q: Okay. But you remember that happening?

A: No.

Q: You don't remember that happening? Do you remember telling us earlier that his [penis] went in ․ your [anus]?

A: I don't know.

Id. at 86-87.

[15] We cannot conclude that G.W.’s testimony was “so convoluted” or “contrary to human experience that no reasonable person” could have believed G.W.’s testimony of the molestations because of that exchange on redirect. See Moore, 27 N.E.3d at 756. The State, while attempting to discern the location of the molestations on redirect, asked an eleven-year-old witness compound questions about an embarrassing and painful experience that the witness had twice already explained. G.W.’s responses on redirect are not contrary to human experience and do not result in justifying this Court invading the province of the fact-finder in assessing G.W.’s credibility. We therefore reject Smith's argument that G.W.’s testimony is unworthy of credit, and we affirm Smith's conviction on Count 3.

2. The State failed to prove Smith's age in support of Counts 1, 2, 5, and 6.

[16] We next turn to Smith's argument that the State failed to prove that he was at least twenty-one-years of age at the time he committed the acts alleged in Counts 1, 2, 5, and 6, as required to support those convictions as Level 1 felonies. See Ind. Code § 35-42-4-3(a)(1) (2019). Again, those convictions were for Smith's acts of oral sex that involved both M.R. and G.W. while the family lived in the trailer. However, the State concedes on appeal that the evidence regarding the timeframe of those acts was not more specific than having occurred while the family lived in the trailer, and Smith was at least for some time under twenty-one years old while living in the trailer. Accordingly, the State agrees that the evidence for these convictions is not sufficient to sustain Smith's convictions as Level 1 felonies.

[17] We agree with the parties and reverse Smith's Level 1 felony convictions on Counts 1, 2, 5, and 6. We remand to the trial court with instructions that the court reduce Smith's conviction on each of those counts to Level 3 felony child molesting, in accordance with Indiana Code section 35-42-4-3(a), and to resentence Smith accordingly.

Conclusion

[18] For all of these reasons, we affirm Smith's conviction on Count 3, reverse his convictions on Counts 1, 2, 5, and 6, and remand with instructions.

[19] Affirmed in part, reversed in part, and remanded with instructions.

Mathias, Judge.

Brown, J., and Kenworthy, J., concur.