Jairus Drew Allen, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Jairus Drew Allen appeals from his convictions after a jury trial of two counts of Level 1 felony child molesting, Level 4 felony child molesting, three counts of Level 4 felony sexual misconduct with a minor, Level 4 felony incest, Level 5 felony child exploitation, and Level 6 felony performing sexual conduct in the presence of a minor. He contends that there is insufficient evidence to sustain his convictions for molesting his daughter because her testimony is incredibly dubious. And he challenges his sentence, claiming various errors require us to revise his sentence. We disagree and affirm.

Facts and Procedural History

[2] S.A., Allen's daughter, was born in September 2006. In 2019, when S.A. was around thirteen years old, Allen started getting touchy and grabbing her bra. Tr. Vol. 3, p. 58. At around that same time, Allen suggested that S.A. “have sex with [her] boyfriend[.]” Id. at 118. On one occasion, Allen told S.A. that she had injured his penis and that “the only way to fix it was if [she] touched it.” Id. at 58.

[3] The first time that Allen touched S.A. inappropriately, he told her not to tell anyone and that it would not happen again. Nevertheless, Allen continued to insert his penis into S.A.’s vagina, anus, and mouth. And she said the abuse happened “quite often.” Id. at 60. Allen had sexual intercourse with S.A. in his bedroom, her bedroom, a deer tent, and a truck on separate occasions. On one occasion, Allen told S.A. to get on her hands and knees while he masturbated to ejaculation. And he used his cell phone to photograph S.A. while she was nude.

[4] At trial, S.A. referred to having vaginal intercourse with Allen as “the scary thing” and referred to performing oral sex on him as “the gross thing.” Id. at 73. Her name for anal sex with Allen was “BF.” Id..

[5] In 2020, S.A. disclosed the sexual abuse for the first time to an adult neighbor. Her neighbor suggested that the next time it happened to “call her and put the phone down beside [S.A.].” Id. at 75-76. S.A. was not comfortable with that suggestion because she did not want to get caught. Instead, S.A. reported the abuse to Allen's fiancée. However, Allen's fiancée did not believe S.A. and told her that what she reported was “not possible[,]” and that S.A. could not “even do that.” Id. at 77. Allen's fiancée called Allen, informing him of S.A.’s disclosures.

[6] When Allen next saw S.A., he told her he was taking her to the police station. But instead of travelling there, he parked his vehicle near a hospital and asked S.A. to explain to him why she was lying. He told her she could see her mother and her mother's family if she recanted. After that conversation, Allen drove to his mother and father's house. S.A.’s grandparents asked her about the allegations and S.A. ultimately told them she was lying. At trial, she explained that she did so because “at that point I was scared and just didn't want it to get out.” Id. at 79. She said she was scared of “[j]ust losing my family or me getting in trouble.” Id.

[7] On January 12, 2021, when S.A. was around fourteen years old, she sent a text message to her boyfriend informing him that Allen was touching her inappropriately. Her boyfriend told his sister, who reported the abuse allegation as a mandatory reporter.

[8] Pamela Padgett, an assessment worker with the Department of Children's Services, initiated a report at S.A.’s high school. During her interview of S.A., S.A. informed her that she was having pain when she urinated and felt like “her insides were going to fall out.” Tr. Vol. 2, p. 241. S.A. was crying and told Padgett that she “needed the situation with her father to stop.” Id. Padgett arranged to have someone from the sheriff's department meet her at Allen's home.

[9] That same day, Nurse Jenny Roberson conducted a sexual assault exam on S.A. During the examination, S.A. told Nurse Roberson that her abdomen hurt and that she experienced painful urination. She disclosed to Roberson that her father had been having sex with her for almost two years. S.A. told Roberson that her father would allow her to go out with her friends on the condition that she allowed him to put his penis in her mouth. And she said they had sex in her bed on numerous occasions, with the most recent incident of sexual conduct occurring on January 7, 2021. S.A. tested positive for a urinary tract infection and there was a “creamy white discharge” in S.A.’s vagina. Tr. Vol. 3, p. 31.

[10] Police officers interviewed Allen and informed him that they had a warrant for his arrest. While at the police station, Allen called his mother. His mother asked him, “What did they say they found?” Id. at 129. Allen responded, “They didn't say anything.” Id. at 130. His mother posited, “So they can just arrest you and just because of the kid?” Id. Allen said, “Yep[,]” and his mother continued, “When none of her stories make sense?” Id. Allen replied, “Well, they're not all true, but some of them are.” Id. When his mother questioned that statement, Allen said, “I'm sorry that I lied to you guys.” Id. At first, Allen's mother asked him what he did, but then said, “don't say no[sic] more. Don't say no[sic] more. This is being recorded.” Id.

[11] Allen was interviewed by police for a second time immediately after that call. He admitted he had engaged in inappropriate behavior with his daughter, S.A., including touching her breasts and making her touch his penis. He also admitted to ejaculating in her vicinity because he was aroused when she touched him on one occasion in the summer of 2020. He then admitted to having vaginal intercourse with his daughter.

[12] The State charged Allen with two counts of Level 1 felony child molesting, Level 4 felony child molesting, three counts of Level 4 felony sexual misconduct with a minor, Level 4 felony incest, Level 5 felony child exploitation, and Level 6 felony performing sexual conduct in the presence of a minor. A jury convicted Allen on all counts. The trial court sentenced Allen to an aggregate sentence of one hundred and three years in the Department of Correction.

Discussion and Decision

I. Was S.A.’s testimony Incredibly Dubious?

[13] “Sufficiency-of-the-evidence claims trigger a deferential standard of review in which we ‘neither reweigh the evidence nor judge witness credibility, instead reserving those matters to the province of the jury.’ ” Delgado v. State, 246 N.E.3d 1276, 1287 (Ind. Ct. App. 2024) (quoting Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024)) (internal quotations omitted). “A conviction is supported by sufficient evidence if ‘there is substantial evidence of probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.’ ” Id. “In conducting that review, we consider only the evidence that supports the jury's determination, not evidence that might undermine it.” Id.

[14] The particular kind of sufficiency-of-the-evidence claim Allen raises is the doctrine of incredible dubiosity. Allen generally argues that S.A.’s testimony was “fraught with inconsistencies, lack of memory and numerous recantations of [the] allegations against [him].” Appellant's Br. p. 9. We disagree.

[15] Under the incredible dubiosity rule, a court on review may impinge upon a jury's responsibility to judge the credibility of witnesses only when confronted with testimony at trial that was so “ ‘unbelievable, incredible, or improbable that no reasonable person could ever reach a guilty verdict based upon that evidence alone.’ ” Carter v. State, 44 N.E.3d 47, 52 (Ind. Ct. App. 2015) (quoting Moore v. State, 27 N.E.3d 749, 751 (Ind. 2015)). “Incredible dubiosity is a difficult standard to meet, requiring ambiguous, inconsistent testimony that ‘runs counter to human experience.’ ” Id. (quoting Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001)). The Supreme Court “reiterated the limited scope of the incredible dubiosity rule, setting out three requirements for its application: (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. (citing Moore, 27 N.E.3d at 756). Generally, the uncorroborated testimony of one victim is sufficient to sustain a conviction. Holeton v. State, 853 N.E.2d 539, 541 (Ind. Ct. App. 2006).

[16] Allen contends that “[a]side from [his] ‘confession,’ the only testimony regarding any of the offenses charged ultimately came from S.A.” Appellant's Br p. 11. And “there was no circumstantial evidence presented.” Id. Allen claims that his conviction should be reversed because S.A. admitted she “lied” to various people and that he believed “if [he] confessed to these things or some of these things ․ [Child Protective Services would] let [his] kids stay with family[.]” Tr. Vol. 4, p. 25. He also challenges S.A.’s faulty memory under this theory.

[17] First, we focus on S.A.’s testimony at trial. She consistently and unequivocally testified that Allen, her father, sexually assaulted her vaginally, orally, and anally starting when she was thirteen years old. She said that Allen made her perform sexual acts in exchange for permission to go out with her friends. And he made her pose in a sexual manner and took photographs of her. He masturbated after she touched him on one occasion. This testimony was not incredibly dubious and alone is sufficient to support his conviction.

[18] Allen was able to cross-examine S.A. about recanting her disclosure of the sexual abuse to her grandparents, friend, and neighbor. However, those pretrial statements do not implicate the incredible dubiosity analysis. Turner v. State, 953 N.E.2d 1039, 1059 (Ind. 2011) (trial testimony not necessarily rendered incredibly dubious because of contradictory pre-trial statements). S.A. explained the inconsistency testifying that she was afraid that she would get in trouble for reporting the abuse and that she would lose her family. And the discrepancy between her pre-trial statement to Nurse Roberson that Allen did not perform oral sex on her, and her trial testimony that he did, likewise does not implicate incredible dubiosity. Instead, those are matters calling for a credibility determination by the jury.

[19] As for S.A.’s faulty memory, our Supreme Court has observed that it is “difficult for children to remember specific dates, particularly when the incident is not immediately reported as is often the situation in child molesting cases.” Barger v. State, 587 N.E.2d 1304, 1307 (Ind. 1992). S.A. remembered that the abuse started in June 2019, around the time of her brother's birthday, when Allen asked her to fix his penis because she had hurt it. She remembered that Allen performed anal sex on her around December 23, 2022, when her father's girlfriend was away at the hospital, giving birth to her baby. S.A. testified that Allen penetrated her anally in a tent and orally in a truck while it was parked at the end of their driveway after she asked to go to a friend's house.

[20] Generally speaking, S.A. remembered dates and general time frames when she had a significant event to which to relate the act of abuse. And she recalled approximately how old she was when the abuse started and the locations where some specific acts took place. On review, certain uncertainties and inconsistencies are appropriate considering the circumstances, the young age of the witness, and the passage of time between the incidents and the testimony, and do not invoke incredible dubiosity concerns. Fajardo v. State, 859 N.E.2d 1201, 1209 (Ind. 2007).

[21] And S.A.’s testimony was corroborated by other trial testimony. Nurse Roberson testified that S.A. disclosed her father's sexual abuse to her during the sexual assault examination, and she disclosed the last incident of sexual contact with her father. A detective who investigated the allegations listened to a recording of Allen's phone call to his mother during which he stated some of S.A.’s allegations were true. S.A.’s boyfriend confirmed that S.A. told him about her father's abuse. And the boyfriend's sister, a mandatory reporter, confirmed that conversation took place.

[22] We are unpersuaded by Allen's attempt to recast his confession as an act aimed at preserving his family's structure. And to the extent he implies that his confession was not credible, his argument asks us to reassess his credibility, a task we will not undertake. See Delgado, 246 N.E.3d at 1287 (on review court will not reweigh evidence or assess witness credibility).

[23] We conclude that S.A.’s testimony was not incredibly dubious and that the evidence against Allen, therefore, is sufficient.

II. Should Allen's Sentence Be Revised Downward?

[24] The trial court sentenced Allen to consecutive sentences of thirty-five years for Count I, thirty-five years for Court II, six years each for Counts III, IV, V, VI, and VII, and three years for Count VIII. The court ordered Allen to serve his one-year sentence for Count IX concurrently with his sentence for Count VIII. Allen's aggregate sentence is one hundred and three years.

[25] Allen blends his sentencing arguments by claiming that the court abused its discretion by finding aggravating circumstances not supported by the record and misunderstood precedent holding that maximum punishments should be reserved for the worst of the worst. See Appellant's Br. pp. 12-13. He also claims the court abused its discretion when it ordered consecutive sentences. But he seeks correction of those errors via our authority to revise his sentence under Indiana Appellate Rule 7(B), and claims that his sentence is an outlier in need of revision. We address the related but distinct arguments of the trial court's sentencing discretion and our independent review of Allen's sentence separately.

A. Was There An Abuse of Discretion in Sentencing?

[26] “Sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion.” Howard v. State, 236 N.E.3d 735, 740 (Ind. Ct. App. 2024). “ ‘An abuse occurs only if the decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.’ ” Id. (quoting Schuler v. State, 132 N.E.3d 903, 904 (Ind. 2019)).

[27] We first address Allen's arguments challenging the court's finding of aggravating circumstances. A court abuses its discretion when it enters aggravating circumstances not supported by the record. Howard, 236 N.E.3d at 740.

[28] Allen challenges the court's paraphrasing of the testimony describing threats he made to S.A., contending that he did not use that exact language. His argument follows that because he did not use that exact language, the court's finding of that aggravating circumstance is improper because the record does not support it. Appellant's Br. pp. 12-13.

[29] The trial court said: “And the language that was used about no one will love you if you don't do this; I can cut you off from the people that love you, taking advantage of someone that's vulnerable like a child—that's what a pimp does.” Tr. Vol. 4, p. 139. S.A. testified that Allen would require her to engage in some sort of sexual activity whenever no other adult was in the house before granting her permission to leave the house or have friends over to her house. Tr. Vol. 3, p. 60. She also testified that she “was just kind of scared of what would happen either [she] would get in trouble, or [she] was scared about what would happen next.” Id. at 74. She said Allen “had told me multiples [sic] times that if I had said something that I would get in trouble, as well.” Id. at 75. After S.A. made her disclosure, Allen isolated S.A. from others by taking her from her home and parking his vehicle near the hospital. He told her to “say it was a lie” and offered to allow her to see her mother and her mother's family if she did so. Id. at 77.

[30] We conclude that the trial court's statement focuses on Allen's manipulation of S.A. by using the threat of withholding access to her friends and family members who love her as a means of forcing her to engage in sexual activity with him. Put differently, the court's statement paraphrased the record rather than quoted it. And the trial court did not err by paraphrasing the testimony because it was an accurate summary. Thus, the court did not abuse its discretion by finding this aggravating circumstance.

[31] Allen also argues that the court abused its discretion by using a material element of his crime as an aggravating circumstance to support his enhanced sentences. The trial court said, “the criminal acts, that were committed on this victim were cumulative[,]” and “[t]hat's two years, give or take, of unremitting hell created by the person that's supposed to protect their children: their father.” Tr. Vol. 4, pp. 139-40. The court determined that “[t]he length, the duration of the two years, the continuing repeated criminal violation of this child far outweigh any potential mitigating circumstances.” Id. at 140.

[32] Allen reasons that because the trial court found the crimes were cumulative, and “[t]he dates alleged in the charging information are an element of the offenses charged[,]” then the aggravating factor was improper. Appellant's Br. pp.13-14. We disagree with this premise for Allen's argument.

[33] Even though the State must prove that the crimes occurred during the timeframe alleged in the charging information, time is not a material element of the offense of child molesting. See Hoehn v. State, 472 N.E.2d 926, 928 (Ind. Ct. App. 1984) (“time was not of the essence, that is, it was not an element of the offense.”). Indiana Code section 35-42-4-3 (2014) focuses on the ages of the defendant and the child, and various other factors elevate the level of the offense. The dates are relevant to assist in establishing the ages of the defendant and the victim at the time of the crime, but they are not elements of the crime.

[34] Here, there was no dispute that S.A. was younger than the statutory elements required to establish the various offenses. And Allen does acknowledge that the trial court could “consider the particularized circumstances of the factual elements as aggravating circumstances.” Appellant's Br. p. 13. The trial court's comments focus on Allen's pattern of conduct and its cumulative effect on S.A. Accordingly, the court did not abuse its discretion by finding the cumulative effect of years of sexual abuse by Allen as an aggravating circumstance.

[35] Next, Allen claims that the trial court “clearly expressed its lack of understanding-and perhaps disdain for-the Indiana Supreme Court's longstanding holding that maximum punishments should be reserved for the ‘worst of the worst.’ ” Id. However, we conclude that the trial court's comments were superfluous and irrelevant to our sentencing review. Even though Allen's aggregate sentence of one hundred and three years is considerable, he did not receive the maximum sentence available, one hundred sixty-eight-and-a-half years.

[36] We now turn to Allen's request for sentence revision. Allen argues that we should revise his sentence because all but one of his convictions are to be served consecutively. He directs our attention to two Indiana Supreme Court cases involving the downward revision of sentences involving child molesting charges where consecutive sentences were entered. See Monroe v. State, 886 N.E.2d 578 (Ind. 2008); Harris v. State, 897 N.E.2d 927 (Ind. 2008). In both instances, the Supreme Court revised the sentences because the trial court did not provide an explanation of the aggravating circumstances which supported the consecutive sentence. “[A] single aggravator may be used both to enhance a sentence and impose consecutive sentences[.]” Lewis v. State, 31 N.E.3d 539, 543 (Ind. Ct. App. 2015). However, “ ‘before a trial court can impose a consecutive sentence, it must articulate, explain, and evaluate the aggravating circumstances that support the sentence.’ ” Id. (quoting Monroe, 886 N.E.2d at 580).

[37] Here, the trial court mused about the Supreme Court's instructions on reserving maximum penalties for the worst of the worst. The court then began its evaluation of the aggravating circumstances, saying: “I know that there were multiple acts described in the trial beyond the nine convictions. [And Allen was] supposed to be caring for and having custodial duties over the victim.” Tr. Vol. 4, p. 140. The court continued, “You were in a unique position as a father, as the provider, as the control between her and any other people, other family members. The length, the duration of the two years, the continuing repeated criminal violation of this child far outweigh any potential mitigating circumstances.” Id. The court then enhanced the sentences for the two Level 1 felony convictions and imposed consecutives sentences for all but one of Allen's convictions.

[38] We conclude that the trial court's statements did not suggest that it was considering concurrent sentences when explaining the aggravating and mitigating circumstances it found. The court's statements about Supreme Court precedent, reserving maximum sentences for the worst of the worst, were far from misunderstanding that precedent. The court's comments suggested that it considered Allen to be close to that mark based upon his pattern of abuse of his own daughter, even though the court did not impose the maximum possible sentence. While a trial court is “required to state its reasons for imposing consecutive sentences[,]” no magic language need be used, and ultimately we will reverse the trial court's judgment only where it is clearly against the facts and circumstances before it or the court's judgment is contrary to law. Gober v. State, 163 N.E.3d 347, 353 (Ind. Ct. App. 2021), trans. denied. Therefore, we conclude that the trial court's sentencing statement calling for consecutive sentences was not insufficient, was not clearly against the facts and circumstances before it, and was not contrary to law. Thus, the court's judgment was not an abuse of discretion.

B. Is Allen's Sentence Inappropriate?

[39] Indiana Appellate Rule 7(B) provides that we “may revise a sentence authorized by statute if, after due consideration of the trial court's decision, [we find] that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Under Rule 7(B), the burden is on the defendant to persuade the appellate court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether a sentence is inappropriate “turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The Indiana Supreme Court has noted that “ ‘the maximum possible sentences are generally most appropriate for the worst offenders.’ ” Buchanan v. State, 767 N.E.2d 967, 973 (Ind. 2002) (quoting Evans v. State, 725 N.E.2d 850, 851 (Ind. 2000)).

[40] “Sentencing decisions rest within the discretion of the trial court and, as such, should receive considerable deference.” Madden v. State, 162 N.E.3d 549, 563 (Ind. Ct. App. 2021). “ ‘Such deference should prevail unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character).’ ” Id. (quoting Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015)).

[41] Our review begins with the statutory ranges established by the legislature for each class of offense. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218. “When considering the nature of the offense, we first look to the advisory sentence for the crime.” Mehringer v. State, 152 N.E.3d 667, 675 (Ind. Ct. App. 2020), trans. denied. A Level 1 felony carries a sentence of between twenty and fifty years with an advisory sentence of thirty years. Ind. Code § 35-50-2-4(c) (2014). A Level 4 felony carries a possible sentence of between two and twelve years with an advisory sentence of six years. Ind. Code § 35-50-2-5.5 (2014). A Level 5 felony carries a possible sentence of between one and six years with an advisory sentence of three years. Ind. Code § 35-50-2-6(b) (2014). And a Level 6 felony carries a possible sentence of between six months and two and one-half years with an advisory sentence of one year. Ind. Code § 35-50-2-7(b) (2016).

[42] Allen received sentences of thirty-five years for his two Level 1 felony convictions, six years for his five Level 4 felony convictions, three years for his Level 5 felony conviction, and a concurrent term of one year for his Level 6 felony conviction for an aggregate sentence of one hundred three years. Allen received the advisory sentence for each of his convictions except for his Level 1 felony child molesting convictions, which were enhanced by five years each. This sentence, though considerable, falls far short of the maximum sentence he could have received.

[43] Our Supreme Court has observed that “crimes against children are particularly contemptible.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). And in this case, Allen was in a position of trust with his daughter. He abused that trust by bartering S.A.’s freedom to visit with family and friends in exchange for sexual activities. He took advantage of his daughter when other adults were not around. He told her not to disclose the abuse and encouraged her to engage in sexual activity with her boyfriend. And after she disclosed the abuse, he tried to manipulate her into recanting the disclosure in exchange for access to family members.

[44] S.A. was forced to engage in sexual activity with her father for nearly two years, during which time she was “just really down mentally.” Tr. Vol. 3, p. 56. When her father first started abusing S.A., she “was very confused.” Id. at 58. And she was required to engage in those sexual activities with her father in her home, a place where she should have been able to feel safe.

[45] “We conduct our review of a defendant's character by engaging in a broad consideration of his or her qualities.” Madden, 162 N.E.3d at 564. “And a defendant's life and conduct are illustrative of his or her character.” Id. The trial court found that Allen had no recorded criminal history, a stable relationship with his family and church, and that he worked and provided child support. However, the court also found that there “were multiple acts described in the trial beyond the nine convictions.” Tr. Vol. 4, p. 140. Thus, Allen's lack of recorded criminal history is undercut by the evidence of additional uncharged criminal behavior.

[46] We conclude that Allen has not carried his burden of persuading us that his sentence should be revised based on the nature of his offenses and his character.

Conclusion

[47] In light of the foregoing, we affirm the trial court's judgment.

[48] Affirmed.

Baker, Senior Judge.

Judges Bailey and DeBoer concur. Bailey, J., and DeBoer, J., concur.