Zachary Thomas Harper, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Following a jury trial, Zachary Thomas Harper was convicted of molesting his six-year-old son and found to be a habitual offender.¹ Harper now appeals, claiming the State failed to present sufficient evidence to support his conviction, and his sentence is inappropriate. We affirm.

Facts and Procedural History

[2] Z.P. is Harper's biological son born in December 2015. Z.P. often spent time at Faith Harrison's house in Bluffton with Harrison's children, C.J., L., and H. Harper sometimes watched over Harrison's children and Z.P. at Harrison's home.

[3] In September 2022, C.J. disclosed to Harrison potential sexual abuse involving Harper. After Harrison and her husband reported their concern to police, C.J and Z.P. each underwent a forensic interview. At the outset of his interview, Z.P. was asked whether he knew the difference between a truth and a lie. Z.P. confirmed he did. The interviewer then told Z.P. they were going to talk about “body safety” and showed Z.P. diagrams of two children as if they just “got out of the bathtub.” Media Vol. page 5 at 17:49, 18:18–18:20. Z.P. identified several body parts on the diagram of the male when asked to do so, including the nipples, which Z.P. called “dots,” the penis, which Z.P. called the place he uses “to go to the bathroom,” and the buttocks, whose name Z.P. knew started with a “b,” ended with a “t,” and had a “u” in the middle. Id. at 19:40, 25:39–25:41, 20:47–21:02.

[4] The interviewer instructed Z.P. to place an “x” on the diagram over the body parts “no one should touch without a good reason.” Id. at 25:06–25:09. Z.P. marked the portions of the diagram corresponding to the nipples, penis, and buttocks. The interviewer asked whether anybody had touched Z.P. in those places. Z.P. explained Harper had touched him in those spots under his clothes on multiple occasions. Z.P. then marked the hands on the diagrams to signify what Harper had touched him with. According to Z.P., Harper's touches to his penis “hurted,” and the touches to his nipples and buttocks did not. Id. at 55:55–55:56. Z.P. shared that Harper had told him not to tell anyone, otherwise he would “get in trouble.” Id. at 1:03:09–1:03:11.

[5] In June 2023, Harper voluntarily underwent a stipulated polygraph examination, during which the examiner posed the following questions: (1) Did you touch [Z.P.’s] penis for a sexual reason? (2) Did you touch [Z.P.’s] penis for a sexual reason while in the bedroom? (3) Did you touch [Z.P.’s] butt in a sexual manner? See Ex. Vol. 5 at 46. Harper answered “no” to each question. Id. After the examiner informed Harper his answers came back as “Deception Indicated,” Harper said he wanted to speak to his attorney, and the interview ceased. Id.

[6] The State charged Harper with Level 4 felony child molesting and alleged he is a habitual offender.² At trial, a partially redacted recording of Z.P.’s forensic interview was admitted into evidence.³ Z.P. did not testify at Harper's trial, but the recording of his forensic interview was played for the jury. A jury found Harper guilty of molesting Z.P. and determined he is a habitual offender. The trial court sentenced Harper to an aggregate thirty-two-year sentence: twelve years for child molesting, enhanced by twenty years for being a habitual offender.⁴

A. Z.P.’s testimony was not incredibly dubious and sufficient evidence supports Harper's conviction.

[7] Harper first claims the State failed to present sufficient evidence to support his child molesting conviction.⁵ A sufficiency-of-the-evidence claim warrants a “deferential standard of review in which we ‘neither reweigh the evidence nor judge witness credibility[.]’ ” Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024) (quoting Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018), cert. denied). Instead, we respect the fact-finder's exclusive province to weigh conflicting evidence, Phipps v. State, 90 N.E.3d 1190, 1195 (Ind. 2018), and consider only the probative evidence and reasonable inferences that support the judgment of the trier of fact, Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024). It is “not necessary that the evidence ‘overcome every reasonable hypothesis of innocence.’ ” Sallee v. State, 51 N.E.3d 130, 133 (Ind. 2016) (quoting Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995)).

[8] Generally, “[a] conviction can be sustained on only the uncorroborated testimony of a single witness, even when that witness is the victim.” Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). We may make an exception, however, when testimony is incredibly dubious. The incredible dubiosity rule allows the reviewing court to impinge upon the fact-finder's responsibility to judge the credibility of witnesses when confronted with evidence that is “so unbelievable, incredible, or improbable that no reasonable person could ever reach a guilty verdict based upon that evidence alone.” Moore v. State, 27 N.E.3d 749, 751 (Ind. 2015). We apply this rule where three factors are satisfied: “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. at 756. Although incredible dubiosity “provides a standard that is ‘not impossible’ to meet, it is a ‘difficult standard to meet, [and] one that requires great ambiguity and inconsistency in the evidence.’ ” Id. (quoting Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001)). Ultimately, this “limited exception” applies “only in exceptionally rare circumstances.” McCallister v. State, 91 N.E.3d 554, 559 (Ind. 2018).

[9] Harper “focuses his argument for incredible dubiosity on the issue that [Z.P.’s] testimony was inherently improbable, contradictory, equivocal, and/or coerced.” Appellant's Br. at 15. During his forensic interview, Z.P. explained Harper had, on multiple occasions, touched him on the body parts “nobody should touch without a good reason”—specifically his penis and buttocks. Media Vol. page 5 at 25:06–25:09. Z.P. distinguished between illicit touches, claiming “it hurted” when Harper touched his penis, but did not when Harper touched his buttocks. Id. at 55:55–55:56. Plus, Z.P. recalled several additional details, such as Harper molested him at Harrison's house and Harper told him not to tell anyone about what happened, otherwise Harper would “get in trouble.” Id. at 1:03:09–1:03:11.

[10] Sure, six-year-old Z.P. hesitated to answer some of the interviewer's questions, responding affirmatively when asked whether he “felt uncomfortable talking about other body parts touching.” Id. at 1:04:36–1:04:43. And at times Z.P. told the interviewer he forgot details surrounding the molestation. Even so, any purported equivocations, uncertainties, or inconsistencies in Z.P.’s testimony were consistent with his young age and the circumstances presented.⁶ See Fajardo v. State, 859 N.E.2d 1201, 1209 (Ind. 2007) (recognizing an eleven-year-old victim's testimony was not incredibly dubious because inconsistences and uncertainties in the victim's testimony were appropriate considering the victim's age, the passage of time between the incident and testimony, and the circumstances presented); Surber v. State, 884 N.E.2d 856, 869 (Ind. Ct. App. 2008) (same, concerning testimony of a six-year-old victim), trans. denied. In other words, Z.P.’s testimony was not “so unbelievable, incredible, or improbable that no reasonable person could ever reach a guilty verdict based upon that evidence alone.” Moore, 27 N.E.3d at 751. At bottom, the jury believed Z.P., whose testimony alone was sufficient evidence to support Harper's conviction for Level 4 felony child molesting. See Bailey, 979 N.E.2d at 135.

B. Harper's sentence is not inappropriate.

[11] Harper also asks us to revise his sentence because he is “far from being the ‘worst of the worst’ and deserved a sentence that was much less severe.”⁷ Appellant's Br. at 13. The Indiana Constitution authorizes this Court to review and revise a trial court's sentencing decision as provided by rule. Ind. Const. art. 7, § 6. Indiana Appellate Rule 7(B) provides we may revise a sentence authorized by statute if, “after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” The principal role of appellate review is to leaven the outliers, not to achieve a perceived correct sentence in each case. Conley v. State, 183 N.E.3d 276, 288 (Ind. 2022). Therefore, “we reserve our 7(B) authority for exceptional cases.” Faith v. State, 131 N.E.3d 158, 160 (Ind. 2019) (per curiam).

[12] “[S]entencing is principally a discretionary function in which the trial court's judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). “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).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The two prongs of 7(B) review are “separate inquiries to ultimately be balanced in determining whether a sentence is inappropriate.” Lane v. State, 232 N.E.3d 119, 126 (Ind. 2024) (quoting Conner v. State, 58 N.E.3d 215, 218 (Ind. Ct. App. 2016)). “[T]o the extent the evidence on one prong militates against relief, a claim based on the other prong must be all the stronger to justify relief.” Id. at 127.

[13] The question “is not whether another sentence is more appropriate; rather, the question is whether the sentence imposed is inappropriate.” Helsley v. State, 43 N.E.3d 225, 228 (Ind. 2015) (quoting King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008)) (emphasis omitted). Whether we regard a sentence as 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, 895 N.E.2d at 1224. The defendant bears the burden of persuading us a revised sentence is warranted. Cramer v. State, 240 N.E.3d 693, 698 (Ind. 2024).

[14] We begin with Harper's character, which we analyze by considering a wide range of facts, including Harper's criminal history, background, and past rehabilitative efforts. See Harris v. State, 165 N.E.3d 91, 100 (Ind. 2021). By the time he was thirty years old, Harper developed a lengthy criminal history, including three convictions for Level 1 felony child molesting, and convictions for Class B felony burglary, Level 6 felony auto theft, and Class A misdemeanor resisting law enforcement. See Crum v. State, 239 N.E.3d 858, 861–62 (Ind. Ct. App. 2024) (noting even a minor criminal history reflects poorly on a defendant's character). Plus, when sentenced in this case, Harper had pending charges for Level 5 felony burglary and Level 6 felony theft. See Chastain v. State, 165 N.E.3d 589, 599 (Ind. Ct. App. 2021) (explaining “allegations of prior criminal activity may be considered during sentencing even if the defendant has not been convicted of an offense related to the activity”), trans. denied. And Harper has violated his terms of probation in the past. In sum, Harper's clear and continuing disregard for the rule of law reflects poorly on his character. The lack of redemptive character means Harper must make an even stronger showing regarding the nature of his offense to prevail. See Lane, 232 N.E.3d at 127.

[15] Turning to the nature of his offense, Harper claims his offense “involved only minor touching that just breached the de minimis threshold for this level of child molesting.” Appellant's Br. at 19. In so arguing, Harper posits his offense, although “somewhat egregious, is not the most egregious” act of child molesting. Id. at 20. “But crimes against children are particularly contemptible.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). And here, Harper abused a position of trust by molesting his six-year-old son. See Monroe v. State, 886 N.E.2d 578, 580 (Ind. 2008) (considering the violation of position of trust between a defendant and a victim when weighing the nature of the offense). Harper has not presented a persuasive claim for revision based on the nature of his offense, particularly in light of his unfavorable character.

Conclusion

[16] Sufficient evidence supports Harper's conviction, and his sentence is not inappropriate.

[17] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-4-3(b) (2022) (Level 4 felony child molesting); I.C. § 35-50-2-8(b) (2017) (habitual offender).

2.   The State also charged Harper with Level 4 felony child molesting against C.J. The case related to C.J. was consolidated for trial with the case alleging Harper molested Z.P. The jury could not reach a verdict regarding the charge against Harper for allegedly molesting C.J.

3.   The recording was admitted into evidence at trial without objection and Harper does not challenge its admission on appeal.

4.   The trial court ordered Harper to serve his twelve-year sentence for child molesting consecutive to his aggregate 150-year sentence in Cause No. 38C01-2203-F1-2 (“Cause F1-2”). And the trial court ordered Harper to serve his twenty-year sentence for the habitual offender enhancement as follows: fifteen years concurrent with his sentence in Cause F1-2 and five years consecutive to his sentence in Cause F1-2. In Cause F1-2, Harper was convicted of three counts of Level 1 felony child molesting for molesting his four-year-old biological daughter. A panel of this Court affirmed Harper's Cause F1-2 sentence in Harper v. State, No. 23A-CR-2630 (Ind. Ct. App. Oct. 18, 2024) (mem.).

5.   To prove Harper guilty as charged, the State had to prove beyond a reasonable doubt Harper performed or submitted to fondling or touching of Z.P.—a child under fourteen years old—with the intent to arouse or satisfy either his or Z.P.’s sexual desires. See I.C. § 35-42-4-3(b). Harper does not challenge the sufficiency of the evidence to prove he is a habitual offender.

6.   To the extent Harper draws disparities between Z.P.’s statements to his mother, during his forensic interview, and on cross examination to argue Z.P.’s testimony was incredibly dubious, we note the incredible dubiosity rule applies only when a witness contradicts himself in a single statement or while testifying; it does not apply to conflicts between multiple statements. Carter v. State, 31 N.E.3d 17, 31 (Ind. Ct. App. 2015), trans. denied.

7.   The sentencing range for a Level 4 felony is two to twelve years, with a six-year advisory sentence. See I.C. § 35-50-2-5.5 (2014). And the sentencing range for a habitual offender convicted of a Level 4 felony is six to twenty years. See I.C. § 35-50-2-8(i).

Kenworthy, Judge.

Judges Mathias and Brown concur. Mathias, J., and Brown, J., concur.