FULLER v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Ricky Fuller appeals his conviction and sentence for child molesting, a Level 1 felony. Fuller argues that insufficient evidence supports his conviction and that his thirty-year sentence is inappropriate. We disagree and, accordingly, affirm.

Issues

[2] Fuller raises two issues, which we restate as:

I.  Whether sufficient evidence supports his conviction for child molesting, a Level 1 felony.

II. Whether his sentence is inappropriate.

Facts

[3] In the summer of 2022, Fuller began living with his son (“Son”); Son's wife (“Daughter-in-law”); and Son's and Daughter-in-law's daughter, J.F., who is Fuller's granddaughter. J.F. was born in February 2018. Fuller would help around the house and would watch J.F. when Son and Daughter-in-law ran errands. Fuller has several health issues, including a blocked aorta, which reduces blood flow to Fuller's lower extremities. He spent most of the time sitting or lying in a reclining chair, and it was difficult for him to bear J.F. “jumping” on his lap. Tr. Vol. II p. 38.

[4] On February 11, 2023, when J.F. was four years old, Fuller watched her for Son and Daughter-in-law. Later that night, as Son and Daughter-in-law were getting J.F. ready for bed, J.F. told them that Fuller “put his pee-pee in [J.F.’s] mouth.” Id. at 32. J.F. also stated that Fuller's pants were not down. J.F. had not been exposed to any sexual material that would explain her knowledge of this activity. Son and Daughter-in-law took J.F. for a sexual assault examination, which produced no findings. They then took her for a forensic interview, where J.F. again disclosed the abuse.

[5] Following the forensic interview, Fuller participated in an interview with Shelby County Sheriff's Department Deputy Jason Myers. Fuller told Deputy Myers that he was sitting in the recliner and, to stop J.F. from jumping on his lap, “he raised his hand, and at this time, his finger was inserted into her mouth.” Id. at 15. Fuller denied placing his penis in J.F.’s mouth and explained that he had erectile dysfunction due to his heart problems.

[6] Fuller submitted to a voluntary polygraph test on February 24, 2023, and the results were inconclusive. During the post-examination interview, Fuller told the examiner that he told J.F. he “would put his pee-pee in her mouth as a ․ form of discipline because she was not following his instruction.” Id. at 68. Fuller did not provide this information during the pre-examination interview.

[7] On April 13, 2023, the State charged Fuller with child molesting, a Level 1 felony. A bench trial was held in November 2024. J.F., who was by then six years old, testified regarding the abuse, and Son and Daughter-in-law testified regarding J.F.’s disclosures.

[8] J.F. testified that she was in the living room when Fuller “touched [her] private parts” and “put [his] private part in [her] mouth.” Id. at 46. J.F. was “sitting down on [Fuller's] lap,” her clothes were off, and Fuller's pants were “[d]own.” Id. at 50. Fuller's “pee-pee” looked like “a normal boy's does” and had “fur” on it. Id. at 47. J.F. used her hands to indicate the size of Fuller's penis, which the trial court remarked was about six to ten inches. Fuller's “pee” came out, and it was “yellow.” Id. at 49.

[9] Fuller testified in his own defense. Fuller argued that he never placed his penis in J.F.’s mouth but that his finger did accidentally go into her mouth. He first claimed that he was sitting in the recliner when J.F. started running toward him; he put his “hands out to stop her”; and his finger went into her mouth. Id. at 115. Fuller later claimed that he was in the bathroom when J.F. ran toward him, he put his hands out to stop her, and his finger went into her mouth. Fuller admitted that he told J.F. he would put his “pee-pee” in her mouth if she did not “straighten up and quit acting the way she's acting.” Id. at 126.

[10] The trial court found Fuller guilty as charged. A sentencing hearing was held on December 12, 2024. As an aggravating factor, the trial court found that Fuller abused his position of trust over J.F. As mitigating factors, the trial court found that Fuller led a mostly law-abiding life and that Fuller's age and medical issues would make incarceration difficult. The trial court sentenced Fuller to an advisory sentence of thirty years in the Department of Correction. Fuller now appeals.

Discussion and Decision

I. Sufficient evidence supports Fuller's conviction.

[11] Fuller first argues that insufficient evidence supports his conviction. We disagree. Sufficiency of the evidence claims warrant 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 factfinder. Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024). 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 this review, we consider only the evidence that supports the factfinder's determination, not evidence that might undermine it. Id. We affirm the conviction “ ‘unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.’ ” Sutton v. State, 167 N.E.3d 800, 801 (Ind. Ct. App. 2021) (quoting Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007)).

[12] Fuller was convicted of child molesting, a Level 1 felony. This offense is governed by Indiana Code Section 35-42-4-3(a), which provides:

A person who, with a child under fourteen (14) years of age, knowingly or intentionally performs or submits to sexual intercourse or other sexual conduct (as defined in IC 35-31.5-2-221.5) commits child molesting, a Level 3 felony. However, the offense is a Level 1 felony if:

(1) it is committed by a person at least twenty-one (21) years of age[.]

“Other sexual conduct” includes an act involving “a sex organ of one (1) person and the mouth or anus of another person.” Ind. Code § 35-31.5-2-221.5.

[13] We conclude that the evidence is sufficient to support Fuller's conviction. J.F. testified that Fuller placed his “pee-pee”—her word for his penis—in her mouth. Tr. Vol. II p. 46. J.F. was able to provide a description of Fuller's penis and the circumstances of the abuse. At trial, Fuller admitted that he told J.F. he would place his penis in her mouth if she did not behave. Fuller claimed that only his finger entered J.F.’s mouth and that this occurred when he put his hands out to stop her from running at him. Fuller, however, provided inconsistent testimony regarding this explanation—first claiming that it happened when he was sitting in the recliner and then claiming that it happened when he was in the bathroom.

[14] Fuller argues that J.F.’s testimony was conflicting and not credible. He points out that: (1) Son testified that J.F. initially reported that Fuller's pants were not down; (2) J.F. did not report that Fuller touched her private parts until trial; (3) J.F. testified that she was sitting on Fuller's lap at the time of the abuse; (4) J.F. testified that a yellow liquid came out of Fuller's penis; and (5) J.F. indicated that Fuller's penis was six to ten inches in length, although Fuller claims to have erectile dysfunction.

[15] J.F. was only four years old when the abuse occurred and was only six years old at the time of trial. Young victims of sexual abuse are not always able to provide clear and coherent testimony regarding their abuse. See Salinas v. State, 257 N.E.3d 17, 26 (Ind. Ct. App. 2025) (noting that “[c]hild victims often recant allegations, fail to remember all the facts and circumstances, or fail to report allegations altogether”), trans. denied. Nonetheless, we entrust the factfinder with the role of determining a child witness's credibility, and we will not second guess that determination on this record. Accordingly, the evidence is sufficient to support Fuller's conviction for child molestation. See Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012) (noting that “[t]he testimony of a sole child witness is sufficient to sustain a conviction for molestation”) (citing Stewart v. State, 768 N.E.2d 433, 436 (Ind. 2002)).

II. Fuller's sentence is not inappropriate.

[16] Fuller next argues that his thirty-year sentence is inappropriate based on the nature of the offense and his character. We disagree. The Indiana Constitution authorizes independent appellate review and revision of sentences imposed by a trial court. Lane v. State, 232 N.E.3d 119, 122 (Ind. 2024) (citing Ind. Const. art. 7, §§ 4, 6). This authority, as implemented through Indiana Appellate Rule 7(B), enables this Court to “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.” Deference to the trial court's sentence should prevail unless “overcome by compelling evidence portraying in a positive light the nature of the offense and the defendant's character.” Oberhansley v. State, 208 N.E.3d 1261, 1267 (Ind. 2023) (internal quotations omitted). A defendant, however, need not show that both the nature of the offense and his or her character warrant revision; however, “to 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.” Lane, 232 N.E.3d at 127 (citing Connor v. State, 58 N.E.3d 215, 220 (Ind. Ct. App. 2016)).

[17] When determining whether a sentence is inappropriate, we are not limited to the aggravating and mitigating circumstances found by the trial court. Oberhansley, 208 N.E.3d at 1271. “Our role is primarily to leaven the outliers and identify guiding principles for sentencers, rather than to achieve the perceived correct result in each case.” Lane, 232 N.E.3d at 122 (internal quotations omitted). “Ultimately, we rely on our collective judgment as to the balance of all the relevant considerations involved, which include 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.” Id. (internal quotations omitted).

[18] The advisory sentence is the starting point the legislature has selected as an appropriate sentence for the crime committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). Accordingly, “ ‘the defendant bears a particularly heavy burden in persuading us that his sentence is inappropriate when the trial court imposes the advisory sentence.’ ” Prince v. State, 148 N.E.3d 1171, 1174 (Ind. Ct. App. 2020) (quoting Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied). Here, Fuller was convicted of child molesting, a Level 1 felony. The sentencing range for Level 1 felony child molesting when the defendant is at least twenty-one years old and the victim is less than twelve years old—as is the case here—is twenty to fifty years, with an advisory sentence of thirty years. Ind. Code § 35-50-2-4(c).

A. Nature of the Offense

[19] Our consideration of the “nature of the offense” requires us to look at the extent, brutality, and heinousness of the offense. See Wilson v. State, 157 N.E.3d 1163, 1182 (Ind. 2020). We may also consider whether the offender was in “a position of trust” with the victim. Ramirez v. State, 174 N.E.3d 181, 202 (Ind. 2021). We will defer to the trial court's sentencing decision unless the defendant presents “ ‘compelling evidence portraying in a positive light the nature of the offense (such as [being] accompanied by restraint, regard, and lack of brutality)[.]’ ” Correa v. State, 224 N.E.3d 961 (Ind. Ct. App. 2023) (citing Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015)).

[20] Here, Fuller abused his position of trust over his young granddaughter. Fuller argues that “a single alleged instance of oral penetration does not rise beyond basic elements contemplated by the offense sufficient to be an aggravating factor ․” Appellant's Br. p. 12. The trial court, however, did not find this to be an aggravating factor, and Fuller was given an advisory-level sentence. We find nothing about the nature of the offense that warrants revision of Fuller's sentence.

B. Character of the Offender

[21] Our consideration of the character of the offender involves a broad consideration of a defendant's qualities, including the defendant's age, criminal history, background, past rehabilitative efforts, and remorse. Harris v. State, 165 N.E.3d 91, 100 (Ind. 2021); McCain v. State, 148 N.E.3d 977, 985 (Ind. 2020). The significance of a criminal history in assessing a defendant's character and an appropriate sentence vary based on the “gravity, nature and number of prior offenses as they relate to the current offense.” McElfresh v. State, 51 N.E.3d 103, 112 (Ind. 2016). “Even a minor criminal history is a poor reflection of a defendant's character.” Prince v. State, 148 N.E.3d 1171, 1174 (Ind. Ct. App. 2020).

[22] Here, Fuller has not demonstrated positive character traits that would warrant a lesser sentence. Fuller did not tell the polygraph examiner about his threat to put his “pee-pee in [J.F.’s] mouth as a ․ form of discipline” until after the polygraph examination. Tr. Vol. II p. 68. At trial, Fuller changed his story regarding how his finger allegedly wound up in J.F.’s mouth. He claimed he could not have committed the offense because he has erectile disfunction, but he admitted to having oral sex with his girlfriend the year before the abuse and to watching pornography. During the sentencing hearing, Fuller claimed that he was found “[n]ot guilty” of possession of burglary tools in 1982, but he later admitted that he was convicted; he simply served no jail time. Tr. Vol. II p. 157.

[23] Fuller points out his advanced age and health problems. Fuller had heart surgery in 2023 and has diabetes and myelitis. Fuller has also led a mostly law-abiding life. Considering these factors on the whole, however, Fuller has not demonstrated that his advisory-level sentence is inappropriate.

Conclusion

[24] Sufficient evidence supports Fuller's conviction for child molesting, a Level 1 felony; and his sentence is not inappropriate. Accordingly, we affirm.

[25] Affirmed.

Tavitas, Judge.

Vaidik, J., and Felix, J., concur.