Timothy James Hulbert, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Timothy James Hulbert was convicted of 4 counts of Level 4 felony child molesting and one count of Level 6 felony criminal violation of a lifetime parole condition and was found to be a habitual offender. The trial court sentenced him to 50 years in the Department of Correction. He now appeals, arguing that the State failed to prove he is a habitual offender and that his sentence is inappropriate. We reverse the 10-year habitual-offender enhancement but affirm the remaining 40-year sentence.

Facts and Procedural History

[2] In late 2023, Hulbert was working with E.F. They had worked together for 13 years, and they were “best friends.” Tr. Vol. 2 p. 183. Hulbert would sometimes help take care of E.F.’s children—an 11-year-old daughter, a 9-year-old daughter, and an 8-year-old son—and the children knew him “like an uncle” and called him “T.J.” or “Uncle T.J.” Id. at 183-84.

[3] On two days that fall and/or winter—once at a movie theater and once at E.F.’s apartment—Hulbert inappropriately touched the private parts of both E.F.’s younger daughter, D.B., and her son, W.B., under their clothing (he touched both children on both days). E.F.’s older daughter was also present during at least some of the touching.

[4] After the children reported the touching, the State charged Hulbert with 4 counts of Level 4 felony child molesting (2 as to D.B. and 2 as to W.B.) and 1 count of Level 6 felony criminal violation of a lifetime parole condition (Hulbert was on lifetime parole for a Class B felony child-molesting conviction in 2009). The State also alleged that Hulbert is a habitual offender based on 2 prior felony convictions (the 2009 child-molesting conviction and a 2011 conviction for Class D felony failure to possess identification). A bifurcated trial was held in April 2024. In the first phase, a jury found Hulbert guilty on the child-molesting charges. In the second phase, the trial court found him guilty on the parole-violation charge and found him to be a habitual offender.

[5] In sentencing Hulbert, the trial court found 5 aggravating circumstances: (1) Hulbert was in a position of care, custody, or control as to the children; (2) Hulbert violated the terms of prior sentences on multiple occasions; (3) the children were able to “see and hear” some of Hulbert's offenses against other children; (4) prior attempts at rehabilitation have failed; and (5) Hulbert's actions “caused lasting harm to the children, who were all old enough to understand and recall the unlawful behavior.” Appellant's App. Vol. 2 pp. 19-20. The court found 2 mitigating circumstances: (1) Hulbert had a difficult childhood and had been a victim in the past and (2) he has family support. Id. at 20. Finding that the aggravators substantially outweigh the mitigators, the court sentenced Hulbert to a total of 50 years in the Department of Correction: consecutive 10-year sentences on the Level 4 felony child-molesting counts, with one of the sentences enhanced by 10 years based on the habitual-offender finding, and a concurrent 2-year sentence for Level 6 felony criminal violation of a lifetime parole condition.

[6] Hulbert now appeals.

Discussion and Decision

I. The State failed to prove that Hulbert is a habitual offender

[7] Hulbert contends that the State failed to prove he is a habitual offender. As charged here, the State was required to prove that Hulbert “has been convicted of two (2) prior unrelated felonies” and “at least one (1) of the prior unrelated felonies is not a Level 6 felony or a Class D felony.” Ind. Code § 35-50-2-8(b); Appellant's App. Vol. 2 p. 32. The State alleged, and the trial court found, that Hulbert was convicted of Class B felony child molesting in February 2009 in Cause No. 79C01-0711-FB-39 and then convicted of Class D felony failure to possess identification in October 2011 in Cause No. 79D05-1106-FD-241. Hulbert argues that the State failed to prove he was the defendant in FD-241. As discussed below, we disagree with Hulbert on this point, but we find a more fundamental problem with the State's evidence.

[8] Hulbert notes that the sentencing documents the State submitted from FD-241 identified the defendant as “Timothy James Hulbert”—his full name—but didn't include any other identifiers, such as a date of birth or a driver's license number. See Ex. 15. However, the documents did state that the sentence in FD-241 would be consecutive to the sentence in FB-39. See id. Hulbert doesn't dispute that he was the defendant in FB-39. This link between the two cases was sufficient to prove that Hulbert was also the defendant in FD-241.

[9] But the documents submitted by the State from FD-241 are deficient in a different respect: they show only when he was convicted and sentenced in that case (October 2011), not when he committed the underlying offense. To prove that Hulbert has been convicted of “two (2) prior unrelated felonies,” the State had to show that he committed and was sentenced for one felony offense, then committed and was sentenced for a second felony offense, then committed the current offense. I.C. § 35-50-2-8(f). That means the State was required to prove that Hulbert committed the offense in FD-241 after he was sentenced in FB-39 (in February 2009). The State didn't present any evidence of the date of commission in FD-241, such as the charging information from that case. Because the State didn't prove that the offense in FD-241 was committed after sentencing in FB-39, we reverse the habitual-offender finding and the 10-year sentencing enhancement and remand to the trial court with instructions to revise the sentencing documents accordingly.

II. Hulbert's remaining 40-year sentence isn't inappropriate

[10] Hulbert also asks us to reduce his sentence under Indiana Appellate Rule 7(B), which provides that an appellate court “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.” Because we reverse the 10-year habitual-offender enhancement, we need only review the remaining 40-year sentence.

[11] The court's role under Rule 7(B) is to “leaven the outliers,” and “we reserve our 7(B) authority for exceptional cases.” Faith v. State, 131 N.E.3d 158, 160 (Ind. 2019). “Whether a sentence is inappropriate ultimately turns on the culpability of the defendant, the severity of the crime, the damage done to others, and a myriad of other factors that come to light in a given case.” Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014) (citing Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008)). Because we generally defer to the judgment of trial courts in sentencing matters, defendants must persuade us that their sentences are inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind. Ct. App. 2016).

[12] Hulbert was convicted of 4 Level 4 felonies and a Level 6 felony. The sentencing range for a Level 4 felony is 2 to 12 years, with an advisory sentence of 6 years. I.C. § 35-50-2-5.5. The sentencing range for a Level 6 felony is 6 months to 2.5 years, with an advisory sentence of 1 year. I.C. § 35-50-2-7(b). Therefore, without the habitual-offender enhancement, Hulbert faced a maximum sentence of 50.5 years. The trial court sentenced him to 40 years: consecutive 10-year sentences for the Level 4 felonies and a concurrent 2-year sentence for the Level 6 felony.

[13] As to the nature of the offenses, Hulbert notes that he didn't threaten or injure the children and that the incidents took place over a relatively short period of time. As to his character, he notes, as the trial court did, that he had a difficult childhood and was a victim of abuse himself. But Hulbert's inappropriateness argument is based primarily on three decisions in which our Supreme Court ordered concurrent sentences for defendants convicted of multiple counts of child molesting: Harris v. State, 897 N.E.2d 927 (Ind. 2008), Monroe v. State, 886 N.E.2d 578 (Ind. 2008), and Walker v. State, 747 N.E.2d 536 (Ind. 2001). Those cases are distinguishable from this case in two key ways. First, none of those defendants molested multiple victims, as Hulbert did. Second, and perhaps even more importantly, none of those defendants had a prior conviction for child molesting, as Hulbert does. In fact, Hulbert was on parole for that prior conviction when he committed these offenses, and he wasn't supposed to have any contact with children under 16, let alone sexual contact. See Tr. Vol. 3 pp. 57-67; Exs. 12-13. Moreover, Hulbert had another prior felony conviction, he had failed in previous attempts at rehabilitation, he was in a position of trust with the children, and he molested the children in the presence of their siblings. Hulbert hasn't carried his burden of persuading us that a sentence of 40 years is inappropriate under the facts and circumstances of this case.

[14] Affirmed in part, reversed in part, and remanded.

Vaidik, Judge.

Mathias, J., and Pyle, J., concur.