WEINLEY v. STATE (2021)

MEMORANDUM DECISION

Statement of the Case

[1] Timothy Weinley was convicted by jury of rape, a Level 3 felony,¹ and intimidation, a Level 6 felony,² and he admitted to being an habitual offender.³ He was sentenced to a term of fifteen years for rape, enhanced by fifteen years because he was an habitual offender, and two years for intimidation, with the sentence to be served in the Indiana Department of Correction (“DOC”). He appeals his sentence. We affirm.

Issues

[2] The following issues are raised on appeal for our review:

I. Whether there is sufficient evidence to support Weinley's convictions for Level 3 felony rape and Level 6 felony intimidation;

II. Whether the trial court abused its discretion in sentencing Weinley; and

III. Whether Weinley's fifteen-year sentence for rape is inappropriate in light of the nature of the offense and his character.

Facts and Procedural History

[3] D.H. was twenty years old at the time the offenses occurred; however, he was mentally challenged and functioned at the level of a child between the ages of ten and fourteen. On June 12, 2018, D.H. was arrested and placed in the Allen County Jail for the alleged crime of auto theft. On June 18, D.H. was transferred to the Huntington County Jail, assigned to Cellblock B—a small cellblock which was primarily reserved for trustees or inmates who were in protective custody—and placed in the same cell as Weinley. Weinley and D.H. were cellmates from June 18 until July 3. Two other inmates were briefly assigned to the cell during that time period. However, the majority of the time, Weinley and D.H. were the only occupants of the cell. While the cell doors were open during the day, the doors were locked each night and remained locked overnight.

[4] One night while D.H. was lying in bed, Weinley rubbed D.H.’s buttocks and began to masturbate. D.H. testified that over the next several nights, Weinley forced him to have oral and anal sex with him against his will. D.H. further stated that he told Weinley “to stop” and that he “[did not] want to do this anymore.” Tr. Vol. II p. 185. D.H. testified that he was forced to submit to the attacks only because Weinley threatened to sharpen a spork that he kept in the cell and stab D.H. with the hand-crafted weapon. D.H. stated that he did not tell the guards what was happening to him because he was afraid that Weinley would physically harm him. Weinley had previously warned D.H. that the guards would not be able to reach or stop him in time if he called out for help.

[5] Weinley was physically removed from the cell on July 3, but it was only after Weinley's personal items had been removed that D.H. finally felt safe enough to tell fellow inmates what Weinley had done to him. The inmates immediately informed the guards.

[6] On September 14, 2018, Weinley was formally charged with four counts of rape as Level 3 felonies, one count of intimidation as a Level 6 felony, and an habitual offender enhancement. A jury trial was scheduled on September 3, 2019, and at the conclusion thereof Weinley was found guilty of one count of rape and the count of intimidation. Weinley then admitted to being an habitual offender. On October 15, 2019, the trial court sentenced Weinley to fifteen years for the Level 3 felony rape conviction, which sentence was enhanced by an additional fifteen years based upon Weinley being found to be an habitual offender. Weinley received a two-year sentence for the Level 6 felony intimidation conviction, to run concurrent with the rape sentence. The thirty-year aggregate sentence was ordered served in the DOC. Weinley appeals.

Discussion and Decision

I. Insufficient Evidence – Incredible Dubiosity

[7] Weinley argues that the evidence is insufficient to support his convictions for rape and intimidation. When reviewing a claim of insufficient evidence, it is well established that our Court does not reweigh evidence or assess the credibility of witnesses. Walker v. State, 998 N.E.2d 724, 726 (Ind. 2013). Instead, we consider all of the evidence, and any reasonable inferences that may be drawn therefrom, in a light most favorable to the verdict. Id. We will uphold the conviction “ ‘if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.’ ” Id. (quoting Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004)).

[8] To convict Weinley of Level 3 felony rape as charged, the State was required to prove beyond a reasonable doubt that he knowingly caused D.H. to submit to other sexual conduct when D.H. was compelled by force or imminent threat of force. See Ind. Code § 35-42-4-1(a)(1); Appellant's App. Vol. II, p. 65. To convict Weinley of Level 6 intimidation as charged, the State was required to prove beyond a reasonable doubt that he: (1) communicated a threat (2) to D.H. (3) with the intent that D.H. engage in conduct against his will, and (4) the threat was to commit a forcible felony. See Ind. Code § 35-45-2-1(b)(1)(A); Appellant's App. Vol. II, p. 66. Weinley contends that there is insufficient evidence to support his convictions because the State failed to present “any evidence of sexual activity between Weinley and [D.H.] other than the testimony of [D.H.]” which, according to Weinley, is incredibly dubious. Appellant's Br. p. 17.

[9] In general, the uncorroborated testimony of the victim is sufficient to sustain a conviction. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). We may make an exception, however, when that testimony is incredibly dubious. The incredible dubiosity rule allows the reviewing court to impinge upon the factfinder'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). The rule is applied in limited circumstances, namely where there is “[(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. If all three conditions are satisfied, reversal is warranted because the evidence is insufficient, as a matter of law, to establish guilt beyond a reasonable doubt. Moore, 27 N.E.3d at 755 (citing Gaddis v. State, 253 Ind. 73, 80-81, 251 N.E.2d 658, 661-62 (1969)).

[10] Application of the incredible dubiosity rule is “rare[,] and the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it.” Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). “[W]hile 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.’ ” Moore, 27 N.E.3d at 756 (quoting Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001)).

1. Sole Testifying Witness

[11] Here, the first element of the incredible dubiosity rule is satisfied because D.H. was the sole testifying eyewitness to the sexual acts that occurred between him and Weinley. Still, each of the three Moore elements must be shown in order to invoke the incredible dubiosity rule. See Moore, 27 N.E.3d at 758 (noting the appellant had failed to satisfy factor one because multiple witnesses had testified, and therefore “our analysis could end here”).

2. Testimony Inherently Improbable, Equivocal, or Coerced

[12] Regarding the second element, Weinley claims that D.H.’s testimony as to what occurred sexually between him and Weinley “is clearly unreliable” because (1) prior to administering the oath to D.H., the trial court—outside of the jury's presence—first ascertained whether D.H. understood the importance of telling the truth; (2) D.H. did not disclose what Weinley was doing to him until after Weinley had been removed from the cell; (3) D.H. did not “scream out for assistance when the acts occurred[;]” (4) his testimony was “somewhat convoluted” and his “reactions to the alleged touching run counter to what would be perceived to be the normal human response to being raped[;]” (5) D.H. “seemed to indicate that the touches were consensual in nature[;]” and (6) “considering the number of sexual events that occurred, there were no articles of clothing [that contained] any of Weinley's DNA.” Appellant's Br. pp. 19, 20. We disagree.

[13] Testimony was presented that D.H.’s mental capacity was at the level of a child between the ages of ten and fourteen. However, prior to administering the oath to D.H., the trial court ascertained that D.H. understood the difference between a lie and the truth and the importance of telling the truth. Thereafter, D.H. testified unequivocally and in detail about the sexual acts to which Weinley forced him to submit. D.H. testified that the inappropriate touching started one night with Weinley rubbing his buttocks while masturbating. The next night, and over several nights thereafter, the sexual acts progressed to oral and anal sex and only stopped momentarily when a new inmate moved into the cell. When D.H. told Weinley to stop, Weinley threatened to sharpen a spork that he kept in the cell and stab D.H. if he did not comply. D.H. testified that he had seen the spork in the cell and that he was terrified that Weinley would harm him with it.

[14] Weinley directs our attention to certain statements that D.H. made during his testimony that, according to Weinley, contradict D.H.’s testimony that he did not consent to the sexual acts. For example, D.H. testified that he and Weinley “would hug and kiss and stuff[,]” and that he tried to stop Weinley from touching him “[w]hen [he] got tired of it[.]” Tr. Vol. II, p. 185 (emphasis added). However, in context, D.H.’s testimony was as follows:

Q And how often would those things happen?

[D.H.] Every night. Pretty much.

Q Did [Weinley] ever say anything to you while these touches were happening?

[D.H.] No. Only when I tried to stop ‘em.

Q Tell me about that. How did you try to stop?

[D.H.] When I got tired of it, I tried to tell him to stop and I don't want to do this anymore and he said f— and I said I was going to tell the staff and then he said well, I'm going to start putting my fo– uh, spork and I'm going to stab you. And I'm like the staff will come and rescue [me] and he's like no, cause I'm going to wait until it's bedtime and then it'll be too late.

Id. Our review of the record reveals that D.H. testified clearly and unequivocally that he did not voluntarily engage in the sexual acts with Weinley and that he would not have allowed the attacks to take place but for Weinley threatening to stab him. D.H. stated that he “wanted to stop [having sex with Weinley,]” but Weinley, by his forceful threats, continued to take advantage of him. Id. at 195.

[15] Regarding the delay in D.H. reporting what Weinley had done to him, D.H. testified that he did not tell anyone what had happened until after Weinley had been removed from the cell because “[he] was scared․ I was still scared and I didn't really see the guards that much and when I did everybody was around, so I didn't feel comfortable telling them at–right away. I should've, but I didn't feel comfortable.” Id. at 186. As for why there was no semen or other DNA evidence found on D.H.’s clothing, D.H. explained that Weinley sometimes would ejaculate into his mouth; and, when he did so, D.H. would rinse out his mouth and brush his teeth. D.H. stated that, when the attacks occurred, he was not wearing underwear,⁴ and he did not use his clothing to clean himself after Weinley forced him to engage in anal sex.

[16] However, the fact that there was no physical evidence to corroborate D.H.’s testimony regarding the attacks is a matter of credibility and does not render his testimony incredibly dubious. See, e.g., Cardwell v. State, 516 N.E.2d 1083, 1087 (Ind. Ct. App. 1987) (explaining that the “lack of corroborating medical or physical evidence ․ does not, of itself, render the uncorroborated testimony of the victims insufficient to sustain a child molesting conviction”), trans. denied. Indeed, “[a] conviction can be sustained on only the uncorroborated testimony of a single witness, even when that witness is the victim.” Bailey, 979 N.E.2d at 135. The type of criminal behavior that Weinley was accused of committing is seldom committed in the presence of eyewitnesses. Furthermore, taking into consideration the totality of the facts and circumstances surrounding the incidents, we are not persuaded that D.H.’s testimony was incredibly dubious.

[17] D.H.’s testimony regarding the sexual attacks and the threats was consistent. Nothing about D.H.’s testimony is inherently contradictory, equivocal, or coerced. On the contrary, he was very unequivocal. Therefore, we conclude that the second Moore element has not been established.

3. Circumstantial Evidence

[18] Finally, there is evidence corroborating D.H.’s testimony. An inmate testified that D.H. was relieved when Weinley's personal items had been removed from D.H.’s cell. An inmate who shared the cell with D.H. and Weinley testified that D.H. would become unusually quiet whenever Weinley entered the cell they all shared. An inmate testified that although Weinley had been physically removed from the cell, D.H. greatly appeared relieved only when all of Weinley's personal items were finally removed from the cell.

[19] Here, incredible dubiosity is not available to invalidate D.H.’s testimony as we have determined that his testimony is not inherently contradictory or equivocal and there was circumstantial evidence of Weinley's guilt. See Whedon v. State, 765 N.E.2d 1276, 1278 (Ind. 2002) (explaining that the incredible dubiosity rule applies only “where a sole witness presents inherently contradictory testimony that is equivocal or coerced and there is a lack of circumstantial evidence of guilt”) (emphasis added).

[20] Weinley's argument is nothing more than an invitation for this Court to reweigh the evidence and judge the credibility of the witness, which we decline to do. See Walker, 998 N.E.2d at 726. The jury had an opportunity to observe D.H.’s demeanor, heard and weighed his testimony, and believed his version of the events, which was sufficient to support the guilty verdict, and we decline to impinge on the jury's credibility determinations. See Ferrell v. State, 746 N.E.2d 48, 51 (Ind. 2001) (“If the testimony believed by the trier of fact is enough to support the verdict, then the reviewing court will not disturb it.”). Because Weinley has failed to show that D.H.’s testimony was so inherently improbable that no reasonable trier of fact could believe it and because there is supporting circumstantial and probative evidence from which the jury could have found Weinley guilty beyond a reasonable doubt, we find that the incredible dubiosity rule is inapplicable and that sufficient evidence was presented to support Weinley's convictions.

II. Abuse of Discretion at Sentencing

[21] Next, Weinley argues that the trial court abused its discretion by failing to consider certain proffered mitigating circumstances. “[S]entencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218. “So long as the sentence is within the statutory range, it is subject to review only for abuse of discretion.” Id. An abuse of discretion occurs “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. (citation omitted).

[22] A trial court is not required to accept a defendant's argument as to what is a mitigating factor or to provide mitigating factors the same weight as does a defendant. Conley v. State, 972 N.E.2d 864, 873 (Ind. 2012). “If the trial court does not find the existence of a mitigating factor after it has been argued by counsel, the trial court is not obligated to explain why it has found that the factor does not exist.” Anglemyer, 868 N.E.2d at 493. However, a court abuses its discretion if it does not consider significant mitigators advanced by the defendant and clearly supported by the record. Id. at 490. An allegation that the trial court failed to find a mitigating circumstance requires Weinley to show the mitigating circumstance is “both significant and clearly supported by the record.” Anglemyer, 868 N.E.2d at 493.

[23] Weinley argues that the trial court should have found as mitigating circumstances that (1) his crime neither caused nor threatened serious harm, and there was no serious harm done to D.H.; (2) Weinley is not likely to commit this offense again, as D.H. now resides in a group home; and (3) Weinley has demonstrated a life-long history of alcohol and substance abuse and various mental health issues that have not been treated. We are unpersuaded.

[24] Weinley's crime was not a victimless one. D.H., who had the mental capacity of a child between the ages of ten and fourteen, was in jail for the first time and had been placed in a cellblock that was primarily reserved for trustees and inmates needing protective custody. The evidence shows that Weinley took advantage of D.H.’s mental capacity and forced him to submit to oral and anal sex over a number of nights. When D.H. tried to resist and stop Weinley, Weinley threatened to sharpen a spork and stab him with it if he did not submit. The fact that Weinley did not follow through with his threat does not diminish the seriousness of the crimes. The attacks would stop momentarily when another inmate moved into the cell. The Indiana State Police detective assigned to the case testified that, when he interviewed D.H. about the sexual attacks, D.H. exhibited a “healthy fear of [Weinley].” Tr. Vol. III, p. 12.

[25] As for Weinley's contention that his alcohol and substance abuse problems should have been considered a significant mitigating circumstance, this Court has recognized that a history of substance abuse may be a mitigating circumstance. Field v. State, 843 N.E.2d 1008, 1012 (Ind. Ct. App. 2006), trans. denied. On the other hand, we have held that when a defendant is aware of a substance abuse problem but has failed or refused to take appropriate steps to treat it, the trial court does not abuse its discretion by rejecting the addiction as a mitigating circumstance. Bryant v. State, 802 N.E.2d 486, 501 (Ind. Ct. App. 2004), trans. denied. Also, Weinley has shown no connection between his alcohol and substance abuse problems and the raping of D.H.

[26] Regarding Weinley's argument that the trial court failed to consider his personal claim of mental health issues as a mitigator, we note that this mitigating circumstance was not advanced at sentencing. It is well-settled that it is not an abuse of the trial court's discretion to fail to consider a mitigating circumstance that a defendant did not raise at sentencing. Anglemyer, 868 N.E.2d at 492. Because this argument was not advanced by Weinley at sentencing and is raised for the first time on appeal, we find no abuse of the trial court's discretion in failing to recognize it as a mitigator. Id.

[27] In Weinley's case, the trial court heard the testimony and considered the evidence presented at sentencing and found no mitigating circumstances; and, the trial court was under no obligation to explain why. See Anglemyer, 868 N.E.2d at 493 (“the trial court is not obligated to explain why it has found that the factor does not exist”). Moreover, Weinley has failed to demonstrate that any of the proffered mitigating circumstances were both significant and clearly supported by the record or warranted significant mitigating weight. As such, we conclude that the trial court did not abuse its discretion in sentencing Weinley.

III. Inappropriate Sentence

[28] Weinley argues that his sentence—specifically, the fifteen-year sentence he received for the rape conviction—is inappropriate in light of the nature of his offense and his character and asks that his sentence be revised downward.

We may review and revise criminal sentences pursuant to the authority derived from Article 7, Section 6 of the Indiana Constitution. Indiana Appellate Rule 7(B) empowers us to revise a sentence “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 a trial court's judgment “should receive considerable deference[,]” our principal role is to “leaven the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1222-25 (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 defendant bears the burden to persuade this court that his or her sentence is inappropriate, Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006), and we may look to any factors appearing in the record for such a determination. Stokes v. State, 947 N.E.2d 1033, 1038 (Ind. Ct. App. 2011), trans. denied.

Reis v. State, 88 N.E.3d 1099, 1101-02 (Ind. Ct. App. 2017). The question under Appellate Rule 7(B) analysis is “not whether another sentence is more appropriate” but rather “whether the sentence imposed is inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in original). 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, 895 N.E.2d at 1224.

[29] Weinley challenges only the fifteen-year sentence he received for the rape conviction. We begin with the advisory sentence in determining the appropriateness of a sentence. Childress, 848 N.E.2d at 1081. The sentencing range for a Level 3 felony is “a fixed term of between three (3) and sixteen (16) years, with the advisory sentence being nine (9) years.” Ind. Code § 35-50-2-5 (2014). Weinley's fifteen-year sentence for the rape conviction was above the advisory sentence but one year below the maximum possible sentence that could be imposed.

[30] To determine the nature of the offense, we examine the details and circumstances surrounding the offense. Washington v. State, 940 N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied. Weinley concedes that his rape offense “is egregious and offensive due to the nature of the forced sexual contact.” Appellant's Br. p. 22. He argues, however, that D.H. was “not a particularly young ․ victim[;]” the alleged sexual contacts were brief in nature and appeared to leave no lasting effects on D.H.; and “per [D.H.’s] testimony, the alleged sexual contact appeared to be consensual in nature at times[.]” Id. at 22-23. We disagree.

[31] Weinley was aware of D.H.’s intellectual limitations. Nevertheless, shortly after D.H. was placed in the cell with Weinley, Weinley began to touch D.H. inappropriately while masturbating. The inappropriate touching and masturbation quickly progressed to Weinley subjecting D.H. to oral and anal sex and hugging and kissing. D.H. told Weinley to stop attacking him, however, Weinley frightened D.H. into silence and submission by threatening to sharpen a spork Weinley kept in the cell and stab D.H. with the weapon. When D.H. stated that he would tell the guards about the attacks, Weinley told D.H. that he would wait until lockdown to attack him and that the guards would not reach D.H. in time to save him. Nothing about the nature and circumstances of Weinley's rape offense leads us to the conclusion that his sentence is inappropriate.

[32] The character of the offender is found in what we learn of the offender's life and conduct. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). When considering the character of the offender, one relevant fact is the defendant's criminal history. Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013).

[33] Weinley has a lengthy criminal history that includes one juvenile adjudication, seven prior felony convictions, and fourteen prior misdemeanor convictions. Weinley's adult criminal history began as early as 1988 or 1989. Throughout the years, Weinley sustained convictions involving alcohol, controlled substances, and resisting law enforcement. Weinley has also been convicted of battery by bodily waste, domestic battery, battery, and disorderly conduct. As late as 2017 and 2018, Weinley continued to commit crimes such as intimidation to a law enforcement officer, resisting law enforcement, criminal trespass, possession of methamphetamine, and possession of paraphernalia. At least five times, Weinley's probation was revoked and terminated as unsuccessful.

[34] Weinley has been afforded opportunities to participate in counseling but has failed to take full advantage of the programs. Furthermore, Weinley's extensive criminal history reflects poorly on his character, and he was not deterred by previous contacts with the criminal justice system from committing the current offenses. We cannot say that his sentence is inappropriate for his character.

[35] Under these facts and circumstances, we find that both the nature of the rape offense and Weinley's character support the sentence imposed by the trial court. Weinley's sentence is not inappropriate.

Conclusion

[36] Based on the foregoing, and because the second and third elements of the incredible dubiosity test are not met by the circumstances of this case, we conclude that the incredible dubiosity rule does not apply, and D.H.’s testimony was sufficient to support Weinley's convictions; the trial court did not abuse its discretion in sentencing Weinley; and, Weinley's fifteen-year sentence for his rape conviction is not inappropriate in light of the nature of the offense and his character.

[37] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-4-1(a)(1) (2014).

2.   Ind. Code § 35-45-2-1(b)(1)(A) (2017).

3.   Ind. Code § 35-50-2-8(i) (2017).

4.   Articles of clothing such as underwear, socks, sweatshirts, T-shirts, and shorts could be worn in the jail so long as the items were purchased from the jailhouse commissary. See Tr. Vol. III, p. 36.

Darden, Senior Judge.

May, J., and Robb, J., concur.