Nicholas Tochell, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] In December of 2022, the State charged Nicholas Tochell with multiple counts of Level 4 felony child molesting. After a jury found him guilty as charged, the trial court sentenced Tochell to an aggregate eighteen-year sentence. Tochell argues that the evidence is insufficient to sustain his convictions and that his sentence is inappropriate.¹ We affirm.

Facts and Procedural History

[2] Between the fall of 2021 and December 2, 2022, Tochell had reason to come into contact and spend time with Victim and Witness in Lafayette and Michigan City. Victim was between twelve and thirteen years old at the time.

[3] During a visit to Lafayette, when Victim was around twelve-years old, Tochell massaged the inside of her thigh with a massage gun. Victim was a little concerned but “didn't say anything ․ [b]ecause [she] thought it was an accident.” Tr. Vol. II p. 141. In the spring of 2022, during a visit to Michigan City, Tochell lay down in the bed beside Victim, where “[t]here wasn't really much space between” them, and placed his hand under her shirt, “close to [her] breast.” Tr. Vol. II p. 141. Again, Victim did not say anything, because she assumed that Tochell was “probably not even trying to do anything” and that she was “just overreacting[.]” Tr. Vol. II p. 141. Throughout the spring, however, Tochell continued lying beside Victim and touching her breast. After Victim moved from Lafayette to Michigan City, “[t]he touching ․ wasn't all the time, but it was still happening.” Tr. Vol. II p. 143.

[4] Around September of 2022, Tochell “started getting a little more physical.” Tr. Vol. II p. 143. One night, Victim and Tochell were sitting together in a recliner, watching Netflix. Victim began to tickle Tochell, just as she had done before. This time, however, Tochell “told [Victim] to stop a couple of times, but [she] thought [they] were still playing, so [she] didn't. And then [Tochell] stopped [her] by sticking his hand in [her] pants.” Tr. Vol. II pp. 144–45. Tochell placed his hand underneath Victim's underwear, “[r]ight on top of the vagina[,]” and began touching her clitoris. Tr. Vol. II p. 145. Tochell then asked Victim if she knew what masturbation was and told her “how it works, and how it relieves stress.” Tr. Vol. II p. 145. In response, Victim froze “because it was out of nowhere. I didn't know what to do, and I just—I lay there for a little bit.” Tr. Vol. II p. 146. When Victim tried to “make it clear that [she was] uncomfortable,” Tochell held on to one of her legs and started “moving his finger more.” Tr. Vol. II p. 146. Victim “finally ask[ed] him to stop, because it -- it was getting uncomfortable, and [she] didn't like it.” Tr. Vol. II p. 146.

[5] Tochell removed his hand from Victim's pants, “but then proceed[ed] to lift up [her] shirt and put his mouth on [her] nipple[,]” telling Victim to stay quiet to avoid waking Witness. Tr. Vol. II p. 146. After Victim asked Tochell to stop, he then asked her if he could “at least hold” her breast. Tr. Vol. II p. 147. Victim told him “no[,]” and Tochell pulled her shirt back down. Tr. Vol. II p. 147. The next morning, Tochell entered Victim's bedroom and began “spooning” her. Tr. Vol. II p. 148. While in this position, Tochell began “rocking the bed” in a “kind of back-and-forth motion.” Tr. Vol. II p. 147.

[6] Some time later, Tochell again entered Victim's bedroom. Victim started tickling Tochell, and he put “his hand in [her] pants again, finger right where it was before.” Tr. Vol. II p. 149. Victim asked Tochell to stop, and in turn, Tochell asked if Victim was going to stop “[w]ith the tickling.” Tr. Vol. II p. 149. Tochell removed his hand from Victim's underwear, stayed in her bedroom for “a minute or so,” and left. Tr. Vol. II p. 150. This was the last time that Tochell touched Victim's vagina, but he continued coming into her bedroom, lying down beside her, and putting his hand on her breast. “[A]t that point[, Victim] knew that he wasn't doing it by accident.” Tr. Vol. II p. 150.

[7] On December 2, 2022, Victim told Witness about these incidents. Witness immediately drove Victim to the police department, where Victim told officers and a social worker what Tochell had done to her. After making the report to law enforcement, Victim and Witness drove back to Lafayette.

[8] On December 22, 2022, the State charged Tochell with four counts of Level 4 felony child molesting. A jury found Tochell guilty as charged. The trial court imposed an aggregate eighteen-year sentence, with six years to be served in the Department of Correction, six years on LaPorte County Community Corrections, and six years on LaPorte County GPS monitoring.

Discussion and Decision

I. The Evidence is Sufficient to Sustain Tochell's Convictions for Level 4 Felony Child Molesting

[9] When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court's ruling. Appellate courts 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.

Drane v. State, 867 N.E.2d 144, 146–47 (Ind. 2007) (internal brackets, citations, emphasis, and quotations omitted). Stated differently, in reviewing the sufficiency of the evidence, “we consider only the evidence and reasonable inferences most favorable to the convictions, neither reweighing evidence nor reassessing witness credibility” and “affirm the judgment unless no reasonable factfinder could find the defendant guilty.” Griffith v. State, 59 N.E.3d 947, 958 (Ind. 2016). Pursuant to Indiana Code section 35-42-4-3(b), “[a] person who, with a child under fourteen (14) years of age, performs or submits to any fondling or touching, of either the child or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person, commits child molesting, a Level 4 felony.”

[10] In challenging the sufficiency of the evidence to sustain his convictions for Level 4 felony child molesting, Tochell argues only that Victim's testimony was incredibly dubious.

Under the incredible dubiosity rule, this court may impinge upon the jury's responsibility to judge the credibility of witnesses when confronted with inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony. If a sole witness presents inherently improbable testimony and there is a complete lack of circumstantial evidence, a defendant's conviction may be reversed. Application of this rule is rare, though, and the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it. This incredible dubiosity rule applies only when a witness contradicts himself or herself in a single statement or while testifying, and does not apply to conflicts between multiple statements.

Livers v. State, 994 N.E.2d 1251, 1256 (Ind. Ct. App. 2013) (internal citations and quotations omitted). It is well established, however, that “a conviction may be based on the sole uncorroborated testimony of the victim, even if that victim is a minor.” Smith v. State, 432 N.E.2d 1363, 1372 (Ind. 1982).

[11] Suggesting that Victim's testimony was coerced, Tochell argues that Victim's testimony was influenced by her desire to move back to Lafayette. The record, however, does not support this assertion. Victim stated that she had not reported these incidents with Tochell because she had initially believed that they were accidental, told herself she was overreacting, and assumed Tochell was “probably not even trying to do anything.” Tr. Vol. II p. 141. Victim had not disclosed Tochell's actions until Witness had asked Victim “if anything that shouldn't be happening between her and [Tochell] was going on.” Tr. Vol. II p. 47. Moreover, leading up to this conversation, Victim and Witness had been discussing a potential scholarship that Victim could have received to attend a high school in Michigan City, further refuting Tochell's claim that Victim had merely been looking for a way to move back to Lafayette. Both Victim and Witness testified at trial, and Tochell was given the opportunity, and did, cross-examine both. Any question as to Victim's motive for reporting Tochell to law enforcement was for the jury to resolve, which ultimately found Victim to be a credible witness.

[12] Tochell also points to alleged discrepancies between Victim's forensic interview and her trial testimony. Tochell specifically points to Victim's statement in her forensic interview that she had first become uncomfortable with Tochell when he had rubbed her shoulders, not when he massaged her thigh with a massage gun. Tochell also claims that Victim testified at trial about an additional incident that she had not previously disclosed to the forensic investigator. However, “[t]he fact that a witness gives trial testimony that contradicts earlier pre-trial statements does not necessarily render the trial testimony incredibly dubious.” Murray v. State, 761 N.E.2d 406, 409 (Ind. 2002). Moreover, Victim acknowledged the alleged discrepancies during her testimony, admitting that she may not have disclosed everything to the forensic investigator because she had been “very tired” during her forensic interview because she had been “still trying to get used to the [ ] women's shelter” that she had been living in since leaving Michigan City, and she had “just wanted to get everything done.” Tr. Vol. II pp. 182, 185. Victim also stated that she had suppressed what had happened and had “tried to pretend it didn't happen ․ because for [her,] this was all embarrassing.” Tr. Vol. II p. 187. These explanations were not so incredibly dubious or inherently improbable that no reasonable person could believe them. See Livers, 994 N.E.2d at 1256.

[13] Furthermore, Victim and the forensic investigator testified at trial, and Tochell had the opportunity to, and did, cross-examine both. The alleged discrepancies between Victim's trial testimony and forensic interview were “put squarely before the jury,” which, again, ultimately found Victim to be credible. Edwards v. State, 753 N.E.2d 618, 623 (Ind. 2001). Based on the record before us, we cannot say that Victim's testimony was inherently contradictory, equivocal, or the result of coercion. Therefore, the incredible dubiosity rule does not apply. See Livers, 994 N.E.2d at 1256 (providing that the incredible dubiosity rule does not apply to conflicts between a witness's multiple statements).²

[14] Victim's testimony detailed multiple instances of Tochell “fondling or touching” her “with intent to arouse or to satisfy” his or her “sexual desires.” Ind. Code § 35-42-4-3(b). Victim's testimony is sufficient to sustain Tochell's convictions for Level 4 felony child molesting. See Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012) (“The testimony of a sole child witness is sufficient to sustain a conviction for molestation.”). Tochell's argument amounts to nothing more than a request to reweigh the evidence, which we will not do. See Griffith, 59 N.E.3d at 958.

II. Tochell's Sentence is not Inappropriate

[15] Tochell argues that his aggregate eighteen-year sentence is inappropriate given the nature of his offenses and his character. Indiana Appellate Rule 7(B) provides that “[t]he 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.” In analyzing such claims, we “concentrate less on comparing the facts of [the case at issue] to others, whether real or hypothetical, and more on focusing on the nature, extent, and depravity of the offense for which the defendant is being sentenced, and what it reveals about the defendant's character.” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008) (internal quotation omitted), trans. denied. The defendant bears the burden of persuading us that his sentence is inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).

[16] “A person who commits a Level 4 felony shall be imprisoned for a fixed term of between two (2) and twelve (12) years, with the advisory sentence being six (6) years.” Ind. Code § 35-50-2-5.5. The trial court imposed six-year sentences for each of Tochell's four Level 4 felony child molesting convictions, which is the advisory. In addition, while the trial court ordered Counts I and II to be served consecutively, it ordered Counts III and IV to be served consecutively to Count I but concurrently to each other, for a total of six years executed for these two counts. The trial court also directed Tochell's sentence for Counts III and IV to be divided between LaPorte County Community Corrections and GPS monitoring.

[17] “The nature of the offense is found in the details and circumstances surrounding the offense and the defendant's participation therein.” Woodcock v. State, 163 N.E.3d 863, 878 (Ind. Ct. App. 2021), trans. denied. Tochell “concedes that the nature of the offense is child molesting and child molesting is serious.” Appellant's Br. p. 31. Nonetheless, to minimize the seriousness of his offenses, Tochell argues that there was only one victim and that he did not engage in sexual intercourse with Victim, injure or use a weapon on her, or show her pornography. This argument, however, ignores the fact that state law already contemplates greater sentences for those more severe crimes. See, e.g., Ind. Code § 35-42-4-3(a) (outlining the differences between Level 1 and Level 3 felony child molesting if “sexual intercourse or other sexual conduct” occurs); Ind. Code § 35-42-4-3(b) (providing that the instant offense would become a Level 2, instead of Level 4, felony if the defendant had threatened or used a deadly weapon or force or provided the victim with a controlled substance). The mere fact that Tochell did not engage Victim in sexual intercourse, molest others, or engage in a type of molestation that our General Assembly has seen fit to punish more severely does not require a lesser sentence. See Neale v. State, 826 N.E.2d 635, 638 (Ind. 2005) (“[T]he absence of physical harm is not an automatic mitigating circumstance such that it would require a lesser sentence than would otherwise be imposed.”). The nature of Tochell's offenses does not warrant a sentence reduction.

[18] As for Tochell's character, “[t]he character of the offender portion of the Rule 7(B) standard refers to general sentencing considerations and relevant aggravating and mitigating factors and permits a broader consideration of the defendant's character[.] A defendant's life and conduct are illustrative of his or her character.” Woodcock, 163 N.E.3d at 878 (citations and quotations omitted). Tochell points to the fact that he had no adult criminal history prior to committing the present offenses and that he was categorized as a low risk to reoffend in his presentence investigation report. Though this may be true, the trial court determined that these mitigators were outweighed by the fact that Tochell “was in a position of trust and [had] care, custody, or control of” Victim when he had molested her, and “[t]he harm suffered by [Victim] was significant and greater than the elements necessary to prove the offense.” Appellant's App. Vol. II p. 191. Tochell repeatedly and inappropriately touched Victim, who was at least two decades younger than him, and has failed to take responsibility or show remorse for his actions, instead maintaining that his convictions are based on “false accusations.” Appellant's App. Vol. II p. 177. We are unpersuaded that Tochell's character justifies a lesser sentence.

[19] As evidence of his good character, Tochell offers statements from his friends and family that show that he is a “good father, son, brother, cousin and friend[,]” generous with his time and money, has a strong work ethic and stable employment, and did not violate the conditions of his pre-trial release. Appellant's Br. p. 33. The trial court took this information under advisement, however, and ultimately determined that “the aggravating factors outweigh the mitigating factors.” Tr. Vol. III p. 80. We agree. See Chastain v. State, 165 N.E.3d 589, 601 (Ind. Ct. App. 2021) (finding sentence appropriate even when defendant had no adult criminal record, family support, gainful employment, complied with terms of pre-trial release, and was a low risk to reoffend), trans. denied. Tochell has failed to convince us that his sentence is inappropriate in light of the nature of his offenses and his character.

[20] The judgment of the trial court is affirmed.

FOOTNOTES

1.   As the State observes, Tochell weaves sentencing arguments, i.e., arguments relating to the trial court's finding of aggravating and mitigating factors, into his appropriateness challenge that typically fall under an abuse of discretion standard. However, because Tochell explicitly states in his reply brief that he is not raising an abuse-of-discretion argument on appeal, we will only address his claim that his sentence is inappropriate in light of the nature of his offenses and his character.

2.   Tochell also contends that investigators should have conducted forensic interviews of other children, obtained a search warrant for Tochell's home, examined cell phones, and interviewed staff at Victim's school. However, because Tochell's incredible dubiosity claim fails on other grounds, we need not reach his claims about the lack of circumstantial evidence.

Bradford, Judge.

Bailey, J., and Altice, J., concur.