James R. Applegate, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Memorandum Decision by Judge Bailey

Case Summary

[1] A jury found James R. Applegate guilty of child molesting, as a Level 1 felony, and child molesting, as a Level 4 felony. The trial court imposed an aggregate sentence of forty-five years. On appeal, Applegate argues that his convictions are not supported by sufficient evidence and violate substantive double jeopardy principles. He also argues that his sentence is inappropriate in light of the nature of the offenses and his character. We affirm.

Facts and Procedural History

[2] M.N. was born in 2008 to Nikki Ruman. In 2010, Ruman married Russell Nichols, who became M.N.’s legal father. Ruman and Nichols divorced in 2017 and shared legal and physical custody of M.N. In 2018, Nichols married his current wife, Maria.

[3] M.N. met Applegate's daughter, L.A., when they were three or four years old, and the girls became best friends. Ruman met Applegate at L.A.’s tenth birthday party, and they began dating. L.A. and Applegate lived with his parents in a 1,000-square-foot ranch home in Fort Wayne, and Ruman lived in a nearby apartment complex. M.N. had visitation with Ruman every other weekend, and M.N. had sleepovers with L.A. at Applegate's home on most of those weekends. Ruman did not spend time at Applegate's home because his mother “didn't want [her] around at all.” Tr. Vol. 2 at 219.

[4] In the summer of 2020, when M.N. was twelve years old, she spent the weekend with L.A. at Applegate's home. On Saturday night, the girls watched a movie in the living room until 9:00 or 10:00 and then played video games on their iPads in L.A.’s room for “[a] few hours.” Id. at 145. L.A. fell asleep on her bed, and M.N. fell asleep on top of a sleeping bag on the floor. At some point, M.N., who was lying on her back, awoke to feel something on her chest. Applegate, who was naked, was straddling M.N.’s legs and touching her breasts with his hands under her shirt. He removed M.N.’s shorts and underwear and told her “to be quiet.” Id. at 150. M.N. “tried to move,” so he grabbed one of her wrists, put his other hand over her mouth, and told her to be quiet so she did not “wake up L.A.” Id.

[5] Applegate inserted his penis inside M.N.’s vagina. M.N. “was scared, and it hurt.” Id. at 151. He started “moving back and forth, and he started going harder, and it hurt more.” Id. Applegate made “quiet” “moaning” noises. Id. at 152. Eventually, Applegate “got up and․ told [M.N.] not to say anything or [she] would be in trouble, and then he left.” Id. M.N. put her shorts and underwear back on and “started crying.” Id. She went to the bathroom and “went pee and then when [she] wiped there was a lot of blood” on the toilet tissue. Id. at 153. “[A]t first [she] had thought that [she] started [her] period, but then [she] realized that it probably wasn't that because [she] had gotten off a couple weeks before.” Id. M.N. returned to the bedroom, where L.A. was still sleeping, and went back to sleep.

[6] M.N. awoke between 11:00 and noon on Sunday and “got nervous” because she realized that she would have to see Applegate when she got out of L.A.’s room. Id. at 154. She stayed in the room “for a while” and then “decided that it was time to go home, so [she] asked if [she] could go home” to Ruman's apartment. Id. at 155. Before she left, she used the bathroom and saw “dried blood in [her] underwear.” Id. M.N. did not “tell anyone what had happened the night before[.]” Id.

[7] M.N.’s legs were sore “[f]or a couple days[,]” and “it hurt to pee” for “[a]bout a week.” Id. at 156. After that sleepover, “there would be a few times where [Ruman] would come into [M.N.’s] room in [Ruman's] apartment and tell [M.N.] that [Applegate] had something to tell [her], and then he would come in and tell [her] not to say anything otherwise [she] would get in trouble.” Id. at 158. M.N. did not tell anyone what had happened because she “was scared of what would happen if [she] did say something.” Id.

[8] In January 2022, M.N. attempted to commit suicide at Nichols’ house by ingesting her prescribed antidepressants and sleeping pills. She wrote a suicide note, which she intended for Nichols and Maria to find, that read in pertinent part, “I want to say that [J]ames, I hate you so much because you raped me and you suck.” Ex. Vol. at 4. The next morning, M.N. awoke and started vomiting. Nichols took her to the emergency room. Later that day, Nichols’ stepdaughter discovered the suicide note. M.N. was taken to Parkview Behavioral Health, where she remained for several days. During a counseling session there, which Nichols attended, M.N.’s suicide note was discussed. Later, M.N. went to the Dr. Bill Lewis Center for Children for a forensic interview, during which she told the interviewer what Applegate had done to her. Shortly thereafter, M.N. began living with Nichols and Maria full time.

[9] In February 2023, the State charged Applegate with Level 1 felony child molesting under Indiana Code Section 35-42-4-3(a)(1) (for knowingly or intentionally performing or submitting to sexual intercourse with M.N., who was then under fourteen years of age) and Level 4 felony child molesting under Indiana Code Section 35-42-4-3(b) (for performing or submitting to fondling or touching of M.N., who was then under fourteen years of age, with the intent of arousing or satisfying either her or his sexual desires). Applegate repeatedly told his friend Nathan Daniel that the molestation could not have happened because M.N. had never been at his house. At some point, Applegate asked Daniel to search their text message history to see if Daniel “had any of the dates of when either [Applegate or L.A.] had Covid.” Tr. Vol. 3 at 42. During the search, Daniel found a text message from Applegate indicating that M.N. had spent the night at his house in June 2020. Ex. Vol. at 7. Daniel gave this message to the investigating detective.

[10] A jury trial was held in August 2025. M.N., L.A., Ruman, Nichols, Maria, the forensic interviewer, and Daniel, among others, testified for the State. Applegate's mother testified for the defense. The jury found Applegate guilty as charged. At the sentencing hearing, the trial court entered judgment of conviction on both counts and imposed sentence on Applegate as follows:

Your attorney has asked that I consider mitigating circumstances on your behalf. You've got no criminal history, and that is a mitigating circumstance, and I accept that as such; and I appreciate the State's concession on that. Candidly I don't weight it terribly heavily because you come into this Court then with a Level 1 Felony where you are looking at a maximum prison term of forty (40) years. He's also asked that I consider your age, which I'm not exactly sure what the issue is with your age. You're thirty-eight (38) years old, you're clearly old enough to know better. Um, you're clearly old enough to know that sex with children is illegal, immoral, improper, and heinous. So, perhaps ․ the age reference is to the fact that you will be very very old when you get out of the Department of Correction. But I decline to find that to be a mitigating circumstance. I do find as aggravating circumstances ․ just the nature and circumstances of the crimes that you've committed, and the extraordinary impact that you've had on this child. I hope she recovers, I hope she continues to get the help that she needs for her anxiety, and depression, and the suicidal attempts that she's made. For what, Mr. Applegate; for what did she go through all of this for your own personal gratification. That nature and circumstances of the crime, the violation of the position of trust that you were in with her, um, she looked up to you, um, she's lost her mother now, and her best friend. And I read all the letters of support that were submitted to the Court, Mr. Applegate. You've got a lot of people out there that love you and can't imagine how you could possibly be convicted of this offense, and what a good father you were to L.A. I have to take that at face value.․

That being said, Mr. Applegate, it's therefore ordered that the Defendant be committed to the Indiana Department of Correction for classification and confinement for a period of thirty-five (35) years on Count I; a period of ten (10) years on Count II; as they are distinct crimes of violence[1] the Court ordered those to be served consecutively[.]

Tr. Vol. 3 at 214-16. Applegate now appeals his convictions and his sentence.

Discussion and Decision

Issue One: Sufficiency of the Evidence

[11] Applegate challenges the sufficiency of the evidence supporting his convictions. When reviewing the sufficiency of the evidence to support a conviction, we must consider only the probative evidence and reasonable inferences supporting the conviction. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess witness credibility or reweigh the evidence. Id. We affirm the conviction unless “no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)). It is not necessary that the evidence overcome every reasonable hypothesis of innocence. Id. at 147. The evidence is sufficient if an inference may reasonably be drawn from it to support the conviction. Id.

[12] “A victim's testimony, even if uncorroborated, is ordinarily sufficient to sustain a conviction for child molesting.” Bowles v. State, 737 N.E.2d 1150, 1152 (Ind. 2000). “But the ‘incredible dubiosity rule’ allows our court to set aside a conviction when the factfinder relies on the testimony of a sole witness which is ‘so unbelievable, incredible, or improbable that no reasonable person could ever reach a guilty verdict based upon that evidence alone.’ ” Hutton v. State, 190 N.E.3d 413, 416 (Ind. Ct. App. 2022) (quoting Smith v. State, 34 N.E.3d 1211, 1221 (Ind. 2015)), trans. denied. “The rule applies only 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. (alterations in Hutton) (quoting Moore v. State, 27 N.E.3d 749, 756 (Ind. 2015)).

[13] Applegate invokes the incredible dubiosity rule and observes that “[w]hile other witnesses were called by the State to testify, only the testimony of M.N. went to prove or establish the elements of the crimes charged.” Appellant's Br. at 17. He does not contend that M.N.’s testimony regarding the molestations was inherently contradictory, equivocal, or the result of coercion. He does, however, assert that M.N.’s testimony “is inherently improbable[,]” based in part on “the size of the home and the number of occupants and their movements within[.]” Id. at 18. He contends that “no evidence was presented that James moved out of his bedroom and into L.A.’s room that night.” Id. Obviously, M.N.’s testimony established that he did, and the evidence suggesting that L.A. and his parents did not hear or see him leave his bedroom and enter and exit L.A.’s bedroom is not conclusive proof that he did not do so.

[14] Applegate further asserts that “M.N.’s version of what happened inside L.A.’s bedroom is even more improbable.․ According to M.N., [the molestations] occurred without waking L.A. up, even though she was only a few feet away.” Id. at 19. But both M.N. and Ruman testified that L.A. is a “deep” or “heavy” sleeper. Tr. Vol. 2 at 170, 241. The jury was not obligated to believe L.A.’s testimony that she “had issues sleeping” and would have been awakened by someone “talking in a normal tone of voice” or by Applegate's allegedly squeaky bedroom door. Id. at 187, 199. See Whitt v. State, 91 N.E.3d 1082, 1092 (Ind. Ct. App. 2018) (“[I]t is for the trier of fact to resolve conflicts in the evidence and to decide which witnesses to believe or disbelieve.”), trans. denied.

[15] Finally, Applegate argues that M.N.’s failure to disclose the molestations or act sufficiently traumatized for approximately a year and a half is improbable. But this argument disregards that Applegate told M.N. immediately after the molestations not to tell anyone or she would “be in trouble,” Tr. Vol. 2 at 152, and he repeated this warning several times thereafter. It is not improbable that a twelve-year-old would be afraid to disobey the commands of her mother's boyfriend and would put on a brave face to avoid having to reveal what had happened. Because Applegate has failed to satisfy the second prong of the incredible dubiosity rule, his sufficiency argument fails.²

Issue Two: Double Jeopardy

[16] Next, Applegate contends that his Level 1 felony and Level 4 felony child molesting convictions violate substantive double jeopardy principles. Recently, in Rafiq v. State, 271 N.E.3d 1178 (Ind. Ct. App. 2025), trans. denied, which involved offenses identical to those in the instant case and substantially similar facts,³ another panel of this Court concluded that the defendant's convictions did not constitute double jeopardy. See id. at 1183-84 (“Each act was directed at a completely different body part and constituted a distinct violation of the child molesting statute [Indiana Code Section 35-42-4-3], pursuant to definitions that were not included in one another[.]”). We see no reason to reach a different conclusion here.⁴ Accordingly, we affirm both of Applegate's convictions.

Issue Three: Appropriateness of Sentence

[17] Finally, Applegate asks us to reduce his sentence pursuant to Indiana Appellate Rule 7(B), which provides that this “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.” Our “role under Rule 7(B) is to ‘leaven the outliers,’ and we reserve our 7(B) authority for exceptional cases.” Livingston v. State, 113 N.E.3d 611, 613 (Ind. 2018) (per curiam) (quoting Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)).

[18] Indiana's flexible sentencing scheme allows trial courts to tailor a sentence appropriate to the circumstances presented, and “the trial court's judgment should receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we regard a sentence as inappropriate at the end of the day 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.” Id. at 1224. The question 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). Deference to the trial court “prevail[s] 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). “In the end, ‘the length of the aggregate sentence and how it is to be served are the issues that matter.’ ” Wright v. State, 168 N.E.3d 244, 268 (Ind. 2021) (quoting Cardwell, 895 N.E.2d at 1224). It is Applegate's burden to establish that his sentence has met the inappropriateness standard of review. Konkle v. State, 253 N.E.3d 1068, 1092 (Ind. 2025).

[19] In determining whether a sentence is inappropriate, the advisory sentence “is the starting point the Legislature has selected as an appropriate sentence for the crime committed.” Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006). When Applegate committed his offenses, the advisory sentence for Level 1 felony child molesting was thirty years, with a range between twenty and forty years. I.C. § 35-50-2-4(b) (2020).⁵ The advisory sentence for a Level 4 felony is six years, with a range between two and twelve years. I.C. § 35-50-2-5.5. Applegate acknowledges that consecutive sentences are not prohibited in this situation and that a court may suspend only that part of a sentence for a Level 1 felony conviction that is in excess of the minimum sentence per Indiana Code Section 35-50-2-2.2(c).

[20] Regarding the nature of the offenses, Applegate concedes that the offenses “are despicable[,]” but he argues that they “occurred simultaneously and were part of one event involving one victim which was of a relatively short duration. There was no physical violence or threat thereof, nor was there any additional brutality beyond the sexual acts themselves.” Appellant's Br. at 29. Notwithstanding their “relatively short duration,” the molestations have resulted in severe, long-lasting consequences for M.N.

[21] M.N. attempted to commit suicide by overdosing on antidepressants and sleeping pills, and she testified at trial that, since the summer of 2020, she has “cut [her] thighs and [her] wrists” with a razor or scissors when she thinks about what Applegate did to her. Tr. Vol. 2 at 165. M.N.’s victim impact statement, which was read aloud at the sentencing hearing, states that Applegate's crimes have “had physical, emotional, and real world effects on [her] life.” Tr. Vol. 3 at 208. These include

flashbacks about the event which result[ ] in panic attack[s] causing shortness of breath, crying, and shaking. Although it is a short instant, it often ․ negatively affects the rest of my day. These have happened at school, causing me to leave school early multiple times. They have happened at work, and other times impacted my daily productivity. While I hope and pray ․ that these flashbacks will eventually go away, I fear that they will impact the rest of my life to some extent.

Id.

[22] At the sentencing hearing, Nichols testified that he had “taken M.N. to countless counseling appointments, and seen the different medicines she's had to take to be able to deal with this traumatic event in her life.․ I am there when she has flashbacks and her day is ruined because of the anxiety and panic attacks they create.” Tr. Vol. 3 at 210. His wife Maria stated, “Unfortunately those triggers still exist, and they affect [M.N.], they ruin her day, and that whole dark cloud just come upon her with all the depression, all those feelings, all the disgusting feelings that she feels.” Id. at 212. Quite simply, Applegate's devastating violation of his position of trust with M.N. does not merit a sentence reduction.

[23] As for his character, Applegate notes that he has no juvenile history or prior adult convictions and “was deemed to be a low risk to reoffend” per the Indiana Risk Assessment System. Appellant's Br. at 29. He also notes that he helped raise his daughter, who “wrote a letter in support of her father for the trial court to consider at sentencing.” Id. at 30. Be all that as it may, Applegate snuck into his daughter's bedroom in the middle of the night, fondled and had sexual intercourse with his girlfriend's twelve-year-old daughter, and warned his victim “not to say anything or [she would] be in trouble[.]” Tr. Vol. 2 at 152. Applegate repeated this warning several times, and M.N. “didn't want to say anything because of the consequences.” Id. at 180-81. Those facts reflect poorly on Applegate's character.

[24] Based on the foregoing, we conclude that Applegate has failed to establish that his forty-five-year executed sentence is inappropriate based on the nature of the offenses and his character. Accordingly, we affirm it.

Conclusion

[25] Applegate's convictions are supported by sufficient evidence and do not violate double jeopardy, and Applegate has failed to establish that his sentence is inappropriate. Therefore, we affirm.

[26] Affirmed.

[27] I concur in full in Judge Bailey's opinion. I write separately to caution against an overly broad reading of this Court's double-jeopardy analysis in Rafiq v. State, 271 N.E.3d 1178 (Ind. Ct. App. 2025), trans. denied. There, we affirmed convictions for Level 1 felony child molesting and Level 4 felony child molesting where the victim awoke to find the defendant touching her left breast with one of his hands and penetrating her vagina with his other hand. In reaching that holding, we observed that “[e]ach act was directed at a completely different body part and constituted a distinct violation of the child molesting statute, pursuant to definitions that were not included in one another[.]” Id. at 1183-84. Our use of “completely different body part” should not be read to mean that there can be a separate Level 4 felony conviction for each different body part that the defendant fondles or touches during a single episode of child molesting.

[28] We have made clear that under the continuous-crime doctrine—which our Supreme Court incorporated into the double-jeopardy tests announced in Wadle v. State, 151 N.E.3d 227 (Ind. 2020), and Powell v. State, 151 N.E.3d 256 (Ind. 2020)—multiple but contemporaneous acts of fondling or touching can support only one conviction for Level 4 felony child molesting. See, e.g., Flores v. State, 114 N.E.3d 522, 523-24 (Ind. Ct. App. 2018) (holding that there could be only one fondling/touching conviction where the defendant, during a single encounter, rubbed his penis on the victim's buttocks and touched her vagina over her underwear); Chavez v. State, 988 N.E.2d 1226, 1228-30 (Ind. Ct. App. 2013) (holding that there could be only two fondling/touching convictions where the defendant, during one encounter, kissed the victim on her mouth, rubbed her nipple, and touched her buttocks, and, during a subsequent encounter, kissed the victim on her mouth and placed his hand on her vagina), trans. denied.

[29] With that observation, I concur.

FOOTNOTES

1.   See Ind. Code § 35-50-1-2(a) (defining child molesting as a crime of violence, for which a defendant may be sentenced to consecutive terms of imprisonment without the limits imposed by subsection (d) of the statute for convictions arising out of an episode of criminal conduct).

2.   As far as circumstantial evidence is concerned, Daniel's text message from Applegate is evidence that M.N. spent the night at Applegate's home on at least one occasion and thus he would have had an opportunity to molest her.

3.   Rafiq's Level 1 felony conviction was based on his digital penetration of the victim's vagina, and his Level 4 felony conviction was based on his simultaneous fondling of the victim's breasts. Rafiq, 271 N.E.3d at 1183.

4.   The State asserts that Applegate's Level 4 felony conviction was based on his fondling of M.N.’s breasts on other occasions in Ruman's apartment. Appellee's Br. at 23. The prosecutor's closing argument indicates otherwise. See Tr. Vol. 3 at 169 (“You heard the Defendant touched twelve (12) year old M.N.’s breasts with his hand, and he touched her vagina with his hand. Ladies and gentlemen, there is no other reason for an adult male to touch a twelve (12) year old child in that manner but to arouse his sexual desires; and what shows he was arousing his sexual desires is after he did that he forced her to have sexual intercourse with him.”).

5.   Effective July 1, 2023, the maximum sentence for the Level 1 felony that Applegate committed was increased to fifty years. I.C. § 35-50-2-4(c)(1).

Bailey, Judge.

Judge Scheele concurs. Judge Vaidik concurs with separate opinion. Scheele, J., concurs. Vaidik, J., concurs with separate opinion.