Matthew S. Reed v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                                 FILED
this Memorandum Decision shall not be                                             Oct 28 2020, 12:29 pm
regarded as precedent or cited before any
court except for the purpose of establishing                                           CLERK
                                                                                   Indiana Supreme Court
                                                                                      Court of Appeals
the defense of res judicata, collateral                                                 and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Elizabeth A. Deckard                                     Curtis T. Hill, Jr.
Columbia City, Indiana                                   Attorney General of Indiana
                                                         Tina L. Mann
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Matthew S. Reed,                                         October 28, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-354
        v.                                               Appeal from the Whitley Circuit
                                                         Court
State of Indiana,                                        The Honorable Matthew J.
Appellee-Plaintiff.                                      Rentschler, Judge
                                                         Trial Court Cause No.
                                                         92C01-1812-F1-160



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-354 | October 28, 2020            Page 1 of 20
                                               Case Summary
[1]   Matthew Reed appeals his convictions for ten counts of child molesting, Level 1

      felonies. We affirm.


                                                       Issues
[2]   Reed raises three issues, which we consolidate and restate as:


                   I.       Whether the trial court properly admitted certain
                            evidence.


                   II.      Whether the evidence is sufficient to sustain Reed’s
                            convictions for Counts VI through X.


                                                        Facts
[3]   B.R. was born in early August 2009. B.R. was removed from her mother’s care

      and, in approximately 2015, B.R. started living in South Whitley with her

      father, Reed; her step-mother, Nicole; and Reed’s elderly grandmother.


[4]   In the fall of 2016, Jessica Herb, the school counselor at B.R.’s elementary

      school, began working with B.R. regarding B.R.’s behavioral issues. 1 In August

      2018, nine-year-old B.R. was in third grade. On August 30, 2018, Herb and

      B.R. ate lunch in Herb’s office, and B.R. was “doodling and doing math” on

      Herb’s whiteboard. Tr. Vol. II p. 246. B.R. said, “Mrs. Herb, can I tell you




      1
       The behavioral issues included B.R. stealing food, losing control of her emotions, animalistic behaviors,
      and inappropriate physical boundary issues.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-354 | October 28, 2020                  Page 2 of 20
      something, but you might think that it’s a little gross.”

Id. Herb responded, “sure,

you know, okay.”

Id. B.R. then said,

“I can’t tell you but I’m going to

      draw it.”

Id. B.R. drew a

picture on the whiteboard of a person on hands and

      knees with a penis touching the person’s butt area. B.R. said, “that’s my butt,”

      and Herb asked what the penis was.

Id. at 248.

B.R. said, “it’s a bad word,”

      but volunteered to write it.

Id. at 249.

B.R. then drew an arrow to the penis

      and wrote, “di**.”

Id. Herb asked, “Who’s

private part is that?”, and B.R.

      responded, “My dad.”

Id. B.R. said that

the abuse happened in her house and

      in her room sometimes. B.R. said the abuse hurt but “not as much as here,”

      and motioned to her vaginal area.

Id. B.R. was uncomfortable

and erased the

      whiteboard quickly. After B.R. left the room, Herb recreated B.R.’s drawing.

      Herb immediately contacted the Department of Child Services (“DCS”) and

      law enforcement.


[5]   The same day, Detective Lorrie Freiburger, a detective with the Fort Wayne

      Police Department and forensic interviewer with the Dr. Bill Lewis Center for

      Children, interviewed B.R. B.R. told Detective Freiburger that Reed does

      “gross stuff” to B.R.; Reed puts his “di**” in her “pee-pee” and butt, and “it

      really hurts”; “water” comes out of Reed’s penis; Reed would lick his finger,

      put it in B.R.’s vagina, and put his finger back in his mouth; Reed put his penis

      in B.R.’s mouth, and Reed’s hair got in B.R.’s mouth; when Reed’s penis was

      in B.R.’s mouth, Reed’s hands touched B.R.’s butt and vagina; and Reed put

      his mouth on B.R.’s “pee-pee.” State’s Exhibit 5. Reed also showed B.R.

      pornographic videos on his cell phone of a girl putting a penis in her mouth.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-354 | October 28, 2020   Page 3 of 20
[6]   B.R. relayed to Detective Freiburger that the abuse happened in B.R.’s

      bedroom and Reed’s bedroom and that Reed also put his penis in B.R.’s mouth

      on the stairs leading to her bedroom. Further, Reed almost broke B.R.’s bed

      during the abuse, so B.R. asked Reed to stay off her bed. Reed told B.R. not to

      tell anyone about the abuse. B.R. said that she could not recall the first time the

      abuse happened. B.R. said the abuse happened when she was nine years old

      and in the third grade, but the abuse also happened when she was “littler.”

Id. B.R. later said

that the abuse last happened when she was nine years old; that

      the abuse did not happen when she was eight years old; but it happened when

      she was younger.


[7]   Leslie Cook, a sexual assault nurse examiner at the Fort Wayne Sexual Assault

      Treatment Center in Fort Wayne, conducted a sexual assault examination of

      B.R. B.R. reported to Nurse Cook the following:


              “About my dad? He said it was a secret. We have to keep it
              away from her (clarify: “mommy”) because we’ll get in trouble.
              I’m scared because there’s some redness (points to [female sex
              organ]) & it really hurts. Daddy used his thing—di**—and got it
              in my pee-pee and messed around with it, with his hand too—
              messing around with it (patient demonstrates by moving her
              fingers in a scratching like motion). And he got it in my butt—
              yuck! (Clarifies “his di**”) it felt like there was skin coming off
              the sides of my butt. He put his di** in my mouth too. I got a
              hairball & puked it out on the steps. And it was hair from my
              dad’s di**.” It was black and my dad’s hair is black. Are we
              done I’m tired. . . Will you tell my dad to stop this because I
              really don’t like it, I really don’t.



      Court of Appeals of Indiana | Memorandum Decision 20A-CR-354 | October 28, 2020   Page 4 of 20
      State’s Exhibit 3; Tr. Vol. III pp. 50-51. Nurse Cook found no injuries on B.R.

      during her examination.


[8]   The State charged Reed with ten counts of child molesting, all Level 1 felonies,

      as follows:


                I.     Child molesting by sexual intercourse for Reed’s actions
                       between July 1, 2018, and August 30, 2018.


               II.     Child molesting by anal intercourse for Reed’s actions
                       between July 1, 2018, and August 30, 2018.


              III.     Child molesting for acts involving B.R.’s mouth and
                       Reed’s penis for Reed’s actions between July 1, 2018, and
                       August 30, 2018.


              IV.      Child molesting for the penetration of B.R.’s sex organ by
                       an object between July 1, 2018, and August 30, 2018.


               V.      Child molesting for acts involving Reed’s mouth and
                       B.R.’s sex organ between July 1, 2018, and August 30,
                       2018.


              VI.      Child molesting by sexual intercourse for Reed’s actions
                       between October 1, 2015, and June 30, 2018.


             VII.      Child molesting by anal intercourse for Reed’s actions
                       between October 1, 2015, and June 30, 2018.


            VIII.      Child molesting for acts involving B.R.’s mouth and
                       Reed’s penis for Reed’s actions between October 1, 2015,
                       and June 30, 2018.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-354 | October 28, 2020   Page 5 of 20
                 IX.      Child molesting for the penetration of B.R.’s sex organ by
                          an object between October 1, 2015, and June 30, 2018.


                  X.      Child molesting for acts involving Reed’s mouth and
                          B.R.’s sex organ between October 1, 2015, and June 30,
                          2018.


[9]   In June 2019, the State filed a notice of intent to offer protected person

      testimony pursuant to Indiana Code Section 35-37-4-6 2 during the trial,



      2
          Indiana Code Section 35-37-4-6 provides in part:
                   (a)    This section applies to a criminal action involving the following offenses where the
                          victim is a protected person under subsection (c)(1) or (c)(2):
                          (1) Sex crimes (IC 35-42-4).
                                                               *****
                   (c)    As used in this section, “protected person” means:
                          (1) a child who is less than fourteen (14) years of age;
                                                               *****
                   (d)    A statement or videotape that:
                          (1) is made by a person who at the time of trial is a protected person;
                          (2) concerns an act that is a material element of an offense listed in subsection (a) or
                          (b) that was allegedly committed against the person; and
                          (3) is not otherwise admissible in evidence;
                          is admissible in evidence in a criminal action for an offense listed in subsection (a) or
                          (b) if the requirements of subsection (e) are met.
                   (e)    A statement or videotape described in subsection (d) is admissible in evidence in a
                          criminal action listed in subsection (a) or (b) if, after notice to the defendant of a
                          hearing and of the defendant’s right to be present, all of the following conditions are
                          met:
                          (1) The court finds, in a hearing:
                                   (A) conducted outside the presence of the jury; and
                                   (B) attended by the protected person in person or by using closed circuit
                                   television testimony as described in section 8(f) and 8(g) of this chapter;
                          that the time, content, and circumstances of the statement or videotape provide
                          sufficient indications of reliability.
                          (2) The protected person:



      Court of Appeals of Indiana | Memorandum Decision 20A-CR-354 | October 28, 2020                        Page 6 of 20
including a recording of B.R.’s forensic interview; B.R.’s statements at the Fort

Wayne Sexual Assault Treatment Center; and B.R.’s statements to Herb. After

a hearing, at which B.R. and several others testified, the trial court found that

“B.R. testifying in the physical presence of [Reed] would cause her to suffer

emotional distress such that she would be unable to effectively communicate.”



                          (A) testifies at the trial; or
                          (B) is found by the court to be unavailable as a witness for one (1) of the
                          following reasons:
                                      (i) From the testimony of a psychiatrist, physician, or psychologist,
                                      and other evidence, if any, the court finds that the protected
                                      person’s testifying in the physical presence of the defendant will
                                      cause the protected person to suffer serious emotional distress such
                                      that the protected person cannot reasonably communicate.
                                      (ii) The protected person cannot participate in the trial for medical
                                      reasons.
                                      (iii) The court has determined that the protected person is
                                      incapable of understanding the nature and obligation of an oath.
          (f)    If a protected person is unavailable to testify at the trial for a reason listed in
                 subsection (e)(2)(B), a statement or videotape may be admitted in evidence under
                 this section only if the protected person was available for cross-examination:
                 (1) at the hearing described in subsection (e)(1); or
                 (2) when the statement or videotape was made.
                                                      *****
          (h)    If a statement or videotape is admitted in evidence under this section, the court shall
                 instruct the jury that it is for the jury to determine the weight and credit to be given
                 the statement or videotape and that, in making that determination, the jury shall
                 consider the following:
                 (1) The mental and physical age of the person making the statement or videotape.
                 (2) The nature of the statement or videotape.
                 (3) The circumstances under which the statement or videotape was made.
                 (4) Other relevant factors.
          (i)    If a statement or videotape described in subsection (d) is admitted into evidence
                 under this section, a defendant may introduce a:
                 (1) transcript; or
                 (2) videotape;
                 of the hearing held under subsection (e)(1) into evidence at trial.



Court of Appeals of Indiana | Memorandum Decision 20A-CR-354 | October 28, 2020                       Page 7 of 20
       Appellant’s App. Vol. II p. 62. The trial court concluded that the requirements

       of Indiana Code Section 35-37-4-6 were met and that the State was permitted to

       “present evidence of the child’s statements to the school counselor, the sexual

       assault nurse examiner, and the videotape of B.R.’s forensic interview to the

       jury in the trial of this matter.”

Id. at 63. [10]

  At Reed’s December 2019 jury trial, B.R. did not testify. Herb, Detective

       Freiburger, and Nurse Cook testified as to B.R.’s statements. The video of

       B.R.’s forensic interview and the video of Reed’s attorney cross-examining B.R.

       at the protected person hearing were played for the jury. Reed objected to

       portions of Detective Freiburger’s testimony as “impermissible vouching” and

       objected that Detective Freiburger’s testimony improperly commented on

       Reed’s cross-examination of B.R. at the protected person hearing. Tr. Vol. III.

       99. The trial court overruled the objections. The State later sought to admit a

       photograph of anal lubricant found in a cardboard box beneath a bed in the

       downstairs bedroom of Reed’s house during the execution of a search warrant.

       Reed objected to the admission of the photograph, but the trial court overruled

       the objection.


[11]   The jury found Reed guilty of all ten counts, and the trial court sentenced Reed

       to an aggregate sentence of fifty years in the Indiana Department of Correction.

       Reed now appeals.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-354 | October 28, 2020   Page 8 of 20
                                                   Analysis
                                          I. Admission of Evidence

[12]   Reed challenges the admission of certain evidence during his trial. We review

       challenges to the admission of evidence for an abuse of the trial court’s

       discretion. Fansler v. State, 

100 N.E.3d 250

, 253 (Ind. 2018). In those instances,

       we will reverse only where the decision is clearly against the logic and effect of

       the facts and circumstances.

Id. A. Detective Freiburger’s

Alleged Vouching

[13]   Reed argues that Detective Freiburger’s testimony was inadmissible because she

       vouched for B.R.’s credibility. Vouching testimony is specifically prohibited

       under Indiana Evidence Rule 704(b), which states: “Witnesses may not testify

       to opinions concerning intent, guilt, or innocence in a criminal case; the truth or

       falsity of allegations; whether a witness has testified truthfully; or legal

       conclusions.” “Such vouching testimony is an invasion of the province of the

       jurors in determining the weight they should place upon a witness’s testimony.”

       Carter v. State, 

31 N.E.3d 17

, 29 (Ind. Ct. App. 2015), trans. denied. “It is

       essential that the trier of fact determine the credibility of the witnesses and the

       weight of the evidence.”

Id. [14]

  In Hoglund v. State, 

962 N.E.2d 1230

, 1231 (Ind. 2012), our Supreme Court

       addressed the issue of vouching and held that “testimony amounting to the

       equivalent that a witness believes the child is telling the truth is inconsistent

       with our rules of evidence.” The Court held a question that “necessarily


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-354 | October 28, 2020   Page 9 of 20
       requires the witness to pass judgment on [the child’s] allegations, or ‘story’ . . .

       invites direct vouching of the child witness’ allegations regardless of the child’s

       motives.” 

Hoglund, 962 N.E.2d at 1237-38

. The Court further held that “[n]o

       witness, whether lay or expert, is competent to testify that another witness is or

       is not telling the truth.”

Id. [15]

  Here, in the first exchange at issue, Detective Freiburger testified as follows:


               Q. Will children, in your experience as a forensic interviewer or
               your time with kids, will they ever say they don’t remember?


               A. Yes.


               Q. Okay. Is that a fairly [ ], common device?


               A. Right. [ ]


               Q. Is that a fairly common device?


               A. Yes.


               Q. Okay. Can you explain please?


               A. [ ] (affirmative answer). When I’m doing a forensic interview
               with a child and they start telling me I don’t remember and if I
               start hearing it two (2) or three (3) times, especially right in a
               row, my usual, my follow-up question to that would be, “Do you
               not remember or do you just not want to talk about it?” [ ]
               [W]hen kids tell you I don’t remember, that is one of the most
               common ways of saying I don’t want to talk about . . .
               something.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-354 | October 28, 2020   Page 10 of 20
       Tr. Vol. III p. 98.


[16]   Reed notes that the State presented this testimony “almost immediately after

       the jury watched Mr. Reed’s cross-examination of B.R. during the protected

       person hearing” and that B.R. frequently answered Reed’s cross-examination

       questions with “I don’t remember.” Appellant’s Br. p. 16. Reed claims that the

       “timing of the exchange bolsters B.R.’s credibility to the jury.”

Id. [17]

  We conclude that Detective Freiburger’s testimony did not constitute vouching

       as analyzed by Hoglund or violate Indiana Evidence Rule 704(b). Detective

       Freiburger did not mention B.R. during this particular testimony or make any

       statement or express any opinion regarding the truth or falsity of B.R.’s

       allegations. Rather, Detective Freiburger was merely commenting on general

       methods of questioning children. We have found that such generalized

       testimony does not constitute vouching. See 

Carter, 31 N.E.3d at 29

(holding

       that the forensic interviewer’s testimony did not constitute impermissible

       vouching where she did not express opinions on the victim’s credibility and her

       testimony was broad and generalized); see also Baumholser v. State, 

62 N.E.3d 411

(Ind. Ct. App. 2016) (holding that the forensic interviewer’s testimony that

       victims of child molesting often delay disclosure was “a statement about how

       victims of child molesting behave in general,” not improper vouching), trans.

       denied. The trial court properly admitted this testimony.


[18]   As for the timing of the testimony and the playing of B.R.’s cross-examination

       testimony from the protected person hearing, the State properly notes that Reed


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-354 | October 28, 2020   Page 11 of 20
       requested that the video of B.R.’s cross-examination be played during Detective

       Freiburger’s testimony immediately after the video of B.R.’s forensic interview.

       Reed cannot now complain that the timing created a vouching issue. See

       Batchelor v. State, 

119 N.E.3d 550

, 556 (Ind. 2019) (holding that “invited error

       typically forecloses appellate review altogether” and a “party will not be

       permitted to take advantage of errors which he himself committed or invited or

       induced the trial court to commit, or which were the natural consequences of

       his own neglect or misconduct”).


[19]   In the second exchange at issue, Detective Freiburger on direct examination

       testified:


               Q. [ ] [D]uring that examination of B.R. by Mr. Baldwin, [ ] that
               examination was clearly not conducted in a [ ] forensic interview
               setting, was it?


               A. It was not.


               Q. Why do you conduct that, the child interviews in an
               interview center?


               A. Because they’re, they’re neutral. [ ] [T]here’s a format that
               we follow that’s been accredited through the court system. It’s,
               uh, just the child and I interacting and it allows the child the
               ability to express themselves verbally and non-verbally in a child-
               friendly appropriate way.


       Tr. Vol. III p. 101.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-354 | October 28, 2020   Page 12 of 20
[20]   Reed argues that Detective Freiburger’s comment is a “direct assessment of

       another witness’s testimony” and that her testimony gave the jury “the

       impression that the forensic interview is sanctioned by the court system . . . .”

       Appellant’s Br. p. 17. We disagree. Detective Freiburger did not comment on

       B.R.’s demeanor or truthfulness in the forensic interview as compared to her

       cross-examination during the protected person hearing. Again, Detective

       Freiburger was commenting on methods of interviewing children in general,

       not vouching for B.R. Reed could have cross-examined Detective Freiburger

       regarding her comments that the forensic interview process is “accredited

       through the court system.” Tr. Vol. III p. 101. The trial court did not abuse its

       discretion by admitting this testimony.


             B. Detective Freiburger’s Alleged Comment on Reed’s Right to Cross-
                                         Examination

[21]   Next, Reed argues that, in the second exchange at issue above, Detective

       Freiburger improperly commented on Reed’s right to cross-examine B.R.

       According to Reed, Detective Freiburger “criticized the very nature of the cross-

       examination—that it does not occur in a forensic interview center, implying

       that it does not lend itself to the child expressing him or herself.” Appellant’s

       Br. p. 18. Reed cites no authority for the proposition that his right to cross-

       examination can be violated by a witness commenting on the nature of cross-

       examination. See Ind. Appellate Rule 46(A)(8) (requiring argument to be

       supported by cogent reasoning and citations to authorities).




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-354 | October 28, 2020   Page 13 of 20
[22]   The Sixth Amendment of the United States Constitution provides: “In all

       criminal prosecutions, the accused shall enjoy the right to . . . be confronted

       with the witnesses against him.” Similarly, Article 1, Section 13 of the Indiana

       Constitution provides: “In all criminal prosecutions, the accused shall have the

       right . . . to meet the witnesses face to face.” B.R. was cross-examined by

       Reed’s attorney at the protected person hearing as authorized by Indiana Code

       Section 35-37-4-6, and the video of that cross-examination was admitted at the

       trial and shown to the jury along with the video of B.R.’s forensic interview.

       We conclude that the trial court did not abuse its discretion by admitting this

       testimony over Reed’s objection.


                                                  C. Lubricant

[23]   Next, Reed argues that the trial court abused its discretion by admitting

       evidence that Reed possessed anal lubricant. Reed contends that this evidence

       was irrelevant. Indiana Evidence Rule 401 provides: “Evidence is relevant if:

       (a) it has any tendency to make a fact more or less probable than it would be

       without the evidence; and (b) the fact is of consequence in determining the

       action.” Irrelevant evidence is inadmissible. See Ind. Evidence Rule 402. “The

       court may exclude relevant evidence if its probative value is substantially

       outweighed by a danger of one or more of the following: unfair prejudice,

       confusing the issues, misleading the jury, undue delay, or needlessly presenting

       cumulative evidence.” Ind. Evidence Rule 403.


[24]   In support of Reed’s argument that the admission of the photograph of anal

       lubricant was improper, Reed relies on Remy v. State, 

17 N.E.3d 396

(Ind. Ct.
       Court of Appeals of Indiana | Memorandum Decision 20A-CR-354 | October 28, 2020   Page 14 of 

20 Ohio App. 2014

), trans. denied. There, during his trial for child molestation, the

       defendant objected to admission of several pornographic images found in his

       home. The defendant argued that the pornographic images were “irrelevant,

       highly prejudicial, and inadmissible under” Indiana Evidence Rule 404(b),

       which pertains to evidence of other crimes, wrongs, or other acts. 

Remy, 17 N.E.3d at 399

. One of the images had “strong parallel[s]” to one of the charged

       acts, and we concluded that the trial court properly admitted that image.

Id. at 401.

With respect to the remainder of the images, however, we concluded that

       the danger of unfair prejudice substantially outweighed their probative value.

       Accordingly, our Court found that the remainder of the photographs should not

       have been admitted at trial.


[25]   We do not find Remy persuasive here. Reed argues that B.R. never mentioned

       the use of anal lubricant, and there was no connection between B.R. and the

       lubricant. B.R., however, claimed that Reed repeatedly inserted his penis into

       her anus, along with other sexual activity. Nurse Cook testified that she found

       no injuries to B.R. during her examination. Nurse Cook explained several

       reasons why “as many as ninety-five (95) percent of children will have

       completely normal examinations. And that would [ ] be of the female sex

       organ [ ] and certainly it can be as high as ninety-nine (99) percent of children

       will not [sic] injury [ ] if there’s been an anal penetration.” Tr. Vol. III p. 36.

       Over Reed’s objection, Nurse Cook also testified that lubricant can prevent

       injury. Later, the State sought to admit a photograph of anal lubricant found in

       a cardboard box beneath a bed in the downstairs bedroom of Reed’s house


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-354 | October 28, 2020   Page 15 of 20
       during the execution of a search warrant. Reed objected to the admission of the

       photograph, but the trial court overruled the objection.


[26]   The lubricant was relevant to provide a possible explanation for B.R.’s lack of

       injuries. Moreover, Reed fails to explain how the probative value of the

       lubricant was substantially outweighed by a danger of unfair prejudice. We

       conclude that the danger of unfair prejudice is minimal here. There was

       minimal testimony and evidence presented regarding the lubricant. Under

       these circumstances, the trial court did not abuse its discretion by admitting the

       photograph of the lubricant.


                                       II. Sufficiency of the Evidence

[27]   Reed also challenges the sufficiency of the evidence to support his convictions

       for Counts VI through X. Sufficiency of the evidence claims “warrant a

       deferential standard, in which we neither reweigh the evidence nor judge

       witness credibility.” Powell v. State, 

151 N.E.3d 256

, 262 (Ind. 2020). We

       consider only the evidence supporting the judgment and any reasonable

       inferences drawn from that evidence.

Id. We will affirm

a conviction if there is

       substantial evidence of probative value that would lead a reasonable trier of fact

       to conclude that the defendant was guilty beyond a reasonable doubt.

Id. [28]

  The offense of Level 1 felony child molesting 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)


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-354 | October 28, 2020   Page 16 of 20
       commits child molesting . . . .” The offense is a Level 1 felony if “it is

       committed by a person at least twenty-one (21) years of age.” Ind. Code 35-42-

       4-3(a)(1). In Counts I through V, the State charged Reed with child molesting

       as Level 1 felonies for Reed’s actions between July 1, 2018, and August 30,

       2018. In Counts VI through X, the State charged Reed with child molesting as

       Level 1 felonies for Reed’s actions between October 1, 2015, and June 30, 2018.


[29]   Reed argues that the evidence is insufficient to sustain his convictions in Counts

       VI through X because the evidence does not establish any molestations

       occurred between October 1, 2015, and June 30, 2018. B.R.’s statements

       regarding the timing of the offenses were admittedly imprecise. We do not,

       however, find that fatal to the sufficiency of the evidence here.


[30]   Indiana Code Section 35-34-1-2(a)(5) requires a charging information to state

       “the date of the offense with sufficient particularity to show that the offense was

       committed within the period of limitations applicable to that offense.” Here,

       the statutory period of limitations is not an issue—a prosecution for a Level 1

       felony child molesting must be commenced before the alleged victim reaches

       thirty-one years of age, and B.R. was nine years old when this prosecution

       commenced. Ind. Code § 35-41-4-2(c), (e).


[31]   Moreover, Indiana Code Section 35-34-1-2(a)(6) requires the charging

       information to state “the time of the offense as definitely as can be done if time

       is of the essence of the offense.” It is well-established that, where time is not of

       the essence of the offense, “the State is not confined to proving the commission


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-354 | October 28, 2020   Page 17 of 20
       on the date alleged in the affidavit or indictment, but may prove the

       commission at any time within the statutory period of limitations.” Love v.

       State, 

761 N.E.2d 806

, 809 (Ind. 2002). Time is not of the essence in child

       molesting cases.

Id. In such cases,

“the exact date is only important in limited

       circumstances, such as where the victim’s age at the time of the offense falls at

       or near the dividing line between classes of felonies.”

Id. [32]

  The important age for determining levels of felonies in child molesting cases is

       fourteen. Compare Ind. Code § 35-42-4-3 (defining child molesting as occurring

       with a child under the age of fourteen years), and Ind. Code § 35-42-4-9

       (defining sexual misconduct with a minor as occurring with a child at least

       fourteen years of age). 3 B.R. testified that the molestations occurred when she

       was nine years old and younger. Therefore, the precise dates of the offenses are

       not of the essence and are not material elements of the crimes.


[33]   Reed also argues that B.R.’s claims were incredibly dubious. Application of the

       incredibly dubiosity doctrine requires that there be: “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.” Moore v. State,




       3
         At the time of these offenses, Indiana Code Section 35-42-4-9(a) provided, in part: “A person at least
       eighteen (18) years of age who, with a child at least fourteen (14) years of age but less than sixteen (16) years
       of age, performs or submits to sexual intercourse or other sexual conduct (as defined in IC 35-31.5-2-221.5)
       commits sexual misconduct with a minor, a Level 5 felony.” Indiana Code Section 35-42-4-9(a) was
       amended effective July 1, 2019, after the commission of these offenses, and now provides, in part: “A person
       at least eighteen (18) years of age who knowingly or intentionally performs or submits to sexual intercourse
       or other sexual conduct (as defined in IC 35-31.5-2-221.5) with a child less than sixteen (16) years of age,
       commits sexual misconduct with a minor, a Level 5 felony.”

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-354 | October 28, 2020                     Page 18 of 20
       

27 N.E.3d 749

, 756 (Ind. 2015). “[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.’”

Id. (quoting Edwards v.

State, 

753 N.E.2d 618

, 622 (Ind. 2001)). “‘The testimony

       must be so convoluted and/or contrary to human experience that no reasonable

       person could believe it.’”

Id. (quoting Edwards, 753

N.E.2d at 622). A

       conviction of child molesting may rest on the uncorroborated testimony of the

       victim. Young v. State, 

973 N.E.2d 1225

, 1227 (Ind. Ct. App. 2012), trans.

       denied.


[34]   B.R. turned nine years old in early August 2018, and was in the third grade

       when she disclosed the abuse to Herb on August 30, 2018. During her forensic

       interview, B.R. said that she did not know the first time the abuse happened.

       B.R. said the abuse happened when she was nine years old and in third grade,

       but the abuse also happened when she was “littler.” State’s Exhibit 5. B.R.

       later said that the abuse last happened when she was nine years old; that it did

       not happen when she was eight years old; but that it happened when she was

       younger. B.R. described multiple episodes of sexual acts, including vaginal

       intercourse, anal intercourse, Reed placing his fingers in her vagina, Reed

       placing his penis in B.R.’s mouth, and Reed placing his mouth on B.R.’s

       vagina. Although B.R. was unclear on the exact timing of the abuse, time is not

       of the essence here.


[35]   B.R.’s testimony was age appropriate and was not inherently contradictory,

       equivocal, or the result of coercion. Accordingly, the incredible dubiosity

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-354 | October 28, 2020   Page 19 of 20
       doctrine does not apply here. Reed’s argument is merely a request that we

       reweigh the evidence and judge the credibility of witnesses, which we cannot

       do. See 

Powell, 151 N.E.3d at 262

. The evidence is sufficient to sustain Reed’s

       convictions in Counts VI through X.


                                                 Conclusion
[36]   The trial court properly admitted Detective Freiburger’s testimony and the

       photograph of the anal lubricant. The evidence was sufficient to sustain Reed’s

       convictions in Counts VI through X. Accordingly, we affirm.


[37]   Affirmed.


       Kirsch, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-354 | October 28, 2020   Page 20 of 20
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