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Samuel HAMPTON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff

Court of Appeals of Indiana2010-02-08No. No. 49A04-0906-CR-331
921 N.E.2d 27

Summary

Holding. The appellate court affirmed Hampton's conviction for child molesting as a class A felony and his twenty-year sentence, holding that the victim's testimony provided sufficient evidence to support the conviction and that the trial court's sentence was legally permissible under Indiana law.

Samuel Hampton, a forty-seven-year-old man, was convicted of child molesting as a class A felony involving a six-year-old child. The victim testified that during a visit to her great aunt's home around Christmas 2007, Hampton engaged in deviate sexual conduct with her while her great aunt was sleeping. The child subsequently reported the incident to her mother in January 2008, leading to Hampton's arrest and prosecution. At a bench trial, the court found Hampton guilty based on the victim's testimony, which the court characterized as credible and detailed.

On appeal, Hampton challenged the sufficiency of the evidence, arguing that the victim was the sole witness and her testimony lacked corroboration. He invoked the "incredible dubiosity" rule, which allows appellate courts to override a fact-finder's credibility determinations only when testimony is so contradictory, equivocal, or coerced that no reasonable person could believe it. The appellate court rejected this argument, finding the victim's testimony was not inherently contradictory or improbably dubious and noting minor inconsistencies were appropriate given her age and the passage of time.

On cross-appeal, the State argued the trial court imposed an illegal sentence by failing to apply a statute restricting suspension of sentences for this aggravated form of child molesting. The court rejected this argument, holding that the suspension statute governs only discretion regarding which portions of a sentence may be suspended, not the establishment of minimum sentences themselves. Accordingly, the twenty-year sentence imposed fell within proper statutory bounds.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Sufficiency of evidence when sole witness is a young child victim
  • Application of the incredible dubiosity rule to child testimony
  • Interpretation of statutory suspension restrictions for child molesting sentences
  • Whether suspension statutes establish minimum executed sentences

Procedural posture

Hampton appealed his conviction for child molesting as a class A felony, and the State raised a cross-appeal challenging the legality of his sentence.

Authorities cited

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Cited by (1)

Opinion

majority opinion

OPINION

BROWN, Judge.

Samuel Hampton appeals his conviction for child molesting as a class A felony Hampton raises one issue, which we revise and restate as whether the evidence is sufficient to sustain Hamptons conviction. On eross appeal, the State raises one issue, which we revise and restate as whether the sentence imposed by the trial court is illegal. We affirm.

The facts most favorable to the convietion follow. Around Christmas in 2007, six-year-old J.B. was visiting at the home of J.B.s great aunt, Renita Glasco, and Hampton, who was CGilaseos boyfriend. At some point during that visit, while Glaseco was sleeping on the couch in the homes living room, J.B. went from the living room into a bedroom where Hampton, who was forty-seven years old, was laying on the bed wearing a t-shirt and boxer shorts. After J.B. joined Hampton on the bed, Hampton pulled down J.B.s underwear. Hampton then put his penis inside [J.B.s] butt. Transcript at 14. Hamptons penis felt hard and greasy, and Hampton was shaking it. Id. at 14-15. When Hamptons penis touched J.B., it made J.B. feel Inljasty. Id. at 15. Also around Christmas, J.B. told her mother (Mother) that her behind kind of hurt[ ] her. Id. at 89.

On January 12, 2008, J.B. came out [of] the blue and told Mother that she had secrets to tell [her]. Id. at 838. J.B. told Mother that Hampton had touched her. Mother then called the police.

On January 14, 2008, Indianapolis Police Detective Genae Gehring, a child abuse detective, met with Mother and J.B. Detective Gehring interviewed Mother, and also sat in while Diane Bower, who was a child interviewer for the child advocacy center, interviewed J.B. On February 1, 2008, Detective Gehring also conducted interviews with Hampton, Glasco, and Mothers sister.

On February 22, 2008, Hampton was charged with Count I, child molesting as a class A felony; and Count II, child molesting as a class C felony. At a bench trial held on May 8, 2009, Hampton was found guilty of Count I, child molesting as a class A felony On May 20, 2009, the trial court sentenced Hampton to twenty years in the Department of Correction.

The issue on appeal is whether the evidence is sufficient to sustain Hamptons conviction for child molesting as a class A felony. When reviewing the sufficiency of the evidence to support a conviction, we must consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.2007). We do not assess witness credibility or reweigh the evidence. Id. We consider conflicting evidence most favorably to the trial courts ruling. 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 verdict. Id.

The offense of child molesting as a class A felony is governed by Ind.Code § 85-42-4-3(a), which, in relevant part, provides: A person who, with a child under fourteen (14) years of age, performs or submits to sexual intercourse or deviate sexual conduct commits child molesting, a Class B felony. However, the offense is a Class A felony if;: (1) it is committed by a person at least twenty-one (21) years of age.... Deviate sexual conduct means an act involving: (1) a sex organ of one person and the mouth or anus of another person; or (2) the penetration of the sex organ or anus of a person by an object. Ind.Code § 35-41-1-9. Thus, to convict Hampton of child molesting as a class A felony, the State was required to prove that Hampton, who was at least twenty-one years of age, performed or submitted to deviate sexual conduct with J.B., who was under fourteen years of age.

Hampton argues that J.B. was the only witness against Hampton, her testimony was equivocal and was not corroborated by medical evidence or anything else for that matter. Appellants Brief at 5. In so arguing, Hampton relies upon the incredible dubiosity rule which we may apply to impinge upon the fact finders function to judge the credibility of a witness. Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind.2007). Under the incredible dubiosity rule, a reviewing court may impinge on the fact-finders responsibility to judge witness credibility when a sole witness presents inherently contradictory testimony which is equivocal or the result of coercion and there is a complete lack of cireumstantial evidence of the defendants guilt. Corbett v. State, 764 N.E.2d 622, 626 (Ind.2002) (quoting Tillman v. State, 642 N.E.2d 221, 223 (Ind.1994)). Application of this 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. Fajardo, 859 N.E.2d at 1208.

Although Hampton argues that there is a lack of cireumstantial evidence, he makes no argument that J.B.s testimony regarding the molestation was inherently contradictory or equivocal. To the extent that Hampton argues that coercion played a role in J.B.s testimony, although Hampton notes that J.B. testified that she talked to her mother and her mother told her what to say, J.B. also testified that her mother told her to tell the truth. Transcript at 24. Having reviewed the record, we find that the testimony of seven-year-old J.B. was not so incredibly dubious or inherently improbable that no reasonable person could believe it. Indeed, the trial court, in finding Hampton guilty, noted that the victim in this case is very credible, very articulate, mature young lady who gave explicit details of what this Defendant did to her.... Transcript at 111. Based upon the facts detailed above and set forth in the record, we conclude that the State presented evidence of probative value from which a reasonable jury could have found Hampton guilty of child molesting as a class A felony. See, eg., Surber v. State, 884 N.E.2d 856, 869 (Ind.Ct.App.2008) (holding that testimony of six-year-old vie-tim was not incredibly dubious despite some inconsistencies, and that such inconsistencies are appropriate to the cireum-stances presented, the age of the witness, and the passage of time between the incident and the time of her statements and testimony) (quoting Fajardo, 859 N.E.2d at 1209), trans. denied.

The issue raised on cross appeal is whether the sentence imposed by the trial court is illegal. The States argument requires us to interpret Ind.Code § 35-50-22. In interpreting statutes, we do not interpret a statute that is facially clear and unambiguous. Rather, we give the statute its plain and clear meaning. Zanders v. State, 800 N.E.2d 942, 944 (Ind.Ct.App.2003) (internal citations omitted). [Ilf a statute is ambiguous, we seek to ascertain and give effect to the legislatures intent. Id. The best evidence of legislative intent is the language of the statute itself, and all words must be given their plain and ordinary meaning unless otherwise indicated by statute. Abney v. State, 811 N.E.2d 415, 419 (Ind.Ct.App.2004), adopted by 821 N.E.2d 375 (Ind.2005). [Plenal statutes must be strictly construed against the State, but a statute should not be overly narrowed so as to exclude cases fairly covered by it and should be interpreted so as to give efficient operation to the expressed intent of the legislature. Redden v. State, 850 N.E.2d 451, 463 (Ind.Ct.App.2006) (quoting Baird v. State, 604 N.E.2d 1170, 1190 (Ind.1992), cert. denied, 510 U.S. 893, 114 S.Ct. 255, 126 LEd.2d 208 (1993)), trans. denied. Also, we assume that the language in a statute was used intentionally and that every word should be given effect and meaning. Merritt v. State, 829 N.E.2d 472, 474 (Ind.2005). We seek to give a statute practical application by construing it in a way favoring public convenience and avoiding absurdity, hardship, and injustice. Id.

Ind.Code § 35-50-2-2 reads in relevant part:

(a) The court may suspend any part of a sentence for a felony, except as pro-

(b) Except as provided in subsection (1), with respect to the following crimes listed in this subsection, the court may suspend only that part of the sentence that is in excess of the minimum sentence....

* * * * * *#

(i) If a person is: (1) convicted of child molesting (IC 35-42-4-3) as a Class A felony against a victim less than twelve (12) years of age; and (2) at least twenty-one (21) years of age; the court may suspend only that part of the sentence that is in excess of thirty (80) years. Also, Ind.Code § 35-50-2-1(c)(2) dictates that the phrase minimum sentence equals twenty years for class A felonies.

(1) convicted of child molesting (IC 35-42-4-3) as a Class A felony against a victim less than twelve (12) years of age; and

(2) at least twenty-one (21) years of age;

the court may suspend only that part of the sentence that is in excess of thirty (80) years.

Also, Ind.Code § 35-50-2-1(c)(2) dictates that the phrase minimum sentence equals twenty years for class A felonies.

The State argues that the trial court failed to apply subsection (1) of Ind. Code § 35-50-2-2, Suspension; Probation; Exceptions, in sentencing Hamp-ton The State argues that subsection (i) dictates that the minimum executed sentence available for this particularly aggravated form of child molesting is thirty years, rather than the generally applicable twenty year minimum [for class A felonies]. Appellees Brief at 11. The State therefore reasons that [iIn effect, the legislature has declared that when child molesting is committed under these particularly egregious circumstances, the minimum executed sentence for that offense should be thirty years. Id. at 10. Hampton argues that [slince there was no time suspended, the trial run afoul of LLC. 35-50-2-2. Appellants Reply Brief at 1. Hampton argues that while the State takes the position that the change in the suspension statute changed the effective minimum sentence for this particular crime, it remains that if the legislature wished to change the minimum sentence for this crime it could do just that and amend the statute for A felony sentences. It did not do so. Id.

We are not persuaded by the States argument, however, because Ind.Code § 35-50-22 addresses only the suspension of sentences. Blacks Law Dictionary defines the term suspended sentence as [a] sentence postponed so that the defendant is not required to serve time unless he or she commits another crime or violates some other court-imposed condition. A suspended sentence, in effect, is a term of probation. Blacks Law Dictionary 1394 (8th ed.2004). In other words, as this court has previously noted, [the plain, ordinary, and usual meaning of the word suspend or the term suspension of sentence implies a conditional, and not an unconditional postponement. Wilburn v. State, 671 N.E.2d 143, 147 (Ind.Ct.App.1996), trans. denied.

Based upon the plain language of the statute, we conclude that Ind.Code § 35-50-22 dictates only the discretion trial courts have in designating which portions of a defendants sentence may be suspended and does not expressly set sentencing minimums. See Wilburn, 671 N.E.2d at 147 (interpreting the terms suspend and reduce and holding that the term suspend implies a conditional, and not an unconditional postponement).

Particularly in light of the fact that we strictly construe penal statutes against the State, Redden, 850 N.E.2d at 463 (quoting Baird, 604 N.E.2d at 1190), we conclude that the trial court did not illegally sentence Hampton when it sentenced him to the minimum twenty years for child molesting as a class A felony.

For the foregoing reasons, we affirm Hamptons conviction and sentence for child molesting as a class A felony.

Affirmed.

MATHIAS, J., and BARNES, J., concur.

. Ind.Code § 35-42-4-3 (Supp.2007).

. At the close of the States case-in-chief, the trial court granted Hamptons motion for directed verdict on Count IL

. The charging information for Count I read:

Samuel Hampton, on or about or between July 1, 2007 and January 12, 2008, being at least twenty-one (21) years of age, did perform or submit to deviate sexual conduct, an act involving a sex organ, that is: penis of Samuel Hampton and the anus of J.B., with J.B., a child who was then under the age of fourteen (14) years, that is: six (6) years of age....

Appellants Appendix at 26.

. We note that when the State claims that a trial court failed to sentence a defendant in accordance with statutory requiState may raise that claim for the first time on appeal. Stephens v. State, 818 N.E.2d 936, 939-940 (Ind.2004).

. In amending the statute, it appears that the legislature intended to leave to the discretion of trial courts whether to sentence defendants to the advisory sentence, and require those so sentenced to serve thirty years of executed time, or to sentence defendants to a sentence below the advisory level under certain circumstances.