Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of May 20 2014, 9:04 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JEFFRY G. PRICE GREGORY F. ZOELLER
Peru, Indiana Attorney General of Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ZACKERY REAHARD, )
)
Appellant-Defendant, )
)
vs. ) No. 85A02-1311-CR-1005
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE WABASH CIRCUIT COURT
The Honorable Robert R. McCallen, III, Judge
Cause No. 85C01-1302-FA-108
May 20, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
Zackery Reahard appeals his convictions and sentences for child molesting as a
class A felony, sexual misconduct with a minor as a class B felony, child molesting as a
class C felony, sexual misconduct with a minor as a class D felony, and child molesting
as a class B felony. Reahard raises two issues, which we revise and restate as:
I. Whether the evidence is sufficient to sustain certain convictions; and
II. Whether the court erred in sentencing him.
We affirm.
FACTS AND PROCEDURAL HISTORY
Between August 2006 and July 27, 2007, Reahard lived with his mother, Mona
Dalton, and his father Dave Dalton, his younger brother C.D., his sister Toccara, and
Toccara’s child in a house on East Ninth Street in North Manchester, Indiana. During
that time, C.D. became friends with J.F. and M.S., and the three boys would spend time
together at the house. Reahard, who was about nine years older than the three boys,
would give the boys marijuana and smoke marijuana with them.
In late July 2007, Reahard’s family moved to the Warsaw area while he moved in
with a friend on Bond Street, which was next to the college. On September 3, 2007,
Reahard turned twenty-one years old. J.F., who at the time was between eleven and
twelve years old, would visit the home on Bond Street with C.D. and spend time with
C.D. and Reahard. At some point, Reahard moved in with his family in Warsaw, and J.F.
lost contact with C.D. and Reahard until September 5, 2008, when Reahard’s family
moved back to the Manchester area and into the Clear Creek Apartments (the “Clear
Creek Home”), where they lived until April 15, 2010.
2
While living in the Clear Creek Home, Reahard began dating J.F.’s aunt, and as a
result J.F. resumed visiting C.D. and Reahard. Soon after Reahard’s family moved into
the Clear Creek Home, J.F. and Reahard engaged in sexual activity for the first time in
which J.F. “lost his virginity.” Transcript at 61. J.F., who at the time was twelve years
old, stayed over the night before, and when J.F., C.D., and Reahard were on the bed in
Toccara’s room Reahard began “showing his thing” to J.F. Id. at 56. The next night, the
two boys and Reahard were in the bedroom and Reahard started “getting touchy” with
J.F. on the bed. Id. at 58. C.D. decided to leave the bed and use his laptop on the floor of
the room, Reahard then began “messing” with J.F.’s penis, and J.F. touched Reahard’s
penis. Id. at 58-59. J.F. and Reahard began to kiss, and when C.D. noticed he announced
he was leaving to go visit M.S. at his house. After C.D. left, J.F. and Reahard undressed,
and Reahard performed oral sex on J.F. J.F. also put his mouth around Reahard’s penis.
Reahard then placed J.F.’s penis into Reahard’s anus, and they engaged in anal sex.
While J.F. and Reahard were naked under the covers, Reahard’s mother Mona
entered the room to speak with them and asked them to spend time with her. They
responded in the negative, and after she left Reahard attempted to put his penis inside
J.F.’s anus but was unsuccessful. Reahard and J.F. continued to kiss, and Mona again
entered the room. When she observed them, she began “going off” on Reahard because
J.F. was only twelve years old. Id. at 61. Mona then left the room to go to sleep, and
when Reahard again attempted to initiate sexual contact J.F. pushed him away. J.F. then
went home and told his best friend about what had happened. He also told C.D., but C.D.
already knew what had occurred. Reahard and J.F. did not have sexual contact for some
3
time after that incident because Reahard was incarcerated for about six months beginning
in January of 2009.
After Reahard was released from jail and his family moved to a residence on 103
Mill Street (the “Mill Street Home”), where they lived from April 15, 2010 through
September 15, 2011, he and J.F. had “[m]any other encounters.” Id. at 64. Reahard
would text J.F. on a nightly basis and talk to him on the phone, and they engaged in
sexual activity “too many [times] to count” before J.F. turned sixteen. Id. at 67.
Specifically, J.F. and Reahard engaged in oral sex on approximately ten occasions and
had anal sex in Reahard’s bedroom. Reahard and J.F. would also smoke, get high, and
have anal sex in another small house on the same property. Also, when J.F. was fifteen
years old, he and Reahard engaged in anal sex at J.F.’s house while C.D. was also in the
room. On that occasion, J.F.’s mother discovered that Reahard was there and kicked him
out of the house. Later, J.F.’s mother found out about what had occurred and forbade J.F.
from visiting Reahard’s home. J.F. moved away and lost contact with Reahard and his
family, and J.F. subsequently was put into therapy and the police were contacted.
In addition to the incidents with J.F., Reahard also engaged in sexual activity with
M.S. when M.S. would visit with C.D. or stay the night. Reahard would touch M.S.’s
legs and have oral sex with M.S., and sometimes they would get high before engaging in
sexual contact. Beginning when M.S. was twelve years old, he engaged in anal sex, oral
sex, and “hand jobs” with Reahard approximately ten times. Id. at 117. J.F. also
witnessed M.S. and Reahard engaging in anal sex at M.S.’s house on one occasion. M.S.
4
believes that J.F. may have mentioned what had been occurring between Reahard and J.F.
to M.S. at around the same time the incidents involving M.S. were occurring.
On February 21, 2013, the State charged Reahard with Count I, child molesting as
a class A felony; Count II, sexual misconduct with a minor as a class B felony; Count III,
child molesting as a class C felony; Count IV, sexual misconduct with a minor as a class
D felony; Count V, child molesting as a class B felony; Count VI, child molesting as a
class C felony; and Count VII, child molesting as a class A felony. Counts I-IV pertained
to conduct against J.F., and Counts V-VII pertained to conduct against M.S. On
September 24, 2013, the court commenced a jury trial in which evidence consistent with
the foregoing was presented. Following the State’s case-in-chief, the State moved to
dismiss Counts VI and VII, and the court granted the motion. Mona testified as a defense
witness that she observed J.F. on top of Reahard kissing Reahard and that Reahard was
not responding, that she kicked Reahard out, and that she told J.F.’s mother about the
incident. On September 25, 2013, the jury found Reahard guilty on Counts I-V.
On October 28, 2013, the court held a sentencing hearing in which the court
identified the following aggravating circumstances: (1) Counts I and V are crimes of
violence; (2) the evidence showed that Reahard seduced his victims with drugs and
bragged about being a drug dealer; (3) Reahard’s juvenile and adult criminal history; and
(4) the imposition of a reduced sentence would depreciate the seriousness of the crimes.
The court sentenced Reahard to thirty-five years, including three years suspended to
probation, on Count I, ten years on Count II, four years on Count III, one and one-half
years on Count IV, and twelve years on Count V. The court ordered that Counts I-IV be
5
served concurrent to one another, and that Count V be served consecutive to Counts I-IV.
Thus, the court ordered that Reahard serve an aggregate term of forty-four years in the
Department of Correction followed by three years of probation.
DISCUSSION
I.
The first issue is whether the evidence is sufficient to sustain Reahard’s
convictions on Counts I-IV.1 When reviewing claims of insufficiency of the evidence,
we do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656
N.E.2d 816, 817 (Ind. 1995), reh’g denied. Rather, we look to the evidence and the
reasonable inferences therefrom that support the verdict. Id. We will affirm the
conviction if there exists evidence of probative value from which a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt. Id. The uncorroborated
testimony of one witness, even if it is the victim, is sufficient to sustain a conviction.
Ferrell v. State, 565 N.E.2d 1070, 1072-1073 (Ind. 1991).
The arguments raised by Reahard on appeal all, at their core, constitute challenges
to J.F.’s credibility. Specifically, Reahard argues regarding Count I that J.F. testified
“emphatically” that he was twelve years old when the first sexual encounter between he
and Reahard occurred and that it occurred at the Clear Creek Home, rather than the home
on Ninth Street, but that due to J.F.’s birthday on October 9, 2008, there was “only one
month when the encounter could have occurred . . . .” Amended Appellant’s Brief at 7-8.
Reahard further notes that he did not immediately move into the Clear Creek Home,
1
Reahard does not challenge the sufficiency of the evidence related to his conviction on Count V,
child molesting as a class B felony, which pertained to his conduct with M.S.
6
which “further reduce[s] the opportunity for the events to occur when J.F. was still 12
years old.” Id. at 8. Reahard also asserts that J.F. “told the jury, as well as the State
Police Detective . . . that the first sexual encounter with Reahard occurred on New Year’s
Eve,” and notes various problems with such testimony, including that Reahard was living
on Ninth Street on December 31, 2007, and that “Reahard and his Mother testified that he
went out and partied” and “would have been incapable of a sexual encounter with J.F.
because he was unconscious/high or passed out.” Id. at 9. Reahard also argues that J.F.
presented testimony running afoul of the incredible dubiosity rule when he testified that
C.D. was in the room while J.F. and Reahard were performing oral sex on each other and
when J.F. stated that Mona walked into the room and “actually laid down on the bed with
them and talked to them.” Id. He also invokes the incredible dubiosity rule with regard
to his conviction on Count III, noting specifically that the charging information alleges
that the “crime occurred between March 1, 2008, and October 8, 2009,” and that Reahard
was incarcerated for “approximately eight months” of this time period (between January
2009 and August 2009), and “thus it was not possible for him to have a sexual encounter
with J.F. at that point.” Id. at 11. Regarding Count IV, Reahard argues that there is a
problem with J.F.’s testimony “that several of his encounters with Reahard occurred at an
apartment or out building located” at the Mill Street Home because “the building was
occupied by a tenant” and J.F. “makes no mention of anyone else living at the building at
the time.”2 Id. at 12.
2
Reahard in his brief also makes contentions that fall short of what is considered cogent
argument. For example, Reahard notes that Count II was charged as occurring between October 9, 2009
and September 15, 2011, and suggests that J.F.’s testimony was incredibly dubious because it “does not
account” for an eight-month timeframe when he was incarcerated, which he notes to be “January 2009 to
7
The State argues that the incredible dubiosity rule does not apply, that the rule is
limited to cases where a sole witness presents inherently contradictory testimony, and
that J.F.’s trial testimony was not inherently contradictory, equivocal, or unworthy of
credit. The State also contends that J.F.’s trial testimony is not incredibly dubious merely
because he made inconsistent pretrial statements and that it was for the jury to resolve
any conflicting evidence.
To the extent Reahard asserts that the incredible dubiosity rule requires reversal of
his convictions, we note that the rule applies only in very narrow circumstances. See
Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). The rule is expressed as follows:
If a sole witness presents inherently improbable testimony and there is a
complete lack of circumstantial evidence, a defendant’s conviction may be
reversed. This is appropriate only where the court has confronted
inherently improbable testimony or coerced, equivocal, wholly
uncorroborated testimony of incredible dubiosity. 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.
Id.
Reahard fails to show that the testimony of J.F. was inherently improbable merely
because there was only a one-month window in which Count I could have occurred or
because J.F. testified that Mona entered the room and spoke with them. Reahard’s
suggestions that J.F.’s testimony regarding Count III was improbable because Reahard
was incarcerated for about half of the time between March 1, 2008 and October 8, 2009,
or that J.F.’s testimony was improbable because he testified that he and Reahard had
August 2009” but which is outside the window of the charging information. Amended Appellant’s Brief
at 10.
8
sexual contact in an out building that was being occupied by a tenant, similarly fail.
Further, J.F.’s testimony was not rendered inherently improbable because it differed from
what he told the detectives regarding his first sexual encounter with Reahard. Reahard’s
arguments are merely challenges to J.F.’s credibility. The function of weighing witness
credibility lies with the trier of fact, not this court. Whited v. State, 645 N.E.2d 1138,
1141 (Ind. Ct. App. 1995). We cannot reweigh the evidence and judge the credibility of
the witnesses. See Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003).
Based upon our review of the evidence and testimony most favorable to the
convictions as set forth in the record and above, we conclude that sufficient evidence
exists from which the trier of fact could find Reahard guilty beyond a reasonable doubt of
child molesting as a class A felony, sexual misconduct with a minor as a class B felony,
child molesting as a class C felony, and sexual misconduct with a minor as a class D
felony.3 See Brakie v. State, 999 N.E.2d 989, 998-999 (Ind. Ct. App. 2013) (finding that
child victim’s testimony was not inherently contradictory and that the incredible
dubiosity rule did not apply and affirming the defendant’s conviction for child molesting
as a class A felony), trans. denied; Hampton v. State, 921 N.E.2d 27, 29 (Ind. Ct. App.
2010) (finding that the testimony of the seven-year-old victim was not incredibly dubious
and concluding that based upon the record the State presented evidence of probative
value from which a reasonable jury could have found the defendant guilty of child
molesting as a class A felony), reh’g denied, trans. denied; Surber v. State, 884 N.E.2d
856, 869 (Ind. Ct. App. 2008) (holding that the testimony of a six-year-old victim was not
3
As noted above, Reahard does not challenge the sufficiency of the evidence for his conviction
on Count V of child molesting as a class B felony.
9
incredibly dubious despite some inconsistencies, and that such inconsistencies were
appropriate to the circumstances presented, the age of the witness, and the passage of
time between the incident and the time of her statements and testimony), trans. denied.
II.
The next issue is whether the court erred in sentencing Reahard. We observe that
despite titling the applicable section of his brief as “Inappropriate Sentence,” Reahard
does not cite to Ind. Appellate Rule 7(B), which 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.” Further, he presents no argument whatsoever, much less
cogent argument, addressing either the nature of his offenses or his character, and instead
focuses on the validity of the aggravating circumstances identified by the trial court. This
court addresses the propriety of the aggravators and mitigators identified by the trial court
under an abuse of discretion in sentencing standard, which, as we have repeatedly
explained, is analyzed separately from the issue of whether a defendant’s sentence is
inappropriate. See, e.g., King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008).
Therefore, his argument that his sentence is inappropriate is waived. Williams v. State,
891 N.E.2d 621, 633 (Ind. Ct. App. 2008); Ind. Appellate Rule 46(A)(8)(a); see also
Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006) (holding that the defendant’s
contention was waived because it was “supported neither by cogent argument nor citation
to authority”); Shane v. State, 716 N.E.2d 391, 398 n.3 (Ind. 1999) (holding that the
defendant waived argument on appeal by failing to develop a cogent argument); Smith v.
10
State, 822 N.E.2d 193, 202-203 (Ind. Ct. App. 2005) (“Generally, a party waives any
issue raised on appeal where the party fails to develop a cogent argument or provide
adequate citation to authority and portions of the record.”), trans. denied.
However, to the extent Reahard argues that the court found improper aggravators
and cites to Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875
N.E.2d 218 (Ind. 2007), we note that the appropriate remedy when a court has abused its
discretion is to remand for resentencing “if we cannot say with confidence that the trial
court would have imposed the same sentence had it properly considered reasons that
enjoy support in the record.” 868 N.E.2d at 491. Here, even assuming that Counts I and
V were not crimes of violence, Reahard concedes that he does have a previous felony
conviction for dealing in marijuana as well as misdemeanor convictions for disorderly
conduct and operating with .15 grams, and that he was incarcerated between January and
August of 2009. He also concedes that he provided marijuana to both J.F. and M.S. We
have held that one aggravating factor can be a sufficient basis to enhance a sentence.
Peoples v. State, 649 N.E.2d 638, 640 (Ind. Ct. App. 1995). We further note that
Reahard does not contend that the court erred in not identifying certain mitigating
circumstances and that his sentences were enhanced only minimally.4
Moreover, we observe that the crux of Reahard’s argument appears to be that the
court should have ordered he serve all of his sentences concurrent with one another and
that the advisory sentence lengths are “more than sufficient to punish” him for his crimes.
4
Specifically, Count I, child molesting as a class A felony, was enhanced to thirty-five years with
three years suspended to probation, which is an enhancement of two years executed and three more years
of probation above the advisory sentence. See Ind. Code § 35-50-2-4. Count V, child molesting as a
class B felony, was enhanced to twelve years, which is an enhancement of two years above the advisory
sentence. See Ind. Code § 35-50-2-5.
11
Appellant’s Brief at 14. With regard to how the court ordered Reahard to serve his
various sentences, the court ordered that Counts I-IV be served concurrent with one
another and that Count V, which involved a different victim, M.S., be served consecutive
to the other counts. Also, to the extent that the court enhanced Reahard’s sentences, we
observe that based on the testimony adduced at trial, there was a multitude of uncharged
conduct between Reahard and his victims.
CONCLUSION
For the foregoing reasons, we affirm Reahard’s convictions and sentences for
child molesting as a class A felony, sexual misconduct with a minor as a class B felony,
child molesting as a class C felony, sexual misconduct with a minor as a class D felony,
and child molesting as a class B felony.
Affirmed.
VAIDIK, C.J., and NAJAM, J., concur.
12
Zackery Reahard v. State of Indiana
Combined Opinion