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 establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CARA SCHAEFER WIENEKE GREGORY F. ZOELLER
Special Assistant to the State Public Defender Attorney General of Indiana
Wieneke Law Office, LLC
Plainfield, Indiana MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
Jan 31 2014, 9:15 am
IN THE
COURT OF APPEALS OF INDIANA
ALLAN KIRKLEY, )
)
Appellant-Defendant, )
)
vs. ) No. 28A04-1307-CR-362
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE GREENE CIRCUIT COURT
The Honorable Erik C. Allen, Judge
Cause No. 28C01-1203-FC-14
January 31, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
The State charged Allan Kirkley with two counts of class C felony child molesting,
alleging that he fondled his live-in girlfriend’s two young children. A jury found him guilty
on one count, and the trial court sentenced him to six years, with one year suspended to
probation. Kirkley challenges the sufficiency of the evidence supporting his conviction,
claiming that the victim’s testimony was incredibly dubious. He also contends that his
sentence is inappropriate in light of the nature of the offense and his character. We conclude
that the victim’s testimony was not incredibly dubious, and Kirkley has failed to persuade us
that his sentence is inappropriate. Consequently, we affirm his conviction and sentence.
Facts and Procedural History
The facts most favorable to the jury’s verdict are that Paula and Clint Terrell had a
twin son and daughter, M.T. and S.T., who were born in June 2001. The Terrells divorced in
2005, and Paula remained with the twins in the marital home. After the home was foreclosed
on in May 2008, Paula and the twins moved into the home of her boyfriend, Kirkley, who
also had children. M.T. shared an upstairs bedroom with one of Kirkley’s sons, and S.T.
shared an upstairs bedroom with one of his daughters.
M.T. and Kirkley’s son slept in beds that were three or four feet apart. One night
M.T. was awakened by a squeak on the stairway leading to his bedroom. Kirkley entered the
bedroom, pulled down M.T.’s blanket and shorts, and touched M.T.’s penis for several
minutes. Kirkley told M.T., “[D]on’t tell anybody or else.” Tr. at 46. M.T. took this to mean
that Kirkley “might hurt [his] mom or [his] sister or somebody.” Id. Kirkley’s son was
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asleep during this incident. Kirkley molested M.T. in a similar manner three or four times
over the next several weeks. During one incident, Kirkley’s son woke up and got out of bed
to go downstairs “to use the bathroom or something.” Id. at 47. Kirkley crouched beside
M.T.’s bed so that his son could not see him. Id. at 66-67. M.T. did not fight or scream
during the molestations because he was scared, and he did not tell anyone about them
because he was “embarrassed and scared.” Id. at 50.
Paula and the twins stayed with Kirkley for several months and moved out after she
and Kirkley ended their intimate relationship. They remained friends for several years,
however, and Paula and the twins frequently visited Kirkley and his family. M.T. once spent
the night alone with Kirkley and was not molested. At one point, Paula asked M.T. if anyone
had touched him inappropriately, but he “blew the question off” because he “was happy that
it was Christmas and [he] didn’t really want to think about something like that.” Id. at 54.
Clint obtained primary custody of the twins in August or September 2011. In January
2012, the twins’ stepmother, Lora Terrell, asked them if anyone had touched them
inappropriately. Both M.T. and S.T. said that Kirkley had done so. In March 2012, the State
charged Kirkley with two counts of class C felony molesting, one each as to M.T. and S.T.1
At trial, M.T. testified to the events described above. S.T. testified that Kirkley came into her
bedroom one night and touched her bottom. Kirkley took the stand and denied molesting
either child. The jury found Kirkley guilty on the count relating to M.T. and not guilty on the
1
See Ind. Code § 35-42-4-3(b) (“A person who, with a child under fourteen (14) years of age,
performs or submits to any fondling or touching, of either the child or the older person, with intent to arouse or
to satisfy the sexual desires of either the child or the older person, commits child molesting, a Class C
felony.”).
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count relating to S.T. The trial court sentenced Kirkley to six years, with one year suspended
to probation. Kirkley now appeals.
Discussion and Decision
I. Sufficiency of Evidence
Kirkley challenges the sufficiency of the evidence supporting his conviction. Our
standard of review is well settled:
When a defendant challenges the sufficiency of the evidence supporting a
conviction, we do not reweigh the evidence or judge the credibility of the
witnesses. We consider only the probative evidence and reasonable inferences
drawn therefrom that support the finding of guilt. We likewise consider
conflicting inferences in the light most favorable to the conviction. We will
affirm the conviction unless no reasonable trier of fact could have found the
elements of the crime proven beyond a reasonable doubt.
Neese v. State, 994 N.E.2d 336, 339 (Ind. Ct. App. 2013) (citations omitted). “A victim’s
testimony, even if uncorroborated, is ordinarily sufficient to sustain a conviction for child
molesting.” Sargent v. State, 875 N.E.2d 762, 767 (Ind. Ct. App. 2007).
Kirkley seeks reversal via the “incredible dubiosity” rule. As explained by our
supreme court,
Within the narrow limits of the “incredible dubiosity” rule, a court may
impinge upon a jury’s function to judge the credibility of a witness. 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.
Love v. State, 761 N.E.2d 806, 810 (Ind. 2002) (citations omitted).
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Kirkley contends that M.T.’s testimony was incredibly dubious because M.T. did not
disclose the molestations for over three years and did so only after being questioned by his
stepmother. We disagree. Greene County Prosecutor’s Office investigator Julie Criger
testified that child molesting victims “typically do not” report the abuse right away. Tr. at
197. Moreover, M.T. testified that he was embarrassed about the molestations and that
Kirkley had threatened him not to tell anyone, and Clint testified that the children “had felt
more comfortable talking to Lora.” Id. at 164. Kirkley also claims that “M.T.’s testimony
that Kirkley continued to fondle him even while Kirkley’s son, who was present in the
bedroom, woke up and went downstairs ‘runs counter to human experience’ such that no
reasonable person could believe it.” Appellant’s Br. at 8. Again, we disagree. As the State
observes, “It was dark, Kirkley crouched down to avoid notice, and it is conceivable that a
bleary-eyed and semi-awake young child could have readily missed seeing him, especially
when Kirkley’s presence would have been wholly unexpected upstairs.” Appellee’s Br. at 6.
Kirkley states that Paula, who testified at trial, did not believe that he had any
opportunity to commit the molestation, “particularly given that she was likely awake
downstairs at the time [it was] alleged to have occurred,” and that Lora, “who did not testify
at trial, had a clear motive to coerce the children into making the allegations against [him].”
Appellant’s Br. at 9. These were credibility matters for the jury to determine, and we will not
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second-guess that determination on appeal.2 Kirkley also suggests that it is inherently
improbable that “Kirkley fondled M.T. in the presence of others but never while he and M.T.
were alone[.]” Id. It is not inherently improbable for a person to do something illegal in the
presence of others that he would not do when alone; indeed, it is common knowledge that
some may derive a thrill from the risk of being caught. In sum, we cannot say that M.T.’s
testimony was so incredibly dubious or inherently improbable that no reasonable person
could believe it. Therefore, we conclude that the “incredible dubiosity” rule is inapplicable
and affirm Kirkley’s conviction.
II. Appropriateness of Sentence
Kirkley asks us to reduce his sentence pursuant to Indiana Appellate Rule 7(B), which
states, “The 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.” Under this rule, the question “is not
whether another sentence is more appropriate; rather, the question is whether the sentence
imposed is inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). “The
defendant has the burden of persuading us that his sentence is inappropriate.” Id. at 267.
2
Kirkley places great emphasis on Clint and Lora’s purported motive to coerce M.T. and S.T. to make
false allegations against him in order to gain custody of the children. As mentioned above, Clint obtained
primary custody of the children in August or September 2011, and the molestations were not revealed until
January 2012. See, e.g., Tr. at 247 (Paula’s testimony); id. at 147 (Greene County Sheriff’s Deputy James
O’Malley’s testimony); Appellant’s App. at 13 (probable cause affidavit). Clint testified that the molestations
were revealed in January 2011, Tr. at 163, but this is obviously either a misstatement or a scrivener’s error in
the transcript. Subsequently, Paula was restricted to supervised visitation with the children. The jurors were
made aware of Clint and Paula’s custody dispute and were free to draw their own conclusions about the
parties’ motives and credibility.
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“When considering the nature of the offense, the advisory sentence is the starting
point to determine the appropriateness of a sentence.” Speer v. State, 995 N.E.2d 1, 13 (Ind.
Ct. App. 2013), trans. denied. The advisory sentence for a class C felony is four years, with
a range of two to eight years. Ind. Code § 35-50-2-6. Kirkley was sentenced to six years,
with one year suspended to probation. Kirkley argues,
When considering the particularized circumstances of this offense
compared to other offenses of this nature, there were no circumstances that set
this offense apart and warranted an aggravated sentence. While Kirkley was in
a position of trust, this can be said about the vast majority of child molesting
offenses. And while it is true this offense involved a young child, this too can
be said about many child molesting offenses. None of the circumstances in
this case warranted a sentence above the advisory sentence.
Appellant’s Br. at 10.
We strongly disagree. The unfortunate fact that many children are molested by a
person in a position of trust does not make this offense any less egregious, and M.T.’s young
age actually militates in favor of a sentence above the advisory term. See, e.g., Hart v. State,
829 N.E.2d 541, 544 (Ind. Ct. App. 2005) (“Abusing a position of trust is, by itself, a valid
aggravator which supports the maximum enhancement of a sentence for child molesting.”);
Hamilton v. State, 955 N.E.2d 723, 727 (Ind. 2011) (“[Y]ounger ages of victims tend to
support harsher sentences”); Ind. Code § 35-38-1-7.1(a) (stating that trial court may consider
as aggravating circumstances that victim of offense was less than twelve years old when
offense was committed and that defendant “was in a position having care, custody, or control
of the victim of the offense”). Kirkley molested the six- or seven-year-old son of his live-in
girlfriend as he lay in bed in the middle of the night and threatened him not to tell anyone “or
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else.” Tr. at 46. Quite simply, the disturbing nature of the offense demands a sentence
significantly longer than the four-year advisory sentence for a class C felony.
As far as his character is concerned, Kirkley acknowledges that he was convicted of
operating while intoxicated in 1988 but points out that he has otherwise “led a law-abiding
life.” Appellant’s Br. at 10. He also mentions his positive work history and strong social and
family support, as well as the probation officer’s determination that he would be at low risk
to reoffend. Be all that as it may, Kirkley’s abuse of his position of trust and his
victimization of a young child reflect negatively on his character, and ultimately he has failed
to persuade us that his sentence is inappropriate in light of both the nature of the offense and
his character. Therefore, we affirm his sentence.
Affirmed.
BAKER, J., and NAJAM, J., concur.
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