Stephen Brakie v. State of Indiana

FOR PUBLICATION Dec 20 2013, 6:13 am

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

JOHN JACOB WARRUM GREGORY F. ZOELLER
Mt. Vernon, Indiana Attorney General of Indiana

ANGELA N. SANCHEZ
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

STEPHEN BRAKIE, )
)
Appellant-Defendant, )
)
vs. ) No. 65A05-1304-CR-172
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )

APPEAL FROM THE POSEY CIRCUIT COURT
The Honorable James M. Redwine, Judge
Cause No. 65C01-1111-FA-592

December 20, 2013

OPINION - FOR PUBLICATION

BROWN, Judge
 Stephen Brakie appeals his conviction for child molesting as a class A felony,

raising three issues which we consolidate and restate as:

I. Whether the trial court abused its discretion by rejecting Brakie’s
proposed instruction regarding the presumption of innocence; and

II. Whether the evidence is sufficient to sustain his conviction for child
molesting as a class A felony.

We affirm.

FACTS AND PROCEDURAL HISTORY

In 2011, James Johnson, Jr., and Laura Martin were engaged to be married and

lived with Johnson’s three daughters including four-year-old N.J., who was born on

November 29, 2006. At some point, Johnson told Martin that the last time Brakie, a

friend of the family, was at their house something had come up missing, and he believed

Brakie “maybe . . . took it,” and Martin should watch Brakie. Transcript at 141.

On October 30, 2011, Brakie went over to Johnson’s house at around 5:30 p.m.

Martin was looking through boxes in the bedroom she shares with Johnson, and Johnson

was cleaning out the van outside by the side of the house. N.J. was with Brakie, and

Johnson’s two other daughters were outside playing on the swing set in the back yard. At

some point, Brakie asked Martin if he could have their puppy, and Martin said that he

would have to ask Johnson.

At some point, Brakie went into Martin’s bedroom, and Martin told him that he

should “go out there with James” because she was busy. Id. Brakie picked up N.J., put

her over his shoulder, and said, “Let’s go outside and play . . . .” Id. at 142.

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 Instead of going outside with N.J.’s other sisters, Brakie and N.J. went to the back

room, and Brakie pushed N.J. down and removed her tights. Brakie put a screwdriver in

her “privacy” or crotch area of her body and this hurt N.J. “[a] lot.” Id. at 207. N.J. was

scared, and Brakie told her that if she told anybody that he would give her a “butt

whipping.” Id. at 208. Brakie was with N.J. for between five and twenty-five minutes.

Martin continued unpacking the boxes and cleaning until Johnson’s two other

daughters came to her and said that N.J.’s “privacy was bleeding.” 1 Id. at 142. Martin

examined N.J.’s private area and discovered that N.J.’s “privacy’s [sic] was really

bloody, there was quite a lot of blood . . . and . . . the hole of her privacy was abnormally

large.” Id. at 143. There was blood “all over her vagina” and “coming down her legs.”

Id. at 173. Martin thought that it looked like “something had penetrated into her vagina.”

Id. at 143. N.J. said that it hurt “really bad.” Id.

Meanwhile, Johnson, who was still cleaning out his van, saw Brakie leave and

walk back down an alley. Martin came outside and was “kind of hysterical” and told

Johnson that he needed to come inside and check on N.J. Id. at 172. When Martin first

asked N.J. what happened, N.J. stated that she fell on a tool. Martin said, “Did something

else happen to you . . . [y]ou can tell me the truth, you don’t have to be scared,” and N.J.,

who seemed rather nervous, said “Yeah” and told Martin that Brakie hurt her. Id. at 144.

1
During cross-examination of Martin, the following exchange occurred:

[Defense Counsel]: And I believe you referred to it as her hole.

Laura Martin: Her privacy, hole, yes, the vagina entry where you usually have
sexual relations, yes.

Transcript at 153.

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Martin and Johnson then asked N.J. what had happened, and N.J. said that Brakie “had

stuck something up her privacy,” which she sometime later described as a green

screwdriver, which was a screwdriver of a color that Johnson had at one time, and N.J.

indicated that Brakie had taken the green screwdriver with him when he left. Id. at 143.

N.J. also stated that Brakie had inserted a grinder handle2 and a nail into her, and that

Brakie had said if she told on him he would “whoop her butt.” Id. at 143. Martin then

called the police.

Sometime that evening, Kathalene Keller, a sexual assault nurse examiner and an

emergency room nurse, examined N.J. and observed that she had no bruising or trauma to

her external genitalia but had a very large tear that was still actively bleeding to the

posterior fourchette which “almost extend[ed] into her rectum” and an abrasion next to

her hymen. Id. at 284. Keller also observed a lot of redness on N.J.’s internal genitalia.

N.J. was “very adamant” that the examination was “very painful” and was “very tearful

throughout the entire examination,” so that Keller had to take a lot of breaks. Id. at 286-

287. Keller did not ask N.J. any specific questions, but N.J. told Keller that Brakie used a

screwdriver.

On November 1, 2011, Jenny Wood, a child forensic interviewer and an employee

of Holly’s House, a child and adult advocacy center located in Evansville, interviewed

N.J. N.J. initially told Wood that she fell, that Brakie pushed her, she fell to the ground

and was hurt, and that Brakie pulled down her tights. She told Wood that Brakie “made

her privacy bleed . . . by tools.” Id. at 219. Wood showed N.J. an anatomically correct

2
Johnson testified that he did not have a grinder but had a grinder handle.

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drawing of a girl and asked her where she was hurt, and N.J. circled the vagina area. N.J.

described a green screwdriver and a tool “that was gray with pink on it” and brown. Id.

at 237. N.J. also mentioned that Brakie inserted a lot of things into her.

On December 2, 2011, the State filed an amended information charging Brakie

with child molesting as a class A felony. At trial, N.J. testified that Brakie put a

screwdriver in her “privacy,” which she indicated was the crotch area of her body, and

that it hurt a lot. Id. at 207. When asked how an injury such as N.J.’s would occur,

Keller answered that “to cause a tear to the posterior fourchette there would have to [be]

pressure or blunt force trauma applied to the internal genitalia, the female sex organ.” Id.

at 282. Keller also testified that N.J.’s injuries were not consistent with a straddle fall,

explaining that:

If [N.J.] would have had a straddle fall, or fell on anything, the whole
purpose of the labia majora on a female is actually to protect the internal
sex organ. If she would have fell onto something, she would have had
trauma to the inner thigh, and she also would have had trauma noted to the
labia majora, and she had none of that.

Id. at 285. Keller also testified that N.J.’s injuries were consistent with a tool being used

and with someone trying to push an object into her vagina, and that “That would be the

only way that you could actually get tearing to the posterior fourchette is when an object

is attempted to placed [sic] into the hymen, which is actually the entrance to the vaginal

canal.” Id. at 286.

On December 12, 2012, Brakie tendered a final instruction regarding the

presumption of innocence. The court refused to give the instruction and stated:

[Defense counsel] offered one (1) proposed final instruction, the Court
asked for authority as to whether that was an approved instruction.

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 [Defense counsel] attempted to find such authority, but was, has not been
able to do so. The Court is going to refuse the instruction as not being
supported with authority, and the Court finds it’s also not a correct
statement of the law.

Id. at 359. Defense counsel argued that the proposed instruction had been used in

multiple courts and was appropriate to give in this case. The court responded by stating:

I believe that every[ ]one of the points included in the instruction you
proposed are included in the Court’s definitions and there are two (2)
definitions from the Court on reasonable doubt. Court’s number 11 and
Court’s number 12, and so I think that Mr. Brakie’s position is well covered
by the Court’s instructions.

Id. at 361.3

The jury found Brakie guilty as charged. The court sentenced Brakie to serve

thirty years in the Department of Correction.

DISCUSSION

I.

The first issue is whether the trial court abused its discretion by rejecting Brakie’s

proposed instruction regarding the presumption of innocence. Generally, “[t]he purpose

of an instruction is to inform the jury of the law applicable to the facts without misleading

the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and

correct verdict.” Overstreet v. State, 783 N.E.2d 1140, 1163 (Ind. 2003), cert. denied,

540 U.S. 1150, 124 S. Ct. 1145 (2004). Instruction of the jury is generally within the

discretion of the trial court and is reviewed only for an abuse of that discretion. Id. at

1163-1164. When reviewing the refusal to give a proposed instruction, this court

3
The trial court referred to these instructions as “Court’s number 11 and Court’s number 12.”
Transcript at 361. The record does not contain a copy of the individual instructions but contains a
recitation of the instructions to the jury in the transcript which does not include a delineation of separate
instructions.
6
considers: (1) whether the proposed instruction correctly states the law; (2) whether the

evidence supports giving the instruction; and (3) whether other instructions already given

cover the substance of the proposed instruction. Driver v. State, 760 N.E.2d 611, 612

(Ind. 2002). Generally, to constitute an abuse of discretion, the instruction given must be

erroneous, and the instructions taken as a whole must misstate the law or otherwise

mislead the jury. Benefiel v. State, 716 N.E.2d 906, 914 (Ind. 1999), reh’g denied, cert.

denied, 531 U.S. 830, 121 S. Ct. 83 (2000).

An error is to be disregarded as harmless unless it affects the substantial rights of a

party. Oatts v. State, 899 N.E.2d 714, 727 (Ind. Ct. App. 2009); Ind. Trial Rule 61.

“Errors in the giving or refusing of instructions are harmless where a conviction is clearly

sustained by the evidence and the jury could not properly have found otherwise.” Dill v.

State, 741 N.E.2d 1230, 1233 (Ind. 2001).

Brakie tendered the following jury instruction:

If the evidence in this case susceptible [sic] to two different
interpretations, each of which appears to you to be reasonable, and one of
which points to the guilt of the defendant, and the other to his innocence, it
is your duty, under law, to adopt that interpretation which will establish the
defendant’s innocence, and reject that which points to his guilt.

You will notice, however, that this rule applies only when both of
the two possible opposing conclusions appear to you to be reasonable. If,
on the other hand, one of the possible conclusions should appear to you to
be reasonable and the other to be unreasonable, it would be your duty to
adhere to the reasonable deduction and to reject the unreasonable, bearing
in mind, however, that even if the reasonable deduction points to the
defendant’s guilt, the entire proof must carry the convincing force required
by law to support a verdict of guilty.

Appellant’s Appendix at 21.

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 Brakie cites Robey v. State, 454 N.E.2d 1221 (Ind. 1983); Lee v. State, 964

N.E.2d 859 (Ind. Ct. App. 2012), trans. denied; and Matheny v. State, 983 N.E.2d 672

(Ind. Ct. App. 2013), clarified on reh’g, 987 N.E.2d 1169, trans. denied, for the

proposition that the trial court abused its discretion in refusing his tendered instruction.

At trial, the court issued certain relevant instructions, instructing the jury as part of

the preliminary instructions and the final instructions that “[u]nder the law of this State a

person charged with a crime is presumed to be innocent” and that “[y]ou should attempt

to fit the evidence to the presumption that Stephen J. Brakie is innocent . . . .” Transcript

at 101. The court also informed the jury of the State’s burden as follows:

To overcome the presumption of innocence the State must have
proved Stephen J. Brakie guilty of each element of the crime charged,
beyond a reasonable doubt. Mr. Brakie is not required to present any
evidence to prove or explain anything. . . . The burden is upon the State to
prove beyond a reasonable doubt that Stephen J. Brakie is guilty of the
crime charged. It is a strict and heavy burden. The evidence must
overcome any reasonable doubt concerning Mr. Brakie’s guilt. But it does
not mean that Mr. Brakie’s guilt must be proved beyond all possible doubt.
A reasonable doubt is a fair, actual, and logical doubt based upon reason
and common sense. A reasonable doubt may arise either from the evidence
or from a lack of evidence. Reasonable doubt exist [sic] when you are not
firmly convinced of Mr. Brakie’s guilt, after you have weighted [sic] and
considered all of the evidence. Mr. Brakie must not be convicted on
suspicion or speculation. It is not enough for the State to show that Mr.
Brakie is probably guilty. On the other hand there are very few things in
this world that we know with absolute certainty. The State must prove each
element of the crime by evidence that convinces each of you, and leaves no
reasonable doubt. The proof must be so convincing that you can rely and
act upon it in this matter of the highest importance. If you find that there is
a reasonable doubt that Stephen J. Brakie is guilty of the crime, you must
give Mr. Brakie the benefit of that doubt, and find Mr. Brakie not guilty of
the crime under consideration. A reasonable doubt is a fair, actual, and
logical doubt, that arises in your mind after an impartial consideration of all
of the evidence and circumstances in the case. It should be a doubt based
upon reason and common sense. And not a doubt based upon imagination,
or speculation. To prove Stephen J. Brakie’s guilt of the elements of the

8
 crime charged, beyond a reasonable doubt the evidence must be such that it
would convince you of the truth of it. To such a degree of certainty that
you would feel safe to act upon such conviction without hesitation in a
matter of the highest concern and importance to you.

Id. at 426-427.

In Robey, the defendant tendered a jury instruction stating:

The law presumes the defendant to be innocent of the crime charged, and
this presumption continues in his favor throughout the trial of this cause. It
is your duty, if it can be reasonably and conscientiously done to reconcile
the evidence upon the theory that the defendant is innocent, and you cannot
find the defendant guilty of the crime charged in the information unless the
evidence satisfies you beyond a reasonable doubt of his guilt.

454 N.E.2d at 1222. The Court held that when such an instruction, “which advises the

jury that the presumption of innocence prevails until the close of the trial, and that it is

the duty of the jury to reconcile the evidence upon the theory of the defendant’s

innocence if they could do so, must be given if requested.” Id. (citing Farley v. State, 129

Ind. 419, 26 N.E. 898 (1891); Simmons v. State, 179 Ind. App. 342, 385 N.E.2d 225

(1979)).

In Farley, upon which Robey principally relies, the Indiana Supreme Court noted

that although the trial court “gave general instructions to the effect that the defendant is

presumed to be innocent until proven guilty beyond a reasonable doubt,” the instructions

did not address “the principle” put forward by the defendant’s tendered instruction,

namely, “that the presumption of innocence prevails throughout the trial, and that it was

the duty of the jury to reconcile the evidence upon the theory of the defendant’s

innocence, if they could do so.” 129 Ind. at 420-421, 26 N.E. at 899.

9
 We observe that unlike the instruction tendered by the defendant in Robey, the

instruction tendered by Brakie did not include the advisement that the presumption of

innocence prevails until the close of the trial. Moreover, Brakie’s counsel did not object

to the instructions for the failure to include such an advisement. Thus, we focus on

whether the trial court properly instructed the jury of the duty to reconcile the evidence

upon the theory of the defendant’s innocence if they could do so, which is the essence of

Brakie’s tendered instruction. See Scisney v. State, 701 N.E.2d 847, 849 (Ind. 1998)

(“We hold that appellate review of a claim of error in the giving of a jury instruction

requires a timely trial objection clearly identifying both the claimed objectionable matter

and the grounds for the objection, but that the tender of a proposed alternative instruction

is not necessarily required to preserve the claim of error.”).

We find Simpson v. State, 915 N.E.2d 511 (Ind. Ct. App. 2009), trans. denied,

instructive. In Simpson, the defendant tendered a similar final instruction to the one

requested by Brakie, specifically the following:

You should attempt to fit the evidence to the presumption that the Accused
is innocent.

If the evidence in this case is susceptible of two (2) constructions or
interpretations, each of which appears to you to be reasonable, and one of
which points to the guilt of the accused, and the other to his innocence, it is
your duty, under the law, to adopt the interpretation which is consistent
with the Accused’s innocence, and reject that which points to his guilt.

915 N.E.2d at 518. The trial court refused the instruction and instructed the jury as

follows:

You are the exclusive judges of the evidence, the credibility of the
witnesses, and of the weight to be given to the testimony of each of them.
In considering the testimony of any witness, you may take into account his

10
 or her ability and opportunity to observe; the manner and conduct of the
witness while testifying; any interest, bias, or prejudice the witness may
have; any relationship with other witnesses or interested parties; and the
reasonableness of the testimony of the witness considered in the light of all
of the evidence in the case.

You should attempt to fit the evidence to the presumption that the
defendant is innocent and the theory that every witness is telling the truth.
You should not disregard the testimony of any witness without a reason and
without careful consideration. If you find conflicting testimony, you must
determine which of the witnesses you will believe and which of them you
will disbelieve.

In weighing the testimony to determine what or whom you will believe,
you should use your own knowledge, experience, and common sense
gained from day-to-day living. The number of witnesses who testify to a
particular fact or the quantity of evidence on a particular point need not
control your determination of the truth. You should give the greatest
weight to that evidence which convinces you most strongly of its
truthfulness.

Id. at 518-519. On appeal, the defendant argued that while the court’s instruction

informed the jury to fit the evidence to the presumption of innocence, none of the court’s

instructions or combination of instructions informed the jury of their duty when the case

is susceptible of two constructions or interpretations. Id. at 519. This court agreed with

the State that the holding in Robey simply required an instruction that the jury should fit

the evidence to the presumption that a defendant is innocent and concluded that the trial

court did not abuse its discretion in refusing the defendant’s instruction. Id. at 520.

Here, we find that the court’s instructions adequately instructed the jury on the

presumption of innocence. Specifically, the court instructed the jury that under the law of

this State a person charged with a crime is presumed to be innocent and that “[y]ou

should attempt to fit the evidence to the presumption that Stephen J. Brakie is innocent . .

. .” Transcript at 101, 426. This instruction satisfied the Indiana Supreme Court’s

11
holding in Robey that the jury should fit the evidence to the presumption that a defendant

is innocent. See Smith v. State, 981 N.E.2d 1262, 1269 (Ind. Ct. App. 2013) (holding

that an instruction that the jury “should attempt to fit the evidence to the presumption that

the Defendant is innocent” satisfied the holding in Robey and concluding that the trial

court did not abuse its discretion in refusing to use the defendant’s tendered instruction

because the substance of that instruction was covered by instructions given by the court),

trans. denied; Simpson, 915 N.E.2d at 520; Watson v. State, 512 N.E.2d 885, 888 (Ind.

Ct. App. 1987) (holding that the court did not err in refusing to give the defendant’s

tendered instruction which was based upon Farley because “the substance of the refused

instruction was adequately covered”). We cannot say that the trial court abused its

discretion in declining to give Brakie’s tendered instruction or that reversal is warranted

on this basis.

To the extent that Brakie cites Matheny, we do not find that reversal is required.

Brakie appears to argue that the instruction in Matheny was incomplete as opposed to his

complete instruction. The court in Matheny found that the defendant’s tendered

instruction was incomplete based upon Simpson. 983 N.E.2d at 680. However, as

pointed out in Matheny, incompleteness was one of two reasons that the Simpson court

affirmed the trial court’s refusal of the tendered instruction. Matheny, 983 N.E.2d at 680

n.6. The Simpson court explained:

The State contends that Simpson’s tendered instruction was “incomplete
because it failed to inform the jury that they could in fact conclude that one
of the two opposing conclusions was unreasonable.” Appellee’s Br. at 11.
The State further contends that “[o]ur Supreme Court’s holding in Robey
simply required an instruction that the jury should fit the evidence to the
presumption that a defendant is innocent” and that the trial court’s

12
 instruction “informed the jury as required by Robey.” Id. We agree with
the State and therefore conclude that the trial court did not abuse its
discretion in refusing Simpson’s instruction. Consequently, we affirm
Simpson’s convictions.

Simpson, 915 N.E.2d at 520. We cannot say that the fact that Brakie’s tendered

instruction was more complete than the instruction tendered by the defendant in Simpson

requires reversal because we conclude that the trial court’s instructions informed the jury

of the duty to reconcile the evidence upon the theory of the defendant’s innocence if they

could do so, which was one of the court’s bases for affirming in Simpson. We also

observe that the instruction in Matheny indicated that the presumption of innocence

continues in favor of the accused throughout the trial, 983 N.E.2d at 678, and, as clarified

by the court on rehearing, the instructions that the trial court gave the jury did not

adequately convey the substance of Matheny’s tendered instructions. 987 N.E.2d at

1172. Unlike Matheny, the instruction tendered by Brakie did not include the advisement

that the presumption of innocence prevails until the close of the trial, and, moreover,

Brakie’s counsel did not object to the instructions for the failure to include such an

advisement.

With respect to Brakie’s reliance on Lee v. State, 964 N.E.2d 859 (Ind. Ct. App.

2012), trans. denied, we find Lee distinguishable. In Lee, the defendant’s tendered

instruction was more extensive and included the idea that the presumption continues in

favor of the accused throughout the trial. 964 N.E.2d at 863. Further, the trial court in

Lee did not inform the jury that it “should attempt to fit the evidence to the presumption”

that the defendant was innocent as the trial court did in this case. Transcript at 101.

Thus, we cannot say as we did in Lee that the trial court’s instructions “do not satisfy

13
Robey’s dictate that a jury be specifically instructed, if requested by a defendant, ‘that the

jury should fit the evidence to the presumption that a defendant is innocent. . . .’” 964

N.E.2d at 865 (quoting Simpson, 915 N.E.2d at 520).

II.

The next issue is whether the evidence is sufficient to sustain Brakie’s conviction

for child molesting as a class A felony. When reviewing the claim of sufficiency of the

evidence, we do not reweigh the evidence or judge the credibility of the witnesses. Jones

v. State, 783 N.E.2d 1132, 1139 (Ind. 2003). We look only to the probative evidence

supporting the verdict and the reasonable inferences therein to determine whether a

reasonable trier of fact could conclude the defendant was guilty beyond a reasonable

doubt. Id. If there is substantial evidence of probative value to support the conviction, it

will not be set aside. Id. Ind. Code § 35-42-4-3 provides in part: “[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” and that “[h]owever,

the offense is a Class A felony if . . . it results in serious bodily injury . . . .”

Brakie argues that the evidence is insufficient to support his conviction because

“all of the testimony regarding any of the elements of I.C. 35-42-4-3 or of the alleged

incident is based upon the testimony and statement of the alleged victim, a four (4) year

old child.” Appellant’s Brief at 6. Brakie contends that N.J. told at least three (3)

different stories during the course of the investigation and trial and that the incredible

dubiosity rule should apply.

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 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 N.J.’s trial testimony was not inherently contradictory, equivocal, or unworthy of

credit. The State also contends that N.J.’s trial testimony is not incredibly dubious

merely because she made inconsistent pretrial statements and that it was for the jury to

resolve any conflicting evidence.

To the extent Brakie asserts that the incredible dubiosity rule requires reversal of

his conviction, 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.

Brakie points to the testimony of Martin, Johnson, N.J., and Wood for the idea that

N.J. told at least three different stories. On the pages cited by Brakie referring to N.J.’s

testimony, N.J. testified that Brakie hurt her in the back room by putting a screwdriver in

her vagina and that she told her mother that she fell down. On redirect examination, N.J.

indicated that Brakie pushed her down, pulled down her tights, and stuck something into

her vagina which hurt. N.J. also testified that she was scared to tell her mother that

Brakie pushed her down and tried to stick something in her, and she testified on direct

15
examination that Brakie had told her that if she told anyone he would give her a “butt

whipping.” Transcript at 208.

Brakie fails to show that the testimony of N.J. was inherently contradictory. To

the extent her testimony conflicted with the testimony of Martin, Johnson, or Wood, or

considering Brakie’s argument that N.J.’s testimony was less believable, we note that this

is an issue of witness 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, 783 N.E.2d at 1139. Further, we cannot say that N.J.’s testimony that Brakie

pushed her down, removed her tights, and stuck a screwdriver into her vagina was so

inherently improbable that no reasonable person could believe it. Brakie does not show

how the testimony against him was somehow internally inconsistent and has not shown

N.J.’s testimony to be incredibly dubious. We also note that Keller, the sexual assault

nurse examiner, examined N.J. and observed that she had no bruising to her external

genitalia, but had a very large tear that was still actively bleeding which almost extended

to her rectum, and that N.J.’s injuries were not consistent with a straddle fall but instead

were consistent with a tool being used and with someone trying to push an object into her

vagina.

Based upon our review of the evidence and testimony most favorable to the

conviction as set forth in the record and above, we conclude that sufficient evidence

exists from which the trier of fact could find Brakie guilty beyond a reasonable doubt of

child molesting as a class A felony. See Hampton v. State, 921 N.E.2d 27, 29 (Ind. Ct.

16
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 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.

For the foregoing reasons, we affirm Brakie’s conviction for child molesting as a

class A felony.

Affirmed.

ROBB, C.J., and BARNES, J., concur.

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