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 Feb 27 2013, 9:50 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
NOAH T. WILLIAMS GREGORY F. ZOELLER
STUART K. BAGGERLY Attorney General of Indiana
Monroe County Public Defender
Bloomington, Indiana KATHERINE MODESITT COOPER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MICHAEL CHAMBERS, )
)
Appellant-Defendant, )
)
vs. ) No. 53A01-1209-CR-401
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MONROE CIRCUIT COURT
The Honorable Teresa D. Harper, Judge
Cause No. 53C09-1106-FB-558
February 27, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
Michael Chambers (“Chambers”) was convicted of two counts of Sexual Misconduct
with a Minor, as Class B felonies.1 He challenges one of those convictions2 and the aggregate
forty-year sentence imposed. We affirm his convictions but remand to the trial court with
instructions to impose concurrent sentences.
Issues
Chambers presents two issues for review:
I. Whether the evidence is sufficient to support the conviction for Sexual
Misconduct based upon sexual intercourse; and
II. Whether his sentence is inappropriate.
Facts and Procedural History
During the spring of 2011, C.F. lived in a Bloomington, Indiana townhouse with her
four daughters, including fourteen-year-old S.F. Because C.F.’s best friend and her friend’s
fiancé, Chambers, were homeless, C.F. allowed them to temporarily move into the
townhouse. Chambers, who was unemployed, began to spend time with S.F., do errands for
her, and purchase small things for her.
One evening around midnight, S.F. went into her kitchen to get a drink of water.
Chambers came into the kitchen and he and S.F. began kissing. S.F. removed her sweatpants
and Chambers inserted the tip of his penis into S.F.’s vagina. She pushed Chambers away
1
Ind. Code § 35-42-4-9.
2
Chambers challenges the conviction based upon sexual intercourse and does not challenge the conviction
based upon deviate sexual conduct by digital penetration.
2
because the activity hurt her, and he stopped. On another occasion, Chambers put his finger
into S.F.’s vagina. S.F. indicated that she was in pain, and Chambers stopped.
On June 21, 2011, the State charged Chambers with two counts of Sexual Misconduct
with a Minor. On July 6, 2012, Chambers was tried in a bench trial and found guilty as
charged. He received two twenty-year sentences, to be served consecutively. He now
appeals.
Discussion and Decision
I. Sufficiency of the Evidence
Chambers contends that the evidence is insufficient to support his conviction for
sexual misconduct by means of sexual intercourse. More specifically, he asks that we apply
the incredible dubiosity rule and disregard S.F.’s testimony because she was inconsistent
when asked whether sexual intercourse occurred.
To convict Chambers of Sexual Misconduct with a Minor, as a Class B felony, as
charged, the State was required to establish beyond a reasonable doubt that Chambers, a
person at least twenty-one years of age, engaged in sexual intercourse with S.F., a child less
than sixteen years of age. I.C. § 35-42-4-9(a)(1). Sexual intercourse is “an act that includes
any penetration of the female sex organ by the male sex organ.” I.C. § 35-31.5-2-302. The
statute defining sexual intercourse does not require that the vagina be penetrated, only that
the female sex organ be penetrated. Short v. State, 564 N.E.2d 553, 559 (Ind. Ct. App.
1991). Penetration of the external genitalia, or vulva, is sufficient to support an unlawful
sexual intercourse conviction. Id.
3
When reviewing the sufficiency of the evidence needed to support a criminal
conviction, we neither reweigh evidence nor judge witness credibility. Henley v. State, 881
N.E.2d 639, 652 (Ind. 2008). We consider only the evidence supporting the judgment and
any reasonable inferences that can be drawn from such evidence. Id. We will affirm if there
is substantial evidence of probative value such that a reasonable trier of fact could have
concluded the defendant was guilty beyond a reasonable doubt. Id.
Pursuant to the “incredible dubiosity rule,” this Court may impinge upon the
responsibility of the fact-finder to judge the credibility of witnesses when confronted with
inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony.
Manuel v. State, 971 N.E.2d 1262, 1271 (Ind. Ct. App. 2012). A defendant’s conviction may
be reversed where a sole witness presents inherently improbable testimony and there is a
complete lack of circumstantial evidence. Id. However, application of the 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.
S.F. was sixteen years old at the time of trial but was somewhat developmentally
delayed.3 The prosecutor asked S.F. if she knew what “sex” meant and S.F. responded:
“where the guy puts his penis in the girl’s vagina.” (Tr. 59.) She acknowledged that this was
sometimes referred to “as sexual intercourse.” (Tr. 59.) S.F. alternately told the prosecutor
that she and Chambers had sexual intercourse, did not have sexual intercourse, and “I don’t
3
The extent or nature of S.F.’s disability is not developed in the record. Her mother testified that she needed
reminders to bathe and had an individualized educational plan at school. Relying upon triple hearsay, the State
points to testimony from Detective Sarah Carnes that Chambers had, in his police statement, indicated his
belief that S.F. “had the mind of an eight year old according to what doctors had told the family.” (Tr. 186.)
Nonetheless, S.F. provided articulate and detailed testimony in court.
4
know.” (Tr. 61.) However, S.F. also testified that Chambers “put the tip of his penis in [her]
vagina” and later specified it was “the head.” (Tr. 64, 66.) The prosecutor asked S.F. to
“show the Judge with your fingers how much went in” and S.F. complied. (Tr. 66.) On
cross-examination, S.F. agreed with the defense attorney that she “never had sex with
[Chambers].” (Tr. 93.) On re-direct, she stated that Chambers “put his penis in me” and
illustrated for the court “that much.” (Tr. 96.)
At first blush, S.F.’s testimony seems inconsistent. However, she repeatedly described
(and twice provided visual illustrations of) an act that would constitute sexual intercourse
under Indiana law. She was unequivocal as to the occurrence of penetration but apparently
became confused when asked to label the conduct. Her testimony is analogous to someone
repeatedly stating with certainty that she saw a killing but, when asked to categorize, being
uncertain if it was murder, manslaughter, or reckless homicide.
S.F. never equivocated in her testimony that Chambers inserted his penis into her
vagina. She simply did not categorize an act of slight penetration as “sexual intercourse.”
We do not find her testimony to be so inherently incredible as to justify application of the
incredible dubiosity rule.
II. Sentence
Chambers further contends that his aggregate forty-year sentence is inappropriate.
Under Appellate Rule 7(B), this “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.” It is the
5
defendant’s burden to persuade this court that his sentence “has met th[e] inappropriateness
standard of review.” Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007) (quoting
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)), clarified on reh’g, 875 N.E.2d 218
(Ind. 2007).
In Reid v. State, the Indiana Supreme Court reiterated the standard by which our
state appellate courts independently review criminal sentences:
Although a trial court may have acted within its lawful discretion in
determining a sentence, Article VII, Sections 4 and 6 of the Indiana
Constitution authorize independent appellate review and revision of a sentence
through Indiana Appellate Rule 7(B), which provides that a 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. The burden is on the
defendant to persuade us that his sentence is inappropriate.
876 N.E.2d 1114, 1116 (Ind. 2007) (internal quotation and citations omitted).
The Court more recently stated that “sentencing is principally a discretionary function
in which the trial court’s judgment should receive considerable deference.” Cardwell v.
State, 895 N.E.2d 1219, 1222 (Ind. 2008). “Ultimately the length of the aggregate sentence
and how it is to be served are the issues that matter.” Id. at 1224. Indiana’s flexible
sentencing scheme allows trial courts to tailor a sentence appropriate to the circumstances
presented. See id. Appellate review should focus on the aggregate sentence; a principal
purpose is to attempt to “leaven the outliers.” Id. at 1225. “Whether we regard a sentence as
appropriate at the end of the day turns on our sense of the culpability of the defendant, the
severity of the crime, the damage done to others, and myriad other factors that come to light
in a given case.” Id. at 1224.
6
Here, Chambers was convicted of two counts of Sexual Misconduct with a Minor. As
Class B felonies, each count carried a sentencing range of six to twenty years imprisonment,
with an advisory term of ten years. I.C. § 35-50-2-5. The trial court sentenced Chambers to
twenty years imprisonment for each offense and ordered that the sentences be served
consecutively. Accordingly, Chambers received the maximum possible sentence.
Applying Appellate Rule 7(B), we turn first to the nature of Chambers’ offenses.
Chambers took advantage of the hospitality and trust S.F.’s mother placed in him. He lured
S.F., then fourteen but apparently somewhat learning disabled, into sexual activities.
Chambers inserted the head of his penis into S.F.’s vagina and digitally penetrated her
vagina. In each of these incidents, Chambers stopped when S.F. indicated that she was in
pain.
With respect to his character, Chambers has eight felony convictions (for attempted
forgery, forgery, fraud, and theft). He also has misdemeanor convictions for furnishing
alcohol to a minor and possession of marijuana. He has previously violated parole and was
on parole when he committed the instant offenses.
Chambers directs our attention to our supreme court’s opinion in Walker v. State, 747
N.E.2d 536 (Ind. 2001). There, the appellant lacked a criminal history, had committed a
series of identical acts against a single victim, and there was no discernible physical injury,
leading the court to conclude that consecutive sentences of forty years each for two Class A
felony convictions of child molesting was manifestly unreasonable. Id. at 538. The sentence
was revised to a concurrent sentence of forty years. Id. Subsequently, in Harris v. State, 897
7
N.E.2d 927, 930 (Ind. 2008), our supreme court revised consecutive fifty-year sentences to
concurrent sentences where the appellant’s criminal history consisted of two class D felonies
involving theft and numerous traffic violations, which the court concluded were not
significant aggravators in relation to class A felony child molestation.
We find this authority to be instructive here. Although Chambers’ character does not
speak well of him, the incidents that gave rise to his convictions are not of a nature to justify
the maximum possible aggregate sentence. Because of Chambers’ extensive prior criminal
history, we agree with the trial court that an aggravated sentence is appropriate. However,
his criminal history is not significant in relation to sexual misconduct and his acts against
S.F. were not so separated in time, place, and circumstance as to make the imposition of
consecutive sentences appropriate. Simply put, we conclude that the forty-year sentence
imposed is an outlier. We therefore exercise our independent authority under the Indiana
Constitution and Appellate Rule 7(B), and thereby order the trial court to impose concurrent
twenty-year sentences, yielding an aggregate term of imprisonment of twenty years.
Conclusion
There is sufficient evidence to sustain Chambers’ convictions. Because we conclude
that his aggregate forty-year sentence is inappropriate, we order that his sentence be revised
to two concurrent terms of twenty years.
Affirmed in part, reversed in part, and remanded with instructions.
BROWN, J., concurs.
VAIDIK, J., dissents with opinion.
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______________________________________________________________________________
IN THE
COURT OF APPEALS OF INDIANA
MICHAEL CHAMBERS, )
)
Appellant-Defendant )
)
vs. ) No. 53A01-1209-CR-401
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
)
VAIDIK, Judge, dissenting.
I concur with the majority’s conclusion as to the sufficiency of the evidence against
Chambers. However, I respectfully dissent from the majority’s decision to revise Chambers’
sentence to two, concurrent twenty-year terms, decreasing his total sentence by half.
The majority cites two cases—Walker v. State, 747 N.E.2d 536, 537 (Ind. 2001) and
Harris v. State, 897 N.E.2d 927, 930 (Ind. 2008)—in support of its decision to revise
Chambers’ sentence. But in Walker, the defendant had no criminal history, and in Harris, the
defendant had two felony convictions for theft and a handful of traffic violations. Chambers,
9
by contrast, has amassed a much more significant criminal history: he has eight felony
convictions for theft, fraud, forgery, and attempted forgery. He also has misdemeanor
convictions for providing alcohol to a minor and possession of marijuana. He has violated
his parole three times in the past and was on parole when he committed the underlying
offenses. The number of Chambers’ convictions, coupled with his behavior following those
convictions, reflects negatively on his character.
When we consider the appropriateness of a sentence, “we exercise with great restraint
our responsibility to review and revise sentences, recognizing the special expertise of the trial
bench in making sentencing decisions.” Green v. State, 811 N.E.2d 874, 880 (Ind. Ct. App.
2004). Here, Chambers committed two separate and distinct acts of sexual misconduct
against fourteen-year-old S.F., who is developmentally disabled. On one occasion, Chambers
inserted the head of his penis into S.F.’s vagina, and on another occasion, Chambers digitally
penetrated S.F.’s vagina. Both acts caused S.F. pain. When committing these acts,
Chambers abused the hospitality and trust that his friend, S.F.’s mother, had granted him. I
believe the nature of these two offenses, coupled with Chambers’ significant criminal history,
makes the sentence imposed by the trial court fully appropriate.
I respectfully dissent and would affirm the sentence imposed by the trial court.
10