MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Apr 20 2018, 11:02 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven E. Ripstra Curtis T. Hill, Jr.
Ripstra Law Office Attorney General of Indiana
Jasper, Indiana
Ian McLean
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael A. Jackson, Jr., April 20, 2018
Appellant-Defendant, Court of Appeals Case No.
19A05-1711-CR-2728
v. Appeal from the Dubois Circuit
Court
State of Indiana, The Honorable Nathan A.
Appellee-Plaintiff. Verkamp, Judge
Trial Court Cause No.
19C01-1609-F1-793
Najam, Judge.
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Statement of the Case
[1] Michael A. Jackson, Jr. appeals his convictions for three counts of child
molesting, one as a Level 1 felony, the second as a Level 4 felony, and the third
as a Class C felony; two counts of criminal confinement, as Level 5 felonies;
and criminal confinement, as a Class C felony, following a bench trial. He
raises two issues for our review, which we restate as follows:
1. Whether the State presented sufficient evidence to support
his convictions.
2. Whether his sentence for his conviction of child molesting,
as a Level 1 felony, is inappropriate in light of the nature
of the offense and his character.
[2] We affirm.
Facts and Procedural History
[3] A.J. (“Mother”) entered into a relationship with Jackson in 2008 and the two
were married in 2013. Mother had two prior children, B.A. and C.Y.
(“Brother”), who resided with Mother and Jackson. Mother and Jackson had
one child together, Aa.A. (“Sister”). In early 2012, the family moved into a
house on Villa Drive in Jasper. While they resided in that house, B.A. shared a
room with Brother and Sister. At the end of the year, the family moved into a
house on 14th Street, which was also in Jasper.
[4] In August 2016, B.A., who was ten years old, called her father, A.A.
(“Father”), and told him that Jackson “was touching [her] inappropriately.”
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Tr. Vol. II at 142. While she was on the phone with Father, B.A. got “very”
upset. Id. at 58. After the call ended, Father called Mother to let her know
what B.A. had told him. After Father spoke with Mother, Mother made an
appointment for B.A. to see a social worker.
[5] On September 1, Shannon Egg, a social worker, saw B.A. for “[a]nxiety related
to sexual abuse.” Id. at 23. During the visit, B.A. disclosed to Egg that she had
been sexually abused. Based on what Egg had learned from B.A., she filed a
report with the Department of Child Services (“DCS”). That same day,
Stephanie Gilmour, a DCS employee, went to the family’s home in order to
investigate the suspected sexual abuse. After speaking with B.A., Gilmour
decided that B.A. should not be in the same home as Jackson, and B.A. went to
stay with her grandparents. Gilmour also scheduled a forensic interview for
B.A., which Gilmour later observed. After the forensic interview, Gilmour
substantiated B.A.’s claims and turned the case over to a caseworker.
[6] Sergeant George Hettinger with the Jasper Police Department also went to the
family’s home on September 1 in order to assist Gilmour. After he had arrived,
Sergeant Hettinger observed Gilmour interview B.A. Thereafter, on September
9, Sergeant Hettinger arrested Jackson. The State charged Jackson with child
molesting, as a Class C felony (Count I); criminal confinement, as a Class C
felony (Count II); child molesting, as a Level 4 felony (Count III); criminal
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confinement, as a Level 5 felony (Count IV); child molesting, as a Level 1
felony (Count V); and criminal confinement, as a Level 5 felony (Count VI).1
[7] Jackson waived his right to a jury trial, and the court held a bench trial on
August 8, 2017. During the trial, B.A. testified that she got along well with
Jackson at first, but that changed after “he started touching [her].” Id. at 131.
She further testified that Jackson touched her “[w]here [she] use[s] the
restroom.” Id. at 132. During her testimony, the following conversation
occurred:
[State]: What did he touch you with?
[B.A.]: His hand.
[State]: Okay. And what did he do with his hand?
[B.A.]: Rubbed.
[State]: He rubbed on what?
[B.A.]: My private part.2
1
Counts I and II were based on allegations that Jackson had touched and confined B.A. between February
1, 2012, and June 8, 2014. Counts III and IV were based on allegations that Jackson had touched and
confined B.A. between July 1, 2014, and October 31, 2015. And Counts V and VI were based on allegations
that Jackson had performed sexual conduct and confined B.A. between November 1, 2015, and August 31,
2016.
2
The State used an anatomically correct drawing of a girl and asked B.A. to identify where Jackson touched
her. B.A. circled the vagina, which she referred to as her “private part.” Id. at 133, Ex. at 8.
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[State]: Okay. And was he touching you under your clothes or
over your clothes.
[B.A.]: Both.
* * *
[State]: Did he touch you this way several times?
[B.A.]: Yes.
[State]: So sometimes he touched you under the clothes?
[B.A.]: Yes.
[State]: But sometimes over?
[B.A.]: Yes.
[State]: Okay. When he touched you under the clothes, how did
that happen? Can you tell the judge exactly how he managed to
touch you under your clothes?
[B.A.]: He would pull my pants down.
[State]: Okay. He would pull down your pants, and then what?
[B.A.]: He would just start rubbing.
[State]: And what would you do?
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[B.A.]: Sometimes I had tried to get away.
[State]: Okay. Were you able to get away?
[B.A.]: No.
[State]: What did he do to keep you from getting away?
[B.A.]: He would grab my arm and push me back in the position
I was in.
Id. at 133-34.
[8] B.A. testified that Jackson touched her for the first time when they lived on
Villa Drive. B.A. further testified that she would sometimes watch television in
Mother and Jackson’s room, and that Jackson would touch her while she was
in their room watching television. B.A. testified that Jackson continued to
touch her even after they moved to the house on 14th Street and that, one time,
Jackson touched her in a way that was different from the other times. She
stated that on one occasion, Jackson did more than touch the outside of her
vagina, but that he “got underneath the lips”3 and was “[g]rabbing and
rubbing.” Id. at 139. She further testified that Jackson kept her from getting
away that time when he “grabbed [her] arm and then held [her] back.” Id.
B.A. also testified that, one time while they lived in the house on 14th Street, he
3
B.A. used a diagram of female anatomy to determine where the touching had occurred.
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“asked [her] if it felt good.” Id. at 135. B.A. testified that Jackson told her not
to talk to anyone about his actions because “it was [their] little secret.” Id. at
145.
[9] The State also presented the testimony of Egg, Gilmour, Father, Mother, and
Brother at trial. Egg testified that B.A. had disclosed to her that B.A. had been
sexually abused. Egg also testified that it is “pretty common” for children who
have reported sexual abuse to have behavioral problems that include anxiety,
fear, and depression and that their school work is usually affected. Id. at 21.
She further testified that she is still seeing B.A.
[10] Father testified that he had noticed that B.A. had been “lashing out” and that
her grades, which had been decent during the prior school year, “were not very
good” from August to December 2016. Id. at 62. And Mother testified that
B.A. was “afraid” of Jackson. Id. at 85. Brother testified that B.A. would sleep
in Jackson’s room occasionally. He testified that he did not think there was a
problem with B.A. sleeping in Jackson’s room when she was younger, but that
it bothered him later because, as he put it: “it just—it seemed different to me
about how she was older, you know. She was—it just—I don’t know. It
seemed different.” Id. at 101. Brother also testified that they would sometimes
watch television in Mother and Jackson’s bedroom. Brother further testified
that B.A. had told him that she had been a victim of sexual abuse and that B.A.
would start crying when she told him about it. Jackson did not testify. At the
end of the bench trial, the court took the matter under advisement.
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[11] On August 16, the trial court found Jackson guilty as charged on all six counts
and entered judgment of conviction accordingly. At the sentencing hearing on
September 19, the trial court did not identify any mitigating circumstances and
sentenced Jackson to the advisory sentences for all six convictions, which
included four years for Count I, four years for Count II, six years for Count III,
three years for Count IV, thirty years for Count V, and three years for Count
VI, to be served concurrently. This appeal ensued.
Discussion and Decision
Issue One: Sufficiency of the Evidence
[12] Jackson first contends that there is insufficient evidence to support his
convictions. Jackson claims that there was insufficient evidence to support his
convictions because his convictions were only based on B.A.’s testimony at
trial, which he claims was incredibly dubious. Specifically, he asserts that her
testimony is incredibly dubious because “B.A. is not only imprecise in her
memory concerning dates, in most instances she is years off in her account,
and, as far as frequency, from a few times to every time they were alone.”
Appellant’s Br. at 16.
[13] For the incredible dubiosity rule to apply, there must be: “1) a sole testifying
witness; 2) testimony that is inherently contradictory, equivocal, or the result of
coercion, and 3) a complete absence of circumstantial evidence.” Moore v. State,
27 N.E.3d 749, 756 (Ind. 2015). Here, B.A. was not the “sole testifying
witness.” Id. Rather, Egg, Gilmour, Father, Mother, and Brother all testified
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and partially corroborated B.A.’s testimony. Further, B.A.’s testimony was
corroborated by ample circumstantial evidence. As such, the incredible
dubosity rule does not apply.
[14] Nonetheless, Jackson also asserts that the State failed to present sufficient
evidence because the State’s burden of proof at trial should have been “‘strict
proof’ beyond a reasonable doubt.” Appellant’s Br. at 18. But Jackson offers
no authority for such a standard. We hold that the State presented sufficient
evidence to support Jackson’s convictions.
Issue Two: Inappropriateness of Sentence4
[15] Jackson also contends that his sentence for child molesting, as a Level 1 felony,
is inappropriate in light of the nature of the offense and his character. Indiana
Appellate Rule 7(B) 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.” This court has recently held that “[t]he
advisory sentence is the starting point the legislature has selected as an
appropriate sentence for the crime committed.” Sanders v. State, 71 N.E.3d 839,
4
Jackson initially states that the trial court committed an “abuse of discretion” when it sentenced him
because the “trial court, and its probation department, did not articulate any mitigating circumstances.”
Appellant’s Br. at 19-20. However, Jackson’s actual argument is a challenge to “his sentence under Indiana
Appellate Rule 7(B)[.]” Id. Therefore, we will only analyze whether his sentence is inappropriate in light of
the nature of the offense and his character, and we will not consider whether the trial court abused its
discretion.
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844 (Ind. Ct. App. 2017). And the Indiana Supreme Court has recently
explained that:
The principal role of appellate review should be to attempt to
leaven the outliers . . . but not achieve a perceived “correct”
result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). Defendant has the burden to persuade us that the
sentence imposed by the trial court is inappropriate. Anglemyer v.
State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007),
decision clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).
Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).
[16] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we
regard a sentence as inappropriate 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 facts that come to light in a given case.” Id. at 1224.
The question is not whether another sentence is more appropriate, but rather
whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,
268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless
overcome by compelling evidence portraying in a positive light the nature of the
offense (such as accompanied by restraint, regard, and lack of brutality) and the
defendant’s character (such as substantial virtuous traits or persistent examples
of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
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[17] Here, the trial court convicted Jackson of child molesting, as a Level 1 felony.5
The sentencing range for child molesting, as a Level 1 felony, is twenty years to
fifty years, with an advisory sentence of thirty years. Ind. Code. § 35-50-2-4(c)
(2018). The trial court did not identify any mitigating circumstances. And,
while the trial court did not specifically identify any aggravating circumstances,
it stated that “the aggravators don’t, in my opinion, justify doing above the
advisory sentence[.]” Tr. Vol. II at 201. Accordingly, the trial court sentenced
Jackson to the advisory sentence of thirty years with the Department of
Correction.
[18] Jackson asserts that his thirty-year sentence is inappropriate in light of the
nature of the offense because the aggravating circumstances “found by
Probation are not significant, [are] contained within the charges themselves,
and the ‘significant and greater’ harm to the victim is ameliorated by the
number of serious felonies (six) with which Jackson is charged.” Appellant’s
Br. at 22. Jackson also contends that his sentence is inappropriate in light of his
character because he “he has a moderate risk assessment, his prior arrests were
[from] 1994 and before, he is likely to positively respond to probation, he has
never been incarcerated in the DOC, [and he] has exhibited good behavior in
5
Jackson does not specifically dispute his sentences for any of the other convictions. Rather, he only
contends that he “should be sentenced to less than the 30-year advisory sentence on Count 5[.]” Appellant’s
Br. at 24.
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jail[.]” Appellant’s Br. at 20. He further asserts “that a 30-year sentence for a
51-year old man is unreasonable.” Id. at 22. We cannot agree.
[19] Jackson was convicted on Count V for a Level 1 felony that was part of a
pattern of conduct which occurred over time. Not only did Jackson assault
B.A., but he resisted her efforts to escape from his grasp. Further, Jackson
asked B.A. “if it felt good.” Id. at 135. Jackson also told B.A. to never talk
about what happened because it was their “little secret.” Id. at 145. And,
significantly, Jackson was B.A.’s stepfather. As such, Jackson abused his
position of trust with B.A. Under these facts and circumstances, we cannot say
that Jackson’s sentence is inappropriate in light of the nature of the offense or
his character. Accordingly, we affirm his sentence.
[20] Affirmed.
Robb, J., and Altice, J., concur.
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