Opinion
24A-CR-639
11-13-2024
Charles W. Tharp, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Ronald J. Moore The Moore Law Firm, LLC Richmond, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Michelle Hawk Kazmierczak Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Randolph Circuit Court The Honorable Jay L. Toney, Judge Trial Court Cause No. 68C01-2206-F4-254
ATTORNEY FOR APPELLANT Ronald J. Moore The Moore Law Firm, LLC Richmond, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Michelle Hawk Kazmierczak Deputy Attorney General Indianapolis, Indiana
Judges Bailey and Foley concur.
MEMORANDUM DECISION
Bradford, Judge.
Case Summary
[¶1] Charles W. Tharp was convicted of five counts of Level 4 felony sexual misconduct with a minor, for acts involving his daughter, K.T. K.T. testified at trial that on several separate occasions, her father had forced her to engage in sexual acts including penetration of her anus by his penis, digital penetration of her vagina by his finger, oral sex by K.T. placing her mouth on his penis, oral sex by Tharp placing his mouth on K.T.'s vagina, and sexual intercourse. Tharp challenges the sufficiency of the evidence to sustain his convictions, arguing that K.T.'s testimony was incredibly dubious. Tharp also contends that the trial court abused its discretion in sentencing him to an aggregate sixteen-year sentence and that his sentence is inappropriate. Because we disagree with each of Tharp's contentions, we affirm.
Facts and Procedural History
[¶2] In May of 2021, fourteen-year-old K.T. was living in Union City with her stepmother, half-brother, and father, Tharp. One day, when K.T. had come home early from a summer physical-education class at school, Tharp came home from work and asked K.T. about her day. A few minutes later, Tharp returned to K.T.'s bedroom wearing only underwear. Tharp proceeded to grab K.T.'s legs and force anal sex onto her, despite K.T. telling him to stop. After the incident, Tharp took a shower, while K.T. "put back on [her] shorts, went under a blanket[,] and cried." Tr. Vol. II p. 69.
[¶3] Two months later, in August of 2021, after K.T. had come home from school, Tharp came into her bedroom, removed her jeans and underwear, and put his mouth on her genitals. He proceeded to perform oral sex on K.T. and subsequently forced K.T. to "give him oral back." Tr. Vol. II p. 71. This continued until Tharp ejaculated.
[¶4] A few months later, while K.T. and Tharp were watching a Harry Potter movie on the bed in Tharp's bedroom, Tharp began groping K.T.'s breasts. Eventually, K.T.'s younger half-brother came into the room, and, while lying between K.T. and her half-brother, Tharp inserted his finger into K.T.'s vagina. K.T. wondered "why he was doing it in front of his son" and felt "[m]ore ashamed than anything." Tr. Vol. II p. 74.
[¶5] On another occasion when K.T. stayed home from school, Tharp instructed her to get on her bed, groped her breasts, put on a condom, and had sexual intercourse with her. During this incident, Tharp told K.T. that she looked "so much like [her] mom." Tr. Vol. II p. 77. When the condom "almost came off[,]" Tharp paused to put the condom in place before stating "we don't need a chance of anything happening[,] you don't need to be pregnant." Tr. Vol. II p. 78. Afterwards, Tharp took a shower, and K.T. threw a blanket over herself.
[¶6] K.T. eventually reported Tharp's actions to friends, an adult at school, and her stepmother, who informed the police. A forensic interview of K.T. was conducted at the Child Advocacy Center, during which K.T. disclosed the incidents.
[¶7] On June 30, 2022, the State charged Tharp with five counts of Level 4 felony sexual misconduct with a minor. Following a bench trial, the trial court found Tharp guilty as charged and sentenced him to an aggregate sixteen-year sentence, with fourteen years executed and two years suspended to probation. In sentencing Tharp, the trial court found no mitigating circumstances and the following aggravating circumstances: (1) that the "harm, injury, loss or damage suffered by the victim of the offense was significant and greater than the elements necessary to prove the commission of the offense;" (2) that Tharp "has a history of criminal or delinquent behavior, including a probation violation;" and (3) that Tharp "was in a position of having care, custody, or control of the victim of the offense." Appellant's App. Vol. II p. 92-93.
Discussion and Decision
I. Sufficiency of the Evidence
[¶8] Tharp first challenges the sufficiency of the evidence supporting his convictions for sexual misconduct with a minor.
When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court's ruling. Appellate courts affirm the conviction unless no reasonable factfinder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence
overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal brackets, citations, and quotations omitted). Stated differently, in reviewing the sufficiency of the evidence, "we consider only the evidence and reasonable inferences most favorable to the convictions, neither reweighing evidence nor reassessing witness credibility" and "affirm the judgment unless no reasonable factfinder could find the defendant guilty." Griffith v. State, 59 N.E.3d 947, 958 (Ind. 2016).
[¶9] In order to prove that Tharp committed Level 4 felony sexual misconduct with a minor, the State was required to prove that Tharp, a person who was at least twenty-one years old, "knowingly or intentionally perform[ed] or submit[ed] to sexual intercourse or other sexual conduct . . . with a child less than sixteen (16) years of age." Ind. Code § 35-42-4-9(a)(1). Other sexual conduct is defined as an act involving "a sex organ of one (1) person and the mouth or anus of another person" or "the penetration of the sex organ or anus of a person by an object." Ind. Code § 35-31.5-2-221.5.
[¶10] As charged, the State was required to prove that Tharp had performed sexual intercourse with K.T., placed his penis in K.T.'s mouth, digitally penetrated K.T.'s vagina, placed his mouth on K.T.'s vagina, and placed his penis in K.T.'s anus. In challenging the sufficiency of the evidence, Tharp argues that K.T.'s testimony was incredibly dubious. Specifically, Tharp asserts that K.T.'s testimony was "both inherently improbable and equivocal," and that her testimony about contemporaneous events is "impossible." Appellant's Br. p.
20. We are not persuaded.
[¶11] Under theincredible dubiosity rule,
this court may impinge upon the [fact-finder]'s responsibility to judge the credibility of witnesses when confronted with inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony. If a sole witness presents inherently improbable testimony and there is a complete lack of circumstantial evidence, a defendant's conviction may be reversed. Application of this rule is rare, though, and the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it. This incredible dubiosity rule applies only when a witness contradicts himself or herself in a single statement or while testifying, and does not apply to conflicts between multiple statements.Livers v. State, 994 N.E.2d 1251, 1256 (Ind.Ct.App. 2013) (internal citations and quotations omitted). Furthermore, it is well-established that "a conviction may be based on the sole uncorroborated testimony of the victim, even if that victim is a minor." Smith v. State, 432 N.E.2d 1363, 1372 (Ind. 1982).
[¶12] Tharp cites to multiple conflicts between K.T.'s testimony and the testimony of other witnesses in support of his incredible-dubiosity claim. For instance, regarding the incident involving anal sex in June of 2021, Tharp suggests that the misconduct that K.T. described could not have occurred because, while K.T. testified that the family dog had been present, her stepmother had testified that they had not gotten the dog until July of 2021. Tharp further suggests that both this misconduct and the August misconduct could not have occurred because K.T. testified that Tharp had been wearing boxers during the abuse, and Tharp testified that he wore briefs, not boxers. Tharp additionally argues that K.T.'s testimony regarding the sexual intercourse was incredibly dubious because K.T. had testified that Tharp had been fired on that day, when he had actually been sent home early from work that day and fired the following Monday.
To the extent that Tharp challenges K.T.'s testimony regarding an incident for which he was not charged, this alleged conduct did not result in criminal charges, and K.T.'s testimony about alleged events that occurred on that day is therefore irrelevant to whether the evidence presented at trial is sufficient to sustain his convictions.
To the extent that Tharp argues that K.T.'s testimony regarding exact dates is not supported by the record, we find this argument unconvincing, as it is not uncommon for children to have difficulty remembering exact dates of abuse. See Barger v. State, 587 N.E.2d 1304, 1307 (Ind. 1992) ("It is difficult for children to remember specific dates, particularly when the incident is not immediately reported .... The exact date becomes important only in limited circumstances, including the case where the victim's age at the time of the offense falls at or near the dividing line between classes of felonies.").
[¶13] While there may be some discrepancies between K.T.'s testimony and the testimony of other witnesses, namely Tharp and his wife, such discrepancies do not render K.T.'s testimony incredibly dubious. See Berry v. State, 703 N.E.2d 154, 160 (Ind. 1998) (providing that the incredible-dubiosity rule is applicable only to cases where a sole witness provides inherently contradictory testimony, and not to cases where there are conflicts between the testimony of numerous witnesses). It is the fact-finder's role, not ours, to resolve conflicts in the evidence and decide which witnesses to believe, and it is apparent that the trial court here believed K.T.'s testimony, despite some apparent inconsistencies. Kilpatrick v. State, 746 N.E.2d 52, 61 (Ind. 2001). The trial court, acting as the trier-of-fact, considered the testimony and found K.T. to be credible. Tharp's challenge to K.T.'s credibility is merely a request to reweigh the evidence, which we will not do. See Drane, 867 N.E.2d at 146. Tharp's other challenges regarding similar "conflicts" between his testimony and K.T.'s testimony are equally insignificant as they amount to nothing more than requests to reweigh the evidence.
For instance, Tharp claimed that he had not visited K.T.'s room alone or watched Harry Potter movies with her.
[¶14] Tharp also references minor inconsistencies between K.T.'s forensic interview and her testimony at trial. For instance, K.T. reported during the forensic interview that the first time her father had sexual intercourse with her, after performing oral sex on her, was "approximately a month after the first incident," and at trial, she reported that the incident in question, taking place around June of 2021, was anal sex. Ex. Vol. III p. 68-69. However, review of the record confirms that K.T.'s testimony at trial regarding the important facts of Tharp's sexual misconduct was consistent and unequivocal. K.T. acknowledged that she "might of said that it was something different" in a previous interview, but remained consistent with her testimony at trial. Tr. Vol. II pp. 86. Again, the trial court was in the best position to weigh the marginal inconsistencies between K.T.'s statements during her forensic interview and her trial testimony. On review, we cannot say that any inconsistencies between K.T.'s statements during her forensic interview and her trial testimony rendered her testimony inherently improbable and equivocal. The incredible-dubiosity rule therefore does not apply in this case.
[¶15] Finally, Tharp asserts that the police investigation prior to his arrest was "an incomplete investigation." Appellant's Br. p. 18. For example, Tharp claims, with regard to the persons at school to whom K.T. had allegedly reported the incidents, that "no statements or testimony were taken of the two named individuals as witnesses in the investigation." Appellant's Br. p. 23-24.
However, Tharp cites no authority and makes no cogent argument as to why the actions, or inactions, taken by police during their investigation rendered K.T.'s testimony incredibly dubious or improbable; this argument is therefore waived. See, e.g., Hollowell v. State, 707 N.E.2d 1014, 1025 (Ind.Ct.App. 1999) ("Failure to present a cogent argument constitutes a waiver of that issue for appellate review."). Considering only the evidence and reasonable inferences favorable to the convictions, we are not convinced that the evidence in this case is insufficient to sustain Tharp's convictions.
II. Sentencing-Abuse of Discretion
[¶16] Tharp next contends that the trial court abused its discretion by "improperly consecutiz[ing]" his sentence. Appellant's Br. p. 27. "Sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for abuse of discretion." Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), modified on other grounds on reh'g, 875 N.E.2d 218 (Ind. 2007). "An abuse of discretion occurs if the decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom." Id. (quotation omitted).
[¶17] We review for an abuse of discretion the court's finding of
aggravators and mitigators to justify a sentence, but we cannot review the relative weight assigned to those factors. When reviewing the aggravating and mitigating circumstances identified by the trial court in its sentencing statement, we will remand only if the record does not support the reasons, or the sentencing statement omits reasons that are clearly supported by the record, and advanced for consideration, or the reasons given are improper as a matter of law.Baumholser v. State, 62 N.E.3d 411, 416 (Ind.Ct.App. 2016) (internal citations and quotation omitted), trans. denied. "A single aggravating circumstance may be sufficient to enhance a sentence." Id. at 417 (internal quotation omitted).
[¶18] The trial court must find at least one aggravating circumstance in order to impose consecutive sentences. Morgan v. State, 675 N.E.2d 1067, 1073 (Ind. 1996). Furthermore, we have held that there is "no basis for holding that a trial court is restricted to a one-step balancing process when sentencing a defendant for multiple crimes." Frentz v. State, 875 N.E.2d 453, 472 (Ind.Ct.App. 2007), trans. denied. Rather, a trial court is permitted to "consider aggravators and mitigators in determining the sentence for each underlying offense and then to independently consider aggravators and mitigators in determining whether to impose concurrent or consecutive sentences." Id.
[¶19] Here, the trial court specifically found the following aggravating factors: (1) "[t]he harm, injury, loss or damage suffered by the victim of the offense was significant and greater than the elements necessary to prove the commission of the offense;" (2) "[t]he Defendant has a history of criminal or delinquent behavior, including a probation violation;" and (3) "[t]he Defendant was in a position of having care, custody, or control of the victim of the offense." Appellant's App. Vol. II pp. 92-93. The trial court found no mitigating circumstances and sentenced Tharp to slightly aggravated eight-year terms of incarceration for each count of sexual misconduct with a minor. At sentencing, the trial court imposed concurrent eight-year sentences on Counts 1, 2, and 4 ("Group 1"). The trial court also imposed concurrent eight-year sentences for Counts 3 and 5 ("Group 2") and imposed consecutive sentences between Groups 1 and 2.
[¶20] Tharp argues that "there is nothing to illustrate that the counts should be consecutive other than the generalized statements which were already the source of aggravating the sentences on each count to begin with." Appellant's Br. p. 27. We disagree. First, Tharp seems to be arguing that the same aggravating circumstances cannot be used to both impose enhanced and consecutive sentences, when it is well-settled that this is perfectly appropriate. See, e.g., Moore v. State, 569 N.E.2d 695, 699 (Ind.Ct.App. 1991) ("The same factors that support imposing enhanced sentences can support consecutive service of them."), trans denied. To justify the consecutive sentences between Group 1 and Group 2, the trial court further stated that the "State's reasoning was solid with regard to the aggravating circumstances applying to the case such that the Court should have some of these Counts consecutive." Tr. Vol. II p. 184. The State's reasoning, detailed both before the trial court and in the State's sentencing memorandum, included the three aggravating factors found by the trial court and the consideration that Tharp's sexual misconduct with K.T. occurred on separate and repeated occasions.
[¶21] Tharp relies on Hickman v. State, 537 N.E.2d 64 (Ind.Ct.App. 1989), to support his argument that the trial court's consecutive sentencing decision was based on mere conclusory statements. He further relies on Ortiz v. State, 766 N.E.2d 370 (Ind. 2002), to argue that "it is inappropriate for the trial court to identify that the matters were two sets of circumstances occurring at separate times" and that the trial court's decision "falls short of justifying aggravated sentences imposed consecutively." Appellant's Br. p. 28. However, both Hickman and Ortiz are readily distinguishable from this case. In Hickman, we concluded that the trial court's determination that consecutive sentences were appropriate completely lacked findings to justify the sentence. 537 N.E.2d at 68. In Ortiz, we concluded that the trial court had abused its discretion in imposing consecutive sentences because it had failed to "identify, explain, and evaluate any aggravating circumstances" required to impose the consecutive sentence. 766 N.E.2d at 377.
[¶22] The trial court here, unlike in Hickman and Ortiz, found multiple aggravating factors supporting the slight aggravation of the sentences for each of the counts and the consecutive nature of the sentences from Groups 1 and 2. The trial court was well within its discretion to impose a sixteen-year sentence.
III. Sentencing-Appropriateness
[¶23] Tharp additionally argues that his sentence is inappropriate in light of his character and the nature of his offense. Indiana Appellate Rule 7(B) provides that "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." In analyzing such claims, we "concentrate less on comparing the facts of [the case at issue] to others, whether real or hypothetical, and more on focusing on the nature, extent and depravity of the defendant's character." Paul v. State, 888 N.E.2d 818, 825 (Ind.Ct.App. 2008) (internal quotation omitted), trans denied. The defendant bears the burden of persuading us that his sentence is inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind.Ct.App. 2008). Tharp claims that his sentence is inappropriate because it is an "outlier" in consideration of "other like cases." Appellant's Br. p. 32. We disagree.
[¶24] The nature of the offense is "found in the details and circumstances of the commission of the offenses and the defendant's participation," Croy v. State, 953 N.E.2d 660, 664 (Ind.Ct.App. 2011). Tharp concedes that the alleged offenses "are serious." Appellant's Br. p. 33. Indeed, the record demonstrates that Tharp, on at least four separate occasions over the course of a year, sexually violated his fourteen-year-old daughter. At the time, Tharp was in a position of trust and care over his daughter, who had moved into his home seeking stability after her mother and grandfather had been diagnosed with serious illnesses. The nature of Tharp's offenses fully justifies his sentence.
[¶25] Regarding his character, Tharp contends that he is not the "worst of offenders" and that he "has maintained his innocence." Appellant's Br. p. 32. We note that "[t]he character of the offender is found in what we learn of the offender's life and conduct." Croy, 953 N.E.2d at 664. Tharp's abuse of his position of trust as K.T.'s father, to say the least, does not speak well of his character. Moreover, despite Tharp's contention that he has "led a generally law-abiding life up until the offenses allegedly occurred," his criminal history includes seven misdemeanor convictions and one probation revocation. Appellant's Br. p. 28. Two of Tharp's prior convictions involved physical violence, including one conviction for domestic battery and one family-related conviction for assault. It is also noteworthy that Tharp was placed on probation for one year for the domestic battery conviction, which probation was revoked. These facts reflect poorly on Tharp's character. In light of the nature of his offenses and his character, Tharp has failed to convince us that his sixteen-year sentence is inappropriate. See Sanchez, 891 N.E.2d at 176.
To the extent that Tharp relies on Rivers v. State, 915 N.E.2d 141 (Ind. 2009), his reliance is misplaced. Unlike Tharp, the defendant in Rivers had no prior convictions, stopped his misconduct (which occurred on two occasions) on his own accord, and was sentenced to two consecutive maximum sentences before his sentence was revised. 915 N.E.2d at 144.
[¶26] The judgment of the trial court is affirmed.
Bailey, J., and Foley, J., concur.