Court of Appeals of Indiana | Memorandum Decision 18A-CR-1152 | January 11, 2019 Page 1 of 14

MEMORANDUM DECISION

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

Theodore J. Minch

Sovich Minch, LLP

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Chandra K. Hein

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Timothy Dale Alford,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

January 11, 2019

Court of Appeals Case No.

18A-CR-1152

Appeal from the Shelby Superior 

Court

The Honorable R. Kent Apsley, 

Judge

Trial Court Cause No.

73D01-1703-F1-3

Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1152 | January 11, 2019 Page 2 of 14

Case Summary and Issues

[1] Following a jury trial, Timothy Alford was convicted of child molesting, a 

Level 1 felony, and admitted to being an habitual offender. The trial court 

sentenced him to thirty-five years for the conviction, enhanced by an additional 

ten years for the habitual offender finding. Alford appeals, raising two issues 

for our review: 1) whether the evidence was sufficient to support his conviction 

for child molesting and 2) whether the forty-five year sentence is inappropriate 

in light of the nature of his offense and his character. Concluding there was 

sufficient evidence to support his conviction and that his sentence is not 

inappropriate, we affirm.

Facts and Procedural History

[2] S.M. was born on May 11, 2001. His parents, Jeremy and Stacy, were divorced 

when he was very young, and Stacy had primary physical custody of S.M., with 

Jeremy having parenting time every other weekend. Jeremy remarried and he 

and his current wife, Sara, have three other children.1 In 2012, after Jeremy and 

Sara had a baby, Jeremy and S.M. lost contact. 

[3] In 2014, while S.M. continued to be in her physical custody, Stacy was running 

a daycare out of the first floor of her home on West Broadway in Shelbyville. 

Beginning in October 2014, Alford assisted Stacy with the daycare. Stacy knew 

 

1 Two of the children are Sara’s from prior to her marriage to Jeremy; they have one child together.
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Alford from having dated his brother sometime earlier. S.M. was also 

acquainted with Alford and “thought he was one of my friends.” Transcript, 

Volume 1 at 151. In the fall of 2014, S.M. was thirteen years old and a 

freshman in high school. He liked video games and would usually come home 

from school and go straight to his room on the second floor to play videogames. 

[4] Sometime that fall, Alford entered S.M.’s room and laid on S.M.’s bed behind 

him while S.M. was laying on his right side playing a game. After a while, 

Alford got up and left the room. On a second occasion, Alford again entered 

S.M.’s room and laid on S.M.’s bed behind him while S.M. was watching 

YouTube. This time, however, Alford reached around with his hand and began 

rubbing S.M.’s penis over his shorts until S.M. got an erection. Alford then left 

the room. On another day “[n]ot very much later,” id. at 152, Alford again 

entered S.M.’s bedroom while S.M. was playing videogames and laid on S.M.’s 

bed behind S.M. He reached around with his hand and began stroking S.M.’s 

penis until S.M. became erect. Then he pulled down S.M.’s shorts and put his 

mouth on S.M.’s penis until S.M. ejaculated. On a fourth occasion, S.M. was 

asleep in his bed when he woke up to find Alford had pulled his shorts down 

and had his mouth on S.M.’s penis. After S.M. ejaculated, Alford left the 

room. Each time Alford entered S.M.’s room, S.M. “thought if I ignored him 

he’d leave me alone.” Id. at 158. S.M. was “[c]onfused” and “didn’t 

understand how [he] was supposed to feel or . . . why [Alford] was doing it.” 

Id. at 164. S.M. did not tell his mother about these incidents because he “didn’t 

really know how to tell her [and] didn’t trust her[.]” Id. at 163. In January 
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2015, Stacy, with Alford’s help, moved the daycare to a new location. S.M. 

testified Alford had touched him inappropriately exclusively at the Broadway 

house.

[5] On S.M.’s fourteenth birthday, in May 2015, Jeremy reached out to S.M. and 

they began a regular parenting time schedule again. After Stacy’s boyfriend 

moved into her house in late 2016, S.M. asked to live with Jeremy and Sara 

because he thought the boyfriend was violent. Jeremy filed a petition to modify 

custody in late October 2016 and when Stacy was served with the petition, she 

told S.M. to pack his things. From that point on, S.M. lived with Jeremy and 

Sara. Custody was officially modified by agreement on April 7, 2017.

[6] Once S.M. moved into their home permanently, Sara observed behaviors that 

caused her to be concerned about him. In November 2016, after S.M. had been 

with Jeremy and Sara full time for approximately three weeks, S.M. told Sara 

he wanted to be put on antidepressants. Sara questioned him, trying to find out 

what was causing S.M. to be depressed. S.M. eventually disclosed the abuse by 

Alford. Sara immediately called Jeremy and together, they contacted the 

Indianapolis Metropolitan Police Department (“IMPD”). IMPD referred them 

to the Shelbyville Police Department because the events occurred there. 

Shelbyville Police took a report on November 17, 2016, of possible child 

molesting and arranged for S.M. to be interviewed by specially trained 

personnel at the Child Advocacy Center in December 2016. Detective Brian 

Roberts interviewed Alford thereafter. Alford stated that he worked for Stacy 

beginning in October 2014 at her daycare on West Broadway, that he was alone 
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with S.M. frequently, and that he would sometimes go to S.M.’s room and lay 

on his bed with him while he was playing videogames. Alford denied any 

sexual contact.

[7] In March 2017, the State charged Alford with child molesting, a Level 1 felony;

child solicitation, a Level 5 felony; and alleged he was an habitual offender. A 

jury found Alford guilty of both child molesting and child solicitation. 

Thereafter, Alford admitted that he was an habitual offender. As part of that 

admission, Alford and the State agreed that any habitual offender enhancement 

would be capped at fifteen years. 

[8] Prior to sentencing, Alford filed a motion for judgment on the evidence on the 

child solicitation charge, and the trial court and the State both agreed that there 

was no evidence elicited at trial to support that charge. The trial court therefore 

granted the motion and Alford was sentenced only for child molesting. The 

trial court found as mitigating circumstances that incarceration would be a 

hardship for Alford because he had a number of medical conditions and that he 

pleaded guilty to the habitual offender enhancement, eliminating the need to 

conduct a second phase of his trial and accepting responsibility for that charge. 

The trial court found as aggravating circumstances Alford’s extensive criminal 

history, his lack of success while on probation, and that he violated a condition 

of his release in this case by appearing in court while in the possession of 

contraband and controlled substances, incurring new charges. The trial court 

specifically rejected the State’s allegation that Alford was in a position of care, 

custody, or control with respect to S.M. Finding that Alford was not “the worst 
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of the worst of the worst” but that there were “significant aggravators,” the trial 

court sentenced Alford to thirty-five years for the child molesting conviction, 

enhanced by ten years for the habitual offender finding. Tr., Vol. 2 at 182. 

Alford now appeals his conviction and sentence.

Discussion and Decision

I. Sufficiency of the Evidence

A. Standard of Review

[9] In reviewing the sufficiency of the evidence to support a conviction, we neither 

reweigh the evidence nor judge the credibility of witnesses. Willis v. State, 27 

N.E.3d 1065, 1066 (Ind. 2015). We consider only the evidence supporting the 

judgment and any reasonable inferences drawn therefrom, id., and we will 

affirm the conviction “if there is substantial evidence of probative value 

supporting each element of the crime from which a reasonable trier of fact 

could have found the defendant guilty beyond a reasonable doubt.” Walker v. 

State, 998 N.E.2d 724, 726 (Ind. 2013) (citation omitted).

B. Evidence of Child Molesting

[10] Alford was convicted of child molesting as Level 1 felony, which required proof 

beyond a reasonable doubt that Alford, being at least twenty-one years of age,2

 

2 There is no dispute that Alford was older than twenty-one in the fall of 2014.
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knowingly or intentionally performed other sexual conduct with S.M., a child 

under fourteen years of age. Ind. Code § 35-42-4-3(a)(1). “Other sexual 

conduct” includes an act involving a sex organ of one person and the mouth of 

another person. Ind. Code § 35-31.5-2-221.5(1).

[11] Alford first contends the State failed to prove that S.M. was thirteen at the time 

of the offense because “S.M. seemed unsure of when and how old he was in his 

testimony regarding when he was molested[.]” Opening Brief of Appellant at 

15. Alford focuses on the following exchange during S.M.’s direct 

examination:

Q: And we talked a lot about that Fall of 2014 time period. Is 

that the time that we’re talking about or is it a different time 

period that we’re talking about for when these touching [sic] 

would have happened?

A: Just that time period.

Q: When you would have been what age?

A: When I would have been 14.

Q: Okay, well . . .

A: Thirteen (13), yeah.

Q: So you were born in 2001, right?

A: Yes.
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Q: May of 2001, so you would have turned 14 then May of 2000 

. . .

A: ’15.

Q: What year?

A: 2015.

Q: ’15, okay. So then Fall of 2014.

A: I would have been 13.

Tr., Vol. 1 at 145-46. It is true that S.M. misspoke on that one occasion. 

However, on all other occasions, S.M. consistently stated that the molestation 

occurred in 2014, in the Broadway house, when he was thirteen years old. 

Despite Alford’s contention that S.M. only corrected himself upon leading 

questioning by the State, it appears S.M. actually corrected himself. This 

timeline also fits with his father and step-mother’s testimonies about when they 

resumed contact with him and when he came to live with them as well as with 

Alford’s testimony about when he worked for Stacy at the Broadway house. 

There was sufficient evidence beyond a reasonable doubt that S.M. was thirteen 

when the molestation occurred.

[12] Alford also contends that S.M.’s testimony is inherently unreliable because 

there were no eyewitnesses, no forensic evidence, no corroborating evidence, it 

occurred two years before it was reported, and S.M. had a motive to fabricate a 
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reason for his custody to be changed to his father. Alford acknowledges that 

the uncorroborated testimony of the victim alone is sufficient to sustain a 

conviction for child molesting. See Bailey v. State, 979 N.E.2d 133, 135 (Ind. 

2012). He argues, however, that S.M.’s testimony is incredibly dubious.

[13] The incredible dubiosity rule allows the reviewing court to impinge upon a fact 

finder’s responsibility to judge the credibility of the witnesses when confronted 

with evidence that is “so unbelievable, incredible, or improbable that no 

reasonable person could ever reach a guilty verdict based upon that evidence 

alone.” Moore v. State, 27 N.E.3d 749, 751 (Ind. 2015). The rule is applied in 

limited circumstances, namely where there is “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.” Id. at 756. Application 

of the incredible dubiosity 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). “[W]hile incredible dubiosity provides a standard that is ‘not impossible’ 

to meet, it is a ‘difficult standard to meet, [and] one that requires great 

ambiguity and inconsistency in the evidence.’” Moore, 27 N.E.3d at 756 

(quoting Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001)).

[14] In applying the Moore factors to this case, we conclude the incredible dubiosity 

rule is inapplicable. S.M.’s testimony is not inherently contradictory or 

equivocal. That a child waited two years until he was in a position to tell a 

person he trusted about an upsetting event is not so improbable that no 
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reasonable person could believe the allegations. If S.M. was so upset with his 

mother that he would fabricate allegations so that his mother would lose 

custody of him, it seems unlikely he would accuse a peripheral person in the 

household of child molesting rather than make direct allegations against his 

mother or her boyfriend. Moreover, there was circumstantial evidence 

supporting Alford’s guilt. Alford himself testified that he worked in the home 

during the timeframe S.M. alleges he was molested, that he was alone with 

S.M. frequently, and that he would lay on S.M.’s bed with him while S.M. was 

playing videogames. 

[15] Alford has failed to establish that the limited exception of the incredible 

dubiosity rule applies, and we decline to disturb the jury’s determination that 

S.M.’s testimony was more credible than Alford’s denial. S.M. testified that 

when he was thirteen years old, Alford put his mouth on S.M.’s penis. The 

State proved by sufficient evidence that Alford committed child molesting, a 

Level 1 felony.

II. Inappropriate Sentence

A. Standard of Review

[16] “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.” Ind. Appellate Rule 7(B). “[T]he question under Appellate Rule 

7(B) is not whether another sentence is more appropriate; rather, the question is 
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whether the sentence imposed is inappropriate.” King v. State, 894 N.E.2d 265, 

268 (Ind. Ct. App. 2008).

[17] The 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. 2007), 

clarified on reh’g, 875 N.E.2d 218. Deference to the trial court’s sentencing 

decision should prevail unless it can be 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). “The principal role of appellate review 

should be to attempt to leaven the outliers . . . not to achieve a perceived 

‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 

2008).

B. Alford’s Sentence

[18] Alford’s argument does not comment specifically upon the nature of his offense 

or his character. Instead, Alford argues that the sentence of forty-five years “is, 

effectively, a death sentence” because Alford was fifty-two years old when 

sentenced and “in extraordinarily poor health[.]” Br. of Appellant at 17. 

Alford points out that the Shelby County Probation Department recommended 

a sentence of thirty-three years. We nonetheless address the two prongs of Rule 

7(B) for assessing whether a sentence is inappropriate.
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[19] The nature of the offense refers to a defendant’s actions in comparison with the 

elements of the offense. Cannon v. State, 99 N.E.3d 274, 280 (Ind. Ct. App. 

2018), trans. denied. The nature of the offense can be analyzed by using the 

advisory sentence as a starting point. Anglemyer, 868 N.E.2d at 494.

[20] Alford was found guilty of one count of Level 1 felony child molesting and was 

found to be an habitual offender. He received a sentence of thirty-five years for 

his conviction, enhanced by ten years for the habitual offender finding. The 

sentencing range for a Level 1 felony is between twenty years and forty years 

with an advisory sentence of thirty years. Ind. Code § 35-50-2-4(b). The 

sentencing range for the habitual offender finding is between six years and 

twenty years, Ind. Code § 35-50-2-8(i)(1), but due to an agreement between the 

parties when Alford admitted his habitual offender status, the enhancement was 

capped at fifteen years. The trial court noted at sentencing that “[t]his is an 

egregious case, there are significant aggravators, but it is probably in the realm 

of Level 1 Felonies not the worst of the worst . . . and therefore the maximum 

sentence is not appropriate.” Tr., Vol. 2 at 182. Alford was charged with one 

count of child molesting, but S.M. testified there were several separate acts. 

These acts presumably occurred when other children were in the house because 

the house also served as a daycare facility. We agree with the trial court that 

this is not the worst of offenses, but an aggravated, less-than-maximum 

sentence is not inappropriate. 

[21] The character of the offender refers to “general sentencing considerations and 

the relevant aggravating and mitigating circumstances.” Cannon, 99 N.E.3d at 
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280. “We assess the trial court’s recognition or non-recognition of aggravators 

and mitigators as an initial guide to determining whether the sentence imposed 

was inappropriate.” Stephenson v. State, 53 N.E.3d 557, 561 (Ind. Ct. App. 

2016). When evaluating the character of the offender, we consider his or her 

criminal history a relevant factor. Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. 

App. 2017), trans. denied. “The significance of [a defendant’s] criminal history 

varies based on the gravity, nature, and number of prior offenses in relation to 

the current offense.” Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013).

[22] Alford’s criminal history consists of five prior misdemeanor convictions and 

three prior felony convictions. These convictions are primarily for drug 

offenses; he has no priors for offenses against a person. He has been on 

probation four times. He violated the terms of his probation in three of those 

instances and his probation was revoked in two cases. The trial court noted 

that it ordered Alford taken into custody at the conclusion of his trial and he 

was found to be in possession of drugs and contraband when he arrived at the 

county jail. The trial court found this to be “the ultimate contempt of this 

Court and this process.” Tr., Vol. 2 at 182. Although Alford’s criminal history 

is not related to the current offense in gravity or nature, there are a number of 

prior offenses, and his disregard for the law is apparent in his blatant 

commission of a crime while in court. As for Alford’s sole argument about his 

advanced age and poor health, neither of these are virtuous character traits that 

indicate his sentence is inappropriate.
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[23] After considering the nature of Alford’s crime and his character, we conclude 

his sentence is not inappropriate.

Conclusion

[24] The State presented sufficient evidence to support Alford’s conviction of child 

molesting, and his aggregate sentence of forty-five years is not inappropriate. 

Accordingly, his conviction and sentence are affirmed.

[25] Affirmed.

Riley, J., and Kirsch, J., concur.