Court of Appeals of Indiana | Opinion 02A03-1405-CR-181 | April 10, 2015 Page 1 of 27

ATTORNEY FOR APPELLANT

Richard J. Thonert

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Karl M. Scharnberg

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Johnathon I. Carter,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

April 10, 2015

Court of Appeals Case No.

02A03-1405-CR-181

Appeal from the 

Allen Superior Court

The Honorable Frances C. Gull, 

Judge

Cause No. 02D05-1311-FA-461

Kirsch, Judge.

 

1 We note some discrepancy in the cause number in the record before us. The parties’ appellate briefs reflect 

02D06, as do other filings in the trial court, including the charging information, various motions, and the trial 

court’s final jury instructions. However, the judgment of conviction, transcript, and chronological case

summary reflect 02D05, which we elect to use in this opinion. 
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[1] Following a jury trial, Johnathon I. Carter was convicted of three counts of 

Class A felony child molesting2 and two counts of Class C felony child 

molesting.3 He raises four issues on appeal that we restate as:

I. Whether the manner in which the jury was instructed concerning 

the requirement of jury unanimity constituted fundamental error;

II. Whether the trial court abused its discretion in admitting certain 

expert testimony;

III. Whether the State presented sufficient evidence to convict Carter;

IV. Whether Carter’s ninety-eight-year sentence is inappropriate in 

light of the nature of the offense and the character of the offender. 

[2] We affirm the convictions, revise the sentence, and remand with instructions.4

Facts and Procedural History

[3] On June 28, 2009, Carter married Q.C. (“Mother”), who at that time had three 

sons, M.S., age fifteen, M.J., age fourteen, and M.N., age eight. Mother and 

her sons moved from Gary to Fort Wayne in December 2010, and Carter 

moved shortly thereafter, in January 2011. M.S. had his own room in the 

residence. M.J. and M.N. shared a bedroom. Between January 2011 and April 

2013, the family lived in five different residences in Fort Wayne. M.N. and 

M.J. shared a bedroom at each of the locations. Carter and Mother worked for 

 

2

See Ind. Code § 35-42-4-3(a). We note that, effective July 1, 2014, new versions of the criminal statutes with 

which Carter was charged were enacted, but because he committed his crimes prior to that date, we will 

apply the applicable statutes in effect at that time. 

3

See Ind. Code § 35-42-4-3(b).

4 We note that Carter’s request for oral argument has been denied by separate order.
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the same employer, but generally worked different shifts from each other, such 

that when Mother was at work, Carter was at home. 

[4] From at least early August 2010 to near the end of April 2013, Carter engaged 

in sexual acts with M.N. The encounters took place at each of the residences 

where the family lived, usually in M.N.’s bedroom or Carter’s bedroom,

sometimes happening in the morning after the older brothers had left for school, 

sometimes in the afternoon when no one else was home, or during the night. 

Carter would require M.N. to perform oral sex and would also require him to 

submit to it. He also required M.N. to engage in anal sex. Carter also fondled 

and touched M.N.’s penis, and Carter required M.N. to touch Carter’s penis. 

Carter bribed M.N. with candy and money. 

[5] At some point, M.N. told M.J. what Carter was doing, but M.J. “didn’t believe 

me.” Tr. at 249. In November 2011, M.N. disclosed to Mother that Carter had 

been molesting him. Mother and M.N. made a police report to the Fort Wayne 

Police Department, a department of child services (“DCS”) investigation began, 

and Carter moved out of the residence. On November 23, 2011, Julie DeJesus, 

a forensic interviewer, interviewed M.N. at the Dr. Bill Lewis Center for 

Children. DeJesus wore an earpiece, and a multi-disciplinary team5listened 

from another room. M.N. disclosed to DeJesus, with words and demonstrating 

with his hands, that Carter had abused him. That same day, Sharon Robinson, 

 

5 The multi-disciplinary team consisted of a victim’s advocate and a representative from each of the 

following: law enforcement, child protective services, and the prosecutor’s office.
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a sexual assault nurse examiner, at the Fort Wayne Sexual Assault Treatment 

Center, examined M.N. Detective Robin Pfeiffer of the Fort Wayne Police 

Department separately interviewed M.N. and Carter on November 28, 2011.

[6] M.J. and Carter had an amicable relationship, and M.J. enjoyed spending time 

with him. M.J. was angry that Carter had left the residence, due to M.N.’s 

disclosures, and M.J. treated M.N. differently after Carter was gone. M.J. 

ignored M.N. and was less playful with M.N. He called him a snitch and a 

coward. M.S. observed M.J. sometimes push M.N. and “tell him to get in the 

corner or whatever,” even though M.N. had done nothing wrong. Id. at 430-

31. At some point, M.J. asked M.N. if the accusations against Carter were true, 

and M.N. told M.J. that he had lied about Carter molesting him, but told M.J. 

not to tell Mother. That same day, M.J. told the school counselor, Shirley 

Snider that M.N. said that he had made up the accusations against Carter. 

Snider contacted Detective Pfeiffer who, in turn, contacted Mother. Detective 

Pfeiffer requested to interview M.N. again, but Mother required that she be 

present for the interview, which was against police department policy, and the 

investigation stalled. According to Detective Pfeiffer, the investigation “was 

closed based on the uncooperation of the family.” Id. at 559.

[7] In January or February 2012, Carter moved back into the residence, and the 

molestations resumed. The relationship between Mother and Carter 

deteriorated, and Carter moved out of the house again in April 2013. 

Thereafter, on May 2, 2013, M.N. told Mother that Carter had been molesting 

him again. The investigation resumed. On May 23, 2013, Angela Mellon, a
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sexual assault nurse examiner at the Fort Wayne Sexual Assault Treatment 

Center, examined M.N. Patricia Smallwood, a forensic interviewer at the Dr. 

Bill Lewis Center for Children also interviewed M.N. in or around May 2013. 

Detective Pfeiffer interviewed M.N., as well as Carter, on June 5, 2013.

[8] On November 28, 2013, the State charged Carter with three counts of Class A 

felony child molesting and two counts of Class C felony child molesting. The 

State alleged: Count I, between August 1, 2010 and April 27, 2013, Carter 

performed or submitted to sexual deviate conduct by placing his penis in or on 

the mouth of M.N.; Count II, between August 1, 2010 and April 27, 2013, 

Carter performed or submitted to sexual deviate conduct by placing his mouth 

on the penis of M.N.; Count III, between August 1, 2010 and April 27, 2013, 

Carter performed or submitted to sexual deviate conduct by placing his penis in 

or on the anus of M.N.; Count IV, between August 1, 2010 and April 27, 2013, 

Carter performed or submitted to fondling or touching of M.N.; and Count V, 

August 1, 2010 and April 27, 2013, Carter performed or submitted to fondling 

or touching of M.N.

[9] At the two-day April 2014 jury trial, “M.N. testified about multiple occasions of 

many different times, dates and locations of different acts of sexual deviate 

conduct and fondling.” Appellant’s Br. at 5. M.N., who was ten years old at the 

time of trial, testified that Carter molested him in all of the places where they 

lived. Carter sometimes engaged in the conduct after M.N.’s brothers went to 

school, but before M.N. went to school, sometimes when no one was home, 

and other times when people were in the house. Carter made M.N. “suck his 
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thing,” meaning Carter’s penis, and Carter did the same to M.N. Tr. at 237. 

M.N. described that when he would suck Carter’s penis, sperm would come 

out, although sometimes Carter would wear a condom or put a sock over his 

penis. Id. at 240-41. M.N. described one occurrence, when he was ten years 

old, in which Carter came into M.N.’s bedroom while he was playing video 

games before school, and Carter sucked M.N.’s penis. Id. at 244-45. On 

various occasions, M.N. “would give [Carter] masturbation” by using his hands 

on Carter’s penis; M.N. demonstrated at trial how he would hold and move his 

hand on Carter’s penis. Id. at 247. Carter would do the same to M.N.’s penis. 

M.N. also testified that Carter “made [me] put my private in his butt.” Id. at 

240. 

[10] One afternoon, when M.N.’s brothers were at the park, M.N. was in Carter’s 

bedroom, and Carter positioned M.N. “with [his] butt up,” and hands on the 

bed, and Carter put his penis in M.N.’s “butt.” Id. at 247. M.N. said Carter put 

his “private part” in M.N.’s “butt” on other occasions and, “[i]t would hurt.” 

Id. M.N. also described an incident that occurred while he was sleeping in his 

bed at night, when Carter came in and engaged in anal sex for about four 

minutes. Id. at 266. 

[11] M.N. testified that, after he reported that Carter was molesting him, and Carter 

moved out of the residence the first time, M.J. began treating M.N. differently. 

M.N. said that M.J. was mean to him and would call him a coward, punk, and 

“the b-word.” Id. at 431. M.N. told the jury that, with Carter out of the house, 

he knew that Mother was struggling to work and supervise the children on her 
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own. M.N. explained that the reason that he previously had recanted, saying

that the allegations were not true, was because he wanted to help Mother. 

Carter returned to the home, and the molestations resumed. M.N. testified that 

Carter, after coming back, asked him, “Why did you tell on me?” Id. at 248.

[12] In her testimony, Mother mentioned that after Carter left the family’s residence 

in November 2011 M.J. cried and missed him, and she observed that M.J. was 

“standoff-ish” to M.N. Id. at 460. Mother was aware that during the period of 

time when Carter was not living at the residence, but before M.N. recanted, 

M.J. and Carter were in contact with one another and exchanged text messages. 

Carter returned in January or February 2012, but she “put him out” in late 

April 2013 due to difficulties in their marriage. Id. at 469. 

[13] The State also presented, over Carter’s objections, the testimony of Smallwood, 

a forensic interviewer and expert on child sexual abuse. Carter had filed a 

motion to exclude Smallwood’s testimony, which the trial court denied, and he 

made continuing objections both prior to opening statement and during her 

testimony. At trial, Smallwood testified that she had been a family and child 

sexual abuse counselor for over twenty years, having worked as a marriage and 

family therapist at Parkview Hospital and as the Director of Victim Assistance 

at the Allen County Sheriff’s Department and the Fort Wayne Police 

Department. She interviewed M.N. in May 2013, but she did not testify about 

M.N. or his individual case, instead offering generalized testimony about how 

children deal with sexual abuse, the disclosure process, and the matter of when 

and why children recant or retract their disclosures of abuse. She testified that a 
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one-time incident of molestation is rare and that it is harder for boys to talk 

about abuse that happens to them. She also stated that the longer a child waits 

to disclose, the stronger the feeling that they will not be believed. Boys are also 

more likely to retract. When a child retracts, it does not mean that it did not 

happen. She testified that sexual abuse tends to place a child in a position of 

having to choose between disclosing the abuse and wrecking the family, or 

keeping the secret and suffering the abuse. Id. at 515. The pressure on children 

to keep the family intact is intense. She stated that frequently, by the time of 

disclosure, the child has been abused so many times that individual instances 

tend to run together and children have difficulty relating specific events or 

providing details. Carter requested a limiting instruction as to Smallwood’s 

testimony and a motion for mistrial, which the trial court denied.

[14] DeJesus, who conducted a forensic interview of M.N. in November 2011, also 

testified that M.N. disclosed to her that Carter had been abusing him. 

Robinson, the sexual assault nurse examiner, also testified at trial, over Carter’s 

objections, and his request for mistrial was denied. Robinson testified that, 

while she did not observe any injuries to M.N. during her examination of him 

in November 2011, a lack of injury does not mean an assault did not occur and 

that, in the vast majority of cases, there is no visible injury. M.N. described 

incidents of sexual acts, including sucking of Carter’s private part and Carter 

inserting that into M.N.’s “butt.” Id. at 363. M.N. told her that Carter 

“whooped” him and that it hurt. M.N. told her that the molestations 

“happened lots of times.” Id. at 364. Mellon, who physically examined M.N. 
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in May 2013, testified that M.N. explained and demonstrated to her that Carter 

touched his private parts and put his private parts “in [his] butt lots of times.” 

Id. at 386. On other occasions, M.N. told her “sperm” or “stuff” had come out 

of Carter’s penis. Id. at 387.

[15] Following the presentation of evidence, Carter tendered a final jury instruction 

regarding jury unanimity, which was denied over his objection. The jury 

convicted Carter, as charged, of five counts of child molesting. The trial court 

imposed an aggregate sentence of ninety-eight years, consisting of three 

consecutive thirty-year sentences on each of the three Class A felonies and to 

two consecutive four-year sentences for each of the two Class C felonies. Carter 

now appeals his convictions and his sentence. Additional facts will be supplied 

as necessary. 

Discussion and Decision

I. Jury Unanimity Instruction

[16] Carter contends the trial court erred by rejecting his tendered final jury 

instruction regarding jury unanimity. The manner of instructing a jury lies 

largely within the discretion of the trial court, and we will reverse only for an 

abuse of discretion. Surber v. State, 884 N.E.2d 856, 867 (Ind. Ct. App. 2008), 

trans. denied. In determining whether a trial court abused its discretion by 

declining to give a tendered jury instruction, we consider (1) whether the 

tendered instruction correctly states the law; (2) whether there was evidence 

presented at trial to support giving the instruction; and (3) whether the 
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substance of the instruction was covered by other instructions that were given. 

Brakie v. State, 999 N.E.2d 989,993 (Ind. Ct. App. 2013), trans. denied. We 

consider jury instructions not in isolation, but as a whole, with reference to each 

other. Surber, 884 N.E.2d at 867. “‘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.’” Brakie, 999 N.E.2d at 

993 (quoting Dill v. State, 741 N.E.2d 1230, 1233 (Ind. 2001)).

[17] With regard to jury unanimity, Indiana has long required that a verdict of guilty 

in a criminal case “must be unanimous.” Baker v. State, 948 N.E.2d 1169, 1173 

(Ind. 2011). Our Supreme Court has recognized that applying the rule of jury 

unanimity can present difficult challenges in child molestation or sex offense 

cases. Id. at 1174. One reason for this is because often a child is abused by an 

individual who resides with the child and that person “‘perpetuate[s] the abuse 

so frequently . . . that the young child loses any frame of reference in which to 

compartmentalize the abuse into distinct and separate transactions. Such 

evidence of abuse has been termed generic evidence.’” Id. (quoting R.L.G. v. 

State, 712 So.2d 348, 356 (Ala. Crim. App. 1997)). In such a situation, “[t]he 

victim’s ‘generic testimony’ may describe a pattern of abuse (‘every time mama 

went to the store’) rather than specific incidents (‘after the July 4th parade’).” 

Id. A concern about jury unanimity may arise because the jury is not presented 

with a specific act upon which its members unanimously may agree. Id.

Indeed, the jury may be presented with evidence of a greater number of separate 
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criminal offenses than the defendant is charged with in the information. Id. at 

1175. 

[18] Here, the State charged that Carter, between August 1, 2010 and April 27, 

2013, committed child molesting by three acts of sexual deviate conduct –

placing his penis in or on M.N.’s mouth, placing his mouth on M.N.’s penis, 

and placing his penis in or on M.N.’s anus – and two acts of fondling or 

touching of M.N. Thus, while at least the first three counts identified an act by 

description, they did not specify a date or location or other specific detail;

instead, the charges each alleged a date range within which the conduct 

occurred.6 On appeal, Carter complains that, although he was charged with 

one count of child molesting in each count, the jury heard evidence of multiple 

acts of molestation over an extended period of time. Therefore, he claims, it is 

“probable” that a juror or jurors found him guilty of some charged and/or some 

uncharged conduct, but not guilty of some charged crimes, or a combination 

thereof, and that “a non-unanimous verdict was the result.” Appellant’s Br. at 9. 

Essentially, his complaint is that there is no way of knowing which particular 

act or acts, if any, the jury unanimously agreed upon. 

 

6 Our Supreme Court has recognized that time is not of the essence in the crime of child molesting. Barger v. 

State, 587 N.E.2d 1304, 1307 (Ind. 1992). This is so because “it is difficult for children to remember specific 

dates, particularly when the incident is not immediately reported as is often the situation in child molesting 

cases.” Id. Therefore, the precise time and date of the commission of a child molestation offense generally is 

not regarded as a material element of the crime. Id.
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[19] At trial, Carter tendered a final jury instruction regarding jury unanimity that 

separately stated, for each of the five counts, that 

In order to find the Defendant guilty of Count [I, II, III], each of you 

must agree, your verdict must be unanimous, upon the commission of 

a specific act of Criminal Deviate Conduct.

. . . . 

In order to find the Defendant guilty of Count [IV, V], each of you 

must agree, your verdict must be unanimous, upon the commission of 

a specific act of fondling or touching.

[20] Appellant’s Amended App. Vol. 1 at 29-20, 32-33. The trial court rejected the 

instruction, finding that it was covered by other of the trial court’s instructions. 

On appeal, Carter argues that the trial court erred by rejecting the instruction 

and claims the trial court failed to properly instruct the jury regarding the 

requirement of jury unanimity. The State maintains that the trial court’s 

decision to refuse the instruction was proper because it was not a correct

statement of the law. Based on the facts and circumstances of this case, we 

agree with the State. 

[21] In reaching this decision, we rely on our Supreme Court’s instructive analysis in

Baker, which presents facts similar to those before us. There, Baker was charged 

with one count of child molesting for each of the three alleged victims; 

however, the jury heard evidence of multiple acts of molesting for each victim. 

On appeal, Baker argued that some jurors may have relied on different evidence 

than the other jurors to convict him on each of the three counts. The Baker

Court’s analysis recognized that “the State may in its discretion designate a 
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specific act (or acts) on which it relies to prove a particular charge”; however, if 

the State does not so designate, jurors should be instructed that in order to 

convict, they must “either unanimously agree that the defendant committed the 

same act or acts or that the defendant committed all of the acts described by the 

victim and included within the time period charged.” Id. The Baker Court 

adopted the reasoning of the California Supreme Court, which explained that 

this type of instruction, “‘in addition to allowing a conviction if the jurors 

unanimously agree on specific acts, also allows a conviction if the jury 

unanimously agrees the defendant committed all the acts described by the 

victim.’” Id. at 1177 (quoting People v. Jones, 270 Cal. Rptr. 611, 792 P.2d 643, 

650 (1990)). The California Supreme Court further observed, “[C]redibility is 

usually the ‘true issue’ [and] the jury either will believe the child’s testimony 

that the consistent repetitive patter of acts occurred or disbelieve it.” Id. In this 

case, Carter’s proposed instruction did not instruct the jury that it must 

unanimously agree that he committed all of the acts described by M.N. Thus, it 

was not a complete and correct statement of the law, and the trial court did not 

abuse its discretion when it rejected it. 

[22] That being said, Carter’s jury received the general jury-unanimity instruction,

which stated, in part, “Each of you must refuse to vote for conviction unless 

you are convinced beyond a reasonable doubt of the defendant’s guilt. Your 

verdict must be unanimous . . . The foreperson will preside over your 

deliberations and must sign and date the verdict to which you all agree.” 

Appellant’s Amended App. Vol. 1 at 52, 55. The Baker Court held that such an 
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instruction – which “did not advise the jury that in order to convict Baker the 

jury must either unanimously agree that he committed the same act or acts or 

that he committed all of the acts described by the victim and included within 

the time period charged” – was insufficient. Baker, 948 N.E.2d at 1178. 

Because the defendant in Baker neither objected nor offered an instruction of his 

own, our Supreme Court analyzed the issue using the fundamental-error 

doctrine. Id. The Baker Court found that the only issue was the credibility of 

the alleged victims, i.e., whether they were lying, and “the jury resolved the 

basic credibility dispute against [Baker] and would have convicted him of any of 

the various offenses shown by the evidence to have been committed.” Id. at 

1179 (emphasis in original). Accordingly, the Baker Court held there was no 

fundamental error. Id.

[23] Unlike Baker, Carter objected to the trial court’s instruction and submitted one 

of his own. However, as we have explained, Carter’s tendered instruction was 

not a correct statement of the law, or at least not a complete one. “[A] party 

who fails to tender a correct instruction waives any error regarding an 

incomplete or omitted instruction unless the error is fundamental.” Carson v. 

State, 686 N.E.2d 864, 865 (Ind. Ct. App. 1997), trans. denied. The 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. Id. The determinative question is whether the 

error by itself infected the entire trial such that the resulting conviction violates 

due process. Id. Thus, we must determine here whether the instructional error 
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was fundamental. Fundamental error is an extremely narrow exception to the 

waiver rule where the defendant faces the heavy burden of showing that the 

alleged errors are so prejudicial to the defendant’s rights as to make a fair trial 

impossible. Ryan v. State, 9 N.E.3d 663, 667-68 (Ind. 2014). In Ryan, our 

Supreme Court recently addressed the fundamental error doctrine, there in the 

context of alleged prosecutorial misconduct, and recognized that our task 

includes reviewing all relevant information given to the jury. It stated:

In evaluating the issue of fundamental error, our task in this case is to 

look at the alleged misconduct in the context of all that happened and 

all relevant information given to the jury – including evidence admitted at 

trial, closing argument, and jury instructions – to determine whether the 

misconduct had such an undeniable and substantial effect on the jury’s 

decision that a fair trial was impossible.

[24] Id. at 667-68 (emphasis added and internal cites and quotes omitted); see also 

Manuel v. State, 793 N.E.2d 1215, 1218 (Ind. Ct. App. 2003) (when determining 

whether instructional error resulted in fundamental error, we look to all 

relevant information given to jury, including closing argument and other 

instructions), trans. denied. 

[25] As was the case in Baker, the case before us largely turns on credibility. The 

jury heard evidence that M.N. was forced to perform oral sex upon Carter, and 

submit to oral sex performed by Carter, submit to and perform anal intercourse, 

and fondle and touch Carter’s penis, and submit to Carter touching him. He 

reported the abuse to M.J., who did not believe him, and to Mother twice. He 

repeated the allegations to multiple interviewers and nurse examiners. The 
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main issue for the jury to resolve was whether M.N. was telling the truth with 

regard to Carter’s acts of molestation. 

[26] We note that the prosecutor in closing argument specifically addressed what 

evidence established which acts as alleged in the charges. That is, although she 

recognized that “[M.N.] told you that these things happened a lot,” she 

thereafter identified a number of specific acts as they related to each count. Tr. 

at 583. For instance, she reminded the jury that M.N. described three different 

types of deviate sexual conduct, relative to Counts I, II, and III: Carter put his 

penis in M.N.’s anus; Carter sucked M.N.’s penis; and Carter made M.N. suck 

his. Id. at 582-84. With regard to Counts IV and V, fondling and touching, she 

reminded the jury that M.N. verbally described and demonstrated with his hand 

the manner in which Carter touched M.N.’s penis and required M.N. to touch 

his. With regard to unanimity, she further told the jury, “[T]here’s twelve of 

you and you all have to be in agreement on your decision and you have to agree 

that the acts that [M.N.] described did, in fact, occur in order for you to find the 

Defendant guilty and it has to be unanimous.” Id. at 585. We also observe that 

each member of the jury was polled as to the verdict, and each member 

affirmed his or her agreement. Considering all relevant information that was 

before the jury, we conclude, as did the Court in Baker, that Carter has failed to 

demonstrate that any instructional error constituted fundamental error. 
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II. Admission of Expert Testimony

[27] Carter claims that the trial court erred when it admitted Smallwood’s 

testimony. The admission and exclusion of evidence falls within the sound 

discretion of the trial court, and we will review the admission of evidence solely 

for an abuse of discretion. Bradford v. State, 960 N.E.2d 871, 873 (Ind. Ct. App.

2012). An abuse of discretion occurs where the decision is clearly against the 

logic and effect of the facts and circumstances before the court. Hoglund v. State,

962 N.E.2d 1230, 1237 (Ind. 2012). However, even if the trial court 

erroneously admits evidence, such error will be disregarded unless it affects the 

substantial rights of a party. Id. at 1238. Specifically, we look to the probable 

impact of the erroneous admission on the jury. Id. The improper admission of 

evidence is harmless error if the conviction is supported by substantial evidence 

of guilt satisfying this court that there is no substantial likelihood the challenged 

evidence contributed to the conviction. Id. Here, Carter argues that the trial 

court abused its discretion when it admitted the testimony of Smallwood, over 

his objections, request for limiting instruction, and motion for mistrial. He

claims that her testimony impermissibly vouched for M.N.’s credibility and 

ultimately denied him a fair trial. 

[28] Regarding improper vouching testimony generally, Indiana Evidence Rule 

704(b) provides that “[w]itnesses may not testify to opinions concerning intent, 

guilt, or innocence in a criminal case; the truth or falsity of allegations; whether 

a witness has testified truthfully; or legal conclusions.” Such vouching 

testimony is an invasion of the province of the jurors in determining the weight 
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they should place upon a witness’s testimony. Gutierrez v. State, 961 N.E.2d 

1030, 1034 (Ind. Ct. App. 2012). It is essential that the trier of fact determine 

the credibility of the witnesses and the weight of the evidence. Id.

[29] During its case-in-chief, and after M.N. testified, the State presented the 

testimony of Smallwood, over Carter’s objections. Smallwood, a forensic 

interviewer at the Dr. Bill Lewis Center for Children, provided expert testimony 

concerning the dynamics of child abuse, the disclosure process, and when and 

why a child may recant his disclosure of the abuse. Smallwood testified to a 

number of factors that contribute to a child’s delay in disclosing abuse, 

including secrecy, lack of witnesses, fear or shame, and worry about keeping the 

family intact. She noted that “a real gender issue” exists, and studies reveal that 

it is more difficult for males to disclose sexual abuse. Tr. at 516. She also 

recognized the fact that with delayed disclosure, the child may face the 

skepticism associated with “why are you telling now?” Id. Smallwood 

continued that sometimes children retract or recant their statement; she stated 

that a child may recant because the abuse did not happen or may do so because, 

once they report the abuse, the family is pulled apart, which is exactly what 

they feared would occur. They may feel the effects of anger or lack of support, 

a sense of, “[L]ook, you made this happen.” Id. at 518. In this situation, a 

child might feel responsible for “putting it all back together, so they take it back, 

they say it didn’t happen.” Id. 

[30] We disagree with Carter that Smallwood’s testimony ran afoul of Indiana 

Evidence Rule 704(b). Although Smallwood interviewed M.N., she never 
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mentioned M.N. in her testimony or made any statement or opinion regarding 

the truth or falsity of M.N.’s allegations of molestation. Smallwood did not 

purport to have any opinion regarding the case at bar, nor did she refer to any 

specific facts at issue. Her testimony was broad, generalized, and included 

reference to results of research studies. In her testimony, she confirmed that a 

recantation could mean that no abuse had occurred. We note, and as the State 

reminds us, this court has permitted expert testimony explaining the behaviors 

and dynamics associated with domestic violence, including that associated with 

why a victim may recant. Otte v. State, 967 N.E.2d 540, 548 (Ind. Ct. App. 

2012), trans. denied. The Otte court noted that “the reactions and behaviors of 

domestic violence victims are not commonly understood by laypersons,” and 

“testimony regarding a victim’s propensity to recant . . . simply provides the 

jury with information outside its experience, permitting it to assess credibility 

based upon a more complete understanding of all potential factors at issue.” Id. 

We find that Smallwood’s testimony likewise provided information to the jury

beyond that commonly understood by laypersons, and, under the circumstances 

before us, her expert testimony did not constitute impermissible vouching 

testimony.

III. Sufficiency of the Evidence

[31] Carter next asserts that the evidence was not sufficient to convict him. When 

reviewing the sufficiency of evidence to support a conviction, we consider only 

the probative evidence and reasonable inferences supporting the trial court’s

decision. Young v. State, 973 N.E.2d 1225, 1226 (Ind. Ct. App. 2012), trans. 
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denied. It is the role of the trier-of-fact to assess witness credibility and weigh 

the evidence to determine whether it is sufficient to support a conviction. Id. 

“To preserve this structure, when we are confronted with conflicting evidence, 

we consider it most favorably to the trial court’s ruling.” Id. It is not necessary 

that the evidence overcome every reasonable hypothesis of innocence; rather, 

the evidence is sufficient if an inference reasonably may be drawn from it to 

support the trial court’s decision. We will affirm a conviction unless no 

reasonable fact-finder could find the elements of the crime proven beyond a 

reasonable doubt. Id. We note that it is well settled that the uncorroborated 

testimony of the victim, even if the victim is a minor, is sufficient to sustain a 

conviction for child molesting. Morrison v. State, 462 N.E.2d 78, 79 (Ind. 1984).

[32] Carter was convicted of three counts of Class A felony and two counts of Class 

C felony child molesting. In order to convict Carter of Class A felony child 

molesting, the State was required to prove beyond a reasonable doubt that 

Carter, over age twenty one, knowingly or intentionally performed or submitted 

to deviate sexual conduct with M.N. when he was under fourteen years of age, 

namely: Carter placed his penis in or on M.N.’s mouth, he placed his mouth on 

M.N.’s penis, and he placed his penis in M.N’s anus. Ind. Code § 35-42-4-3;

Appellant’s Amended App. Vol. 2 at 1-3. The offense of child molesting as a Class 

C felony is set forth in Indiana Code section 35-42-4-3(b), which provides, “A 

person who, with a child under fourteen (14) years of age, performs or submits 

to any fondling or touching, of either the child or the older person, with intent 

to arouse or to satisfy the sexual desires of either the child or the older person, 
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commits child molesting, a Class C felony.” Mere touching alone is insufficient 

to constitute the crime of child molesting. Bass v. State, 947 N.E.2d 456, 460 

(Ind. Ct. App. 2011), trans. denied. The State must also prove beyond a 

reasonable doubt that the act of touching was accompanied by the specific 

intent to arouse or satisfy sexual desires. Id. The intent element of child 

molesting may be established by circumstantial evidence and may be inferred 

from the actor’s conduct and the natural and usual consequence to which such 

conduct usually points. Id.

[33] Here, M.N. testified that the molestations occurred in each of the five homes in 

which they lived. He testified to acts of deviate sexual conduct as charged. He 

testified that Carter touched his penis and that Carter made M.N. “give him 

masturbation” and that sometimes Carter ejaculated; from this the jury could 

infer the intent to arouse or satisfy sexual desires. Tr. at 247. Carter invokes 

the incredible dubiosity rule to claim that M.N.’s “uncorroborated testimony 

was so unreliable and untrustworthy” that his convictions must be reversed. 

Appellant’s Br. at 28. The incredible dubiosity rule provides that a court may 

impinge on the jury’s responsibility to judge witness credibility only when

confronted with inherently improbable testimony or coerced, equivocal, wholly 

uncorroborated testimony of incredible dubiosity. Love v. State, 761 N.E.2d 

806, 810 (Ind. 2002). Application of this rule is rare, and “‘[T]he standard to be 

applied is whether the testimony is so incredibly dubious or inherently 

improbable that no reasonable person could believe it.’” Hampton v. State, 921 

N.E.2d 27, 29 (Ind. Ct. App. 2010) (quoting Fajardo v. State, 859 N.E.2d 1201, 
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1208 (Ind. 2007), trans. denied. The rule applies only when a witness contradicts 

herself or himself in a single statement or while testifying, and does not apply to 

conflicts between multiple statements. Manuel v. State, 971 N.E.2d 1262, 1271 

(Ind. Ct. App. 2012). Cases where we have found testimony inherently 

improbable have involved situations either where the facts as alleged “could not 

have happened as described by the victim and be consistent with the laws of 

nature or human experience,” or where the witness was so equivocal about the 

act charged that her uncorroborated and coerced testimony “was riddled with 

doubt about its trustworthiness.” Watkins v. State, 571 N .E.2d 1262, 1265 (Ind.

Ct. App. 1991), aff’d in relevant part, 575 N.E.2d 624 (Ind. 1991). Carter cannot 

fit his case into either category.

[34] Carter suggests that the events as described by M.N. “could not have 

happened” and “were contrary to common sense and human experience”

because there was no medical, physical, or eye-witness testimony. Appellant’s 

Br. at 26-27. He points to “exculpatory eye-witness testimony” of his brothers 

and Mother who “had never seen, had no personal knowledge [of], nor were 

they aware of any act of sexual misconduct between Carter and M.N.” Id. at 

10. His argument seems to be that the molestation could not have happened in 

the house without someone hearing it or seeing it, particularly those acts that 

M.N. described happened in his bedroom while M.J. was also present. We 

disagree. Some of the acts happened when family members were home, while 

others occurred while no one was home. That no other person testified to 
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witnessing or hearing M.N. being molested does not establish that the abuse did 

not happen.

[35] We also reject Carter’s argument that M.N.’s testimony was untrustworthy and 

contradictory. Carter makes much of the fact that M.N. told M.J. that he had 

fabricated the molestation accusations. Id. at 24 (“concerning the lies of 

M.N.”), at 28 (“M.N. stated that he lied” and “the only reason the lie came 

out”). However, M.N. testified at trial that, in fact, the molestations did occur, 

both before Carter moved out in November 2011 and after he returned in early 

2012, and he explained that his reason for untruthfulness to M.J. was to help 

Mother, who M.N. realized was struggling as a single parent and without 

Carter at home to help supervise the children and run the household. M.N.’s

testimony was consistent, and at no time did he contradict himself while 

testifying. Furthermore, his testimony was consistent with his reports of abuse 

to the forensic interviewers and nurses who performed examinations of him. 

The jury had the opportunity to hear M.N.’s testimony and to determine his

credibility. We decline Carter’s invitation to impinge on the province of the 

jury and reassess that credibility. The State presented sufficient evidence to 

convict Carter of the charged offenses.

IV. Appropriateness of Sentence

[36] Finally, Carter challenges his ninety-eight-year executed sentence for the three 

Class A and two Class C felony convictions. Carter urges us to find that the 

trial court “abused its discretion” when it sentenced Carter because the decision 

is clearly against the logic and effect of the facts and circumstances before the 
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trial court. Appellant’s Br. at 2, 12-13, 29. A trial court can abuse its discretion 

by (1) issuing an inadequate sentencing statement; (2) finding aggravating or 

mitigating factors that are not supported by the record; (3) omitting factors that 

are clearly supported by the record and advanced for consideration; or (4) by 

finding factors that are improper as a matter of law. Laster v. State, 956 N.E.2d 

187, 193 (Ind. Ct. App. 2011). Carter’s argument, however, focuses not on the 

sentencing statement or on aggravators and mitigators, but on his age, 

character, steady employment and lack of criminal history, maintaining that 

these factors warrant a reduction in his sentence.7 Accordingly, we review 

Carter’s sentence under Appellate Rule 7(B), which allows us to revise a 

sentence if, after due consideration of the trial court’s decision, we find that the 

sentence is inappropriate in light of the nature of the offense and the character 

of the offender. It is the defendant’s burden on appeal to persuade the 

reviewing court that the sentence imposed by the trial court is inappropriate. 

Chappell v. State, 966 N.E.2d 124, 133 (Ind. Ct. App. 2012), trans. denied.

“[W]hether we regard a sentence as appropriate at the end of the day turns on 

our sense of 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.” 

Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Upon appellate review, 

 

7 We remind counsel that whether a trial court has abused its discretion by improperly recognizing 

aggravators and mitigators when sentencing a defendant and whether a defendant’s sentence is inappropriate 

under Indiana Appellate Rule 7(B) are two distinct analyses. Hape v. State, 903 N.E.2d 977, 1000 n.12 (Ind. 

Ct. App. 2009), trans. denied.
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we have the power to affirm, reduce, or increase the sentence. Akard v. State,

937 N.E.2d 811, 813 (Ind. 2010).

[37] Carter’s Class A felony child molesting convictions subjected him to 

imprisonment for a fixed term of between twenty and fifty years, with the 

advisory being thirty years. Ind. Code § 35-50-2-4. Carter’s Class C felony 

child molesting conviction subjected him to imprisonment for a fixed term of 

between two and eight years, with the advisory being four years. Ind. Code § 

35-50-2-6(a). As to the nature of the offense, the advisory sentence is the 

starting point that the legislature has selected as an appropriate sentence for the 

crime committed. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified 

on reh’g, 875 N.E.2d 218 (Ind. 2007).

[38] Here, the trial court sentenced Carter to the advisory sentence of thirty years for 

the Class A felony convictions and the advisory sentence of four years for the 

Class C felony convictions, ordering the sentences to be served consecutively to 

one another for a total of ninety-eight years. Carter argues that the nature of 

the offense does not justify such a lengthy sentence because he “made no threat 

to M.N,” and he did not beat or “severely brutalize” M.N. except as was 

inherent in the commission of the crime. Appellant’s Br. at 29; Reply Br. at 16. 

He further asserts that his character, likewise, does not justify the imposed 

ninety-eight-year sentence because he had no prior criminal history, he had a 

history of steady employment, and he was young, twenty-two years old at the 

start of the allegations and twenty-five at the time of sentencing. He also 

presented to the trial court letters from a number of individuals who pointed out 
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that he had no prior trouble with the law, kept a job, was hard-working, and 

was family-oriented. Carter asserts that he possesses the potential for 

reformation and rehabilitation that would allow him to return as a productive 

member of society.

[39] The State responds that Carter systematically and repeatedly abused eight-yearold M.N., who called him “dad.” The State opines that it was “mind-boggling” 

that Carter “had within his grasp a complete reprieve,” when M.N. recanted his 

allegations, and due to the family’s unwillingness to cooperate with law 

enforcement, the investigation stalled; Carter could have “walked away” from 

charges of Class A felonies by no longer committing them. Appellant’s Br. at 21. 

However, upon returning to the home, Carter resumed molesting M.N., thereby 

“capitalizing” on M.N.’s self-sacrificing love for his mother. Id. at 22. The 

State argues that, although Carter was only twenty-two years of age when the 

offenses began, he was “old enough to know better.” Id. 

[40] Carter occupied a position of trust with M.N., and his offenses are undeniably 

serious. However, on balance of all the factors, we find that the ninety-eightyear sentence is out of range of appropriate results. We revise Carter’s sentence 

to two consecutive thirty-year terms for two of the Class A felony convictions 

and to one concurrent thirty-year term for the third Class A felony, plus two 

consecutive four-year terms on the Class C felony convictions, for an aggregate 

sentence of sixty-eight years. We affirm Carter’s convictions and remand the 

case to the trial court with instructions to enter such sentence.
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[41] Affirmed and remanded with instructions.

Friedlander, J., and Crone, J., concur.