Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1094 | March 7, 2016 Page 1 of 8

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

P. Stephen Miller

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Monika Prekopa Talbot

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Diverlo Georges,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

March 7, 2016

Court of Appeals Case No.

02A03-1508-CR-1094

Appeal from the Allen Superior 

Court

The Honorable John F. Surbeck, 

Jr., Judge

Trial Court Cause No.

02D06-1410-FA-45

Bailey, Judge.
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Case Summary

[1] Diverlo Georges (“Georges”) was convicted after a jury trial of two counts of 

Child Molesting, as Class A felonies,1 and one count of Child Molesting, as a 

Class C felony.2 He was sentenced to an aggregate term of imprisonment of 

thirty years, and now appeals.

[2] We affirm.

Issues

[3] Georges presents two issues for our review, which we restate as:

I. Whether there was sufficient evidence to sustain his 

conviction of Child Molesting, as a Class C felony; and

II. Whether the evidence supporting his convictions for Child 

Molesting, as Class A felonies, was incredibly dubious.

Facts and Procedural History

[4] J.N. and Georges were both Haitian immigrants and part of the same extended 

family. J.N. came to the United States from Haiti in August 2011 at the age of 

eleven. J.N., Georges, J.N.’s father, J.N.’s stepmother, and several of J.N.’s 

 

1

Ind. Code § 35-42-4-3(a)(1). Georges’s offenses were committed prior to the July 1, 2014, effective date of 

substantial revisions to Indiana’s criminal statutes. We refer throughout to the versions of the statutes in 

effect at the time of Georges’s offenses.

2

I.C. § 35-42-4-3(b).
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siblings shared a home in Fort Wayne until December 30, 2011, when Georges 

and his wife moved into their own apartment. After Georges and his wife 

moved to their own residence, J.N. and her siblings would visit Georges’s home 

from time to time.

[5] On one Sunday during the winter of 2011 or early 2012, J.N. and several 

siblings were visiting Georges’s home after church. Georges told J.N. to sit on 

his lap, and J.N. complied. Georges touched J.N.’s leg and rubbed a part of her 

body, and then got up and took a shower.

[6] After Georges was done showering, he told J.N. to come into a bedroom with 

him. Georges turned off the light and closed the door in the room. J.N., who 

was wearing a skirt, was sitting on the edge of the bed. Georges used his hand 

to push J.N.’s underwear aside and initiated sexual intercourse with J.N. J.N. 

pushed Georges away; Georges told J.N. not to push him, and again initiated 

sexual intercourse with J.N. Georges eventually ceased intercourse and 

ejaculated onto a towel he had placed on the floor. He then told J.N. not to tell 

anyone what had happened because both he and J.N. would get in trouble.

[7] On another occasion, J.N. and several siblings were staying with Georges and 

his wife for the weekend. While J.N.’s siblings were playing or watching 

television, Georges had J.N. come into the same bedroom as before, and again 

engaged in sexual intercourse with J.N. As on the prior occasion, Georges 

ejaculated onto a towel he had placed on the floor.
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[8] J.N. eventually reported these incidents to a school guidance counselor, who in 

turn contacted Child Protective Services and the Fort Wayne Police. On 

October 15, 2014, the State charged Georges with two counts of Child 

Molesting, as Class A felonies, and one count of Child Molesting, as a Class C 

felony.

[9] A jury trial was conducted on June 9 and 10, 2015. At the conclusion of the 

trial, the jury found Georges guilty as charged. A sentencing hearing was 

conducted on July 24, 2015, during which the trial court entered judgment 

against George and sentenced him to thirty years imprisonment for each of the 

Class A felony convictions and to four years imprisonment for the Class C 

felony conviction, with all three terms run concurrent with one another, 

yielding an aggregate sentence of thirty years.

[10] This appeal ensued.

Discussion and Decision

Sufficiency of the Evidence

[11] Georges contends that there was insufficient evidence to sustain his conviction 

for Child Molesting, as a Class C felony. Our standard of review in sufficiency 

challenges is well settled. We consider only the probative evidence and 

reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 

146 (Ind. 2007). We do not assess the credibility of witnesses or reweigh 

evidence. Id. We will affirm the conviction unless “no reasonable fact-finder 
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could find the elements of the crime proven beyond a reasonable doubt.” Id.

(quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)). “The evidence is 

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

verdict.” Id. at 147 (quoting Pickens v. State, 751 N.E.2d 331, 334 (Ind. Ct. App. 

2001)).

[12] To convict Georges of Child Molesting as a Class C felony, as charged, the 

State was required to prove beyond a reasonable doubt that Georges performed 

or submitted to fondling or touching with J.N., then a child under fourteen 

years of age, with the intent of arousing or satisfying either his own or J.N.’s 

sexual desires. See I.C. § 35-42-4-3(b); App’x at 16.

[13] Here, Georges contends that there was insufficient evidence to sustain the 

verdict based upon: 1) a difference between what the State argued it would 

establish in opening argument and J.N.’s trial testimony, and 2) purported lack 

of sexual intent on Georges’s part. As to the first point, Georges argues that the 

State failed to produce evidence that he touched J.N.’s leg, a point the State 

said during opening argument it would prove, and thus there is insufficient 

evidence. However, J.N.’s testimony at trial is that Georges had J.N. sit on his 

lap and that, while she was sitting on Georges’s lap, he touched J.N. “right 

here, like he just rubbed it.” (Tr. at 196-97.) That is, J.N.’s testimony 

established touching in the form both of sitting on Georges’s lap and some 

additional form of touching J.N.’s body. J.N.’s testimony, including the phrase 

“right here,” indicates that the jury was made aware visually of what part of 

J.N.’s body Georges may have touched. Neither the statute nor the charging 
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information specifically require proof that Georges touched J.N.’s leg, and we 

decline Georges’s apparent invitation to reweigh the evidence on this point.

[14] Turning to the question of intent, J.N. testified that immediately after Georges 

had J.N. sit on his lap, he got up to take a shower and, after the shower, 

brought J.N. to a bedroom and engaged in sexual intercourse with her. Given 

the brief span of time and J.N.’s testimony that Georges had rubbed some part 

of her while she sat on Georges’s lap, the jury could reasonably infer that 

Georges’s conduct before the shower was intended to arouse his sexual desires. 

We accordingly conclude that there was sufficient evidence to sustain Georges’s 

conviction for Child Molesting, as a Class C felony.

Incredible Dubiosity

[15] Georges also argues that J.N.’s testimony supporting his Class A felony 

convictions was incredibly dubious.

Under the incredible dubiosity rule, a court will impinge on a 

jury's responsibility to judge witness credibility only when 

confronted with inherently improbable testimony or coerced, 

equivocal, wholly uncorroborated testimony of incredible 

dubiosity. Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994). The 

incredible dubiosity rule, however, is limited to cases where a 

sole witness presents inherently contradictory testimony which is 

equivocal or the result of coercion and there is a complete lack of 

circumstantial evidence of the defendant’s guilt. Id.

Majors v. State, 748 N.E.2d 365, 367 (Ind. 2001) (emphasis added). “The 

incredible dubiosity rule applies to conflicts in trial testimony rather than 
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conflicts that exist between trial testimony and statements made to the police 

before trial.” Buckner v. State, 857 N.E.2d 1011, 1018 (Ind. Ct. App. 2006) 

(citing Reyburn v. State, 737 N.E.2d 1169, 1171 (Ind. Ct. App. 2000)). For 

testimony to be so incredibly dubious as to warrant reversal of a conviction or 

delinquency adjudication, the single witness’s testimony must be coerced or 

“inherently improbable [so] that no reasonable person could believe it.” Love v. 

State, 761 N.E.2d 806, 810 (Ind. 2002).

[16] The incredible dubiosity rule does not apply here. In Moore v. State, 27 N.E.3d 

749 (Ind. 2015), the Indiana Supreme Court addressed an appeal from a murder 

case in which there was only one eyewitness to a shooting. Id. at 757. The 

Moore Court held that the incredible dubiosity rule did not apply because, while 

there was only one eyewitness to the shooting, other witnesses’ testimonies 

“placed Moore at the scene” or provided other forms of corroboration. Id. The 

court reiterated that “the testimony of multiple witnesses alone precludes the 

application of the incredible dubiosity rule.” Id. at 758.

[17] Here, multiple witnesses provided testimony. Georges is correct that the only 

eyewitness to the offense was J.N. However, several of J.N.’s and Georges’s 

family members testified as to J.N.’s age and the timing of her arrival in the 

United States, the timing of Georges’s move out of J.N.’s family home, and the 

timing of instances in which Georges would have had access to J.N. without 

other adults present in his home. The incredible dubiosity rule therefore does 

not apply. And because Georges stated in his brief that he would “concede[] 

this issue” if he was incorrect as to the applicability of the incredible dubiosity 
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rule in this case (Appellant’s Br. at 8), we find no other contention of error or 

basis for reversal.

Conclusion

[18] There was sufficient evidence to support Georges’s conviction for Child 

Molesting, as a Class C felony. The evidence supporting Georges’s convictions 

for Child Molesting, as Class A felonies, is not subject to analysis under the 

incredible dubiosity rule.

[19] Affirmed.

Vaidik, C.J., and Crone, J., concur.