Alford v. State, 011119 INCA, 18A-CR-1152

Docket Nº:18A-CR-1152
Opinion Judge:ROBB, JUDGE.
Party Name:Timothy Dale Alford, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
Attorney: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
Judge Panel:Riley, J., and Kirsch, J., concur.
Case Date:January 11, 2019
Court:Court of Appeals of Indiana
 
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Timothy Dale Alford, Appellant-Defendant,

v.

State of Indiana, Appellee-Plaintiff.

No. 18A-CR-1152

Court of Appeals of Indiana

January 11, 2019

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.

Appeal from the Shelby Superior Court The Honorable R. Kent Apsley, Judge Trial Court Cause No. 73D01-1703-F1-3

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

MEMORANDUM DECISION

ROBB, JUDGE.

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 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 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...

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