ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kevin C. C. Wild Jeffrey Modisett
Indianapolis, Indiana Attorney General of Indiana
Randi E. Froug
Deputy Attorney General
INDIANA SUPREME COURT
RUSSELL BOWLES, JR., )
v. ) 49S00-9908-CR-443
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Jane Magnus-Stinson
Cause No. 49G06-9703-CF-6755
On Direct Appeal
November 3, 2000
The defendant, Russell Bowles, Jr., was convicted of eight counts of child molesting
involving two minor victims occurring over a period of twenty months in 1995
and 1996. We affirm, rejecting the defendant's claims of insufficient evidence, erroneous
exclusion of evidence, improper closing argument, and erroneous admission of sentencing hearing evidence.
Sufficiency of the Evidence
The defendant asserts two claims of insufficient evidence. He first contends that
his convictions were based on the inherently unreliable testimony of the two girls
who were molested.
In reviewing a claim of insufficient evidence, we will affirm the conviction unless,
considering only the evidence and reasonable inferences favorable to the judgment, and neither
reweighing the evidence nor judging the credibility of the witnesses, we conclude that
no reasonable fact-finder could find the elements of the crime proven beyond a
Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000); Webster
v. State, 699 N.E.2d 266, 268 (Ind. 1998); Hodge v. State, 688 N.E.2d
1246, 1247-48 (Ind. 1997). A victim's testimony, even if uncorroborated, is ordinarily
sufficient to sustain a conviction for child molesting. Brooks v. State, 560
N.E.2d 49, 53 (Ind. 1990); Downey v. State, 726 N.E.2d 794, 796 (Ind.
Ct. App. 2000), trans. denied; Spurlock v. State, 718 N.E.2d 773, 777 (Ind.
Ct. App. 1999), trans. denied. When confronted with testimony that is inherently
improbable or coerced, equivocal, wholly uncorroborated or of incredible dubiosity, we may make
an exception and reweigh the credibility of a witness. Tillman v. State,
642 N.E.2d 221, 223 (Ind. 1994). We have limited this exception, however,
to cases where a sole witness presents inherently contradictory testimony that is equivocal
or the result of coercion, and there is a complete lack of circumstantial
evidence of guilt. White v. State, 706 N.E.2d 1078, 1079-80 (Ind. 1999).
The two victims were sisters, who lived with their parents in the defendant's
home. When they testified at trial, one was fourteen and the other
twelve. The charged molestations occurred when they were ages nine, ten, and
eleven. Urging that their testimony was inherently improbable, the defendant points to
evidence that the girls had a bad reputation for truthfulness; that it was
unlikely that the girls were ever alone; that the defendant's house (where the
molestations occurred) was constantly frequented by unannounced visitors; that his practice was to
keep the children, those in the household (including the victims) and those visiting,
together as a group; that the separate, private incidents described by the two
girls were strikingly similar; that their accusations immediately followed a fight between the
defendant and their parents; and that their testimony contained inconsistencies.
Both girls testified to specific instances of molestation by the defendant, and maintained
their positions on direct and cross-examination. Their testimony did not reflect material
inconsistencies. It was not inherently contradictory. The defendant's claims are matters
of weight and credibility, a determination best left for the jury. We
decline to find that the victims' testimony was insufficient to support the defendant's
The defendant further claims that there was insufficient evidence of his intent to
arouse, the element required to make three of the convictions class C felonies.
The statute 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, commits child molesting, a Class C
Ind. Code § 35-42-4-3. Mere touching alone is not sufficient to constitute
the crime of child molesting. Clark v. State, 695 N.E.2d 999, 1002
(Ind. Ct. App. 1998), trans. denied; Nuerge v. State, 677 N.E.2d 1043, 1048
(Ind. Ct. App.1997), 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. Clark, 695 N.E.2d at 1002.
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 sequence
to which such conduct usually points. Id.
Exclusion of Evidence
Both girls testified that the defendant performed intentional sexual acts on them.
The defendant performed oral sex on the girls, fondled their breasts, rubbed his
genitals on theirs, and had one girl squeeze his penis. Record at
310, 317, 362-63. From these acts the jury could infer that the
defendant intended sexual arousal. Considering the facts favorable to the judgment, we
find that a reasonable jury could find the intent element proven beyond a
The defendant first contends that the trial court erred in sustaining the State's
objections to testimony from the girls' great aunt regarding the girls' reputation for
honesty in the community.
At trial, when asked if she had ever discussed with other people the
reputation for telling the truth of one of the girls, H.B., the witness
stated: "I've talked, we've talked about it, a few of my friends has
talked about it, you know." Record at 447. Upon further questioning,
she said that these friends knew H.B., that they lived in the witness's
community, and that the witness had known them "for some time." Id.
When the defense then asked the witness regarding her opinion about H.B.'s
reputation for telling the truth, the prosecutor objected, stating: "I don't believe this
meets the correct standard for reputation for truthfulness in the community." Id.
The defense replied: "Well, that's her community." Id. The trial
court commented upon the lack of an adequate foundation and sustained the objection.
Under limited circumstances, the credibility of a witness may be attacked by opinion
or reputation evidence. Ind. Evidence Rule 608(a). Our Court of Appeals
has discussed the nature of the communities from which admissible reputation evidence may
[E]vidence of reputation for veracity should not necessarily be limited to that within
the person's community of residence, but should include any community or society in
which he or she has a well-known or established reputation. That reputation
must be a general reputation, held by an identifiable group of people who
have an adequate basis upon which to form an opinion, and the witness
testifying to reputation must have sufficient contact with that community or society to
qualify as knowledgeable of the general reputation of the person whose character is
attacked or supported.
Dynes v. Dynes, 637 N.E.2d 1321, 1323 (Ind. Ct. App. 1994), trans. denied.
Considering the sparse information provided regarding the nature of the community, the
basis for a reputation opinion, and the extent of the witness's contact with
the community, the trial court was well within its discretion in sustaining the
The defendant also claims the trial court erred in excluding the testimony of
C.W., an acquaintance of the victims. During the defendant's case, he sought
to call C.W. to testify regarding prior remarks by one of the victims,
A.D., who had testified during the State's case in chief. These prior
remarks, however, were not mentioned during A.D.'s testimony. The trial court excluded
the proposed testimony. In an offer to prove, C.W., age sixteen, testified
that A.D. had stated that, during the school "Good Touch Bad Touch"
program, A.D. had raised her hand and said that she had been touched
by someone, although she didn't mention any names. C.W. further testified that,
after A.D. learned that C.W. would be attending a similar program the next
week, A.D. said to C.W., "Why don't you say that you've been touched,"
to which C.W. replied, "Well, why should I lie?" Record at 469.
The trial court reaffirmed its ruling excluding the evidence.
On appeal, the defendant argues that this testimony indicates A.D.'s "disregard for the
truth and lack of comprehension for the seriousness of alleging molestation." Brief
of Appellant at 13. He asserts that it would have disclosed prior
conduct by A.D. that was inconsistent with her testimony that she was telling
the truth. In view of the lack of material content in A.D.'s
prior remarks in the proffered testimony of C.W., we conclude that the trial
court did not abuse its discretion in excluding the evidence.
The defendant contends that the trial judge erred in allowing the prosecution to
read a highly prejudicial, inflammatory, and irrelevant poem to the jury during its
final closing argument. The State argues that this was nothing more than
an innovative alternate form of zealous argument.
At a bench conference at the conclusion of the evidence, the prosecution advised
the court of its intention to use a poem in rebuttal closing argument.
The poem was then reviewed by the trial court and defense counsel,
who objected on grounds that the poem was highly prejudicial and not supported
by the evidence. The trial court overruled the defendant's objection. The
poem was about a cockroach, who demoralizes and pesters the writer into insanity.
At the end of the poem, the writer looks toward the future
when she will be strong enough to triumph over the cockroach. The
prosecutor drew the analogy of the poem to this case with the defendant
as the cockroach and the victims as the writer.
The State began its final closing argument as follows:
Vile creature, your filth spreads my disease. You multiply in my mind
until I feel nothing but terror. You suck out my faith, you
spit on my trust. The common household vermin. With much excitement
you devour my innocence. Demoralizing my confidence nourishes you. Selfish beast
that scares me into corners. You pester me into insanity. No
one thinks that you are there, for you attack only at night.
In obscurity you leave the cracks in the floor to prey upon my
soul. Scurrying along my skin you make a comfortable home in my
ignorance. You find me no matter where I hide, and slowly I
drift into oblivion. This man, the defendant, Russell Bowles, is like a
cockroach. . . .
Record at 518. The State concluded its argument by stating:
I ask you to convict. The poem ends, feast now, cockroach, for
one day I will be strong enough and not afraid, and I will
crush you with my little toe. You know what, though, they're little
girls. All they can do is come forward and tell you the story.
This is where your responsibility begins. You know the truth.
You know it beyond a reasonable doubt. I ask you to put
an end to what this man has been doing in their lives.
You have to tell him no. You have to call him guilty.
Record at 526.
Conduct during final argument is a matter within the sound discretion of the
trial court, and a conviction will not be reversed unless there has been
a clear abuse of discretion resulting in prejudice to the accused. Hill
v. State, 517 N.E.2d 784, 786 (Ind. 1988). We decline to find
that the trial court abused its discretion in permitting the argument.
Admission of Sentencing Hearing Evidence
The defendant contends that the trial court erred when it admitted into evidence
at the sentencing hearing a statement by a victim from a prior conviction
of the defendant.
To constitute grounds for reversal, an error in the admission of evidence must
be "inconsistent with substantial justice." Ind. Trial Rule 61. A reviewing
court must disregard any error "which does not affect the substantial rights of
Id. When, as here, a trial court relies upon
aggravating circumstances to enhance the presumptive sentence, it must identify all significant circumstances,
state the specific reasons why the circumstance is aggravating or mitigating, and articulate
the court's evaluation and balancing of the circumstances. Ind. Code § 35-38-1-3;
Bonds v. State, 729 N.E.2d 1002, 1005 (Ind. 2000). This requirement insures
that only proper matters are considered. Hammons v. State, 493 N.E.2d 1250,
1254 (Ind. 1986).
In this case, the trial court expansively articulated these factors at sentencing.
Record at 619-24. Although it recited the defendant's extensive criminal history, the
court did not rely upon or refer to any information contained in the
challenged statement from the prior victim. It is not necessary for us
to decide whether the trial court erred. We conclude that the alleged
error did not affect the defendant's substantial rights.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
Ind. Code § 35-42-4-3.
The defendant also claims error in the admission at sentencing of evidence
that the defendant was the father of a child born to a female
who was underage when the child was conceived. At trial, the defendant
objected only to State's Exhibit 1, the report of the DNA analysis.
He did not object to testimony providing the out of court statements of
the underage female. He argues that, because the DNA report was not
provided in advance, he had insufficient time to examine or challenge its validity
or accuracy. This claim is without merit because the trial court sustained
the defendant's objection to the DNA exhibit. Record at 609.