Timothy L. Larkey, Sr. v. State of Indiana (mem. dec.)
90A02-1612-CR-2767
| Ind. Ct. App. | May 16, 2017Background
- Between March 2013 and July 2014, Tim Larkey Sr. lived in a Poneto, Indiana house with his son, the son’s girlfriend Amanda, and her four children; Larkey occasionally babysat and was called “Grandpa.”
- On May 21, 2015, DCS removed the children from Amanda’s care; in September 2015 one child (D.G.) was referred for counseling and disclosed sexual abuse by Larkey occurring while she slept.
- D.G. testified she awoke to Larkey touching her vagina skin-to-skin, stopped the conduct by hitting/kicking him, and did not report earlier because she was scared.
- DCS and police investigated; on December 22, 2015 the State charged Larkey with Class C felony child molesting.
- A jury convicted Larkey after an October 2016 trial; the trial court imposed an eight-year sentence (maximum for a Class C felony).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the evidence to convict of Class C child molesting | The State relied on D.G.’s testimony and the investigation to prove molestation beyond a reasonable doubt | Larkey argued the only evidence was D.G.’s uncorroborated, dubiously reliable testimony and invoked the incredible dubiosity rule | Conviction affirmed; D.G.’s testimony was neither inherently improbable nor coerced, and uncorroborated victim testimony can sustain a conviction |
| Appropriateness of an eight-year (maximum) sentence under Rule 7(B) | The State supported the maximum based on offense gravity and Larkey’s criminal history | Larkey argued the sentence was inappropriate given his character and the offense | Sentence affirmed; the offense’s nature (molestation of a 10‑year‑old in her bedroom) and Larkey’s extensive criminal record justified the maximum term |
Key Cases Cited
- Tobar v. State, 740 N.E.2d 109 (Ind. 2000) (standard for sufficiency review)
- Lock v. State, 971 N.E.2d 71 (Ind. 2012) (review focuses on evidence favorable to verdict)
- Jones v. State, 701 N.E.2d 863 (Ind. Ct. App. 1998) (trier of fact resolves credibility and weight)
- Feyka v. State, 972 N.E.2d 387 (Ind. Ct. App. 2012) (uncorroborated minor victim testimony can sustain conviction)
- Leyva v. State, 971 N.E.2d 699 (Ind. Ct. App. 2012) (incredible dubiosity rule applied narrowly)
- Love v. State, 761 N.E.2d 806 (Ind. 2002) (articulation of the incredible dubiosity standard)
- Paul v. State, 888 N.E.2d 818 (Ind. Ct. App. 2008) (focus for Rule 7(B) review: nature and depravity of offense and offender’s character)
- Sanchez v. State, 891 N.E.2d 174 (Ind. Ct. App. 2008) (defendant bears burden to show sentence is inappropriate)
- Green v. State, 65 N.E.3d 620 (Ind. Ct. App. 2016) (advisory sentence is a starting point for sentencing analysis)