Opinion
23A-CR-2630
10-18-2024
Zachary T. Harper, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Brandon E. Murphy Cannon Bruns & Murphy Muncie, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana Alexandria Sons Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Jay Circuit Court The Honorable Brian Hutchinson, Judge Trial Court Cause No. 38C01-2303-F1-2
ATTORNEY FOR APPELLANT
Brandon E. Murphy
Cannon Bruns & Murphy
Muncie, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Indiana Attorney General
Indianapolis, Indiana
Alexandria Sons
Deputy Attorney General
Indianapolis, Indiana
Judges Vaidik and Kenworthy concur.
MEMORANDUM DECISION
May, Judge.
[¶1] Zachary T. Harper was convicted of three counts of Level 1 felony child molesting and adjudicated a habitual offender. Harper raises three issues on appeal, which we restate as:
1. Whether the trial court committed fundamental error when it instructed the jury;
2. Whether two of Harper's convictions violate his right to be free of double jeopardy; and
3. Whether Harper's 150-year sentence is inappropriate for his character and his offenses.
We affirm and remand for correction of the sentencing order.
Facts and Procedural History
[¶2] When 2022 began, Harper lived in a house with A.A. and their four-year-old daughter, R.H. In mid-January, A.A. gave birth to their second daughter, A.H. A.A. returned to work following maternity leave on March 2, 2022, and because A.A. was working five or six days a week, Harper stayed at home with their daughters. Thereafter, "a lot of times" while A.A. was at work, (Ex. 1, Video 1 at 17:35-17:38), Harper put his penis in R.H.'s mouth, in R.H.'s vagina, and in R.H.'s anus. When R.H. told Harper that she did not like what was happening, he would tell her that she was "lying," (id. at 11:16-11:20), and when she tried to get away from him, he held her there because "he's really, really strong." (Id. at 11:44-11:46.) Harper told R.H. that she had to keep these activities secret and she "could never tell anyone." (Id. at 14:11-14:14.) Harper moved out of the family residence on April 24, 2022.
[¶3] One weekend in September 2022, R.H. disclosed details that suggested she had been sexually abused by Harper. A.A. contacted the Department of Child Services and a case manager met with R.H. on September 12, 2022. On September 13 and September 14, R.H. went to the Child Advocacy Center in Randolph County for a forensic interview. R.H. described having Harper's penis in her mouth as "yucky . . . so gross." (Id. at 14:20-14:30.) She shared that Harper would make R.H. lay on her bed and keep her feet up so he could penetrate her and that sometimes he would penetrate her anus and sometimes he would penetrate her vagina. She explained that Harper would spit on his hand and rub it on his penis before putting his penis in her anus. (Id. at 20:4821:05.) When asked what it felt like for her dad to do these things, R.H. said "it feels like being mean." (Id. at 17:15-17:19.) She also described being "nauseous" and "shy" when Harper molested her. (Id. at 18:45-18:55.) She said, "When he shoved it in there hard, it hurt." (Id. at 31:17-31:23.)
[¶4] On March 13, 2023, the State charged Harper with three counts of Level 1 felony child molesting - two of the counts alleged "other sexual conduct" and one alleged sexual intercourse. (App. Vol. 2 at 12.) The State also filed notice of intent to seek a habitual offender adjudication. Just over six months later, the trial court held a jury trial, and the jury found Harper committed all three offenses and is a habitual offender. Following preparation of the presentence investigation report, the court held a sentencing hearing. The court imposed a forty-five-year sentence for each count of child molesting and fifteen years for the habitual offender adjudication, and it ordered the sentences served consecutively.
Discussion and Decision
1. Jury Instructions
[¶5] Harper argues the trial court provided inadequate instruction to the jury. "The purpose of a jury 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." Isom v. State, 31 N.E.3d 469, 484 (Ind. 2015) (quoting Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001)) (internal quotation from Dill omitted), reh'g denied, cert. denied 577 U.S. 1137 (2016). A trial court's jury instructions are reviewed for an abuse of discretion. Id. An abuse of discretion occurs "when the instruction is erroneous and the instructions taken as a whole misstate the law or otherwise mislead the jury." Id. at 485.
[¶6] Harper argues the jury should have been given additional instructions about jury unanimity in accordance with Baker v. State, 948 N.E.2d 1169 (Ind. 2011). In that case, Baker had been charged with one count of child molesting with respect to each of three alleged victims, and the jury "heard evidence of multiple acts of molestation concerning each alleged victim." Id. at 1177. The trial court instructed the jury with standard instructions regarding the unanimity requirement, and then the jury found Baker guilty of all three counts. On appeal, Baker argued there was no way to be certain that any of the verdicts rested on all jurors agreeing he committed any particular act of molesting against each alleged victim.
Baker's jury was instructed, in relevant part:
"Your verdicts must represent the considered judgment of each juror. In order to return a verdict of guilt or innocence you must all agree Upon retiring to the jury room the Foreperson will preside over your deliberations and must sign and date the verdicts to which you agree. Each verdict must be unanimous.... "Baker, 948 N.E.2d at 1178 (quoting Baker's Appellant's App. at 286-87).
[¶7] Our Indiana Supreme Court reiterated that, pursuant to Indiana law, jury verdicts in criminal cases "must be unanimous." Id. at 1174 (quoting Fisher v. State, 291 N.E.2d 76, 82 (Ind. 1973)). It then reviewed scenarios in which questions of jury unanimity arise in child sex offense cases - when abuse occurs so frequently by an abuser living with a child that "the young child loses any frame of reference in which to compartmentalize the abuse into distinct and separate transactions[,]" id. at 1174 (quoting R.L.G. v. State, 712 So.2d 348, 356 (Ala.Crim.App.1997) (labelling this type "generic evidence"), and when "evidence is presented of a greater number of separate criminal offenses than the defendant is charged with." Id. at 1175. To address concerns regarding jury unanimity in such cases, the Court adopted reasoning from the California Supreme Court in People v. Jones, 792 P.2d 643 (Cal. 1990), and held:
[T]he State may in its discretion designate a specific act (or acts) on which it relies to prove a particular charge. However if the State decides not to so designate, then the jurors should be instructed that in order to convict the defendant 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. at 1177.
[¶8] The State had not designated a specific act of molesting that Baker's jury needed to find Baker had committed with each of his three victims to declare him guilty, and our Indiana Supreme Court held the standard unanimity instructions were inadequate to inform Baker's jury that it needed to unanimously agree either to a specific act or to all acts. Id. at 1178. Nevertheless, the Court held reversal was not required because Baker had not objected at trial and the error was not so prejudicial that it denied him a fair trial when "the only issue was the credibility of the alleged victims." Id. at 1179. Because the jury had chosen to believe the witnesses' version of events, the jury probably believed that all of the reported acts had occurred. See id. ("the jury resolved the basic credibility dispute against [Baker] and would have convicted the defendant of any of the various offenses shown by the evidence to have been committed") (italics and brackets in Baker) (quoting State v. Muhm, 775 N.W.2d 508, 521 (S.D. 2009)).
[¶9] Harper's jury was given a standard unanimity instructions. Harper argues he was entitled to the unanimity instruction discussed in Baker, but he also acknowledges that he, like Baker, failed to request those additional instructions at trial. When the trial court asked counsel whether they approved the final instructions, which did not contain specialized unanimity instructions, defense counsel did not object. "A party's failure to object to, and thus preserve, an alleged trial error results in waiver on appeal." Batchelor v. State, 119 N.E.3d 550, 556 (Ind. 2019). We review waived arguments for fundamental error. Id. at 559. "An error is fundamental if it 'made a fair trial impossible' or if it clearly and blatantly violated basic principles of due process resulting in 'undeniable and substantial potential for harm.'" Id. (quoting Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018)).
Harper's jury was instructed:
To return a verdict, each of you must agree. Each of you must decide the case for yourself but only after considering the evidence with the other jurors. You should try to agree on a verdict, if you can do so without compromising your individual judgment. Do not hesitate to re-examine your own views or change your mind if you believe you are wrong. But do not give up your honest belief just because the other jurors may disagree. After the verdict is read in Court, you may be asked if you agree with it.
If there is a break in the deliberations, do not talk about the case among yourselves or with anyone else. The Court is submitting to you forms of possible verdicts you may return. The foreperson should sign and date only the appropriate verdict to which you have all agreed. Do not sign any verdict for which there is not a unanimous agreement. The foreperson should return the verdict form to the Court, signed or unsigned.(App. Vol. 2 at 72) (Final Instruction 13).
In fact, the record suggests Harper requested the standard unanimity instruction that he received. Prior to the start of trial, after the jury had been selected, the trial court said to counsel on the record and outside the presence of the jury:
I had previously tendered proposed preliminary instructions to counsel. Counsel have emailed me proposed instructions. I have included neither in the preliminaries. The unanimity instruction is already contained in the final and the definition requested by the State is now incorporated into the final w-along with the Spurlock language.(Tr. Vol. 2 at 4) (full capitalization removed) (error in original). The record before us does not contain the contents of the emails sent to the trial court by counsel requesting instructions, and we therefore cannot confirm whether defense counsel or the State requested the standard unanimity instruction.
[¶10] Harper cannot demonstrate that fundamental error occurred. Harper presented one witness at trial, and she testified Harper had lived in the same motel where she had lived during March and April of 2022, which contradicted the State's evidence that Harper was home alone with his two young daughters during those months. Harper's closing argument also challenged the credibility of R.H. and her mother, A.A. Accordingly, herein, the jury's verdicts rested on its determination of the credibility of the witnesses, and more specific instructions regarding unanimity about the specific acts committed would not have altered those assessments. See Baker, 948 N.E.2d at 1179 (holding no fundamental error occurred when court failed to give additional unanimity instruction because "the only issue was the credibility of the alleged victims").
2. Double Jeopardy
[¶11] Harper next claims he was subjected to double jeopardy when he was convicted of two counts of child molesting that alleged other sexual conduct during the same timeframe because the identical charges were the "same offense." (Br. of Appellant at 13.) In support, he argues we should apply the federal Blockburger test, see Blockburger v. United States, 284 U.S. 299 (1932) (defining federal statutory elements test), and Indiana's Wadle analysis. See Wadle v. State, 151 N.E.3d 227 (Ind. 2020) (outlining revised substantive double jeopardy analysis under Indiana constitution). However, those tests were designed to determine whether a defendant was subject to double jeopardy when multiple charges arose from "a single criminal act." Id. at 238; see also id. at 247 (Wadle analysis intended to apply "when a single criminal act or transaction violates multiple statutes with common elements and harms one or more victims"). Reading the final instructions given to Harper's jury leads us to conclude we need not apply either of those tests to determine that Harper was not subjected to double jeopardy.
[¶12] The final jury instruction for the first of the three charges against Harper provided:
FINAL INSTRUCTION 5.1
To convict the defendant of Ct. 1-Child Molesting, a Level 1 Felony, the State must prove each of the following elements:
1. Between March 1, 2022, and May 9, 2022,
2. The defendant
3. Being at least twenty-one (21) years of age
4. Knowingly or intentionally
5. Performed or submitted to other sexual conduct
6. With a child under the age of fourteen (14).
If the State failed to prove any of these elements beyond a reasonable doubt, you must find the defendant not guilty. If the State proved each of these elements beyond a reasonable doubt, you should find the [d]efendant guilty of Ct. 1- Child Molesting, a Level 1 Felony.(App. Vol. 2 at 69-70.) The instruction for the second charge provided:
FINAL INSTRUCTION 5.2
To convict the defendant of Ct. II Child Molesting, a Level 1 Felony, the State must prove each of the following elements:
1. On a second occasion between March 1, 2022, and May 9, 2022,
2. The defendant
3. Being at least twenty-one (21) years of age
4. Knowingly or intentionally
5. Performed or submitted to sexual intercourse
6. With a child under the age of fourteen (14).
If the State failed to prove any of these elements beyond a reasonable doubt, you must find the defendant not guilty. If the State proved each of these elements beyond a reasonable doubt, you should find the [d]efendant guilty of Ct. II - Child Molesting, a Level 1 Felony.(Id. at 70.) The instruction for the third charge provided:
FINAL INSTRUCTION 5.3
To convict the defendant of Ct. III Child Molesting, a Level 1 Felony, the State must prove each of the following elements:
1. On a third occasion between March 1, 2022, and May 9, 2022,
2. The defendant
3. Being at least twenty-one (21) years of age
4. Knowingly or intentionally
5. Performed or submitted to other sexual conduct
6. With a child under the age of fourteen (14).
If the State failed to prove any of these elements beyond a reasonable doubt, you must find the defendant not guilty. If the State proved each of these elements beyond a reasonable doubt, you should find the [d]efendant guilty of Ct. III-Child Molesting, a Level 1 Felony.(Id. at 70.)
[¶13] Because the jury was instructed that the three counts of Level 1 felony child molesting had to occur on three different occasions, the two counts that alleged child molesting by other sexual conduct could not have occurred on the same day, and thus the offenses did not arise from "a single criminal act or transaction." Wadle, 151 N.E.3d at 247. "[T]here is no bar to the prosecution of multiple offenses where separate and distinct illegal acts have been committed and there exists a separate and distinct intent, impulse, and force for each act." Pruitt v. State, 557 N.E.2d 684, 688 (Ind.Ct.App. 1990) (holding operation of a bingo parlor on several evenings, with distinct handbills prepared for each evening, was not one continuing offense, but instead could result in convictions of separate counts for distinct days), reh'g denied, trans. denied. Accordingly, Harper was not subjected to double jeopardy when he was convicted of counts that occurred on different days.
3. Inappropriate Sentence
[¶14] Finally, Harper argues his 150-year sentence is inappropriate. Pursuant to Indiana Appellate Rule 7(B), we may 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." Our determination "turns on our sense of the 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).
Our review is deferential to the trial court's decision, and our goal is to determine whether the appellant's sentence is inappropriate, not whether some other sentence would be more appropriate. We consider not only the aggravators and mitigators found by the trial court, but also any other factors appearing in the record. The appellant bears the burden of demonstrating his sentence [is] inappropriate.George v. State, 141 N.E.3d 68, 73-74 (Ind.Ct.App. 2020) (internal citations omitted), trans. denied. We conduct a "holistic" review that takes into consideration "the whole picture before us." Lane v. State, 232 N.E.3d 119, 127 (Ind. 2024). Appellants need not prove their sentence is inappropriate for both their character and offense, but "to the extent the evidence on one prong militates against relief, a claim based on the other prong must be all the stronger to justify relief." Id.
[¶15] "Our analysis of the nature of the offense requires us to look at the nature, extent, heinousness, and brutality of the offense." Pritcher v. State, 208 N.E.3d 656, 668 (Ind.Ct.App. 2023). As our Indiana Supreme Court has explained, "compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality)" may lead to a downward revision of the defendant's sentence. Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). "When considering the nature of the offense, we first look to the advisory sentence for the crime." McHenry v. State, 152 N.E.3d 41, 46 (Ind.Ct.App. 2020). When a sentence deviates from the advisory sentence, "we consider whether there is anything more or less egregious about the offense as committed by the defendant that distinguishes it from the typical offense accounted for by our legislature when it set the advisory sentence." Madden v. State, 162 N.E.3d 549, 564 (Ind.Ct.App. 2021).
[¶16] Harper was convicted of three Level 1 felonies and adjudicated a habitual offender. When convicted of a Level 1 felony, a person "shall be imprisoned for a fixed term of between twenty (20) and fifty (50) years, with the advisory sentence being thirty (30) years." Ind. Code § 35-50-2-5.5. If a defendant is adjudicated a habitual offender when also convicted of a Level 1 felony, the court shall add a fixed term between eight and twenty years for the habitual offender enhancement. Ind. Code § 35-50-2-8(i). Herein, the trial court imposed three forty-five-year sentences, enhanced by fifteen years for the habitual offender adjudication, and ordered the sentences served consecutively for an aggregate sentence of 150 years.
[¶17] We cannot say this sentence is inappropriate for the nature of Harper's offenses. Harper took advantage of being a stay-at-home father by molesting his own four-year-old daughter when they were alone and she was in his care. He repeatedly put his penis in her mouth, vagina, and anus. When she said she did not want him to do what he was doing, he called her a liar, and when she tried to move away from him, he used his strength to hold her in place. He also instructed her that she could never tell anyone. R.H. has nightmares during which she screams "Stop, get away . . . don't touch me, get off me." (Tr. Vol. II at 136-7.) She struggles to sleep in her own bedroom, and she is afraid around other men because they could do to her what her own father did. Harper's crimes are truly heinous, and we see nothing inappropriate about a 150-year sentence.
[¶18] Nor does Harper's character suggest his sentence is inappropriate. "When considering the character of the offender, one relevant fact is the defendant's criminal history." Johnson v. State, 986 N.E.2d 852, 857 (Ind.Ct.App. 2013). Harper was alleged to be a delinquent at age thirteen for receiving stolen property, and he agreed to participate in the Wells County Teen Court without being adjudicated a delinquent. At age eighteen, Harper burglarized a building used for religious worship, a Class B felony. Between his conviction and sentencing for that burglary, Harper was found in contempt of court and ordered to spend thirty days in jail. After being released to probation, Harper violated probation by committing auto theft, which caused the court to revoke 1,642 days of his suspended sentence. Harper was convicted of auto theft, a Level 6 felony, and received a two-year sentence therefor. At age 26, Harper pled guilty to resisting law enforcement, a Class A misdemeanor. At the time of his sentencing in this proceeding, Harper had pending charges of Level 5 felony burglary, Level 6 felony theft, and Level 4 felony child molesting. Harper's overall score on the Indiana Risk Assessment System administered by the probation department indicates he is a "HIGH" risk to reoffend. (Appellant's App. Vol. 2 at 93) (capitalization in original). In light of Harper's criminal history and risk of reoffending, we cannot say his sentence is inappropriate for his character.
[¶19] Despite Harper's sentence not being inappropriate, the trial court did err when imposing the sentence. In necessary part, the habitual offender statute states:
Habitual offender is a status that results in an enhanced sentence. It is not a separate crime and does not result in a consecutive sentence. The court shall attach the habitual offender enhancement to the felony conviction with the highest sentence imposed and specify which felony count is being enhanced.Ind. Code § 35-50-2-8(j). "Our Indiana Supreme Court has repeatedly held that when defendants are convicted of multiple offenses and found to be habitual offenders, trial courts must impose the resulting penalty enhancement on only one of the convictions and must specify the conviction so enhanced." Davis v. State, 843 N.E.2d 65, 67 (Ind.Ct.App. 2006). Neither at the sentencing hearing nor in its written sentencing order did the trial court indicate which of Harper's sentences was being enhanced by fifteen years. Instead, after indicating all three sentences would be served consecutive to each other, the court said "I'm gonna enhance it by 15 years." (Tr. Vol. 2 at 145-46) (full capitalization removed). (See also App. Vol. 2 at 112) (sentencing order).
"Failure to specify requires remand to the trial court to correct the sentence as it regards the habitual offender status." Davis, 843 N.E.2d at 67. We accordingly remand for the trial court to enter a corrected sentencing order that attaches Harper's habitual offender sentence enhancement to the sentence for one of Harper's three convictions of Level 1 felony child molesting.
Conclusion
[¶20] Because all of Harper's arguments fail, we affirm the trial court's judgment. We nevertheless must remand for the trial court to correct its sentencing order by attaching the habitual offender enhancement to the sentence for one of Harper's three convictions. Accordingly, we affirm and remand.
[¶21] Affirmed and remanded.
Vaidik J., and Kenworthy, J., concur.