Opinion
23A-CR-2676
06-07-2024
Jerry Fording, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Christopher Sturgeon ATTORNEYS FOR APPELLEE Theodore E. Rokita, James Thomas Whitehead.
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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Clark Circuit Court The Honorable Nicholas A. Karaffa, Judge Trial Court Cause No. 10C01-2004-F3-000011.
ATTORNEY FOR APPELLANT Christopher Sturgeon
ATTORNEYS FOR APPELLEE Theodore E. Rokita, James Thomas Whitehead.
MEMORANDUM DECISION
Felix, Judge.
Statement of the Case
[¶1] In 2023, a jury convicted Fording of vicarious sexual gratification and performing sexual conduct in the presence of a minor for acts involving A.C., his stepdaughter, that occurred between 2016 and 2019. The trial court sentenced Fording to a total of 12 years at the Indiana Department of Correction. Fording now appeals and presents four issues for our review, which we revise and restate as the following three issues:
1. Whether there is a fatal variance between the charging information and the evidence adduced at trial concerning the vicarious sexual gratification charge; and
2. Whether the State presented sufficient evidence to support venue and Fording's convictions;
3. Whether Fording's sentence is inappropriate under Indiana Appellate Rule 7(B).
[¶2] Because we conclude there was insufficient evidence to support Fording's vicarious sexual gratification conviction, we reverse that conviction. On all other issues raised, we affirm.
Facts and Procedural History
[¶3] A.C. was born on May 16, 2011, to Erica Fording ("Mother") and Ray Cooley ("Father"). Mother and Father divorced in 2016. Shortly after their separation, Mother moved in with Fording, and the two eventually married. Since Mother and Father's divorce, A.C. has stayed with Father on weekdays and with Mother on weekends. Although Mother and Fording moved frequently, nearly all their residences were in Clark County, Indiana.
[¶4] A.C. usually arrived at Mother's residence between 5 and 6 p.m. for her weekend stays. Mother frequently worked the night shift, and when she did, she typically did not get home until approximately 10 p.m. In the four to five hours between A.C.'s arrival and Mother's return from work, Fording watched A.C. Usually around 7 p.m., Fording would tell A.C. to shower. After she finished showering, Fording would tell A.C. to go into Mother's bedroom, lie on Mother's bed, and spread her legs. Fording would then "check" A.C., touching her "private" and inner thigh with his fingers. Tr. Vol. II at 89-90. This occurred after nearly every shower A.C. took when she visited Mother's home. A.C. was afraid when Fording would do this and "just wanted to get it over with," but she did not tell Fording to stop because she "was scared." Id. at 91. No one but Fording ever "checked" A.C. after she showered.
[¶5] When Fording showered while A.C. was at Mother's home, Fording would often ask A.C. to come into the bathroom to change the trash bag in the trash can. Once A.C. would enter the bathroom, Fording would open the shower curtain, stand in front of her naked, and look down at his "private." Tr. Vol. II at 94. No one but Fording ever asked A.C. to change the bathroom trash bag, and he only did so when he was in the shower. Additionally, Fording frequently asked A.C. to perform gymnastics while wearing only a shirt. Fording would also randomly slap A.C.'s buttocks. On at least one occasion, Fording had A.C. get him a sports drink, and when A.C. brought the drink to Fording in his and Mother's bedroom, Fording was wearing only a shirt and "had his hand on his private." Tr. Vol. II at 97. On another occasion, Fording asked A.C. to shave his genitals.
[¶6] On Friday, December 6, 2019, while sitting in Father's car outside of Mother's residence before beginning her weekend visit with Mother, A.C. told Father "everything that happened and how [she] didn't want to go back [to Mother's]." Tr. Vol. II at 99. The next day, Father took her to the Jeffersonville Police Department (the "JPD") to report Fording's behavior. The JPD immediately notified the Indiana Department of Child Services ("DCS") of A.C.'s allegations against Fording. On December 12, 2019, A.C. was forensically interviewed. On January 6, 2020, JPD Detective Jordan Powell formally interviewed Fording about A.C.'s allegations against him.
[¶7] On April 14, 2020, the State charged Fording with one count of child seduction as a Level 3 felony, two counts of child molesting as Level 4 felonies, two counts of child solicitation as Level 5 felonies, one count of vicarious sexual gratification as a Level 4 felony, and one count of performing sexual conduct in the presence of a minor as a Level 6 felony.
Ind. Code § 35-42-4-7(m), (q)(5).
Id. § 35-42-4-3(b).
Id. § 35-42-4-6(b), (b)(2).
Id. § 35-42-4-5(a)(1).
Id. § 35-42-4-5(c)(3).
[¶8] On August 22, 2023, Fording's jury trial commenced. The jury convicted Fording of vicarious sexual gratification as a Level 4 felony (the "Gratification Conviction") and of performing sexual conduct in the presence of a minor as a Level 6 felony (the "Performance Conviction"). The jury found Fording not guilty of both counts of child solicitation, and it could not reach a verdict on the two counts of child molesting and the count of child seduction. The trial court sentenced Fording to 10 years executed at the Indiana Department of Correction ("DOC") on the Gratification Conviction and to 2 years executed at the DOC on the Performance Conviction. The trial court ordered these sentences to be run consecutively, for a total aggregate sentence of 12 years at the DOC. This appeal ensued.
Discussion and Decision
1. The State Failed to Present Sufficient Evidence to Support the Gratification Conviction
[¶9] Fording challenges the sufficiency of the evidence for both his convictions and for venue. "Sufficiency-of-the-evidence arguments trigger a deferential standard of appellate review, in which we 'neither reweigh the evidence nor judge witness credibility, instead reserving those matters to the province of the jury.'" Owen v. State, 210 N.E.3d 256, 264 (Ind. 2023) (quoting Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018)), reh'g denied (Aug. 17, 2023). In our review, "we consider only 'the probative evidence and reasonable inferences supporting the verdict.'" Id. (quoting Matheney v. State, 583 N.E.2d 1202, 1208 (Ind. 1992)). We will reverse a guilty verdict only when no reasonable trier of fact "could find the elements of the crime proven beyond a reasonable doubt." Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012) (quoting Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)).
[¶10] Fording first challenges the sufficiency of the evidence for the Gratification Conviction. The State charged Fording with Level 4 felony vicarious sexual gratification under Indiana Code section 35-42-4-5(a)(1). To obtain a conviction under this section, the State had to prove beyond a reasonable doubt that Fording knowingly or intentionally directed, aided, induced, or caused A.C. to touch or fondle herself or another child and Fording did so with the intent to arouse or satisfy the sexual desires of A.C. or himself; the State also had to prove that Fording was at least 18 years old and A.C. was less than 14 years old at the time. See I.C. § 35-42-4-5(a)(1).
[¶11] Fording argues that "there was no evidence that [he] directed, aided, induced, or caused A.C. to touch or fondle herself," Appellant's Br. at 11, and in support cites to A.C.'s testimony at trial. A.C. testified in relevant part as follows:
[State]: So, besides Jerry telling you to get in the shower, was he involved anywhere else with your nighttime routine with taking a shower?
A: After showers. * * *
Q: Ok. So, you mentioned that he would be involved afterwards. Can you explain?
A: After I took my showers, he would always ask to check me after my showers.
Q: Ok, when he said that, where would you be?
A: I would be in the bathroom and then I would go to his and my mom's room.
Q: Ok. So, once he said that you, what would happen next?
A: He would tell me to just get on the bed and to spread my legs and then he would just check.
Q: Ok. And when he was checking, as you said, what was he doing?
A: He was just like using his fingers and just looking, I guess.
Q: Ok. And what was he looking at?
A: My private.
Q: Your private. Ok. And did he ask you to spread your legs, or did he spread your legs?
A: Usually, he would ask me.
Q: And when he spread your legs, where would he touch you?
A: Inner thigh usually.
Q: And when he was checking you, did he ever touch your privates?
A: Yeah.Tr. Vol. II at 89-90.
[¶12] Fording claims this testimony is insufficient to support the Gratification Conviction because the "only thing he may have directed, aided, induced, or caused [A.C.] to do was to spread her legs, which can and usually is done without any touching being involved." Appellant's Br. at 11. We are compelled to agree. There is nothing in A.C.'s testimony to suggest that she had to or did in fact touch or fondle herself in response to Fording's request to spread her legs. Nevertheless, during closing arguments, the State contended that Fording "forced [A.C.] to lay on the bed" and "would instruct her to spread her vagina." Tr. Vol. III at 19. A.C.'s testimony does not support the State's argument. We thus are forced to conclude that there is insufficient evidence supporting the Gratification Conviction.
Because we conclude that the State did not present sufficient evidence to support the Gratification Conviction, we do not address Fording's argument that there is a fatal variance between the charging information and the evidence adduced at trial.
2. The State Presented Sufficient Evidence to Support the Performance Conviction and Venue
a. Performance Conviction
[¶13] Fording next challenges the sufficiency of the evidence for the Performance Conviction. The State charged Fording with Level 6 felony performing sexual conduct in the presence of a minor under Indiana Code section 35-42-4-5(c)(3). To obtain a conviction under that section, the State had to prove beyond a reasonable doubt that Fording knowingly or intentionally touched or fondled his own body in the presence of A.C. and did so with the intent to arouse or satisfy the sexual desires of A.C. or himself; the State also had to prove that Fording was at least 18 years old and A.C. was less than 14 years old at the time. See I.C. § 35-42-4-5(c)(3).
[¶14] Fording argues that the State did not present sufficient evidence to establish he intended to arouse or satisfy his or A.C.'s sexual desires when he touched his penis in front of her: "Just because [Fording] has his hand on his 'private' does not mean it was done with any illicit intent. He could simply have been trying to cover his exposed genitals." Appellant's Br. at 16. The probative evidence and reasonable inferences supporting the verdict reveal that Fording called A.C. into his bedroom when he was naked and that when A.C. entered the room, Fording was touching his genitals. The jury could have reasonably inferred from these facts that Fording intended to arouse or satisfy sexual desires by doing so. Fording's arguments to the contrary are an attempt to have us reweigh the evidence and reassess witness credibility, which we cannot do, Owen, 210 N.E.3d at 264 (quoting Brantley, 91 N.E.3d at 570).
Fording also argues that there was no evidence he "was 'fondling' himself at the time he had his hand covering his privates." Appellant's Br. at 16. Indiana Code section 35-42-4-5(c)(3) clearly criminalizes not only fondling but also touching.
b. Venue
[¶15] Fording also argues that the State failed to present sufficient evidence to establish that venue was proper in Clark County, which is where the State alleged in the charging information that the crimes occurred and is also where Fording was tried and convicted. Defendants have both a constitutional and statutory right to be tried in the county in which an offense was committed. Ind. Const. art. I, § 13; I.C. § 35-32-2-1(a); Alkhalidi v. State, 753 N.E.2d 625, 628 (Ind. 2001).
The State is required to prove venue, although it is not an element of an offense. Baugh v. State, 801 N.E.2d 629, 631 (Ind. 2004). As a result, the State may prove venue by a preponderance of the evidence rather than by proof beyond a reasonable doubt. Id. Circumstantial evidence may be sufficient to establish proper venue. Evans v. State, 571 N.E.2d 1231, 1233 (Ind. 1991).Peacock v. State, 126 N.E.3d 892, 897 (Ind.Ct.App. 2019). The standard of review for a claim that the evidence was insufficient to prove venue is the same as for other claims of insufficient evidence. Eberle v. State, 942 N.E.2d 848 (Ind.Ct.App. 2011) (citing Neff v. State, 915 N.E.2d 1026, 1032 (Ind.Ct.App. 2009), trans. denied).
[¶16] Mother and Fording moved frequently, but nearly all their residences were in Clark County, Indiana. A.C. testified that Mother and Fording lived in a house and then an apartment in Jeffersonville, Indiana, and that at least some of Fording's inappropriate conduct occurred at the apartment. Detective Powell testified that he specifically investigated A.C.'s allegations as they related to the Jeffersonville apartment. Although not in the record, Jeffersonville is located in Clark County, Indiana, where Fording was charged, tried, and convicted. The State presented sufficient evidence to establish Fording's crimes took place in Jeffersonville, thereby establishing by a preponderance of the evidence that Clark County was the proper venue.
3. Fording's Sentence is Not Inappropriate under Appellate Rule 7(B)
[¶17] Finally, Fording contends his sentence is inappropriate under Appellate Rule 7(B) and should be revised. The Indiana Constitution authorizes us to independently review and revise a trial court's sentencing decision. Faith v. State, 131 N.E.3d 158, 159 (Ind. 2019) (citing Ind. Const. art. 7, §§ 4, 6; McCain v. State, 88 N.E.3d 1066, 1067 (Ind. 2018)). That authority is implemented through Appellate Rule 7(B), which permits us to 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." Faith, 131 N.E.3d at 159 (quoting Ind. Appellate Rule 7(B)).
[¶18] Sentencing is "principally a discretionary function in which the trial court's judgment should receive considerable deference." Lane v. State, 232 N.E.3d 119, 122 (Ind. 2024) (quoting Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008)). To overcome this deference, the defendant must present "compelling evidence portraying in a positive light the nature of the offense and the defendant's character." Id. (internal quotation marks omitted) (quoting Oberhansley v. State, 208 N.E.3d 1261, 1267 (Ind. 2023)).
Our role is primarily to "leaven the outliers" and identify "guiding principles" for sentencers, rather than to achieve the "perceived 'correct' result" in each case. Cardwell, 895 N.E.2d at 1225. As such, we "focus on the forest-the aggregate sentence-rather than the trees-consecutive or concurrent, number of counts, or length of the sentence on any individual count." Id. Ultimately, we rely on our "collective judgment as to the balance" of all the relevant considerations involved, which include "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." Id. at 1224, 1226.Lane, 232 N.E.3d at 122. In conducting this analysis, "we are not limited to the mitigators and aggravators found by the trial court." Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014).
[¶19] When considering the nature of the offense, we start with the advisory sentence. Brown, 10 N.E.3d at 4 (citing Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007)). Here, Fording was convicted of one Level 6 felony-the Performance Conviction. "A person who commits a Level 6 felony . . . shall be imprisoned for a fixed term of between six (6) months and two and one-half (2 %) years, with the advisory sentence being one (1) year." I.C. § 35-50-2-7(b) (emphasis added). The trial court sentenced Fording to two years executed at the DOC for his Performance Conviction.
Because we conclude that there is insufficient evidence supporting the Gratification Conviction, we do not address the sentence for that conviction.
[¶20] Where, as here, the trial court deviated from the advisory sentence, one factor we consider is "whether there is anything more or less egregious about the offense committed by the defendant that makes it different from the 'typical' offense accounted for by the legislature when it set the advisory sentence." T.A.D.W. v. State, 51 N.E.3d 1205, 1211 (Ind.Ct.App. 2016) (quoting Holloway v. State, 950 N.E.2d 803, 806-07 (Ind.Ct.App. 2011)), as amended (May 26, 2023). We also consider whether the offense was "accompanied by restraint, regard, and lack of brutality." Stephenson, 29 N.E.3d at 122.
[¶21] Here, Fording was responsible for caring for A.C., who was eight years old, while Mother was at work. Fording repeatedly took advantage of his role as A.C.'s stepfather to gratify his desires by touching himself in front of her.
[¶22] In considering the character of the offender, "we engage in a broad consideration of a defendant's qualities," T.A.D.W., 51 N.E.3d at 1211 (citing Aslinger v. State, 2 N.E.3d 84, 95 (Ind.Ct.App. 2014), clarified on other grounds on reh'g), including whether the defendant has "substantial virtuous traits or persistent examples of good character," Stephenson, 29 N.E.3d at 122.
[¶23] Fording has a history of adult criminal convictions dating back to 1998 and spanning three states. Fording has convictions for theft, disorderly conduct, trespass, furnishing alcohol to a minor, and operating on a suspended or revoked operator's license. In 2004, Fording was found guilty of a sex registry violation in Wisconsin, for which he received a fine.
The State includes in its Argument the fact that Fording has a 1995 juvenile adjudication in Wisconsin for sexual assault of a child in the first degree. Appellant's Br. at 22 (citing Appellant's App Vol. III at 62). However, the trial court, after hearing argument, specifically ruled that it would not consider Fording's juvenile adjudication for purposes of sentencing. Tr. Vol. III at 74; see also Lewis v. State, 759 N.E.2d 1077, 1086-87 (Ind.Ct.App. 2001) (citing Davenport v. State, 689 N.E.2d 1226, 1233 (Ind. 1997); Day v. State, 560 N.E.2d 641, 643 (Ind. 1990)), trans. denied, 774 N.E.2d 508 (Ind. 2002).
[¶24] Based on the nature of Fording's offenses and his history of criminal behavior, we cannot say that Fording has produced compelling evidence demonstrating that the nature of his offense, his character, or both renders his sentence for the Performance Conviction inappropriate. See Hayko v. State, 211 N.E.3d 483, 487 n.1 (Ind. 2023), reh'g denied (Aug. 18, 2023).
Conclusion
[¶25] In sum, the State did not produce sufficient evidence at trial to support the Gratification Conviction, but it did produce sufficient evidence at trial to support the Performance Conviction and venue in Clark County. Furthermore, Fording's sentence on the Performance Conviction is not inappropriate under Appellate Rule 7(B). We therefore reverse the Gratification Conviction and affirm the trial court on all other issues raised.
[¶26] Affirmed in part, reversed in part.
Altice, C.J., and Bradford, J., concur.