Opinion
23A-CR-1913
07-18-2024
Charles Edward Hensley, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Jennifer A. Joas Madison, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General George P. Sherman Supervising 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Jennings Circuit Court The Honorable Murielle S. Bright, Judge Trial Court Cause No. 40C01-2208-F1-2
ATTORNEY FOR APPELLANT
Jennifer A. Joas Madison, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Indiana Attorney General
George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
ALTICE, CHIEF JUDGE
Case Summary
[¶1] Following a bifurcated jury trial, Charles Edward Hensley was convicted of Level 1 felony child molesting and found to be a habitual offender. The trial court subsequently sentenced Hensley to a term of forty years of incarceration on the underlying offense, enhanced by twenty years for being a habitual offender. On appeal, Hensley presents the following restated issues for review:
1. Did the State present sufficient evidence to convict Hensley of child molesting?
2. Is Hensley's sixty-year prison sentence inappropriate considering his character and the nature of his offense?
[¶2] We affirm.
Facts & Procedural History
[¶3] On August 16, 2022, nine-year-old L.F. was living with her mother, S.M. (Mother), in North Vernon. That evening, L.F. went outside to ride her bike while Mother prepared dinner. At some point, fifty-seven-year-old Hensley approached L.F. also riding a bike. L.F. told Hensley to leave her alone and tried to ride away from him. However, Hensley caught up to L.F. and grabbed her bike's handlebars.
[¶4] Hensley proceeded to take L.F. to the Crystal Flash gas station that was close to a wooded area and walking trail. After leaving the gas station, Hensley, still holding L.F.'s handlebars, led L.F. to a campsite in the woods. There, Hensley kissed L.F. on the lips and touched her "privates" with his mouth and tongue. Transcript Vol. II at 135. Following the interaction, Hensley told L.F., "Don't tell anybody." Id. at 136. Hensley then allowed L.F. to leave.
The trial court noted in the record that L.F. pointed to her groin area when asked to locate the "privates" Hensley touched with his mouth.
[¶5] When Mother noticed that L.F. had not returned home from her bike ride, she drove around to search for her. After failing to locate L.F., Mother called the police. Shortly after, Seargent Lucas Newsome of the North Vernon Police Department began searching for L.F., who was found riding toward home. L.F. appeared very upset and was crying. Seargent Newsome "had to tell her to take a breath and calm down" before he began to speak with her about what had happened. Id. at 110.
[¶6] During a sexual assault exam, a nurse took internal and external swabs of L.F.'s vagina and collected swabs from her underwear. Subsequent DNA tests of these swabs strongly supported that Hensley's DNA was present in the examined areas.
[¶7] Following his arrest, Hensley agreed to speak with police and initially admitted to riding his bike with a little girl but denied touching her. Several days later he then told police that the girl stopped by his shelter in the woods, and he kissed her on the forehead. Hensley gave yet another version of the events at trial, claiming that L.F. stopped by his campsite to use the bathroom, fell in the bucket, and "got pee on her." Transcript Vol. III at 24-25.
[¶8] On August 22, 2022, the State charged Hensley with Level 1 felony child molesting and Level 5 felony kidnapping. The State also alleged that Hensley was a habitual offender.
[¶9] A bifurcated jury trial was held from June 26-28, 2023. The jury found Hensley guilty of child molesting and not guilty of kidnapping. The jury then determined that he was a habitual offender. On July 20, 2023, the trial court sentenced Hensley to an executed term of forty years for child molesting, enhanced by twenty years for being a habitual offender.
[¶10] Hensley now appeals. Additional information will be provided below as needed.
Discussion & Decision
I. Sufficiency of the Evidence
[¶11] Hensley claims that the evidence was insufficient to support his conviction for child molesting. When reviewing sufficiency of evidence claims, we neither reweigh the evidence nor asses the credibility of witnesses. Fix v. State, 186 N.E.3d 1134, 1138 (Ind. 2022). Rather, we consider only the probative evidence and the reasonable inferences supporting the conviction, and we will affirm unless no reasonable fact finder could find the elements of the crime beyond a reasonable doubt. Sorgdrager v. State, 208 N.E.3d 646, 650 (Ind.Ct.App. 2023).
[¶12] By statute, Level 1 felony child molesting requires the State to demonstrate, among other things, that the defendant "knowingly or intentionally performed or submitted to sexual intercourse or other sexual conduct" with the child victim. Ind. Code § 35-42-4-3(a) (emphasis added). Here, the State only charged Hensley under the "other sexual conduct" portion of the statute. As relevant here, an "act of other sexual conduct," is defined by statute to include acts involving "a sex organ of (1) one person and the mouth or anus of another person." Ind. Code § 35-31.5-2-221.5(2).
[¶13] Hensley acknowledges that the State presented evidence that he touched L.F.'s vagina with his mouth and tongue and "that there was a DNA match connecting Hensley to the crime." Appellant's Brief at 13. However, he argues that the evidence is insufficient to sustain his conviction for child molesting because sexual intercourse was not proven. Hensley's argument stems from an error in Final Jury Instruction No. 8, which provided:
The crime of child molesting is defined by law as follows:
A person who, with a child under fourteen (14) years of age, performs or submits to sexual intercourse or other sexual conduct, commits child molesting, a Level 3 felony.
The offense is a Level 1 felony if:
(1) it is committed by a person at least twenty-one years of age
Before you may convict the Defendant, the State must have proved each of the following beyond a reasonable doubt:
1. The defendant
2. When [L.F.] was a child under fourteen (14) years of age
3. Knowingly
4. Performed or other sexual conduct
5. Sexual intercourse 6. With [L.F.]
7. And the Defendant was at least 21 years was at least twenty-one years of age.
If the State failed to prove each of these elements beyond a reasonable doubt, you must find the Defendant not guilty of child molesting, a Level 1 felony, charged in Count 1.Appendix Vol. II at 91 (emphasis added). Hensley latches onto the obvious scrivener's error in the instruction, which listed sexual intercourse as an element the State was required to prove. But this instructional error, to which Hensley did not object, does not control our sufficiency review. Hensley was charged based on his other sexual conduct with L.F., and the State presented its case entirely on that basis. Moreover, other jury instructions properly informed the jury of the charges based on his other sexual conduct with L.F. And even the erroneous instruction above correctly informed the jury that child molesting could be established by sexual intercourse or other sexual conduct.
Because Hensley did not object to the instruction at trial and does not directly challenge the instruction on appeal, he has waived any claim of error concerning the jury instructions. See Durden v. State, 99 N.E.3d 645, 651 (Ind. 2018) (holding that a party's failure to object to an alleged error at trial results in waiver).
[¶14] The State presented ample evidence from which the jury could reasonably find that Hensley committed an act of other sexual conduct, and Hensley does not argue otherwise. Thus, his sufficiency claim lacks merit.
II. Sentencing
[¶15] Hensley also requests that we exercise our authority under Indiana Appellate Rule 7(B) and independently review the sentences imposed by the trial court. Pursuant to App. R. 7(B), we may revise a sentence if it is inappropriate considering the nature of the offense and the character of the offender.
The principal role of App. R. 7(B) review should be to attempt to leaven the outliers and identify some guiding principles for trial courts and those charged with improvement of the sentencing statutes. App. R. 7(B) analysis is not to determine whether another sentence is more appropriate but rather whether the sentence imposed is inappropriate.Sorgdrager, 208 N.E.3d at 653-654 (quotations and citations omitted).
[¶16] Whether a sentence is inappropriate turns on the culpability of the defendant, the severity of the crime, the damage done to others, and a myriad of other factors that come to light in a case. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The defendant has the burden of persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). More specifically, the defendant must show that:
His sentence is inappropriate with compelling evidence portraying in a positive light the nature of the offense (such as
accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character).Sorgdrager, 208 N.E.3d at 654 (quotations and citations omitted).
[¶17] Our Supreme Court has recognized the advisory sentence as the starting point the legislature has selected as an appropriate sentence for the crime committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range for Level 1 felony child molesting is between twenty and fifty years, with an advisory sentence of thirty years. Ind. Code § 35-50-2-4(c). Under I.C. § 35-50-2-4, the habitual offender enhancement for a Level 1 felony is between eight and twenty years. Hensley's aggregate sentence amounted to sixty years, ten years short of the maximum sentence.
[¶18] Regarding the nature of the crime, Hensley argues that he committed a single, isolated act of child molest void of any brutality or physical harm and emphasizes that he made no threats to harm L.F. While Hensley may not have expressly threatened L.F., he continued to approach her when she told him to go away and held her handlebars to prevent her from leaving. Further, L.F. was just nine years old at the time of molestation and was innocently riding her bike while her mother prepared dinner.
[¶19] Regarding Hensley's character, we note that "character is found in what we learn of the offender's life and conduct." Perry v. State,78 N.E.3d 1, 13 (Ind Ct. App. 2017). A criminal history reflects poorly on a defendant's character for the purposes of sentencing. Smoots v. State, 172 N.E.3d 1279, 1290 (Ind.Ct.App. 2021). Here, Hensley's significant criminal history, which spans thirty years, alone is enough for us to conclude that his sentence was not inappropriate. Hensley has fourteen prior convictions made up of six felonies and multiple misdemeanor counts. Notably, his convictions include sexual misconduct with a minor (1998) and failure to register as a sex offender (2012). He also had a two-year suspended sentence revoked in 2013 for violating probation by being nude in public.
[¶20] Hensley notes his history of substance abuse and mental health problems including schizophrenia and bipolar disorder. However, he provides no evidence showing the diagnoses had much, if any, mitigating value. See Hamilton v. State, 233 N.E.2d 461, 482 (Ind.Ct.App. 2024) (holding no evidence in the record that the defendant's health conditions impaired his ability to control his behavior, limited his functioning, or was linked to the offense in any way).
[¶21] In sum, neither the nature of the offense nor Hensley's character renders his sixty-year sentence inappropriate.
[¶22] Judgment affirmed.
Bailey, J. and Mathias, J., concur.