Opinion
24A-CR-293
08-30-2024
Kenyada Hunt, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT LISA DIANE MANNING PLAINFIELD, INDIANA ATTORNEYS FOR APPELLEE THEODORE E. ROKITA INDIANA ATTORNEY GENERAL ALEXANDRIA SONS DEPUTY ATTORNEY GENERAL TIMOTHY M. HAMILTON CERTIFIED LEGAL INTERN 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Hendricks Superior Court The Honorable Stephenie LeMay Luken, Judge Trial Court Cause No. 32D05-2203-F4-12
ATTORNEY FOR APPELLANT LISA DIANE MANNING PLAINFIELD, INDIANA
ATTORNEYS FOR APPELLEE THEODORE E. ROKITA INDIANA ATTORNEY GENERAL ALEXANDRIA SONS DEPUTY ATTORNEY GENERAL TIMOTHY M. HAMILTON CERTIFIED LEGAL INTERN INDIANAPOLIS, INDIANA
MEMORANDUM DECISION
Crone, Judge
Case Summary
[¶1] After a jury trial, Kenyada Hunt was convicted of two counts of level 4 felony sexual misconduct with a minor, one count of level 5 felony sexual misconduct with a minor, and one count of level 6 felony dissemination of matter harmful to minors. The trial court sentenced him to sixteen years, with six years executed and ten years suspended to probation. On appeal, Hunt contends that his sentence is inappropriate in light of the nature of the offenses and his character. Concluding that Hunt has failed to meet his burden of establishing that his sentence is inappropriate, we affirm.
Facts and Procedural History
[¶2] Late one night in November 2021, fourteen-year-old A.H. was using Snapchat on her phone when the app's Quick Add feature randomly suggested that A.H. add Hunt as a friend. A.H. did so because she was "bored" and "lonely." Tr. Vol. 2 at 178. She sent Hunt a picture of her face, and Hunt told her that she was pretty. He asked her to FaceTime him, which she did. A.H. initially told Hunt that she was sixteen years old, then later told him that she was fifteen. They chatted for approximately five hours until he fell asleep.
[¶3] After that conversation, they communicated on FaceTime and Snapchat for hours every day. A.H. learned that Hunt was twenty-two years old. Hunt asked A.H. how many sexual partners she had had, and she told him that she "hadn't had sex with anyone." Id. at 206. Hunt asked A.H. to be his girlfriend, and they exchanged nude photos and videos.
[¶4] A.H. and Hunt agreed to meet near her grandmother's house in Clermont on December 3. A.H. had "never done anything like that before" and was "just really excited" and "wanted someone to like" her. Id. at 191. A.H. told her grandmother that she was going for a walk and met Hunt at his car, which was parked about a block away. They sat in the car for "not very long, less than an hour." Id. at 190.
[¶5] The next day, around noon, A.H. told her grandmother that she "was going on a walk again" and met Hunt at his car. Id. at 192. Her grandmother called and asked A.H. to come back to the house because she and her husband were going shopping. A.H. returned to the house. After her grandparents left, Hunt "came into the house." Id. Hunt put his hands down the front of A.H.'s pants and touched her vagina. They sat on the couch, and Hunt "said something about having sex, and then he started laughing at [A.H.] because [she] looked nervous." Id. at 194. She started walking away from him. He "grabbed [her] leg, moved [her] back towards the couch[,]" pulled her pants down, and performed oral sex on her. Id. at 195. Finally, Hunt had sexual intercourse with A.H., ejaculated on her back, and left about ten minutes later.
[¶6] On December 15, Hunt brought a phone charger to A.H. at her grandmother's house so that she could continue to FaceTime him. A.H.'s grandmother was at the grocery. They went to A.H.'s bedroom, and she performed oral sex on Hunt. Then he took her shorts and underwear off, pushed her onto the bed, and engaged in sexual intercourse. Afterward, A.H. "could tell that he had ejaculated without pulling out and without wearing protection." Id. at 199. A.H. asked Hunt about it, and he claimed that "he just did not finish[.]" Id.
[¶7] On December 16, A.H. met Hunt in his car in her grandmother's neighborhood. He told her that it was "unfair that he had not . . . ejaculated the night before" and "wanted [her] to perform oral sex with him[,]" which she did. Id. at 204. While she did that, Hunt "had his hands down [her] pants." Id. The encounter stopped when A.H.'s grandmother's husband called her and "told [her] to go back to the house." Id. at 205.
[¶8] On December 25, Hunt called A.H. and said that he had lied about not ejaculating inside her on December 15 and that "he had actually just chosen not to pull out." Id. at 200. A.H. "freaked out" because her menstrual cycle was late, which "wasn't normal" for her. Id. She told Hunt that she "didn't want to graduate out of high school with a four-year-old." Id. Hunt was "annoyed that [she] was annoyed" and "didn't see a valid reason for [her] to be upset." Id. at 201. A.H. did not become pregnant.
[¶9] In late January 2022, A.H.'s mother discovered A.H.'s Snapchat conversations with Hunt on A.H.'s phone. A.H.'s father contacted law enforcement, and A.H. was interviewed. A detective called Hunt, who claimed that "he had only talked to A.H. via Snapchat" and "didn't really know her[.]" Id. at 249, 250.
[¶10] Hunt was arrested and charged with two counts of level 4 felony sexual misconduct with a minor (for performing or submitting to sexual intercourse or other sexual conduct), three counts of level 5 felony sexual misconduct with a minor (for performing or submitting to fondling or touching with the intent to arouse or satisfy his sexual desires), and one count of level 6 felony dissemination of matter harmful to minors (for knowingly or intentionally disseminating a pornographic image). At Hunt's jury trial, A.H. testified to the foregoing facts. Hunt admitted to engaging in sexual activity with A.H. and to sending her nude photos but claimed that she had told him that she was seventeen years old. The jury found Hunt guilty as charged. The trial court entered judgment of conviction for the two level 4 felony counts, one of the level 5 felony counts, and the level 6 felony count.
Indiana Code Section 35-42-4-9(c) provides, "It is a defense [to the crime of sexual misconduct with a minor] that the accused person reasonably believed that the child was at least sixteen (16) years of age at the time of the conduct." Obviously, the jury rejected Hunt's defense.
[¶11] At the sentencing hearing, A.H. testified that Hunt's actions had caused her "lasting damage," including "extreme anxiety" and "feeling attacked when a person, male or female, hugs or touches [her] unannounced"; that she had "been in counseling, trying to heal and move on"; and that she could "still feel [Hunt's] hands on [her] body, and sometimes it feels like the feeling of being dirty and the excessive need to scrub him off under scalding hot water will never go away." Tr. Vol. 3 at 126, 127. Hunt, who did not have a criminal record and had recently fathered a child, submitted several letters of support from family and friends.
[¶12] The trial court found two aggravating circumstances: "the harm and impact and mental toll this has had on" A.H., who the court believed "was targeted, and very specifically so," and that Hunt "did not use a condom[,]" which subjected A.H. to "undue stress" due to pregnancy concerns and also subjected her to "possible ... sexually transmitted diseases." Id. at 134, 135. The court found Hunt's lack of criminal history and his child as mitigating circumstances. Finally, the court found that the "aggravators, especially the lack of use of a condom, outweigh[ed] the mitigators." Id. at 135. The court imposed the following sentence: six years executed for one of the level 4 felonies, six years suspended to probation for the other level 4 felony, three years suspended to probation for the level 5 felony, and one year suspended to probation for the level 6 felony, for an aggregate term of sixteen years, with six years executed in the Department of Correction and ten years suspended to probation. The court ordered the sentences to run consecutive because they were "completely separate" offenses. Id. at 136-37, 138. Hunt now appeals his sentence.
Discussion and Decision
[¶13] Hunt asks us to reduce his sentence pursuant to Indiana Appellate Rule 7(B), which states, "The Court may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender." We apply a "holistic approach" to our 7(B) review. Lane v. State, 232 N.E.3d 119, 127 (Ind. 2024) (quoting Connor v. State, 58 N.E.3d 215, 219 (Ind.Ct.App. 2016)). In determining whether a sentence is inappropriate, we "'must consider' both factors, but the defendant need not 'necessarily prove' that the sentence is inappropriate on both counts." Id. at 126 (quoting Connor, 58 N.E.3d at 219). "[T]o 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. at 127.
[¶14] When reviewing a sentence, our primary role is to leaven the outliers rather than necessarily achieve what is perceived as the correct result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). "The question under Appellate Rule 7(B) is not whether another sentence is more appropriate; rather, the question is whether the sentence imposed is inappropriate." Helsley v. State, 43 N.E.3d 225, 228 (Ind. 2015). Hunt bears the burden to show that his sentence is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g 875 N.E.2d 218.
[¶15] "[S]entencing is principally a discretionary function in which the trial court's judgment should receive considerable deference." Cardwell, 895 N.E.2d at 1222. "Such deference should prevail unless overcome by 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)." Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). As we assess the nature of the offense and character of the offender, "we may look to any factors appearing in the record." Boling v. State, 982 N.E.2d 1055, 1060 (Ind.Ct.App. 2013). Whether a sentence should be deemed inappropriate "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." Id. at 1224. "In the end, 'the length of the aggregate sentence and how it is to be served are the issues that matter.'" Wright v. State, 168 N.E.3d 244, 268 (Ind. 2021) (quoting Cardwell, 895 N.E.2d at 1224), cert. denied (2022).
[¶16] Regarding the nature of the offense, we observe that "the advisory sentence is the starting point the Legislature selected as appropriate for the crime committed." Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range for a level 4 felony is between two and twelve years, with the advisory sentence being six years. Ind. Code § 35-50-2-5.5. The sentencing range for a level 5 felony is between one and six years, with the advisory sentence being three years. Ind. Code § 35-50-2-6. And the sentencing range for a level 6 felony is between six months and two and a half years, with the advisory sentence being one year. Ind. Code § 35-50-2-7. Hunt received the advisory sentence for each offense, with a total of six years executed and ten years suspended to probation.
[¶17] "Since the advisory sentence is the starting point our General Assembly has selected as an appropriate sentence for the crime committed, the defendant bears a particularly heavy burden in persuading us that his sentence is inappropriate when the trial court imposes the advisory sentence." Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind.Ct.App. 2011), trans. denied. This is so even when consecutive advisory sentences are imposed. See id. (defendant received consecutive advisory sentences for two counts of attempted murder). A single aggravating circumstance is sufficient to justify imposition of consecutive sentences, Chastain v. State, 165 N.E.3d 589, 599 (Ind.Ct.App. 2021), trans. denied, and our supreme court has stated that "additional criminal activity directed to the same victim should not be free of consequences." Cardwell, 895 N.E.2d at 1225.
[¶18] Hunt argues that there "was no evidence that [he] sought out young girls online for sexual gratification or that he engaged in a prolonged pattern of grooming." Appellant's Br. at 9. But once he and A.H. crossed paths online, and even after she told him that she was under the age of consent, he insinuated himself into her daily life, exchanged nude photos and videos with her, met with her surreptitiously in his car and her grandmother's house, engaged in multiple acts of unprotected sexual intercourse, lied about ejaculating inside her, and then minimized her concerns about becoming pregnant. Nothing about the nature of Hunt's offenses merits a reduction of his consecutive advisory sentences.
[¶19] As for his character, Hunt notes that he has no prior criminal history, a supportive girlfriend and family, and a six-month-old daughter, and was deemed to be a low risk to reoffend by the Indiana Risk Assessment System. But the previous paragraph demonstrates that Hunt's character is far from impeccable. Moreover, the State points out that Hunt "deliberately misled investigators, stating that he had never met A.H. in person and 'didn't really know her[,]'" Appellee's Br. at 16 (quoting Tr. Vol. 2 at 250), when there was ample evidence to the contrary. Hunt observes that our supreme court recently "distinguished between offenders we are 'mad at' and offenders we are 'afraid of[,]'" and he suggests that he belongs in the first category. Appellant's Br. at 8 (quoting Lane, 232 N.E.3d at 124-25). To the extent that such a distinction is a viable sentencing principle, we agree with the State that "Hunt's targeting of a minor for sex is conduct that society is 'afraid of' and not simply 'mad at.'" Appellee's Br. at 16. In sum, Hunt has failed to carry his particularly heavy burden to establish that his sixteen-year sentence, more than half of which is suspended to probation, is inappropriate in light of the offenses and his character. Therefore, we affirm it.
[¶20] Affirmed.
Bradford, J., and Tavitas, J., concur.