Opinion
24A-CR-168
08-22-2024
Clinton Gregory Lorenz, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
Attorney for Appellant R. Patrick Magrath Alcorn Sage Schwartz & Magrath, LLP Madison, Indiana Attorneys for Appellee Theodore E. Rokita Indiana Attorney General Jodi K. Stein 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Decatur Circuit Court The Honorable Timothy B. Day, Judge Trial Court Cause No. 16C01-2304-F1-378
Attorney for Appellant R. Patrick Magrath Alcorn Sage Schwartz & Magrath, LLP Madison, Indiana
Attorneys for Appellee Theodore E. Rokita Indiana Attorney General
Jodi K. Stein Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BAILEY, JUDGE
Case Summary
[¶1] Clinton Lorenz appeals his conviction for one count of child molesting, as a Class C felony, and his corresponding sentence. We affirm.
Ind. Code § 35-42-4-3(b) (2014).
Issues
[¶2] Lorenz raises the following three issues for our review:
1. Whether the trial court erred when it granted the State's motion to quash the subpoena of the prosecuting attorney.
2. Whether the State presented sufficient evidence to support his conviction. 3. Whether his sentence is inappropriate in light of the nature of the offense and his character.
Facts and Procedural History
[¶3] A.K. is the daughter of Jessica Kelley, and Kelley was previously married to Lorenz. Kelley and Lorez resided together with A.K. and their two sons from the time A.K. was five years old until she was twelve years old. While they are not biologically related, A.K. believed that Lorenz was her father.
[¶4] One day, shortly after her eighth birthday, A.K. took a shower. The house was "silent," so she believed that she was home alone. Tr. Vol. 4 at 24. After A.K. exited the shower, she wrapped a towel around her body and went to her bedroom. A.K. then heard Lorenz "barging in the house." Id. at 25. Lorenz opened the door to A.K.'s room and entered. Lorenz was "smiling." Id. at 26. Lorenz told A.K. to "take off [her] towel." Id. at 27. A.K. thought it was "strange" but took off her towel. Id. at 27. Lorenz then "fondle[d]" A.K.'s breasts by "[t]ouching and squeezing them" with his hands. Id. at 28. A.K. felt the "[r]oughness" of Lorenz's hands. Id. at 28. When he was done, Lorenz told A.K. "not to tell anybody" and that "this is what dads do." Id. at 28, 30. According to A.K., Lorenz continued to touch her inappropriately for years.
[¶5] When A.K. was twelve years old, she told Kelley about Lorenz's actions. At that time, Kelley stopped residing with Lorenz. A.K. started therapy, but she did not tell her first therapist that Lorez's had touched her, nor did she initially tell the Department of Child Services ("DCS"). Ultimately, A.K. disclosed the fondling to her second therapist. And, after she was able to speak with Lorenz' parents, A.K. spoke with DCS and submitted to a forensic interview.
[¶6] The State charged Lorenz with child molesting, as a Class C felony. The original probable cause affidavit was based on A.K.'s forensic interview, which Greensburg Police Detective John Albert attended. However, Nathan Harter, the prosecuting attorney, signed the initial probable cause affidavit. Lorenz subpoenaed Harter and filed a motion to compel his testimony. Following a pretrial conference, the State filed an amended charging information and an amended probable cause affidavit. The new affidavit removed Harter as an affiant.
The State also charged Lorenz with one count of child molesting, as a Level 1 felony, and one count of child molesting, as a Level 4 felony, based on other allegations A.K. had made. However, the jury found him not guilty of those charges. Additionally, the State charged Lorenz with intimidation, as a Class A misdemeanor, but the court dismissed those charges on Lorenz' motion.
[¶7] The State filed a motion to quash the subpoena of Harter on the ground that he was not a necessary and material witness. Lorenz responded and asserted that he needed Harter's testimony to determine if A.K. had separately disclosed information to him. Harter affirmed at a pretrial conference that he was not a material witness and had no additional information. The court granted the State's motion to quash. Lorenz attempted to preserve the issue for appellate review by restating the reason for his subpoena. But the court responded: "Well, we'll address that if I hear you say my next witness is Nathan Harter. And I don't know that we can address it early." Tr. Vol. 2 at 29.
[¶8] The court held a jury trial during which A.K. testified about Lorenz' actions. A.K. was the only witness called by the State. In his defense, Lorenz called several witnesses but did not attempt to call Harter. The jury found Lorenz guilty, and the court entered judgment of conviction accordingly. At a sentencing hearing, the court identified as aggravators Lorenz' criminal history, A.K.'s age at the time of the offense, and that Lorenz was in a position of trust over A.K. To the extent the court identified any mitigators, it considered the undue hardship on Lorenz' girlfriend. However, the court specifically stated that, "if" it considered that to be a mitigator, "that's basically the only mitigator" it could find. Tr. Vol. 5 at 112-12. The court found that the aggravators outweighed the mitigator and sentenced Lorenz to eight years, with seven years executed and one year suspended to probation. This appeal ensued.
Discussion and Decision
Issue One: Motion to Quash
[¶9] Lorenz first contends that the trial court erred when it granted the State's motion to quash the subpoena of Harter. "'The decision to enforce, modify, or quash a subpoena duces tecum is a question for the trial court and will not be disturbed unless the decision is clearly arbitrary.'" Sweeney v. State, 704 N.E.2d 86, 108 (Ind. 1998) (quoting Turpin v. State, 435 N.E.2d 1,4 (Ind. 1982)).
[¶10] On appeal, Lorenz contends that the court erred when it quashed the subpoena of Harter because Lorenz sought to determine Harter's "knowledge of A.K.'s prior statements" and the extent to which Harter's involvement caused a "change in A.K.'s testimony." Appellant's Br. at 12. Lorenz contends that Harter's testimony was "relevant and material to his defense." Id.
[¶11] However, it is well-settled that, to preserve an error in a pre-trial ruling, the party must object to the admission or exclusion of that evidence at trial. Perez v. Bakel, 862 N.E.2d 289, 295 (Ind.Ct.App. 2007). "Absent either a ruling admitting evidence accompanied by a timely objection or a ruling excluding evidence accompanied by a proper offer of proof, there is no basis for a claim of error." Hollowell v. State, 753 N.E.2d 646, 651 (Ind. 2001).
[¶12] Here, at a pre-trial hearing, the parties discussed the motion to quash, and Lorenz attempted to preserve the issue for appellate review. But the court responded: "Well, we'll address that if I hear you say my next witness is Nathan Harter. And I don't know that we can address it early." Tr. Vol. 2 at 29. Then, at a subsequent pretrial hearing, Lorenz again made an argument in favor of Harter's subpoena, but the court again affirmed its ruling to quash it. See id. at 48. However, during trial, Lorenz did not mention the trial court's grant of the motion to quash, make any attempt to call Harter as a witness, or make an offer to prove. As such, Lorenz has waived this issue for our review, and we affirm the court's order granting the State's motion to quash.
Issue Two: Sufficiency of the Evidence
[¶13] Lorenz next contends that the State failed to present sufficient evidence to support his conviction. Our standard of review on a claim of insufficient evidence is well settled:
For a sufficiency of the evidence claim, we look only at the probative evidence and reasonable inferences supporting the verdict. We do not assess the credibility of witnesses or reweigh the evidence. We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.Love v. State, 73 N.E.3d 693, 696 (Ind. 2017) (citations omitted). Further, a conviction can be based on the uncorroborated testimony of one witness, "even when that witness is the victim." Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012).
[¶14] To demonstrate that Lorenz committed child molesting as charged, the State was required to show that Lorenz fondled A.K., who was under fourteen years of age, with the intent to arouse or satisfy the sexual desires of either himself or A.K. See Ind. Code § 35-42-4-3(b) (2014). On appeal, Lorenz asserts that there was insufficient evidence because his conviction was based only on the testimony of A.K., which he contends was incredibly dubious.
[¶15] As our Supreme Court has stated:
Under our "incredible dubiosity" rule, we will invade the jury's province for judging witness credibility only in exceptionally rare circumstances. The evidence supporting the conviction must have been offered by a sole witness; the witness's testimony must have been coerced, equivocal, and wholly uncorroborated; it must have been "inherently improbable" or of dubious credibility; and there must have been no circumstantial evidence of the defendant's guilt.McCallister v. State, 91 N.E.3d 554, 559 (Ind. 2018). "Incredible dubiosity is a difficult standard to meet, requiring ambiguous, inconsistent testimony that 'runs counter to human experience.'" Carter v. State, 44 N.E.3d 47, 52 (Ind.Ct.App. 2015) (quoting Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2012).
[¶16] Here, Lorenz contends that A.K.'s testimony was incredibly dubious because her "testimony was not corroborated by any other witnesses and there was no recorded or physical evidence of the incident she described," because A.K. "admitted she has a bad memory," and because A.K. "continued to see Lorenz" after he moved out of the home. Appellant's Br. at 14. He also contends that her testimony "was inconsistent, equivocal, and contradicted her deposition testimony." Id. at 15.
[¶17] However, we conclude that the incredible dubiosity rule does not apply here. First, "it is well settled that 'discrepancies between a witness's trial testimony and earlier statements made to police and in depositions do not render such testimony 'incredibly dubious.'" Wolf v. State, 76 N.E.3d 911, 916 (Ind.Ct.App. 2017). And Lorenz does not point to any inconsistencies in A.K.'s trial testimony. Further, Lorenz was able to place the credibility of A.K. squarely before the jury when he cross-examined her about the inconsistencies between her testimony and prior statements.
[¶18] Second, nothing about the events to which A.K. testified "runs counter to human experience." Carter v. State, 44 N.E.3d 47, 52. Testimony about being fondled by a family member is not inherently improbable. Accordingly, Lorenz' argument that the incredible dubiosity rule applies must fail. We therefore hold that the State presented sufficient evidence to support his conviction.
Issue Three: Sentencing
[¶19] Finally, Lorenz contends that his sentence is inappropriate in light of the nature of the offense and his character. Indiana Appellate Rule 7(B) provides that "[t]he 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." This Court has held that "[t]he advisory sentence is the starting point the legislature has selected as an appropriate sentence for the crime committed." Sanders v. State, 71 N.E.3d 839, 844 (Ind.Ct.App. 2017). And the Indiana Supreme Court has previously explained that:
The principal role of appellate review should be to attempt to leaven the outliers . . . but not achieve a perceived "correct" result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Defendant has the burden to persuade us that the sentence imposed by the trial court is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007), decision clarified on reh'g, 875 N.E.2d 218 (Ind. 2007).Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).
[¶20] Indiana's flexible sentencing scheme allows trial courts to tailor an appropriate sentence to the circumstances presented, and the trial court's judgment "should receive considerable deference." Cardwell, 895 N.E.2d at 1222. Whether we regard a sentence as inappropriate at the end of the day turns on "our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other facts that come to light in a given case." Id. at 1224. The question is not whether another sentence is more appropriate, but rather whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind.Ct.App. 2008). Deference to the trial court "prevail[s] 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).
[¶21] The sentencing range for Lorenz' Class C felony conviction is two years to eight years, with an advisory sentence of four years. I.C. § 35-50-2-6(a). During the sentencing hearing, the court identified as aggravating factors Lorenz' criminal history, the fact that A.K. was less than twelve years old at the time of the offense, and that Lorenz was in a position of trust over A.K. To the extent the court identified any mitigators, it considered the undue hardship on Lorenz' girlfriend. The court found that the aggravators outweighed the mitigator and sentenced Lorenz to eight years, with seven years executed and one year suspended to probation.
[¶22] On appeal, Lorenz contends that his sentence is inappropriate in light of the nature of the offense because his conduct "did not exceed the conduct proscribed by the legislature." Appellant's Br. at 16. He also contends that "[n]othing in the nature of the offense was particularly heinous or brutal." Id. Lorenz also maintains that his sentence is inappropriate in light of his character because he "was a high school graduate," had "been employed full-time with a steady income," and had "substantial support from his family and friends." Id. at 17. And while he acknowledges his criminal history, he asserts that "none of the prior offenses involved any act of abuse or neglect against a child." Id.
[¶23] However, Lorenz has not met his burden on appeal to demonstrate that his sentence is inappropriate. With respect to the nature of the offense, A.K. was only eight years old when A.K. fondled her. In addition, A.K. believed that Lorenz was her father, and he was in a position of trust over her. Further, Lorenz' actions have had a lasting impact on A.K., such that she believes that she will need "counseling for the rest of [her] life[.]" Tr. Vol. 5 at 104. Lorenz has not presented compelling evidence portraying the nature of the offense in a positive light. See Stephenson, 29 N.E.3d at 122.
[¶24] As for his character, Lorenz has a criminal history that includes five prior felony convictions and nine prior misdemeanor convictions. In addition, Lorenz has had his probation revoked on at least one occasion. While we acknowledge that none of Lorenz' prior convictions relate to the abuse of a child, Lorenz has not presented evidence of substantial virtuous traits or persistent examples of good character. See id. We cannot say that Lorenz' sentence is inappropriate in light of the nature of his character. We therefore affirm Lorenz' sentence.
Conclusion
[¶25] Lorenz has waived the issue regarding the trial court's grant of the State's motion to quash the subpoena of Harter. In addition, A.K.'s testimony was not incredibly dubious, and the State presented sufficient evidence to support Lorenz' conviction. And Lorenz' sentence is not inappropriate in light of the nature of the offense or his character. We therefore affirm his conviction and sentence.
[¶26] Affirmed.
Mathias, J., and Pyle, J., concur.