Opinion
24A-CR-14
06-07-2024
Kenneth B. Salyers, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Justin R. Wall Wall Legal Services Huntington, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Jennifer Anwarzai 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Wabash Circuit Court Trial Court Cause No. 85C01-2112-F1-001386 The Honorable Robert R. McCallen III, Judge
ATTORNEY FOR APPELLANT Justin R. Wall Wall Legal Services Huntington, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Jennifer Anwarzai Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Felix, Judge
Statement of the Case
[¶1] In 2023, a jury convicted Kenneth Salyers of two counts of child molesting for acts involving T.V., his granddaughter, that occurred between 2012 and 2015. The trial court sentenced Salyers to a total of 10 years executed at the Indiana Department of Correction (the "DOC"), with 2 years suspended to probation. Salyers now appeals and raises two issues for our review:
1. Whether the State presented sufficient evidence at trial to support Salyers's child molesting convictions; and
2. Whether Salyers's sentence is inappropriate under Indiana Appellate Rule 7(B).
[¶2] We affirm.
Facts and Procedural History
In late 2012, Jenny Vigar, Salyers's daughter, moved to a house approximately seven blocks from Salyers's residence in Wabash County, Indiana. Around the same time, Vigar started a new job and relied heavily on Salyers-who was then 60 years old-to care for her three children, including her youngest child, T.V.-who was then seven years old. Salyers often picked up T.V. from the bus stop at about 3:30 p.m. and babysat her at Vigar's residence until about 5:00 p.m. when Vigar returned home. Salyers looked after T.V. approximately three days per week from late 2012 until 2015.
[¶3] During this time, it was common for Salyers to be alone with T.V. Salyers regularly played games with T.V., including one game in the living room that involved T.V. sitting on Salyers's lap on the loveseat, facing Salyers, and dipping down to the floor while Salyers held her hands. During this game, Salyers would typically place his hands on T.V.'s hips so she could bend further and play with the family dog.
[¶4] Salyers and T.V. would also watch television on the loveseat, and during these times, Salyers would often put his hand on T.V.'s leg and move her so she was sitting on his lap facing him. Once T.V. would turn to watch the television that was now positioned behind her, Salyers would make her sit still and place his hand on her vagina. For approximately 10 minutes, Salyers would rub T.V.'s vagina through her clothes, which usually consisted of a t-shirt and leggings. Salyers would also touch T.V. in the same manner when she was sitting beside him on the loveseat watching television. Although Salyers did not touch T.V.'s vagina every time he babysat her, he did so multiple times per week. In 2013, in addition to touching T.V.'s vagina on top of her clothes, Salyers began digitally penetrating her vagina through her clothes. Salyers did not touch T.V. in these ways when her older siblings were around, and his sexual conduct with T.V. ceased when he stopped babysitting her in 2015.
[¶5] After one of T.V.'s friends disclosed she had been raped, T.V. told that friend about how Salyers touched her; T.V. believed the friend would understand her situation. This disclosure led to Vigar learning about the situation, and, on October 3, 2021, Vigar reported Salyers's behavior to law enforcement.
[¶6] On October 28, 2021, Indiana State Police Polygraph Expert Matthew Collins conducted a polygraph examination of Salyers, to which Salyers had agreed. During the polygraph examination, Collins asked Salyers three relevant test questions, all of which were as follows: "[D]id you touch [T.V.]'s vagina for other than a parental or hygiene duty." Tr. Vol. II at 226. Salyers answered this question in the negative every time. Once the polygraph examination was complete, Collins determined that Salyers was being deceptive about touching T.V.'s vagina for any reason other than a parental or hygiene purpose. Collins notified Salyers of the results and conducted a post-examination interview, during which Salyers made the following comments: "[I]n my mind, I didn't touch her," "Evidently I don't know what the truth is," and "I don't remember it happening like that." Id. at 226-27.
[¶7] On December 29, 2021, the State charged Salyers with four counts of child molesting: one count as a Class A felony, one count as a Class C felony, one count as a Level 1 felony, and one count as a Level 4 felony. Salyers's jury trial commenced on November 21, 2023. T.V. testified about Salyers's actions and her disclosure thereof as described above. Collins testified about Salyers's polygraph examination. Salyers testified in his own defense and confirmed that when he babysat T.V., she would frequently sit in his lap while watching television, but he denied ever touching or trying to digitally penetrate her vagina. Salyers testified that he had a "falling out" with T.V. in 2021 over the clothes she wore, which he believed led to T.V. accusing him of the abovedescribed acts. Tr. Vol. II at 242-43; Tr. Vol. III at 5-8. Salyers also attempted to contextualize and explain the statements he made to Collins during the postpolygraph examination interview.
Ind. Code § 35-42-4-3(a)(1) (June 30, 2014).
Id. § 35-42-4-3(b) (June 30, 2014).
Id. § 35-42-4-3(a)(1).
Id. § 35-42-4-3(b).
[¶8] The jury found Salyers guilty of child molesting as a Class C felony and of child molesting as a Level 4 felony. The jury found Salyers not guilty of child molesting as a Class A felony, and the State dismissed the count of child molesting as a Level 1 felony. The trial court sentenced Salyers to 8 years on the Class C child molesting conviction and 10 years with 2 years suspended to probation on the Level 4 felony child molesting conviction. The trial court ordered these sentences to be served concurrently for a total aggregate sentence of 10 years executed at the DOC with 2 years suspended to probation. This appeal ensued.
In violation of Indiana Appellate Rule 46(A)(6), Salyers fails to include all relevant facts in the Statement of Facts section of his opening brief. Salyers's noncompliance with Appellate Rule 46 does not substantially impede our review of his claims, so we choose to address the merits thereof. See Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015).
Discussion and Decision
1. The State Presented Sufficient Evidence at Trial to Support Salyers's Child Molesting Convictions
[¶9] Salyers argues that the State presented insufficient evidence at trial to support his convictions for child molesting as a Level C felony and as a Level 4 felony. "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 [factfinder].'" 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] A person commits Level C or Level 4 felony child molesting when that person, with a child under 14 years old, "performs or submits to any fondling or touching, of either the child or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person." I.C. § 35-42-4-3(b) (June 30, 2014); id.§ 35-42-4-3(b). Salyers concedes that all the elements and venue were proven; however, he argues that the State did not present sufficient evidence of "inappropriate touching." Id. In particular, Salyers contends that the only evidence the State presented to prove Salyers touched or fondled T.V. was T.V.'s testimony, which Salyers claims was "incredibly dubious." Id.
[¶11] Generally, a "conviction can be sustained on only the uncorroborated testimony of a single witness, even when that witness is the victim." Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012)) (citing Ferrell v. State, 565 N.E.2d 1070, 1072-73 (Ind. 1991)). However, under the incredible dubiosity rule, a court will impinge upon the jury's duty to judge witness credibility if there is (1) a sole testifying witness; (2) testimony that is inherently contradictory, equivocal, or the result of coercion; and (3) a complete absence of circumstantial evidence. Moore v. State, 27 N.E.3d 749, 755-56 (Ind. 2015) (emphases in original) (quoting Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994)). Our Supreme Court has explained that "while incredible dubiosity provides a standard that is not impossible to meet, it is a difficult standard to meet, and one that requires great ambiguity and inconsistency in the evidence. The testimony must be so convoluted and/or contrary to human experience that no reasonable person could believe it." Id. (internal quotation marks, alteration, and citation omitted) (quoting Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001)).
[¶12] As the State argues, Salyers has not and cannot establish that T.V. was the sole testifying witness regarding Salyers's conduct-Salyers himself testified and corroborated much of T.V.'s testimony but denied any inappropriate conduct occurred. Thus, the incredible dubiosity rule is inapplicable here. See Moore, 27 N.E.3d at 758. Salyers's arguments to the contrary are essentially a request for us to reweigh the evidence and reassess witness credibility, which we cannot do. See Owen, 210 N.E.3d at 264 (quoting Brantley, 91 N.E.3d at 570). Even if we considered Salyers's argument as an insufficiency of the evidence on the element of "fondling or touching," we remain unpersuaded by the argument. T.V. testified that Salyers repeatedly touched and rubbed her vagina when she was between seven and ten years old. This is sufficient to support the "touched or fondled" element. Consequently, we cannot say that the State failed to produce sufficient evidence a trial to support Salyers's child molesting convictions.
2. Salyers's Sentence Is Not Inappropriate Under Appellate Rule 7(B)
[¶13] Salyers argues 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 App. R. 7(B)).
[¶14] 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).
[¶15] 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, Salyers was convicted of child molesting as a Class C felony and as a Level 4 felony. "A person who commits a Class C felony . . . shall be imprisoned for a fixed term of between two (2) and eight (8) years, with the advisory sentence being four (4) years." I.C. § 35-50-2-6 (emphasis added). On his Class C felony child molesting conviction, the trial court sentenced Salyers to 8 years executed at the DOC. "A person who commits a Level 4 felony shall be imprisoned for a fixed term of between two (2) and twelve (12) years, with the advisory sentence being six (6) years." I.C. § 35-50-2-5.5 (emphasis added). On his Level 4 felony child molesting conviction, the trial court sentenced Salyers to 10 years executed at the DOC with 2 years suspended to probation. The trial court ordered Salyers to serve these sentences concurrently, for a total aggregate sentence of 10 years with 2 years suspended to probation.
[¶16] 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.
[¶17] Here, Vigar entrusted T.V. to Salyers's care while Vigar was at work. For approximately three years, when T.V. was seven to ten years old, Salyers regularly took advantage of his role as T.V.'s grandfather and caretaker in order to satisfy his desires by touching T.V.'s vagina. Additionally, Salyers engaged in this inappropriate behavior in T.V.'s own home.
[¶18] 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.
[¶19] At no time during the proceedings below did Salyers take responsibility for his actions or show any remorse. Furthermore, Salyers's adult criminal history includes one case from 2009 in which Salyers was convicted of two counts of battery committed with a deadly weapon as Class C felonies; Salyers was sentenced to a total of three years at the DOC with two years suspended to probation. Salyers has a significant history of substance abuse and was abusing alcohol and marijuana during the time frame he babysat T.V. At 17 years old, Salyers began smoking marijuana and did so frequently until he was 69 years old. At 45 years old, Salyers began smoking crack cocaine and did so frequently until he was 60 years old.
[¶20] Based on the nature of Salyers's offenses and his history of criminal or otherwise deviant behavior, we cannot say that Salyers has produced compelling evidence demonstrating that the nature of his offense or his character renders his sentence inappropriate. See Hayko v. State, 211 N.E.3d 483, 487 n.1 (Ind. 2023), reh'g denied (Aug. 18, 2023).
Conclusion
[¶21] In sum, the State presented sufficient evidence to support Salyers's two child molesting convictions, and the trial court did not impose an inappropriate sentence. We therefore affirm the trial court on all issues raised.
[¶22] Affirmed.
Altice, C.J., and Bradford, J., concur.