Opinion
No. 10A04-1012-CR-794
08-29-2011
CHARLES R. SPARKS, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT JEFFREY D. STONEBRAKER Chief Public Defender Jeffersonville, Indiana ATTORNEYS FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana NICOLE M. SCHUSTER Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT
JEFFREY D. STONEBRAKER
Chief Public Defender
Jeffersonville, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
NICOLE M. SCHUSTER
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE CLARK CIRCUIT COURT
The Honorable Daniel E. Moore, Judge
Cause No. 10C01-0804-FA-192
BAILEY , Judge
Case Summary
Charles R. Sparks ("Sparks") was convicted of six counts of Child Molesting, each as a Class A felony, and one count of Sexual Misconduct with a Minor, as a Class B felony.He now appeals.
I.C. § 35-42-4-9.
We affirm.
Issues
Sparks raises four issues for our review, which we reframe as:
I. Whether the trial court erred when it denied his motion for severance of the charges against him;
II. Whether the trial court erred when it denied his motion for a change of judge pursuant to Criminal Rule 12(B);
III. Whether the trial court denied him a fair, public trial by ordering the public out of the courtroom during the trial testimony of one of his three victims; and
IV. Whether his sentence is inappropriate under Appellate Rule 7(B).
Facts and Procedural History
In 1996, Sparks and his wife, Linda, who resided in Jeffersonville, adopted three sisters from foster care: T.S., K.S., and B.S. T.S. was the eldest of the sisters at eleven years of age, K.S. was eight years old, and B.S. was six years old.
During 1997, Sparks began to molest his adopted daughters, performing oral sex upon them, forcing them to perform oral sex upon him, and engaging or attempting to engage in sexual intercourse with them. As each of the three girls moved out of the family home, Sparks's attention to the remaining sisters increased until, in 2005, only B.S. remained in the home.
After numerous attempts to run away from home, in late 2007, B.S., then seventeen years old, ran away from home a final time. She was reported as a runaway and eventually was taken into detention in Bartholomew County. While in detention, she reported Sparks's sexual abuse, and Clark County Child Protective Services ("CPS") initiated an investigation.
CPS contacted Detective Charles Thompson of the Jeffersonville Police Department, who eventually spoke with all three sisters about B.S.'s allegations. On April 16, 2008, Detective Thompson provided K.S. and T.S. with recording equipment, and during a conversation recorded several days later, Sparks admitted to molesting K.S. and T.S.
On April 24, 2008, detectives from the Jeffersonville Police Department arrested Sparks. Also on April 24, 2008, the State filed its fifty-eight count information against Sparks, alleging thirty-two counts of Child Molesting, each as a Class A felony; fifteen counts of Sexual Misconduct with a Minor, each as a Class B felony; and eleven counts of Child Seduction, each as a Class D felony.
On April 3, 2009, the trial court conducted a pretrial conference with counsel for each party present. During this conference, the trial court entered a pretrial order instructing the State to identify the ten best allegations with which it would proceed to trial. The State objected on April 23, 2009. A hearing on the matter was conducted on May 12, 2009, during which Sparks argued for severance of the various counts, and the State insisted both Sparks's proposed severance and the trial court's April 3 order were inappropriate. The trial court reiterated "that the Order of April 3 did not order a dismissal. It's just an order saying pick your ten best counts" with which to proceed to trial. (Tr. 61.)
Pursuant to the trial court's order, on May 29, 2009, the State filed its amended information with the charges the State intended to try before the court. The amended information alleged two counts of Child Molestation each as to T.S., K.S., and B.S.; one count of Sexual Misconduct with a Minor each as to T.S., K.S., and B.S.; and one count of Child Seduction as to B.S.
I.C. § 35-42-4-7.
On June 9, 2009, Sparks filed a formal motion for severance of the case into three trials (one for each alleged victim). After a hearing on August 10, 2009, the trial court denied Sparks's motion for severance.
On October 4, 2010, Sparks filed a verified motion for a change of judge. Specifically, Sparks contended that after he and the State reached a plea agreement on September 22, 2010, the trial court ordered K.S., T.S., and B.S. to present themselves to the court on September 24, 2010, in the presence of counsel for Sparks and the State, with the purpose of persuading Sparks's adopted daughters to withdraw their assent from the plea agreement. Sparks contended that the trial court's "interrogation" of Sparks's daughters occurred off the record, and that as a result of the withdrawal of consent to the plea agreement the trial court rejected the plea agreement that day. Thus, Sparks argued that the trial judge interjected himself into the plea negotiations and conducted an independent investigation into the facts of the case, giving "an objective person, knowledgeable of all the circumstances ... a reasonable basis for doubting the judge's impartiality." (App. 419.)
On October 4, 2010, the trial court, in the presence of counsel for both Sparks and the State, obtained testimony from the trial court's court reporter and law clerk, each of whom was present on September 24, 2010. Both Sparks and the State were afforded the opportunity to conduct cross-examination of the witnesses and did so. Each witness testified that the trial court decided to reject the plea agreement early on September 24, 2010, before any discussion with Sparks's daughters, with whom the court spoke on September 27, 2010. The trial court then denied the motion for change of judge.
A jury trial was conducted from October 5, 2010, through October 14, 2010. During the proceedings, K.S., B.S., and T.S. were called to testify for the State. Immediately upon beginning her testimony, K.S. reportedly became overwhelmed because a number of Sparks's relatives were present in the gallery, several of whom she felt intimidated by. In order to allow the trial to continue, the trial court ordered the public, including Sparks's relative, to vacate the courtroom during K.S.'s testimony. After K.S.'s testimony concluded, the trial court permitted the public to return to the courtroom. B.S. and T.S. testified with members of the public present, including Sparks's relatives.
Upon a motion for a directed verdict, the State stipulated to dismissal of the two counts of sexual misconduct as to T.S. and K.S. At the trial's conclusion, the jury found Sparks guilty of six counts of Child Molesting and one count of Sexual Misconduct with a Minor, and found Sparks not guilty of one count of Child Seduction. On November 1, 2010, the trial court entered judgment against Sparks and sentenced him to an aggregate sentence of 135 years: forty-five years as to each count of Child Molestation, with the sentences run concurrent with each other as to each sister and consecutively to one another among the sisters, and twenty years as to the remaining count of Sexual Misconduct with a Minor as to B.S., which was run concurrent with the Child Molestation sentences as to B.S. The trial court also adjudicated Sparks a sexually violent offender.
This appeal followed.
Discussion and Decision
Whether the Trial Court's Denial of Sparks's Motion to Sever Requires a New Trial
Sparks seeks a new trial on the basis of the trial court's pre-trial order of April 3, 2009, which was reaffirmed on May 12, 2009, and instructed the State to select its ten strongest counts for trial. He makes two related claims in this regard: first, that the trial court improperly allowed offenses to be joined that should have been tried separately, and second, that the trial court improperly denied his motion to sever the offenses.
Joinder and severance of criminal charges are governed under the Indiana Code. As to joinder, our statutes provide that
Two (2) or more offenses may be joined in the same indictment or information, with each offense stated in a separate count, when the offenses:I.C. § 35-34-1-9(a). Where multiple offenses have been charged against the same defendant in multiple charging informations or indictments which could be joined under section 35-34-1-9(a)(1), supra, the trial court may upon motion of a defendant order those informations or indictments joined for trial. I.C. § 35-34-1-10(a).
(1) are of the same or similar character, even if not part of a single scheme or plan; or
(2) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.
As to severance, the Indiana Code provides:
Whenever two (2) or more offenses have been joined for trial in the same indictment or information solely on the ground that they are of the same or similar character, the defendant shall have a right to a severance of the offenses. In all other cases the court, upon motion of the defendant or the prosecutor, shall grant a severance of offenses whenever the court determines that severance is appropriate to promote a fair determination of the defendant's guilt or innocence of each offense considering:I.C. § 35-34-1-11(a). Except where a defendant is entitled to severance as of right, we review a trial court's decision on motions for joinder or severance of charging informations or indictments for an abuse of discretion. Craig v. State, 730 N.E.2d 1262, 1265 (Ind. 2000).
(1) the number of offenses charged;
(2) the complexity of the evidence to be offered; and
(3) whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.
Here, Sparks contends that the trial court effectively both severed and joined the offenses charged, and that this constituted an abuse of discretion. As to Sparks's claims that the trial court inappropriately joined charges when it ordered the State to select its ten strongest charges for trial, Sparks moved only for severance of charges already charged jointly in a single charging information, not for joinder of any charges. See I.C. § 35-34-1-10(a) (allowing joinder of charges on motion by the defendant). To the contrary, the charges were effectively already joined by the State's use of a single charging information.
Thus, Sparks cannot now argue that charges were improperly joined, but only that the trial court improperly denied his own motion to sever the charges. We agree with Sparks that the trial court's order instructing the State to file a second, more limited charging information on which to proceed to trial was somewhat out of the ordinary. Yet Sparks does not establish how he was prejudiced by being taken to trial on fewer counts than the State had initially charged. Having failed to show how he was prejudiced at trial by this aspect of the trial court's order, he thus fails to demonstrate how he is entitled to relief on this basis.
Sparks is thus left with his claim that the trial court improperly denied his motion for severance either as of right or at the court's discretion under subsection 35-34-1-11(a). As this court has previously observed, a defendant is entitled to severance as of right "only when the offenses are joined solely because they are of the same or similar character." Blanchard v. State, 802 N.E.2d 14, 25 (Ind. Ct. App. 2004) (emphasis supplied). Where "the offenses are sufficiently linked together, the matter of severance is to be determined by the trial court. Charges may be sufficiently linked together if they are connected by a distinctive nature, a common modus operandi linked the crimes, and that the same motive induced the criminal behavior." Id. (citing Wilkerson v. State, 728 N.E.2d 239, 246 (Ind. Ct. App. 2000)).
Sparks contends that the charges against him were severable as of right and thus the trial court erred when it denied his motion to sever the charges for three separate trials, one for each of the three sisters. The charges against Sparks related to the three sisters—T.S., K.S., and B.S.—all of whom were adopted by Sparks and lived in his home until each left. Much of the evidence in the case—including testimony of a common modus operandi, similar grooming of the sisters by Sparks, investigation records from CPS, and medical records—tended to prove a series of not merely similar, but connected acts, and the State's arguments focused on these matters in several hearings. See Philson v. State, 899 N.E.2d 14, 17 (Ind. Ct. App. 2008) (identifying sex acts committed upon siblings in the same house over the same charged time period, where allegations as to one victim emerged during investigation of claims of molestation as to the other), trans. denied; Blanchard, 802 N.E.2d at 25 (identifying shared residence, sibling relationship of victims, primary caregiver status of defendant, and defendant's use of a washcloth to silence his children so he could sleep).
Thus, we cannot agree with Sparks that the numerous charged offenses were merely similar in nature rather than sufficiently linked, and we therefore conclude that Sparks was not entitled to severance as of right under subsection 35-34-1-11(a). Sparks does not argue that the trial court erred in its discretionary actions, and thus we find no error in the trial court's denial of his motion to sever the charges.
Whether the Trial Court's Denial of Sparks's Motion for Change of Judge
Requires a New Trial
Sparks also seeks a new trial on the ground that the trial court improperly denied his verified motion for change of venue of October 4, 2010, in which he sought a new judge in the case one day before the jury trial was scheduled to commence. In his motion, Sparks contended that after a written plea agreement had been submitted to the court on September 22, 2010, the trial judge on September 24, 2010, had "interrogated the victims extensively and eventually persuaded them to withdraw their assent from the plea agreement." (App. 418.) Thus, Sparks contended that the trial judge's "interjection into the plea negotiations is evidence of his bias and prejudice" and that the judge's "interrogation ... constitutes independent investigation ... [that] has so tainted the judicial process" as to require a change of judge. (App. 419.)
Our state's Criminal Rules set forth the basic requirements for a party seeking a change of judge in a criminal matter.
(B) Change of Judge--Felony and Misdemeanor Cases. In felony and misdemeanor cases, the state or defendant may request a change of judge for bias or prejudice. The party shall timely file an affidavit that the judge has a personal bias or prejudice against the state or defendant. The affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be accompanied by a certificate from the attorney of record that the attorney in good faith believes that the historical facts recited in the affidavit are true. The request shall be granted if the historical facts recited in the affidavit support a rational inference of bias or prejudice.Ind. Crim. Rule 12(B). When such a change may be sought is limited:
An application for a change of judge or change of venue from the county shall be filed within ten (10) days after a plea of not guilty, or if a date less than ten (10) days from the date of said plea, the case is set for trial, the application shall be filed within five (5) days after setting the case for trial.Crim. R. 12(D)(1).
When determining whether to grant or deny a properly filed motion for change of judge, the trial court must make "an objective ... legal determination" of whether the facts as averred in the affidavit supporting the motion, taken as true, '"support a rational inference of bias or prejudice.'" Voss v. State, 856 N.E.2d 1211, 1216 (Ind. 2006) (quoting Sturgeon v. State, 719 N.E.2d 1173, 1181 (Ind. 1999)). "The law presumes that the judge is unbiased and unprejudiced." Buggs v. State, 844 N.E.2d 195, 205 (Ind. Ct. App. 2006) (citing Garland v. State, 788 N.E.2d 425, 432 (Ind. 2003)), trans. denied. Exposure to evidence through judicial sources is not, by itself, sufficient to establish bias. Sturgeon, 719 N.E.2d at 1182. Nor is rejection of a plea agreement. Haynes v. State, 656 N.E.2d 505, 508 (Ind. Ct. App. 1995). Upon appeal, we review the trial court's decision on a motion for change of judge for clear error, reversing only when our review of the record "leaves us with a definite and firm conviction that a mistake has been made." Noble v. State, 725 N.E.2d 842, 848 (Ind. 2000).
We initially observe that the procedure by which the trial judge reached a decision upon the motion was unusual (and arguably unnecessary). During the October 4, 2010 hearing on the motion, the trial judge produced two witnesses—his court reporter and his law clerk—who were sworn in, examined by the court, and cross-examined by Sparks and the State. The trial court then based its ruling on the motion in part on the testimony of these members of the court's staff, comparing their testimony to the averments in the motion.
While this procedure is unusual, it has no bearing on the standards by which the trial court may render its decision or upon our review.
We turn now to the verified motion. In the motion, Sparks averred:
1. On September 24, 2010, the parties tendered a Statement of Plea Agreement, a culmination of many months of negotiation between the parties and the alleged victims.(App. 419.) Based on these averred facts, Sparks argued that the trial judge's "interjection into the plea negotiations" and "interrogation of the victims" were evidence of bias and prejudice, and that there was "a reasonable basis for doubting the judge's impartiality." (App. 419.)
2. On September 24, 2010, Judge Daniel Moore required the victims to present themselves, along with a representative from the State and Defense. Victim's [sic] Advocate Carmen Croudep was also present.
3. Despite the victims' earlier assent to the negotiated plea, Judge Daniel Moore interrogated the victims extensively and eventually persuaded them to withdraw their assent from the plea agreement. This interrogation occurred off the record without benefit of a court reporter.
4. Based on the interrogation, Judge Daniel Moore rejected the plea agreement.
Reviewing for clear error the trial court's decision under Criminal Rule 12(B) and the standard annunciated in Voss and other cases, we cannot agree with Sparks that the trial court clearly erred in denying his motion for a change of judge. While we recognize that the trial court held a meeting with the parties on September 24, 2010, and later held a meeting with the parties and the victims on September 27, 2010, the CCS reflects that the trial court decided to reject the plea agreement on September 24, 2010. Thus, the trial court rejected the plea agreement before the meeting with the victims. Taking as true the averment that the trial court attempted to persuade the victims to withdraw their approval of the plea agreement, this had no bearing on the trial court's decision on the plea agreement and shows no bias as to that decision on the part of the judge. We therefore conclude the trial court did not err when it denied Sparks's motion for a new judge.
Because the September 27, 2010, meeting had no dispositive effect on Sparks's ability to pursue his defense, we reject his claim that the trial court's decision to hold the meeting with counsel present but in his personal absence constituted evidence of bias warranting a change of judge.
Whether the Trial Court's Order that the Public Vacate the Courtroom
during L.S.'s Testimony Requires a New Trial
Sparks's final basis for seeking a new trial rests upon the trial court's exclusion of the public during the L.S.'s testimony at trial. As our supreme court observed in Hackett v. State:
The Indiana Constitution provides for a public trial in all criminal prosecutions. Ind.Const. Art. 1, s 13. The federal counterpart is found in the sixth amendment. Marshall v. State (1970), 254 Ind. 156, 258 N.E.2d 628. The right to a public trial has long been regarded as a fundamental right of the accused. Justice Black attributed this 'Anglo-American distrust for secret trials' to the possibilities for abuse manifested in despotic religious Chamber and the Spanish Inquisition. Re Oliver (1948), 333 U.S. 257, 68 S. Ct. 499, 92 (1948), 333 U.S. 257, 68 S. Ct. 499, 92 L. Ed. 682. The purpose of a public trial is to guarantee that an accused be not unjustly condemned and that he receive a fair trial. Estes v. Texas (1965), 381 U.S. 532, 85 S. Ct. 1628, 14 L. Ed. 2d 543; Edmonds v. State (1966), 247 Ind. 332, 215 N.E.2d 547.Hackett v. State, 266 Ind. 103, 360 N.E.2d 1000, 1004 (1977).
The importance of the right to an open trial was recognized by our legislature, which provided by statute for open trials and a procedure courts must follow to exclude the general public from such proceedings. I.C. § 5-14-2-1 et seq. This legislation, however, "does not affect the inherent power of a court to make limited exclusions of witnesses, to relieve overcrowding, to protect the order and decorum of the courtroom, or to exclude those individuals whose presence constitutes a direct threat to the safety of the spectators, parties, or witnesses." I.C. § 5-14-2-7.
The right to a public trial in a criminal matter, then, is not without limit, for "other interests in the administration of justice" circumscribe the defendant's right. Hackett, 360 N.E.2d at 1004. Rather, "limited restrictions on the right to a public trial are within the trial court's discretion where they are related to a legitimate purpose furthering the integrity of the judicial process, so long as there is a sufficient record" to support those restrictions. Id. (citing United States v. Eisner, 533 F.2d 987 (6th Cir. 1976), cert. denied; Edmonds v. State, 247 Ind. 332, 215 N.E.2d 547 (1966)). Such a record must include not merely a judge's assertion that he has read the law on closure of a criminal proceeding to the public, but must include "specific findings concerning the interests at issue, showing that the closure was as narrow as possible or showing that he had considered any alternatives to closing the courtroom." Kendrick v. State, 661 N.E.2d 1242, 1244 (Ind. Ct. App. 1996).
Thus, in Hackett, the Indiana Supreme Court affirmed Hackett's conviction where the public was excluded from the testimony of a single, surprise witness who, being deposed by the defendant in the courtroom, "hesitated to respond to questions, because of an expressed fear of defendant's relatives and friends," and who refused to answer on at least one occasion during that deposition. Id. So too, in Williams v. State, our supreme court recognized that exclusion of the public from a particular witness's testimony is valid when it seeks to "protect[] a witness fearful of retaliation by those attending the trial." Williams v. State, 690 N.E.2d 162, 167 (Ind. 1997) (citing Kendrick, 661 N.E.2d at 1242; Hackett, 360 N.E.2d at 1004) (criticizing the trial court's failure to make adequate findings in support of its decision to require members of the public to enter their names into a log before entering the courtroom).
The record before us compares favorably to the facts in Hackett. Here, immediately upon commencing her testimony, K.S. began to cry, prompting the trial court to take a recess. Upon motion by the State, the trial court heard argument from both the State and Sparks about whether the public should be dismissed from the courtroom for K.S.'s testimony. The State offered to have K.S. testify that she found "several members of the gallery present" to be intimidating. (Tr. 330.) The trial court in turn stated, "the Court would observe for the record before we broke that the witness took the stand and there were those few preliminary questions and then she started crying and became very nervous.... I saw her hand shaking." (Tr. 330.) The trial court then found:
The witness took the stand and immediately broke down. The witness became tearful and shaking. The State's reason and support making this request is that she, the State, has submitted that the witness fears or at least there's been some intimidating reaction to persons in the gallery, given the fact that this case involves family members and allegations that apparently based on what I've heard in pretrial, some members of the family believe and others don't....(Tr. 333-34.)
Basing its decision on the holding in Williams, the trial court went on to find that excluding the public for the duration of K.S.'s testimony served the values of eliciting evidence from a witness in a case where serious charges had been made and that the court could find no reasonable alternative to allow K.S. to testify and the trial to proceed.
K.S. went on to testify for the remainder of the day. Upon resuming the trial the following day, Sparks again objected to the exclusion of the public from the courtroom during K.S.'s testimony and moved for a mistrial. The State responded that what K. S. "found to be intimidating and put her in fear and frankly just overwhelmed her, was the presence of the defendant's family. Many of whom she's had run-ins with...." (Tr. 375.) The State also noted that section 5-14-2-7 does not deprive the trial court of its inherent authority to regulate courtroom conduct with respect to specific witnesses in the interests of courtroom decorum and individual safety. Sparks responded with argument that the nature of K.S.'s testimony— as an alleged victim presented in the State's case-in-chief—differed from the surprise witness called in Hackett, and observed that the trial court could have held a public hearing with opportunity for public feedback on whether to close the courtroom.
In response, the trial court went on to state:
I don't have any reason to believe in this record that any member of [sic] spectators in the gallery or none [sic] would have impacted the jury.... The Court does not recall any members of the media being in the Courtroom Friday afternoon. The Court would not have excluded members of the media in any case and I will not do that today. The Court also wants to make clear, the Court's going to deny your motion because your client has not made a demonstration of grave peril or any violation of any fundamental right for the brief limited forty minute, approximate time period, of that witness. Now, in terms of where we are going to go from here and how we are going to handle intimidating situations from here ... when this Judge tried to close the Courtroom Friday afternoon, there were members I think of Mr. Sparks' family who stayed in the Courtroom and ... one of my staff members walked out to help close the Courtroom area down and was confronted by a man who said anybody can cry on the witness stand and is he going to close the Courtroom all the time.... That is inappropriate. That is really improper. What was even more inappropriate is when myself, I didn't have my robe on, but I came out with my keys to lock up the Courtroom and a man came up to me ... and said I drove all the way from Tennessee are you going to close the Courtroom down every time one of those girls testifies? This judge did not respond ... and that brought to mind Friday morning . coming off the elevator . I just noticed(Tr. 378-380.) The trial court went on to order that the "limited exclusion" of the public from the courtroom would not continue throughout the trial (Tr. 381), but that it would revisit courtroom conduct orders as the trial progressed and would be sure to protect all witnesses from any form of intimidation.
they were in the hallway standing and later saw them when the trial proceedings began inside the Courtroom, and one thing I'm going to be sure of and everybody here needs to understand and they can communicate, is that this Court and this Judge is not going to be intimidated at all in the administration of this trial, but more than that, there isn't going to be a witness that's going to be intimidated when he or she comes and is called to the witness stand....
Here, the trial court provided an ample record of the basis for its exclusion of the public—or, more specifically, members of the Sparks family—from the courtroom during K.S.'s testimony. Given the facts in the record—including intimidation and apparent attempts by members of Sparks's family to interfere with the trial court's processes—we cannot say that the trial court lacked important purposes in closing the proceedings to the public during K.S.'s testimony. Nor can we conclude that the means chosen were overly restrictive, as Sparks's right to public trial was not compromised based upon the willingness of the trial court to permit members of the press into the courtroom. While we note Sparks's argument that the right to public trial is specific to a criminal defendant who need not show any harm from the exclusion of some or all of the public, and thus agree that the trial court's order is erroneous in this regard, we cannot conclude that this rises to the level of reversible error in the failure of the trial court to grant Sparks's motion for a mistrial.
Whether Sparks's Sentence is Inappropriate
Finally, Sparks contends his sentence is inappropriate under Appellate Rule 7(B). In Reid v. State, the Indiana Supreme Court reiterated the standard by which our state appellate courts independently review criminal sentences:
Although a trial court may have acted within its lawful discretion in determining a sentence, Article VII, Sections 4 and 6 of the Indiana Constitution authorize independent appellate review and revision of a sentence through Indiana Appellate Rule 7(B), which provides that a 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. The burden is on the defendant to persuade us that his sentence is inappropriate.876 N.E.2d 1114, 1116 (Ind. 2007) (internal quotation and citations omitted).
The Court more recently stated that "sentencing is principally a discretionary function in which the trial court's judgment should receive considerable deference." Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). Indiana's flexible sentencing scheme allows trial courts to tailor an appropriate sentence to the circumstances presented. See id. at 1224. One purpose of appellate review is to attempt to "leaven the outliers." Id. at 1225. "Whether we regard a sentence as appropriate 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 factors that come to light in a given case." Id. at 1224.
Sparks was convicted of six counts of Child Molesting, as A felonies—two counts each for T.S., K.S., and B.S. Each count carries a sentencing range of between twenty and fifty years imprisonment, with an advisory sentence of thirty years, I.C. § 35-50-2-4; the trial court sentenced him to forty-five years imprisonment for each. Sparks was also convicted of a single count of Sexual Misconduct with a Minor, as a B felony, I.C. § 35-50-2-5, which carries a sentencing range of six to twenty years imprisonment, with an advisory sentence of ten years; the trial court sentenced Sparks to twenty years imprisonment. The Child Molesting sentences as to each sister individually were run concurrent with one another, with consecutive sentences imposed in recognition of the three separate victims. Sparks's sentence for Sexual Misconduct for a Minor was run concurrent with the Child Molestation sentences as to B.S. This yielded an aggregate sentence of 135 years.
With respect to the nature of Sparks's offenses, Sparks committed sexual offenses against his children, with whom he held a position of trust as a parent. What is more, Sparks molested adopted children who looked to him to provide the loving, united family of which they had been deprived for much of their lives. The crimes for which Sparks was convicted have as their threshold a victim age of fourteen years, see I.C. § 35-42-4-3 (as to Child Molestation), or a victim age between fourteen and sixteen years, see I.C. § 35-42-4-9(a)(1) (as to Sexual Misconduct with a Minor), but all three of Sparks's daughters were well below this age when Sparks first molested them. In 1997, which is the date of the earliest of the charges for which Sparks was convicted, B.S. was six or seven years old, K.S. was eight or nine years old, and T.S. was eleven or twelve years old.
Sparks contends that the injuries to T.S., K.S., and B.S. were not beyond those contemplated by the legislature in selecting an advisory sentence for his various offenses. During trial and sentencing, each daughter told of fear of sleeping alone, fear of the dark, fear and distrust of men generally, suspicion of any man around a young girl, inability to trust their spouses or boyfriends with their own children, and the loss of their adoptive family members. The sisters have also been forced to undergo therapy, homelessness, or living in shelters. Because their adoptive family largely disbelieves their testimony, the sisters have also lost contact with most members of their adoptive family. These facts do not weigh at all in Sparks's favor, and we cannot conclude that these were the kinds of injuries contemplated by the legislature when it provided for advisory sentences for Child Molesting and Sexual Misconduct with a Minor.
As to his character, Sparks has a long history of gainful employment, first as welder, and then as a school bus driver and school custodian. He was increasingly involved with his church over time, helped provide for his family, and worked to obtain a better education. He also testified at trial that he was too strict a parent.
None of this, however, so outweighs the nature of his offense as to make his sentence inappropriate.
Conclusion
The trial court did not err when it denied Sparks's motion for severance of the charges against him. Nor did it err when it denied his motion for a change of judge. Sparks's right to an open, public trial was not violated by the trial court's exclusion of the public from the courtroom during K.S.'s testimony. Finally, we conclude that Sparks's sentence is not inappropriate under Appellate Rule 7(B).
Affirmed. MATHIAS, J., and CRONE, J., concur.