Opinion
No. 69A04-1012-CR-803
08-12-2011
ROBERT THOMAS, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT : LEANNA WEISSMANN Lawrenceburg, Indiana ATTORNEYS FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana RICHARD C. WEBSTER 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:
LEANNA WEISSMANN
Lawrenceburg, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE RIPLEY CIRCUIT COURT
The Honorable Carl H. Taul, Judge
Cause No. 69C01-0905-FB-9
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
Robert Thomas appeals his conviction of and sentence for Class B felony sexual misconduct with a minor. He argues the trial court erred in admitting his confession because it was involuntarily. He asserts his sentence is inappropriate based on his character and the nature of the offense. We affirm.
Ind. Code § 35-42-4-9(a)(1).
FACTS AND PROCEDURAL HISTORY
In April 2009, J.A was living with his wife, his step-daughter S.H., and his daughter K.A. Around that time, J.A. permitted Thomas to stay at his family's home for approximately three weeks. During that time, Thomas and fifteen-year-old S.H. engaged in various sexual acts without the knowledge of J.A. or his wife. At some point while Thomas was at J.A.'s house, J.A. noticed Thomas and S.H. were sitting very close together on the couch. He questioned Thomas and S.H. about the behavior, and they "acted like it wasn't anything." (Tr. at 231.)
A few days later, J.A. asked his daughter K.A. if she had observed S.H. and Thomas engaged in inappropriate behavior. K.A. indicated she saw S.H. and Thomas kiss. J.A. confronted Thomas about K.A.'s observation, and Thomas attempted to justify his behavior.
The State charged Thomas with Class B felony sexual misconduct with a minor. A jury found him guilty, and the trial court sentenced him to sixteen years incarcerated.
DISCUSSION AND DECISION
1. Admissibility of Thomas' Confession
Admissibility of evidence falls within the discretion of the trial court, and we will reverse its decision only on abuse of that discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before it. Id. In determining admissibility of evidence, we consider only the evidence in favor of the trial court's ruling and the unrefuted evidence in the defendant's favor. Sallee v. State, 777 N.E.2d 1204, 1210 (Ind. Ct. App. 2002). We affirm on any legal basis apparent from the record. Lampitok v. State, 817 N.E.2d 630, 639 (Ind. Ct. App. 2004), reh'g denied, trans. denied.
Thomas claims his confession was involuntary, "as it was procured through false statements and trickery." (Br. of Appellant at 4.) When a defendant challenges the admission of a confession, the State must demonstrate beyond a reasonable doubt the statement was voluntary. Jackson v. State, 735 N.E.2d 1146, 1153 (Ind. 2000). The admissibility of a confession is determined based on the totality of the circumstances, including whether the confession was given voluntarily and not through inducement, violence, threats, or other improper influences. Massey v. State, 473N.E.2d 146, 147 (Ind. 1985). On review of the trial court's decision, we do not reweigh the evidence. Id.
Thomas claims the investigating officer, Officer Hegge, "implied leniency and suggested it would be okay if S.H. initiated [the sexual intercourse]." (Br. of Appellant at 3.) He asserts Officer Hegge suggested leniency when he said:
If something happened, now's the time to clear it up. And I'll put it in my report and send it to the prosecutor's office, you know, this is the way it went down. You know, it was once, and six (6) times or it was you know, this not that. And straightforward versus dealing with forensics.(Tr. at 181.)
Thomas likens his case to Ashby v. State, 265 Ind. 316, 317, 354 N.E.2d 192, 193 (1976), in which our Indiana Supreme Court held Ashby's confession involuntary because the investigating officer told him he would be "eligible for parole in something like 7 ½ or 8 years." Id. That holding was based on the facts the officer did not have the authority to make a deal regarding sentencing, the State did not give Ashby a plea agreement opportunity, and then Ashby's confession was used against him at trial.
However, Thomas' situation is not like Ashby's because Officer Hegge did not offer a plea agreement or suggest Thomas might obtain a lesser sentence in exchange for his confession. In fact, Thomas admits "It's true Heege [sic] didn't go so far as to promise Thomas an outcome were he to confess." (Br. of Appellant at 6.) Thus we find Ashby inopposite. Officer Hegge's suggestion that Thomas should tell the truth and dispense with the need for forensic testing did not render Thomas' confession involuntary.
Thomas also asserts Officer Hegge suggested sexual intercourse with S.H. was not a crime based on two statements the officer made during Thomas' interrogation:
. . . the only thing that I need to figure out was, you know, what am I dealing with here? You know. Is this guy, you know, maybe crashed on the couch and this fifteen year old with some massive hormones came cruisin' by and she kind of instigated something . . . or am I dealing with somebody that kind of moved in and, and raped a fifteen (15) year old.(Tr. at 172.)
What I need to find out is, if this is, this fifteen (15) year old girl with some, some steaming hormones and some intentions . . . you know and, and you're kind of hanging out on the couch, maybe had a few, you know, cold beers . . . And maybe something accidentally happened because that kind of, that shit happens. . . . You know or was there some sort of a[n] evil thought on, on your part that . . . to get rid of aggressions and you made the advances. . . . And you talking [sic] her pants off of her. And I mean if she talked [sic] your pants off of you, you know, that's you know, a little bit of a different story.(Id. at 178-79.)
Thomas argues his case is similar to McGhee v. State, 899 N.E.2d 35 (Ind. Ct. App. 2008), reh'g denied, trans. denied, in which we held McGhee's confession was involuntary because the investigating officer told him, "it's embarrassing sometimes for an uncle to have sex with his niece, but it not against the law if she wanted it." Id. at 37. We disagree.
In McGhee, the investigating officer made a false statement about whether an act was illegal, which led McGhee to confess to committing that illegal act. In contrast, at no point did Officer Hegge indicate participating in sexual acts with a fifteen-year-old girl was not a crime. Thus, we need not follow McGhee. Based on the totality of the circumstances, we hold Thomas' confession was voluntary. Officer Hegge did not indicate sexual intercourse with fifteen-year-old S.H. might not be a crime, as did the officer in McGhee, nor did Officer Hegge tell Thomas he would receive leniency for his confession, as did the officer in Ashby. Therefore, the trial court did not abuse its discretion when it admitted Thomas' confession over his objection.
2. Appropriateness of Sentence
We may revise a sentence if it is inappropriate in light of the nature of the offense and the character of the offender. Williams v. State, 891 N.E. 2d 621, 633 (Ind. Ct. App. 2008) (citing Ind. Appellate Rule 7(B)). We consider not only the aggravators and mitigators found by the trial court, but also any other factors appearing in the record. Roney v. State, 872 N.E.2d 192, 206 (Ind. Ct. App. 2007), trans. denied. The appellant bears the burden of demonstrating his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
When considering the nature of the offense, the advisory sentence is the starting point to determine the appropriateness of a sentence. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh'g 878 N.E.2d 218 (Ind. 2007). The advisory sentence for a Class B felony is ten years, with a range of six to twenty years. Ind. Code § 35-50-2-5. One factor we consider when determining the appropriateness of a deviation from the advisory sentence 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. Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App. 2008), trans. denied.
Thomas argues his crime was not sufficiently egregious to warrant a sentence greater than the advisory; he claims S.H. initiated the sexual contact, so she did not suffer "the type of harm usually expected of this crime." (Br. of Appellant at 19.) We disagree. Thomas admitted to having sexual intercourse multiple times with a fifteen-year-old girl and to allowing her to perform oral sex on him. Thomas was acquainted with the girl by virtue of her stepfather's charity, in that he allowed Thomas to stay at his home when Thomas was homeless. Such a betrayal of trust and friendship makes Thomas' crime more egregious. See Ware v. State, 816 N.E.2d 1167, 1179 (Ind. Ct. App. 2004) (engaging in sexual acts with minor child of friends betrayed trust and friendship with parents).
When considering the character of the offender, one relevant fact is the defendant's criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The significance of criminal history varies based on the gravity, nature, and number of prior offenses in relation to the current offense. Id. Thomas' criminal history includes convictions of Class B felony robbery, Class D felony theft, Class C felony forgery, and Class A misdemeanor operating a vehicle while license suspended. Thomas was on probation for the forgery conviction at the time of the instant offense. Even though his prior convictions are not for crimes similar to that in the instant case, his multiple convictions and violation of probation reflect poorly on his character.
Based on Thomas' character and the nature of his offense, we do not find his sentence of sixteen years inappropriate, and we affirm the sentence.
CONCLUSION
The trial court did not abuse its discretion when it admitted Thomas' confession over objection because the officer's statements did not render his confession involuntary. Thomas' sixteen-year sentence is appropriate based on his character and the nature of his offense. Accordingly, we affirm.
Affirmed.
BAKER, J., and BRADFORD, J., concur.