Opinion
24A-CR-24
07-15-2024
Jason Walden, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Brian A. Karle Ball Eggleston, PC Lafayette, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Courtney Staton 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Clinton Circuit Court The Honorable Laura Zeman, Senior Judge Trial Court Cause No. 12C01-2008-F1-662
ATTORNEY FOR APPELLANT Brian A. Karle Ball Eggleston, PC Lafayette, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Courtney Staton Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Riley, Judge
STATEMENT OF THE CASE
[¶1] Appellant-Defendant, Jason Walden (Walden), appeals his sentence after remand and upon re-sentencing by the trial court for three Counts of child molesting, Level 1 felonies, Ind. Code § 35-42-4-3(a)(1); and two Counts of child molesting, Level 4 felonies, I.C. § 35-42-4-3(b).
[¶2] We affirm.
ISSUE
[¶3] Walden presents this court with one issue on appeal, which we restate as: Whether Walden's sentence is inappropriate in light of the nature of the offenses and his character.
For the recitation of these facts and procedural history, we rely in large part on our opinion in Walden v. State, 216 N.E.3d 1165, 1169-72 (Ind.Ct.App. 2023), trans. denied.
[¶4] In the spring and summer of 2020 when M.S. was nine years old, her parents were renovating a house in Mulberry, Indiana, and M.S. always accompanied her parents when they went to Mulberry to work on the house. When M.S.'s father needed help with some of the heavy lifting involved in the renovation, he called on Walden, one of the family's closest friends, who came to Mulberry on approximately ten occasions between April and July 2020. When M.S., her parents, and Walden were together in Mulberry to work on the house, Walden would find time to be alone with M.S. and would take M.S. to either the upstairs of the Mulberry home or to a detached garage and molest her. On those occasions, Walden placed his mouth on M.S.'s vagina, he placed his penis on M.S.'s mouth, and he placed his fingers in M.S.'s vagina. In addition, Walden placed M.S.'s hand on his penis to masturbate him, and he rubbed his penis on the outside of M.S.'s vagina. Walden threatened M.S. with harm if she told anyone about his offenses. On July 29, 2020, M.S. told her mother that Walden had been touching her inappropriately. The next day, M.S.'s parents alerted law enforcement, and on August 3, 2020, M.S. was forensically interviewed at the Hartford House where she reported that Walden had sexually molested her. M.S. was medically examined, but the molestation had left no physical traces of the offenses.
[¶5] On August 6, 2020, the State filed an Information, charging Walden with three Counts of Level 1 felony child molesting for performing or submitting to other sexual conduct with M.S. and with two Counts of Level 4 felony child molesting for performing or submitting to fondling M.S. On August 1, 2022, the trial court convened Walden's jury trial, at the close of which the jury found Walden guilty as charged. On September 6, 2022, the trial court held Walden's sentencing hearing. M.S.'s mother's victim's impact statement was read into the record. M.S. had told her mother that she had gone through a gender identity crisis, as "she wanted to be a male to stop things 'like this' from happening again in the future." (Tr. Vol. III, p. 85). M.S.'s father further testified that during family therapy he had learned that M.S. felt that he had "wanted her dead and gone" due to all the consequences of her reporting the offenses and the disruption it caused to their lives. (Tr. Vol. III, p. 89). During her in-person victim impact statement, M.S. told the trial court that Walden had started abusing her when she was six-and-a-half or seven years old and that "I felt like I needed to be a male because my body and myself felt as if, if I was a male, then this wouldn't happen to me anymore." (Tr. Vol. III, p. 90). M.S. reported having experienced depression, anxiety, and cutting herself to take away her sadness. After receiving all the evidence, the trial court sentenced Walden to thirty years for each of his three Level 1 felony child molesting convictions and to six years for both of his Level 4 felony child molesting convictions, all to be served consecutively, for an aggregate sentence of 102 years.
[¶6] Walden appealed his convictions and his sentence. Although we affirmed Walden's convictions on July 27, 2023, we concluded that the trial court had abused its discretion by relying on an improper aggravator. Reflecting that "we [we]re not convinced that [the trial court] would have ordered Walden to serve all his individual sentences consecutively if it had not considered this factor[,]" we remanded to the trial court for a new sentencing hearing. Walden v. State, 216 N.E.3d 1165, 1178 (Ind.Ct.App. 2023), trans. denied.
[¶7] On December 8, 2023, the trial court convened a sentencing hearing after receiving the cause upon remand. During the hearing, the trial court found the following aggravating circumstances: (1) M.S. was six years old when Walden began molesting her and the molestation was on-going until M.S. was nine years old, which the trial court found to be an "extremely tender age;" (2) Walden's criminal history; (3) Walden "[t]hreatened a child with harm if she reported what he had done to her;" (4) Walden "was in the position of care, custody and control" of M.S., and as M.S.'s father's best friend, "this had to have been the ultimate betrayal;" and (5) the harm, injury, loss, or damage suffered by M.S. was greater than necessary to prove the offenses, in that M.S. was still having difficulties dealing with her trauma, including resorting to selfharm, and was still in counseling. (Resentencing Transcript p. 5). The trial court imposed the advisory sentence of thirty years for each of Walden's three Level 1 felony child molesting convictions and the advisory sentence of six years for each of Walden's two Level 4 felony child molesting convictions, all to be served consecutively, for an aggregate sentence of 102 years.
[¶8] Walden now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[¶9] On appeal after remand, Walden contends that his sentence is inappropriate in light of the offenses and his character. Walden argues that his 102-year sentence is inappropriately harsh and asks that we order his five individual sentences to be served concurrently, rather than consecutively, for an aggregate term of thirty years. "Even when a trial court imposes a sentence within its discretion, the Indiana Constitution authorizes independent appellate review and revision of this sentencing decision." Hoak v. State, 113 N.E.3d 1209, 1209 (Ind. 2019). Thus, we may 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 offenses and the character of the offender. Id. Our review of a sentence under Appellate Rule 7(B) is not an act of second guessing the trial court's sentence; rather, "[o]ur posture on appeal is [ ] deferential" to the trial court. Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016) (citing Rice v. State, 6 N.E.3d 940, 946 (Ind. 2014)). We exercise our authority under Appellate Rule 7(B) only in "exceptional cases, and its exercise 'boils down to our collective sense of what is appropriate.'" Mullins v. State, 148 N.E.3d 986, 987 (Ind. 2020) (per curiam) (quoting Faith v. State, 131 N.E.3d 158, 160 (Ind. 2019)).
[¶10] "'The principal role of appellate review is to attempt to leaven the outliers.'" McCain v. State, 148 N.E.3d 977, 985 (Ind. 2020) (quoting Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)). The point is "not to achieve a perceived correct sentence." Id. "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. (quoting Cardwell, 895 N.E.2d at 1224). Deference to the trial court's sentence "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). The defendant bears the burden to persuade the reviewing court that the sentence imposed is inappropriate. Robinson v. State, 91 N.E.3d 574, 577 (Ind. 2018).
I. Nature of the Offenses
[¶11] When assessing the nature of an offense, the advisory sentence is the starting point that the legislature selected as an appropriate sentence for the particular crime committed. Perry v. State, 78 N.E.3d 1, 13 (Ind.Ct.App. 2017). Walden was convicted of three Level 1 felonies and two Level 4 felonies. A Level 1 felony child molesting offense carries a sentence between twenty years and fifty years with an advisory sentence of thirty years, whereas a Level 4 child molesting offense carries a sentence between two years and twelve years, with an advisory sentence of six years. I.C. §§ 35-50-2-4(c); -5.5. Walden received the advisory sentence in each of his five individual offenses, with the sentences to be run consecutively.
[¶12] Walden's main argument revolves around the aggregate nature of his sentence, contending that his 102-year sentence is inappropriate. Claiming that he "committed his offenses as part of [] a relatively short timeframe (April to June), on a limited number of occasions, against a single victim," Walden likens his case to two cases in which consecutive sentences for child molesting offenses were found to be inappropriate, Rivers v. State, 915 N.E.2d 141 (Ind. 2009), and Harris v. State, 897 N.E.2d 927 (Ind. 2008). (Appellant's Br. p. 11). Walden analogizes to these particular cases because each involved some circumstances present in his case, including a single victim, molestation occurring over a relatively short period of time, the absence of a significant criminal history, and the presence of steady employment.
[¶13] However, we find the recent case of Faith v. State, 131 N.E.3d 158 (Ind. 2019), to be more instructive. Faith was in a position of trust over his twelve-year-old victim as her teacher. Id. at 159. Faith subjected his victim to sexual intercourse, digital penetration, and oral sex on countless occasions. Id. Faith was ultimately charged with thirty-six Counts of child molesting, pleaded guilty to three Counts of Class A felony child molesting, and was sentenced to consecutive thirty-year terms. Id. This court revised his sentence to concurrent thirty-year terms. Id. On petition for transfer, our supreme court held that concurrent advisory terms were "wholly inadequate" for Faith's offenses. The court noted that Harris v. State, 897 N.E.2d 927 (Ind. 2008), cited by Faith, did not support his argument that sentence revision was necessary because he only inflicted his multiple offenses on one victim, as Harris involved enhanced, consecutive sentences, not the advisory, consecutive sentences imposed on Faith. Id. at 160. Our supreme court revised Faith's sentence to two consecutive, advisory terms, for an aggregate sentence of sixty years. Id.
[¶14] Here, as M.S. father's best friend, Walden was in a position of trust and was treated as a "revered uncle" or a "godfather" to M.S. (Tr. Vol. II, p. 104). In an act of "ultimate betrayal," Walden molested M.S. in five different ways during a relatively short period of time. He threatened to hurt her if she confided the abuse to anyone. As pointed out by the trial court, the abuse only ended because M.S. realized that Walden's actions were "really wrong" and that he "couldn't hurt" her even if she told her mother about the abuse. (Tr. Vol. II, p. 137). At nine years of age-an "extremely tender age"-M.S. was five years younger than the statutorily significant age of fourteen included within the child molesting statute. (Resent. Tr. p. 5); see I.C. § 35-42-4-3(a)(1); Sullivan v. State, 836 N.E.2d 1031, 1035 (Ind.Ct.App. 2005) (while victim's age was an element of child molesting, the fact that the victim was eight years old made the crime "more heinous"). Because M.S. was of a young age and this impactful abuse occurred in a short time frame, the five acts of molestation had a lasting effect on M.S.'s mental health. Not only was M.S. engaged in selfharm by cutting herself, she also began questioning her gender identity as a way of coping with the psychological harm Walden inflicted on her, wishing she was male because "then this wouldn't happen." (Tr. Vol. III, p. 90).
[¶15] Given these facts before us and in light of our supreme court's opinion in Faith, we find Walden's proposed thirty-year aggregate sentence for his offenses to be wholly inadequate, given his position of trust over M.S., the five different acts of child molestation, Walden's threats, her tender age, and the psychological impact of Walden's actions on M.S.'s mental health. As did our supreme court in Faith, we reject Walden's reliance on Harris, as well as his analogy to Rivers, as this case involves advisory, consecutive sentences and not the enhanced, consecutive sentences at issue in those cases.
[¶16] In an additional argument, Walden concedes that "[t]here is no question that [his] sex offenses are contemptible," but nevertheless advances that "the egregious nature of [] sex offenses was accounted for by the legislature when devising an extraordinarily harsh sentencing range for a Level 1 felony," and as the nature of the conduct giving rise to the convictions here is less egregious than the "typical" offense contemplated by the legislature, Walden renews his request for a sentence reduction. (Appellant's Br. p. 15). Again, we are not persuaded. While we find "crimes against children [to be] particularly contemptible," here, Walden committed five acts of molestation, only differing in the nature of the molest, against the daughter of his best friend, who considered him to be akin to a revered uncle or beloved godfather. Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). The relatively short time span of the molestations and her tender age exacerbated the impact of this abuse on M.S.'s mental health. Although the absence of excessive physical force or physical injury is certainly not an aggravating circumstance, neither does it always support sentence revision, as it is essentially a circumstance that helps perpetuate the molestation. See, e.g., Harris, 897 N.E.2d at 930 ("[T]he absence of physical harm to the victim is not an automatic mitigating circumstance barring an enhanced sentence.") Accordingly, we find nothing inappropriate in Walden's aggregate 102-year sentence under these facts, nor do we consider his sentence to be an outlier. See Cardwell, 895 N.E.2d at 1225 ("appellate review [of criminal sentences] should 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"); Ludack v. State, 967 N.E.2d 41, 49-50 (Ind.Ct.App. 2012) (refusing to revise a 130-year sentence on two Class A felony child molesting convictions of the same victim), trans. denied. Walden has failed in his burden to convince us that the nature of his offenses renders his sentence inappropriate. See Robinson, 91 N.E.3d at 577.
II. Character of the Offender
[¶17] Walden also urges us to revise his sentences in light of his character. Upon reviewing a sentence for inappropriateness, we look to a defendant's life and conduct as illustrative of his character. Morris v. State, 114 N.E.3d 531, 539 (Ind.Ct.App. 2018), trans. denied. Walden argues that his lack of criminal record and his steady employment merit concurrent sentences.
[¶18] The significance of a criminal history in assessing a defendant's character and an appropriate sentence vary based upon the gravity, nature, proximity, and number of prior offenses in relation to the current offense. Prince v. State, 148 N.E.3d 1171, 1174 (Ind.Ct.App. 2020). "Even a minor criminal history is a poor reflection of a defendant's character." Id. Walden's presentence investigation report revealed that Walden had been convicted of a Class A misdemeanor battery in 2000 and had violated probation twice. Although remote in time and not related in nature to the instant offense, any conviction is a poor reflection on the offender as it reveals that he "has not been deterred even after having been subject to the police authority of the State." Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005). With respect to employment, we have previously held that "most people are employed" and being employed in and of itself, does not warrant a lesser sentence. Jones v. State, 218 N.E.3d 3, 16 (Ind.Ct.App. 2023); Holmes v. State, 86 N.E.3d 394, 399 (Ind.Ct.App. 2017) (gainful employment is not necessarily a mitigating factor). While Walden's employment does reflect positively upon him and was of significant duration, we find nothing determinative in his employment that overrides the long-term effects of the molestation on M.S. and her family.
[¶19] Additionally, we find Walden's behavior during the re-sentencing hearing a telling example of his character. The trial court recounted the close nature of Walden's relationship with M.S.'s parents: Walden was the best man in their wedding, he went on vacations with the family, and yet "You did this knowing [M.S.'s] mother had been molested and the trauma that caused her mother." (Resent. Tr. p. 6). As the trial court then described the significant and continuing effects of trauma on M.S. as a result of Walden's crimes, Walden interrupted to insult the trial judge, stating, "You're unbelievable." Walden's disrespect toward the trial court and callous disregard of the trauma on M.S. and her family reflect poorly on his character. Grimes v. State, 84 N.E.3d 635, 645-46 (Ind.Ct.App. 2017) (affirming a 111-year sentence for child molesting, in part, because the defendant failed to "demonstrate any remorse whatsoever for what he did to his family."), trans. denied. We decline to revise Walden's sentence in light of his character.
CONCLUSION
[¶20] Based on the foregoing, we conclude that Walden's sentence is not inappropriate in light of the offenses and his character.
Affirmed.
Kenworthy, J. and Felix, J. concur.