Jeffery Allen Hmurovic, Sr. v. State of Indiana (mem. dec.)
2015 Ind. App. LEXIS 722
| Ind. Ct. App. | 2015Background
- Victim E.H., born Sept. 19, 1987, lived with parents and has a learning disability; she began a sexual relationship with her father, Jeffery Hmurovic, Sr., while living at the Maple Street residence and it continued into adulthood.
- E.H. gave birth on March 9, 2014; DNA confirmed Hmurovic was the father.
- Hmurovic initially denied, then admitted to an extended sexual relationship with E.H.; he was uncertain when it began but referenced the Maple Street home and possibly the period after junior high.
- State charged four counts: acquitted on class A child molesting (Count I), convicted on class B sexual misconduct with a minor (Count II), class B incest (Count III), and class C incest (Count IV); Counts II and III were merged at sentencing.
- Trial evidence about the age when intercourse began was equivocal: E.H. could not recall exact age (variously referencing 13, 15–16, junior high, and “about 12 years” of abuse), and a hospital social worker’s statement that E.H. said the abuse lasted 12 years was admitted only for impeachment.
- Trial court sentenced Hmurovic to consecutive 15-year (Count II) and 6-year (Count IV) terms (21 years aggregate). On appeal, Hmurovic challenged sufficiency of evidence for Count II (age element) and his aggregate sentence; the court reversed Count II and remanded for resentencing on remaining conviction(s).
Issues
| Issue | State's Argument | Hmurovic's Argument | Held |
|---|---|---|---|
| Whether sufficient evidence proved E.H. was 14–15 when intercourse began (element of class B sexual misconduct) | Testimony and admissions place the onset in junior high/Maple residence, and a hospital social worker reported E.H. said the abuse had continued 12 years (implying onset at ~15). | Evidence was equivocal; victim and defendant could not definitively place onset between ages 14–15. Impeachment-only statement cannot be used substantively. | Reversed conviction for Count II for failure to prove the age element beyond a reasonable doubt; remanded to vacate Count II and permit resentencing on remaining count(s). |
Key Cases Cited
- Staton v. State, 853 N.E.2d 470 (Ind. 2006) (standard for reviewing sufficiency of evidence and use of circumstantial testimonial evidence)
- Adcock v. State, 22 N.E.3d 720 (Ind. Ct. App. 2014) (insufficient proof of victim age where testimony only placed abuse during junior high)
- Lawrence v. State, 959 N.E.2d 385 (Ind. Ct. App. 2012) (evidence admitted solely for impeachment may not be used substantively)
- Sanjari v. State, 981 N.E.2d 578 (Ind. Ct. App. 2013) (trial court has flexibility to adjust individual sentences on remand so long as aggregate sentence does not exceed original)