Walter Small v. State of Indiana (mem. dec.)
79A02-1706-CR-1215
| Ind. Ct. App. | Nov 29, 2017Background
- In July 2015, 38-year-old Walter Small met 12-year-old S.B. at a park, pulled her into a bathroom stall, and had sexual intercourse with her while she struggled.
- S.B. reported the assault soon after; a sexual assault nurse found lacerations consistent with vaginal penetration.
- DNA testing matched Small to seminal material, vaginal swabs, S.B.’s underwear, and showed S.B.’s DNA on Small’s penis.
- Small initially lied to officers about his identity and repeatedly denied touching S.B.; after DNA results he offered changing explanations (including that S.B. forced herself on him).
- The State charged Small with Level 1 felony child molesting; a jury convicted him and the trial court sentenced him to 36 years (6 years above the 30-year advisory). The court relied on criminal history, victim’s age, and abuse of a position of trust as aggravators.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Detective Humphrey’s testimony that defendants often change stories after being confronted with incriminating DNA | Testimony was relevant to explain why Small gave varying accounts and not unduly prejudicial | Testimony was irrelevant and unfairly prejudicial, suggesting consciousness of guilt | Any error was harmless because independent, overwhelming evidence (victim testimony, multiple DNA matches) established intercourse |
| Whether victim’s age (under 14) may be used as an aggravator at sentencing | Age reflects particularly reprehensible circumstances surrounding this offense and supports enhancement | Age is an element of Level 1 child molesting and thus cannot be an aggravator | Even assuming error, other valid aggravators (criminal history; abuse of position of trust) independently support the enhanced sentence |
| Appropriateness of the 36-year sentence (App. R. 7(B)) | Sentence appropriate given betrayal of trust, injury to a minor, and defendant’s character (lies, prior convictions) | 36 years is excessive relative to defendant’s history and should be reduced | Court found the sentence not inappropriate after considering nature of offense and offender; affirmed |
Key Cases Cited
- Curley v. State, 777 N.E.2d 58 (Ind. Ct. App. 2002) (standard for reviewing admissibility of evidence)
- Goudy v. State, 689 N.E.2d 686 (Ind. 1997) (harmless error rule for evidentiary admission)
- Hughley v. State, 737 N.E.2d 420 (Ind. Ct. App. 2000) (overwhelming independent evidence renders evidentiary error harmless)
- Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007) (requirements and standard for sentencing statements and abuse-of-discretion review)
- Cardwell v. State, 895 N.E.2d 1219 (Ind. 2008) (Appellate Rule 7(B) factors for revising sentences)