*1 insulation finish glas") and the exterior ALTES, Appellant-Defendant, ("EIFS") James projects. for the Wur-
system that there were later received notice ster and notified systems these problems with Indiana, Appellee-Plaintiff. claims, STATE Amerisure of these but
Amerisure coverage. denied No. 49A02-0403-CR-262. declaratory an action for Wurster filed Appeals of Indiana. Court Amerisure, par- and the judgment against summary judgment. motions for ties filed March 2005. denying its order The trial court entered granting motion and Wur- Amerisure's 5,May 2005. Transfer Denied motion, appealed. and Amerisure ster's the trial court's appeal, we reversed
On summary judgment in favor of
entry of Co., Ince. and held Construction
Wurster
that, policy with under CGL Wurster's
Amerisure, coverage was no for the there
particular event issue. rehearing, contends that the
On Wurster opinion incorrectly represents
Court's concedes the fact that the Dens-
Wurster systems and EIF are defective. For
glas that,
clarification, pur- the Court states corresponding and the
poses appeal of this declaratory
underlying judgment action for
only, agree and Amerisure Wurster Dens-glas systems and EIF are defec- in dispute.
tive and that this fact is not Amerisure, in Inc. v.
This Court's decision Co., Inc. was not
Wurster Construction adjudication of facts
intended as a final alleged in the Dens-
regarding the defects way
glas systems and EIF and was no
intended to foreclose factual issues underlying dispute regarding the dam- Therefore,
age systems. grant of these Rehearing Petition for for the
Wurster's clarifying this issue and purpose
sole respects
all other affirm the Amerisure
opinion.
KIRSCH, C.J., CRONE, J., concur. *3 County, residence,
Marion Indiana. At his swimming pool, Altes maintained a basket- court, large ball sereen television for enjoy. his children to Several children neighborhood from the and his children's friends often visited Altes' home and fre- quently spent night. During these sleep-overs, the children would sleep on room, living blankets while Altes would. sleep on the couch though even he had separate own bedroom. In addition *4 Small, County De- Mark Marion Public visiting his Altes would take home, IN, Attorney Agency,Indianapolis, fender | children on trips park or to the Appellant. for airport, to watch the airplanes. Carter, Attorney Steve General of J.H., 1, 1988, May born on lived with her Indiana, Miklos, Kelly Attorney A. Deputy Hoyt father on frequently Avenue. She General, IN, Indianapolis, Attorneys | spent visited Altes' home and night Appellee. old, there. years When she was nine Altes
began treating girlfriend J.H. as his OPINION kissing her, lips, touching her on the tell- her, ing her that he loved and he RILEY, Judge. marry bought her. Altes J.H. wanted gifts, including a necklace depict, several OF THE STATEMENT CASE kissing angels two inscribed with ing "[to Appellant-Defendant, James Altes - - [J.H.], birthday, Jay." on her l1th Love. (Altes), I appeals his conviction for Counts 163). (Transcript p. Eventually, J.H.'s V, molesting, felony, A and child as a Class feelings changed toward Altes from consid- 35-42-4-3; II, III, § Ind.Code and Counts ering him thinking cool to that she loved IV, molesting, and child aas Class C felo- him. § ny, 1.C. 35-42-4-8. day, One when J.H. was around nine affirm. We old, years day again spending she was taking at Altes' As she residence. was ISSUES shower, Altes entered the bathroom with- appeal, Altes raises four on which issues undressed, invitation, joined out and J.H. and restate following consolidate as the got in the shower. he into When two issues: shower, rubbing Altes started his all hands presented Whetherthe State suffi- body, including over her and J.H.'s breasts cient evidence to sustain Altes' con- vagina. victions for Sometime when J.H. was eleven properly Whether old, years visiting was Altes' home J.H. light Blakely sentenced Altes in watching daugh- television with Altes' Washington. daughter ter in his bedroom. When bedroom, left the Altes entered the room AND
FACTS PROCEDURAL HISTORY . and locked the door behind him. He first him- undressed J.H. and then undressed Altes, 15, 1960, born on October lived Hoyt with his four children on Avenue self. After he rubbed his hands all over later, hand underneath her he moved his lips, her on the body and kissed J.H.'s stopped got up when M.D. vagina. clothes. Altes penis inside her inserted his Altes and told her that he to use the bathroom. threatened J.H. anyone. if told come after her she would 7, 1989, A.B., was born December mom, who is August J.H.'s visited Altes years old when she seven dad, living in from was stayed divorced J.H.'s During one visit she residence. time, living room floor Lebanon, overnight, sleeping on the At J.H.'s Indiana. driv- about Altes parents argument had an slept while Altes on the with other children mother without her to visit her ing J.H. During night, Altes moved couch. talked to they After permission. father's slipped next to A.B. Altes from the couch Altes, him that he informed parents J.H.'s put her clothes and hand underneath his The daughter. could see their longer no As A.B. finger vagina. inside her several day, mother received next J.H.'s a love- away from him and towards moved Altes, why inquiring he calls from phone back, seat, told her to come which with J.H. Sev- longer spend no could time refused to do. she later, mother noticed J.H.'s eral weekends 28, 2002, the filed an On October State home, of Altes' posters two the windows I, information, Count charging Altes with *5 "I you, "I and miss stating [J.H.]J" love J.H., felony A molesting of as a Class child 280). (Tr. p. you, [J.H.]." J.H., II, molesting child of as a and Count 6, 1988, 1999, H.B., on March In born 7, 2002, felony. On November Class C Hoyt a on with her mother to home moved 26, 2004, amended January the State and summer, HB. was That when Avenue. III, child by adding information Count the old, overnight at years stayed she eleven M.D., felony; molesting of as a Class C the couch lying home. H.B. was on Altes' H.B., IV, a molesting child of as Count sleeping on the other children were while V, child molest- felony; C and Count Class During night, living floor of the room. A.B., felony. On ing of as a Class A couch, Altes, sitting next to her on 28, 2004, a January through January massage, give if he could her a foot asked of the jury trial held. At the close was started to she consented. Altes which trial, guilty of returned a verdict hand, rubbing her feet with his and then February Subsequently, all on on Counts. legs couple for a continued to rub her 20, hearing was held. 2004 a Thereafter, Altes moved his minutes. - hearing, the trial court At the end of and underneath H.B.'s underwear hand forty years Altes to with ten sentenced rubbing her bare bottom. started years suspended years probation and five I, II, years four on Count four on Count 1991, M.D., 5, lived with April born on III, years years four on Count Hoyt and uncle on Avenue. One Count her aunt V, 2001, IV, thirty years M.D. and on Count evening during the summer of consecutively. and to run night at Altes' home. M.D. sentences spent daughter lying were on cushions on Additional facts will appeals. Altes now television, living watching room floor necessary. as provided be couch. At lying Altes was on the while Altes moved onto the floor and point, some AND DISCUSSION DECISION M.D., lying on laid down behind who was Sufficiency I. the Evidence side, her. put and his arm around her the evidence body with Altes first contends that rubbing upper started her sup- to at trial was insufficient presented but, hand, top of her clothes first on Specifically, person, Altes ar- commits child a port molesting, his conviction. Class felony. (1) C prove failed to the State gues rubbing
beyond a reasonable doubt
Thus,
Altes,
in order to convict
the State
to arouse or
H.B.'s bottom was intended
required
prove
was
that Altes touched
desires;
failed
satisfy sexual
State
H.B. and M.D. with the intent to arouse or
a reasonable doubt
prove
satisfy the child's or his sexual desires.
rubbing
upper body
M.D.'s
was intended
argument
Altes' sole
relates to
desires;
satisfy
or
sexual
to arouse
charge.
the intent element of the
The
testimony
incredibly dubious.
J.H.'s
may
element of intent for child molesting
A. Standard
Review
be established
cireumstantial evidence
standard
of review
Our
from
and inferred
the actor's conduct and
sufficiency of the evidence claim is well-
sequence
the natural and usual
to which
reviewing sufficiency
of the
settled.
State,
usually points.
such conduct
Kirk v.
claims,
reweigh
evidence
we will not
837,
(Ind.Ct.App.2003),
credibility
or assess the
of the
evidence
denied,
reh'g
trans. denied.
It is reason
State,
1025,
witnesses.
v.
774 N.E.2d
Cox
a jury
touching
able for
to infer that the
(Ind.Ct.App.2002).
will con
1028-29
We
did occur and that
the intent did exist
only
sider
the evidence most favorable to without a
showing
direct
of both elements.
judgment, together
with all reasonable
(Ind.
State,
758,
v.
Winters
727 N.E.2d
logical
inferences to be drawn there Ct.App.2000),trans. denied.
Alspach
from.
case,
In the instant
H.B. testified that
(Ind.Ct.App.2001),
trans. denied. The
the summer of
when she was eleven
if
conviction will be affirmed
there is sub
*6
old,
years
spent
night
she
at Altes
probative
stantial evidence of
value to
during
residence. The record shows that
support the conviction of the trier-of-fact.
nighttime,
sitting
living
she was
on the
Cox,
A judgment
[a] trams. because inner (14) years age, performs thigh proximity genitals, fourteen or is in close zone, fondling touching, erogenous may submits or an it itself be the Thus, child person, gratification. either the or the older with source of sexual even satisfy though intent to arouse or to the sexual H.B. now testified that Altes bottom, desires of either the child or the older touched her bare a factfinder 1122 intent girls touched the with the touching is that Altes reasonably infer that this
could
satisfy
girls'
his or the
sexual
to to arouse or
genitals as
enough
close
to the female
Consequently,
con-
See id.
we
desires.
gratifica-
sexual
the source of
constitute
that there is substantial evidence
clude
Further,
intent
since the
tion. See id.
judgment of
support
value to
probative
from the natural
may
element
be inferred
Cox,
at
defen-
trial court. See
774 N.E.2d
sequence to which the
and usual
Thus,
hold that
the State
1028-29.
we conclude
usually points,
conduct
dant's
support
evidence to
presented sufficient
reasonably decide that
that the
could
molesting of H.B.
Altes' conviction for the
his in-
geared
conduct was
towards
and M.D.
satisfy his or H.B.'s
to arouse or
tent
Kirk,
35-42-4-8;
Dubiosity
Incredible
Rule
§
see
C. -
sexual desire.
IC.
With
al
night during
incredibly
Specifically,
dence establishes that one
dubious.
2000,
of events is inher
lying
leges
was
on her
that J.H.'s version
summer of
M.D.
given
presence
of oth
living
ently
room
incredible
on some cushions on the
side
the house at the time of
house,
er children around
watching television.
floor of Altes'
the incredible
the molestations. Under
point,
Altes moved
She stated that
some
rule,
impinge
on the
dubiosity
a
will
got
couch and
down behind her.
from the
jury's responsibility
judge
the eredibili
Altes,
laid his
continued that
after he
M.D.
only
it is confronted
ty of the witness
when
her,
upper
her
rubbing
arm around
started
inherently improbable testimony or
clothes,
he
body, initially over her
but then
coerced, equivocal, wholly uncorroborated
shirt,
hand underneath her
moved his
testimony
dubiosity.
of incredible
White
down
touching her skin from her shoulders
(Ind.1999)
State,
1078,
v.
706 N.E.2d
State,
v.
to her waist.
Pedrick
221,
State,
Tillman v.
(quoting
(Ind.Ct.App.1992), reh'g
N.E.2d
(Ind.1994));
Stephenson
denied,
found that
the intent element
(Ind.2001),
cert. denied.
arm
put
where a defendant
satisfied
inherently
presents
a sole witness
"When
of a child and let his
around the shoulder
improbable testimony and there is
com
breast, and
hang, touching
hand
her
where
*7
evidence,
circumstantial
a de
plete lack of
placed
he
his hand on the shoulder
may be reversed."
fendant's conviction
on her breast.
another child and then
White,
However,
Therefore, In Altes claims jury particular, could child witnesses. we find the testimony concentrates on two reasonably that Altes molested both that J.H.'s decide § of child molestation that oc M.D. See 35-42-4-8. As instances H.B. and I.C. above, daytime the when there clearly supports during curred shown the record
1123
visiting
the
2001).
a lot of other children
however,
were
Blakely,
the United
maintains,
Therefore,
Supreme
he
Altes' residence.
States
Court held that the Sixth
testimony must be unbelievable be
requires
jury
her
Amendment
to determine
the other children ever testi
beyond
cause none of
a reasonable doubt the existence of
for a
disappeared
fied that J.H. and Altes
aggravating factors used to increase the
Nevertheless,
significant period of time.
sentence for a
presump
crime above the
dubiosity rule to be
we find the incredible
assigned by
legislature.
tive sentence
the
--
previously clari
inapplicable. As we have
--,
Blakely,
U.S. at
124
S.Ct
fied,
testimony
for
the standard
dubious
Specifically,
2536.
Supreme
Court
contradiction,
not contradiction
inherent
held that
than the fact
prior
"[olther
of a
White,
testimony.
between witnesses'
See
conviction, any fact that
pen
increases the
II. words, statutory the relevant maximum is Next, Altes asserts that court's judge may not the maximum sentence a imposition of an enhanced sentence vio- facts, impose finding after additional but -- Blakely Washington, lates U.S. may impose the maximum he without §.Ct. --, LEd.2d findings." (emphasis orig additional Id. (2004), reh'g Specifically, denied. inal). Furthermore, are convinced contends that the trial court erred en- Supreme opinion Court's recent aggravators hancing his sentence based on Booker, --, United States v. 543 U.S. supported by jury findings. which were not , 738, 746-56, 125 S.Ct. Conversely, State maintains (2005) (Stevens, J., writing L.Ed.2d 621 Indiana's scheme differs from Court) Blakely not alter rule does Blakely the one struck down in and that it applies as it now in Indiana. As Justice does not run afoul of the therefore Sixth (other "[alny fact than a espoused, Stevens Alternatively, Amendment. the State - conviction) prior necessary sup which is *8 that, if Blakely apply, claims even should port exceeding a sentence the maximum any error this case is harmless a by by authorized the facts established a reasonable doubt. guilty jury of a verdict plea or must be Blakely Washington A. v. by by proved admitted the defendant or a Id., jury beyond a reasonable doubt." 125 ap
The determination of the at 756. This statement is reinforced S.Ct. sentence rests within the discre propriate that, by Breyer writing "the Court Justice tion of the trial court and we will not holds that ... the Sixth Amendment re reverse the trial court's determination ab juries, judges not to find facts rele showing quires sent a of manifest abuse. Powell Id., State, 311, 125 at 757. (Ind.Ct.App. sentencing." v. 751 N.E.2d 314 vant to S.Ct. 1124 were not by aggravators enhanced which concluded in Krebs v.
Accordingly, we case, State, 469, (Ind.Ct.App. by jury. In the instant 816 N.E.2d found 2004), trial courts appeared forty years it that our that trial court sentenced Altes to a to sentence longer no have discretion years years suspended and five with ten pre- to more than the criminal defendant I, felony; A probation on Count a Class the defendant sumptive sentence unless II, felony; a years four on Count Class C jury sentencing, a right to a waives III, felony; years on a Class C four Count ag- of jury determines the existence first IV, felony; a years four on Count Class C factors, or the defendant has a gravating V, A thirty years on Count a Class history. criminal felony, consecutively. to run with sentences Sentencing B. Scheme Indiana's provides 35-50-2-4 Indiana Code section commits a Class A person that who "[a] main- argument, As its main the State a felony imprisoned shall be for fixed term apply not Blakely tains that does (80) thirty years, with not more than of particu- In Indiana's scheme. (20) years aggravating added for circum- lar, Blakely does not alleges the State jury findings under Indiana's sen- or not more than ten subtract- require stances mitigating ed for cireumstances." Pursu- presumptive a tencing scheme because - merely guidepost a which en- 35-50-2-6, sentence is section "[a] ant to Indiana Code appropri- an impose felony ables the trial court to a person who commits Class C shall not ate sentence. are convinced. We imprisoned for a fixed term of four be (4) years than four years, with not more recently held because We circumstances, or aggravating added for presence single aggrava of a Indiana the (2) years than not more two subtracted may lead to an enhanced ting circumstance Accordingly, mitigating circumstances." - i.e., sentence, greater pre than the one pre- trial court sentenced Altes to the sentence, presumptive sen sumptive Counts, sumptive sentence for all with ex- Blakely's statutory maxi equates tence ception of Count I which was enhanced State, v. N.E.2d Strong mum. See year suspended a ten sentence based on 256, (Ind.Ct.App.2004); Holden finding aggravating of factors. (Ind.Ct. 1049, State, 1059 n. 6 State, App.2004); Berry v. 819 N.E.2d First, disputes imposition new, Based on this (Ind.Ct.App.2004). consecutive sentences as violative of Blake law, reject case the State's established ty. disagree. opinion In our recent We presumptive sentence assertion (Ind. State, Cowens v. 817 N.E.2d sentencing guidepost. functions as a Con Blakely Ct.App.2004), we concluded that decisions, hold prior sistent our trial implicated not situations where the Blakely prohibits our trial courts from imposes court consecutive sentences. See imposing greater pre a sentence than the 1279, n. 1 also Bell v. on a factor not admitted sumptive based 2005). (Ind.Ct.App. defendant, by the or submitted proven beyond Next, reasonable doubt. we have to determine whether I violates the enhanced sentence Count Aggravating C. Circumstances holding.1 enhancing Blakely sen tence, following found the contends that the trial court erred *9 (1) sentences, Altes was sentencing significant aggravators: in him to consecutive Blakely holding Accordingly, the is not II-V. recognize We the trial court sentenced 1. that implicated on these Counts. presumptive sentence on Counts (2) offense, Blakely's a likely language to commit future clear that than "[olther more conviction, prior (8) the fact of a any fact that existed, and vio multiple victims Altes' of trust the position lation of the penalty increases the for a erime parents. During their the statutory children and the maximum must be submitted hearing, the trial court enumer sentencing jury a proved beyond to and a reasonable cireum- following mitigating ated the doubt," we find that aggravator the of multiple prior lack of eriminal properly victims was submitted to stances: and history, provided and Altes cared jury proven beyond the and a reasonable assigned The trial court for his children. by jury's the guilty doubt verdict on all weight mitigator to the first substantial Counts. See id. weight minimal to the second. and Lastly, argues ag the law, Based on our established case gravating factor of Altes' violation of his generalized aggra- we find the trial court's position of trust with the children and relating possible vator to Altes' future parents their improper light of Blake criminal conduct to be in of violation above, ty. agree. We As we stated a fact
Blakety. previously, As we have held a that is not on history, based Altes' criminal of a court's assessment defendant's by jury, not found a by or not admitted properly future criminal behavior can be Altes, by but used the trial court to en juve adult or upon based the defendant's sentence, hance a Blakely runs afoul of the See, history. e.g., criminal nile Bledsoe Here, requirements. the record is devoid State, 507, (Ind.Ct.App. justify evidence that would the find 2004), opimion reh'g. on Since the instant ing particular aggravator. of this conviction, case is Altes' first the trial regarding his speculation possible court's Nonetheless, if one or more abiding lack of behavior cannot future law aggravating by tri cireumstances cited past be derived from his criminal conduct al court are found appeal, invalid on thus, aggravator and is an which should remaining must next decide whether the jury. have Blakely, been found See circumstance or circumstances are suffi -- --, Here, at 2536. U.S. S.Ct. support imposed. cient the sentence jury the record shows that did not State, See Patrick v. 819 N.E.2d finding. a make such (Ind.Ct.App.2004). explained As we (Ind. Means v. However, conclude App.2004), Ct. trams. denied: jury properly found the existence of the aggravating multiple aggravating circumstance of vie- Even one cireum- valid information, charging support tims. In its stance is sufficient to an en- specifically State listed the victims of each hancement of a sentence. When In particular, improperly applies Count of child molestation. an aggravating but other val- circumstance II; J.H. was the victim of I Counts exist, aggravating id circumstances a III; IV; M.D. of Count H.B. of Count may up- still sentence enhancement be By A.B. was victim Count V. re questing charging ag- to vote on this held. This occurs when the invalid information, relatively gravator played unimportant the State submitted the fact a It multiple jury. victims to the is clear role the trial court's decision. When jury, by identify a returning guilty reviewing verdict court "can sufficient Counts, all properly considered this fact aggravating persuade cireumstances Therefore, justified. it have entered given and found it the trial court would *10 the im- ROBB, J., even absent part the same sentence concurs in and concurs factor, affirm the permissible separate opinion. it should in part in result with a review- trial court's decision." When say confidence ing court "cannot with ROBB, Judge, part in and con- concurs aggravators impermissible that part separate opin- in curs result result, it have led to the same
would ion. re-sentencing by the should remand for sentencing trial court or correct majority's I concur in the resolution appeal." issue, sufficiency respectfully but con- Here, aggrava- valid we identified one sentencing only cur in result as to the multiple victims. tor: the existence of issue. sentencing hearing the trial During its majority "Blakely concludes that The this factor to explicitly court determined imposing a prohibits our trial courts from The trial significant aggravator. be greater presumptive than the sentence mitigators: court also found two not based on a factor admitted history, which was prior lack of eriminal defendant, jury and or submitted to the weight, assigned substantial provided cared and for his Op. fact a reasonable doubt." proven Furthermore, previously set are mindful at 1124. For the reasons children. only enhanced Altes' my concurring opinion forth in in result I, felony, A for Count a Class sentence (Ind.Ct. Abney v. presumptive him while to the 2005), disagree Blakely I so App., of child mo- sentence on the other Counts exercising Indiana courts from prohibits Therefore, lesting. given the trial court's sentencing discretion. I would not their remaining ag- assigned importance im- aggravators find of the therefore against the two mit- gravator and balanced Blakely and would af- proper because the trial igators, we refuse to hold however, If, ag- firm the sentence. imposed have a different sen- court would improper found to be gravators were Therefore, we find that tence. See id. Blakely, agree than I would reasons other by imposing an the trial court did not err majority's with the conclusion that According- I. enhanced sentence on Count aggravator is suffi- multiple victim alone ly, position in a to revise Altes' we are not I support client to Altes' sentence. there- appeal. sentence on majority's result affirm- fore concur ing Altes' sentence. CONCLUSION find that the foregoing, Based on the to sus- presented sufficient evidence
State molesting
tain for child Altes' convictions properly
and that the trial court sentenced
Altes.
Affirmed.
CRONE, J., concurs.