Andrеw STETLER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
No. 01A04-1201-CR-1
Court of Appeals of Indiana
Aug. 14, 2012
In the eight months leading up to the termination hearing, Mother‘s only misstep was the new charge of driving while suspended in March 2011. However, Mother was sanctioned through the drug court and will face no additional cоnsequences as long as she completes the program. When a parent has been involved with drugs or an abusive relationship, there will always be concern about relapse. However, this is not a case where the parent‘s progress has been inconsistent or last-minute. We do not feel that it is necessary to speculate about Mother‘s potential for relapse. There are no longer any immediate concerns about her ability to parent the twins, and her ability to cope with the added responsibility can be quickly assessed without substantial risk of harm to the twins. See H.G. v. Ind. Dep‘t of Child Services, 959 N.E.2d 272, 291-92 (Ind.Ct.App.2011) (reversing termination of incarcerated mother‘s parental rights where she had been involved in her children‘s cases, had a bond with the children, had maintained contact with the children, attempted to have the children placed with relatives, had taken advantage of self-improvement opportunities while incarcerated, was soon to be released, and her ability to parent could be quickly assessed after her release), trans. denied (2012). We acknowledge that this will cause some disruption in the twins’ lives; however, by all accounts, they have a loving relationship with their Mother, and termination could also be a source of disruption in their lives. “It is well established that the involuntary termination of parental rights is an extreme measure that is designed to be used as a last resort when all other reasonable efforts have failed.” In re C.G., 954 N.E.2d 910, 916 (Ind.2011). We conclude that DCS failed to meet its statutory burden of proving that the conditions that resulted in the child‘s removal or the reasons for placement outside the home of the parents will not be remedied; therefore we reverse.
Reversed.
RILEY, J., and BAILEY, J., concur.
Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
OPINION
ROBB, Chief Judge.
Case Summary and Issues
Following a jury trial, Andrew Stetler was found guilty of two counts of child molesting, both Class A felonies, and admitted to being an habitual offender. He was sentenced to a total of ninety years. Stetler raises two issues for our review: whether the evidence presented was sufficient to sustain one of Stetler‘s convictions for child molesting, and whether Stetler‘s ninety-yеar aggregate sentence is inappropriate in light of the nature of the offenses and Stetler‘s character. Concluding that sufficient evidence was presented and the sentence is not inappropriate, we affirm.
Facts and Procedural History
In July of 2010, Stetler attended a campfire in nine-year-old S.G.L.‘s backyard. S.G.L.‘s seven-year-old friend, K.H., wаs also present. During the campfire, K.H. decided to walk to her home next
A jury found Stetler guilty of one count of Class A felony child molesting as to each K.H. and S.G.L. Stetler then admitted to being an habitual offender. The trial court sentenced him to thirty years for each conviction, with one sentence enhanced by thirty years for the habitual offender finding. The sentences were ordered to be served consecutively, for a total sentence of ninety years. Stetler now appeals.
Discussion and Decision
I. Sufficiency of the Evidence
A. Standard of Review
Our standard of reviewing claims of sufficiency of the evidence is well settled: an appellate court neither judges the credibility of witnesses nor reweighs the evidence. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We consider only the probative evidence and reasonable inferences supporting the verdict and consider conflicting evidence most favorable to the verdict. Boggs v. State, 928 N.E.2d 855, 864 (Ind. Ct.App.2010), trans. denied. We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id. That is, the verdict will not be disturbed if there is sufficient evidence of probative value to support the conclusion of the trier of fact. Boyer v. State, 883 N.E.2d 158, 162 (Ind.App.2008).
B. Evidence of Penetration
Stetler challenges only the sufficiency of the evidence supporting his conviction of child molesting with respect to S.G.L. To convict Stetler of сhild molesting as a Class A felony, the State was required to prove beyond a reasonable doubt that Stetler, being at least twenty-one years old, performed deviate sexual conduct on S.G.L., who was under fourteen years of age. See
Stetler contends the evidence is insufficient to prove penetration because thе “undisputed evidence” is that Stetler‘s finger did not penetrate S.G.L.‘s sex organ. S.G.L. testified during trial that Stetler
Although at first blush it might appear that S.G.L.‘s and Nurse Cook‘s testimonies were inconsistent, Nurse Cook testified that based on her experience, a child tends to have a distorted pеrception of the meaning of words. In our case, S.G.L. knew where Stetler touched her, but because of her youth and limited understanding, she was unable to recognize or verbalize that as an interior part of the female sex organ. Cf. Spurlock v. State, 675 N.E.2d 312, 315 (Ind.1996) (stating that “a detailed anatomical description of penetration is unnecessary and undesirable” in part because “many people are not able to articulate the precise anatomical features that were or were not penetrated“); Short v. State, 564 N.E.2d 553, 558-59 (Ind.Ct.App.1991) (holding that it was reasonable for the trier of fact to infer from child‘s testimony that defendant touched her “butt” with his “front butt” - when considered in the contеxt of the entirety of the evidence and the child‘s limited vocabulary regarding sex organs and sexual matters - that the defendant had touched the child‘s genitalia with his penis, and noting that “[a] conviction for child molesting/sexual intercourse will be sustained when it is apparent from the circumstances and the victim‘s limited sexual vocabulary that the victim described an act of sexual intercourse“). Nurse Cook‘s testimony is part of the entirety of the evidence which informs S.G.L.‘s testimony.
Stetler argues that to prove the crime according to
II. Inappropriate Sentence
A. Standard of Review
We may revise a sentence authorized by statute if, after due consideration of the trial court‘s decision, we find that the sentence is inappropriate in light of the nature of the offense and the character of the offender. See Ind. Appellate Rule 7(B). When examining the nature of the offense and the character of the offender, we may look to any factors appearing in the record. Spitler v. State, 908 N.E.2d 694, 696 (Ind.Ct.App.2009), trans. denied. The burden is on the defendant to demonstrate that his sentence is inapprоpriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.2006).
B. Ninety-Year Sentence
Stetler was sentenced to consecutive thirty-year sentences for each Class A felony child molesting conviction with a thirty-year habitual offender enhancement on count one for an aggregate sentence of ninety years. The sentencing range for a Class A felony is twenty to fifty years imprisonment, with an аdvisory sentence of thirty years imprisonment. See
Concerning the nature of the offense, Stetler took advantage of two young girls, aged nine and seven, in their own homes. Stetler was a friend of S.G.L.‘s family. S.G.L. testified that she experienced burning when she went to the bathroom after Stetler touched her. Concerning the nature of Stetler‘s character, he had a prior child molesting conviction in 2003. Hе violated his probation on that conviction by failing to register as a sex offender and was re-incarcerated. He was released just two months prior to committing these offenses and was still on parole. His criminal history also includes a juvenile disposition for which he was initially placed on probation, but ultimately cоmmitted to a secure facility. As an adult, Stetler has convictions for operating a vehicle without a license or proof of financial responsibility; dealing in marijuana; possession of cocaine; and check deception. He has violated his probation on several occasions. Stetler has not responded well to prior attempts at rehabilitation.
Stetler contends that although his offenses and his character may warrant the advisory sentence, they do not warrant consecutive sentences. Stetler first points out that the incidents were isolated and he did not threaten the girls, use force in molesting them, or cause them any physical injury, citing in support Sanchez v. State, 938 N.E.2d 720 (Ind.2010). In Sanchez, the defendant was convicted of three counts of Class A felony child molesting against two victims. He was sentenced to forty years for each count, with the two sentences relating to one victim to be served concurrently, but the third to be served consecutively, for an aggregate sеntence of eighty years. On appeal, our supreme court held the enhanced and consecutive sentences were inappropriate, upon noting that the defendant did not use significant force or cause injury to his
Stetler also contends that the fact he is a credit-restricted felon and thus required to serve eighty-five percent of his total sentence should be taken into account. In Sharp v. State, 970 N.E.2d 647, 650 (Ind.2012), our supreme court held that credit time status may be considered by appellate courts exercising their review and revise authority because “our concern is whether the totality of the penal consequences imposed by the trial court was apрropriate.” As noted above, Stetler is a credit restricted felon and thus will be required to serve at least seventy-five years of his sentence.
Considering the nature of Stetler‘s offenses, the nature of his character, and the totality of the penal consequences imposed by the trial court, we cannot say Stetler has met his burden of demonstrating his sentence is inappropriate. As the trial court noted, Stetler took advantage of an opportunity with two young girls to commit two separate and distinct offenses, he has a prior conviction for the same crime, multiple previous attempts at rehabilitation have failed, and he was released on parole for his prior molestation conviction only two months before committing these crimes. These facts convince us that the nature of Stetler‘s offenses and his character do not warrant reduction of the sentence imposed.
Conclusion
Sufficient evidence was presented to sustain Stetler‘s conviction for child molesting. Stetler‘s ninety-year aggregate sentence is not inappropriate. His conviction and sentence are therefore affirmed.
Affirmed.
BAILEY, J., and MATHIAS, J., concur.
ROBB, Chief Judge.