*1 Decision, Not for Memorandum marked
Publication, published. now ordered Judges Concur.
All Panel RIEHLE, Appellant-Defendant,
Donald Indiana, Appellee-Plaintiff.
STATE
No. 15A05-0311-CR-557. Indiana. Appeals of
Court 1, 2005.
March May Denied
Transfer *4 Weissmann,
Leanna IN, Lawrenceburg, Attorney Appellant. for Carter, Attorney Steve General of Indiana, Fisher, Deputy Matthew D. At- General, torney IN, Indianapolis, Attor- neys for Appellee.
OPINION VAIDIK, Judge. Summary
Case Donald appeals Riehle his convictions for Child Molesting as a Class A felony, Molesting Child felony, as a Class C Con- spiracy to Commit Molesting Child as a A felony, Class Conspiracy and to Commit Molesting Child as a felony. Class C Be- cause the evidence shows that per- Richle formed deviate sexual conduct with the nine-year-old victim and that Riechle en- agreement tered into an with the child's so, mother to do the evidence is sufficient to support his convictions for Child Molest- ing A felony as Class Conspiracy Commit Molesting Child as a felo- encoun- these During camper. Riehle's not abuse did Further, court the trial ny. on wrestle KR. would ters, Sharon the State allowing in discretion its wide from them watched while bed Riehle's examina direct during her victim lead getting Upon a window. through re outside and obvious age young her given tion and Shar- join K.R. aroused, Riehle would the details testify about luctance "get on" then would Richle not on the bed. court did addition, crimes. satisfied." get "to admitting an Sharon error fundamental commit [KR.] "hold Sometimes, conversation would recording of tape entire one evi 42. On into Id. at informant [them]." down beside Riehle charged top [K.R.]" occasion, to the "on Riehle was relevance its given dence Id. at 37. stomach. on her ejaculated crime continuing Moreover, the crimes. partici- and for for sex this Sharon paid facts of to the apply does doctrine touching sessions in the pating therefore, properly the State case, and pled guilty camper. Sharon Finally, we in the Riehle. and convicted felony for her a Class C Molesting as light resentencing Child case this remand crimes. in these role 542 U.S. Washington, Blakely v. (2004). L.Ed.2d 124 S.Ct. Lataille, who 2003, Ronald February History Richle, defrauding Procedural charges Facts facing *5 them give could he that officers police told KR., mother is the Ann Reed Ruth Lat- Riehle. about information damaging time of at the old years nine who was transmit- a wire fitted with then was aille Fifty-nine- case. underlying this events exchanges with his tape record ter with friends had been Richle year-old under Richle approached Lataille Riehle. at least years. On many family for Reed and ad- information wanting guise KR. took in Ruth occasions two with encounter having a sexual vice about give then would Richle camper. Richle's tried he had that Lataille told KR. Riehle KR. with for sex" "in return money Ruth but K.R. with intercourse have sexual occasion, Ruth the first On p. Tr. admitted, Richle it. not do would she inside looked and camper outside stood vagina K.R.'s however, rubbed he that top of laid on Riehle a window. through her buttocks. also rubbed leg and his with on, until he clothes had her KR., still who he looked that Lataille told also Richle theOn ejaculated. and an erection had hair, he having pubic K.R. forward in the K.R. occasion, left Ruth second he whenever pants" her "get could rest- use the outside and went camper "nice and vagina was wanted, her and that camp- to the returned Ruth room. When Ex. 15. age. State's her girl a fat" for in Richle's lying were Richle er, K.R. and Shar- give had to explained Richle and down pulled were pants K.R.'s bed. K.R. but quiet her keep money to legs. her between penis his had Richle offered Richle then anyone. not tell would erection, an had until he there laid Richle Lat- encounter up a sexual to set twenty to twen- approximately took advice, own his offered KR. and and aille to Pro- guilty pled Ruth minutes. ty-five slow, things to take as such felony B a Class as Prostitution moting top, while on orgasm an have cannot aas Child Dependent aof Neglect had been because a condom to wear crimes. in these her role felony for D Class men. other with frame, there time same during this Also Haas, in- thereafter, Bonnie Shortly Richle, KR., encounters were sexual Divi- County Dearborn vestigator Reed Sharon great-aunt K.R.'s Family Children, sion of interviewed Conspiracy to Commit Child Molesting. interview, K.R. During the K.R. told Haas When reviewing a claim of sufficiency of that she had naked been with Riechle on evidence, we do reweigh the evi several occasions in the camper and that judge dence or the credibility of witnesses. put peter Richle "had in her butt." Tr. (Ind. Jones v. p. 165. KR. also told Haas that Richle 2003). only We look probative to the evi had vagina touched her with his hand and dence supporting judgment and the body. Id. reasonable inferences from that evidence to determine charged The State whether a Richle reasonable trier with six counts, fact could one of conclude dropped. which later Fol defendant was guilty beyond a reasonable lowing doubt. jury, Id. We Richle was convicted of four counts: will Molesting uphold Child as a Class conviction if there is sub (deviate A felony conduct),1 sexual stantial probative Child evidence of value to sup Molesting felony as Class C port it. (touching fondling),2 Conspiracy to Commit argues first the evi
Child Molesting as a Class A felony,3 and dence is insufficient to support his convic Conspiracy to Commit Child Molesting as tion for Child Molesting as a Class A a Class felony.4 C Richle acquitted felony. In order to convict Riehle of child A felony child molesting charge molesting as a Class A felony as that alleged he had sexual intercourse with case, in this the State must proved KR. The trial court sentenced Riehle to an Riehle, who was at aggregate sentence twenty-one least years. of 108 years age, performed deviate appeals. now sexual K.R., conduct with who was under fourteen Discussion and Decision years of age. 85-42-4-3(a)(1). § Ind.Code Richle raises five issues on appeal. *6 conduct," "Deviate sexual turn, in is de First, he contends that the evidence is fined in relevant part as an act involving "a insufficient to support his Class A felony organ sex of person one and the mouth or Second, convictions. Richle contends that anus of person." another § Ind.Code 35- the trial court erred in allowing the State 41-1-9(1). The alleged State in charg the to lead K.R. during her direct examination. ing information that Richle "touched his Third, he contends that the trial court penis to the anus of Appellant's [K.R.]" erred admitting the tape entire record- App. p. 424. ing of his conversation with Lataille into Fourth, evidence. Riehle contends that appeal, On Riehle claims that the two of his convictions violate the continu- State "prove failed to beyond a reasonable ing crime doctrine. Finally, he contends doubt penis that [his] ever came in contact that his sentence Blakely violates v. Wash- with K.R.'s anus." Appellant's p.Br. 8. In ington. We address each issue in turn. Haag' making claim, this Richle challenges Sufficiency I. of the Evidence trial testimony points out that he did Riehle first contends that the ev not admit to touching penis his to K.R.'s idence is insufficient to support his AClass during anus secretly-recorded his conver felony convictions for Child Molesting and sation Lataille, with a time when he had no 1. 35-42-4-3(a)(1). § Ind.Code 35-42-4-3(a)(1), §§ 3. Ind.Code 35-41-5-2. 2. 35-42-4-3(b). § Ind.Code 35-42-4-3(b), §§ 4. Ind.Code 35-41-5-2.
293 case, the State in this pen anal of Although proof lie. to reason to commit Riehle, intent with proved a defen convict required is not etration Ruth to commit with felony, agreed the sexual by deviate molesting child of dant (sexu- felony a Class Molesting as Child anus the "involve" conduct, an act conduct) sexual anus. or deviate intercourse with al contact must be there in act an overt performed Ruth (Ind. 798 State, 726 N.E.2d Downey v. Ind.Code agreement. of furtherance demied, denied. trams. reh'g Ct.App.2000), The State 35-42-4-3(a)(1), 85-41-5-2. 'anus,' §§ meaning of ordinary plain "The taking Ruth act was the overt alleged that of the opening orifice, lower is 'the anal or of purpose for the camper Riehle's K.R. to in the fold tract, lying digestive submitting to sexual or performing Richle [buttocks], which fecal through nates conduct sexual or deviate intercourse (quoting Id. at 797 is extruded." matter (4th KR. Dictionary 95 Medical Stedman's 'buttocks,' or contrast, ed.1976)). "[the "the Richle claims appeal, On formed
nates, prominence 'the are that there show is insufficient evidence rounded muscles,, two or 'the gluteal crimi or for intercourse agreement anwas cleft by a median separated prominences p. Br. Appellant's conduct." deviate nal ... the back part lower that form element agreement proving mus gluteus largely consist required is not the State conspiracy, Medical Stedman's (quoting Id. cles"" agreement, formal express show ed.1976) (4th and Webster's Dictionary 923 entirely may rest conspiracy proof Dictionary 305 International New Third in evidence, cireumstantial omitted). (citation (1976)) fur parties acts of overt clude Haas, then testified who v. Here, told act. Stokes criminal therance peter put (Ind.Ct.App. "had trial, that N.E.2d added). (emphasis p. denied; Tr. 2004), her butt." Weida trans. time of at the old In ad
KR., years ten (Ind.Ct.App.2002). was who N.E.2d "peter" that Riehle's trial, prove also testified not have dition, does the State ex- at 131. or actually "butt." committed her felony touched part "the Weida, "butt" N.E.2d the term plained See attempted. even of." Id. poop out you go body where your *7 Dow- tracks the testimony KR.'s at 72. she Here, Ruth testified Because anus. court's definition
mey and for insurance pay to money needed con- penis that Riehle's is evidence there K.R. to result, took she a things. As other suffi- anus, is the evidence K.R.'s tacted money. some to make camper Riehle's for conviction Riehle's support cient Riehle testified Ruth Specifically, Ac- felony. A a Molesting as Class Child ... for sex return money "[in her gave an merely is argument cordingly, Richle's de- then Ruth p. Tr. [K.R.]" [wiith evidence, reweigh us to for invitation took she occasions two scribed not do. we will purpose. this camper Riehle's K.R. K.R. on time, "hunch[ed]" evi Riehle argues that The first next Richle ejaculated. erection his convie had an support he until is insufficient dence time, "had Riehle Mo The second Child to Commit Id. Conspiracy tion for legs." to In order [K.R.'s] felony. penis between A a lesting as Class Ruth shows evidence cireumstantial to commit conspiracy Riehle convict whereby agreement had felony as a Class molesting as child money Ruth would receive in exchange for rect However, examination. only points having sexual encounters with K.R. to one answer that resulted from leading a fact, In brought Ruth to Riehle's question by is, the State. That camper occasions, on at least two during State-immediately after reminding KR. which time sexual encounters indeed oc- what she had said during her deposition- curred. That Riehle never had sexual in- asked KR. what part of Richle touched tercourse with K.R. does not change the butt, her to which responded "his fact agreement that an for intercourse ex- peter." p. Tr. 131. KR. years was ten isted between Ruth and Richle. Because old at trial, the time of and there is no there is agreement evidence of an indication that any she experience had Ruth and Riehle to commit Child Molest- with the court system other than this case. ing felony, as Class A the evidence is addition, the record reflects that KR. sufficient to support Riehle's conviction for was extremely reluctant to testify. Conspiracy to Commit Molesting Child as fact, the State had to call KR. to the stand A felony. separate two occasions over the course Questions Leading
II. During days. two Given young K.R.s age and Direct Examination testify reluctance to about specifics case, the trial court did not abuse its Riehle next contends that wide discretion in allowing the State to use trial court erred in allowing the State to leading questions in order to elicit infor- lead KR. during her direct examination. mation from K.R. about the details of the 611(c) Indiana Evidence Rule provides, sexual encounters she had with Riehle. "Leading questions should not be used on the direct examination of a except witness Regardless, K.R.s testimony as be necessary to develop the wit penis Richles touched her butt merely ness's testimony." witnesses, Certain in of, cumulative than, less damaging cluding children young, inexperienced, Haas trial testimony that K.R. told her frightened witnesses, may be asked that Riehle put "had his peter in her butt." leading questions on direct examination to p. added). Tr. (emphasis Accordingly, develop their testimony. Williams v. Riehle was not harmed K.R.'s response (Ind.2000); N.E.2d to the question State's about part what (Ind.Ct. Kien v. him touched her butt. See Bussey, 536 App.2003), trans. denied. A leading ques N.E.2d at 1029-30. tion is one that suggests the desired an Tape III. Recording swer Williams, the witness. Riehle next contends that the trial court N.E.2d at 922. The use of leading ques erred admitting the tape entire record- tions is limited order prevent ing of his conversation with Lataille into substitution attorneys language for evidence. Specifically, argues Riechle the thoughts of the witness as to material *8 the trial court should have redacted the facts in dispute. Id. "The trial court is portions of tape the recording wherein he afforded wide discretion in allowing lead offered to up set a sexual encounter be- ing questions and the trial courts decision tween Lataille and KR. Because Richle will be only reversed for an abuse of dis object trial, did not at he asserts that the State, cretion." Bussey v. error is fundamental. 1027, (Ind.1989). 1029 appeal, On Riehle argues that the The admission of evidence is State extensively led KR. during her di- within the sound discretion of the trial
295 Rule Evidence Indiana to pursuant effect N.E.2d v. Holden court. 1267, 1270 State, 730 N.E.2d Roop v. 408. reverse will We (Ind.Ct.App.2004). 1054. Holden, at N.E.2d (Ind.2000); discre- of an abuse only for court trial the on some bears short, evidence its discretion if the court abuses In A trial Id. tion. and propensity than criminal clearly issue other ruling is evidentiary its when Evidence hurdle of balancing the facts, cireumstances clears and logic, the against Roop, 730 Moreover, is admissible. the then it Rule at 1058-54. Id. presented. extremely at is N.E.2d error doctrine fundamental N.E.2d Howard narrow. up a to set offer Here, Richles fun- as qualify To (Ind.Ct.App.2004). and Lataille between encounter sexual prej- be so must error, error the damental his than other an issue on bears KR. toas defendant the rights of to the udicial is, offering in That propensity. criminal beTo Id. impossible. fair make encounter, delved Riehle the sexual up set consti- error, must error the fundamental encounters his own of specifics into the principles, basic of violation a blatant tute advice based his own and offered with be must for harm potential harm or the fact, our very encounters. those resulting error substantial, the and that reveals recording tape of the review pro- due fundamental deny the defendant to set offer Richles separate difficult is cess. Lataille between encounter the sexual up Richles of specifics from the and that claims appeal, On two are the K.R. because with encounters he recording wherein tape of portions the balancing, As closely entwined. so be encounter sexual up a to set offered encoun the sexual up to set offer Richles inadmissible K.R. were Lataille tween undoubt K.R. is Lataille ter between 404(b), which Rule Evidence Indiana under However, the because edly prejudicial. part: in relevant provides of details the with is so entwined offer crimes, or wrongs, of other Evidence KR., with encounters sexual own Richles char- the prove not admissible is acts clearing thereby high, also is relevance the action to show in order person aof acter hurdle. the may, howev- It conformity therewith. purposes, only for other now Riechle er, Moreover, admissible note be we intent, motive, prepara- being recording of proof as parts such objects to ab- identity, Indeed, during or knowledge, tion, plan, evidence. into admitted the or accident.... portions mistake trial, argued sence he the he did contention his tape support Rule Evidence underlying rationale KR., intercourse have sexual from 404(b) jury precluded is the is ultimately acequit- he was which charge of inference the forbidden making decision made the doing, In so ted. propensity has a criminal defendant recording tape benefits conduct. engaged therefore now cannot risks. its outweighed deciding Holden, N.E.2d tape portions choose pick admis- is evidence challenged whether presented been recording should the evi- (1) whether sible, determine we: up to set offer jury because acts crimes, wrongs, or of other dence Lataille encounter than sexual issue other a matter relevant evidence from inseparable K.R. is to commit propensity the defendants *9 completes wrongdoing, his own (2) probative act; balance The the conversation. in context places prejudicial its against of the evidence value error, the molestation of the child" and "the trial court did not commit much less error, in admitting fundamental bringing entire of the child was the means tape recording into evidence. which the molestation was accomplished." Appellant's p.Br. 26. He then concludes Jeopardy
IV. Double "bringing the child a part was of the con- Riehle next contends that his convictions tinuing thus, crime of molesting" child felony conspiracy and Class C his convictions for molesting child and con- felony conspiracy violate Indiana double spiracy cannot stand under the continuous jeopardy principles and therefore should crime doctrine. Id. at 26. We cannot be vacated. Richle concedes that his con- agree. spiracy convictions do not violate the statu- First, the continuing crime ap- doctrine tory elements test or the actual evidence plies only to actions sufficient them- Rather, test. argues he "that allega- selves to constitute criminal offenses. tions for the two counts of child molesting Here, the act of transporting KR. allegations and the conspiracy camper Riehle's is not sufficient in itself to commit the two acts fall within the con- Thus, constitute a crime. the continuing tinuing crime doctrine." Appellant's Br. p. crime doctrine is not applicable to the in- Second, stant case. was, if even Richle's continuing erime doctrine argument presumes that the conspiracy essentially provides that actions that are did not occur until the overt act of trans- sufficient in themselves to sepa constitute porting However, K.R. occurred. per- "a rate criminal offenses be so com son conspires when, commit a felony, pressed time, in terms place, singleness with the intent to commit felony, of purpose, continuity of action as to agrees with another person to commit the a single constitute transaction. Nunn v. felony." § I.C. 85-41-5-2. While it is 124, 695 N.E.2d 125 (Ind.Ct.App. true that the state prove that an 1998). Although Riechleframes this issue overt act performed in furtherance of on appeal as a violation of Indiana double the conspiracy, conspiracy occurs at jeopardy principles, we note the con point in time that agreement tinuous crime doctrine does not seek to felony commit a with another is made. reconcile the double jeopardy implications The reasonable inference from the evi- of two crimes; distinct chargeable rather, dence is that agreement the doctrine defines those instances where Richle and Ruth for Riehle to molest KR. a defendant's conduct only amounts to a was made before Ruth transported K.R. to single chargeable Boyd crime. Thus, Riehle's camper. the conspiracy is 400 (Ind.Ct.App.2002). In separate in time from the child molesting so, doing the continuous crime doctrine and is not a part continuous of the child prevents the State from charging a defen molesting charges. dant twice for the same continuous offense. Sentencing V. Riehle last contends that his sen
Essentially,
begins
his ar
tence violates Blakely v. Washington, 542
gument by noting that
the overt act al
U.S.
124 S.Ct.
297 not is still sentencing mechanism Indiana's implicate not does issue, Blakely this waive that statement Booker's clear. entirely ob firstWe sentencing scheme. Indiana's his discretion judge exercises a "when decided Blakely was because that serve a de- within sentence specific a select to case, in this was sentenced after to right no has the defendant range, See fined for review. this issue not waived has the the facts of 970, jury 975 determination a State, N.E.2d 818 v. Williams (empha- relevant," at 750 id. deems judge addition, have we (Ind.Ct.App.2004). exempt to added), read impli could be Blakely sis determined previously be- cases of these the reach from Strong v. Indiana sentencing scheme. our cates dis- judges give (Ind.Ct.App. law does 256, 261 Indiana's cause N.E.2d 817 range. a within a sentence 2004). to select cretion Sentencing Guidelines the Federal Unlike Ap rule of the Blakely applied not Booker, does Indiana by invalidated 466, 120 U.S. Jersey, 530 v. New prendi mandatory guidelines. (2000), to a 2348, L.Ed.2d S.Ct. Indiana, and found sentencing scheme relevant more But state increase that when v. clear Teeters makes See Booker unconstitutional. (Ind.Ct.App.2004), 275, contingent 278-79 is punishment N.E.2d in a defendant's a fact of the than prior "Other than a other denied. a fact finding trans. of the on increases fact that conviction, any jury's in the prior not reflected that is conviction pre- beyond the defendant, a crime for penalty by the the or admitted verdict be sub maximum statutory a beyond jury a seribed found must be fact a beyond proved jury, a mitted 748-49. Under Id. at doubt. reasonable at S.Ct. Blakely, 124 doubt." be en reasonable not law, a sentence Indiana at U.S. Apprendi, (quoting the 2536-38 unless presumptive the beyond hanced Blakely 2348). key a 120 S.Ct. presence fact the as a finds trial court "a sentence case involves § 35-50- is whether Ind.Code statutory aggravator. law authorized what state than greater enhanced (murder cannot be sentence 2-3 Id. alone." the verdict finding aggra- the basis without beyond presumptive court, Blakely to the According (same for Class vator); § 85-50-24 Apprendi B (same for Class maximum' 'statutory § 35-50-2-5 felony); "[The judge a sentence maximum (same C is purposes for Class § 35-50-2-6 felony); basis solely on the may impose D (same facts for class § felony); 35-50-2-7 admitted or verdict jury in the sentencing scheme Indiana's felony). reflected (emphasis at 2537 Booker discretionary as therefore defendant." Because 125 S.Ct. original). term. uses a sentence impose cannot trial court Su- States United January find without presumptive than longer progeny Blakely to the added Court preme aggravator, anof the form Booker, fact in ing States of United by its issuance be aggravator -- requires Booker L.Ed.2d --, 125 S.Ct. U.S. in the it is reflected unless jury by a found rules court (2005). supreme our Until defend by the admitted or verdict jury's however, application issue, on the ant.5 Booker Blakely, Apprendi, those that none The fact at 2552-60. by Jus- supported is further conclusion
5. This Indiana's systems is like Blakely-compliant lays Blakely, which Breyer's dissent tice Indiana's conclusion supports the system use could states proposed methods out four Su- comply with does not system current S.Ct. Blakely, 124 Blakely. See comply with *11 298
Here, Richle was appear implicate Teeters, Blakely. Cf. convicted of two Class A felonies and two Class C 817 N.E.2d at (opining 279 "in the felonies. presumptive sentence for a need of correctional or rehabilitative treat felony Class A thirty years, is to which up ment that can provided best be by commit to twenty years can be added. Ind.Code penal ment to a facility" aggravator does § 35-50-2-4. The presumptive sentence implicate not Blakely when it can be said for a felony years, Class C is four to which to be derivative of the defendant's criminal up years to four can be added. Ind.Code history). Thus, whether proper this is a § 35-50-2-6. The trial court sentenced aggravator jury is a question.7 Likewise, Richle to maximum terms of eight years pursuant to Blakely, the remaining four for each of the Class C fifty felonies and aggravators must have been submitted to years for each of the felonies. a jury and proved beyond a reasonable The trial court then ordered three of these doubt, which was not done here. This sentences to run consecutively,6 for an ag then aggravators leaves no and two miti- gregate sentence of years. In doing gators. Accordingly, we must remand this so, the trial court identified aggrava- five case for resentencing.8 (1) tors: the risk that Riehle will commit in part Affirmed and reversed and re- additional against crimes children in the in part. manded future; (2) Richle engaged has in sexual activity with children in past the even CRONE, J., concurs. though he has never been with (8) so; doing the heinous nature of the RILEY, J., concurs in part and dissents (4) offenses; Richle is in need of correc in part separate with opinion. tional or rehabilitative treatment that can best be provided by commitment to a pe RILEY, Judge, concurring in part and (5) nal facility; and substantial psychologi dissenting part. cal damage to beyond that normally I respectfully V, dissent from Part the experienced The trial court also identified majority's conclusion to remand the case mitigators:
two Richle has no criminal his for resentencing in light of Blakely v. tory and has been gainfully employed. Washington, U.S. 124 S.Ct.
We note that in light of Riehle's absence (2004), L.Ed.2d 403 reh'g denied. As of a history, criminal aggravator recognized majority, our United Riehle is in need of correctional or rehabil- States Supreme Court held in Blakely that itative treatment that can best provided be the Sixth requires Amendment jury by commitment to a penal facility does beyond determine a reasonable doubt the preme Court's dictates. As disagree 7. We Breyer with the dissent that the fact Justice wrote, comply Blakely jury "a jury's inherent in guilty verdicts ais find, only facts that up finding by make jury crime would commit another crime particular because issue- charged, offender is but also all whether there awas risk of Riehle's commit- (punishment-increasing) facts way about the ting another crime-was not submitted to the in which the offender carried out that crime." jury for consideration and as such we have no Id. at (parenthethical original). way knowing jury whether the found this risk or whether it did not. 6. We purposes would note for of remand that Blakely implicated is not where a trial court light conclusion, of this we do not reach orders consecutive sentences. Cowens v. argument Riechle's 108-year that his sentence (Ind.Ct.App.2004). inappropriate. pre- than the more defendant criminal used factors aggravating existence defendant unless sentence sumptive above crime sentence increase sentencing, a jury ato right by the waives assigned sentence presumptive *12 ag- of the existence first determines Specif jury 2536. at Id., 124 S.Ct. legislature. has a factors, the defendant or that gravating held Court Supreme the ically, conviction, any history. criminal prior aof fact the than er a crime penalty the increases that fact aggregate to Richle sentencing be must maximum statutory the beyond iden- court trial the years, of 108 sentence a beyond proved and jury to a submitted (1) cireumstances: aggravating five tified Apprendi (quoting Id. doubt." reasonable another commit would Riehle that risk the 490, 466, 120 S.Ct. 530 U.S. Jersey, Newv. recorded tape by the crime, supported as (2000)). The Su L.Ed.2d (2) uncharged Lataille; with conversation statutory maxi this defined Court preme in sex- engaged has Riehle that allegations judge a sentence maximum "the as mum 3) past; in the children activity with ual the the basis solely impose may facts of circumstances the and nature heinous the by admitted or verdict jury the in reflected sig- the upon based involved crime of the in (emphasis Id. the defendant." out carrying in involved planning nificant words, relevant the "In other original). trust violation Richle's and erimes these maximum the not is maximum statutory of correctional (4) need K.R.; Riehle's with finding after impose may judge a sentence can best that treatment rehabilitative or he maximum facts, the but additional (5) the and facility; penal in a provided be findings." any additional without impose to damage caused psychological substantial Furthermore, original). in (emphasis expected. normally that beyond K.R. Court's Supreme the that convinced arewe miti- following two the found court trial Booker, v. States in United opinion recent histo- criminal (1) lack of Riehle's gators: --, --, 125 S.Ct. 548 U.S. (2) employment. gainful his ry; and J., writing for (Stevens, (2005) L.Ed.2d based that I find majority, the Unlike Blakely rule the Court) alter not does the court, the this before evidence the upon As Justice Indiana. applies nowit as the existence found jury properly (other a than fact "[alny espoused, Stevens com- would Riehle that factor sup- necessary aggravating conviction) is prior court trial, trial the At maximum mit another crime. exceeding a sentence port conver- recorded tape a a by admitted properly facts established by authorized Lataille, po- a be Richle jury verdict a sation or guilty plea Richle recording, aby In this proved or informant. defendant lice by the admitted -- Id., buttocks K.R.'s fondling doubt." a reasonable admitted beyond jury also He leg. state- his This 755. vagina at --, rubbing 125 S.Ct. her at U.S. writ- forward Breyer looked he that Justice Lataille reinforced told ment could he hair, ... holds that, having pubic Court "the ing to. he wanted juries, requires anytime pants" Amendment in her "get Sixth to sentenc- during this Moreover, relevant 15). facts find judges (State's Ex. - at --, 125 S.Ct. intention Id., his U.S. conversation, stated ing." fifteen twelve be would K.R. that when ass" "piece a have old, would years in Krebs concluded Accordingly, we aof son "mount he would (Ind.Ct.App. 469, 475 N.E.2d kept long as as left" right butt courts trial our 2004), appeared Additionally, 15). (State's Ex. quiet. to sentence have discretion longer no Richle agreed to set up a sexual encounter held. This occurs when the ag- invalid between Lataille and KR. gravator played a relatively unimportant role in the trial court's decision.
Thus, When by introducing Riehle's admissions a reviewing court "can identify sufficient past criminal behavior and his clear aggravating circumstances to persuade intention to commit further criminal acts it that the trial court would future, entered State submitted the fact same sentence Riehle's lack of even future absent im- abiding law be- permissible factor, havior to jury. turn, it should jury, affirm finding guilty court's for child decision." When molesting as review- *13 ing (deviate court say "cannot a with confidence Class A felony conduct), sexual conspiracy to commit impermissible child molesting a aggravators as Class felony, child would molesting as a have Class led to result, the same C felony (touching and fondling), and con- should remand for re-sentencing by the spiracy to commit child molesting as a court or correct the sentencing on felony, C properly appeal." considered Richle's admissions and found justi- them Here, I identified one valid aggravator: Therefore, fied. given Blakely's clear lan- the risk of committing a future crime. guage that "[oJther than the fact prior of a The trial court also found two mitigators: conviction, any fact that increases pen- (1) Riehle' lack prior eriminal history, alty for a beyond crime the statutory maxi- (2) gainful employment. In its mum must be submitted to a jury and sentencing statement, the trial court deter- proved beyond a doubt," reasonable I find mined the aggravators to be significant the aggravator that Riechle would enough to only aggravate sentence, commit a future crime properly sub- but to run the sentences consecutively. mitted to jury proven beyond a reasonable doubt jury's guilty ver- Given importance of the remaining dict on particular these Counts. Id. aggravator and insignificance However, I concur with the majority mitigating cireumstances, I refuse to hold the remaining four aggravators are that the trial court would fimposed invalid in light of Blakely. Nonetheless, if different sentence. See id. Therefore, I one or more aggravating find that circumstances the trial court did not err by cited the trial court are found invalid on imposing an enhanced sentence. Accord- appeal, we must next decide whether the ingly, I disagree with the result reached remaining cireumstance or cireumstances by the majority.
are sufficient to support the sentence im-
posed. See Patrick v. 819 N.E.2d
840, 848 (Ind.Ct.App.2004). As we ex-
plained in Means v.
778 (Ind.Ct.App.2004), trans. denied:
Even one valid aggravating circum-
stance is sufficient to support an en-
hancement of a sentence. When the
sentencing court improperly applies an
aggravating circumstance but other val-
id aggravating exist, circumstances
sentence enhancement still up- be