FILED Mar 11 2020, 8:42 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Thomas Lowe Curtis T. Hill, Jr. New Albany, Indiana Attorney General of Indiana
Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Benjamen P. Chastain, March 11, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1539 v. Appeal from the Orange Circuit Court State of Indiana, The Honorable Steven L. Owen, Appellee-Plaintiff Judge Trial Court Cause No. 59C01-1602-FA-212
Altice, Judge.
Case Summary
[1] Benjamen P. Chastain appeals his conviction and sentence for Class A felony
child molesting. He contends that the trial court allowed, over his objection,
improper hearsay evidence, which was used to elevate the offense from a Class
Court of Appeals of Indiana | Opinion 19A-CR-1539 | March 11, 2020 Page 1 of 7 B felony to a Class A felony. The State concedes this point and asks that we
reduce the conviction to a Class B felony. Additionally, Chastain challenges
the sentence imposed by the trial court.
[2] We reverse and remand.
Facts & Procedural History
[3] As a child, B.L. lived with her mother but spent about every other weekend
with her father and stepmother, Angie. Chastain is married to Angie’s sister,
Amanda. B.L. often spent time with Chastain and Amanda when visiting her
father.
[4] On one occasion when B.L. was eight or nine years old, 1 B.L. spent the night
with Chastain and Amanda in their trailer. Amanda was pregnant at the time
with the couple’s first child, who was born July 31, 1999. B.L. fell asleep with
the couple in their bed but at some point, Amanda moved to the living room
couch because she was not feeling well. Thereafter, B.L. was awakened by
Chastain as he placed his hand inside her shorts. B.L. closed her legs together,
but Chastain proceeded to put his hand inside B.L.’s underwear and then
penetrate her vagina with his finger. B.L. immediately got up and ran into the
living room with Amanda for safety. B.L. was unable to wake Amanda, so
B.L. remained awake until the sun came up and then ran back to her father’s
1 B.L. turned nine years old in June 1999.
Court of Appeals of Indiana | Opinion 19A-CR-1539 | March 11, 2020 Page 2 of 7 trailer. B.L. was too scared to tell anyone about the incident and thought no
one would believe her, so she remained quiet. Throughout the remainder of her
childhood, B.L. made sure to never again be alone with Chastain, and she
made it apparent to her family that she did not like Chastain.
[5] In December 2015, allegations arose regarding Chastain recently molesting
B.L.’s eleven-year-old half-sister. This resulted in B.L. disclosing her own prior
molestation by Chastain to her stepmother. B.L. and her half-sister gave
statements to investigators with the Paoli Police Department. Another relative,
L.B., also claimed to have been molested by Chastain on one occasion around
2001 or 2002 when she was five or six years old.
[6] On February 23, 2016, the State charged Chastain with two counts of Class A
felony child molesting and one count of Class C felony child molesting. The
Class A felony charges involved the allegations by B.L. and L.B., respectively,
and the Class C felony involved B.L. No charges were filed by the State with
respect to the allegations made by B.L.’s sister. The Class C felony count was
later dismissed as being filed outside the statute of limitations.
[7] Chastain’s jury trial on the two Class A felony counts commenced on April 16,
2019. The jury found Chastain guilty of the Class A child molesting count
involving B.L. but not guilty of the count involving L.B. At the conclusion of
the sentencing hearing on May 28, 2019, the trial court sentenced Chastain to
forty years in prison with ten of those years suspended to probation. Chastain
now appeals. Additional information will be provided below as needed.
Court of Appeals of Indiana | Opinion 19A-CR-1539 | March 11, 2020 Page 3 of 7 Discussion & Decision
1. Improper Admission of Hearsay Evidence
[8] Chastain’s offense was elevated from a Class B felony to a Class A felony
because he was at least twenty-one years old when he molested B.L. See Ind.
Code § 35-42-4-3(a)(1) (based on former version of statute in effect at time of
crime). The only evidence the State presented to establish this essential element
was the testimony of Detective Mesarosh, who was permitted to testify, over
Chastain’s hearsay objection, that information contained in records from the
Bureau of Motor Vehicles (which were not admitted into evidence) listed
Chastain’s date of birth as January 12, 1976.
[9] The State appropriately concedes on appeal that the detective’s testimony in
this regard constituted inadmissible hearsay evidence. See Ind. Evidence Rules
801(c) and 802. Because this improper evidence was used to elevate the
offense, Chastain and the State request that we reduce the conviction to a Class
B felony. 2 Accordingly, we remand to the trial court for entry of judgment of
conviction and resentencing for a Class B felony.
2. Sentence
2 The State recognizes that we could remand this case for a new trial on the Class A felony count. See Carr v. State, 934 N.E.2d 1096, 1109 (Ind. 2010). Nevertheless, seeking to avoid a retrial, the State expressly stipulates to the reduction of the offense to a Class B felony.
Court of Appeals of Indiana | Opinion 19A-CR-1539 | March 11, 2020 Page 4 of 7 [10] Chastain also challenges the forty-year sentence imposed by the trial court.
Although he specifically frames the issue under the inappropriate analysis of
Ind. Appellate Rule 7(B), Chastain also peppers his argument with claims that
the trial court abused its discretion in its consideration of aggravating
circumstances. This is improper. “[I]inappropriate sentence and abuse of
discretion claims are to be analyzed separately” and, thus, “inappropriate
sentence analysis does not involve an argument that the trial court abused its
discretion in sentencing the defendant.” King v. State, 894 N.E.2d 265, 267
(Ind. Ct. App. 2008).
[11] Regardless, we need not reach Chastain’s argument, pursuant to App. R. 7(B),
that his forty-year sentence is inappropriate in light of his character and the
nature of his offense. This issue is moot given our disposition of the issue above
resulting in remand for resentencing for Class B felony child molesting.
[12] Because the issues will likely arise on remand, we briefly address Chastain’s
claims regarding two of the aggravating factors. First, Chastain contends that
the trial court improperly considered the age of the victim to be an aggravating
circumstance. The record establishes that B.L. was either eight years old or had
just turned nine at the time Chastain molested her. We cannot say that the trial
court’s consideration of the victim’s tender age, which was substantially less
than the statutory age of fourteen years old, constitutes an abuse of discretion.
The trial court, however, must set forth particularized circumstances justifying
this aggravator. See McCoy v.
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FILED Mar 11 2020, 8:42 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Thomas Lowe Curtis T. Hill, Jr. New Albany, Indiana Attorney General of Indiana
Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Benjamen P. Chastain, March 11, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1539 v. Appeal from the Orange Circuit Court State of Indiana, The Honorable Steven L. Owen, Appellee-Plaintiff Judge Trial Court Cause No. 59C01-1602-FA-212
Altice, Judge.
Case Summary
[1] Benjamen P. Chastain appeals his conviction and sentence for Class A felony
child molesting. He contends that the trial court allowed, over his objection,
improper hearsay evidence, which was used to elevate the offense from a Class
Court of Appeals of Indiana | Opinion 19A-CR-1539 | March 11, 2020 Page 1 of 7 B felony to a Class A felony. The State concedes this point and asks that we
reduce the conviction to a Class B felony. Additionally, Chastain challenges
the sentence imposed by the trial court.
[2] We reverse and remand.
Facts & Procedural History
[3] As a child, B.L. lived with her mother but spent about every other weekend
with her father and stepmother, Angie. Chastain is married to Angie’s sister,
Amanda. B.L. often spent time with Chastain and Amanda when visiting her
father.
[4] On one occasion when B.L. was eight or nine years old, 1 B.L. spent the night
with Chastain and Amanda in their trailer. Amanda was pregnant at the time
with the couple’s first child, who was born July 31, 1999. B.L. fell asleep with
the couple in their bed but at some point, Amanda moved to the living room
couch because she was not feeling well. Thereafter, B.L. was awakened by
Chastain as he placed his hand inside her shorts. B.L. closed her legs together,
but Chastain proceeded to put his hand inside B.L.’s underwear and then
penetrate her vagina with his finger. B.L. immediately got up and ran into the
living room with Amanda for safety. B.L. was unable to wake Amanda, so
B.L. remained awake until the sun came up and then ran back to her father’s
1 B.L. turned nine years old in June 1999.
Court of Appeals of Indiana | Opinion 19A-CR-1539 | March 11, 2020 Page 2 of 7 trailer. B.L. was too scared to tell anyone about the incident and thought no
one would believe her, so she remained quiet. Throughout the remainder of her
childhood, B.L. made sure to never again be alone with Chastain, and she
made it apparent to her family that she did not like Chastain.
[5] In December 2015, allegations arose regarding Chastain recently molesting
B.L.’s eleven-year-old half-sister. This resulted in B.L. disclosing her own prior
molestation by Chastain to her stepmother. B.L. and her half-sister gave
statements to investigators with the Paoli Police Department. Another relative,
L.B., also claimed to have been molested by Chastain on one occasion around
2001 or 2002 when she was five or six years old.
[6] On February 23, 2016, the State charged Chastain with two counts of Class A
felony child molesting and one count of Class C felony child molesting. The
Class A felony charges involved the allegations by B.L. and L.B., respectively,
and the Class C felony involved B.L. No charges were filed by the State with
respect to the allegations made by B.L.’s sister. The Class C felony count was
later dismissed as being filed outside the statute of limitations.
[7] Chastain’s jury trial on the two Class A felony counts commenced on April 16,
2019. The jury found Chastain guilty of the Class A child molesting count
involving B.L. but not guilty of the count involving L.B. At the conclusion of
the sentencing hearing on May 28, 2019, the trial court sentenced Chastain to
forty years in prison with ten of those years suspended to probation. Chastain
now appeals. Additional information will be provided below as needed.
Court of Appeals of Indiana | Opinion 19A-CR-1539 | March 11, 2020 Page 3 of 7 Discussion & Decision
1. Improper Admission of Hearsay Evidence
[8] Chastain’s offense was elevated from a Class B felony to a Class A felony
because he was at least twenty-one years old when he molested B.L. See Ind.
Code § 35-42-4-3(a)(1) (based on former version of statute in effect at time of
crime). The only evidence the State presented to establish this essential element
was the testimony of Detective Mesarosh, who was permitted to testify, over
Chastain’s hearsay objection, that information contained in records from the
Bureau of Motor Vehicles (which were not admitted into evidence) listed
Chastain’s date of birth as January 12, 1976.
[9] The State appropriately concedes on appeal that the detective’s testimony in
this regard constituted inadmissible hearsay evidence. See Ind. Evidence Rules
801(c) and 802. Because this improper evidence was used to elevate the
offense, Chastain and the State request that we reduce the conviction to a Class
B felony. 2 Accordingly, we remand to the trial court for entry of judgment of
conviction and resentencing for a Class B felony.
2. Sentence
2 The State recognizes that we could remand this case for a new trial on the Class A felony count. See Carr v. State, 934 N.E.2d 1096, 1109 (Ind. 2010). Nevertheless, seeking to avoid a retrial, the State expressly stipulates to the reduction of the offense to a Class B felony.
Court of Appeals of Indiana | Opinion 19A-CR-1539 | March 11, 2020 Page 4 of 7 [10] Chastain also challenges the forty-year sentence imposed by the trial court.
Although he specifically frames the issue under the inappropriate analysis of
Ind. Appellate Rule 7(B), Chastain also peppers his argument with claims that
the trial court abused its discretion in its consideration of aggravating
circumstances. This is improper. “[I]inappropriate sentence and abuse of
discretion claims are to be analyzed separately” and, thus, “inappropriate
sentence analysis does not involve an argument that the trial court abused its
discretion in sentencing the defendant.” King v. State, 894 N.E.2d 265, 267
(Ind. Ct. App. 2008).
[11] Regardless, we need not reach Chastain’s argument, pursuant to App. R. 7(B),
that his forty-year sentence is inappropriate in light of his character and the
nature of his offense. This issue is moot given our disposition of the issue above
resulting in remand for resentencing for Class B felony child molesting.
[12] Because the issues will likely arise on remand, we briefly address Chastain’s
claims regarding two of the aggravating factors. First, Chastain contends that
the trial court improperly considered the age of the victim to be an aggravating
circumstance. The record establishes that B.L. was either eight years old or had
just turned nine at the time Chastain molested her. We cannot say that the trial
court’s consideration of the victim’s tender age, which was substantially less
than the statutory age of fourteen years old, constitutes an abuse of discretion.
The trial court, however, must set forth particularized circumstances justifying
this aggravator. See McCoy v. State, 96 N.E.3d 95, 99 (Ind. Ct. App. 2018)
(“While the victim being under twelve can be an aggravator, see Ind. Code § 35-
Court of Appeals of Indiana | Opinion 19A-CR-1539 | March 11, 2020 Page 5 of 7 38-1-7.1(a)(3), our Supreme Court has made clear that ‘[w]hen the age of a
victim constitutes a material element of the crime,’ the trial court cannot treat it
as an aggravating circumstance unless it sets forth ‘particularized
circumstances’ justifying such treatment[.]”) (quoting McCarthy v. State, 749
N.E.2d 528, 539 (Ind. 2001)); see also Reyes v. State, 909 N.E.2d 1124, 1128 (Ind.
Ct. App. 2009) (upholding use of molestation victim’s tender age of nine years
old as aggravator where trial court addressed relevance of age).
[13] On the other hand, we agree with Chastain that the following aggravating
factor found by the trial court is concerning:
There were other allegations of child abuse. Three victims came forward to accuse the defendant of child abuse. Abusing children appears to have been a pattern of behavior on behalf of the defendant. See Lockard v. State, 600 N.E.2d 985, 987-88 (Ind. Ct. App. 1992) (uncharged misconduct is a valid sentence aggravator). The Court gave significant weight to this factor.
Appellant’s Appendix at 120. Lockard is not applicable here because Chastain did
not admit to molesting the other two children. See Lockard, 600 N.E.2d at 987-
88 (holding that trial court did not abuse its discretion by considering
defendant’s admissions to repeatedly molesting his stepdaughters, though
defendant only pled guilty pursuant to a plea agreement to other offenses
involving the same victims). More importantly, the jury found Chastain not
guilty of the allegations involving L.B., and, therefore, those allegations may
not be considered in sentencing him for the molestation of B.L. See McNew v.
State, 391 N.E.2d 607, 612 (Ind. 1979). With respect to the third alleged victim,
Court of Appeals of Indiana | Opinion 19A-CR-1539 | March 11, 2020 Page 6 of 7 we observe that Chastain has not admitted to molesting her, and the State has
not filed charges against him based on these allegations. Accordingly, on
remand, the trial court should be cautious in its consideration of the uncharged
allegations. Cf. Wilkes v. State, 917 N.E.2d 675, 692 (Ind. 2009) (holding that
consideration of defendant’s admitted sexual activity with child murder victim
was not improper because “relevant evidence of another crime is admissible to
rebut the defendant’s claimed lack of criminal history even if that evidence may
not be sufficient to support a conviction”), cert. denied.
[14] Judgment reversed and cause remanded with instructions to reduce the
conviction to a Class B felony and to resentence Chastain.
Robb, J. and Bradford, C.J., concur.
Court of Appeals of Indiana | Opinion 19A-CR-1539 | March 11, 2020 Page 7 of 7