Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the Oct 22 2014, 10:21 am purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JEFFREY D. STONEBRAKER GREGORY F. ZOELLER Clark County Chief Public Defender Attorney General of Indiana Jeffersonville, Indiana JUSTIN F. ROEBEL Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
BERNARD E. HARRIS, ) ) Appellant-Defendant, ) ) vs. ) No. 10A01-1404-CR-152 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE CLARK CIRCUIT COURT The Honorable Vicki L. Carmichael, Judge Cause No. 10C04-1210-FA-96
October 22, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge Bernard E. Harris appeals his sentence for two counts of child molesting as class
A felonies. Harris raises one issue which we revise and restate as whether his sentence is
inappropriate in light of the nature of the offense and the character of the offender. We
affirm.
FACTS AND PROCEDURAL HISTORY
On July 4, 2009, Harris, who was born on April 28, 1968, married the mother of
B.C. Harris saw B.C. every other week and sometimes for longer periods. Between
January 1, 2012, and July 1, 2012, Harris forced B.C., who was then twelve years old, to
engage in vaginal sexual intercourse and oral sex. Between July 2, 2012, and September
30, 2012, Harris forced B.C. to engage in vaginal sexual intercourse and anal sexual
intercourse.
In October 2012, the State charged Harris with three counts of child molesting as
class A felonies and one count of child solicitation as a class D felony. That same month,
the court scheduled a jury trial for March 12, 2013. On February 2, 2013, Harris
requested a continuance, and the court rescheduled the jury trial for June 18, 2013. On
May 14, 2013, Harris again requested a continuance, and the court rescheduled the jury
trial for October 22, 2013. Harris filed another motion for continuance, and the court
granted the motion and rescheduled the jury trial for February 4, 2014.
On January 22, 2014, Harris filed a Motion for More Specific Statement or, in the
Alternative, Motion to Dismiss alleging that the information alleged “a date in 2012” and
that this vague statement prevented him from formulating a defense. Appellant’s
Appendix at 46. On February 3, 2014, Harris withdrew his formerly entered plea of not
2 guilty and entered a plea of guilty to two counts of child molesting as class A felonies.
The same day, the State filed an amended information which included two counts of child
molesting as class A felonies, and the court held a hearing at which Harris pled guilty and
the court took the pleas under advisement.
On March 3, 2014, the court held a hearing. B.C.’s father read a statement in
which he indicated that Harris had used a digital camera to photograph B.C. and record
video of B.C. in the nude and while performing sex acts, that the detectives searched
Harris’s residence but could not find the memory card, and that B.C.’s mother continued
to search the trailer for weeks afterwards in hopes of locating the card and any other
evidence overlooked by the police but she did not find the memory card. B.C.’s father
stated: “There is still a concern in my mind that these new digital images and videos that
[Harris] recorded of my underage daughter are still out there somewhere, perhaps in
someone’s possession right now or in a hiding place where they may someday be
discovered by another unscrupulous individual.” Transcript at 30-31. He also indicated
that Harris used several grooming techniques against B.C. including attempting to
alienate B.C. from him and his wife, showering B.C. with gifts, becoming verbally
abusive, and taking control emotionally and physically. He testified that Harris used
Bible references and asked B.C. to refer to B.C.’s father by his first name and to refer to
him as “Daddy.” Id. at 32. According to B.C.’s father, Harris made physical threats to
B.C.’s rabbit. He also testified that B.C. has been in weekly counseling since two weeks
after the revelation.
3 B.C. testified that she was twelve years old when the molestation began, and that
she “had to go on walks into the woods to be forced by [Harris] to go through so much
pain.” Id. at 42. She testified: “You kept threatening me that if I told, or didn’t do what
you wanted me to do, that you would take my phone away, not let me text my friends,
make my mom’s life horrible, and even kill my rabbit; which are all things were [sic]
important to me especially at such a young age.” Id. B.C. testified that Harris “did those
things to [her] so many times, for so long.” Id. She stated that, when she visited her
mother, Harris would take her out on the railroad tracks behind the house where they
would go to a certain area in the woods and he would have her perform intercourse and
oral sex. She also testified that Harris used a razor to shave her pubic area, used a dildo,
and used a camera to take pictures and videos of her. B.C.’s mother testified that Harris
has not shown any remorse for what he did to B.C. Denise Poukish, the probation officer
who prepared the presentence investigation report, testified that she recommended that
Harris receive an aggravated sentence and that the sentences run consecutive to each
other.
Harris’s counsel stated: “[Harris] is not able address [sic] the child because
obviously that’s inappropriate at this point.” Id. at 62. Harris’s counsel asked that the
court impose the advisory sentence and give consideration to probation. The prosecutor
asked for “a minimal [sic] of thirty years on each one to be run consecutively” and if the
court believed they should be concurrent then “50 years would be an appropriate one for
one count or two counts run concurrently.” Id. at 63. At the end of her argument, the
4 prosecutor stated: “we ask for 50 years on each count to be served consecutively.” Id. at
65.
The court found that the harm, injury, and loss suffered by the victim was greater
than the elements necessary to prove the commission of the offense, and that Harris was
in a position of trust with B.C. and had demonstrated a lack of remorse. The court stated:
“While the mitigators are that there is no criminal history and there was acceptance of
responsibility by pleading guilty [Harris] has shown no remorse to this Court and the
Court finds that these aggravating factors clearly outweigh the mitigating factors . . . .”
Id. at 66. The court sentenced Harris to fifty years on each count and ordered that the
sentences be served consecutive to each other for an aggregate sentence of 100 years.
DISCUSSION
The issue is whether Harris’s sentence is inappropriate in light of the nature of the
offense and the character of the offender. Ind. Appellate Rule 7(B) provides that 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.” Under this rule, the burden is on the defendant to
persuade the appellate court that his or her sentence is inappropriate. Childress v. State,
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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the Oct 22 2014, 10:21 am purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JEFFREY D. STONEBRAKER GREGORY F. ZOELLER Clark County Chief Public Defender Attorney General of Indiana Jeffersonville, Indiana JUSTIN F. ROEBEL Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
BERNARD E. HARRIS, ) ) Appellant-Defendant, ) ) vs. ) No. 10A01-1404-CR-152 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE CLARK CIRCUIT COURT The Honorable Vicki L. Carmichael, Judge Cause No. 10C04-1210-FA-96
October 22, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge Bernard E. Harris appeals his sentence for two counts of child molesting as class
A felonies. Harris raises one issue which we revise and restate as whether his sentence is
inappropriate in light of the nature of the offense and the character of the offender. We
affirm.
FACTS AND PROCEDURAL HISTORY
On July 4, 2009, Harris, who was born on April 28, 1968, married the mother of
B.C. Harris saw B.C. every other week and sometimes for longer periods. Between
January 1, 2012, and July 1, 2012, Harris forced B.C., who was then twelve years old, to
engage in vaginal sexual intercourse and oral sex. Between July 2, 2012, and September
30, 2012, Harris forced B.C. to engage in vaginal sexual intercourse and anal sexual
intercourse.
In October 2012, the State charged Harris with three counts of child molesting as
class A felonies and one count of child solicitation as a class D felony. That same month,
the court scheduled a jury trial for March 12, 2013. On February 2, 2013, Harris
requested a continuance, and the court rescheduled the jury trial for June 18, 2013. On
May 14, 2013, Harris again requested a continuance, and the court rescheduled the jury
trial for October 22, 2013. Harris filed another motion for continuance, and the court
granted the motion and rescheduled the jury trial for February 4, 2014.
On January 22, 2014, Harris filed a Motion for More Specific Statement or, in the
Alternative, Motion to Dismiss alleging that the information alleged “a date in 2012” and
that this vague statement prevented him from formulating a defense. Appellant’s
Appendix at 46. On February 3, 2014, Harris withdrew his formerly entered plea of not
2 guilty and entered a plea of guilty to two counts of child molesting as class A felonies.
The same day, the State filed an amended information which included two counts of child
molesting as class A felonies, and the court held a hearing at which Harris pled guilty and
the court took the pleas under advisement.
On March 3, 2014, the court held a hearing. B.C.’s father read a statement in
which he indicated that Harris had used a digital camera to photograph B.C. and record
video of B.C. in the nude and while performing sex acts, that the detectives searched
Harris’s residence but could not find the memory card, and that B.C.’s mother continued
to search the trailer for weeks afterwards in hopes of locating the card and any other
evidence overlooked by the police but she did not find the memory card. B.C.’s father
stated: “There is still a concern in my mind that these new digital images and videos that
[Harris] recorded of my underage daughter are still out there somewhere, perhaps in
someone’s possession right now or in a hiding place where they may someday be
discovered by another unscrupulous individual.” Transcript at 30-31. He also indicated
that Harris used several grooming techniques against B.C. including attempting to
alienate B.C. from him and his wife, showering B.C. with gifts, becoming verbally
abusive, and taking control emotionally and physically. He testified that Harris used
Bible references and asked B.C. to refer to B.C.’s father by his first name and to refer to
him as “Daddy.” Id. at 32. According to B.C.’s father, Harris made physical threats to
B.C.’s rabbit. He also testified that B.C. has been in weekly counseling since two weeks
after the revelation.
3 B.C. testified that she was twelve years old when the molestation began, and that
she “had to go on walks into the woods to be forced by [Harris] to go through so much
pain.” Id. at 42. She testified: “You kept threatening me that if I told, or didn’t do what
you wanted me to do, that you would take my phone away, not let me text my friends,
make my mom’s life horrible, and even kill my rabbit; which are all things were [sic]
important to me especially at such a young age.” Id. B.C. testified that Harris “did those
things to [her] so many times, for so long.” Id. She stated that, when she visited her
mother, Harris would take her out on the railroad tracks behind the house where they
would go to a certain area in the woods and he would have her perform intercourse and
oral sex. She also testified that Harris used a razor to shave her pubic area, used a dildo,
and used a camera to take pictures and videos of her. B.C.’s mother testified that Harris
has not shown any remorse for what he did to B.C. Denise Poukish, the probation officer
who prepared the presentence investigation report, testified that she recommended that
Harris receive an aggravated sentence and that the sentences run consecutive to each
other.
Harris’s counsel stated: “[Harris] is not able address [sic] the child because
obviously that’s inappropriate at this point.” Id. at 62. Harris’s counsel asked that the
court impose the advisory sentence and give consideration to probation. The prosecutor
asked for “a minimal [sic] of thirty years on each one to be run consecutively” and if the
court believed they should be concurrent then “50 years would be an appropriate one for
one count or two counts run concurrently.” Id. at 63. At the end of her argument, the
4 prosecutor stated: “we ask for 50 years on each count to be served consecutively.” Id. at
65.
The court found that the harm, injury, and loss suffered by the victim was greater
than the elements necessary to prove the commission of the offense, and that Harris was
in a position of trust with B.C. and had demonstrated a lack of remorse. The court stated:
“While the mitigators are that there is no criminal history and there was acceptance of
responsibility by pleading guilty [Harris] has shown no remorse to this Court and the
Court finds that these aggravating factors clearly outweigh the mitigating factors . . . .”
Id. at 66. The court sentenced Harris to fifty years on each count and ordered that the
sentences be served consecutive to each other for an aggregate sentence of 100 years.
DISCUSSION
The issue is whether Harris’s sentence is inappropriate in light of the nature of the
offense and the character of the offender. Ind. Appellate Rule 7(B) provides that 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.” Under this rule, the burden is on the defendant to
persuade the appellate court that his or her sentence is inappropriate. Childress v. State,
848 N.E.2d 1073, 1080 (Ind. 2006).
Harris acknowledges that he was in a position of trust with B.C. and that B.C.
reported he would threaten her, but argues that “[w]hile such threats were disgusting
Harris never physically forced B.C. to submit and/or perform the sexual acts he
acknowledged committing.” Appellant’s Brief at 8. He contends that the conduct does
5 not represent the worst example of said crimes which would merit maximum consecutive
sentences. He also argues that the nature and circumstances may be sufficiently
aggravating to warrant an enhanced sentence but does not justify the order of maximum
terms served consecutively. He also argues that the guilty plea saved the court the time
and expense of a jury trial and saved B.C. from testifying about the molestation. He
notes that the State chose to file only two counts in the amended information after his
counsel requested the State file a more time specific information given that the original
charging information alleged the offenses occurred on or about a date in 2012.
Accordingly, Harris argues that he pled guilty to both counts contained in the amended
information and that he did not receive a direct benefit from his decision to enter open
pleas as no charges were dismissed in return for his guilty pleas. He points to his
employment history, cooperation during the presentence interview, and lack of criminal
history.
The State responds that Harris’s sentence is not inappropriate and that “[i]n
exchange for [Harris’s plea], the State filed [an] amended information which removed a
single count of child molesting and the count of child solicitation.” Appellee’s Brief at 6.
The State argues that the crimes were particularly egregious as the evidence shows that
Harris sexually violated B.C. over a long period of time, starting with sexual touching
when she was barely twelve years old, and the offenses occurred bi-weekly from January
1, 2012, to September 30, 2012. The State points to the impact on B.C. and her family,
Harris’s position of trust, his refusal to reveal the location of the videos and photographs
he took of B.C., his threats, and his attempt to alienate B.C. from her father.
6 Regarding the imposition of the maximum possible sentence, the Indiana Supreme
Court has stated:
[T]he maximum possible sentences are generally most appropriate for the worst offenders. This is not, however, an invitation to determine whether a worse offender could be imagined. Despite the nature of any particular offense and offender, it will always be possible to identify or hypothesize a significantly more despicable scenario. Although maximum sentences are ordinarily appropriate for the worst offenders, we refer generally to the class of offenses and offenders that warrant the maximum punishment. But such class encompasses a considerable variety of offenses and offenders.
Buchanan v. State, 767 N.E.2d 967, 973 (Ind. 2002) (citations and quotation marks
omitted).
Our review of the nature of the offense reveals that Harris was in a position of
trust and forced B.C., who was twelve years old, to have vaginal sexual intercourse, oral
sex, and anal sexual intercourse with him. Harris took B.C. into the woods to have her
perform intercourse and oral sex, and the conduct occurred bi-weekly for a period of nine
months. Harris used a razor to shave B.C.’s pubic area, used a dildo, and took pictures
and videos of her. He threatened that he would make the life of B.C.’s mother horrible
and would kill her rabbit if she did not do what he wanted or if she told anyone. While
the two counts of child molesting involved the same child, they did not involve identical
acts.1 B.C. has been in weekly counseling since two weeks after the revelation.
Our review of the character of the offender reveals that Harris pled guilty but only
after multiple requests for continuances and on the day before the scheduled jury trial.
1 Count I alleged that Harris “did with B.C. . . . perform or submit to deviate sexual conduct and sexual intercourse, to-wit: forced vaginal sexual intercourse and oral deviate sexual conduct.” Appellant’s Appendix at 50. Count II alleged that Harris “did with B.C. . . . perform or submit to deviate sexual conduct and sexual intercourse, to-wit: forced vaginal sexual intercourse and anal deviate sexual conduct.” Id. 7 The record reveals that the State initially charged Harris with three counts of child
molesting as class A felonies and one count of child solicitation as a class D felony, and
the State later amended the information to two counts of child molesting to which Harris
pled guilty. He does not have a criminal history.
Harris has one child who is fourteen years old. The presentence investigation
report (“PSI”) indicates that Harris reported that he pays child support but does not see
his son regularly and has seen him only five to six times in his life. The PSI also states
that Harris reported that he was employed as a janitor at the time of his arrest. According
to the results of the Indiana Risk Assessment System (“IRAS”), the PSI reports that
Harris’s overall risk assessment score placed him in the low risk to reoffend category.
However, Poukish, the probation officer who prepared the PSI, testified that the IRAS
does not measure sexual recidivism. She also testified that Harris is in the low category
for criminal recidivism to commit another criminal offense but that does not include
another sex offense.
After due consideration of the trial court’s decision and in light of the repeated
offenses and the position of trust held by Harris, we conclude that the sentence imposed
by the trial court is not inappropriate in light of the nature of the offense and the character
of the offender.
CONCLUSION
For the foregoing reasons, we affirm the sentence imposed by the trial court.
Affirmed.
BARNES, J., and BRADFORD, J., concur.