MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 10 2020, 9:33 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy J. O’Connor Curtis T. Hill, Jr. O’Connor & Auersch Attorney General Indianapolis, Indiana Matthew B. Mackenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Charles Smith, September 10, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-331 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Shatrese M. Appellee-Plaintiff Flowers, Presiding Judge The Honorable James K. Snyder, Master Commissioner Trial Court Cause No. 49G02-1802-FA-5428
Vaidik, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-331 | September 10, 2020 Page 1 of 7 Case Summary [1] Charles Smith appeals his sentence for Class A felony attempted child
molesting and Class C felony child molesting, arguing that the trial court
abused its discretion by finding two improper aggravating factors. We agree
that one of the aggravators is improper, but because we can say with confidence
that the trial court would have imposed the same sentence without it, we affirm.
Facts and Procedural History [2] In 2006, Smith met his wife, Gebie, and relocated to live with her in the
Philippines. Gebie had a daughter from a prior marriage, J.P., and Smith and
Gebie had one daughter together, C.M.S. Several years later, the family moved
to Indianapolis. J.P. was then nine years old. The family lived in two different
apartments. In both, J.P. shared a bedroom with C.M.S. When the family lived
in these apartments, roughly spanning three years, Smith molested J.P. He
would enter J.P.’s bedroom at night, take off her pajamas, and touch her vagina
with his fingers. Smith also molested J.P. once when the two were driving back
to the family’s apartment. He grabbed the back of J.P.’s neck and pushed her
down between his legs as he drove. J.P. felt Smith’s penis touch her lips. When
J.P. entered seventh grade, the molestations ceased.
[3] During her junior year of high school, J.P. revealed this history of abuse, first to
a friend and then to a guidance counselor. In February 2018, the State charged
Smith with two counts of Class A felony child molesting, Class A felony
Court of Appeals of Indiana | Memorandum Decision 20A-CR-331 | September 10, 2020 Page 2 of 7 attempted child molesting, and Class C felony child molesting. After a jury
trial, Smith was found not guilty of one of the counts of Class A felony child
molesting. The jury hung on the other three counts. The State then dismissed
the remaining Class A felony child-molesting count on double-jeopardy
grounds, and the case proceeded to a second jury trial on the charges of Class A
felony attempted child molesting and Class C felony child molesting. J.P.
testified that Smith molested her “often” when the family lived in the
apartments and that these acts primarily occurred in her bedroom while she
pretended to sleep. Tr. Vol. II p. 199. When asked whether her sister was in the
room during the molestations, J.P. answered, “Probably. I don’t remember.” Id.
at 163. The jury found Smith guilty on both counts.
[4] At sentencing, the trial court placed “very significant weight” on the
aggravating factor that Smith—as J.P.’s stepfather and primary father figure—
was in a position of trust, care, custody, and control over J.P. Tr. Vol. III p.
118. The trial court found four other aggravators: Smith had one prior felony
conviction; he “at least attempted” to violate a protective order by asking family
members to speak with J.P. about sentencing; he committed a crime of violence
within the hearing of another child, C.M.S.; and J.P. suffers “ongoing mental
trauma that go[es] beyond and [is] greater than those elements necessary to
prove the elements of the [offense] itself.” Id.; see also Appellant’s App. Vol. III
p. 62. In mitigation, the trial court found that Smith led a law-abiding life for a
substantial period, his absence will present a hardship to his dependents, and he
is likely to respond affirmatively to short-term imprisonment. Finding the
Court of Appeals of Indiana | Memorandum Decision 20A-CR-331 | September 10, 2020 Page 3 of 7 aggravators and mitigators to be “in balance,” the trial court sentenced Smith to
thirty years, with twenty-five years to serve and five years suspended to
probation, for the Class A felony and four years for the Class C felony, to be
served consecutively, for a total executed sentence of twenty-nine years. Tr.
Vol. III p. 118.
[5] Smith now appeals his sentence.
Discussion and Decision [6] Smith contends that the trial court relied on two improper aggravating factors:
he committed the crime in the presence of another child and his crime caused
J.P. ongoing mental trauma beyond that inherent in the offense. “Our trial
courts enjoy broad discretion in identifying aggravating and mitigating factors,
and we will reverse only for an abuse of that discretion.” McCoy v. State, 96
N.E.3d 95, 99 (Ind. Ct. App. 2018).
[7] Smith first argues that the trial court’s finding that he molested J.P within the
hearing of C.M.S. is unsupported by evidence. We disagree. Smith points out
that when J.P. was asked whether her sister was in the room during the acts of
molestations, J.P. stated, “Probably. I don’t remember.” Tr. Vol. II p. 163.
While this statement may be equivocal, other evidence supports the trial court’s
finding. Specifically, J.P. testified that the molestation occurred “often” in her
bedroom at night and that her sister shared the bedroom with her during these
Court of Appeals of Indiana | Memorandum Decision 20A-CR-331 | September 10, 2020 Page 4 of 7 years. Id. at 162-63, 199. Therefore, there is sufficient evidence in the record for
the trial court to find Smith committed these acts within the hearing of C.M.S.
[8] Smith next argues that the trial court abused its discretion by finding J.P. is
suffering ongoing mental trauma beyond and greater than the elements needed
to commit the crime. On this issue, we agree with Smith. “[T]he emotional and
psychological effects of a crime are inappropriate aggravating factors unless the
impact, harm, or trauma is greater than that usually associated with the crime.”
Thompson v. State, 793 N.E.2d 1046, 1053 (Ind. Ct. App. 2003). Here, the trial
court did not make any specific findings or cite any evidence indicating that the
mental trauma on J.P. is greater than that usually associated with crimes of this
type. Nor does the record reveal such evidence. J.P. did not speak at the
sentencing hearing and did not submit a victim impact statement. The trial
court abused its discretion in finding this aggravator.
[9] The State argues that this aggravator is valid because Smith’s acts of
molestation—particularly touching J.P.’s vagina under her clothes and bringing
her lips to his penis—were “greater than necessary to satisfy the elements of the
offense.” Appellee’s Br. p. 13. While this may be true, it is not the factor cited
by the trial court.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 10 2020, 9:33 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy J. O’Connor Curtis T. Hill, Jr. O’Connor & Auersch Attorney General Indianapolis, Indiana Matthew B. Mackenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Charles Smith, September 10, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-331 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Shatrese M. Appellee-Plaintiff Flowers, Presiding Judge The Honorable James K. Snyder, Master Commissioner Trial Court Cause No. 49G02-1802-FA-5428
Vaidik, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-331 | September 10, 2020 Page 1 of 7 Case Summary [1] Charles Smith appeals his sentence for Class A felony attempted child
molesting and Class C felony child molesting, arguing that the trial court
abused its discretion by finding two improper aggravating factors. We agree
that one of the aggravators is improper, but because we can say with confidence
that the trial court would have imposed the same sentence without it, we affirm.
Facts and Procedural History [2] In 2006, Smith met his wife, Gebie, and relocated to live with her in the
Philippines. Gebie had a daughter from a prior marriage, J.P., and Smith and
Gebie had one daughter together, C.M.S. Several years later, the family moved
to Indianapolis. J.P. was then nine years old. The family lived in two different
apartments. In both, J.P. shared a bedroom with C.M.S. When the family lived
in these apartments, roughly spanning three years, Smith molested J.P. He
would enter J.P.’s bedroom at night, take off her pajamas, and touch her vagina
with his fingers. Smith also molested J.P. once when the two were driving back
to the family’s apartment. He grabbed the back of J.P.’s neck and pushed her
down between his legs as he drove. J.P. felt Smith’s penis touch her lips. When
J.P. entered seventh grade, the molestations ceased.
[3] During her junior year of high school, J.P. revealed this history of abuse, first to
a friend and then to a guidance counselor. In February 2018, the State charged
Smith with two counts of Class A felony child molesting, Class A felony
Court of Appeals of Indiana | Memorandum Decision 20A-CR-331 | September 10, 2020 Page 2 of 7 attempted child molesting, and Class C felony child molesting. After a jury
trial, Smith was found not guilty of one of the counts of Class A felony child
molesting. The jury hung on the other three counts. The State then dismissed
the remaining Class A felony child-molesting count on double-jeopardy
grounds, and the case proceeded to a second jury trial on the charges of Class A
felony attempted child molesting and Class C felony child molesting. J.P.
testified that Smith molested her “often” when the family lived in the
apartments and that these acts primarily occurred in her bedroom while she
pretended to sleep. Tr. Vol. II p. 199. When asked whether her sister was in the
room during the molestations, J.P. answered, “Probably. I don’t remember.” Id.
at 163. The jury found Smith guilty on both counts.
[4] At sentencing, the trial court placed “very significant weight” on the
aggravating factor that Smith—as J.P.’s stepfather and primary father figure—
was in a position of trust, care, custody, and control over J.P. Tr. Vol. III p.
118. The trial court found four other aggravators: Smith had one prior felony
conviction; he “at least attempted” to violate a protective order by asking family
members to speak with J.P. about sentencing; he committed a crime of violence
within the hearing of another child, C.M.S.; and J.P. suffers “ongoing mental
trauma that go[es] beyond and [is] greater than those elements necessary to
prove the elements of the [offense] itself.” Id.; see also Appellant’s App. Vol. III
p. 62. In mitigation, the trial court found that Smith led a law-abiding life for a
substantial period, his absence will present a hardship to his dependents, and he
is likely to respond affirmatively to short-term imprisonment. Finding the
Court of Appeals of Indiana | Memorandum Decision 20A-CR-331 | September 10, 2020 Page 3 of 7 aggravators and mitigators to be “in balance,” the trial court sentenced Smith to
thirty years, with twenty-five years to serve and five years suspended to
probation, for the Class A felony and four years for the Class C felony, to be
served consecutively, for a total executed sentence of twenty-nine years. Tr.
Vol. III p. 118.
[5] Smith now appeals his sentence.
Discussion and Decision [6] Smith contends that the trial court relied on two improper aggravating factors:
he committed the crime in the presence of another child and his crime caused
J.P. ongoing mental trauma beyond that inherent in the offense. “Our trial
courts enjoy broad discretion in identifying aggravating and mitigating factors,
and we will reverse only for an abuse of that discretion.” McCoy v. State, 96
N.E.3d 95, 99 (Ind. Ct. App. 2018).
[7] Smith first argues that the trial court’s finding that he molested J.P within the
hearing of C.M.S. is unsupported by evidence. We disagree. Smith points out
that when J.P. was asked whether her sister was in the room during the acts of
molestations, J.P. stated, “Probably. I don’t remember.” Tr. Vol. II p. 163.
While this statement may be equivocal, other evidence supports the trial court’s
finding. Specifically, J.P. testified that the molestation occurred “often” in her
bedroom at night and that her sister shared the bedroom with her during these
Court of Appeals of Indiana | Memorandum Decision 20A-CR-331 | September 10, 2020 Page 4 of 7 years. Id. at 162-63, 199. Therefore, there is sufficient evidence in the record for
the trial court to find Smith committed these acts within the hearing of C.M.S.
[8] Smith next argues that the trial court abused its discretion by finding J.P. is
suffering ongoing mental trauma beyond and greater than the elements needed
to commit the crime. On this issue, we agree with Smith. “[T]he emotional and
psychological effects of a crime are inappropriate aggravating factors unless the
impact, harm, or trauma is greater than that usually associated with the crime.”
Thompson v. State, 793 N.E.2d 1046, 1053 (Ind. Ct. App. 2003). Here, the trial
court did not make any specific findings or cite any evidence indicating that the
mental trauma on J.P. is greater than that usually associated with crimes of this
type. Nor does the record reveal such evidence. J.P. did not speak at the
sentencing hearing and did not submit a victim impact statement. The trial
court abused its discretion in finding this aggravator.
[9] The State argues that this aggravator is valid because Smith’s acts of
molestation—particularly touching J.P.’s vagina under her clothes and bringing
her lips to his penis—were “greater than necessary to satisfy the elements of the
offense.” Appellee’s Br. p. 13. While this may be true, it is not the factor cited
by the trial court. The trial court specifically found as an aggravator J.P.’s
“ongoing mental trauma.” Tr. Vol. III p. 118. Because there are no findings or
evidence to support this aggravator, it is improper.
[10] Although the trial court considered an improper aggravating factor, we
conclude that this was harmless. “[W]here the trial court abuses its discretion in
Court of Appeals of Indiana | Memorandum Decision 20A-CR-331 | September 10, 2020 Page 5 of 7 sentencing a defendant, we need not remand for resentencing if we can say with
confidence that the trial court would have imposed the same sentence had it
properly considered reasons that enjoy support in the record.” Vega v. State, 119
N.E.3d 193, 203 (Ind. Ct. App. 2019) (citation omitted). There are multiple
valid aggravators that the trial court correctly considered: Smith’s prior felony
conviction, he committed the crime in front of C.M.S., and he attempted to
violate a protective order. Most importantly, the trial court emphasized that it
gave “very significant weight” to the fact that Smith was in a position of care
and custody over the victim as her stepfather.
[11] Moreover, despite these significant aggravators, the trial court sentenced Smith
to a below-advisory total executed sentence. A person who commits a Class A
felony shall be imprisoned for a fixed term of between twenty and fifty years,
with thirty years being the advisory sentence. Ind. Code § 35-50-2-4(a). A
person who commits a Class C felony shall be imprisoned for a fixed term of
between two and eight years, with the advisory sentence being four years. Ind.
Code § 35-50-2-6(a). Here, the trial court imposed the advisory sentence for
each conviction. If the court had made those sentences fully executed, Smith
would have to serve thirty-four years. Instead, the trial court suspended five
years of the sentence for the Class A felony, resulting in a total executed
sentence of twenty-nine years. In light of the proper aggravators, we are
confident that the trial court would have imposed this same sentence even
without its consideration of the improper aggravator.
[12] Affirmed.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-331 | September 10, 2020 Page 6 of 7 Bailey, J., and Baker, Sr. J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-331 | September 10, 2020 Page 7 of 7