Elizabeth Carle v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 12, 2016
• Docket: 79A05-1504-CR-302
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Feb 12 2016, 7:55 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Earl McCoy Gregory F. Zoeller McCoy Law Office Attorney General of Indiana Lafayette, Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Elizabeth Carle, February 12, 2016 Appellant-Defendant, Court of Appeals Case No. 79A05-1504-CR-302 v. Appeal from the Tippecanoe Circuit Court State of Indiana, The Honorable Thomas H. Busch, Appellee-Plaintiff Judge Trial Court Cause No. 79C01-1307-FA-9

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 79A05-1504-CR-302 | February 12, 2016 Page 1 of 13 [1] Elizabeth Carle appeals her convictions for Conspiracy to Commit Child

Molesting,1 a class A felony, two counts of Child Molesting, 2 a class A felony,

and Neglect of a Dependent,3 a class D felony. Carle argues that the

convictions violate double jeopardy principles and that there is insufficient

evidence supporting the convictions. Carle also appeals the aggregate thirty-

eight-year sentence imposed by the trial court, arguing that the trial court

abused its discretion in considering certain aggravating and mitigating

circumstances. Finding no error, we affirm.

Facts [2] Carle’s daughter, A.A., was born in 2006. When A.A. was between the ages of

five and six years old, Carle and her boyfriend, Corey Desarmo, molested A.A.

numerous times. A.A. reported that the incidents primarily involved her

masturbating Desarmo and Desarmo both performing and receiving oral sex

from A.A. More than once, Carle was present and watching during the

molestations, and more than once, Carle stuck a finger into A.A.’s anus. Even

if Carle was not watching or participating, she was frequently in a nearby room

in the residence. A.A. stated that she was molested nearly every day during this

time.

1 Ind. Code § 35-42-4-3; Ind. Code § 35-41-5-2. 2 I.C. § 35-42-4-3. 3 Ind. Code § 35-46-1-4.

Court of Appeals of Indiana | Memorandum Decision 79A05-1504-CR-302 | February 12, 2016 Page 2 of 13 [3] A.A. reported the ongoing molestations to her grandmother in June 2013, and

authorities investigated the child’s allegations. On July 16, 2013, the State

charged Carle with two counts of class A felony child molesting, class A felony

conspiracy to commit child molesting, and class D felony neglect of a

dependent. Carle’s jury trial began on February 2, 2015,4 and on February 4,

2015, the jury found her guilty as charged. The trial court did not enter a

judgment of conviction on the conspiracy to commit child molesting count,

finding that it merged into one of the child molesting convictions.

[4] The trial court held a sentencing hearing on April 2, 2015. Following the

hearing, the trial court sentenced Carle as follows: thirty-five years for the first

child molesting conviction; thirty years on the second child molesting

conviction; and three years for the neglect of a dependent conviction. The trial

court ordered that the two child molesting sentences would run concurrently

and that the neglect sentence would run consecutively, for an aggregate

sentence of thirty-eight years imprisonment. Carle now appeals.

Discussion and Decision I. Double Jeopardy [5] A double jeopardy claim presents a pure question of law to which we apply a de

novo standard of review. Sloan v. State, 947 N.E.2d 917, 920 (Ind. 2011).

4 The State also charged Desarmo in connection with the molestations, and tried Desarmo and Carle as co- defendants.

Court of Appeals of Indiana | Memorandum Decision 79A05-1504-CR-302 | February 12, 2016 Page 3 of 13 Under Article 1, Section 14 of the Indiana Constitution, two offenses are the

same offense in violation of this double jeopardy provision where, with respect

to either the statutory elements of the challenged offenses or the actual evidence

used to convict, the essential elements of one of the offenses also establishes the

essential elements of the other challenged offense. Spivey v. State, 761 N.E.2d

831, 832 (Ind. 2002).

[6] Here, Carle’s only double jeopardy claim is that the child molesting and neglect

counts are all based on the same actual evidence.5 In considering this

argument, an appellate court will find a double jeopardy violation only where

there is a reasonable possibility that the evidentiary facts used by the factfinder

to establish the essential elements of one of the offenses may also have been

used to establish all the essential elements of the other challenged offense or

offenses. Hines v. State, 30 N.E.3d 1216, 1222 (Ind. 2015).

[7] With respect to the two child molesting convictions, the State proved that Carle

committed the acts supporting those convictions on multiple occasions over

multiple years. Therefore, there is no double jeopardy violation under the

actual evidence test. See, e.g., Williams v. State, 997 N.E.2d 1154, 1162-63 (Ind.

Ct. App. 2013) (holding that because the defendant committed numerous acts

5 Carle explains in her brief that she did not raise a double jeopardy claim with respect to the conspiracy to commit child molesting conviction because no judgment of conviction was entered and it merged with one of the child molesting convictions. See Green v. State, 856 N.E.2d 703, 704 (Ind. 2006) (holding that where a trial court has not entered a formal judgment of conviction on a count on which the defendant was found guilty, it is not problematic for double jeopardy purposes to merely merge that count with another at sentencing).

Court of Appeals of Indiana | Memorandum Decision 79A05-1504-CR-302 | February 12, 2016 Page 4 of 13 of molestation over a period of years, there was no reasonable possibility that

the jury used the same instances of sexual intercourse to support the defendant’s

convictions for child molesting and incest).

[8] With respect to the child molesting and neglect convictions, the evidence

supporting the child molesting convictions establishes that Carle repeatedly

inserted her finger into A.A.’s anus. The evidence supporting the neglect

conviction, on the other hand, establishes that Carle placed—and kept—A.A. in

a household in which Carle’s boyfriend repeatedly molested A.A., even though

Carle was well aware of the molestations. We see no reasonable possibility that

the jury used the same actual evidence to support each of these convictions. In

sum, we find that none of Carle’s convictions violate double jeopardy

principles.

II. Sufficiency of the Evidence [9] Next, Carle argues that the evidence supporting her convictions is insufficient.

When reviewing the sufficiency of the evidence supporting a conviction, we will

neither reweigh the evidence nor assess witness credibility. Bailey v. State, 907

N.E.2d 1003, 1005 (Ind. 2009). We will consider only the evidence supporting

the judgment and any reasonable inferences that may be drawn therefrom, and

we will affirm if a reasonable trier of fact could have found the defendant guilty

beyond a reasonable doubt. Id.

Court of Appeals of Indiana | Memorandum Decision 79A05-1504-CR-302 | February 12, 2016 Page 5 of 13 A. Conspiracy [10] Carle first argues that there is insufficient evidence supporting her conspiracy to

commit child molesting conviction. Initially, we note that because the trial

court did not enter a judgment of conviction on this count, ultimately merging

it into a child molesting count, it is somewhat superfluous to address the

sufficiency of the evidence supporting it. Nevertheless, we will do so, briefly.

[11] To convict Carle of conspiracy to commit child molesting, the State was

required to prove beyond a reasonable doubt that, (1) with the intent to commit

the crime of child molesting, (2) Carle agreed with Desarmo to commit the

crime of child molesting, and (3) an overt act was performed by one of them in

furtherance of the agreement. I.C. § 35-41-5-2. Carle’s only argument with

respect to this conviction is that the evidence is insufficient to prove the

existence of an agreement between Carle and Desarmo. It is well established

that proof of an agreement in the context of a conspiracy conviction can rest

entirely on circumstantial evidence, including the overt acts of the parties in

furtherance of the criminal act. Guffey v. State, 42 N.E.3d 152, 164 (Ind. Ct.

App. 2015), trans. denied; Riehle v. State, 823 N.E.2d 287, 293 (Ind. Ct. App.

2005).

[12] Here, A.A. testified that on multiple occasions, Carle was in the same room as

Desarmo while he was molesting A.A. Tr. p. 227. Moreover, Carle took part

in the molestation along with Desarmo on more than one occasion. Id. at 218-

21. Finally, both Carle and Desarmo told A.A. not to tell anyone about the

Court of Appeals of Indiana | Memorandum Decision 79A05-1504-CR-302 | February 12, 2016 Page 6 of 13 molestations or they would go to jail. This evidence is more than sufficient

circumstantial evidence from which a reasonable factfinder could infer that

Carle and Desarmo reached an agreement to commit these crimes. See Riehle,

823 N.E.2d at 293 (holding that agreement need not be formal or explicit;

instead, an informal or implied agreement is sufficient to support a conspiracy

conviction). Carle’s arguments to the contrary are requests that we reweigh

evidence and reassess witness credibility—requests we decline. We find the

evidence sufficient to support the conspiracy conviction.

B. Incredible Dubiosity [13] Carle also argues that the rule of incredible dubiosity should lead us to reverse

all of her convictions. This rule permits an appellate court to impinge on the

factfinder’s responsibility to assess witness credibility. Moore v. State, 27 N.E.3d

749, 754 (Ind. 2015). This rule applies only where there is a sole testifying

witness; the testimony of that witness is inherently contradictory, equivocal, or

the result of coercion; and there is a complete lack of circumstantial evidence.

Id. at 756.

[14] Here, A.A.’s testimony was the only evidence supporting Carle’s conviction,

and there was no circumstantial evidence otherwise corroborating the child’s

testimony. Therefore, we must determine whether A.A.’s testimony was

inherently contradictory, equivocal, or the result of coercion.

[15] A.A. testified lucidly and unequivocally about the molestations she suffered at

the hands of her mother and Desarmo. Her testimony was in no way

Court of Appeals of Indiana | Memorandum Decision 79A05-1504-CR-302 | February 12, 2016 Page 7 of 13 inherently contradictory. Moreover, Carle has offered no evidence whatsoever,

aside from her own self-serving suppositions, that A.A.’s testimony was the

result of coercion. Carle argues that the following aspects of A.A.’s testimony

are inherently improbable and run counter to human experience:

 She was molested nearly every day.  During the molestations, Carle was in another room, cooking dinner in the kitchen, watching, or participating.  Desarmo’s ex-wife and A.A.’s grandmother, who lived sporadically with A.A.’s family, were never present during the molestations.  Nobody said anything or made any sounds during the molestations.  Carle merely stuck her finger in A.A.’s anus and did not touch or fondle other body parts or her genitalia.

[16] Sadly, none of this testimony runs counter to human experience. We do not

find it to be inherently improbable or incredibly dubious, especially given the

clarity and consistency with which this young child testified. It is well

established that convictions for child molesting can be upheld based solely upon

a young victim’s uncorroborated testimony. E.g., Rose v. State, 36 N.E.3d 1055,

1061 (Ind. Ct. App. 2015). Here, we find that A.A.’s testimony, alone, is more

than sufficient to support Carle’s convictions. Carle’s arguments to the contrary

are unavailing.

III. Sentencing [17] Finally, Carle raises an argument with respect to the sentence imposed by the

trial court. While she labels this argument with reference to Indiana Appellate

Rule 7(B), in fact, all of her argument relates to the aggravators and mitigators

Court of Appeals of Indiana | Memorandum Decision 79A05-1504-CR-302 | February 12, 2016 Page 8 of 13 considered by the trial court, and she never engages in a 7(B) analysis. As such,

we will review her claims of error for an abuse of discretion. Under the

advisory sentencing scheme, trial courts no longer have any obligation to weigh

aggravators and mitigators against each other when imposing a sentence.

Richardson v. State, 906 N.E.2d 241, 243 (Ind. Ct. App. 2009).6 Instead, a trial

court may impose any sentence authorized by statute and must provide a

sentencing statement that gives a reasonably detailed recitation of the trial

court’s reasons for imposing a particular sentence. Anglemyer v. State, 868

N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).

[18] In its sentencing statement, the trial court held as follows with respect to

aggravators and mitigators:

The Court finds as aggravating factors that the defendant was in a position having care, custody, or control of the victim of the offense, the defendant threatened to harm the victim of the offense or a witness if the victim or witness told anyone about the offense[,] and the seriousness of [the crime] by the number of [times] which [sic] it occurred.

The Court finds as mitigating factors the defendant has no history of delinquency or criminal activity, or the defendant has led a law-abiding life for a substantial period before commission of the crime, the defendant played a lesser role in the crime, good work history, and difficult childhood.

6 Therefore, to the extent that Carle argues that the trial court erred in weighing aggravating and mitigating circumstances, her argument is unavailing.

Court of Appeals of Indiana | Memorandum Decision 79A05-1504-CR-302 | February 12, 2016 Page 9 of 13 Appellant’s App. p. 84-86. Carle contends that the trial court omitted certain

mitigators and found certain aggravators without fully explaining why they

constituted aggravators.

[19] First, Carle contends that the trial court erred by declining to find the following

mitigating circumstances: (1) her limited role in the offenses, (2) the fact that

she did not cause bodily harm to A.A., and (3) the hardship to Carle’s other

children. First, as to Carle’s limited role in the offenses, the trial court did find

this as a mitigating circumstance in its order when it acknowledged her “lesser

role in the crime[.]” Id. at 85. As to the latter two, the trial court considered

these mitigators at the sentencing hearing but ultimately found that they were

not significant enough to include in the sentencing order. The trial court is not

required to place the same value on a mitigator as does a defendant, nor is it

required to explain why it did not find a factor to be significantly mitigating.

Sandleben v. State, 22 N.E.2d 782, 796 (Ind. Ct. App. 2014), trans. denied.

Because the trial court considered these proffered mitigators and merely did not

give the same weight to them as Carle does, the trial court did not abuse its

discretion in this regard.

[20] Next, Carle argues that two of the aggravators were improper: (1) the

seriousness of the crimes; and (2) that the harm caused by Carle exceeded that

necessary to meet the elements of the crime. Initially, we note that the trial

court’s sentencing order did not include the latter aggravator. Therefore, we

need not address that issue. As to the seriousness of the crimes, the trial court

explained that the reason it found this to be an aggravator was because of the

Court of Appeals of Indiana | Memorandum Decision 79A05-1504-CR-302 | February 12, 2016 Page 10 of 13 astounding number of times that Desarmo and/or Carle molested A.A. over a

period of two years. We find that explanation to be adequate, and do not find

the aggravator to be improper.7 In sum, we find that the trial court did not

abuse its discretion in sentencing Carle.

[21] As noted above, Carle has waived an argument with respect to Indiana

Appellate Rule 7(B) by failing to engage in any sort of analysis related to the

rule. Waiver notwithstanding, we will address it. Indiana Appellate Rule 7(B)

provides that this Court may revise a sentence if it is inappropriate in light of

the nature of the offense and the character of the offender. We must “conduct

[this] review with substantial deference and give ‘due consideration’ to the trial

court’s decision—since the ‘principal role of [our] review is to attempt to leaven

the outliers,’ and not to achieve a perceived ‘correct’ sentence . . . .” Knapp v.

State, 9 N.E.3d 1274, 1292 (Ind. 2014) (quoting Chambers v. State, 989 N.E.2d

1257, 1259 (Ind. 2013)) (internal citations omitted).

[22] Carle was convicted of two class A felonies and one class D felony. For the

class A felony convictions, Carle faced a sentence of twenty to fifty years, with

an advisory term of thirty years. Ind. Code § 35-50-2-4(a). She received thirty

years—the advisory—on one conviction, and thirty-five years on the other, to

be served concurrently. For the class D felony conviction, Carle faced a term of

7 Moreover, even if this aggravator were improper, Carle does not challenge the other two aggravators found by the trial court. Therefore, we are confident that the trial court would have imposed the same sentences even if it had not found the seriousness of the crimes to be an aggravator, and this argument is unavailing in every way.

Court of Appeals of Indiana | Memorandum Decision 79A05-1504-CR-302 | February 12, 2016 Page 11 of 13 six months to three years imprisonment, with an advisory term of one and one-

half years. I.C. § 35-50-2-7(a). She received a maximum three-year term for

this conviction. Had the trial court imposed the maximum terms on each

conviction and run them consecutively, Carle faced a maximum aggregate

sentence of 103 years imprisonment. Instead, she received an aggregate term of

thirty-eight years.

[23] As to the nature of the offenses, it is difficult to overstate their depravity. Carle

knew that her boyfriend was molesting her daughter. She was frequently in the

house when it happened. And at times, she watched or participated. These

events lasted for years, and the molestations occurred nearly every day during

those long years of this young child’s life. Instead of being able to trust in and

rely on her mother, A.A. was repeatedly victimized and traumatized by Carle.

[24] As to Carle’s character, while it is true that she does not have a criminal history,

these offenses speak volumes about her character. Not only did Carle

repeatedly violate her daughter’s body and trust, she also threatened her

daughter with harm to prevent A.A. from telling anyone about the

molestations.

[25] If anything, the trial court showed admirable restraint in imposing an aggregate

term of thirty-eight years imprisonment. We do not find that the sentences are

inappropriate in light of the nature of the offenses and Carle’s character.

Court of Appeals of Indiana | Memorandum Decision 79A05-1504-CR-302 | February 12, 2016 Page 12 of 13 [26] The judgment of the trial court is affirmed.

Bradford, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 79A05-1504-CR-302 | February 12, 2016 Page 13 of 13