Elven McCarty v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 31, 2020
• Docket: 19A-CR-1850
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 31 2020, 11:09 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. Lemon Curtis T. Hill, Jr. Knox, Indiana Attorney General of Indiana Josiah Swinney Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Elven McCarty, March 31, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1850 v. Appeal from the Starke Circuit Court State of Indiana, The Honorable Appellee-Plaintiff Kim Hall, Judge Trial Court Cause Nos. 75C01-1804-FA-1 75C01-1804-F4-3

Vaidik, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1850 | March 31, 2020 Page 1 of 9 Case Summary [1] Elven McCarty appeals his convictions and seventy-seven-year sentence for

child molesting, incest, and sexual battery. He argues that the evidence is

insufficient to support his convictions and that his sentence is inappropriate.

We affirm.

Facts and Procedural History [2] In October 2017, McCarty’s daughter, sixteen-year-old R.M., reported to

friends and then to authorities that McCarty had been sexually abusing her

since she was nine years old. After a five-month investigation, the State

charged McCarty with ten counts: Count 1, child molesting as a Class A felony;

Count 2, child molesting as a Class A felony; Count 3, incest as a Class B

felony; Count 4, incest as a Class B felony; Count 5, incest as a Class B felony;

Count 6, child molesting as a Class C felony; Count 7, sexual misconduct with

a minor as a Level 4 felony; Count 8, incest as a Level 4 felony; Count 9, incest

as a Level 4 felony; and Count 10, sexual battery as a Level 6 felony.

[3] A jury trial was held in December 2018. R.M. testified that McCarty

performed oral sex on her “a few” times starting when she was “[a]bout 9.” Tr.

Vol. II p. 192. When R.M. was eleven, McCarty started having her perform

oral sex on him “[a] lot,” and he would ejaculate in her mouth. Id. at 197.

McCarty began having anal sex with R.M. when she was “[a]bout 12 or 13.”

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1850 | March 31, 2020 Page 2 of 9 Id. at 198. R.M. could not remember how many times McCarty had anal sex

with her, but it was “more than once.” Id. at 211. She would ask him to stop

because “it hurt.” Id. After the first time, R.M. “was bleeding.” Id. at 210.

When R.M. was “about, like, 14,” McCarty started rubbing his penis on her

vagina. Id. at 212. McCarty did this “a lot” of times. Id. at 213. In 2017,

when R.M. was sixteen years old, McCarty began having vaginal intercourse

with her “at least once a week.” Id. at 220. R.M. testified, “He told me that

either I was going to do it or he was going to kill me.” Id. at 218. The last time

was on October 26, 2017. After that, R.M. reported the abuse to a friend,

which led to the police investigation.

[4] The jury found McCarty guilty on Counts 1, 2, 3, 4, 5, 6, 9, and 10 and not

guilty on Counts 7 and 8. To avoid double jeopardy, the trial court vacated the

guilty verdicts on Counts 3, 4, and 6 and entered convictions on only Counts 1,

2, 5, 9, and 10. In sentencing McCarty, the court found two aggravating

circumstances: (1) McCarty was in a position having care, custody, or control

of R.M. and (2) the harm, injury, loss, or damage suffered by R.M. was

significant and greater than the elements necessary to prove the commission of

the offenses. The court also found two mitigating circumstances: (1) McCarty

led a law-abiding life for a substantial period before his sexual abuse of R.M.

and (2) McCarty has significant family support. Finding that the aggravators

“far outweigh” the mitigators, Appellant’s App. Vol. II p. 51, the trial court

imposed a sentence of seventy-seven years: consecutive advisory sentences of

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1850 | March 31, 2020 Page 3 of 9 thirty years for Count 1, thirty years for Count 2, ten years for Count 5, six

years for Count 9, and one year for Count 10.

[5] McCarty now appeals.

Discussion and Decision [6] McCarty raises two issues on appeal. He contends that the State did not

present sufficient evidence to support his convictions and that, even if it did, his

sentence is inappropriate.

I. Sufficiency of Evidence [7] McCarty first argues that the evidence is insufficient to support his convictions.

Specifically, he asserts that R.M.’s testimony was not believable. McCarty

acknowledges that appellate courts generally will not judge witness credibility,

but he invokes the incredible-dubiosity rule. Under that rule, we can judge a

witness’s credibility where there is inherently improbable testimony or coerced,

equivocal, wholly uncorroborated testimony that is so incredibly dubious that

no reasonable person could believe it. See Fajardo v. State, 859 N.E.2d 1201,

1208 (Ind. 2007). Because we are hesitant to impinge upon the factfinder’s role,

application of this rule is rare. Id.

[8] McCarty’s argument that R.M.’s testimony was incredibly dubious fails at the

outset. His brief does not include a single citation to the nearly 500-page trial

transcript, let alone to R.M.’s testimony. We will not scour the record to

determine whether the evidence supports McCarty’s conclusory claim. See Ind. Court of Appeals of Indiana | Memorandum Decision 19A-CR-1850 | March 31, 2020 Page 4 of 9 Appellate Rule 46(A)(8)(a) (requiring that each contention be supported by

citations to “the Appendix or parts of the Record on Appeal relied on”).

[9] In any event, McCarty’s argument would not justify application of the

incredible-dubiosity rule. His entire argument is as follows:

For all of the years alleged by the victim, two (2) adults and four (4) children lived in this small three (3) bedroom home. But with all of these people living in this small home, nobody saw or heard anything regarding any of the encounters described by R.M. In addition, R.M. would have had numerous opportunities over the supposed several year period to tell anyone about these allegations but did not. She chose to list these allegations after her father had grounded her for having sexual relations with her older boyfriend in the family’s business located in Starke County. In addition, there was no medical evidence to back up whether or not any of these actions by her Father had actually occurred. R.M.’s story is inherently improbable, incredibly dubious and utterly impossible to believe.

Appellant’s Br. pp. 9-10. These facts—no one else who lived in the house was

aware of any abuse, it took a long time for R.M. to disclose the abuse, and there

was no medical evidence—are common in molestation cases and by no means

make R.M.’s testimony incredibly dubious. Not surprisingly, McCarty does

not cite any authority suggesting otherwise. We affirm McCarty’s convictions.

II. Sentence [10] McCarty also contends that his sentence is inappropriate and asks us to reduce

it pursuant to Indiana Appellate Rule 7(B), which provides that an appellate

court “may revise a sentence authorized by statute if, after due consideration of

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1850 | March 31, 2020 Page 5 of 9 the trial court’s decision, the Court finds that the sentence is inappropriate in

light of the nature of the offense and the character of the offender.” “Whether a

sentence is inappropriate ultimately turns on the culpability of the defendant,

the severity of the crime, the damage done to others, and a myriad of other

factors that come to light in a given case.” Thompson v. State, 5 N.E.3d 383, 391

(Ind. Ct. App. 2014) (citing Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.

2008)). Because we generally defer to the judgment of trial courts in sentencing

matters, defendants have the burden of persuading us that their sentences are

inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind. Ct. App. 2016).

[11] As an initial matter, McCarty, who is forty-four years old, asserts that he “will

not be eligible for release until the approximate age of 84” with good-time

credit, that this amounts to a life sentence, and that we should therefore proceed

as though he received the “de facto maximum possible sentence.” Appellant’s

Br. p. 12. He cites the principle that “maximum sentences should generally be

reserved for the worst offenses and offenders,” Mishler v. State, 894 N.E.2d 1095,

1104 (Ind. Ct. App. 2008), and contends that he “did not commit the worst of

offenses” and that he is not “the worst of offenders,” Appellant’s Br. p. 12.

That might be true (McCarty had no felony convictions before this case), but he

does not cite any authority supporting his claim that every sentence that will

keep the defendant in prison until age eighty-four should be treated as the

maximum sentence. Moreover, the trial court did not even impose the

maximum sentence for any of the individual counts, let alone the maximum

total sentence. Rather, it imposed the advisory sentence for each individual

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1850 | March 31, 2020 Page 6 of 9 count. That resulted in a total sentence of seventy-seven years, while the actual

maximum sentence the court could have imposed was 134 1/2 years (fifty years

for each of the two Class A felonies, Ind. Code § 35-50-2-4; twenty years for the

Class B felony, Ind. Code § 35-50-2-5; twelve years for the Level 4 felony, Ind.

Code § 35-50-2-5.5; and two-and-a-half years for the Level 6 felony, Ind. Code §

35-50-2-7). For these reasons, we reject McCarty’s invitation to treat his

sentence as the “maximum possible sentence.”

[12] Regarding the nature of the offenses, McCarty contends: “There is nothing in

the record about how McCarty allegedly committed the crimes that makes them

more egregious than is inherent in any child molesting offense. In particular,

McCarty did not physically brutalize or harm the victim in any manner not

already inherent in the nature of these offenses.” Appellant’s Br. p. 12. That is

not true, as the trial court explained so well in its finding of aggravating factors:

The Court finds as an aggravating factor that the Defendant was in a position having care, custody, or control of the victim of the offense. The Court further finds that the harm, injury, loss, or damage suffered by the victim of the Defendant’s crimes upon her was significant and greater than the elements necessary to prove the commission of the offenses. The testimony given by the victim during the trial was that her father, the Defendant, routinely engaged in sexual activity with her in their home, beginning at the age of nine (9), and engaged in that harmful and felonious behavior several times a week over a period of five (5) years. Nevertheless, even if the frequency was only twice a week, the Defendant engaged in such destructive behavior over five hundred (500) times. The victim gave a statement at the Sentencing Hearing explaining that she has been to two (2) therapists, but they have provided no help to her. She also

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1850 | March 31, 2020 Page 7 of 9 explained that by reporting her father’s crimes, and testifying at the jury trial, she has been alienated from her immediate family members. She has lost her home, the love of her family, and much of her identity since revealing her father’s sexual crimes to legal authorities. There is little reason to believe that the impact on the victim of the Defendant’s crimes will last less than her entire lifetime. Such destructive and harmful criminal activity perpetrated upon an innocent child with such regularity over such a lengthy period of the child’s life, constitutes an aggravating factor for which this Court is compelled to attribute the most significant weight possible.

Appellant’s App. Vol. II p. 50.

[13] As for McCarty’s character, it is true—as the trial court found—that his

criminal history is minimal, consisting only of misdemeanor convictions in

1994, 2000, and 2005. However, that history must be balanced against

McCarty’s disturbing and sustained abuse of his daughter, which of course

reflects very poorly on his character.

[14] McCarty directs us to eight sexual-abuse cases in which Indiana’s appellate

courts revised sentences from consecutive to concurrent. Rivers v. State, 915

N.E.2d 141 (Ind. 2009); Tyler v. State, 903 N.E.2d 463 (Ind. 2009); Harris v.

State, 897 N.E.2d 927 (Ind. 2008); Monroe v. State, 886 N.E.2d 578 (Ind. 2008);

Prickett v. State, 856 N.E.2d 1203 (Ind. 2006); Walker v. State, 747 N.E.2d 536

(Ind. 2001); Laster v. State, 918 N.E.2d 428 (Ind. Ct. App. 2009); Kien v. State,

782 N.E.2d 398 (Ind. Ct. App. 2003), reh’g denied, trans. denied. However, he

does not address the particular facts and circumstances of five of those cases.

The other three cases are distinguishable from this case. In Harris, the trial

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1850 | March 31, 2020 Page 8 of 9 court had imposed consecutive maximum sentences of fifty years each for two

counts of Class A felony child molesting. 897 N.E.2d at 928. McCarty

received the advisory sentence for each of his crimes. In Monroe, the

defendant’s abuse of the victim lasted two years. 886 N.E.2d at 578. McCarty

abused R.M. for seven years. In Laster, the defendant molested the victim

“between five and ten times,” 918 N.E.2d at 430, the crimes did not “appear to

have occurred over a lengthy period of time,” id. at 435, and there was “no

evidence that there was other uncharged sexual misconduct on Laster’s part,”

id. The same cannot be said here. In addition, none of those cases involved a

father’s sexual abuse of his own child, as occurred here. McCarty has failed to

convince us that the imposition of consecutive advisory sentences in this case

was inappropriate.

[15] Affirmed.

May, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1850 | March 31, 2020 Page 9 of 9