MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 14 2017, 8:35 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Esther Martin, July 14, 2017 Appellant-Defendant, Court of Appeals Case No. 20A05-1605-CR-1016 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Teresa L. Cataldo, Appellee-Plaintiff. Judge Trial Court Cause No. 20D03-1110-FA-27
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A05-1605-CR-1016 | July 14, 2017 Page 1 of 14 Case Summary [1] Esther Martin appeals her convictions and eighty-year sentence for two counts
of Class A felony child molesting. We affirm in part, reverse in part, and
remand.
Issues [2] The issues before us are:
I. whether the trial court properly admitted Martin’s recorded interview with police into evidence; and
II. whether her sentence is inappropriate.
Facts [3] Martin helped provide child care to brothers B.H. and A.H. at a daycare that
Martin’s mother, Arlene Martin, operated out of her home in rural Elkhart
County. Martin sometimes was left alone with the children while Arlene cared
for her own mother. Martin lived with her parents and did not work outside the
home.
[4] In January 2011, B.H. told his father that Martin had been touching him
inappropriately. At this time, B.H. was ten years old, and Martin was twenty-
six. B.H. believed that the touching began when he was six or seven years old.
B.H. said that the first occasion occurred when he was in the bathroom, and
Martin came in, closed the door, and kissed his “privates.” Tr. p. 923. Further
Court of Appeals of Indiana | Memorandum Decision 20A05-1605-CR-1016 | July 14, 2017 Page 2 of 14 similar incidents involving Martin kissing B.H.’s genitals or putting his penis in
her mouth occurred once or twice a week over the next few years.
[5] B.H.’s parents reported his statements to police, who then arranged to interview
Martin. Before the interview, Martin’s father told Detective Ryan Hubbell of
the Elkhart County Sheriff’s Department that Martin communicated at the level
of a twelve-year-old child. Detective Hubbell discussed this information with
coworkers and considered taking Martin to a local child and family advocacy
center that specializes in child abuse cases for an interview but ultimately
decided to interview her at the station. Detective Hubbell began the interview
by explaining Martin’s Miranda rights to her. Martin had never heard of the
rights before or seen them discussed on television; she and her parents are “Old
Order” Mennonites. Detective Hubbell went through each of the rights
individually and attempted to explain them to Martin in language she would
understand. Martin was not entirely clear as to what an attorney is or does;
Detective Hubbell explained that an attorney was someone who could give her
advice like her father did, but who knew more about the law than her father.
After initialing that she understood each of the rights and signing a waiver of
her rights, Detective Hubbell began questioning Martin.
[6] Throughout the eighty-minute-long interview, Martin consistently and
repeatedly denied ever touching B.H. in a sexual manner. She did say that B.H.
once tried to look up her dress and that she scolded him, and on at least one
other occasion, B.H. brushed up against her and touched her and she again
scolded him. Martin said that B.H. referred to her as his “girlfriend” but that
Court of Appeals of Indiana | Memorandum Decision 20A05-1605-CR-1016 | July 14, 2017 Page 3 of 14 she was uncomfortable being around B.H. as he got older because he talked
“yucky” and acted “disgusting.” Ex. 2. She also said that B.H. talked about
“yucky” movies he and his brothers sometimes watched when their parents
were not home. Id. Martin consistently referred to penises as “pee pees,” and
at one point asked Detective Hubbell why he was repeatedly talking about
“peanuts.” Id. Detective Hubbell explained that penises were the same as “pee
pees.” Id. Martin also said it made her “feel like throwing up” to think about
kissing a penis. Id.
[7] Also during the interview, Martin said that ten to fifteen years ago she had a
“problem” about wanting to touch the “pee pees” of children brought to her
mother’s daycare but that she had grown out of it. Id. She said that once, when
she was eleven or twelve, she touched the “pee pee” of a female infant, but her
mother saw her do it and told her “not to play with their pee pee or whatever.”
Id. Martin also described one incident, when she was about ten years old, when
she touched her younger cousin’s penis. Martin said she has prayed regularly
about her “problem” since she touched the infant girl, and that if she does not
pray, she feels “rebellious” and wants to kill herself. Id. She said she has never
had a boyfriend and has no interest in having one or getting married because
she does not “understand about a lot of stuff.” Id.
[8] On October 7, 2011, the State charged Martin with two counts of Class A
felony child molesting. In December 2011, psychologist Gerald Wingard
evaluated Martin at defense counsel’s request. Dr. Wingard concluded that
Martin had a full-scale IQ of sixty-two, which placed her in the range of mildly
Court of Appeals of Indiana | Memorandum Decision 20A05-1605-CR-1016 | July 14, 2017 Page 4 of 14 mentally handicapped. According to Dr. Wingard, a person’s IQ does not
change significantly over the course of their life. Dr. Wingard also evaluated
Martin’s abilities at certain tasks such as reading comprehension, math skills,
and spelling; the tests indicated Martin pronounced words equivalent to a
twelve-year-old but only understood words equivalent to a nine year and eight-
month-old child. Martin had to repeat the fifth grade as a child and did not
attend school beyond eighth grade.
[9] Defense counsel did not move to have Martin’s competency to stand trial
evaluated. However, after a jury had been seated for a trial set to commence on
July 7, 2014, one of the jurors sent a note to the trial judge asking if Martin’s
mental state had been evaluated. After receiving that note and speaking with
Dr. Wingard over the phone, the State agreed to Martin’s request for a mistrial
and that her competency be evaluated. Dr. Wingard opined that Martin was
incompetent to stand trial, as did two psychiatrists appointed by the trial court.
[10] The trial court ordered Martin committed to the Madison State Hospital. After
three months, a psychologist and a psychiatrist at the hospital agreed that
Martin was competent to stand trial. They believed that her IQ score of sixty-
two underestimated her mental abilities and that she was properly diagnosed as
having low intellectual functioning rather than mild mental retardation.
Additionally, it was reported that while hospitalized, Martin engaged in
repeated improper conduct with a fellow patient, such as grabbing her buttocks,
touching her face and attempting to kiss her, and hugging her. Martin also
Court of Appeals of Indiana | Memorandum Decision 20A05-1605-CR-1016 | July 14, 2017 Page 5 of 14 once grabbed a female staff member’s buttocks. Martin denied engaging in this
behavior or claimed not to remember it.
[11] Before Martin’s second jury trial commenced, defense counsel moved to
suppress her interview with Detective Hubbell on the basis that she did not
freely and voluntarily waive her Miranda rights due to her mental disability.
The trial court denied this motion. At trial, the interview was played to the
jury, although Martin’s references to having touched other children when she
herself was a child were redacted.
[12] On January 27, 2016, the second jury found Martin guilty of both counts of
Class A felony child molesting. The trial court sentenced Martin to terms of
forty years executed on each count, to be served consecutively for a total term
of eighty years. Martin now appeals.
Analysis I. Admission of Police Interview
[13] Martin first claims the trial court improperly admitted her police interview into
evidence because she did not understand or knowingly waive her Miranda
rights. “The admissibility of a confession is controlled by determining from the
totality of the circumstances whether the confession was made voluntarily and
was not induced by violence, threats, or other improper influences that
overcame the defendant’s free will.” Carter v. State, 730 N.E.2d 155, 157 (Ind.
2000). “The same test determines whether Miranda rights were voluntarily
waived.” Id. “In evaluating a claim that a statement was not given voluntarily,
Court of Appeals of Indiana | Memorandum Decision 20A05-1605-CR-1016 | July 14, 2017 Page 6 of 14 the trial court is to consider the totality of the circumstances, including the
crucial element of police coercion, the length of the interrogation, its location,
its continuity, the defendant’s maturity, education, physical condition, and
mental health.” Wells v. State, 904 N.E.2d 265, 271 (Ind. Ct. App. 2009), trans.
denied. Violations of Miranda will not result in reversal of a conviction if the
State can show beyond a reasonable doubt that the error did not contribute to
the verdict. Rawley v. State, 724 N.E.2d 1087, 1090 (Ind. 2000) (citing Chapman
v. California, 386 U.S. 18, 24, 87 S. Ct. 824 (1967)). In order to meet this
standard, the State must demonstrate that the alleged error was unimportant in
relation to everything else the jury considered on the issue in question, as
revealed by the record. Alford v. State, 699 N.E.2d 247, 251 (Ind. 1998).
[14] Here, even if we were to conclude that Martin’s interview with Detective
Hubbell was conducted in violation of Miranda, in light of her low IQ, we
conclude any such error in the admission of that interview into evidence would
be harmless beyond a reasonable doubt. Martin never confessed during that
interview, and instead repeatedly denied that she initiated any sexual conduct
with B.H. Rather, she discussed instances of inappropriate behavior by B.H.
that she rebuffed. Although Martin did mention instances of inappropriate
sexual behavior by her when she was much younger, those statements were
redacted when the video was played for the jury. By contrast, B.H. testified
about the repeated occurrences of sexual conduct by Martin. His pretrial
forensic interview, describing those occurrences, also was introduced during
trial. It is difficult to discern that the playing of the interview of the jury could
Court of Appeals of Indiana | Memorandum Decision 20A05-1605-CR-1016 | July 14, 2017 Page 7 of 14 have had a substantial impact on its verdict in light of B.H.’s clear testimony.
In other words, the interview was unimportant in relation to the evidence
supporting Martin’s conviction and its introduction was harmless error, if error
at all.1
II. Appropriateness of Sentence
[15] We now address Martin’s claim that her eighty-year sentence is inappropriate
under Indiana Appellate Rule 7(B) in light of the nature of the offenses and her
character. See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), aff’d on r’hg.
Although Rule 7(B) does not require us to be “extremely” deferential to a trial
court’s sentencing decision, we still must give due consideration to that
decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We
also understand and recognize the unique perspective a trial court brings to its
sentencing decisions. Id. “Additionally, a defendant bears the burden of
persuading the appellate court that his or her sentence is inappropriate.” Id.
[16] The principal role of Rule 7(B) review “should be to attempt to leaven the
outliers, and identify some guiding principles for trial courts and those charged
with improvement of the sentencing statutes, but not to achieve a perceived
‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). We “should focus on the forest—the aggregate sentence—rather than
1 Martin claims in part in her reply brief that Detective Hubbell improperly bolstered B.H.’s credibility by repeatedly stating during the interview that he did not think B.H. had lied when he accused Martin of molesting him. However, Martin does not develop a cogent argument supported by citation to authority that Detective Hubbell’s statements constituted improper vouching for B.H.
Court of Appeals of Indiana | Memorandum Decision 20A05-1605-CR-1016 | July 14, 2017 Page 8 of 14 the trees—consecutive or concurrent, number of counts, or length of the
sentence on any individual count.” Id. Whether a sentence is inappropriate
ultimately turns on the culpability of the defendant, the severity of the crime,
the damage done to others, and myriad other factors that come to light in a
given case. Id. at 1224. When reviewing the appropriateness of a sentence
under Rule 7(B), we may consider all aspects of the penal consequences
imposed by the trial court in sentencing the defendant, including whether a
portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,
1025 (Ind. 2010). A conviction for a Class A felony carries a sentencing range
of twenty to fifty years, with thirty years being the advisory term. 2 Ind. Code §
35-50-2-4(a).
[17] With respect to Martin’s character, she has no prior criminal history.
Generally, leniency should be shown to persons who have not yet been through
the criminal justice system. Filice v. State, 886 N.E.2d 24, 40 (Ind. Ct. App.
2008), trans. denied. It also is difficult to place much negative weight upon her
admission to two instances of inappropriate sexual conduct when she was ten to
twelve years old. We also note the evidence of Martin’s limited intellectual
functioning; although there was some disagreement as to the extent of that
limitation, there does seem to be no doubt that it exists, whether as a result of
mental disability, a sheltered upbringing with limited education, or a
2 Martin committed these offenses before the change from Class A-D to Level 1-6 felonies took effect.
Court of Appeals of Indiana | Memorandum Decision 20A05-1605-CR-1016 | July 14, 2017 Page 9 of 14 combination of the two. The several instances of inappropriate conduct that
were sexual in nature while she was at Madison State Hospital is troubling;
however, the conduct was not directed toward minors.
[18] Regarding the nature of the offenses, there is evidence Martin committed
considerably more than two acts of molestation upon B.H. The events occurred
repeatedly over a span of several years, beginning when B.H. was about six or
seven. Martin had a position of trust over B.H. as his babysitter. There is no
evidence that any of the acts resulted in physical injury to B.H., or that Martin
used force or threats to coerce B.H. Likewise, there is no evidence that Martin
victimized anyone other than B.H.
[19] We acknowledge that, when exercising our power to review and revise a
sentence, we are not required to compare a defendant’s sentence with sentences
received by other defendants in similar cases. Corbally v. State, 5 N.E.3d 463,
471-72 (Ind. Ct. App. 2014). “However, comparison of sentences among those
convicted of the same or similar offenses can be a proper consideration when
deciding whether a particular sentence is inappropriate.” Id. at 472. “[A]
respectable legal system attempts to impose similar sentences on perpetrators
committing the same acts who have the same backgrounds.” Serino v. State, 798
N.E.2d 852, 854 (Ind. 2003). With that in mind, we will consider several cases
with similar scenarios.
[20] In Harris v. State, 897 N.E.2d 927 (Ind. 2008), the defendant was convicted of
two counts of Class A felony child molesting based on two incidents of
Court of Appeals of Indiana | Memorandum Decision 20A05-1605-CR-1016 | July 14, 2017 Page 10 of 14 intercourse with the eleven-year-old daughter of his live-in girlfriend; the girl
considered him her father. The two incidents of which he was convicted were
only two of many incidents that had occurred since the girl was eight years old.
The trial court imposed consecutive sentences of fifty years for a total term of
100 years. Our supreme court reduced this to concurrent terms, or a total of
fifty years, based on the two counts being identical and involving the same
victim, as well as the defendant’s minimal criminal history. Harris, 897 N.E.2d
at 930.
[21] In Tyler v. State, 903 N.E.2d 463 (Ind. 2009), the defendant was convicted of
two counts of Class A felony child molesting, two counts of Class C felony
child molesting, and one count of Class D felony vicarious sexual gratification
for an incident involving five different children. He was sentenced to a total
term of 110 years, which included an habitual offender enhancement. Our
supreme court reduced the sentence to a total of sixty-seven and one-half years.
It based the reduction upon the fact that the defendant did not use force on or
physically injure the children, that he was not in a position of trust, and he had
no prior sex offense convictions. Tyler, 903 N.E.2d at 469. Additionally, the
court noted evidence of the defendant having had mental and emotional health
problems from an early age and that he had an IQ of between 61 and 72. Id.
[22] The final case we mention for comparison purposes is Pierce v. State, 949 N.E.2d
349 (Ind. 2011). In that case, the defendant repeatedly molested the ten-year-
old daughter of his live-in girlfriend over the course of a year. He was
convicted of three counts of Class A felony child molesting, one count of Class
Court of Appeals of Indiana | Memorandum Decision 20A05-1605-CR-1016 | July 14, 2017 Page 11 of 14 C felony child molesting, and was found to be a repeat sexual offender based
upon a prior Class C felony molesting conviction. He received a total sentence
of 124 years, but our supreme court reduced it to a total of eighty years. Pierce,
949 N.E.2d at 352-53. It acknowledged the defendant’s position of trust over
the victim and that the offenses occurred repeatedly, but also noted that only
one child was harmed. Id. It also noted that, aside from the prior molesting
conviction that formed the basis of the repeat sexual offender enhancement, the
defendant had no prior criminal history. Id.
[23] The State cites Pierce as supporting the eighty-year sentence in this case.
However, that defendant was convicted of more offenses than Martin and
additionally was found to be a repeat sexual offender. As such, we take more
guidance from the fact that our supreme court reduced that defendant’s
sentence by over a third.
[24] Martin’s position of trust over B.H. and the fact that repeated incidents
occurred over several years are egregious circumstances, but are similar to those
in Harris and Pierce. As was the case in Harris and Pierce, B.H. was the only
victim and the alleged incidents all were similar. As was the case in Tyler, there
was no evidence Martin used force or threats against B.H. and no evidence of
physical injury to him. Martin also has no criminal history, unlike the
defendants in Harris, Tyler, and Pierce. She has documented mental limitations,
like the defendant in Tyler, although they do not appear to be as severe as that
defendant’s problems.
Court of Appeals of Indiana | Memorandum Decision 20A05-1605-CR-1016 | July 14, 2017 Page 12 of 14 [25] We are cognizant that crimes against children are particularly heinous. See
Pierce, 949 N.E.2d at 352. The repeated occurrences and Martin’s position of
trust over B.H. warrant an enhanced sentence. But given the nature of the
offenses of which Martin was convicted and her character, and after considering
cases from our supreme court addressing similar scenarios, we cannot conclude
that those sentences should be served consecutively. We find her aggregate
eighty-year sentence to be inappropriate. We revise Martin’s sentence and
order that her two forty-year sentences be served concurrently rather than
consecutively.
Conclusion [26] Even if it was erroneous to admit Martin’s interview with police into evidence,
any such error was harmless beyond a reasonable doubt. We affirm her
convictions. However, we reverse her sentence and remand for the trial court
to enter an amended sentencing order directing that her forty-year sentences be
served concurrently.
[27] Affirmed in part, reversed in part, and remanded.
Crone, J., concurs.
Baker, J., concurs and dissents with separate opinion.
Court of Appeals of Indiana | Memorandum Decision 20A05-1605-CR-1016 | July 14, 2017 Page 13 of 14 IN THE COURT OF APPEALS OF INDIANA
Esther Martin, Court of Appeals Case No. 20A05-1605-CR-1016 Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.
Baker, Judge, concurring in part, dissenting in part.
[28] While I concur as to the first issue because of harmless error, I must dissent as
to the sentencing issue.
[29] The majority has eloquently explained why the eighty-year sentence is
inappropriate. I believe that explanation compels a sentence for each
conviction of no more than the advisory sentence of thirty years and, like the
majority, believe that the sentences should be concurrent.
[30] While Martin was in a position of trust and there were more incidents than
charged, the evidence is without challenge that because of Martin’s mental
limitations, she was found to be incompetent to stand trial at one time, and she
has no criminal history.
[31] Thus, I would believe a thirty-year sentence appropriate.
Court of Appeals of Indiana | Memorandum Decision 20A05-1605-CR-1016 | July 14, 2017 Page 14 of 14