Franklin E. Lee v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 3, 2020
• Docket: 20A-CR-113
• 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 Aug 03 2020, 8:49 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana Myriam Serrano Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Franklin E. Lee, August 3, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-113 v. Appeal from the Jackson Circuit Court State of Indiana, The Honorable Richard W. Appellee-Plaintiff. Poynter, Judge Trial Court Cause No. 36C01-1804-F1-2

Bradford, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020 Page 1 of 12 Case Summary [1] In April of 2018, Franklin E. Lee molested his then-ten-year old step-

granddaughter. After a jury found him guilty of Level 1 felony child molesting,

he was sentenced to thirty-five years of incarceration. On appeal, Lee

challenges the sufficiency of the evidence to sustain his conviction and the

appropriateness of his sentence. We affirm.

Facts and Procedural History [2] In April of 2018, M.D. and her sisters resided in a home with their

grandmother, Karen Lee, and step-grandfather, Lee. M.D. was ten years old.

Lee was thirty-nine years old.

[3] On April 17, 2018, Karen left M.D. and her sisters in Lee’s care overnight.

M.D. observed Lee consume four beers over the course of the evening. At

some point, Lee fell asleep and M.D. and her sisters were unable to rouse him

before they went upstairs to get ready for bed. M.D. was awoken later that

night when she “felt someone kind of touching [her] leg,” moving their hand

“down [her] leg.” Trial Tr. Vol. II pp. 143, 144. Although M.D. did not see

Lee, she believed that it was he who had touched her. M.D. went back to sleep

after the touching stopped.

[4] Sometime later, Lee knocked on M.D.’s bedroom door “asking if [she] was

awake.” Trial Tr. Vol. II p. 145. He then asked her “if [she] wanted to go

downstairs” to the patio. Trial Tr. Vol. II p. 146. M.D. accompanied Lee

Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020 Page 2 of 12 outside and they sat together on a chair on the patio. Lee invited M.D. to sit on

his lap, which she did. Once M.D. was on his lap, Lee “started touching”

M.D.’s vagina, which M.D. referred to as her “pee area”. Trial Tr. Vol. II p.

147. Lee’s hand was placed under both M.D.’s pajamas and underwear. While

touching M.D., Lee instructed her to “look at the sky,” commenting on “how

pretty it was.” Trial Tr. Vol. II p. 148. Lee left his hand on M.D.’s vagina for

“like two (2) minutes.” Trial Tr. Vol. II p. 148. Lee and M.D. then went back

inside.

[5] Once inside, Lee invited M.D. to go into his bedroom. M.D. went into the

bedroom and lay down on the bed. Lee lay down next to M.D. and again

touched her vagina under her clothes. Lee’s fingers were “just outside the hole”

where girls “pee out of.” Trial Tr. Vol. II pp. 152, 151. Lee left his hand on

M.D.’s vagina for “like two (2) minutes.” Trial Tr. Vol. II p. 152. After Lee

removed his hand, M.D. briefly fell asleep. M.D. was awoken by Lee

“touching [her] butt” cheek under her clothes. Trial Tr. Vol. II p. 152. She

briefly fell back asleep after Lee removed his hand. M.D. was briefly awoken a

short time later by Lee again touching her vagina under her clothes.

[6] M.D. was again awoken when Lee “asked if he could do one more thing.”

Trial Tr. Vol. II p. 153. He “proceeded to ask [M.D.] to take off [her] pants and

then [when she] didn’t really do it, he just kind of took them off, [and] told [her]

to raise [her] butt.” Trial Tr. Vol. II p. 153. Lee then “opened” M.D.’s legs

“like a double door” and started licking her vagina with his tongue. Trial Tr.

Vol. II p. 154. Lee told M.D. “that everything was going to be okay” after she

Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020 Page 3 of 12 asked him to stop. Trial Tr. Vol. II p. 155. Lee continued licking M.D.’s

vagina for “[t]wo (2) or three (3) minutes.” Trial Tr. Vol. II p. 156. After Lee

stopped, M.D. went to the bathroom and “tried to kind of like clean out” her

vagina, which was “wet” from Lee’s “spit.” Trial Tr. Vol. II p. 156. After

finishing in the bathroom, M.D. went back upstairs to her bedroom. M.D.

went back to sleep but was again awoken by Lee, who told her that “he was

going to shoot himself and how much he hated himself.” Trial Tr. Vol. II p.

157.

[7] The next morning, before taking M.D. and her sisters to school, Lee twice

asked M.D. if she “was ok” and stated that he hoped she would not tell anyone.

Trial Tr. Vol. II p. 159. M.D. did tell some, reporting Lee’s actions to the

school librarian, who then reported the incident to the Department of Child

Services (“DCS”). Later that afternoon, DCS informed Karen. Karen

confronted Lee. At first Lee denied any wrongdoing. Eventually, however,

Lee admitted that he had “rubbed” M.D.’s vagina and “bottom.” Trial Tr. Vol.

II p. 181. Lee claimed to have been asleep when he touched M.D. When

Karen asked Lee “how he could do something like that,” Lee responded that

“[h]e was sorry and he was going to go to Hell for what he had done.” Trial Tr.

Vol. II p. 181. Lee later texted Karen, telling her that he was sorry and asking

whether Karen had contacted the police. During a subsequent interview at the

Child Advocacy Center, M.D. revealed that Lee’s tongue had manipulated her

vaginal opening.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020 Page 4 of 12 [8] On April 30, 2018, the State charged Lee with one count of Level 1 felony child

molesting. A two-day jury trial commenced on October 8, 2019. Lee

absconded following the first day of trial. The jury returned a guilty verdict on

October 9, 2019, and Lee was located and arrested in Louisville, Kentucky, a

few days later. The trial court subsequently sentenced Lee to thirty-five years of

incarceration.

Discussion and Decision I. Sufficiency of the Evidence [9] Lee contends that the State produced insufficient evidence to sustain his

conviction.

When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder’s role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court’s ruling. Appellate courts affirm the conviction unless no reasonable fact- finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146–47 (Ind. 2007) (citations, emphasis, and

quotations omitted). A “molested child’s uncorroborated testimony is sufficient

Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020 Page 5 of 12 to sustain a conviction.” Amphonephong v. State, 32 N.E.3d 825, 832 (Ind. Ct.

App. 2015) (internal quotation omitted); see also Robinson v. State, 446 N.E.2d

1287, 1291 (Ind. 1983) (providing that a victim’s uncorroborated testimony was

sufficient to sustain the defendant’s conviction for child molesting).

[10] In order to prove that Lee committed Level 1 felony child molesting, the State

was required to prove that Lee, who was at least twenty-one years of age,

knowingly or intentionally performed or submitted to sexual intercourse or

other sexual conduct with a child under fourteen years of age. Ind. Code § 35-

42-4-3. “‘Other sexual conduct’ means an act involving: (1) a sex organ of one

(1) person and the mouth or anus of another person; or (2) the penetration of

the sex organ or anus of a person by an object.” Ind. Code § 35-31.5-2-221.5.

We have previously concluded that “a finger is an object for purposes of the

child molesting statute.” Seal v. State, 105 N.E.3d 201, 209 (Ind. Ct. App.

2018). Lee does not dispute on appeal that the State proved the age

requirements of Indiana Code section 35-42-4-3. He only argues that the

evidence is insufficient to prove that he knowingly or intentionally performed

sexual conduct on M.D.

[11] Lee asks us to re-evaluate M.D.’s testimony based upon the incredible dubiosity

rule.

This rule is applicable only when a lone witness offers inherently contradictory testimony that is equivocal or the result of coercion and there is a complete lack of circumstantial evidence of the appellant’s guilt. To interfere with the jury’s authority to judge witness credibility and evaluate evidence, the court must be

Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020 Page 6 of 12 presented with testimony which runs counter to human experience and that reasonable persons could not believe.… The incredible dubiosity test is a difficult standard to meet, one that requires great ambiguity and inconsistency in the evidence.

Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001) (internal citations and

quotations omitted).

[12] Review of the record reveals that M.D.’s testimony was consistent and was

partially corroborated by other evidence in the record. M.D. consistently

testified that on both the patio and in Lee’s bedroom, Lee touched her vagina

with his fingers under her clothes and that his fingers “were just outside the

hole” where females “pee out of.” Trial Tr. Vol. II p. 152. M.D. also

consistently testified that in Lee’s bedroom, after removing her pajamas and

underwear, Lee “told [M.D.] to raise [her] butt,” trial tr. vol. II p. 153,

“opened” her legs, trial tr. Vol. II p. 154, and “started licking” her vagina. Trial

Tr. Vol. II p. 153. After Lee stopped, M.D. went to the bathroom and “tried to

clean out” her vagina, which was “wet” with Lee’s “spit.” Trial Tr. Vol. II p.

156.

[13] Lee asserts that M.D.’s testimony should be found to be unreliable because it

was “not corroborated by physical evidence.” Appellant’s Br. p. 14. While

there is no physical evidence in the record corroborating M.D.’s account of

what happened, there is ample evidence corroborating other aspects of M.D.’s

testimony. The corroborating evidence includes Lee’s admission to Karen and

Seymour Police Detective Troy Munson that he touched M.D.’s vagina and

Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020 Page 7 of 12 buttocks with his hand and Lee’s admission to Karen that he “rubbed” M.D.’s

vagina and buttocks and that he “was sorry and he was going to Hell for what

he had done.” Trial Tr. Vol. II p. 181. M.D.’s testimony was not incredibly

dubious.

[14] Lee also asserts that the evidence is insufficient to prove that he acted with the

requisite mens rea, claiming that he was asleep when he molested M.D. The

culpability requirement of the child molesting statute is “knowingly or

intentionally.” Ind. Code § 35-42-4-3. “A person engages in conduct

‘knowingly’ if, when he engages in the conduct, he is aware of a high

probability that he is doing so.” Ind. Code § 35-41-2-2(b). “A person engages

in conduct ‘intentionally’ if, when he engages in the conduct, it is his conscious

objective to do so.” Ind. Code § 35-41-2-2(a). “The intent element of child

molesting may be established by circumstantial evidence and may be inferred

from the actor’s conduct and the natural and usual sequence to which such

conduct usually points.” Bowles v. State, 737 N.E.2d 1150, 1152 (Ind. 2000).

M.D. testified that on the night in question, Lee touched her numerous times in

numerous locations in and around their home, including in M.D.’s bedroom,

the patio, and Lee’s bedroom.

[15] Lee touched M.D.’s vagina under her clothing both outside on the patio and in

his bedroom and performed oral sex on M.D. in his bedroom. The jury could

reasonably infer from M.D.’s testimony that Lee was awake and acted

knowingly or intentionally when he committed the acts in various locations in

and around the family’s home. As such, we conclude that the evidence,

Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020 Page 8 of 12 including the reasonable inferences that can be drawn therefrom, is sufficient to

support the jury’s determination that Lee knowingly or intentionally performed

sexual conduct on M.D. See Amphonephong, 32 N.E.3d at 833 (providing that

the victim’s testimony regarding the defendant’s actions together with the

reasonable inferences therefrom was sufficient to support the jury’s

determination that the defendant acted knowingly when he molested the

victim). Lee’s challenge to the sufficiency of the evidence amounts to nothing

more than a request to reweigh M.D.’s credibility and the evidence, which we

will not do. See Stewart v. State, 768 N.E.2d 433, 435 (Ind. 2002) (“We do not

reweigh the evidence or assess the credibility of witnesses.”).

II. Appropriateness of Sentence [16] Lee also contends that his thirty-five-year sentence is inappropriate. Indiana

Appellate Rule 7(B) provides that “The Court may revise a sentence authorized

by statute if, after due consideration of 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.” In analyzing such claims, we “concentrate less on

comparing the facts of [the case at issue] to others, whether real or hypothetical,

and more on focusing on the nature, extent, and depravity of the offense for

which the defendant is being sentenced, and what it reveals about the

defendant’s character.” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008)

(internal quotation omitted). The defendant bears the burden of persuading us

that his sentence is inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind.

Ct. App. 2008).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020 Page 9 of 12 [17] The trial court sentenced Lee to a term of thirty-five years for his Level 1 felony

child-molesting conviction. Indiana Code section 35-50-2-4(c) provides that

“[a] person who commits a Level 1 felony child molesting offense … shall be

imprisoned for a fixed term between twenty (20) and fifty (50) years, with the

advisory sentence being thirty (30) years.” Thus, in sentencing Lee to a thirty-

five-year term, the trial court imposed a slightly-aggravated sentence.

[18] Lee presents the following argument in support of his assertion that his sentence

is inappropriate in light of the nature of his offense:

Lee’s alleged conduct did not exceed the statutory elements for the offense he was convicted of. There is no evidence that Lee physically harmed or threatened to harm M.D. M.D. did not indicate that Lee had threatened her or physically restrained her. The nature of the acts Lee is alleged to have engaged in did not support the imposition of an aggravated sentence.

Appellant’s Br. p. 17. We disagree.

[19] Lee violated a position of trust by molesting his then-ten-year-old step-

granddaughter. Lee and Karen shared custody of M.D. and her sisters.

Furthermore, Lee did not commit only one act of molestation, but rather

multiple acts of molestation, in multiple areas in and around the family’s home.

In a letter provided at sentencing, Karen informed the trial court M.D. had

suffered emotional harm as a result of Lee’s actions. Karen indicated that Lee

“was someone [she and her granddaughters] trusted and loved very much”

before he “betrayed” them. Sent. Tr. Vol. II p. 8. Karen further indicated that

M.D. “adored” Lee “and he did the unthinkable” to her. Sent. Tr. Vol. II p. 8. Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020 Page 10 of 12 As a result of Lee’s actions, M.D. attends therapy, “won’t sleep upstairs [in her

bedroom] or alone,” “is afraid of the dark,” and “is very leery of others,”

especially men. Sent. Tr. Vol. II p. 8. M.D. informed the court the Lee “broke

[her] family,” stating that she “used to have a happy family like all [of her]

friends, but now it is broken.” Sent. Tr. Vol. II p. 9. Both Karen’s and M.D.’s

statements demonstrate the M.D. has suffered as a result of Lee’s actions.

[20] As for his character, Lee asserts that he is a high school graduate and has

earned an associate’s degree. Lee claims to have a relatively minor criminal

history consisting of only one prior conviction for Class A misdemeanor

possession of marijuana. He also claims to have the support of his new wife

and his father, who is willing to take him into his home. During the sentencing

hearing, Lee’s father described Lee as “honest, he was a good father, he always

had a job, always provided for his family when he was married the best that he

could.” Sent. Tr. Vol. II p. 5. The trial court, however, was not required to

accept Lee’s father’s testimony as proof of good character. See Shorter v. State,

144 N.E.3d 829, 839 (Ind. Ct. App. 2020).

[21] While Lee might have been a largely law-abiding citizen, his actions involving

M.D. demonstrate poor character. Lee violated a position of trust by molesting

his step-granddaughter, who was only ten years old at the time. Lee told M.D.

that “he was going to shoot himself” and “hated himself” and suggested that if

she told anyone about what happened, he would go to Hell. Trial Tr. Vol. II p.

157. The episode negatively impacted M.D., causing her to suffer emotional

pain.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020 Page 11 of 12 [22] Furthermore, Lee attempted to avoid incarceration by absconding following the

first day of trial. A few days after he was convicted, Lee was arrested in

Louisville, Kentucky. Lee admitted that he “had devised a plan to flee to

Louisville and purchase enough methamphetamine to kill himself via overdose.

He had a secondary plan to attempt suicide by law enforcement and was hoping

to be able to get police officers to shoot him when he was taken into custody.”

Appellant’s App. Vol. II p. 117. Lee, however, did not kill himself but was

living in Louisville at the time of his arrest. Lee’s decision to abscond and

attempt to avoid the consequences of his actions does not reflect well on his

character. Lee has failed to convince us that his aggregate thirty-five-year

sentence is inappropriate. See Sanchez, 891 N.E.2d at 176 (“The defendant

bears the burden of persuading us that his sentence is inappropriate.”).

[23] The judgment of the trial court is affirmed.

Najam, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020 Page 12 of 12