MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 28 2019, 10:41 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
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Bradley Keffer Curtis T. Hill, Jr. Brooke Smith Attorney General of Indiana Keffer Barnhart, LLP Robert A. Rowlett Indianapolis, Indiana Angela Sanchez Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA Guy Sheets, June 28, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2027 v. Appeal from the Adams Circuit Court State of Indiana, The Honorable Chad E. Kukelhan, Appellee-Plaintiff. Judge Trial Court Cause No. 01C01-1704-F1-1
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2027 | June 28, 2019 Page 1 of 14 [1] Guy Sheets (“Sheets”) was convicted in the Adams Circuit Court of three
counts: Count I child molesting (other sexual conduct), a Level 1 felony; Count
II child molesting (fondling or touching of a minor), a Level 4 felony; and
[2] Count III child molesting (submitting to touching by a minor), a Level 4 felony.
Sheets now appeals, arguing his convictions on Counts I and II violate the
prohibition against double jeopardy and that his aggregate sentence of forty-two
years is inappropriate in light of the nature of his offense and his character.
[3] We affirm.
Facts and Procedural History [4] Samantha Gumm (“Samantha”) and Dustin Sheets (“Dustin”) have two
children, eight-year old R.S. and six-year old Z.S. In August of 2014, R.S. and
Z.S. were removed from Samantha and Dustin’s home and placed with Sheets,
their paternal grandfather. The children lived with Sheets and his wife, Angie
Sheets (“Angie”), for approximately eight months before they returned to live
with Samantha and Dustin.
[5] At the end of 2016, Samantha and Dustin were moving and needed a
temporary place to live. Samantha and Dustin along with R.S. and Z.S. stayed
with Sheets for two to three months. Around Christmas, Samantha and Z.S.
moved out of Sheets’s home. However, Dustin and R.S. continued to reside
with Sheets because Dustin was on house arrest and R.S. wanted to finish the
school year at the same school she had been attending. Dustin later moved out
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2027 | June 28, 2019 Page 2 of 14 and stayed with Samantha and Z.S., leaving R.S. behind at her grandfather’s
house.
[6] During the periods when R.S. was not living at Sheets’s home, R.S. would visit
every weekend and routinely spend the entire weekend. Between December
2016 and the early months of 2017, Sheets and Angie had legal custody of R.S.
In early 2017, R.S. moved out of Sheets’s home and back in with her mother.
On March 2, 2017, seven-year-old R.S. told her mother that Sheets had touched
her inappropriately when she was living at Sheets’s home. Samantha testified
that R.S. was “frantic, hysterical, [and] crying” when she told her that Sheets
had been touching her private parts. Tr. Vol. II, p. 161. Samantha took R.S. to
the Adams Memorial Hospital emergency room to have R.S. evaluated for
injuries.
[7] On March 6, 2017, R.S. was interviewed at the Fort Wayne Child Advocacy
Center by Lorrie Freiburger (“Freiburger”). R.S recalled that she would
sometimes sleep in the same bed as Sheets because she was afraid of the spiders
that would come from the crack in the ceiling of her bedroom. Tr. Vol. II, pp.
214-15. R.S. stated that it was during these times that Sheets would “touch my
private parts and he made me touch his.” Id. at 213. R.S. stated that she
touched Sheets’s penis with her hand under his clothing and remembered it as
being “hairy.” Ex. Vol., State’s Ex. 7 at 26:12-26:24. R.S. would attempt to
pull her hand away, but Sheets would nonetheless compel her to place her hand
on his genitals. Tr. Vol. II, pp. 217-18. When Freiburger asked R.S. how many Court of Appeals of Indiana | Memorandum Decision 18A-CR-2027 | June 28, 2019 Page 3 of 14 times Sheets touched her, R.S. responded, “a little over fifty.” Id. at 220. R.S.
said that these incidents made her feel “uncomfortable.” Ex. Vol., State’s Ex. 7
at 38:55-39:38. Later in the interview, R.S. stated that Sheets never touched her
“monkey”1 with anything other than his finger. Ex. Vol., State’s Ex. 7 at 17:02–
17:20. Freiburger asked R.S. whether Sheets touched her on the outside of the
“monkey” or on the inside of her “monkey.” Id. R.S. stated that it was on the
inside. Id.
[8] On March 9, 2017, police interviewed Sheets. Sheets denied molesting R.S. and
stated that he and R.S. had “laid down together lots of times” when R.S. could
not sleep. Ex. Vol., State’s Ex. 13 at 7:59-8:25. Sheets explained that “the only
way” something could have happened was if he molested R.S. while he was
sleeping. Id. Sheets told the officer, “I didn’t do anything that I know of.” Ex.
Vol., State’s Ex. 13 at 15:45-16:28.
[9] On April 10, 2017, the State charged Sheets with Count I, child molesting as a
Level 1 felony; Count II, child molesting as a Level 4 felony; and Count III,
child molesting as a Level 4 felony. Count I alleged that Sheets penetrated
R.S.’s sex organ with his finger. Count II alleged that Sheets fondled or touched
1 R.S. referring to the female sex organ.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2027 | June 28, 2019 Page 4 of 14 R.S.’s sex organ. Count III alleged that Sheets submitted to touching of his sex
organ by R.S with intent to arouse or satisfy his sexual desires.
[10] A two-day jury trial commenced on March 22, 2018. The jury found Sheets
guilty as charged on all three counts of child molesting. A sentencing hearing
was held on August 7, 2018. Prior to the hearing, the trial court received and
read multiple letters written in support of mitigating Sheets’s sentence. The
court found the “magnitude” of the crime, the nature of the offense, and the
fact that Sheets had care, custody, and control of R.S. when the crime was
committed to be aggravators, the last being a statutory aggravator pursuant to
Ind. Code § 35-38-1-7.1(a)(8). Sheets was ordered to serve an aggregate forty-
two-year sentence. Specifically, he was ordered to serve thirty years executed at
the Indiana Department of Correction for Count I. On Counts II and III, Sheets
was sentenced to consecutive terms of six years for each count, and both
sentences were suspended to probation upon release from incarceration on
Count I, for a total of twelve years suspended to probation. Sheets now appeals.
I. Double Jeopardy
[11] Sheets contends that his convictions for Level 1 felony child molesting and
Level 4 felony child molesting violate his right to be free from double jeopardy.
The Indiana Constitution provides that “[n]o person shall be put in jeopardy
twice for the same offense.” Ind. Const. Art. 1, § 14. Our supreme court has
developed a two-part test for Indiana double jeopardy claims, holding that “two
or more offenses are the ‘same offense’ in violation of Article 1, Section 14, if,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2027 | June 28, 2019 Page 5 of 14 with respect to either the statutory elements of the challenged crimes or the
actual evidence used to convict, the essential elements of one challenged offense
also establish the essential elements of another challenged offense.” Richardson
v. State, 717 N.E.2d 32, 49 (Ind.1999).
[12] The “statutory elements test” referenced in Richardson is essentially the same
test enunciated in Blockburger v. United States, 284 U.S. 299 (1932). Brown v.
State, 912 N.E.2d 881, 896 (Ind. Ct. App. 2009), trans. denied. Multiple
convictions will not be precluded if each statutory offense requires proof of an
additional fact that the other does not. Robinson v. State, 835 N.E.2d 518, 522
(Ind. Ct. App. 2005). We look only to the statutory elements of the offenses. Id.
[13] Sheets contends that his convictions for Count I and Count II child molesting
violate the statutory elements test because “the State failed to delineate which of
the occurrences [of child molestation] it attributed to Count I and which it
attributed to Count II,” and because “the acts alleged by the State in Counts I
and II overlap significantly.” Appellant’s Br. pp. 13-14. We disagree. Level 1
felony child molesting requires “other sexual conduct,” which involves
penetration of the sex organ, while Level 4 felony child molesting requires
fondling or touching with intent to arouse sexual desires. See Ind. Code § 35-42-
4-3(a)(l) & (b). Because each offense requires proof of an additional fact which
the other does not, there is no violation of the statutory elements test. See Sloan
v. State, 947 N.E.2d 917, 924 (Ind. 2011) (“Sloan concedes that the statutory
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2027 | June 28, 2019 Page 6 of 14 elements of Class A felony child molesting and Class C felony child molesting
are different.”)
[14] Under the actual evidence test, the evidence presented at trial is examined to
determine whether each challenged offense was established by separate and
distinct facts. Lee v. State, 892 N.E.2d 1231, 1234 (Ind. 2008). To show that two
challenged offenses constitute the “same offense,” a defendant must
demonstrate a reasonable possibility that the evidentiary facts used by the fact-
finder to establish the essential elements of one offense may also have been used
to establish the essential elements of a second challenged offense. Id.
Application of this test requires the court to identify the essential elements of
each of the challenged crimes and to evaluate the evidence from the fact-finder’s
perspective. Id. The reviewing court may consider the charging information,
jury instructions, and arguments of counsel. Id. Violations of Indiana’s Double
Jeopardy Clause are reviewed de novo. Rexroat v. State, 966 N.E.2d 165, 168
(Ind. Ct. App. 2012), trans. denied.
[15] To convict Sheets of Level 1 felony child molesting as charged, the State was
required to prove that Sheets,
a person of at least twenty-one (21) years of age, did perform or submit to other sexual conduct as defined in Indiana Code Section 35-31.5-2-221.5. He penetrated [R.S.]’s sex organ with an object, to wit: his finger, a child under the age of fourteen years (14)[.]
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2027 | June 28, 2019 Page 7 of 14 Appellant’s App. p. 16. As alleged in the charging information, the State proved
that Sheets inserted his finger into R.S.’s vagina. In a video interview that was
played before the jury, R.S. stated that Sheets made her “hold this of his and he
put his finger down there on mine.”2 Ex. Vol., State’s Ex. 7 at 15:06–15:15.
Further, R.S. told the forensic interviewer that Sheets touched her inside of her
“monkey,” meaning that Sheets would place his finger inside R.S.’s labia
majora. Tr. Vol. II, pp. 213-16.; Tr. Vol. III, pp. 5-6. From this evidence, the
State proved that Sheets committed Level 1 felony child molesting.
[16] To convict Sheets of Count II Level 4 felony child molesting, the State was
required to prove that Sheets
did perform fondling or touching of [R.S.]’s sex organ, a child under the age of fourteen years, with the intent to arouse or satisfy the sexual desires of the child or defendant[.]
Appellant’s App. p. 16. In support of the Count II Level 4 felony child
molesting conviction, the State proved that Sheets touched R.S.’s genitals but
did not penetrate on more than one occasion. In a video statement, R.S. told
the interviewer that whenever Sheets touched her, he would do so under her
clothes, engaging in skin-to-skin contact. Tr. Vol. II, pp. 213-16.
2 By pointing to her own body parts and body parts on two diagrams of the male and female body, R.S. indicated that Sheets made her touch his penis and put his finger in her sex organ.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2027 | June 28, 2019 Page 8 of 14 [17] The prosecutor clearly explained to the jury that it had to rely on distinct
evidence in finding Sheets guilty under each count. Tr. Vol. III, pp. 38-40. The
jury could find Sheets guilty under Count I (other sexual conduct) based on one
of the fifty incidents and guilty under Count II (fondling or touching of a minor)
based on a different instance out of the fifty incidents. Id. at 38. If the jury did
not avail itself of that route, “the only other option” it had was to find Sheets
guilty of Count I (other sexual conduct) based on the first time R.S. was
molested and guilty of Count II (fondling or touching of a minor) based on the
last time R.S. was molested, or vice versa. Id. at 38-39. The prosecutor’s
statements to the jury in closing arguments made it clear that the jury had to
rely on different facts to convict Sheets of the two separate counts of “other
sexual conduct” and “fondling or touching of a minor.”
[18] The trial court further instructed the jury that they had to consider “the law and
the evidence as it may apply to each count individually and separately from the
other counts.” Appellant’s App. p. 126; Tr. Vol III, p. 57. Juries are presumed
to fulfill their oath and follow the court’s instructions. Tabor v. State, 461 N.E.2d
118, 125 (Ind. 1984). Given the evidence admitted at trial, counsel’s arguments
and the court’s instructions, we may reasonably presume that the jury identified
distinct, separate evidence for each count when finding Sheets guilty of each
count.
[19] Although the charged acts often occurred together, there was independent and
distinct evidence of both penetration and touching to support the Level 1 felony
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2027 | June 28, 2019 Page 9 of 14 and Level 4 felony child molesting convictions. See Sloan, 947 N.E.2d at 924
(rejecting the defendant’s double jeopardy argument because the defendant
penetrated the victim’s vagina numerous times and on multiple occasions
fondled and touched her breasts). Moreover, the fact that Sheets committed
numerous acts, over fifty times, of child molesting “greatly weighs against”
Sheets argument. See id. We conclude that there is no reasonable possibility that
the jury used the same evidentiary facts to establish both the essential elements
of the Level 1 felony child molesting charges and the essential elements of the
Level 4 felony child molesting charges. Consequently, there is no double
jeopardy violation.
II. Inappropriate Sentence
[20] Sheets argues that his aggregate forty-two-year sentence is inappropriate in light
of the nature of the offense and the character of the offender. Specifically,
Sheets argues that his sentence is inappropriate because he has no prior criminal
history, has stable employment, R.S. was not physically harmed or threatened
during the commission of his offenses, and approximately twenty-five
individuals wrote letters to the trial court in support of mitigating his sentence.
[21] Although a trial court may have acted within its lawful discretion in imposing a
sentence, Article 7, Sections 4 and 6 of the Indiana Constitution authorize
independent appellate review and revision of sentences through Indiana
Appellate Rule 7(B), which provides that a court “may revise a sentence
authorized by statute if, after due consideration of the trial court’s decision, the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2027 | June 28, 2019 Page 10 of 14 Court finds that the sentence is inappropriate in light of the nature of the offense
and the character of the offender.” Reid v. State, 876 N.E.2d 1114, 1116 (Ind.
2007) (citing Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007)). The
defendant has the burden of persuading us that his sentence is inappropriate. Id.
Finally, although we have the power to review and revise sentences, “[t]he
principal role of appellate 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).
[22] In this case, Sheets was ordered to serve a thirty-year advisory sentence for the
Level 1 felony conviction and the advisory six-year sentence for each Level 4
felony conviction. See Ind. Code §§ 35-50-2-4 & 5.5. The advisory sentence is a
helpful guidepost for ensuring fairness, proportionality, and transparency in
sentencing. Hamilton v. State, 955 N.E.2d 723, 726 (Ind. 2011) (citing Ind. Code
§ 35-50-2.1-3 (2008), which defined “advisory sentence” as “a guideline
sentence that the court may voluntarily consider as the midpoint between the
maximum sentence and the minimum sentence”). And because the “advisory
sentence is the starting point our General Assembly has selected as an
appropriate sentence for the crime committed, the defendant bears a
particularly heavy burden in persuading us that his sentence is inappropriate
when the trial court imposes the advisory sentence.” Fernbach v. State, 954
N.E.2d 1080, 1089 (Ind. Ct. App. 2011) (citing Golden v. State, 862 N.E.2d
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2027 | June 28, 2019 Page 11 of 14 1212, 1216 (Ind. Ct. App. 2007), trans. denied), trans. denied). Sheets was also
ordered to serve consecutive sentences due to the heinous nature of his offenses.
[23] Crimes against children are particularly contemptible. See Singer v. State, 674
N.E.2d 11 (Ind. Ct. App. 1996). However, our supreme court and this court
have found in various instances the imposition of consecutive sentences in child
molest cases to be inappropriate. See Rivers v. State, 915 N.E.2d 141 (Ind. 2009)
(finding that consecutive sentences totaling sixty years for two counts of child
molesting to be inappropriate and revising to concurrent terms of thirty years);
Monroe v. State, 886 N.E.2d 578, 580 (Ind. 2008) (explaining that consecutive
sentences totaling 100 years for five counts of child molesting inappropriate and
revising to concurrent terms of fifty years); Walker v. State, 747 N.E.2d 536, 538
(Ind. 2001) (imposing consecutive sentences totaling eighty years for two counts
of child molesting was inappropriate and revised to concurrent terms of forty
years); Laster v. State, 918 N.E.2d 428, 434 (Ind. Ct. App. 2009) (consecutive
sentences totaling sixty-four years for two counts of child molesting
inappropriate, revised to concurrent terms of thirty-six years). But based on our
review of the record, we are unconvinced that revision is warranted here
because both consecutive sentences were suspended to probation for a total of
twelve years.
[24] Concerning the nature of the offense, Sheets repeatedly molested five-year-old
R.S. more than fifty times over two-and-a-half years. The molestation included
fondling and penetration of R.S.’s sex organs during a time when R.S. was
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2027 | June 28, 2019 Page 12 of 14 vulnerable and in need of her grandfather’s support and protection. R.S.
testified that after the incidents, “whenever [she would] stand up it kind of
hurt.” Ex. Vol., State’s Ex. 7 at 16:41-17:31.
[25] “A harsher sentence is [] more appropriate when the defendant has violated a
position of trust that arises from a particularly close relationship between the
defendant and the victim, such as a parent-child. . . relationship.” Hillenburg v.
State, 777 N.E.2d 99, 108 (Ind. Ct. App. 2002). There is no question in this case
that Sheets violated his position of trust with R.S. when he subjected her to
repeated acts of molestation. Sheets was R.S.’s “favorite grandpa,” and she
lived with Sheets due to instability in R.S.’s parents’ lives. Tr. Vol. II, p. 141.
[26] Concerning the character of the offender, Sheets has no prior criminal history.
Sheets also cooperated in part with the police and was gainfully employed.
Although Sheets may have been a productive member of society, the severe and
grotesque nature of Sheets’ actions toward his own granddaughter support the
trial court’s decision to impose advisory sentences and to order the sentences to
run consecutively. Sheets has not met his substantial burden of persuading us
that his sentence is inappropriate in light of the nature of the offense and the
character of the offender.
Conclusion [27] Sheets’s convictions for Count I child molesting and Count II child molesting
do not violate the prohibition against double jeopardy. In addition, Sheets’s
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2027 | June 28, 2019 Page 13 of 14 aggregate forty-two-year sentence is not inappropriate in light of the nature of
his offense and his character. Accordingly, we affirm Sheets’s convictions for
child molesting and the sentences imposed.
Vaidik, C.J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2027 | June 28, 2019 Page 14 of 14