MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 15 2020, 8:56 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 Jane H. Ruemmele Curtis T. Hill, Jr. Hayes Ruemmele, LLC Attorney General of Indiana Indianapolis, Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
James S. McKinley, April 15, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1557 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Shatrese M. Flowers, Appellee-Plaintiff. Judge Trial Court Cause No. 49G02-1806-F1-19520
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020 Page 1 of 19 Case Summary [1] James S. McKinley (“McKinley”) appeals his convictions, following a jury
trial, for four counts of child molesting, as Level 1 felonies,1 and his seventy-
year sentence.
[2] We affirm.
Issues [3] McKinley raises the following restated issues:
1. Whether the State presented sufficient evidence to support his convictions.
2. Whether the trial court abused its discretion when it sentenced him.
3. Whether his sentence was inappropriate in light of the nature of his offenses.
4. Whether the trial court’s exclusion of certain persons from the sentencing hearing violated his constitutional right to a public trial.
1 Ind. Code § 35-42-4-3(a)(1).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020 Page 2 of 19 Facts and Procedural History [4] A.G., born February 7, 2006, is the daughter of Whitney Mickens (“Mickens”)
and Antonio Gavia (“Gavia”). A.G. lived with Mickens and had very little
contact with Gavia until she was twelve years old. Between May and June of
2018, A.G. began visiting Gavia at the home he shared with his nine-year-old
son.
[5] On Friday, June 8, 2018, Mickens and Gavia planned for A.G. to stay at
Gavia’s house while Mickens worked that evening. Sometime that day, Gavia
contacted Mickens and asked her to pick him up from work. When Mickens
arrived, Gavia was with McKinley, whom Mickens had never met before. Both
Gavia and McKinley got into Mickens’s car, and she drove the two men to pick
up their paychecks at a staffing agency and then to a bank to have those checks
cashed. Mickens then informed McKinley that she would not be able to drive
him anywhere else because she was going to be late for work. McKinley left on
foot, and Mickens drove Gavia and A.G. back to Gavia’s apartment.
[6] A.G. ended up spending that entire weekend at Gavia’s apartment, with
Mickens’s consent. When Mickens picked A.G. up from Gavia’s home in the
late evening of Sunday, June 10, A.G. appeared “tired” and “groggy.” Tr. Vol.
II at 131. At approximately midnight that night, Gavia called Mickens and
asked her to bring A.G. back to his apartment because he “want[ed] to spend
more time with her.” Id. at 132. Mickens refused. The following afternoon,
Gavia contacted Mickens and asked her to meet him at a “cash-checking place”
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020 Page 3 of 19 close to his home so that he could give her some money for A.G. Id. Mickens
thought it was odd that Gavia would offer to give A.G. cash because he had
never supported A.G. financially in the past. When Mickens and A.G. arrived
at the agreed-upon location, Gavia was there along with McKinley and two
other women who Mickens did not know.
[7] Mickens had an “uneasy” feeling about A.G.’s weekend visit with Gavia. Id. at
134. Therefore, before A.G. left for school on the morning of Wednesday, June
13, Mickens asked A.G. if there “was anything going on at her father’s house”
that she “needed to know about.” Id. At first, A.G. denied that anything had
happened over the weekend, but when Mickens asked a second time, A.G.
disclosed that she had been sexually assaulted by her father. Mickens took
A.G. to school and instructed her to inform her “auntie” Taruko Knight-Galvia
(“Galvia”)—a school administrative assistant with whom A.G. and Mickens
had become close—about what had happened over the weekend. Id. at 144.
Mickens then called 9-1-1 to report the abuse but was told that A.G. needed to
be with her for them to investigate.
[8] At school that morning, A.G. reported her father’s sexual abuse to school staff,
including Galvia. The school called the police and the Indiana Department of
Child Services (“DCS”). DCS workers came to the school and took custody of
A.G. A.G. was transported to the Child Advocacy Center in Indianapolis
where she gave a forensic interview. During the interview, A.G. disclosed that
she had been the victim of molestation and neglect and named both Gavia and
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020 Page 4 of 19 McKinley, whom she identified by his first name “James,” as the perpetrators.
Id. at 181. She provided a physical description of both Gavia and McKinley.
[9] Detective Jonathan Schultz (“Det. Schultz”) with the Indianapolis
Metropolitan Police Department (“IMDP”) observed A.G.’s forensic interview
from a remote room. Following the interview, Det. Schulz spoke to Mickens
and then travelled to the staffing agency where McKinley and Gavia worked in
order to obtain information about the two men. Once Det. Schulz learned
McKinley’s identity, he compiled a six-pack photo array for A.G. to view.
When presented with the photo array, A.G. positively identified McKinley as
the person who molested her.
[10] That same day, i.e., June 13, the IMPD executed a search warrant on Gavia’s
apartment. The officers collected two towels that, under a UV light, indicated
the presence of possible biological fluids. In one of the bedrooms on the second
floor of the residence, they also found a mattress pad that had been placed
downside up. When the mattress was flipped over, the officers discovered
possible staining from biological fluid. Crime scene technicians cut three
clippings from the mattress and collected them as evidence. Laboratory testing
later revealed the presence of seminal material on the mattress clippings, and
subsequent DNA testing confirmed that in each of the three mattress clippings
the sperm cell DNA matched McKinley’s DNA profile.
[11] The following day, Det. Schulz contacted McKinley, and he agreed to meet for
an interview at the Child Advocacy Center. Prior to the start of the interview,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020 Page 5 of 19 McKinley signed a written advisement of rights form provided by Det. Schulz.
Initially, McKinley admitted that he had been present at Gavia’s apartment the
previous weekend, but he denied any sexual contact with AG. As he was
questioned, McKinley eventually agreed that “this is the one time and only
time” that anything like what had happened the previous Sunday would occur.
Ex. at 48, State’s Ex. 58 at 1:00:20-1:00:40. When Det. Schulz asked if
anything similar would “ever happen again,” McKinley said, “No.” Id. at
1:01:45-1:01:58. Det. Schulz then asked McKinley if he was “sorry for what
happened,” and McKinley nodded his head. Id. at 1:01:49-1:02:08. McKinley
later stated, “I didn’t force her, no, she was begging me on.” Id. at 1:13:09-
1:13:13. And when Schulz asked him one final time whether he had engaged in
sex with A.G., McKinley nodded and responded, “Basically.” Id. at 1:13:14-
1:13:23.
[12] On June 18, 2018, the State charged McKinley with four counts of child
molesting, as Level 1 felonies, and one count of intimidation, as a Level 6
felony.2 McKinley had a jury trial on June 10-11, 2019. At trial, A.G. testified
that, sometime on Sunday, June 10, 2018, Gavia approached her after she had
just finished showering and instructed her to lie down naked on a nearby bed.
Gavia walked up to A.G. as she lay on the bed and licked her vagina. He then
went out into the hallway and started arguing with a man A.G. recognized to
be McKinley. They were arguing “about what [McKinley] should do to [her].”
2 I.C. § 35-45-2-1(a)(1), (b)(1)(A).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020 Page 6 of 19 Tr. Vol. II at 141-42. Eventually, McKinley entered the room and asked A.G.
how old she was. A.G. responded that she was twelve. McKinley told her that
he “wasn’t going to do it” and left the room. Id. at 142.
[13] Out in the hallway, McKinley and Gavia began arguing again. McKinley then
returned to the room and instructed A.G. to “suck” on his penis. Id. A.G. did
so, and afterwards, McKinley inserted his penis into her vagina. The
penetration “hurt, a lot,” and A.G. told McKinley that she “didn’t want to do
it.” Id. Once McKinley stopped, A.G. put on some clothes and McKinley left
the bedroom. A.G. then overheard Gavia tell McKinley “you could do it” and
that McKinley “could go back up there and do whatever you want with her.”
Id. McKinley then went back to A.G. in the bedroom, removed A.G.’s clothes,
and forced her to perform oral sex on him a second time. He then inserted his
penis into A.G.’s vagina and forced her to engage in vaginal sex. When
McKinley finished, he removed his penis from A.G.’s vagina and ejaculated on
her. A.G. then used a towel to clean the “white stuff” off her body. Id. at 143.
Both Gavia and McKinley threatened harm to A.G.’s family if she told anyone
what had happened.
[14] A.G. also testified that, after she told Mickens what Gavia had done to her,
Mickens immediately began trying to contact Gavia and told A.G. to go to
school and report it. Therefore, at that time A.G. did not have the opportunity
to tell Mickens what McKinley had done to her. A.G. testified that, at first, she
also did not tell the school about what McKinley had done because McKinley
had threatened her if she told anyone.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020 Page 7 of 19 [15] On June 11, 2019, the jury found McKinley guilty of four counts of Level 1
felony child molesting and not guilty on one count of Level 6 felony
intimidation. Shortly after the jury announced its verdict, Lisa Yednak
(“Yednak”), who is the mother of McKinley’s six children, began shouting
“You just took my kids [sic] daddy away. You just took my kids [sic] daddy
away.” Tr. Vol. III at 75. An outburst involving several members of
McKinley’s family then ensued, which resulted in the family members’ removal
from the courtroom and direct contempt proceedings against Yednak.
[16] During the contempt hearing, the trial judge appointed McKinley’s attorney to
represent Yednak. The trial court recounted that Yednak “yelled something”
which caused a “may-lay”—melee—to begin. Supp. Tr. at 3. During the
tumult, McKinley “threw down his headset” and “[g]ot out of his seat and
walked over and was in front of the bench.” Id. That was where McKinley was
detained by security personnel. Ultimately, the court found Yednak not to be in
contempt of court but barred her and several other family members from
returning to the courtroom for McKinley’s sentencing hearing. The trial court
later clarified that its exclusion order extended to all of McKinley’s family
members except for an “older female,” who was the only person in McKinley’s
family who “did not have an outburst.” Tr. Vol. III at 80. The court granted
McKinley’s subsequent request to permit a single family representative to
attend his sentencing hearing.
[17] McKinley’s sentencing hearing was held on June 25. The trial court noted that
a family representative was present in the courtroom in support of McKinley
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020 Page 8 of 19 and that the court had reviewed a number of letters that had been submitted to
the court by McKinley’s family members. After hearing argument from the
State and from McKinley, the trial court issued both oral and written sentencing
statements in which it found, as the sole mitigating factor, that a prolonged
period of incarceration would impose an “undue hardship on the defendant’s
six children.” Id. at 92; Appealed Order at 2. The court found three
aggravating factors: (1) McKinley’s criminal history, (2) the nature and
circumstances of the offenses in that they were “two separate instances,” and
(3) the harm suffered by the victim was greater than the elements necessary to
prove the offenses. Id. The court sentenced McKinley to thirty-five years for
each count of child molesting with two counts to run consecutive to one
another, for an aggregated sentence of seventy years. This appeal ensued.
Discussion and Decision Sufficiency of the Evidence [18] McKinley challenges the sufficiency of the evidence to support his convictions.
Our standard of review of the sufficiency of the evidence is well-settled.
When an appellate court reviews the sufficiency of the evidence needed to support a criminal conviction, it neither reweighs evidence nor judges the credibility of witnesses. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). The appellate court only considers “the evidence supporting the judgment and any reasonable inferences that can be drawn from such evidence.” Id. (quoting Henley v. State, 881 N.E.2d 639, 652 (Ind. 2008)). A conviction will be affirmed if there is substantial evidence of
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020 Page 9 of 19 probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Bailey, 907 N.E.2d at 1005. A verdict of guilt may be based upon an inference if reasonably drawn from the evidence. See Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007).
Tin Thang v. State, 10 N.E.3d 1256, 1258 (Ind. 2014). Moreover, a conviction
may be sustained on only the uncorroborated testimony of a single witness,
even when that witness is the victim. Bailey v. State, 979 N.E.2d 133, 135 (Ind.
2012).
[19] To support McKinley’s convictions of child molesting, as Level 1 felonies, the
State was required to prove for each count that McKinley, who was at least
twenty-one years old, performed or submitted to sexual intercourse or other
sexual conduct with a child under age fourteen. I.C. § 35-42-4-3(a)(1). “Other
sexual conduct” includes an act involving “a sex organ of one (1) person and
the mouth or anus of another person.” I.C. § 35-31.5-2-221.5. McKinley’s only
allegation regarding the sufficiency issue is that there was not sufficient
evidence to show that he was the person who performed or submitted to sexual
intercourse or other sexual conduct with A.G.
[20] At the trial, A.G. positively identified McKinley and described in detail his
molestation of her at her father’s apartment on June 10, 2018. She testified that
McKinley performed or submitted to four specific sex acts on or with her at two
distinct points over the course of a single evening. That evidence, alone, was
sufficient to support McKinley’s four convictions. Bailey, 979 N.E.2d at 135.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020 Page 10 of 19 However, the State also provided evidence that McKinley’s DNA was found on
the mattress at the scene of the crime. In addition, the State provided a video
tape of the police interview of McKinley on June 14, 2018, in which McKinley
was asked, “You guys [referring to him and A.G.] had sex, right?” and
McKinley nodded as he responded, “Basically.” Ex. at 48, State’s Ex. 58 at
1:13:14-1:13:23.
[21] McKinley maintains that the evidence was not sufficient because there were
some inconsistencies in A.G.’s description of him and his DNA was not found
on A.G. at her forensic examination—which took place three days after the
crime—or on a towel that A.G. said she had used to wipe off McKinley’s
semen. However, McKinley’s contentions are requests that we reweigh the
evidence, which we may not do. Tin Thang, 10 N.E.3d at 1258. Rather, it is
the jury’s exclusive province to weigh conflicting evidence. Smith v. State, 34
N.E.3d 1211, 1222 (Ind. 2015); see also Brooks v. State, 560 N.E.2d 49, 53 (Ind.
1990) (citation omitted) (“The circumstances under which B.B. viewed his
attacker and the discrepancies between his description, the composite, and
appellant’s appearance were fully disclosed to the jury, and it was for them to
determine the weight given to the identification evidence and to decide whether
it was satisfactory or trustworthy.”).
[22] The State presented sufficient evidence to support McKinley’s convictions.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020 Page 11 of 19 Abuse of Discretion in Sentencing [23] McKinley maintains that the trial court erred in sentencing him. Sentencing
decisions lie within the sound discretion of the trial court. Cardwell v. State, 895
N.E.2d 1219, 1222 (Ind. 2008). An abuse of discretion occurs if the decision is
“clearly against the logic and effect of the facts and circumstances before the
court, or the reasonable, probable, and actual deductions to be drawn
therefrom.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014) (citation
omitted), trans. denied. A trial court abuses its discretion in sentencing if it does
any of the following:
(1) fails “to enter a sentencing statement at all;” (2) enters “a sentencing statement that explains reasons for imposing a sentence—including a finding of aggravating and mitigating factors if any[ ]—but the record does not support the reasons;” (3) enters a sentencing statement that “omits reasons that are clearly supported by the record and advanced for consideration;” or (4) considers reasons that “are improper as a matter of law.”
Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-491 (Ind. 2007), clarified on
reh’g, 875 N.E.2d 218 (Ind. 2007)). So long as a sentence is within the statutory
range, the trial court may impose it without regard to the existence of
aggravating or mitigating factors. Anglemyer, 868 N.E.2d at 489. However, if
the trial court does find the existence of aggravating or mitigating factors, it
must give a statement of its reasons for selecting the sentence it imposes. Id. at
490. But the relative weight or value assignable to reasons properly found, or
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020 Page 12 of 19 those which should have been found, is not subject to review for abuse of
discretion. Gross, 22 N.E.3d at 869.
[24] The sentencing range for a Level 1 felony committed after June 30, 2014, is a
fixed term of imprisonment between twenty and forty years, with an advisory
sentence of thirty years. I.C. § 35-50-2-4(b). The trial court sentenced
McKinley to thirty-five years per conviction, which was five years below the
maximum for each count. Moreover, the court ordered two of those sentences
to run consecutive to one another. Thus, the challenged aggregate sentence
imposed—i.e., seventy years—was not the maximum possible aggregate
sentence for four Level 1 felony convictions; rather, it was ninety years below
the maximum sentence he could have received. Id.
[25] Nevertheless, McKinley contends the trial court abused its discretion by
considering “improper” aggravators in the decision to impose the thirty-five-
year sentences and to require two of the sentences to run consecutively.
Appellant’s Br. at 20. Specifically, he asserts that the trial court improperly
found his prior felony firearms convictions involved violence and improperly
relied on the arrests in his criminal history. However, even if we assume for the
sake of argument that the trial court considered those factors and that they were
improper, any such error was harmless as we can confidently say the trial court
would have properly entered those same sentences based solely upon the valid
aggravating factor of McKinley’s undisputed criminal history of two non-
violent felony convictions and two misdemeanor convictions. See Anglemyer v.
State, 868 N.E.2d 482, 491 (Ind. 2007). See also Gleason v. State, 965 N.E.2d
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020 Page 13 of 19 702, 712 (Ind. Ct. App. 2012) (citation omitted) (“One valid aggravator alone is
enough to enhance a sentence or to impose it consecutive to another.
Moreover, the same factor may be used both to enhance a presumptive sentence
and to justify consecutive sentences.”); Ind. Code § 35-38-1-7.1(a)(2) (stating
criminal history is an aggravating circumstance a court may consider in
sentencing). We will not reweigh the mitigating and aggravating
circumstances, as McKinley requests. Gross, 22 N.E.3d at 869.
Inappropriateness of Sentence [26] McKinley contends that his sentence is inappropriate in light of the nature of
the offense.3 Article 7, Sections 4 and 6, of the Indiana Constitution authorize
independent appellate review and revision of a sentence imposed by the trial
court. See, e.g., Sanders v. State, 71 N.E.3d 839, 843 (Ind. Ct. App. 2017), trans.
denied. This appellate authority is implemented through Indiana Appellate Rule
7(B). Id. Revision of a sentence under Rule 7(B) requires the appellant to
demonstrate that his sentence is inappropriate in light of the nature of his
offense and his character. Id. (citing Ind. Appellate Rule 7(B)). We assess the
trial court’s recognition or non-recognition of aggravators and mitigators as an
initial guide to determining whether the sentence imposed was inappropriate.
Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).
3 McKinley makes no argument that the sentence is inappropriate in light of his character; therefore, he has waived any such argument. Ind. Appellate Rule 46(A).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020 Page 14 of 19 [27] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.
2008). The principal role of appellate review is to attempt to “leaven the
outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the
end of the day turns on “our sense of the culpability of the defendant, the
severity of the crime, the damage done to others, and myriad other facts that
come to light in a given case.” Id. at 1224. The question is not whether another
sentence is more appropriate, but rather whether the sentence imposed is
inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).
Deference to the trial court “prevail[s] unless overcome by compelling evidence
portraying in a positive light the nature of the offense (such as accompanied by
restraint, regard, and lack of brutality) and the defendant’s character (such as
substantial virtuous traits or persistent examples of good character).” Stephenson
v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[28] McKinley contends that the nature of the offense does not support his thirty-
five-year sentences for each count of child molesting. First, we emphasize
again that thirty-five years is within the twenty-to-forty-year sentencing range
for a Level 1 felony and is only five years above the advisory sentence of thirty
years. I.C. § 35-50-2-4(b). Moreover, the trial court ordered two of the
sentences to run concurrently, thereby reducing his actual time of incarceration
by half. Second, when considering the nature of the offense, we look at the
defendant’s actions in comparison to the elements of the offense. Cannon v.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020 Page 15 of 19 State, 99 N.E.3d 274, 280 (Ind. Ct. App. 2018), trans. denied. Child molestation
is among the most severe and heinous of offenses and, here, the crime was
made worse by the fact that McKinley repeatedly forced a young girl to submit
to sex acts with him despite specifically asking her her age and being informed
that she was only twelve-years-old and being encouraged to sexually exploit her
by her own father, who McKinley knew had also sexually assaulted A.G.
McKinley showed no “restraint” in the commission of his crimes. Stephenson,
29 N.E.3d at 122. In short, there is nothing about the nature of the offense that
merits a reduction of McKinley’s sentence.
Right to Public Trial [29] McKinley asserts that the trial court denied his constitutional4 right to a public
trial when it barred most of his family from attending his sentencing hearing.
However, he raises this contention for the first time on appeal. It is the general
rule that an argument or issue raised for the first time on appeal is waived for
appellate review. See, e.g., Plank v. Cmty. Hosp. of Ind., Inc., 981 N.E.2d 49, 53
(Ind. 2013) (“[A]ppellate review presupposes that a litigant’s arguments have
been raised and considered in the trial court.”); Carney v. Patino, 114 N.E.3d 20,
29 n.6 (Ind. Ct. App. 2018) (“The trial court cannot be found to have erred as to
an issue or argument that it never truly had an opportunity to consider.”), trans.
4 McKinley raises this issue under both the Sixth Amendment to the United States Constitution and Article 1, Section 13 of the Indiana Constitution. However, neither he nor our Supreme Court has suggested that the Indiana Constitution establishes a right different from that found in the Sixth Amendment. See Williams v. State, 690 N.E.2d 162, 167 (Ind.1997).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020 Page 16 of 19 denied. Our Supreme Court has signaled a shift away from this rule as it relates
to appellees. Citimortgage v. Barabas, 975 N.E.2d 805, 813 (Ind. 2012) (holding
that a party who has prevailed at the trial court “may defend the trial court’s
ruling on any grounds, including grounds not raised at trial”). However, an
appellant still “may not present an argument that was not presented to the trial
court.” Ind. Bureau of Motor Vehicles v. Gunter, 27 N.E.3d 306, 312 (Ind. Ct.
App. 2015); see also Reynolds v. Reynolds, 64 N.E.3d 829, 834 (Ind. 2016)
(“Appellants may not sit idly by and raise issues for the first time on appeal.”).
Thus, McKinley has waived a claim regarding his right to a public trial.
[30] Waiver notwithstanding, we discern no violation of McKinley’s constitutional
right to a public trial. In Williams v. State, our Supreme Court addressed the
right to a public hearing under both the federal and state constitutions:
The right to a public trial has long been recognized as a fundamental right of the accused. [In re] Oliver, 333 U.S. [257,] 266-67; Hackett v. State, 266 Ind. [103,] 109, 360 N.E.2d [1000,] 1004 [(1977)]. It helps ensure a fair trial because “the presence of interested spectators may keep [the accused’s] triers keenly alive to a sense of their responsibility and to the importance of their functions....” Waller [v. Georgia], 467 U.S. [39,] 46 [(1984)]. It protects the accused by allowing the public to assess the fairness of the proceedings. In addition, it encourages witnesses to come forward, and discourages perjury. Waller, 467 U.S. at 46. In addition to the rights of the defendant, the public trial implicates the First Amendment right of the press and public to attend a criminal trial or other proceeding. However, neither right is absolute. Complete or partial exclusion of the public may be justified if a court finds “that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020 Page 17 of 19 interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” Waller, 467 U.S. at 45.
690 N.E.2d 162, 166-67 (Ind. 1997) (some citations omitted); see also Long v.
State, 121 N.E.3d 1085, 1088 (Ind. Ct. App. 2019) (citing Marcum v. State, 725
N.E.2d 852 (Ind. 2000)) (noting a trial court is given latitude to manage the
courtroom and maintain order and decorum), trans. denied. Thus, “limited
restrictions on the right to a public trial are within the trial court’s discretion
where they are related to a legitimate purpose furthering the integrity of the
judicial process, so long as there is a sufficient record supporting the judge’s
exercise of that discretion.” Hackett, 360 N.E.2d at 1004.
[31] Here, the trial court excluded members of McKinley’s family from attending his
sentencing hearing only after they caused a “melee” at the end of his jury trial.
Supp. Tr. at 3. All except one of his family members disrupted the proceedings,
requiring their removal from the court room and direct contempt proceedings
against Yednak. Although the court ultimately decided not to hold Yednak in
contempt, it barred her and all family members except one “older female” who
“did not have an outburst” from subsequent proceedings, which included the
sentencing hearing. Tr. Vol. III at 80. Thus, the court narrowly tailored its
exclusion exclusively to those who had caused a disruption. And, upon
McKinley’s request, the court allowed one representative family member to
attend the sentencing hearing. The trial court specifically articulated its reasons
for the exclusion of most family members, the exclusion was no broader than
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020 Page 18 of 19 necessary, and it was justified by the need to maintain order in the proceedings.
The trial court did not violate McKinley’s right to a public hearing or abuse its
discretion in excluding some of McKinley’s family members from attending his
sentencing hearing.
Conclusion [32] The State presented sufficient evidence to support McKinley’s four Level 1
felony convictions of child molesting, and the trial court did not abuse its
discretion when it sentenced him to an aggregate term of seventy years for those
convictions. McKinley’s sentence is not inappropriate given the nature of his
offenses. The trial court was justified in excluding some members of
McKinley’s family from his sentencing hearing.
[33] Affirmed.
Crone, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020 Page 19 of 19