MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 18 2020, 8:29 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 David W. Stone Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana
Justin F. Roebel Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jeremy McNett, December 18, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-799 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Andrew R. Appellee-Plaintiff Hopper, Judge Trial Court Cause No. 48C03-1907-F4-1669
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-799 | December 18, 2020 Page 1 of 16 [1] Jeremy McNett appeals following his conviction of Level 4 felony child
molesting. 1 McNett argues his conviction should be reversed because the trial
court erred by admitting into evidence statements McNett made at an
interrogation when no videotape of the interrogation was available. McNett
also asserts the trial court abused its discretion by imposing a ten-year sentence
and the sentence is inappropriate in light of the nature of his offense and his
character. We affirm.
Facts and Procedural History [2] In June and July of 2019, eleven-year-old J.R. divided her time between her
mother’s house and her father’s house. McNett was married to J.R.’s mother,
and their union produced two sons who, in July 2019, were four years old and
three months old. J.R.’s mother worked from 4:00 p.m. to midnight, and
during those hours J.R. was at home with McNett and her half-brothers. On
multiple occasions during those months, when J.R.’s mother was at work,
McNett would lay a couple of inches behind J.R. on the couch or bed, put his
hand down her pants, and hold her butt “down towards the bottom” by her leg
for fifteen or twenty minutes. (Tr. Vol. I at 87.) McNett did not say anything
to J.R. while he was touching her; nor would McNett move his hand around or
1 Ind. Code § 35-42-4-3(b).
Court of Appeals of Indiana | Memorandum Decision 20A-CR-799 | December 18, 2020 Page 2 of 16 do anything else while touching J.R. The touching would end when J.R. would
get up to take care of her brothers.
[3] In July 2019, J.R. told her stepmom what was happening because she was
scared and “[v]ery worried.” (Id. at 78.) J.R. went to Kids Talk to be
interviewed by someone from the Department of Child Services. Officer
Alexander Wagner of the Chesterfield Police Department watched the Kids
Talk interview of J.R. and, based thereon, began a criminal investigation by
speaking with McNett. Officer Wagner drove McNett to the police department
to conduct the interview. McNett received Miranda 2 warnings, signed a waiver,
and was interviewed. McNett admitted to Officer Wagner that he cuddled with
J.R. as a way of “showing his affection to her as a father [and] said that he
would just put his hands down her pants when they were cuddling in the inside
of her waistband so that they wouldn’t slip.” (Id. at 113.) As a further attempt
at clarification, McNett said he had his hand in J.R.’s pants “kinda like you
would do with your wife or girlfriend.” (Id. at 114.)
[4] The State charged McNett with one count of Level 4 felony child molesting.
The court ordered the State to turn over recordings from McNett’s interview by
police. On January 18, 2020, McNett filed a motion in limine to exclude any
statements McNett made to Officer Wagner during his police interrogation
because the State had not produced a recording of the interrogation. The trial
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), reh’g denied.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-799 | December 18, 2020 Page 3 of 16 court denied McNett’s motion in limine and admitted Officer Wagner’s
testimony about the interrogation during McNett’s bench trial. The court found
McNett guilty, entered conviction of the Level 4 felony, and imposed a ten-year
sentence.
Discussion and Decision 1. Admission of Evidence [5] McNett first challenges the trial court’s admission into evidence of Officer
Wagner’s testimony about McNett’s statements during the interview at the
Chesterfield police station. We review a trial court’s decision to admit evidence
for an abuse of discretion, which occurs if a decision is against the logic and
effect of the facts and circumstances that were before the court. Fairbanks v.
State, 119 N.E.3d 564, 567-68 (Ind. 2019), cert. denied, 140 S. Ct. 198 (2019). If,
however, the “evidentiary ruling turned on a purely legal, threshold question . .
. [we] review that aspect of the ruling de novo.” Id. at 567.
[6] McNett asserts statements from his interview should have been inadmissible
under Indiana Evidence Rule 617(a) because the State failed to make available
an electronic recording of Officer Wagner’s interview of McNett. The State
acknowledges Rule 617(a) required an electronic recording be produced of
McNett’s custodial interrogation at the police station, but it asserts Officer
Wagner’s testimony about the interview was nevertheless admissible because of
the exception provided in subsection (a)(3) of Rule 617. The Rule provides in
pertinent part: Court of Appeals of Indiana | Memorandum Decision 20A-CR-799 | December 18, 2020 Page 4 of 16 (a) In a felony criminal prosecution, evidence of a statement made by a person during a Custodial Interrogation in a Place of Detention shall not be admitted against the person unless an Electronic Recording of the statement was made, preserved, and is available at trial, except upon clear and convincing proof of any one of the following:
*****
(3) The law enforcement officers conducting the Custodial Interrogation in good faith failed to make an Electronic Recording because the officers inadvertently failed to operate the recording equipment properly, or without the knowledge of any of said officers the recording equipment malfunctioned or stopped operating . . . .
[7] To support its assertion that Officer Wagner’s testimony was admissible at trial
under exception (a)(3), the State cites Officer Wagner’s testimony from the
hearing on McNett’s motion in limine:
Q And did you conduct a, uh, interrogation of the Defendant, Jeremy McNett?
A Yes.
Q What, if anything, did you do, um, as far as recording the interrogation?
A Uh, before I started the interrogation and before Miranda was read, I went into the room where the device is located, I hit the record button. I ensured that on the screen, the TV that’s in there that records it, that it showed that it was recording. And then I conducted the interrogation.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-799 | December 18, 2020 Page 5 of 16 Q So, this was, the interrogation was done at the Chesterfield Police Department?
A Yes, ma’am.
Q And, um, all of that equipment is in the same room?
A Yes. It’s in a separate, it’s not in the same room with the interrogation or where that’s at. It’s next to it. Where somebody can sit in and watch.
Q I g- my question, I guess, would be the recording equipment as well as the storage of those –
Q --recordings are in the same room?
Q Is it on the same device?
Q And how many times had you done interrogations and recorded that, those interrogations?
A Numerous times over the past five (5) years.
Q And, um, you did it the same way every time?
A Yes. Court of Appeals of Indiana | Memorandum Decision 20A-CR-799 | December 18, 2020 Page 6 of 16 Q And as far as you knew, had the equipment worked during your interrogation?
Q At some point, did you go to make a copy of the interview?
A Yes . . . .
Q And when that attempt was made, um, what, if anything, did you see or discover about that interview?
A That there were several months where there were no interviews or interrogations recorded on the system.
Q And one of those months would be July of 2019?
Q And so somewhere between your operation of the equipment and your attempt to burn the interview to give to the State, um, something had malfunctioned?
Q You don’t know how that happened?
Court of Appeals of Indiana | Memorandum Decision 20A-CR-799 | December 18, 2020 Page 7 of 16 A No, ma’am.
Q But as far as you know when you did the recording you had done this several times and you did it as you had done?
Q And you did the proper checks to make sure it was recording at that time?
(Tr. Vol. I at 57-61.)
[8] In addition, Officer Wagner testified as follows at trial:
Q Now, uh, regarding that recording equipment, we had a hearing earlier. Um, as far as you knew at that time, it was recording properly?
Q And at some point in time, you went to access the video?
Q And were you able to access the video?
A No.
Q Do you have any idea why the video was missing?
Court of Appeals of Indiana | Memorandum Decision 20A-CR-799 | December 18, 2020 Page 8 of 16 A I do not.
Q And you had IT personnel attempt to recover the video.
Q And was it recovered?
(Id. at 109.)
[9] Officer Wagner’s testimony demonstrates that he “in good faith failed to make
an Electronic Recording,” Evid. R. 617(a)(3), because without his knowledge
“the recording equipment malfunctioned or stopped operating.” Id. He
operated the recording equipment in the same manner that he had hundreds of
other times, he checked the screen to ensure the recording had begun, and he
does not know why the recording was not saved on the system. This testimony
was sufficient to meet the requirements of the Rule’s exception, such that the
trial court did not abuse its discretion in admitting Officer Wagner’s testimony. 3
3 McNett also argues the State should have been required to
call the IT person or persons used by the Chesterfield police department to establish the cause of the loss of the recording of the interview or what efforts were made to recover the record or why a backup copy was not maintained or the qualifications of the IT people the department uses. (Appellant’s Br. at 13.) However, the language of the Rule 617’s exception does not require the State to demonstrate the origin of the malfunction of the equipment and, as our Indiana Supreme Court has explained, “Rule 617 is not a constitutional requirement or a prophylactic rule meant to enforce the Constitution; rather, it is a rule of judicial administration.” Fansler v. State, 100 N.E.3d 250, 253 (Ind. 2018).
Court of Appeals of Indiana | Memorandum Decision 20A-CR-799 | December 18, 2020 Page 9 of 16 See Cherry v. State, 57 N.E.3d 867, 876 (Ind. Ct. App. 2016) (exception applied
where officer followed instructions for producing a recording, but the recording
was missing), trans. denied.
2. Sentencing Discretion [10] McNett also asserts the trial court abused its sentencing discretion when
imposing a ten-year sentence for Level 4 felony child molesting. Sentencing
decisions rest within the sound discretion of the trial court, and we review such
decisions for an abuse of discretion. Hudson v. State, 135 N.E.3d 973, 979 (Ind.
Ct. App. 2019). “An abuse of discretion will be found where 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.” Id. For example, a trial court may abuse its discretion by:
(1) failing to enter a sentencing statement at all; (2) entering a sentencing statement that includes aggravating and mitigating factors that are unsupported by the record; (3) entering a sentencing statement that omits reasons that are clearly supported by the record; or (4) entering a sentencing statement that includes reasons that are improper as a matter of law.
Id. Nonetheless, the trial court is not required to accept the defendant’s
arguments regarding what constitutes a mitigating factor or assign proposed
mitigating factors the same weight as the defendant. Flickner v. State, 908
We accordingly reject McNett’s invitation to place additional obligations on the State to meet the burden for admission of Officer Wagner’s testimony about his custodial interrogation of McNett.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-799 | December 18, 2020 Page 10 of 16 N.E.2d 270, 273 (Ind. Ct. App. 2009). “In cases where the trial court abused its
discretion, we will remand for resentencing only ‘if we cannot say with
confidence that the trial court would have imposed the same sentence if it had
properly considered reasons that enjoy support in the record.’” Bryant v. State,
959 N.E.2d 315, 322 (Ind. Ct. App. 2011) (quoting Anglemyer v. State, 868
N.E.2d 482, 491 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007)).
[11] McNett argues the trial court must have relied on improper aggravators to
impose his ten-year sentence. McNett was convicted of a Level 4 felony. “A
person who commits a Level 4 felony shall be imprisoned for a fixed term of
between two (2) and twelve (12) years, with the advisory sentence being six (6)
years.” Ind. Code § 35-50-2-5.5. The trial court did not find any mitigating
factors, but it found multiple aggravators:
The Court does find the following aggravators and mitigators. Uh, as far as criminal history, that has been clarified on the record today that the Defendant has one (1) prior misdemeanor conviction. And that is a very minor criminal history but a criminal history none the less. This is not Mr. McNett’s first encounter with law enforcement. Multiple prior arrests and a prior conviction. The victim in this offense was less than twelve (12) years of age at the time of the offense and Mr. McNett has violated that position of trust. This was someone that looked to you as a father figure, relied on you and someone that you were supposed to keep safe. And you didn’t do that. It’s that broken relationship and taking advantage of that trust that you gained by having that relationship with the victim that makes this offense an egregious one. As far as mitigation, um, the Court doesn’t find any mitigating factors. So, this aggravation does outweigh the mitigation here.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-799 | December 18, 2020 Page 11 of 16 (Tr. Vol. I at 167.)
[12] McNett asserts the trial court erred by noting his arrests without convictions
because arrests “may not be properly considered as evidence of criminal
history.” (Appellant’s Br. at 19) (quoting Cotto v. State, 829 N.E.2d 520, 526
(Ind. 2005)). While McNett is correct that arrests are not criminal history, we
do not read the court’s statement to indicate the court considered his arrests as
part of his criminal history, because the court stated McNett “has one (1) prior
misdemeanor conviction. And that is a very minor criminal history.” (Tr. Vol.
I at 167.) Instead, we read the court’s reference to McNett’s arrests as an
aggravator separate from McNett’s “very minor” criminal history, (id.), and we
find no error therein as McNett had twice been provided leniency by a judicial
system that allowed him to have charges dismissed if he successfully completed
diversion program requirements. See Cotto, 829 N.E.2d at 526 (“[A] record of
arrest, particularly a lengthy one, may reveal that a defendant has not been
deterred even after having been subject to the police authority of the State.
Such information may be relevant to the trial court’s assessment of the
defendant’s character” and the risk he will re-offend.) (internal citation
omitted).
[13] McNett next argues the trial court improperly found an aggravator in J.R.’s age
because age was an element of the offense and the trial court did not enter any
“particularized circumstances” to justify the specific finding. (Appellant’s Br. at
19) (quoting McCoy v. State, 96 N.E.3d 95, 99 (Ind. Ct. App. 2018)). We agree
with McNett that the finding of J.R.’s age as an aggravator without a statement
Court of Appeals of Indiana | Memorandum Decision 20A-CR-799 | December 18, 2020 Page 12 of 16 of particularized circumstances is improper. See McCoy, 96 N.E.3d at 99
(holding “under-twelve aggravator is improper” when court failed to state any
particularized circumstances).
[14] Nevertheless, we need not remand for resentencing when, as here, the court
made clear it believed McNett’s crime was “an egregious one” because of
McNett’s violation of his position of trust. (Tr. Vol. I at 167.) As the court
noted, J.R. looked at McNett as a father-figure. He had lived with J.R. and her
mother for more than half of J.R.’s life, and he had been entrusted with the
responsibility to keep J.R. safe, along with the two sons born to McNett and
J.R.’s mother, while J.R.’s mother was at work. Instead, he touched J.R.
inappropriately on multiple occasions. McNett asserts his violation of a
position of trust is inadequate to justify his enhanced sentence. (See Appellant’s
Br. at 20.) We disagree. See Middlebrook v. State, 593 N.E.2d 212, 214 (Ind. Ct.
App. 1992) (“A reasonable person could conclude that the imposition of the
maximum sentence” is appropriate for molesting of daughter and
stepdaughter.). See also Singer v. State, 674 N.E.2d 11, 14 (Ind. Ct. App. 1996)
(“Abusing a ‘position of trust’ is, by itself, a valid aggravator which supports the
maximum enhancement of a sentence for child molesting.”).
3. Inappropriate Sentence [15] Finally, McNett claims his sentence is inappropriate. We may revise a sentence
if it “is inappropriate in light of the nature of the offense and the character of
the offender.” Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008)
Court of Appeals of Indiana | Memorandum Decision 20A-CR-799 | December 18, 2020 Page 13 of 16 (citing Ind. Appellate Rule 7(B)). We consider the aggravators and mitigators
found by the trial court and also any other factors appearing in the record.
Baumholser v. State, 62 N.E.3d 411, 417 (Ind. Ct. App. 2016), trans. denied. Our
determination of appropriateness “turns on our sense of 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.” Cardwell v. State, 895 N.E.2d
1219, 1224 (Ind. 2008). The appellant must demonstrate his sentence is
inappropriate. Baumholser, 62 N.E.3d at 418.
[16] When considering the nature of the offense, the advisory sentence is the starting
point to determine the appropriateness of a sentence. Anglemyer, 868 N.E.2d at
494. McNett was convicted of Level 4 felony child molesting. The advisory
sentence for a Level 4 felony is six years, and the range is two to twelve years.
Ind. Code § 35-50-2-5.5. The trial court ordered McNett to serve a ten-year
sentence, which is four years above the advisory sentence and two years below
the maximum sentence.
[17] McNett asserts there “was nothing in this case which made it more serious than
any other case involving touching a girl with whom the defendant is in a
position of trust.” (Appellant’s Br. at 22.) However, McNett was not convicted
of a crime for which an element was the defendant being in a position of trust.
See Ind. Code § 35-42-4-3(b) (defining Level 4 felony child molesting as a
defendant, with a child under age 14, performing or submitting to fondling or
touching of the adult or child, with the intent to arouse or satisfy the sexual
desires of the child or the adult). As the trial court noted, McNett’s violation of
Court of Appeals of Indiana | Memorandum Decision 20A-CR-799 | December 18, 2020 Page 14 of 16 the position of trust that he had with J.R., who had been McNett’s stepdaughter
for more than half of her life by the time of the molesting, was egregious. In
addition, McNett committed the offense in the presence of his two young sons,
who were J.R.’s half-brothers. McNett has not convinced us that his enhanced,
but not maximum sentence, is inappropriate for his offense.
[18] When considering the character of the offender, one relevant fact is the
defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.
App. 2007). The significance of a criminal history in assessing a defendant’s
character varies based on the gravity, nature, and number of prior offenses in
relation to the current offense. Id. McNett’s criminal history is very minor, as
he had only one prior conviction of misdemeanor check deception.
Nevertheless, McNett had been arrested multiple times and two additional
causes of action against him had been dismissed after McNett completed
deferral programs through Community Corrections. Repeated contacts with
the criminal justice system generally reflect poorly on the defendant’s character,
because such contacts suggest the defendant “has not been deterred [from
further criminal behavior] even after having been subjected to the police
authority of the State.” Cotto, 829 N.E.2d at 526.
[19] McNett has not convinced us that his ten-year sentence is inappropriate for his
offense or his character, as he has had repeated contacts with the criminal
justice system without modifying his behavior and as he egregiously violated a
position of trust when committing his offense. See, e.g., Norton v. State, 137
N.E.3d 974, 989 (Ind. Ct. App. 2019) (eleven-year sentence for Level 4 felony
Court of Appeals of Indiana | Memorandum Decision 20A-CR-799 | December 18, 2020 Page 15 of 16 sexual misconduct with a minor, ordered concurrent with a four-year sentence
for one Level 5 felony and consecutive to another four-year sentence for a Level
5 felony, not inappropriate in light of criminal history and victim’s belief that
defendant was part of her family), reh’g denied, trans. denied.
Conclusion [20] The trial court did not err when it admitted Officer Wagner’s testimony
regarding his interview of McNett at the Chesterfield Police Station because the
machine’s unexplained loss of the recording satisfied the equipment
malfunction exception provided by Evidence Rule 617(a)(3). Neither did the
trial court’s findings of aggravating factors result in reversable error. Finally,
McNett’s ten-year sentence for Level 4 felony child molesting is not
inappropriate in light of his offense and character. Accordingly, we affirm the
trial court’s judgment.
[21] Affirmed.
Riley, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-799 | December 18, 2020 Page 16 of 16