Johnny Riley Jonas v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 24, 2019
• Docket: 18A-CR-3121
• 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 Sep 24 2019, 9:22 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 & Attorney General of Indiana Magrath, LLP Megan M. Smith Madison, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Johnny Riley Jonas, September 24, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-3121 v. Appeal from the Jackson Circuit Court State of Indiana, The Honorable Richard W. Appellee-Plaintiff Poynter, Judge Trial Court Cause No. 36C01-1612-F4-27

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3121 | September 24, 2019 Page 1 of 12 [1] Johnny Riley Jonas appeals his convictions and sentence for Level 4 Felony

Child Molesting1 and Level 6 Felony Domestic Battery,2 arguing that the

evidence is insufficient to support the child molesting conviction and that the

sentence is inappropriate in light of the nature of the offenses and his character.

Finding that the evidence is sufficient and that the sentence is not inappropriate,

we affirm.

Facts [2] Jonas married his wife, Rebecca Hawn, on February 12, 2016. At the time,

Rebecca had two children from prior relationships, R.W. and O.T. Rebecca

gave birth to her and Jonas’s son, S.J., in May 2016. As of September 2016,

Jonas lived with Rebecca, R.W., O.T., and S.J. The family lived together in

one shared bedroom at Jonas’s parent’s house. R.W. and O.T., aged four and

two at the time, slept in a bunk bed, S.J. slept in a crib, and Jonas and Rebecca

shared a mattress on the floor.

[3] At some point in September 2016, Billie Richie was babysitting R.W. and

another boy when Billie saw R.W. standing over the boy and heard R.W. state

that she was “going to kiss him,” motioning to the boy’s genitals. Tr. Vol. II p.

51. When Billie asked R.W. where she had learned that, R.W. responded that

she had learned it from Jonas and that “me and my Mommy kisses Johnny

1 Ind. Code § 35-42-4-3(b). 2 I.C. § 35-42-2-1.3(a)(1), -1.3(b)(2).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3121 | September 24, 2019 Page 2 of 12 down there.” Tr. Vol. II. p. 51. Billie then texted Rebecca that there was an

emergency with R.W. and to come pick her up. When Rebecca arrived, Jonas

waited in the car while Billie told Rebecca what had happened. Rebecca left

with R.W. and told Jonas about R.W.’s statement to Billie, at which point

Jonas denied that he had touched R.W., asked R.W. several questions, and

attempted to get her to say that Billie’s husband, Patrick Richie, was the one

who had touched her, not Jonas. Jonas then drove the family to the police

station to report that Patrick had molested R.W.

[4] The next day, R.W. was forensically interviewed by Kelly Bridges at the Child

Advocacy Center. Bridges testified that she only knew to gather information

regarding Patrick, not Jonas. R.W. stated during the interview that Patrick was

mean and once had tried to choke her, but that he had never touched her

private parts. R.W. told Bridges that Jonas, not Patrick, had previously

“tickled” her “where she pees,” state’s ex. 3, and that, while R.W. and

everyone else slept in the shared bedroom, Jonas had climbed into R.W.’s bed,

pulled down her pants, and tickled her vagina. R.W. first told Bridges that this

had happened in a dream, but later said it happened in real life. When asked,

R.W. repeatedly stated that nobody besides Jonas had touched her private

parts. Bridges testified that R.W. was consistent throughout the interview and

answered questions in a manner appropriate for her age and development.

[5] As a result of the forensic interview, the Department of Child Services (DCS)

became involved with the family. DCS employees told Rebecca that Jonas had

molested R.W. and that she and the children were required to move out of the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3121 | September 24, 2019 Page 3 of 12 house. However, after four to five weeks, DCS had not yet substantiated the

allegations, so Rebecca and the children moved back into Jonas’s parents’

home.

[6] On November 26, 2016, the day after R.W.’s fifth birthday, Jonas and Rebecca

had an altercation at home during an argument about R.W.’s biological father

contacting Rebecca. Jonas accused Rebecca of lying and cheating on him, and

stated that if Rebecca did not tell him the truth, Jonas would “tell [her] the truth

about what he does to the kids.” Tr. Vol. II p. 124. Rebecca testified that Jonas

then demonstrated what he meant by picking up R.W., bending her over his

knee, and rubbing her genitals; he then did the same thing with O.T.

[7] The argument ultimately ended in a shoving match in which Jonas shoved

Rebecca into the freezer, causing her to fall to the ground and items on top of

the freezer to fall to the floor. Rebecca locked Jonas out of the house and called

911. Rebecca told the officer who responded that Jonas had molested R.W.,

and R.W. told him that Jonas had tickled her vagina. Jonas was arrested and

later called Rebecca from jail, asking her to tell the police she was lying.

[8] On December 1, 2016, Jonas was charged with three counts of Level 4 felony

child molesting, one count of Class C felony child molesting,3 and one count of

Level 6 felony domestic battery. A jury trial took place October 16-18, 2018.

At trial, R.W. testified about the events of November 26, 2016, but testified that

3 The State later dismissed this count.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3121 | September 24, 2019 Page 4 of 12 she could not remember if Jonas had molested her prior to that date. She

testified that nobody besides Jonas had ever touched her private parts.

[9] At the conclusion of the trial, the jury found Jonas guilty of one count of Level

4 felony child molesting and of Level 6 domestic battery; the jury found him not

guilty of the remaining charges. On November 29, 2018, Jonas was sentenced

to nine years for child molesting and one year for domestic battery, to be served

consecutively, for an aggregate sentence of ten years imprisonment. Jonas now

appeals.

Discussion and Decision I. Sufficiency of the Evidence [10] Jonas’s first argument on appeal is that the evidence is insufficient to support

his Level 4 felony child molesting conviction. In reviewing the sufficiency of

the evidence to support a conviction, we must consider only the probative

evidence and the reasonable inferences supporting the conviction and will

neither assess witness credibility nor reweigh the evidence. Drane v. State, 867

N.E.2d 144, 146 (Ind. 2007). We will affirm unless no reasonable factfinder

could find the elements of the crime proved beyond a reasonable doubt. Id.

[11] To convict Jonas of Level 4 felony child molesting, the State was required to

prove beyond a reasonable doubt that Jonas performed or submitted to any

fondling or touching of or by R.W., who was under age fourteen, with the

intent to arouse or satisfy the sexual desires of R.W. or himself. I.C. § 35-42-4-

3(b). Jonas does not argue that the specific statutory elements are unsupported Court of Appeals of Indiana | Memorandum Decision 18A-CR-3121 | September 24, 2019 Page 5 of 12 by sufficient evidence, but instead asserts that the conviction should be reversed

because it is based on incredibly dubious evidence.

[12] To warrant reversal under the rule of incredible dubiosity, there must be: “‘1) a

sole testifying witness; 2) testimony that is inherently contradictory, equivocal,

or the result of coercion; and 3) a complete absence of circumstantial

evidence.’” Smith v. State, 34 N.E.3d 1211, 1221 (Ind. 2015) (quoting Moore v.

State, 27 N.E.3d 749, 756 (Ind. 2015)). Application of the rule is very rare and

is limited to these specific circumstances because we are extremely hesitant to

invade the jury’s function to judge witness credibility. Id. The applicable

standard is “‘whether the testimony is so incredibly dubious or inherently

improbable that no reasonable person could believe it.’” Levya v. State, 971

N.E.2d 699, 702 (Ind. Ct. App. 2012) (quoting Love v. State, 761 N.E.2d 806,

810 (Ind. 2002)).

[13] Here, the rule of incredible dubiosity does not apply because there were

multiple witnesses who testified at trial. But even if it did, we would affirm the

conviction because the evidence is not inherently contradictory, equivocal, or

the result of coercion, and thus fails to meet the incredibly dubious standard.

[14] Jonas claims that R.W.’s testimony was inherently improbable due to the

logistics of the allegation and inconsistent statements made by R.W. prior to

trial. Specifically, he first argues that the “mere logistics” of Jonas climbing

into the bunk bed, pulling down R.W.’s pants, touching her vagina, and

returning to his own bed all while the three other family members slept is

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3121 | September 24, 2019 Page 6 of 12 inherently improbable. Appellant’s Br. p. 13. He then argues that R.W.’s own

statements are inherently improbable because of their inconsistencies and her

behavior during the forensic interview, during which R.W. initially claimed the

touching happened in a dream before stating, repeatedly, that it happened in

real life. Jonas also points to R.W.’s apparent inability to maintain focus

during the interview, her young age, and the fact that the video interview was

unsworn as reasons to treat R.W.’s statements as inherently improbable.

[15] None of these grounds renders the evidence incredibly dubious. We have

previously rejected an incredible dubiosity argument where the child victim

testified that the defendant molested her while the rest of the family slept in the

same room and no one else heard or saw the alleged conduct. Levya, 971

N.E.2d at 701-02 (“[W]e cannot say that the testimony of [victim] regarding

Levya’s actions . . . was so inherently improbable that no reasonable person

could believe it.”). Here, a reasonable person could likewise believe that Jonas

climbed into her bed while she and the rest of the family slept, pulled her pants

down, and touched her vagina. Therefore, Jonas’s argument regarding the

logistics of the allegation fails to meet the incredibly dubious standard.

[16] Further, R.W.’s statement that the touching happened in a dream does not

make her later testimony that the touching happened in real life inherently

improbable or contradictory. In evaluating whether testimony is inherently

contradictory, the question is whether there were inconsistencies within the trial

testimony itself, rather than whether it was inconsistent with other evidence or

statements made prior to trial. Smith, 34 N.E.3d at 1221; see also Murray v. State,

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3121 | September 24, 2019 Page 7 of 12 761 N.E.2d 406, 409 (Ind. 2002) (“The fact that a witness gives trial testimony

that contradicts earlier pre-trial statements does not necessarily render the trial

testimony incredibly dubious.”).

[17] Here, R.W. made four separate and consistent disclosures about Jonas touching

her, and Jonas even demonstrated for Rebecca what he had done. The only

times R.W. made statements to the contrary were when Jonas first told her to

say Patrick Richie had molested her, and then during the interview with Bridges

when R.W. first described the touching as happening in a dream. Anyone

waking up in the middle of the night to someone touching them inappropriately

might feel as if they were in a dream-like state, especially a four-year-old child.

Given R.W.’s consistency at trial and the lack of any additional evidence that

her testimony is inherently improbable, we find the evidence sufficient to

support the child molesting conviction.

II. Sentencing [18] Jonas’s second argument on appeal is that his sentence is inappropriate and

should be revised in light of the nature of the offenses and his character.

[19] Indiana Appellate Rule 7(B) provides that this Court may revise a statutorily

authorized sentence “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 conducting this review, “substantial

deference” must be given to the trial court’s decision, “since the ‘principal role

of [our] review is to attempt to leaven the outliers,’ and not to achieve a

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3121 | September 24, 2019 Page 8 of 12 perceived ‘correct’ sentence.” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)

(quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal

citations omitted). The defendant bears the burden of proving that the sentence

is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

[20] For Level 4 felony child molesting, Jonas faced a term of two to twelve years,

with an advisory sentence of six years. Ind. Code § 35-50-2-5.5. For Level 6

felony domestic battery, Jonas faced a term of six months to two and one-half

years, with an advisory sentence of one year. I.C. § 35-50-2-7(b). The trial

court imposed a nine-year term for the child molesting conviction and a one-

year term for the domestic battery conviction, to be served consecutively, for an

aggregate term of ten years.

[21] With respect to the nature of the offenses, the advisory sentence is treated as

“the starting point the Legislature selected as appropriate for the crime

committed,” Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014), and serves as a

guideline for imposing a fair and proportional sentence, Hamilton v. State, 955

N.E.2d 723, 726 (Ind. 2011). Maximum sentences, in contrast, are reserved for

those offenses constituting the “worst of the worst.” Id. In deciding to increase

Jonas’s sentence beyond the advisory term, the trial court specifically noted

R.W.’s young age, Jonas’s position of control or authority over R.W. as her

stepfather, and the fact that this was not an isolated incident.

[22] Our courts have consistently held that a victim’s age in child molestation

offenses generally supports a sliding scale in sentencing, with younger ages of

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3121 | September 24, 2019 Page 9 of 12 victims supporting harsher sentences. Id. at 727-28 (finding that nine-year-old

molestation victim, “although still young, was not of tender years,” and that her

age did not, on its own, support a harsher sentence); Light v. State, 926 N.E.2d

1122, 1124 (finding that the young age of the victims, ages six, one, and two-

months, “highlight[ed] the depravity of [defendant’s] offenses and her lack of

character”). In some cases, young age alone may support a longer sentence.

See Bresson v. State, 498 N.E.2d 91, 97 (Ind. Ct. App. 1986) (upholding trial

court’s sentence where the only aggravating factor was two-year-old victim’s

young age). Here, R.W. was only four years old and thus was of “particularly

tender years” when she was molested, which is a valid basis for imposing an

increased sentence. Buchanan v. State, 767 N.E.2d 967, 971 (Ind. 2002).

[23] As R.W.’s stepfather, Jonas was in a position of care, control, or authority over

R.W., a position this Court has also long recognized as highly relevant in

reviewing the nature of the offense for sentencing purposes. See, e.g., Hamilton,

955 N.E.2d at 727; Singer v. State, 674 N.E.2d 11 (Ind. Ct. App. 1996);

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 . . . for the

offense of child molesting where the victims were defendant’s daughter and

step-daughter is appropriate.”). Here, as R.W.’s stepparent, Jonas abused his

position of care and control when he molested her.

[24] Next, repeatedly committing acts and patterns of molestation over long periods

of time, as opposed to committing molestation on one isolated incident, is a

valid basis for imposing a higher sentence for child molesting. Singer, 674

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3121 | September 24, 2019 Page 10 of 12 N.E.2d at 14; contra Hamilton, 955 N.E.2d at 723 (revising sentence for child

molesting and noting, as one reason, the fact that defendant “engaged in a

single act of sexual misconduct as opposed to a long-term pattern of abuse and

violence”). Here, although R.W. could only recall the November 2016 incident

in her trial testimony, the record suggests Jonas had, in fact, molested R.W. at

least once prior to November 2016.

[25] With respect to Jonas’s character, we note that other than the two prior

convictions for operating while intoxicated, Jonas has no criminal record.

Though these two offenses occurred only a few years before the offenses at issue

in this case, they are otherwise wholly unrelated in nature and do not, without

more, support an enhanced sentence. See Hamilton, 955 N.E.2d at 727

(reducing maximum sentence for child molesting in part because defendant’s

criminal history contained only a misdemeanor DUI and felony robbery, both

of which occurred over seven years prior to the molestation and were unrelated

to sexual misconduct); Ruiz v. State, 818 N.E.2d 927, 929 (Ind. 2004)

(concluding that criminal history with four alcohol-related offenses did not

support a harsher sentence for felony child molesting, even when alcohol had

been involved in the molesting offense).

[26] We concede that there is no right answer as to the proper sentence in this case

or in any other, and that our sense of what is appropriate ultimately “turns on

our sense of the culpability of the defendant, the severity of the crime, the

damage done to others, and myriad of other factors that come to light in a given

case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). “[A]ppellate review

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3121 | September 24, 2019 Page 11 of 12 and revision [of sentences] ultimately boils down to the appellate court’s

‘collective sense of what is appropriate, not a product of a deductive reasoning

process.’” Brown, 10 N.E.3d at 8 (quoting Cardwell, 895 N.E.2d at 1225).

[27] We agree with Jonas that neither his offenses nor his character are the worst of

the worst. But the trial court did not impose the maximum term for either

conviction. Given this record and our deference to trial courts in sentencing

matters, we find that the aggregate ten-year term is not inappropriate in light of

the nature of the offenses and Jonas’s character.

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

Robb, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3121 | September 24, 2019 Page 12 of 12