Karl A. Wikstrom, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 31, 2015
• Docket: 52A02-1502-CR-65
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Aug 31 2015, 8:50 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Patricia Caress McMath Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Brian Reitz Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Karl A. Wikstrom, Jr., August 31, 2015 Appellant-Defendant, Court of Appeals Case No. 52A02-1502-CR-65 v. Appeal from the Miami Circuit Court State of Indiana, The Honorable Timothy P. Spahr, Appellee-Plaintiff Judge Trial Court Cause No. 52C01-1208-FA-58

Bradford, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 52A02-1502-CR-65 | August 31, 2015 Page 1 of 11 [1] Over a period of two years, Appellant-Defendant Karl Wikstrom sexually

molested his step-daughters when they were between the ages of twelve and

fourteen. Wikstrom was convicted of four counts of Class A felony child

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

Class D felony child solicitation. The court imposed an aggregate 124-year

sentence: four years for count 1, Class C felony child molesting; one-and-a-half

years on count 2, Class D felony child solicitation; and thirty years on each of

the four counts of Class A felony child molesting, with counts 1 and 2 to be

served concurrently and the remaining counts to be served consecutively.

Wikstrom argues that his sentence is inappropriate and should be revised

pursuant to Indiana Appellate Rule 7(B). We affirm Wikstrom’s sentence.

Facts and Procedural History [2] Wikstrom and Leslie Wikstrom (“Leslie”) married in 2002. Leslie had two

daughters from a previous marriage, Sa.B. and Sh.B., who were born in 1996

and 1998, respectively. Wikstrom and Leslie had one child together, K.W, who

was born in 2002. In 1999, Wikstrom injured his back at work, was

permanently disabled and unable to work, received disability benefits, and was

prescribed pain medication. Wikstrom would typically take his prescribed

medication by crushing and snorting it, a process he would carry out in front of

the children. Sa.B. testified that the medication would make Wikstrom violent

and aggressive.

Court of Appeals of Indiana | Memorandum Decision 52A02-1502-CR-65 | August 31, 2015 Page 2 of 11 [3] In 2010, Sa.B. and Sh.B. lived with Wikstrom, Leslie, and K.W. at the Cedar

Creek Mobile Home Park in Peru, Indiana. Leslie and Wikstrom lived in

separate mobile home trailers because the two would often fight and separate.

On one occasion when Sa.B. was thirteen years old, Wikstrom entered her

room, asked her to wake up, gave her an unidentified white pill, and took her

into the back bedroom, where she laid in bed between Leslie and Wikstrom. At

some point, Leslie performed oral sex on Wikstrom after which Sa.B. was

instructed to and did perform oral sex on Wikstrom. During this incident,

Leslie touched Sa.B.’s breasts and Wikstrom inserted his finger into Sa.B.’s

vagina. This was the first incident of sexual misconduct between Sa.B. and

Wikstrom.

[4] A couple weeks after the first incident, Wikstrom approached Sa.B. while she

was in the bathroom and requested that she perform oral sex on him. After

refusing several times, Sa.B. ultimately submitted to Wikstrom’s request. Sa.B.

then told Wikstrom that “[she] couldn’t do it anymore because [her] throat

hurt,” at which point “he got mad and told [Sa.B.] to get the f[***] out of the

bathroom.” Tr. p. 350.

[5] On September 21, 2010, Wikstrom was arrested for domestic battery. Leslie

and the children stayed in a domestic violence shelter for approximately two

weeks until the domestic abuse charges against Wikstrom were dropped at

Leslie’s request.

Court of Appeals of Indiana | Memorandum Decision 52A02-1502-CR-65 | August 31, 2015 Page 3 of 11 [6] After being evicted from their trailers on November 19, 2010, Wikstrom, Leslie,

and the three children moved into a single room at Skyview Motel in which

Wikstrom and Leslie slept in one bed and the three children slept in the

adjacent bed. On one occasion at Skyview, Wikstrom approached then-twelve-

year-old Sh.B. while the two were alone in the room and asked her to perform

oral sex on him, which she did. At the time, a pornographic film was playing

on the television. While the family lived at Skyview, Wikstrom played

pornographic films nearly every night. Sa.B. and Sh.B. saw and heard

Wikstrom and Leslie having sex most nights.

[7] The first incident of sexual misconduct involving Sa.B. at Skyview occurred late

one night when then-thirteen-year-old Sa.B. got up to use the bathroom.

Wikstrom requested that Sa.B. perform oral sex on him. Sa.B. initially refused

before finally giving in to his requests. During this incident, Sa.B. performed

oral sex on both Wikstrom and Leslie, and Leslie performed oral sex on Sa.B.

During the month that the family lived at Skyview, Sa.B. estimated that she had

approximately fifty sexual encounters with Leslie and Wikstrom.

[8] In December 2010, the family moved to a home on North Lincoln Street in

Peru. A couple months after moving to the Lincoln street home, Leslie came

into Sh.B.’s room at night, woke her up, and asked if she would go into

Wikstrom’s bedroom an perform oral sex on him. Sh.B. began crying and

pleaded not to. The following night, Leslie asked Sh.B. if she would “squeeze

in between” Wikstrom and Leslie while they had sex, to which Sh.B. complied.

Tr. p. 290. During this encounter, Sh.B. gave Wikstrom a “hand job,” tr. p.

Court of Appeals of Indiana | Memorandum Decision 52A02-1502-CR-65 | August 31, 2015 Page 4 of 11 290, Wikstrom touched Sh.B.’s breast, Leslie performed oral sex on Sh.B., and

Wikstrom attempted to have anal sex with Sh.B.

[9] A couple weeks later, in February or March of 2011, Wikstrom approached

Sh.B. and again asked her to perform oral sex on him, which she did.

Afterward, Wikstrom masturbated in front of Sh.B. Sh.B. estimated that while

living at the Lincoln street home, she had “five or ten” sexual encounters with

Wikstrom and performed oral sex on him four or five times. Tr. p. 295.

[10] In May 2012, the Department of Child Services (“DCS”) began investing the

family after receiving reports of fighting and drug abuse. On May 14, 2012,

Sa.B. and Sh.B. were placed in foster care. A couple months after being placed

in foster care, Sh.B. admitted that she had been physically, verbally, and

sexually abused by Wikstrom. On August 10, 2012, the State of Indiana (“the

State”) charged Wikstrom with five counts of Class A felony child molesting,

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

child solicitation. On December 11, 2014, a jury found Wikstrom guilty of four

of the five counts of Class A felony child molesting, Class C felony child

molesting, and Class D felony child solicitation.

[11] In fashioning its sentence, the trial court identified two aggravating factors:

Wikstrom’s position of trust and the significant harm to the victims. Both

victims were diagnosed with post-traumatic stress disorder (“PTSD”), required

in-patient treatment for five days following their removal from the home, had

been receiving counseling for two-and-a-half years at the time of sentencing to

Court of Appeals of Indiana | Memorandum Decision 52A02-1502-CR-65 | August 31, 2015 Page 5 of 11 address the PTSD issues, and will require ongoing therapy. The trial court

found that Wikstrom’s lack of criminal convictions was a mitigating factor,

although afforded it little weight due to the evidence suggesting that “there was

a period of ongoing and estensive, continuing drug activity, illegal drug activity

on the part of both of the adults in the [] home….that blunts the argument that

[the lack of criminal history] should somehow serve as a very significant

mitigator.” Tr. p. 591. The court imposed an aggregate 124-year sentence: four

years for count 1, Class C felony child molesting; one-and-a-half years on count

2, Class D felony child solicitation; and thirty years on each of the four counts

of Class A felony child molesting, with counts 1 and 2 to be served concurrently

and the remaining counts to be served consecutively.

Discussion and Decision [12] Wikstrom argues that his 124-year sentence is inappropriate in light of the

nature of his offenses and his character. “Ind. Appellate Rule 7(B) empowers

us to independently review and revise sentences authorized by statute if, after

due consideration, we find the trial court’s decision inappropriate in light of the

nature of the offense and the character of the offender.” Anderson v. State, 989

N.E.2d 823, 827 (Ind. Ct. App. 2013), trans. denied. “An appellant bears the

burden of showing both prongs of the inquiry favor revision of [his] sentence.”

Id. (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)). “We must give

‘deference to a trial court’s sentencing decision, both because Rule 7(B) requires

us to give due consideration to that decision and because we understand and

Court of Appeals of Indiana | Memorandum Decision 52A02-1502-CR-65 | August 31, 2015 Page 6 of 11 recognize the unique perspective a trial court brings to its sentencing

decisions.’” Gil v. State, 988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013) (quoting

Trainor v. State, 950 N.E.2d 352, 355-56 (Ind. Ct. App. 2011), trans. denied.)

[13] Indiana Code section 35-50-1-2 provides that the trial court shall determine

whether terms of imprisonment shall be served concurrently or consecutively

and that the court may consider the aggravating and mitigating circumstances

in making such a determination. “The decision to impose consecutive or

concurrent sentences is within the trial court’s sound discretion and is reviewed

only for an abuse of discretion…. A single aggravating circumstance may

support the imposition of consecutive sentences.” Gellenbeck v. State, 918

N.E.2d 706, 712 (Ind. Ct. App. 2009) (citations omitted).

[14] Initially, we note that the trial court imposed the advisory sentence for each of

the convictions and that Wikstrom was eligible for a sentence of up to 211

years. However, Wikstrom argues that the trial court’s decision to run the

sentences consecutively was inappropriate. Wikstrom argues that his offenses

were comparable to those at issue in Smith v. State, 889 N.E.2d 261 (Ind. 2008).

Smith was convicted of four counts of Class A felony child molesting, one

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

fondling in the presence of a minor. Id. at 262. Smith had engaged in sexual

misconduct with his step-daughter on numerous occasions over a four-year

period. Id. The victim was between the ages of ten and thirteen during the

various incidents. Id. The trial court sentenced Smith to an aggregate 120-year

sentence, thirty years for each Class A felony conviction to be served

Court of Appeals of Indiana | Memorandum Decision 52A02-1502-CR-65 | August 31, 2015 Page 7 of 11 consecutively. Id. On appeal, the Indiana Supreme Court revised the sentence

to “a total executed sentence of 60 years (consecutive standard 30-year terms on

two counts, remaining terms concurrent).” Id. at 264. The Court reasoned as

follows:

We assign aggravating weight in the low range to Smith’s prior criminal history….We assign mitigating weight in the low range to Smith’s poor mental health. Taken together, these factors do not warrant any deviation from the presumptive sentence of 30 years imposed by the trial court for each count. However, we find that Smith’s repeated molestations of K.J., together with his violation of his position of trust and his infliction of psychological abuse, warrant the sentence on one of these counts being imposed consecutive to one of the other counts. We direct that the sentences on the remaining two counts be served concurrently with the other two.

Id.

[15] Wikstrom also cites to Pierce v. State to bolster his argument that his sentence

should be revised. 949 N.E.2d 349 (Ind. 2011). In Pierce, the Indiana Supreme

Court reduced defendant’s sentence for three convictions of Class A felony

child molestation and one count of Class C felony child molesting from 134

years to eighty years. Id. at 353. The Court found that reducing the sentence

was appropriate where there was only one victim.

“Whether the counts involve one or multiple victims is highly relevant to the decision to impose consecutive sentences....” [Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).]. See also Harris v. State, 897 N.E.2d 927, 930 (Ind. 2008) (revising consecutive child molesting sentences to run concurrently where

Court of Appeals of Indiana | Memorandum Decision 52A02-1502-CR-65 | August 31, 2015 Page 8 of 11 there was only one victim); Smith v. State, 889 N.E.2d 261, 264 (Ind. 2008) (same); Monroe v. State, 886 N.E.2d 578, 580 (Ind. 2008) (same). Cf. Sanchez v. State, 938 N.E.2d 720, 723 (Ind. 2010) (acknowledging that “generally, multiple victims justify the imposition of enhanced and consecutive sentences”).

[16] Wikstrom’s argument is unpersuasive. We find that Pierce and Smith do not

support the reduction of Wikstrom’s sentence and instead provide significant

justification for the trial court’s imposition of consecutive sentences. Although

the Courts in both Pierce and Smith reduced defendants’ overall sentences, both

defendants still received consecutive sentences for Class A felony child

molesting despite the fact that there was only one victim in those cases. The

principal distinction in the instant case is that there were two victims of

Wikstrom’s predatory behavior, a fact which is “highly relevant” in the decision

to impose additional consecutive sentences. Cardwell, 895 N.E.2d at 1225.

[17] Furthermore, in regards to the nature of the offense, Wikstrom’s crimes were

particularly egregious. Wikstrom molested the victims during “so many

incidents, that [you] can’t [] put a number to it,” tr. p. 313, “it was a constant

thing.” Tr. p. 356. The record reveals that Wikstrom perpetrated these

molestations on a nearly daily basis. In addition to the direct molestations,

Wikstrom’s constant overtly sexual behavior permeated every facet of the

victims’ lives. When the family lived in a single motel room, Wikstrom

continued to play pornographic films daily and would have sex with Leslie in

front of the children. Wikstrom openly discussed his sex life with Leslie with Court of Appeals of Indiana | Memorandum Decision 52A02-1502-CR-65 | August 31, 2015 Page 9 of 11 the children and would “take it out on [Sh.B.], Leslie, and [Sa.B.]” when “he

didn’t get sex that day.” Tr. p. 279. Sa.B. testified that on one occasion,

Wikstrom gave her an unidentified white pill before engaging her sexually with

Leslie. The victims also reported that Wikstrom would become verbally

abusive when they were reluctant to submit to his sexual advances. In sum, the

victims were sexually, physically, and verbally abused so comprehensively and

consistently that it was inescapable.

[18] Although Wikstrom’s lack of criminal history is an appropriate mitigating

factor, the record portrays Wikstrom’s character much more poorly. In

addition to the general depravity necessary to commit the instant crimes, the

record indicates that “there was a period of ongoing and extensive, continuing

[] illegal drug activity on the part of both adults [] in the home, both Mr.

Wikstrom and his wife.” Tr. p. 591. Sa.B. testified that Wikstrom would abuse

his medication by crushing and snorting it and would thereafter become

aggressive and violent.

[19] Wikstrom’s offenses and character more than justified his sentence. “Whether

the counts involve one or multiple victims is highly relevant to the decision to

impose consecutive sentences if for no other reason than to preserve potential

deterrence of subsequent offenses. Similarly, additional criminal activity

directed to the same victim should not be free of consequences.” Cardwell, 895

N.E.2d at 1225. In light of this precedent, it was not inappropriate for the trial

court to impose separate consecutive sentences when considering both the

repeated nature of the offenses and the multiple victims.

Court of Appeals of Indiana | Memorandum Decision 52A02-1502-CR-65 | August 31, 2015 Page 10 of 11 [20] The judgment of the trial court is affirmed.

May, J., and Crone, J., concur.

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