MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 04 2019, 6:59 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE P. Jeffrey Schlesinger Curtis T. Hill, Jr. Crown Point, Indiana Attorney General of Indiana
Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Scott Anthony Smolen, September 4, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-3012 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Salvador Vasquez, Appellee-Plaintiff Judge Trial Court Cause No. 45G01-1512-F1-9
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3012 | September 4, 2019 Page 1 of 7 [1] Scott Anthony Smolen appeals his convictions of Level 1 felony child
molesting 1 and Level 4 felony child molesting. 2 Smolen argues the court’s
allegedly improper jury instruction violated his right against self-incrimination
and the trial court abused its discretion by ordering Smolen to serve his
sentences consecutively. We affirm.
Facts and Procedural History [2] In April 2015, Smolen was dating T.B.’s mother. T.B. thought of Smolen as a
father figure and referred to him as “dad” or “daddy.” (Tr. Vol. II at 115.)
Smolen lived with T.B., her mother, her grandmother, and her three sisters. At
the time, T.B. was thirteen and Smolen was twenty-three. That same month,
Smolen and T.B. had sex for the first time. Smolen and T.B. engaged in some
sort of sexual activity every day for several months.
[3] T.B. and Smolen would write letters and notes back and forth. In December
2015, T.B. accidently left multiple of their notes in the back of a library book.
A librarian discovered these notes and became concerned over the sexually
explicit matter in the notes. The librarian contacted the police. Two days later,
police interviewed Smolen. Smolen admitted it was his handwriting on the
notes but accused T.B. of trying to touch him. Later, Smolen admitted having
1 Ind. Code § 35-42-4-3(b) (2015). 2 Ind. Code § 35-42-4-3(a)(1) 2015).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3012 | September 4, 2019 Page 2 of 7 sex with T.B., but he claimed it only happened once. Smolen also admitted
T.B. had touched his penis approximately twenty-five times.
[4] On December 18, 2015, the State charged Smolen with one count of Level 1
felony child molesting and one count of Level 4 felony child molesting. A jury
found Smolen guilty of both counts. The trial court sentenced Smolen to
consecutive terms of thirty years for Level 1 felony child molesting and four
years for Level 4 felony child molesting, for an aggregate sentence of thirty-four
years.
Discussion and Decision Jury Instruction [5] Smolen first argues the trial court improperly instructed the jury.
Upon review of a trial court’s decision to give or refuse a jury instruction, we apply an abuse of discretion standard. Treadway v. State, 924 N.E.2d 621, 636 (Ind. 2010) (internal citation omitted). “[T]his Court considers: (1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions which are given.” Guyton v. State, 771 N.E.2d 1141, 1144 (Ind. 2002) (internal citation omitted). Reversal arises “only if the appellant demonstrates that the instruction error prejudices his substantial rights.” Treadway, 924 N.E.2d at 636 (internal citation omitted).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3012 | September 4, 2019 Page 3 of 7 Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015). For prejudice to arise, “the
instructions taken as a whole must misstate the law or otherwise mislead the
jury.” Brooks v. State, 895 N.E.2d 130, 132 (Ind. Ct. App. 2008).
[6] Jury instruction 5 originally stated:
A determination of the Defendant’s intent may be arrived at by the jury from a consideration of the Defendant’s conduct and the natural and usual consequences to which such conduct logically and reasonably points.
(App. Vol. II at 47.) Smolen objected at trial, arguing the instruction unduly
prejudiced him because “even though there’s an instruction that says he doesn’t
have to testify, this instruction implies . . . if he didn’t testify, then you can infer
what you want from that.” (Tr. Vol. II at 174.) As a result of Smolen’s
argument, the trial court revised jury instruction 5 to state:
A determination of the Defendant’s intent to arouse may be inferred by the jury from a consideration of the Defendant’s conduct and the natural and usual consequences to which such conduct logically and reasonably points.
(App. Vol. II at 68) (emphasis added).
[7] On appeal, Smolen argues this instruction violated his right to be free from self-
incrimination because it permitted the jury to find the intent element based on
Smolen’s conduct at trial. (Appellant’s Br. at 8.) We disagree, because “the
Defendant’s intent” and “the Defendant’s conduct” at issue are Smolen’s intent
and conduct at the time the crimes were alleged to have occurred. (App. Vol. II
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3012 | September 4, 2019 Page 4 of 7 at 68.) This should have been obvious to the jury as “intent to arouse” was an
element of the crime allegedly committed and the jury received instructions as
to the elements of each crime. (See id. at 51) (jury instruction listing elements of
Level 4 felony child molesting). Smolen has failed to demonstrate any juror
would have made the inference he asserts as error. See Davis-Martin v. State, 116
N.E.3d 1178, 1192 (Ind. Ct. App. 2019) (defendant failed to establish how jury
instruction would create irreversible error).
[8] Furthermore, “[w]e consider the jury instructions as a whole, and in reference
to each other.” Isom v. State, 651 N.E.2d 1151, 1152 (Ind. 1995). Jury
instruction 14 states:
No defendant may be compelled to testify. A defendant has no obligation to testify. The defendant in this case did not testify and you must not consider this in any way.
(App. Vol. II at 77.) This instruction tells the jury Smolen was not required to
testify and they may not consider his decision whether to testify as evidence of
his guilt or innocence. This instruction, when considered with jury instruction
5, directs the jury to determine Smolen’s intent from the evidence presented at
trial and not from Smolen’s action at trial. See Aldana v. School City of East
Chicago, 769 N.E.2d 1201, 1211 (Ind. 2002) (given jury instruction, when
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 04 2019, 6:59 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE P. Jeffrey Schlesinger Curtis T. Hill, Jr. Crown Point, Indiana Attorney General of Indiana
Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Scott Anthony Smolen, September 4, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-3012 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Salvador Vasquez, Appellee-Plaintiff Judge Trial Court Cause No. 45G01-1512-F1-9
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3012 | September 4, 2019 Page 1 of 7 [1] Scott Anthony Smolen appeals his convictions of Level 1 felony child
molesting 1 and Level 4 felony child molesting. 2 Smolen argues the court’s
allegedly improper jury instruction violated his right against self-incrimination
and the trial court abused its discretion by ordering Smolen to serve his
sentences consecutively. We affirm.
Facts and Procedural History [2] In April 2015, Smolen was dating T.B.’s mother. T.B. thought of Smolen as a
father figure and referred to him as “dad” or “daddy.” (Tr. Vol. II at 115.)
Smolen lived with T.B., her mother, her grandmother, and her three sisters. At
the time, T.B. was thirteen and Smolen was twenty-three. That same month,
Smolen and T.B. had sex for the first time. Smolen and T.B. engaged in some
sort of sexual activity every day for several months.
[3] T.B. and Smolen would write letters and notes back and forth. In December
2015, T.B. accidently left multiple of their notes in the back of a library book.
A librarian discovered these notes and became concerned over the sexually
explicit matter in the notes. The librarian contacted the police. Two days later,
police interviewed Smolen. Smolen admitted it was his handwriting on the
notes but accused T.B. of trying to touch him. Later, Smolen admitted having
1 Ind. Code § 35-42-4-3(b) (2015). 2 Ind. Code § 35-42-4-3(a)(1) 2015).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3012 | September 4, 2019 Page 2 of 7 sex with T.B., but he claimed it only happened once. Smolen also admitted
T.B. had touched his penis approximately twenty-five times.
[4] On December 18, 2015, the State charged Smolen with one count of Level 1
felony child molesting and one count of Level 4 felony child molesting. A jury
found Smolen guilty of both counts. The trial court sentenced Smolen to
consecutive terms of thirty years for Level 1 felony child molesting and four
years for Level 4 felony child molesting, for an aggregate sentence of thirty-four
years.
Discussion and Decision Jury Instruction [5] Smolen first argues the trial court improperly instructed the jury.
Upon review of a trial court’s decision to give or refuse a jury instruction, we apply an abuse of discretion standard. Treadway v. State, 924 N.E.2d 621, 636 (Ind. 2010) (internal citation omitted). “[T]his Court considers: (1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions which are given.” Guyton v. State, 771 N.E.2d 1141, 1144 (Ind. 2002) (internal citation omitted). Reversal arises “only if the appellant demonstrates that the instruction error prejudices his substantial rights.” Treadway, 924 N.E.2d at 636 (internal citation omitted).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3012 | September 4, 2019 Page 3 of 7 Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015). For prejudice to arise, “the
instructions taken as a whole must misstate the law or otherwise mislead the
jury.” Brooks v. State, 895 N.E.2d 130, 132 (Ind. Ct. App. 2008).
[6] Jury instruction 5 originally stated:
A determination of the Defendant’s intent may be arrived at by the jury from a consideration of the Defendant’s conduct and the natural and usual consequences to which such conduct logically and reasonably points.
(App. Vol. II at 47.) Smolen objected at trial, arguing the instruction unduly
prejudiced him because “even though there’s an instruction that says he doesn’t
have to testify, this instruction implies . . . if he didn’t testify, then you can infer
what you want from that.” (Tr. Vol. II at 174.) As a result of Smolen’s
argument, the trial court revised jury instruction 5 to state:
A determination of the Defendant’s intent to arouse may be inferred by the jury from a consideration of the Defendant’s conduct and the natural and usual consequences to which such conduct logically and reasonably points.
(App. Vol. II at 68) (emphasis added).
[7] On appeal, Smolen argues this instruction violated his right to be free from self-
incrimination because it permitted the jury to find the intent element based on
Smolen’s conduct at trial. (Appellant’s Br. at 8.) We disagree, because “the
Defendant’s intent” and “the Defendant’s conduct” at issue are Smolen’s intent
and conduct at the time the crimes were alleged to have occurred. (App. Vol. II
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3012 | September 4, 2019 Page 4 of 7 at 68.) This should have been obvious to the jury as “intent to arouse” was an
element of the crime allegedly committed and the jury received instructions as
to the elements of each crime. (See id. at 51) (jury instruction listing elements of
Level 4 felony child molesting). Smolen has failed to demonstrate any juror
would have made the inference he asserts as error. See Davis-Martin v. State, 116
N.E.3d 1178, 1192 (Ind. Ct. App. 2019) (defendant failed to establish how jury
instruction would create irreversible error).
[8] Furthermore, “[w]e consider the jury instructions as a whole, and in reference
to each other.” Isom v. State, 651 N.E.2d 1151, 1152 (Ind. 1995). Jury
instruction 14 states:
No defendant may be compelled to testify. A defendant has no obligation to testify. The defendant in this case did not testify and you must not consider this in any way.
(App. Vol. II at 77.) This instruction tells the jury Smolen was not required to
testify and they may not consider his decision whether to testify as evidence of
his guilt or innocence. This instruction, when considered with jury instruction
5, directs the jury to determine Smolen’s intent from the evidence presented at
trial and not from Smolen’s action at trial. See Aldana v. School City of East
Chicago, 769 N.E.2d 1201, 1211 (Ind. 2002) (given jury instruction, when
considered as a whole with all instructions, removed any unduly prejudicial
impact), trans. denied. Smolen has not demonstrated the trial court abused its
discretion in instructing his jury.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3012 | September 4, 2019 Page 5 of 7 Consecutive Sentences [9] Smolen asserts the trial court abused its discretion when ordering his sentences
served consecutively. Whether to impose consecutive or concurrent sentences
is within the trial courts sound discretion and is reviewed only for an abuse of
discretion. Gellenbeck v. State, 918 N.E.2d 706, 712 (Ind. Ct. App. 2009). The
trial court abuses its discretion if its decision is clearly against the logic and
effect of the facts and circumstances. Id.
[10] “[T]he court shall determine whether terms of imprisonment shall be served
concurrently or consecutively. The court may consider the: (1) aggravating
circumstances . . . and (2) mitigating circumstances . . . in making a
determination under this subsection[.]” Ind. Code § 35-50-l-2(c). “To impose
consecutive sentences, the trial court must find at least one aggravating
circumstance.” Jones v. State, 705 N.E.2d 452, 455 (Ind. 1999).
[11] The trial court specifically noted the seriousness of the crimes, Smolen’s
position of trust, and the impact of the abuse on T.B.’s life. The trial court also
found the multiple instances of abuse to be an aggravating circumstance. Thus,
the trial court did not abuse its discretion by ordering Smolen to serve his
sentences consecutively. See O’Connell v. State, 742 N.E.2d 943, 952 (Ind. 2001)
(multiple victims or multiple crimes justifies imposing consecutive sentences).
Conclusion
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3012 | September 4, 2019 Page 6 of 7 [12] Smolen’s jury instructions did not violate his right against self-incrimination,
and the trial court did not abuse its discretion by sentencing Smolen to
consecutive sentences because it found as an aggravating circumstance that
Smolen abused T.B. multiple times. Accordingly, we affirm.
[13] Affirmed.
Mathias, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3012 | September 4, 2019 Page 7 of 7