Stacy R. Goldman v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 6, 2020
• Docket: 20A-CR-74
• 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 May 06 2020, 10:05 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 Yvette M. LaPlante Curtis T. Hill, Jr. LaPlante LLP Attorney General of Indiana Evansville, Indiana Tina L. Mann Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Stacy R. Goldman, May 6, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-74 v. Appeal from the Vanderburgh Superior Court State of Indiana, The Honorable Robert J. Pigman, Appellee-Plaintiff Judge Trial Court Cause No. 82D03-1904-F4-2383

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-74 | May 6, 2020 Page 1 of 9 [1] Stacy Goldman appeals the sentence imposed by the trial court after he pleaded

guilty to two counts of Level 4 Felony Child Solicitation1 and two counts of

Level 4 Felony Sexual Misconduct With a Minor.2 Goldman argues that the

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

We find that the sentence is not inappropriate, but we also find, sua sponte, that

the two child solicitation convictions violate Indiana’s prohibition against

double jeopardy. Therefore, we affirm the aggregate eight-year sentence, but

we reverse in part and remand with instructions to vacate the conviction and

sentence for one of the two counts of child solicitation.

Facts [2] On February 6, 2019, K.D., who has high-functioning autism, was fifteen years

old. She had been communicating via Facebook Messenger with a man who

she knew as Ryan King. “Ryan King” was an alias used online by Goldman,

who was twenty-eight years old. Goldman has a variety of intellectual and

emotional disabilities and has never lived completely independently. He

functions at the approximate maturity level of a fifteen-year-old.

[3] K.D., who believed that “King” was nineteen years old, had told him that she

was fifteen and believed that they were “dating.” Appellant’s App. Vol. II p.

26. Goldman set up a time and place to meet K.D. to engage in sexual

1 Ind. Code § 35-42-4-6(c). 2 I.C. § 35-42-4-9(a).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-74 | May 6, 2020 Page 2 of 9 conduct. He also acknowledged that K.D. wanted a baby. He suggested, “this

weekend let’s shoot for getting you pregnant” and said that he would “man up”

and take care of her and the baby. Tr. Ex. Vol. II p. 31. He called himself her

“daddy,” telling her “daddy loves you” and will “take care of you” and to “just

trust your daddy . . . .” Id. at 32.

[4] On February 6, 2019, K.D. told her parents she was going for a walk. She

walked to a nearby church, where she met Goldman for the first time in person.

The two ended up walking down into a ditch, where Goldman laid down a

blanket that he had brought. They took off their clothes, and Goldman

performed oral sex on K.D.; the two then had sexual intercourse.

[5] The next day, K.D. tried to break up with Goldman. He threatened to post

pictures of K.D. that he had taken the previous day so that her family would see

them, saying, “I have screenshots of your boobs and your p**sy so I’m going to

expose it on Facebook right now.” Id. at 10. Goldman also threatened to come

to K.D.’s house to tell her parents what had happened. He also told K.D. that

she could not prove anything because she did not know his real name and that

because (as far as she knew) he was nineteen years old, nothing could happen to

him because their ages were “four years apart” and what they did was legal. Id.

at 8. He also told her “to go kill your f*cking slut self” and “you’re just a little

slut that deserves to disappear from [l]ife hahaha . . . .” Id. at 8-9.

[6] Eventually, K.D. told her school counselor what had happened. The counselor

informed K.D.’s parents and law enforcement. Evansville Police Detective

Court of Appeals of Indiana | Memorandum Decision 20A-CR-74 | May 6, 2020 Page 3 of 9 Mike Kennedy discovered that “King’s” real name was Stacy Goldman and

that he was twenty-eight years old. Detective Kennedy met with Goldman and

Goldman’s sister on February 20, 2019. Goldman admitted that he had

arranged to meet up with K.D., that he had brought a blanket to have sex on,

that he knew K.D. was only fifteen years old, and that he had threatened and

insulted her after she tried to break up with him.

[7] On April 4, 2019, the State charged Goldman with two counts of Level 4 felony

child solicitation and two counts of Level 4 felony sexual misconduct with a

minor. On September 26, 2019, Goldman pleaded guilty as charged without a

plea agreement. The trial court held a sentencing hearing on November 8,

2019. It found Goldman’s “mental condition” to be a mitigating circumstance

and found his prior criminal history, including multiple probation violations, to

be an aggravating factor. Appellant’s App. Vol. II p. 17. On December 13,

2019, the trial court imposed concurrent eight-year sentences on all four counts.

Goldman now appeals.

Discussion and Decision I. Double Jeopardy [8] First, we are compelled to address, sua sponte, whether Goldman’s convictions

violate Indiana’s prohibition against double jeopardy. Generally, when a

defendant pleads guilty, he waives the right to relief on double jeopardy

grounds because “[a] defendant who enters a plea agreement to achieve an

advantageous position must keep the bargain . . . .” Kunberger v. State, 46

Court of Appeals of Indiana | Memorandum Decision 20A-CR-74 | May 6, 2020 Page 4 of 9 N.E.3d 966, 971 (Ind. Ct. App. 2015). But where, as here, a defendant pleads

guilty without the benefit of a plea agreement, he may be entitled to relief on

this issue. Id.

[9] The Double Jeopardy Clause of the Indiana Constitution provides that “No

person shall be put in jeopardy twice for the same offense.” Ind. Const. art. 1, §

14. It is well established that two or more offenses are the “same offense” in

violation of the double jeopardy clause “if, with respect to either the statutory

elements of the challenged crimes or the actual evidence used to convict, the

essential elements of one challenged offense also establish the essential elements

of another challenged offense.” Richardson v. State, 717 N.E.2d 32, 49 (Ind.

1999) (emphases in original).

[10] Here, Goldman was convicted of two counts of Level 4 felony child solicitation

and two counts of Level 4 felony sexual conduct with a minor. For child

solicitation, the State was required to prove beyond a reasonable doubt that

Goldman, who was at least twenty-one years old, knowingly or intentionally

solicited K.D., who was between fourteen and sixteen years old, to engage in

sexual conduct; that the solicitation occurred via a computer network; and that

Goldman traveled to meet K.D. I.C. § 35-42-4-6(c). For sexual misconduct

with a minor, the State was required to prove that Goldman, who was at least

twenty-one years old, knowingly or intentionally performed or submitted to

sexual intercourse (first count) and other sexual conduct (second count) with

K.D., who was less than sixteen years of age. I.C. § 35-42-4-9(a).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-74 | May 6, 2020 Page 5 of 9 [11] There is no issue with respect to the statutory elements of these crimes because

to prove child solicitation, the State was required to prove that Goldman

solicited K.D. to meet to engage in sexual conduct, and to prove sexual

misconduct, the State was required to prove that the sexual conduct actually

occurred.

[12] We do find a violation, however, with respect to the actual evidence used to

support Goldman’s convictions for the two counts of child solicitation. While

he actually engaged in both sexual intercourse and oral sex with K.D.—two

separate acts—there is only evidence that he engaged in one act of solicitation.3

That the one act of solicitation led to two types of sexual conduct supports the

two sexual misconduct with a minor convictions, but only one child solicitation

conviction. See Kunberger, 46 N.E.3d at 970 (holding that to find a violation of

the actual evidence test, there must be a reasonable possibility that the

evidentiary facts used to establish the essential elements of one offense may

have also been used to establish the essential elements of a second offense).

[13] Therefore, the two child solicitation convictions violate the prohibition against

double jeopardy. We reverse in part with instructions that the trial court vacate

the conviction and sentence for one of the child solicitation charges. This will

not affect the aggregate eight-year sentence imposed by the trial court (or our

3 In other words, there is no evidence that Goldman solicited K.D. once to engage in sexual intercourse and a second, separate time to engage in other sexual conduct.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-74 | May 6, 2020 Page 6 of 9 analysis of the appropriateness of the sentence) because the sentences were

ordered to run concurrently.

II. Appropriateness [14] Goldman’s sole argument on appeal is that the aggregate eight-year sentence is

inappropriate in light of the nature of the offenses and his character pursuant to

Indiana Appellate Rule 7(B). We must “conduct [this] review with substantial

deference and give ‘due consideration’ 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 perceived ‘correct’ sentence.” Knapp v. State, 9 N.E.3d 1274, 1292

(Ind. 2014) (internal citations omitted) (quoting Chambers v. State, 989 N.E.2d

1257, 1259 (Ind. 2013)).

[15] Goldman pleaded guilty to four Level 4 felonies, which we have revised to

three Level 4 felonies. For a Level 4 felony conviction, he faced a sentence of

two to twelve years, with an advisory term of six years imprisonment. Ind.

Code § 35-50-2-5.5. The trial court imposed eight-year terms. The State

concedes that these convictions arose out of a single episode of criminal

conduct. Appellee’s Br. p. 10. As such, had the trial court ordered consecutive

sentences, the maximum term would have been fifteen years imprisonment.

I.C. § 35-50-1-2(d)(3). The trial court imposed concurrent terms, however,

resulting in an aggregate sentence of eight years imprisonment.

[16] With respect to the nature of Goldman’s offenses, he used a fake Facebook

account with a pseudonym to form a relationship with a young woman whom

Court of Appeals of Indiana | Memorandum Decision 20A-CR-74 | May 6, 2020 Page 7 of 9 he knew to be fifteen years old; she also had autism. He was twenty-eight years

old, but told her he was nineteen. He convinced her to meet him to have sex.

He planned the whole encounter. They had sex and oral sex. The next day,

when K.D. tried to break up with him, he threatened to post graphic pictures of

her online and to come to her house to tell her parents what had happened. He

told her that she could prove nothing because she did not know his real name.

He called her a “slut” and told her to kill herself. Tr. Ex. Vol. p. 8. We do not

find that the nature of these offenses renders the sentence inappropriate.

[17] As to Goldman’s character, he emphasizes that he has many intellectual and

emotional disabilities and states that he functions at the maturity level of a

fifteen-year-old. But he was clearly able to act as a predator online and lure a

young woman into a sexual relationship, including planning out all the details

and threatening and degrading her afterwards. The trial court took Goldman’s

mental capabilities into account when imposing the sentence by finding his

“mental condition” to be a mitigating circumstance. Appellant’s App. Vol. II p.

17. The trial court would have acted reasonably had it imposed a lower

sentence, but we cannot say that the sentence imposed—which is slightly more

than the advisory term of six years, but a good deal less than the maximum

possible fifteen-year term—is inappropriate given Goldman’s mental

disabilities.

[18] We also note that Goldman has a lengthy criminal history that includes

convictions for Level 5 felony battery against a public safety officer, Level 6

felony and Class A misdemeanor theft, Level 6 felony and Class A

Court of Appeals of Indiana | Memorandum Decision 20A-CR-74 | May 6, 2020 Page 8 of 9 misdemeanor resisting law enforcement, Class A misdemeanor criminal

trespass, Class A misdemeanor battery, Class A misdemeanor conversion, and

Class A misdemeanor false informing. Goldman has been on probation

multiple times, and the State has had to file many petitions to revoke probation

after his behavior failed to comply with the conditions of probation.

[19] Goldman has been afforded leniency by the judicial system many times in the

past. But he has shown an inability or unwillingness to conform his behavior to

the rule of law. And now, his criminal activity has escalated, resulting in

trauma to a vulnerable fifteen-year-old young woman. Under these

circumstances, we find that the eight-year aggregate term imposed by the trial

court is not inappropriate.

[20] The judgment of the trial court is affirmed in part and reversed in part with

instructions to vacate the conviction and sentence for one of the two counts of

child solicitation.

Bradford, C.J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-74 | May 6, 2020 Page 9 of 9