Thomas D. Sayre v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 28, 2015
• Docket: 73A01-1412-CR-541
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Aug 28 2015, 9:00 am 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 Andrew B. Arnett Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Thomas D. Sayre, August 28, 2015

Appellant-Defendant, Court of Appeals Case No. 73A01-1412-CR-541 v. Appeal from the Shelby Superior Court.

State of Indiana, The Honorable Jack A. Tandy, Appellee-Plaintiff. Judge.

Cause No. 73D01-1404-FB-028

Sharpnack, Senior Judge

Court of Appeals of Indiana | Memorandum Decision 73A01-1412-CR-541 | August 28, 2015 Page 1 of 11 Statement of the Case [1] Thomas D. Sayre appeals from his conviction of two counts of sexual 1 misconduct with a minor, each as a Class B felony, contending that the

evidence to support the convictions is insufficient. Sayre admitted to his status

as an habitual offender. We affirm.

Issue [2] The sole issue Sayre raises on appeal is whether the evidence is sufficient to

support his convictions.

Facts and Procedural History [3] B.J.G., who had mental health issues, was admitted to the hospital for

treatment for depression. She had suffered complications from medications she

had been taking. She was met at the hospital by her father and his friend,

Sayre. B.J.G. was eventually transferred to Columbus Behavioral Center where

adjustments to her medications allowed her to start feeling better. She was

discharged from the treatment facility on February 28, 2014, a date she marked

in a calendar she maintained to keep record of significant events.

[4] Upon her release, B.J.G. returned to her grandparents’ home, where she lived

with her father and her siblings. She logged onto Facebook in order to search

for her godfather’s contact information so she could send a friend request to

1 Ind. Code § 35-42-4-9(a)(1) (2007).

Court of Appeals of Indiana | Memorandum Decision 73A01-1412-CR-541 | August 28, 2015 Page 2 of 11 him. While perusing the contacts from her father’s list of friends, she came

across Sayre’s Facebook profile and sent a friend request to him which he

accepted. At that time and throughout the encounters leading to the charges

against Sayre, B.J.G. was fourteen years old and Sayre was twenty-five years

old.

[5] After becoming friends on Facebook, B.J.G. and Sayre had several text

conversations through Facebook’s messenger system. During one of the

conversations, B.J.G. began the conversation by texting, “Hey, what’s up

handsome?” Tr. pp. 72-73. Sayre texted that he wanted to share something

with B.J.G., but that he did not want to harm his relationship with her father.

After B.J.G. encouraged Sayre to say what he was feeling, he told her that he

“liked her a lot.” Id. at 73. Sayre had known B.J.G. for much of her life and he

knew that she was fourteen years old.

[6] Sayre called B.J.G. on her home telephone and told her that “if we keep it on

the low, we can be together.” Id. at 73-74. B.J.G. knew that his statement

meant that if she did not tell anyone about her relationship with Sayre, that she

would be his girlfriend.

[7] After that telephone conversation, B.J.G. and Sayre had several sexually

explicit conversations, which she described as sexting, through Facebook.

B.J.G. deleted the messages immediately afterwards, however, because she was

afraid her father might find out about the relationship. Sayre told B.J.G. that

he loved her and that he would marry her. B.J.G., whose parents were

Court of Appeals of Indiana | Memorandum Decision 73A01-1412-CR-541 | August 28, 2015 Page 3 of 11 divorced and whose grandparents were in the process of divorcing, was uplifted

by Sayre’s profession of love. She was lonely, the profession of love was

something she deeply wanted, and the attention made her happy.

[8] On March 3, 2014, after B.J.G. exchanged messages with Sayre, she took a

walk with her sister. After they returned home, B.J.G. saw a message from

Sayre that read, “I seen [sic] you on your walk.” Id. at 76. Sayre told her that

he wanted to see her and that he was outside of her home. B.J.G. told her

grandmother, who was home at the time, that she wanted to go outside to

makes notes in her journal. She then left the house to meet Sayre behind some

sheds that were on the property. B.J.G. saw Sayre appear from around her

neighbor’s house and walk toward her. Sayre did not have a car of his own,

and B.J.G. did not know how he had arrived at her house.

[9] While the two were behind the sheds, Sayre told B.J.G that he loved her and

they began kissing. During this encounter, Sayre had B.J.G. perform fellatio

and submit to vaginal and anal intercourse. Sayre called B.J.G. his “dirty

whore slut” and made her say his name during the incident. Id. at 82. The

intercourse caused pain to B.J.G., so she asked him to stop. However, Sayre

refused and reminded her of an earlier sexually explicit conversation during

which B.J.G. had told Sayre that if she ever asked him to stop he should

continue anyway. After Sayre had an orgasm, he kissed B.J.G. and began

walking toward a nearby truck stop. B.J.G. memorialized the encounter on her

calendar with a heart around the date and the words “Day it happened.” Id. at

84; State’s Ex. 2.

Court of Appeals of Indiana | Memorandum Decision 73A01-1412-CR-541 | August 28, 2015 Page 4 of 11 [10] Sayre and B.J.G. continued to exchange Facebook messages in which Sayre

professed his love for her. Sayre also became jealous of B.J.G., accusing her of

cheating on him. In order to prove her loyalty to Sayre, B.J.G. gave him her

Facebook password. Sayre began deleting messages and connections to friends

from her account and used Facebook to tell others to stay away from her. At

one point, Sayre posted something on B.J.G.’s Facebook wall, which B.J.G.

later deleted for fear that her father might discover it. However, B.J.G.’s father

had seen the post and recognized the misspellings and phrasing as Sayre’s

writing. B.J.G.’s father asked her about the post, but she denied any knowledge

of it.

[11] On the evening of March 6, 2014, Sayre sent a message to B.J.G. stating that he

had arranged transportation and that he was coming to see her at her house.

When Sayre arrived there, he knocked on B.J.G.’s bedroom window and

instructed her to come outside. B.J.G. waited for approximately an hour before

going outside because her grandmother was still awake when Sayre arrived.

After B.J.G’s grandmother was asleep, Sayre and B.J.G. met behind the sheds

at approximately 2:30 a.m. on March 7, 2014. It was extremely cold outside

that morning and there was ice on the ground. Sayre told B.J.G. that his trip

had “better be worth it” because it was so cold. Id. at 90. Sayre engaged in

vaginal and anal intercourse with B.J.G. during this encounter. She believed

that she had to comply in order to please Sayre and prevent him from being

upset with her.

Court of Appeals of Indiana | Memorandum Decision 73A01-1412-CR-541 | August 28, 2015 Page 5 of 11 [12] B.J.G. began making noises during the intercourse because of the pain

involved. Sayre placed his hand over B.J.G.’s mouth and ordered her to get on

top of him and “ride him.” Id. at 91. While she complied, she scraped and

bloodied her knees on the ice on the ground. Eventually, Sayre told J.G.B. that

he could not achieve orgasm and that he had to leave her because his ride

would be leaving soon. Sayre left B.J.G., and she noted the experience by

marking her calendar.

[13] Sayre did not use a condom in either encounter with B.J.G. despite the fact that

Sayre had been diagnosed with the sexually-transmitted infection, herpes, four

years prior. B.J.G. testified at trial that after her sexual encounters with Sayre,

it burned whenever she urinated. B.J.G. later stated that she thought that she

was experiencing this symptom because Sayre had “ripped [her] vagina.” Id. at

84-85.

[14] While at school on March 7, 2014, B.J.G. wrote a note to her friend H.R. about

her encounters with Sayre. B.J.G. did not want her father to find out about the

relationship, but sought H.R.’s advice. Included in the note were details

regarding her sexual encounters on both occasions with Sayre, the fact that he

was twenty-five years old, and that he had unique markings shaped like a star

around one of his eyes. B.J.G. wrote to H.R. that she was terrified that she and

Sayre would be arrested if anyone found out. Later that day, H.R. gave the

note to B.J.G.’s sister while they were all still in school. B.J.G.’s sister gave the

note to the school’s administrators.

Court of Appeals of Indiana | Memorandum Decision 73A01-1412-CR-541 | August 28, 2015 Page 6 of 11 [15] School administrators called B.J.G.’s father and left a voicemail message for

him about the contents of the note. B.J.G.’s father did not receive the message

in time to meet with school officials. He picked up the note from the school the

following week, on March 10, 2014. By then, B.J.G. had already told her

grandmother about her sexual encounters with Sayre after being questioned

about the visible injuries to her knees. G.J.G.’s grandmother was planning to

move to Massachusetts on March 14, 2014.

[16] After B.J.G.’s father picked up the note from school, he was extremely upset

and decided that he would deal with Sayre himself. B.J.G.’s father called Sayre

and informed him that he knew what he had done with B.J.G. Prior to ending

the telephone conversation, her father then told Sayre that they were going to

sit down about talk about it.

[17] On March 10 and 11, 2014, Sayre continued to send messages through

Facebook. On the morning of March 11, 2014, B.J.G. sent a message to Sayre

noting that he had not shown up the previous night as promised and that she

missed him. Sayre responded by saying, “Your dad knows.” Id. at 107. B.J.G.

asked Sayre how her father knew and asked him to deny everything. Sayre

promised her that he would not give up on their relationship. Sayre then told

B.J.G. that her father had somehow received B.J.G.’s “info” and for her to “just

delete” the conversations. Id. at 108-09. Sayre told B.J.G. that he did not know

how B.J.G.’s father had found out, but said, “He called and I told him I don’t

know anything. He said we[sic] going to sit down and talk.” Id. at 109.

Court of Appeals of Indiana | Memorandum Decision 73A01-1412-CR-541 | August 28, 2015 Page 7 of 11 [18] On March 14, 2014, B.J.G.’s father drove B.J.G.’s grandmother to

Massachusetts. During the drive B.J.G.’s grandmother told B.J.G.’s father

about what she knew of B.J.G.’s relationship with Sayre and about her

observation of the injuries to B.J.G.’s knees. When he returned home, B.J.G.’s

father confronted B.J.G. and asked to see her knees.

[19] On March 31, 2014, B.J.G.’s father took her to the family doctor and made an

appointment with a gynecologist to have her tested for pregnancy and for

sexually-transmitted infections. B.J.G.’s father was aware of Sayre’s prior

diagnosis. B.J.G. tested negative for any sexually-transmitted infection,

including herpes. However, B.J.G. was told to return for further testing if any

lesions developed. She was told that it can take up to six months after exposure

before the test shows any signs of diseases. At Sayre’s trial, Shelly Snyder, a

nurse, testified that unprotected sex does not always result in the transmission

of herpes and may not do so when an individual, such as Sayre, has been

diagnosed with herpes for several years and was receiving treatment.

[20] B.J.G.’s father also took B.J.G. to the Shelby County Sheriff’s Department to

report what Sayre had done. Shelby County Detective Roger Clark interviewed

B.J.G. and her father separately on April 1, 2014. Clark gathered evidence,

including the last Facebook messages that B.J.G. had failed to delete.

[21] The State charged Sayre with two counts of sexual misconduct with a minor,

each as a Class B felony. The State also filed a separate count alleging that

Sayre was an habitual offender. After his jury trial, Sayre was convicted of both

Court of Appeals of Indiana | Memorandum Decision 73A01-1412-CR-541 | August 28, 2015 Page 8 of 11 counts of sexual misconduct with a minor. He admitted his status as an

habitual offender. The trial court sentenced Sayre to fifteen years in the

Department of Correction on the first count and enhanced the sentence by

twenty-five years due to Sayre’s habitual offender status. Sayre received a

fifteen-year sentence for his conviction on the second count of sexual

misconduct with a minor to be served concurrently with his sentence for the

first count. Sayre now appeals.

Discussion and Decision [22] Sayre contends that the evidence is insufficient to support his convictions for

sexual misconduct with a minor, each as a Class B felony. When an appellant

challenges the sufficiency of the evidence supporting his convictions, we do not

reweigh the evidence or reassess the credibility of the witnesses. Joslyn v. State,

942 N.E.2d 809, 811 (Ind. 2011). We consider only the probative evidence and

reasonable inferences drawn therefrom that support the verdict. Id. On review,

we will affirm if the probative evidence and reasonable inferences drawn

therefrom could have allowed a reasonable juror to find the defendant guilty

beyond a reasonable doubt. Id. The uncorroborated testimony of one witness is

sufficient to convict, even if the witness in question is the victim. Ferrell v. State,

565 N.E.2d 1070, 1072-73 (Ind. 1991).

[23] In order to convict Sayre of sexual misconduct with a minor as a Class B

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

person who was at least twenty-one years of age, with B.J.G., a child who was

Court of Appeals of Indiana | Memorandum Decision 73A01-1412-CR-541 | August 28, 2015 Page 9 of 11 at least fourteen years of age but less than sixteen years of age, performed or

submitted to sexual intercourse or deviate sexual conduct. Ind. Code § 35-42-4-

9(a)(1). Criminal deviate conduct, as it was defined at the time of the

occurrence of the offenses, means an act involving a sex organ of one person

and the mouth or anus of another person, or the penetration of the sex organ or

anus of a person by an object. Ind. Code § 35-31.5-2-94 (2012) (repealed by

P.L. 158-2013, SEC. 366, eff. July 1, 2014).

[24] The State established that Sayre was twenty-five years old and B.J.G. was

fourteen years old at the time of the offenses. B.J.G. testified that on one

occasion Sayre forced her to perform fellatio and then engaged in vaginal and

anal intercourse with her. She further testified that on another occasion Sayre

engaged in vaginal and anal intercourse with her.

[25] The State also introduced corroborating evidence. The note written by B.J.G.

to H.R. was given to school administrators, who then gave it to B.J.G.’s father,

and the note was admitted in evidence. The note contains descriptions of the

sexual encounters and identifies Sayre. Additionally, the note contained

information about the injuries to B.J.G.’s knees, which occurred during the

second sexual encounter with Sayre. B.J.G.’s grandmother and father each saw

the injuries to her knees. A Facebook post to B.J.G.’s Facebook wall contained

misspellings and phrasing that both B.J.G. and her father identified as Sayre’s.

Two pages from B.J.G.’s calendar were admitted in evidence and contained

notations made by B.J.G. about the events.

Court of Appeals of Indiana | Memorandum Decision 73A01-1412-CR-541 | August 28, 2015 Page 10 of 11 [26] Sayre claims that B.J.G.’s testimony was not probative for a jury to conclude

beyond a reasonable doubt that Sayre committed the offenses. He claims this is

so because B.J.G. suffered from mental health issues, there was no medical

evidence to support the allegations, certain explicit Facebook conversations had

been deleted, and B.J.G.’s father waited three weeks prior to contacting law

enforcement.

[27] Each of these claims are requests to reweigh the evidence and reassess the

credibility of the witnesses, tasks we will not undertake on appellate review.

Joslyn, 942 N.E.2d at 811. The evidence is sufficient to support Sayre’s

convictions.

Conclusion [28] In light of the foregoing we affirm the trial court’s judgment.

[29] Affirmed.

Baker, J., and Najam, J., concur.

Court of Appeals of Indiana | Memorandum Decision 73A01-1412-CR-541 | August 28, 2015 Page 11 of 11