MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 31 2019, 7:41 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE James Harper Curtis T. Hill, Jr. Valparaiso, Indiana Attorney General of Indiana Josiah J. Swinney Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Thomas K. Jackson, December 31, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-796 v. Appeal from the LaPorte Superior Court State of Indiana, The Honorable Michael Bergerson, Appellee-Plaintiff. Judge Trial Court Cause No. 46D01-1704-F3-367
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019 Page 1 of 27 Case Summary
[1] Thomas Jackson appeals his convictions and sentence for three counts of rape,
Level 3 felonies. We affirm.
Issues
[2] Jackson raises three issues for our review, which we restate as:
I. Whether the evidence was sufficient to convict Jackson of rape.
II. Whether the trial court abused its discretion in sentencing Jackson.
III. Whether Jackson’s sentence is inappropriate in light of the nature of the offense and Jackson’s character.
Facts
[3] Twenty-five-year old K.S. 1 is the daughter of W.S. (“Father”) and Ki.S.
(“Mother”). K.S. is “moderately, mentally handicapped.” Tr. Vol. III p. 102.
Mother and Father have legal guardianship over K.S., and they anticipate
having guardianship over K.S. for the remainder of her life. According to
Belinda Hubert, a clinical psychologist, testing revealed that K.S. is in “the
moderately intellectually handicap functioning, which means about two percent
of the population has lower scores than her.” Id. at 101-02. K.S.’s “social
1 K.S. was twenty-five years old at the time of the second trial in December 2018; the facts of this case begin in 2013, when K.S. would have been approximately twenty years old.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019 Page 2 of 27 functioning” demonstrates that her “mental age” is “about 11 to 13 at the
higher end,” and K.S.’s “working memory reasoning” level, which relates to
achievement in school, is “about the age of an eight-year-old.” Id. at 103.
[4] K.S.’s disabilities are manifested in many ways, including: (1) Mother and
Father remind K.S. each morning to complete routine hygiene tasks; (2) K.S.
cannot read or write; (3) K.S. does not have a driver’s license; (4) K.S. cannot
recall her phone number to give it out to friends; (5) K.S.’s favorite television
shows are cartoons; and (6) K.S. cannot play games on her own because she
does not understand how to play. Moreover, Mother and Father only leave
K.S. unsupervised for short intervals of time—no longer than two hours—and
K.S. is only allowed to use the microwave after asking Mother and Father what
buttons to press after an incident where K.S. almost burnt down the house by
using the stove.
[5] Previously, K.S. attended Paladin, where she participated in art and computer
classes, participant assistant care, community integration, and light assembly
line work as prevocational work. 2 K.S. now attends Respite, which hosts group
meetings and functions, approximately four times a week. 3 K.S. has
participated in services, including: “job readiness skills,” “[a]cademic base
2 Participants at Paladin, who are considered below fifty percent productivity in the workforce, are given the opportunity to participate in work for pay. 3 Respite “gives the parents relief from continued care giving,” and “[participants] can do any type of activity in the community,” in addition to having a “Respite home.” Tr. Vol. II p. 184.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019 Page 3 of 27 services,” and “behavioral services.” Tr. Vol. II p. 185. K.S. also has
participated in Special Olympics.
[6] K.S. has friends, whom she occasionally visits or speaks to on the phone, and
she has gone out on a date with one of her friends, “C.,” twice. C. is a “little
more high functioning” than K.S., and a group of friends went together to
watch movies. Id. at 102. K.S. also went on a date with another man she met
at Paladin; these dates, however, were always supervised, with the exception of
one outing, which Mother and Father were uncertain was supervised. While
K.S. was working at Opportunity Enterprises, a service much like Paladin, a
man named “S.” asked K.S. to marry him. S. did not attend subsequent dates
arranged between K.S. and S., and nothing ever came of the couple’s
“engagement.”
[7] K.S.’s knowledge of sexual intercourse and its potential consequences was
extremely limited. K.S. “received the discussion about the birds and the bees”
and about “birth control.” Id. at 154. K.S. was permitted to attend “Thunder
Down Under” with Mother and Mother’s friends when she was twenty-one
years old. 4 Id. at 156. Mother spoke to K.S. about sex and purchased a vibrator
for K.S. because K.S. touched herself inappropriately in public and at home.
[8] In 2013, J.S., K.S.’s cousin (“Cousin”) began hosting regular weekend cookouts
approximately every other week. Attendees at these parties regularly included
4 According to Mother, “Thunder Down Under” is a “male strip show.” Tr. Vol. II p. 234.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019 Page 4 of 27 Jackson, who was Cousin’s neighbor, Father, Mother, and K.S. The parties
were “mostly adult parties,” and alcohol was served. Id. at 118. K.S. drank
alcohol at these parties. K.S. also announced her previous engagement to S. at
one of Cousin’s parties. Father told a group at the party that the engagement
was “not really that simple” because there was no ring, and Father was
uncertain whether S. actually asked K.S. to marry him. Id. at 162.
[9] Jackson, a police officer, befriended Mother and Father at these parties, and, at
one party, Father introduced Jackson to K.S. because K.S. “thought cops were
really cool,” and has “always idolized the police officers or fire fighters. . . .”
Id. at 121, 127. Father told Jackson that K.S. is going to “act” and “look
normal, but she is mentally retarded.” Id. at 121-22. Similarly, Mother told
Jackson that K.S. is “mentally retarded” and cannot “read or write or do any of
the things that normal people her age would be doing.” Id. at 248. Jackson
also asked Father and Mother if K.S. was capable of having sexual intercourse;
Father responded that it “would be possible,” and Mother told Jackson that
K.S. “is a woman” and “has all her parts,” so she is physically capable of doing
so. Id. at 124, 249.
[10] At one of the parties, Jackson asked Mother if he could take K.S. out for coffee
or ice cream. While Mother and Father initially declined, they ultimately
agreed as they believed Jackson was “trying to be a nice person.” Id. at 125.
Jackson told Mother that Jackson “wanted to make [K.S.] feel like she had a
friend too.” Tr. Vol. III p. 3. K.S. and Jackson went on outings—for coffee,
ice cream, or a ride to the beach—two or three times a month, sometimes with
Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019 Page 5 of 27 large gaps of time between the outings. Jackson texted Mother for permission
to take K.S. out on each occasion.
[11] After one of their outings, Jackson notified Mother that he asked K.S., after she
dropped food in her lap, if Jackson could “kiss Rachel,” which is the word K.S.
uses for her vagina. Tr. Vol. II p. 128. Jackson told Mother that K.S.
responded, “no,” and “giggled”; Mother and Father’s impression was that
Jackson was trying to make a joke. Id. at 131.
[12] On March 5, 2017, Officer Troy Webb, with the Westville Police Department,
was patrolling the Prairie Meadow Park in Westville when Webb observed a
van parked in the park. Officer Webb approached the van and did not see
anyone in the front of the van; however, Officer Webb could hear movement in
the back of the van. Officer Webb knocked on the window and asked the
individuals to come to the front of the van. A few minutes later, Jackson
appeared in the driver’s seat. Shortly after, K.S. appeared in the passenger seat
with her shirt only “three quarters” of the way on properly. Id. at 62. K.S. told
Officer Webb that she and Jackson were “friends” and were “just hanging out
and talkin[g]” in the van; Officer Webb instructed Jackson and K.S. that they
should leave the park, which they did. Id. at 63.
[13] K.S. told Mother about the encounter, and Mother reported the incident to the
police. Officer Brian Piergalski, with the LaPorte County Sheriff’s Office, led
the investigation and requested that K.S. receive a medical exam. Officer
Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019 Page 6 of 27 Piergalski’s investigation revealed that Jackson and K.S. had sexual intercourse
on other occasions, including at a hotel and twice in a park in LaPorte County.
[14] Based on the investigation, the State charged Jackson with four counts of rape,
Level 3 felonies, under Indiana Code Section 35-42-4-1, on April 24, 2017;
amended charges were filed on September 18, 2017. Pursuant to the amended
charging information, Counts I and II alleged that Jackson had sexual
intercourse with K.S.; Count III alleged that Jackson “placed his penis in the
mouth of K.S.”; and Count IV alleged that Jackson “placed his penis into the
anus of K.S.” Appellant’s App. Vol. II pp. 48-49.
[15] Jackson’s first jury trial took place from March 27 through April 3, 2018, after
which the jury found Jackson not guilty of Count I, but was unable to reach a
verdict on Counts II, III, and IV; the trial court declared a mistrial on these
counts. Jackson’s second jury trial on Counts II, III, and IV, took place from
December 17, through 21, 2018. 5
[16] At the second trial, K.S. testified that sexual intercourse occurs when “two
people get together.” Tr. Vol. III p. 215. K.S. testified that the individuals’
“private parts” touch, and when asked to elaborate what the “private parts” are,
K.S. described them as the parts “where they use the bathroom.” Id. at 217.
5 At the second jury trial, the Counts were changed to Counts I, II, and III; however, for simplicity, we will continue with the original numbering of counts.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019 Page 7 of 27 K.S. testified she knew what birth control was but did not know what a condom
was.
[17] As to Jackson specifically, K.S. testified that Jackson always made plans with
K.S. through Mother and that she did not call Jackson herself. K.S. testified
that, when Jackson took her to the hotel, her interaction with Jackson “started
getting weird” and felt “kind of awkward.” Id. at 225. After they went in the
hotel room, Jackson started “making [her] do weird things.” Id. at 226.
Jackson would then touch her “down there,” where she “peed at,” and would
use “the same part of [Jackson’s] body that he uses to pee” to touch K.S.’s
“butt” and mouth. Id. at 228. After the incident at the hotel, Jackson told K.S.
not to tell anyone because Jackson could lose his job. K.S.’s testimony revealed
that “all of those things” that happened at the hotel happened at the park twice.
Id. at 230. When asked if K.S. ever told Jackson she did not want to have
sexual intercourse, K.S. testified: “I didn’t want [to], he knew I had special
needs so I couldn’t agree to anything.” Id. at 231.
[18] Jackson’s testimony at the prior jury trial was played for the jury. The
transcript of Jackson’s testimony revealed Jackson’s position that: (1) Mother
told Jackson that K.S. was “special,” which Mother further elaborated as K.S.
having “a learning disability” and not “retarded”; (2) Jackson knew that K.S.
“had a crush” on Jackson; (3) Mother once told Jackson that K.S. would “jump
[his] bones” if they were left alone; (4) Mother was the one who started the
outings by encouraging K.S. to ask Jackson for a ride in his car; (5) parents did
not give Jackson any limitations on what should or should not occur when out
Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019 Page 8 of 27 with K.S.; and (6) when Father discussed K.S.’s prior engagement, Jackson did
not get the impression it was a joke, and instead, that Mother and Father
seemed “sort of excited” about it. Conf. Ex. pp. 50-52, 75. Jackson also
testified that K.S. drank alcohol at the parties and that he contacted Mother
because K.S. told Jackson that her phone “was a pay-per-minute kind of thing,”
so Jackson should text Mother when he was on his way to get K.S. Id. at 60.
Jackson did concede, however, that he “noticed [K.S.’s] speech was different,”
and that K.S. would snort and stutter when she got excited. Id. at 83.
[19] Jackson testified that, when he took K.S. to the hotel for the first time, he and
K.S. did not have a discussion prior, but “given [K.S.’s] prior experience,
[Jackson] assume[d] that she knew what was gonna happen.” Id. at 62.
Jackson elaborated that the “prior experience” was K.S.’s participation in
“adult activities.” Id. at 63. Once they were in the hotel, according to Jackson,
K.S. “kissed [him] back” and “participat[ed] as much as [Jackson] was.” Id. at
64. Moreover, Jackson explained, K.S. “didn’t act confused,” and when asked
if she was okay, K.S. said, “yeah, . . . I’m fine.” Id. at 65. Jackson testified that
he asked K.S. several other times if K.S. wanted to stop which, according to
Jackson, K.S. “never did.” Id. at 68. Jackson admitted to having sexual
intercourse, anal sex, and oral sex with K.S.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019 Page 9 of 27 [20] At the end of the State’s presentation of its evidence, Jackson moved for
dismissal. 6 Jackson argued that the State failed to prove the incidents occurred
in LaPorte County and that the State failed to prove Jackson had knowledge of
K.S.’s inability to consent. The trial court denied the motion.
[21] Jackson then called three witnesses who often attended Cousin’s parties in his
defense. The witnesses testified as follows: Father never indicated that K.S.
was “retarded”; K.S. was very social with everyone at the party; K.S. “fit in”
with the group; K.S. “would do any thing (sic) to garter (sic) [Jackson’s]
attention”; and K.S. discussed her boyfriends and “having had sex with guys.”
Tr. Vol. IV pp. 23, 25, 31, 39.
[22] The jury found Jackson guilty of Counts II, III, and IV. At sentencing, the trial
court found as mitigators Jackson’s lack of criminal history and that Jackson is
categorized as a low risk to reoffend. The trial court found as aggravators: (1)
“the scope and magnitude of the criminal conduct over several years”; (2)
Jackson’s lack of character; (3) Jackson’s violation of a position of trust; (4)
Jackson’s lack of remorse; and (5) the imposition of a reduced sentence would
depreciate the seriousness of the crime. Appellant’s App. Vol. III p. 27. The
trial court sentenced Jackson to twelve years each on Counts II, III, and IV, to
6 Jackson moved for “involuntary dismissal,” which is governed by Indiana Trial Rule 41(B). Tr. Vol. III p. 245. This rule, however, applies “in an action tried by the court without a jury.” Ind. Trial Rule 41(B). Indiana Trial Rule 50(A), which governs judgment on the evidence or a directed verdict, applies “in a case tried before a jury” and is applicable here. The trial court denied “Defendant’s Motion for Directed Verdict.” Tr. Vol. III p. 246.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019 Page 10 of 27 run consecutively to one another, resulting in thirty-six years fully executed at
the Department of Correction (“DOC”).
Analysis
I. Sufficient Evidence
[23] Jackson argues the evidence is insufficient to sustain his convictions for rape.
When there is a challenge to the sufficiency of the evidence, “[w]e neither
reweigh evidence nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204,
210 (Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 1985), cert.
denied). Instead, “we ‘consider only that evidence most favorable to the
judgment together with all reasonable inferences drawn therefrom.’” Id.
(quoting Bieghler, 481 N.E.2d at 84). “We will affirm the judgment if it is
supported by ‘substantial evidence of probative value even if there is some
conflict in that evidence.’” Id. (quoting Bieghler, 481 N.E.2d at 84); see also
McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018) (holding that, even though
there was conflicting evidence, it was “beside the point” because that argument
“misapprehend[s] our limited role as a reviewing court”). Further, “[w]e will
affirm the conviction unless no reasonable fact-finder could find the elements of
the crime proven beyond a reasonable doubt.” Love v. State, 73 N.E.3d 693, 696
(Ind. 2017) (citing Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)).
[24] Indiana Code Section 35-42-4-1(a)(3) requires the State to prove beyond a
reasonable doubt that Jackson “knowingly or intentionally ha[d] sexual
intercourse with [K.S.] or knowingly or intentionally cause[d K.S.] to perform
Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019 Page 11 of 27 or submit to other sexual conduct” when K.S. “is so mentally disabled or
deficient that consent to sexual intercourse or other sexual conduct . . . cannot
be given.” “Other sexual conduct,” as defined in Indiana Code Section 35-
31.5-2-221.5, as applies here, means an act involving: “(1) the sex organ of one
(1) person and the mouth or anus of another person.”
[25] Jackson does not dispute that he engaged in sexual intercourse and other sexual
conduct with K.S. In fact, he admitted to having sexual intercourse, anal sex,
and oral sex with K.S. Rather, Jackson argues that the evidence is insufficient
to demonstrate that K.S. is so mentally disabled or deficient that consent could
not be given or, alternatively, that Jackson was aware of such an incapacity.
[26] This Court has defined “mentally disabled or deficient” as having “subnormal
intelligence or mental disease or defect.” Ball v. State, 945 N.E.2d 252, 257
(Ind. Ct. App. 2011). The meaning of the phrase “has been expanded for
purposes of those statutes to include not only a victim with lower-than-normal
intelligence, but also a victim who was highly intoxicated, and a victim who
had unknowingly ingested eight Xanax.” Id. (internal citations omitted). The
“mental disability or deficiency” prong of the statute “primarily exists to
prevent abuse of persons in our society who, by reason of mental disability, are
unable to protect themselves from sexual abuse.” Id. The defendant “must be
aware of a high probability that the victim is mentally disabled and unable to
consent to sexual intercourse.” Bozarth v. State, 520 N.E.2d 460, 464 (Ind. Ct.
App. 1988).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019 Page 12 of 27 [27] Jackson contends that K.S. was able to make adult decisions—such as drink
alcohol, get a tattoo, and engage with other adults—and was aware and
possessed knowledge of sexual intercourse and its potential consequences.
Jackson also argues that he was unaware of K.S.’s inability to consent because
the evidence merely demonstrates that Jackson “was aware that K.S. was an
(sic) learning-disabled adult woman who engaged in adult activities and had a
history of dating other adult men.” Appellant’s Br. p. 21.
[28] Jackson’s argument is nothing more than a request for us to reweigh the
evidence, which we cannot do. See Gibson, 51 N.E.3d at 210. The jury was
presented with testimony that K.S. has the cognitive abilities of, at most, a
thirteen-year-old. Moreover, the jury was presented with Jackson’s testimony
regarding his understanding of K.S.’s disability as well as the testimony of
Mother and Father, who claim to have told Jackson the nature of K.S.’s
disability, which demonstrated K.S.’s inability to consent. It was within the
province of the jury to decide which witness to believe, and the jury had
sufficient evidence to reach its guilty verdicts. See, e.g., Bozarth, 520 N.E.2d at
463-64 (holding that the evidence was sufficient to demonstrate the victim’s
mental disability and the defendant’s knowledge of the mental disability where
the twenty-one-year-old victim “was mildly retarded with a mental age of
approximately 10 years old and an I.Q. of between 50 to 70,” the victim’s
disability was “obvious,” and the defendant made fun of the victim).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019 Page 13 of 27 II. Abuse of Discretion in Sentencing
[29] Jackson next argues that the trial court abused its discretion in sentencing by
finding aggravators that are unsupported by the record and by failing to explain
why the aggravating factors justified a consecutive sentence. Sentencing
decisions rest within the sound discretion of the trial court. Anglemyer v. State,
868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).
So long as the sentence is within the statutory range, it is subject to review only
for an abuse of discretion. Id. An abuse of discretion will be found where the
decision is clearly against the logic and effect of the facts and circumstances
before the court or the reasonable, probable, and actual deductions to be drawn
therefrom. Id.
[30] A trial court may abuse its discretion in a number of ways, including: (1) failing
to enter a sentencing statement at all; (2) entering a sentencing statement that
includes aggravating and mitigating factors that are unsupported by the record;
(3) entering a sentencing statement that omits reasons that are clearly supported
by the record; or (4) entering a sentencing statement that includes reasons that
are improper as a matter of law. Id. at 490-91. If a trial court abuses its
discretion by improperly considering an aggravating circumstance, we need to
remand for resentencing only “if we cannot say with confidence that the trial
court would have imposed the same sentence had it properly considered
reasons that enjoy support in the record.” Anglemyer, 868 N.E.2d at 491.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019 Page 14 of 27 A. Aggravating Factors
[31] Jackson contends that four of the five aggravators identified by the trial court
are improper. First, we note that Jackson does not challenge the aggravator
that he violated a position of trust in having the care, custody, and control of
K.S. See Appellant’s Br. p. 25 (“The trial court found five mitigating factors,
and, as [Jackson] has argued above, four of them were improper or entitled to
minimal weight.”). The trial court remarked:
Notwithstanding his position as a Michigan City Police Officer, as a human being the defendant had a duty to protect a person with obvious cognitive disabilities, who had been entrusted to his care, custody and control. In doing so, the defendant transgressed a boundary of sickening proportions. The Defendant’s abuse of that trust is shocking to the conscience of the court.
Appellant’s App. Vol. II p. 27.
[32] The trial court also found “the scope and magnitude of the criminal conduct
over several years” and Jackson’s lack of character as aggravating factors. Tr.
Vol. IV p. 152. In discussing these aggravators, the trial court noted that
Jackson abused K.S. “over the course of several years” and that Jackson
repeatedly lied to many people about his relationship with K.S. Id. Although
Jackson challenges these aggravators, we view these aggravators as
considerations of the nature and circumstances of the offense. Our Supreme
Court has held that “the nature and circumstances of a crime is a proper
Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019 Page 15 of 27 aggravating circumstance.” Gomillia v. State, 13 N.E.3d 846, 853 (Ind. 2014).
The trial court did not abuse its discretion by considering these aggravators.
[33] Next, the trial court found Jackson’s lack of remorse as an aggravator. Jackson
argues this aggravator is improper because he expressed remorse for his actions.
“A trial court may consider as an aggravator the defendant’s lack of remorse.”
Sloan v. State, 16 N.E.3d 1018, 1027 (Ind. Ct. App. 2014). A trial court’s
determination of a defendant’s remorse is similar to a determination of
credibility. Holmes v. State, 86 N.E.3d 394, 400 (Ind. Ct. App. 2017), trans.
denied. Without evidence of some impermissible consideration by the trial
court, we accept its determination as to remorse. Id. The credibility of
Jackson’s remorse was for the trial court to determine. The trial court found
such remorse to be lacking, and we cannot say the trial court abused its
discretion.
[34] Even if the remaining aggravator was erroneous, we do not need to remand for
resentencing, as we are confident that the trial court likely would have imposed
the same sentence here based on its obvious finding that these aggravators were
significant. See Bisard v. State, 26 N.E.3d 1060, 1071 (Ind. Ct. App. 2015)
(finding “violation of public trust” was an appropriate aggravator when the
defendant was a police officer); see also Collins v. State, 643 N.E.2d 375, 382 (Ind.
Ct. App. 1994) (holding “[t]he fact that [the defendant] had previously been a
police officer was a valid consideration in determining aggravating
circumstances”); see also Edrington v. State, 909 N.E.2d 1093, 1101 (Ind. Ct. App.
2009) (finding the position of trust aggravator appropriate for a child molesting
Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019 Page 16 of 27 defendant when the defendant lived in the same neighborhood, knew the
victim’s father since they were young, and had friends in common with the
victim’s father). The trial court’s sentencing statement supports the conclusion
that, even with exclusion of one of the aggravating factors, Jackson would have
received the same sentence. See Anglemyer, 868 N.E.2d at 491; see also Gleason v.
State, 965 N.E.2d 702, 712 (Ind. Ct. App. 2012) (“One valid aggravator alone is
enough to enhance a sentence or to impose it consecutive to another.”).
B. Consecutive Sentences
[35] Jackson next argues that the trial court abused its discretion because it failed to
explain why a consecutive sentence was warranted and because the aggravators
and mitigators are in equipoise. The trial court’s order on the imposition of
consecutive sentences states:
The Court further finds that the sentences of imprisonment shall be served consecutively to each other as each criminal act was independent of the other and cannot be reasonably considered as a single episode of criminal conduct.
Appellant’s App. Vol. III pp. 28-29.
[36] First, we decline to use our authority to change Jackson’s sentences from
consecutive to concurrent. As a panel of our Court held in Lewis v. State, 31
N.E.3d 539, 543 (Ind. Ct. App. 2015):
While a single aggravator may be used both to enhance a sentence and impose consecutive sentences, . . . the trial court’s brief sentencing statement here lacks specificity. But we need not
Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019 Page 17 of 27 remand for sentencing because the rationale for consecutive sentences is apparent on the face of the record.
Id. Here, we agree with Jackson that the trial court’s statement regarding the
imposition of consecutive sentences lacked specificity. The trial court’s reasons,
however, can be gathered from its conclusion that the aggravators far outweigh
the mitigators and its statement regarding Jackson’s independent crimes. Four
of the trial court’s aggravators were proper, and “[a] single aggravating
circumstance may be sufficient to support the imposition of consecutive
sentences.” Gross v. State, 22 N.E.3d 863, 870 (Ind. Ct. App. 2014).
Accordingly, the trial court did not abuse its discretion in imposing consecutive
sentences.
[37] Next, Jackson cites Hoeppner v. State, 918 N.E.2d 695 (Ind. Ct. App. 2009), to
support his argument that the aggravators and mitigators are in equipoise,
which we regard as a challenge to the weight afforded to the mitigating and
aggravating factors. This argument is unavailing. See Anglemyer, 868 N.E.2d at
491 (holding “[b]ecause the trial court no longer has any obligation to weigh
aggravating and mitigating factors against each other when imposing a
sentence, unlike the pre-Blakely statutory regime, a trial court can not now be
said to have abused its discretion in failing to properly weigh such factors”)
(internal quotations omitted).
[38] Moreover, Hoeppner is distinguishable because, unlike the circumstances here,
where the trial court found the aggravators far outweigh the mitigators, in
Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019 Page 18 of 27 Hoeppner, the trial court “found the aggravator and mitigator to be in balance.” 7
Hoeppner, 918 N.E.2d at 699. Here, the trial court’s sentencing statement
clearly indicates that, even with one possibly improper aggravator, the trial
court did not consider the aggravators and mitigators to be in equipoise. The
trial court’s limitation, at that point, was to enter a sentence authorized by
statute. See Richardson v. State, 906 N.E.2d 241, 243 (Ind. Ct. App. 2009)
(“[O]nce the trial court has entered a sentencing statement, . . . it may then
impose any sentence that is . . . authorized by statute; and . . . permissible under
the Constitution of the State of Indiana.” (quotations and citations omitted)).
Based on the foregoing, the trial court did not abuse its discretion in sentencing
Jackson.
III. Inappropriate Sentence
[39] Finally, we address whether Jackson’s sentence is inappropriate. Jackson asks
that we review and revise his sentence pursuant to Indiana Appellate Rule 7(B),
which provides that we may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, we find that the sentence “is
inappropriate in light of the nature of the offense and the character of the
offender.” The defendant bears the burden to persuade this court that his or her
7 Still, on review, our Court found that, “In effect, the trial court found the nature and circumstances of the crime . . . as an aggravator supporting consecutive sentences.” Hoppner, 918 N.E.2d at 699. Accordingly, our Court found the two aggravators and one mitigator were no longer in equipoise, warranting consecutive sentences.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019 Page 19 of 27 sentence is inappropriate. Wilson v. State, 966 N.E.2d 1259, 1266 (Ind. Ct. App.
2012) (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)), trans. denied.
[40] In Indiana, trial courts can tailor an appropriate sentence to the circumstances
presented; the trial court’s judgment receives “considerable deference.” Sanders
v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017) (quoting Cardwell v. State, 895
N.E.2d 1219, 1222 (Ind. Ct. App. 2008)), trans. denied. In conducting our
review, we do not look to see whether the defendant’s sentence is appropriate or
“if another sentence might be more appropriate; rather, the question is whether
the sentence imposed is inappropriate.” Sanders, 71 N.E.3d at 844 (citing King
v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008)).
[41] We look to the statutory range established for the classification of the offense.
The jury found Jackson guilty of three Level 3 felonies. The sentence for a
Level 3 felony ranges from three years to sixteen years, with an advisory
sentence of nine years. Ind. Code § 35-50-2-5(b). Here, the trial court imposed
twelve years on each count, to be served consecutively, for an aggregate
sentence of thirty-six years.
[42] First, we consider the nature of Jackson’s offenses. In our consideration,
Jackson urges us to review Eckelbarger v. State, 51 N.E.3d 169 (Ind. 2016), and
Walker v. State, 747 N.E.2d 536 (Ind. 2001), to find that Jackson’s three offenses
were “similar” and, accordingly, to revise his sentences to run concurrently
instead of consecutively. Appellant’s Br. p. 28. In Eckelbarger, our Supreme
Court held:
Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019 Page 20 of 27 We have previously observed that consecutive sentences are not appropriate when the State sponsors a series of virtually identical offenses. Consistent with this precedent, the trial court in this case ordered the sentences on Counts I and II to be served concurrently. This same reasoning informs our deliberation and collective sentiment that, under the particular circumstances of this case, the sentences for Counts III and IV (dealing in methamphetamine by manufacture and possession of precursors)—convictions supported by evidence seized pursuant to a search warrant procured based on the dealing methamphetamine by delivery counts—should be served concurrently to the sentences on Counts I and II.
Eckelbarger, 51 N.E.3d at 170 (quotations and citations omitted). Similarly, in
Walker, our Supreme Court held:
Walker was convicted on two counts of child molestation for performing oral sex on a six-year-old boy. Crimes against children are particularly contemptible. The trial court found a number of aggravating circumstances, including committing the crime while on probation and fleeing the jurisdiction. Still, the trial court did not find a history of criminal behavior. Moreover, the two separate counts of child molestation were identical and involved the same child. Additionally, there was no physical injury. Although the absence of physical injury does not bar an enhanced sentence, this is some distance from being the worst offense or the most culpable offender. While the aggravating circumstances warranted an enhanced sentence, Walker’s aggregate sentence of eighty years is manifestly unreasonable.
Id. at 538 (quotations and citations omitted). Accordingly, in both cases, our
Supreme Court found the sentences should be served concurrently instead of
consecutively.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019 Page 21 of 27 [43] We do not believe such a revision is warranted here. First, Eckelbarger involves
repeated controlled buys; not the type of offense before us. Second, as to
Walker, even though Jackson’s conduct involved the same victim, the evidence
presented is that the nature of Jackson’s offense was that Jackson raped K.S., a
person incapable of consenting, in three different ways over a period of several
years. Jackson asked K.S.’s parents for permission to spend time with K.S.
under the guise of being her friend and regularly communicated with Mother to
set up the meetings with K.S.—an action traditionally taken when a child is
involved. Jackson also asked Mother and Father if K.S. had a disability and
whether K.S. could have sexual intercourse. Jackson’s conduct demonstrated
his knowledge that K.S. was unable to consent; still, Jackson continued to
pursue K.S. sexually.
[44] Next, we examine Jackson’s character. Fifty-three-year-old Jackson, who was
married and a police officer at the time of his meetings with K.S., asked Mother
and Father to spend time with K.S. under the pretense of being K.S.’s friend
and wanting to support her. Moreover, Jackson knew K.S. admired police
officers and manipulated that admiration to rape K.S. After taking K.S. on
outings and spending time with K.S., Jackson took K.S. to a hotel and to a park
and raped her. Jackson engaged in sex acts with K.S. multiple times over
several years. Although Jackson has no prior criminal convictions, Jackson
took on a position of trust, not just as a police officer but as a friend of K.S. and
her family, and abused that position. Finally, Jackson persisted with K.S.,
despite knowing his actions were wrong, as demonstrated by his request that
Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019 Page 22 of 27 she not share the encounters with others because he may lose his job. This does
not reflect well on Jackson’s character. Jackson’s sentence is not inappropriate.
Conclusion
[45] There was sufficient evidence to support Jackson’s convictions. The trial court
did not abuse its discretion in sentencing Jackson, and Jackson’s sentence is not
inappropriate. We affirm.
[46] Affirmed.
Altice, J., concurs.
Brown, J., concurs in part and dissents in part with opinion.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019 Page 23 of 27 IN THE COURT OF APPEALS OF INDIANA
Thomas K. Jackson, December 31, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-796 v. Appeal from the LaPorte Superior Court State of Indiana, The Honorable Michael Bergerson, Appellee-Plaintiff. Judge Trial Court Cause No. 46D01-1704-F3-367
Brown, Judge, concurring in part and dissenting in part.
[47] I concur with the majority that the evidence is sufficient to sustain Jackson’s
convictions. I respectfully dissent from the majority’s conclusion that Jackson’s
aggregate 36-year fully-executed sentence was not inappropriate in light of the
nature of the offenses and his character. Jackson was convicted of three counts
of rape of K.S. as level 3 felonies. At sentencing, the prosecutor recommended
consecutive advisory sentences totaling 27 years and did not object to a “split
sentence” with part of that time non-executed. Transcript Volume IV at 150.
See Ind. Code § 35-50-2-5 (nine-year advisory sentence for a level 3 felony). The
Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019 Page 24 of 27 trial court imposed three consecutive and fully-executed aggravated sentences
of twelve years for a total sentence of thirty-six years. The presentence
investigation report provides that Jackson’s overall risk assessment score using
the Indiana risk assessment tool places him in the low risk to reoffend category,
and he scored in the low risk/needs category in each of the seven measured
domains. In addition, a psychosexual assessment report provides that, using
the Static-99 risk assessment as a measure, Jackson “scored a 1, which is
considered to be in the low range of risk to be reconvicted for a sexual offense,”
and using the McGrath Cummings Sex Offender Progress Scale, Jackson
“scored an 8, which is in the low risk range to re-offend.” Appellant’s
Appendix Volume III at 21. The report recommended that Jackson “receive
the benefit of split sentencing” with a period of incarceration and “a long period
of probation so that he may benefit from a sex offender program.” Id. at 22.
[48] Jackson was born in January 1966 and, prior to these offenses, he had been a
police officer for twenty-eight years and had no criminal history. It is
significant that Jackson had no history of criminal activity for many years, a
factor that generally comments favorably on a defendant’s character, especially
when there is no such activity for a substantial time. See Ind. Code § 35-38-1-
7.1(b)(6) (providing the court may consider, as a mitigating circumstance, that a
“person has no history of delinquency or criminal activity, or the person has led
a law-abiding life for a substantial period before commission of the crime”).
“The statute appropriately encourages leniency toward defendants who have
not previously been through the criminal justice system. Such mitigation is
Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019 Page 25 of 27 especially appropriate for a defendant . . . who has lived a law-abiding life for
decades.” Biehl v. State, 738 N.E.2d 337, 339 (Ind. Ct. App. 2000) (noting
Indiana Supreme Court opinions recognizing the significance of a lack of
criminal history in sentencing), trans. denied.
[49] Additionally, Indiana’s sentencing system is founded upon principles of
reformation and not vindication, see Ind. Const. art. I § 18, and, as such, “where
reasonably possible, sentencing orders should distinguish between first
offenders and repeat offenders.” Bluck v. State, 716 N.E.2d 507, 514 (Ind. Ct.
App. 1999). A lengthy prison term for an offender who had no criminal record
for decades and has been determined to be a low risk to reoffend does not
reflect the goals of reformation or rehabilitation. 8
[50] After due consideration, and in light of his lack of a prior criminal record for
decades and the determination that he is a low risk to reoffend, I would revise
Jackson’s aggregate 36-year sentence pursuant to Ind. Appellate Rule 7(B). See
Walker v. State, 747 N.E.2d 536, 538 (Ind. 2001) (revising two consecutive
8 See Does v. Snyder, 834 F.3d 696, 704 (6th Cir. 2016) (noting the “significant doubt cast by recent empirical studies” on statements in McKune v. Lile, 536 U.S. 24 (2002), and Smith v. Doe, 538 U.S. 84 (2003), that the risk of recidivism posed by sex offenders is frightening and high); Ira M. Ellman & Tara Ellman, “Frightening and High”: The Supreme Court’s Crucial Mistake About Sex Crime Statistics, 30 CONST. COMMENT. 495, 503-504 (2015) (summarizing the results of various studies, some suggesting the risk of recidivism within five years for low-risk sex offenders is similar to that of non-sex offenders and that sex offenders who have not reoffended after fifteen years are not high-risk for doing so regardless of their offense or initial risk assessment, and others suggesting that sex offenders are less likely to commit a new felony of any kind after release than other released felons); Patrick A. Langan, Erica L. Schmitt, & Matthew R. Durose, Bureau of Justice Statistics, Recidivism of Sex Offenders Released From Prison in 1994, at 1-2 (Nov. 2003), https://www.bjs.gov/content/ pub/pdf/rsorp94.pdf (last visited December 9, 2019) (stating that, with respect to rearrests for any kind of crime, sex offenders were rearrested at a lower rate, 43 percent, than non-sex offenders, 68 percent).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019 Page 26 of 27 enhanced sentences to concurrent sentences where the defendant did not have a
history of criminal behavior, there was no physical injury, and the two separate
counts of child molestation for performing oral sex were identical and involved
the same child) 9; see also Harris v. State, 897 N.E.2d 927, 930 (Ind. 2008)
(revising two consecutive enhanced sentences to concurrent sentences where
the two counts of child molestation were identical and involved the same child
and citing Walker); Monroe v. State, 886 N.E.2d 578, 579-581 (Ind. 2008)
(revising five consecutive sentences to concurrent sentences where the
defendant molested the victim repeatedly over two years and his prior
convictions were all driving-related offenses); cf. Bass v. State, 947 N.E.2d 456,
459 (Ind. Ct. App. 2011) (finding the defendant’s sentence of concurrent terms
of seven years with two years suspended for child molesting and attempted
child molesting as class C felonies was not inappropriate where the defendant
preyed on his girlfriend’s younger sister and violated a position of trust in
separate incidents and did not have an extensive criminal history), trans. denied.
9 The majority finds that Walker, in which the Court noted the counts were identical, is distinguishable because Jackson committed his offenses in three different ways. I would not find that Jackson’s offenses against K.S. were so dissimilar that Walker is distinguishable.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019 Page 27 of 27