MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 26 2017, 9:07 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jennifer D. Wilson Reagan Curtis T. Hill, Jr. Wilson & Wilson Attorney General of Indiana Greenwood, Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Timothy L. Gransbury, May 26, 2017 Appellant-Defendant, Court of Appeals Case No. 41A05-1606-CR-1422 v. Appeal from the Johnson Superior Court State of Indiana, The Honorable Lance Hamner, Appellee-Plaintiff Judge Trial Court Cause No. 41D03-1402-FA-2
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 41A05-1606-CR-1422 | May 26, 2017 Page 1 of 13 [1] Timothy L. Gransbury appeals his convictions of Class A felony child
molesting 1 and Class D felony dissemination of matter harmful to minors 2 for
acts he committed against his five-year-old daughter. He argues the evidence
was insufficient to sustain his convictions and his fifty-year sentence for child
molesting is inappropriate. We affirm.
Facts and Procedural History [2] Gransbury married Kellie in 2008. Kellie and Gransbury have two daughters:
M.G., born September 21, 2008, and S.G., born September 25, 2010
(collectively, “Children”). Before marrying Kellie, Gransbury served in the
Navy for twenty years, was married twice, and has two adult sons from his
second marriage. During his marriage to Kellie, Gransbury worked as a semi-
truck-driver, which required him to be gone many days of the week. Kellie did
not work and stayed home with the Children.
[3] Gransbury and Kellie had an acrimonious relationship. Early in the marriage,
Gransbury told Kellie he was “sexting” fourteen-year old girls. (Tr. Vol. 4 at
81.) After this incident, Kellie moved out with the Children, and Kellie and
Gransbury were legally separated for a period in 2009. Eventually, the two
1 Ind. Code § 35-42-4-3(a)(1) (2007). 2 Ind. Code § 35-49-3-3(a) (2006).
Court of Appeals of Indiana | Memorandum Decision 41A05-1606-CR-1422 | May 26, 2017 Page 2 of 13 attempted to reconcile, and Kellie and the Children moved back in with
Gransbury.
[4] Gransbury and Kellie failed in their attempt to reconcile. In early December
2012, Kellie and the Children moved out of the marital home and moved in
with Kellie’s parents. On December 5, 2012, Gransbury filed a petition for
divorce from Kellie. 3 Gransbury remained in the marital home. In mid-
December 2012, Kellie called the Department of Child Services (“DCS”) to
report she had found “daddy/daughter pornography” on Gransbury’s phone,
(id. at 88-89), and Gransbury had been physically abusive toward M.G. on one
occasion. Kellie testified she reported the incidents to DCS in hopes the court
would require Gransbury’s parenting time be supervised. DCS investigated the
matter but did not open a Child in Need of Services (“CHINS”) case based on
this allegation.
[5] On December 17, 2012, the court held an initial hearing on Gransbury’s
divorce petition. Kellie requested Gransbury’s parenting time be supervised,
citing Gransbury’s alleged sexting and incident of physical abuse of M.G. The
court denied Kellie’s request. At the time of the hearing, Gransbury’s job as a
semi-truck driver required him to be out of town most days of the week. The
court granted Gransbury and Kellie temporary joint legal custody, but because
of Gransbury’s schedule, the court granted Kellie primary physical custody of
3 The court finalized Gransbury and Kellie’s divorce on April 7, 2016.
Court of Appeals of Indiana | Memorandum Decision 41A05-1606-CR-1422 | May 26, 2017 Page 3 of 13 the Children and provided Gransbury weekly parenting time from Saturday
mornings at 10 a.m. to Sunday evenings at 6 p.m.
[6] After Gransbury started exercising parenting time in 2013, Kellie began
noticing changes in M.G.’s behavior. Specifically, Kellie observed M.G. was
“tired all the time,” (id. at 39), had trouble waking up in the mornings,
expressed daily “complaints of stomach pain,” (id.), and had “frequent potty
accidents.” (Id.) Kellie further observed M.G. biting her fingernails
“constantly,” (id.), “pick[ing] at her lip and chin until they were raw and sore,”
(id.), “refusing to drink white milk,” (id.), and having nightmares.
[7] Due to health issues, Gransbury stopped working as a semi-truck driver in the
summer of 2013, which allowed him to be home more. On August 20, 2013,
Gransbury filed a petition for the court to increase his parenting time. The
court scheduled a mediation and hearing on Gransbury’s petition, but the
hearing was continued until February 2014. The court ultimately never
modified Gransbury’s parenting time.
[8] Between October 1, 2013, and December 25, 2013, Gransbury molested M.G.
on numerous occasions. Gransbury performed oral sex on M.G. and, at
Gransbury’s request, M.G. performed oral sex on Gransbury on at least three
different occasions. Additionally, Gransbury showed M.G. pornographic
videos, including videos of Kellie and Gransbury engaging in oral sex and
sexual intercourse.
Court of Appeals of Indiana | Memorandum Decision 41A05-1606-CR-1422 | May 26, 2017 Page 4 of 13 [9] On the evening of January 28, 2014, Kellie put the Children to bed before she
left for a night shift at the nursing home where she worked. At the time, Kellie
and the Children were still living with Kellie’s parents. As Kellie was tucking
the Children into bed, M.G. told Kellie she had a “secret” with her father.
(App. Vol. III at 14.) When Kellie asked about the secret, M.G. revealed
Gransbury made M.G. perform oral sex on him. Kellie told her parents what
M.G. told her, and then left for her shift and worked from 11 p.m. to 7 a.m. the
next morning. Around 10 a.m. on January 29, 2014, Kellie called DCS and the
New Whiteland Police Department (“NWPD”).
[10] On January 30, 2014, DCS Family Case Manager (“FCM”) Michelle Fritz
conducted a forensic interview with M.G. NWPD Detective David Glaze was
also present for the interview. Detective Glaze was not in the interview room,
but listened from another room. During the interview, FCM Fritz asked M.G.
to identify different parts of anatomical diagrams of a girl and boy. M.G.
indicated she understood there were certain body parts that no one should
touch, but Gransbury would touch M.G. on those body parts and would “lick
her bottom.” 4 (Id. at 13.) M.G. also stated Gransbury would have her “lick his
bottom,” which he referred to as “George.” (Id.) M.G. pointed to the penis on
the male diagram when she was showing FCM Fritz “George.” M.G.
indicated to FCM Fritz she had to do this at least three times, and one of the
4 At the interview, M.G. pointed to the vaginal area on the female diagram, indicating she referred to the vagina as a “bottom.” (App. Vol. III at 13.)
Court of Appeals of Indiana | Memorandum Decision 41A05-1606-CR-1422 | May 26, 2017 Page 5 of 13 times Gransbury asked her to “drink the milk” that came out of George. (Id. at
14.) M.G. told FCM Fritz that Gransbury used a black computer in his
bedroom to show her videos of “daddy and mommy” performing sexual acts.
(Id.)
[11] The NWPD obtained and executed a search warrant in Gransbury’s home that
same day. Detective Glaze testified when he arrived to serve the warrant,
Gransbury opened the door and told him “he’d expected [the police] to come.”
(Tr. Vol. 4 at 149.) The NWPD seized two laptop computers: a Toshiba and a
Dell. Glaze gave the laptops to Sergeant Jennifer Barnes of the Indiana State
Police Cyber Crime Unit to conduct a forensic review of the hard drives.
Sergeant Barnes found no pornography videos, but found numerous web sites
offering porn videos in the internet activity of the Toshiba. In addition,
Sergeant Barnes found a “window washing” program on the Toshiba, which
allows a user to completely erase all files from the hard drive. (Tr. Vol. 5 at 13-
14.) Kellie knew Gransbury had videos of Kellie and Gransbury engaging in
oral sex and sexual intercourse because he had shown her the videos.
[12] On February 3, 2014, the State charged Gransbury with Class A felony child
molesting, and Class D felony dissemination of matter harmful to minors for
the acts he committed against M.G. The court issued a no-contact order
requiring Gransbury to have no contact with the Children.
[13] On April 19-21, 2016, the court held a jury trial. Gransbury maintained his
innocence. The jury heard testimony from M.G., Kellie, FCM Fritz, Detective
Court of Appeals of Indiana | Memorandum Decision 41A05-1606-CR-1422 | May 26, 2017 Page 6 of 13 Glaze, and Sergeant Barnes. After hearing the evidence, the jury found
Gransbury guilty on both charges.
[14] At sentencing, the court found as mitigators Gransbury’s lack of criminal
history and Gransbury’s “difficult childhood.” (Id. at 114-15.) The court
further found Gransbury’s former military service in the Navy as a mitigator.
The court found as aggravators the fact that M.G. was five years old, that
Gransbury was in a position of trust, and that Gransbury molested not just any
five-year-old, but his own daughter. (Id. at 115.) The court concluded the
“aggravators far outweigh[ed] the mitigators[,]” (id.), and “an aggravated
sentence [was] appropriate.” (Id.) The court sentenced Gransbury to fifty years
in the Department of Correction with five years suspended to probation for
Class A felony child molesting and three years, with six months suspended to
probation, for Class D felony dissemination of matter harmful to a minor. The
court ordered the sentences be served concurrently, with 358 days of credit for
time already served.
Discussion and Decision I. Sufficiency of Evidence [15] When reviewing sufficiency of the evidence to support a conviction, we will
consider only probative evidence in the light most favorable to the trial court’s
judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 1995), reh’g denied. The
decision comes before us with a presumption of legitimacy, and we will not
substitute our judgment for that of the fact-finder. Id. We do not assess the Court of Appeals of Indiana | Memorandum Decision 41A05-1606-CR-1422 | May 26, 2017 Page 7 of 13 credibility of the witnesses or reweigh the evidence in determining whether the
evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal
is appropriate only when no reasonable fact-finder could find the elements of
the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not
required to overcome every reasonable hypothesis of innocence and is sufficient
if an inference reasonably may be drawn from it to support the verdict. Id. at
147.
[16] To prove Gransbury committed Class A felony child molesting, the State had to
show Gransbury, a person at least twenty-one years old, knowingly performed
deviate sexual conduct with M.G., a child under the age of fourteen. Ind. Code
§ 35-42-4-3(a)(1) (2007). Deviate sexual conduct means an act involving (1) a
sex organ of one person and the mouth or anus of another person, or (2) the
penetration of the sex organ or anus of a person by an object. Ind. Code § 35-
31.5-2-94 (2012). To prove Gransbury committed Class D felony dissemination
of matter harmful to minors, the State had to prove Gransbury knowingly or
intentionally disseminated matter to M.G., a minor, that was harmful to her.
Ind. Code § 35-49-3-3(a)(1) (2006).
[17] In challenging the sufficiency of the evidence as to both crimes, Gransbury
argues “[t]he only evidence introduced by the State was the testimony of Kellie,
[M.G.], and [FCM Fritz] to support the allegations made by [M.G.],”
(Appellant’s Br. at 22), and there is no physical evidence of child molesting or
dissemination of matter harmful to minors. Gransbury states the NWPD
“failed to collect any of the child’s clothing” or other garments when officers
Court of Appeals of Indiana | Memorandum Decision 41A05-1606-CR-1422 | May 26, 2017 Page 8 of 13 executed the search warrant, (id. at 16), and the forensic exam of Gransbury’s
laptop returned no evidence of homemade pornographic videos.
[18] M.G.’s testimony alone is sufficient to sustain Gransbury’s convictions. See
Carter v. State, 754 N.E.2d 877, 880 (Ind. 2001) (a molested child’s
uncorroborated testimony is sufficient to sustain a conviction), reh’g denied.
M.G. testified Gransbury touched her on her “bottom,” (Tr. Vol. 4 at 234), and
when asked how, M.G. testified “[h]e licked it.” (Id.) When asked “what [she]
would do to George,” M.G. testified, “Lick it because he told me to.” (Id.)
When asked why she called it “George,” M.G. responded “[b]ecause my dad
told me to call him, it George.” (Id. at 232.) M.G. further testified “sometimes
he would have me watch videos of other people doing it that I didn’t even
know[,]” (id. at 236), and “once he had me watch one of my mommy and dad
doing it.” (Id.)
[19] M.G. told the same story to Kellie on the night of January 28, 2014, to Fritz
during the forensic interview, and at trial. Moreover, the jury was free to
believe or disbelieve M.G.’s testimony. See Thompson v. State, 804 N.E.2d 1146,
1149 (Ind. 2004) (a trier of fact is not required to believe a witness’s testimony
even when it is uncontradicted). In light of M.G.’s testimony, the evidence is
sufficient to sustain both of Gransbury’s convictions, and Gransbury’s
argument regarding the lack of any physical evidence is not a basis for reversal.
See Carter, 754 N.E.2d at 880 (child molestation often occurs without witnesses
or physical evidence, and the fact that the only evidence is the child victim’s
statement does not require reversal of a molestation conviction).
Court of Appeals of Indiana | Memorandum Decision 41A05-1606-CR-1422 | May 26, 2017 Page 9 of 13 [20] To the extent Gransbury maintains the theory, as he did at trial, that Kellie
convinced M.G. to lie about the molestation because she was “desperate” to
stop Gransbury from receiving parenting time in their divorce proceedings,
(Appellant’s Br. at 22), this argument is a request for us to reweigh evidence
and judge the credibility of the witnesses, which we cannot do. See Drane, 867
N.E.2d at 146 (we do not assess witness credibility or reweigh evidence in
determining whether the evidence is sufficient). The State presented sufficient
evidence to support the two convictions.
II. Inappropriateness of Sentence [21] Gransbury also argues the fifty-year sentence he received for his Class A felony
child molesting conviction is inappropriate. Under Indiana Appellate Rule
7(B), we may revise a sentence if, after due consideration of the trial court’s
decision, we find the sentence is inappropriate in light of the nature of the
offense and the character of the offender. Williams v. State, 891 N.E.2d 621, 633
(Ind. Ct. App. 2008). Our review is deferential to the trial court’s decision, and
our goal is to determine whether the defendant’s sentence is inappropriate, not
whether some other sentence would be more appropriate. Conley v. State, 972
N.E.2d 864, 876 (Ind. 2012), reh’g denied. The appellant bears the burden of
demonstrating his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073,
1080 (Ind. 2006). Revision of a sentence under Rule 7(B) requires the appellant
demonstrate his sentence is “inappropriate in light of both the nature of the
offenses and his character.” Williams, 891 N.E.2d at 633 (emphasis in original).
Court of Appeals of Indiana | Memorandum Decision 41A05-1606-CR-1422 | May 26, 2017 Page 10 of 13 [22] Here, Gransbury failed to present any argument regarding the nature of his
offense and, thus, has waived our review of the inappropriateness of his
sentence. See Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017) (holding
issue waived where appellant failed to present any authority or analysis on the
nature of his offense). Waiver notwithstanding, Gransbury has failed to
persuade us his fifty-year sentence is inappropriate.
[23] When considering the nature of the offense, the advisory sentence is the starting
point for determining the appropriateness of a sentence. Anglemyer v. State, 868
N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (2007). The
statutory range for a Class A felony is twenty to fifty years, with the advisory
sentence being thirty years. Ind. Code § 35-50-2-4 (2012). One factor we
consider when determining the appropriateness of a deviation from the advisory
sentence is whether there is anything more or less egregious about the offense
committed by the defendant that makes it different from the “typical” offense
accounted for by the legislature when it set the advisory sentence. Rich v. State,
890 N.E.2d 44, 54 (Ind. Ct. App. 2008), trans. denied. Here, Gransbury
molested M.G. on multiple instances over a protracted length of time, and told
her to keep it a secret. As a result of the repeated molestations, M.G. exhibited
behavioral symptoms such as wetting the bed, nightmares, and lethargy.
[24] Gransbury argues, in imposing the maximum fifty-year sentence, the court
failed to give proper weight to the fact Gransbury was fifty-six years old at the
time of sentencing, had no criminal record at the time of the offense, had an
honorable career of twenty years in the Navy, and had been a victim of physical
Court of Appeals of Indiana | Memorandum Decision 41A05-1606-CR-1422 | May 26, 2017 Page 11 of 13 and sexual abuse as a child. He also argues the court put improper weight on
M.G.’s age. 5
[25] We disagree. “[T]he trial court determines the weight assigned to mitigating
circumstances and a lack of criminal history does not automatically outweigh
any valid aggravating circumstances.” Mastin v. State, 966 N.E.2d 197, 203
(Ind. Ct. App. 2012). As M.G.’s father, Gransbury was in a position of trust.
He violated this position of trust each time he perpetrated the crimes. As the
trial court noted, Gransbury molested a child who was five years old, and “not
just somebody [he] was in a position over, but [his] own daughter.” (Tr. Vol. 5
at 115.) The court noted, by molesting his own daughter, Gransbury
committed acts against the “person who most in the world [he] should have
been willing to stand in front of and protect [] with [his] very life.” (Id.)
Moreover, the court noted Gransbury molested M.G. not once, but “again, and
again, and again.” (Id. at 116.) In addition, the court stated Gransbury’s use of
pornographic videos of M.G.’s own mother to persuade M.G. to allow
5 To this point, Gransbury argues “child molesting is a Class A felony due to the moral revulsion of the crime,” and therefore the court erred in considering M.G.’s age as an additional aggravator. (Appellant’s Br. at 29.) Gransbury cites Serino v. State, 798 N.E.2d 852 (Ind. 2003), for the proposition that “circumstances must be balanced in view of the fact that the legislature has already built into its sentencing range the consequences to victims, moral revulsion, and other factors inherent in the crime.” (Appellant’s Br. at 29.) First, we note this quote in fact comes from Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008), not Serino. Next, in deciding whether to impose more than the advisory sentence, the court has discretion to consider whether the victim was less than twelve years old as an aggravating circumstance, and here, the court did not abuse that discretion. See Ind. Code § 35-38-1-7.1(3); see also Reyes v. State, 909 N.E.2d 1124, 1128 (Ind. Ct. App. 2009) (trial court’s consideration of child victim’s age as aggravating factor in sentencing for child molesting was not an abuse of discretion).
Court of Appeals of Indiana | Memorandum Decision 41A05-1606-CR-1422 | May 26, 2017 Page 12 of 13 Gransbury to molest her made his crimes “even more despicable,” and found
that as a substantial aggravator. (Id.)
[26] We agree with the trial court. Even if we presume from Gransbury’s Navy
service that he had good character in the past, it cannot prompt us to look past
the poor character reflected by the egregiousness of Gransbury molesting his
own child. As the trial court stated, Gransbury “performed good military
service to this country,” (id. at 115), however, “as a member of the United
States Armed Forces, it [is] [his] responsibility to defend the citizens of this
country, not to molest its children.” (Id.) Given Gransbury’s violation of his
position of trust, M.G.’s age, and the multiple acts Gransbury committed
against M.G., his own daughter, we find nothing inappropriate about
Gransbury’s fifty-year sentence based on his character or his offense. See
Sullivan v. State, 836 N.E.2d 1031, 1037 (Ind. Ct. App. 2005) (imposition of
maximum fifty-year sentence was supported by aggravating factors of child’s
age, status as the defendant’s daughter, and repeated molestations).
Conclusion [27] M.G.’s testimony was sufficient evidence to sustain Gransbury’s convictions.
Furthermore, in light of Gransbury’s character and the nature of the offenses,
his sentence is not inappropriate. Accordingly, we affirm.
[28] Affirmed.
Brown, J., and Pyle, J., concur. Court of Appeals of Indiana | Memorandum Decision 41A05-1606-CR-1422 | May 26, 2017 Page 13 of 13