MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jun 10 2016, 8:25 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT Gregory L. Fumarolo Fort Wayne, Indiana
IN THE COURT OF APPEALS OF INDIANA
Timothy L. Hall, June 10, 2016 Appellant-Defendant, Court of Appeals Case No. 02A03-1508-CR-1134 v. Appeal from the Allen Superior Court State of Indiana, The Honorable John F. Surbeck, Appellee-Plaintiff. Jr., Judge Trial Court Cause No. 02D05-1401-FA-2
Najam, Judge.
Statement of the Case [1] Timothy L. Hall (“Hall”) appeals his convictions for three counts of child
molesting, as a Class A felony, one count of child molesting, as a Class C
felony, one count of sexual misconduct with a minor, as a Class B felony, and
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1134 | June 10, 2016 Page 1 of 13 one count of sexual misconduct with a minor, as a Class C felony, following a
jury trial. He raises three issues on appeal, namely:
1. Whether the State presented sufficient evidence to support his convictions.
2. Whether he was denied a fair trial due to the trial court’s exclusion of certain evidence.
3. Whether his sentence is inappropriate in light of the nature of the offenses and his character.
[2] We affirm.
Facts and Procedural History [3] On January 2, 2014, the State charged Hall with the following crimes involving
his minor daughter, B.B.: counts I through VI, child molestation of a minor
under age fourteen, as Class A felonies; count VII, child molesting of a minor
under age fourteen, as a Class C felony; count VIII, sexual misconduct with a
minor at least age fourteen but less than sixteen, as a Class B felony; and count
IX, sexual misconduct with a minor at least age fourteen but less than sixteen,
as a Class C felony.1 On April 25, the State also filed count X, alleging Hall is a
1 The precise charges were: count I, as a Class A felony, alleging Hall performed or submitted to sexual intercourse with B.B. (a minor under age fourteen) “sometime” during the period of time between January 1, 2006, and December 31, 2006; count II, as a Class A felony, alleging Hall performed or submitted to sexual intercourse with B.B. (a minor under age fourteen) “sometime” during the period of time between January 1, 2007, and December 31, 2007; count III, as a Class A felony, alleging Hall performed or submitted to sexual intercourse with B.B. (a minor under age fourteen) “sometime” during the period of time between January 1, 2008, and December 31, 2008; count IV, as a Class A felony, alleging Hall performed or submitted to sexual
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1134 | June 10, 2016 Page 2 of 13 habitual offender pursuant to Indiana Code Section 35-50-2-8(a). During a jury
trial on June 30 and July 1, 2015, the parties submitted evidence of the
following facts.
[4] B.B. was born on October 27, 1997. Her mother is J.B., and her father is Hall.
B.B. had no contact with Hall until she was approximately seven years old.
Prior to that time, she had lived both with her mother and in foster homes in
Allen County. On October 9, 2005, when B.B. was living with her mother and
her mother’s boyfriend, B.B.’s mother took her to the Fort Wayne Sexual
Assault Treatment Center where B.B. was assessed due to her complaint that
Hall had sexually abused her. The examination of B.B. was consistent with her
complaint that she was sexually abused, and she was discharged into the care of
the Indiana Department of Child Services (“DCS”).2 No evidence was
presented as to what action DCS took regarding B.B.’s October 2005 allegation
of sexual abuse.
intercourse with B.(a minor under age fourteen) “sometime” during the period of time between January 1, 2009, and December 31, 2009; count V, as a Class A felony, alleging Hall performed or submitted to sexual intercourse with B.B. (a minor under age fourteen) “sometime” during the period of time between January 1, 2010, and December 31, 2010; count VI, as a Class A felony, alleging Hall performed or submitted to sexual intercourse with B.B. (a minor under age fourteen) “sometime” during the period of time between January 1, 2011, and October 26, 2011; count VII, as a Class C felony, alleging Hall did perform or submit to fondling or touching with B.B. (a minor under age fourteen) “sometime” during the period of time between January 1, 2006, and October 26, 2011; count VIII, as a Class B felony, alleging Hall performed or submitted to sexual intercourse with B.B. (a minor at least age fourteen but under age sixteen) “sometime” during the period of time between October 27, 2011 and December 31, 2012; and count IX, as a Class C felony, alleging Hall did perform or submit to fondling or touching with B.B. (a minor at least age fourteen but under age sixteen) “sometime” during the period of time between October 27, 2011 and December 31, 2012. Amended App. of Appellant at 17-34. 2 At the time of the events in this case, DCS was named Child Protective Services (“CPS”), and that is the entity to which the record refers.
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1134 | June 10, 2016 Page 3 of 13 [5] In late 2005 or early 2006, DCS placed B.B. with Hall in Allen County. At
trial, B.B. testified that Hall consistently had sexual intercourse with her and
otherwise sexually abused her the entire time she had lived with him, which
was until the end of 2012, except for a brief period of time when she was
thirteen years old and placed in residential treatment. At the time of trial, B.B.
was fifteen years old, and she testified that she knew what “sexual intercourse”
meant. Tr. at 191-92. She testified that she had slept in Hall’s bed with him on
a regular basis and that their relationship became one of husband and wife or
boyfriend and girlfriend. B.B. testified that, when she was approximately
eleven years old, Hall put her on birth control pills because he did not want her
to get pregnant from having sex with him. Hall set an alarm clock for seven
o’clock p.m. every day to remind B.B. to take the birth control pills. Hall
enrolled B.B. in an on-line school rather than sending her to high school in the
ninth grade. B.B. testified she did not tell DCS about the continuing sexual
abuse because she had nowhere else to go; she did not want to go into foster
care again, and she could not live with her mother due to her mother’s on-going
inability to properly care for her.
[6] The State also presented the testimony of K.C., B.B.’s half-sister, who testified
that, when B.B. was eight years old, B.B. told K.C. that Hall was touching her
in sexual ways and that, when B.B. was eleven years old, B.B. told K.C. that
Hall was having sexual intercourse with her.
[7] In August 2013, Hall was arrested on charges of sexual misconduct with a
minor (other than B.B.), and he was incarcerated. After Hall was arrested, B.B.
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1134 | June 10, 2016 Page 4 of 13 was placed with her paternal grandmother. B.B. ran away from her
grandmother’s house and then began living with her mother, J.B. B.B. told her
mother about the years of sexual abuse by Hall and, on November 13, 2013,
J.B. and B.B. reported the sexual abuse to the Fort Wayne Police Department.
While Hall was incarcerated and before B.B. had reported his sexual abuse,
Hall wrote B.B. letters in which he made the following statements: “do you
want us to have the same relationship as before I came here? . . . I love you and
need things to be as they were but if your [sic] out there giving kitty away then
it’s over!,” State’s Ex.3; “don’t leave these letters around where people can read
them,” Id.; “don’t have dudes in our house!,” Id.; “Please don’t be that type of
girl that love [sic] me when I’m around and a wild flirty girl when I’m not,” id.;
and “keep that thing tight for me,” id.
[8] The jury returned verdicts of “not guilty” as to counts I through III, and
“guilty” as to counts IV through IX. After Hall’s stipulation that he had also
accumulated two prior felonies, the trial court found that he was a habitual
offender. The court entered judgments of convictions as to counts IV through
IX and, following a sentencing hearing, sentenced Hall to forty years for each of
counts IV, V, and VI; four years for count VII; twenty years for count VIII; and
four years for count IX. Counts VII and IX were concurrent with each other
and with the previous counts. Count VIII was enhanced by thirty years due to
Hall’s habitual offender status. Thus, the trial court imposed an aggregate
sentence of 170 years. This appeal ensued.
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1134 | June 10, 2016 Page 5 of 13 Discussion and Decision [9] Initially, we note that the State has failed to file a timely appellee’s brief in this
appeal, and, in a separate order, we have denied the State’s motion for an
extension of time to file its brief.3 Therefore, the trial court’s decision may be
reversed upon a showing of prima facie error. Ind. Appellate Rule 45(D); Trinity
Homes, LLC v. Fang, 848 N.E.2d 1065 (Ind. 2006) (holding that, when the
appellee has failed to submit a brief, the court on appeal need not undertake the
burden of developing an argument on the appellee’s behalf; rather, the court on
appeal will reverse the trial court’s judgment if the appellant’s brief presents a
case of prima facie error).
Issue One: Sufficiency of the Evidence
[10] Hall maintains that the State failed to provide sufficient evidence to support his
convictions. In reviewing a sufficiency of the evidence claim, we neither
reweigh the evidence nor assess the credibility of the witnesses. See, e.g., Jackson
v. State, 925 N.E.2d 369, 375 (Ind. 2010). We consider only the probative
evidence and reasonable inferences therefrom that support the conviction,
Gorman v. State, 968 N.E.2d 845, 847 (Ind. Ct. App. 2012), trans. denied, and we
“consider conflicting evidence most favorably to the trial court’s ruling,” Wright
v. State, 828 N.E.2d 346, 352 (Ind. 2005). We affirm if the probative evidence
and reasonable inferences drawn from that evidence “could have allowed a
3 The State’s motion was denied because it did not present grounds sufficient to justify its delay in proper filing.
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1134 | June 10, 2016 Page 6 of 13 reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.”
Jackson, 925 N.E.2d at 375.
[11] To prove Hall committed child molesting, as Class A felonies, and sexual
misconduct with a minor, as a Class B felony, the State was required to prove
that he had sexual intercourse with B.B. when she was a minor.4 Ind. Code §
35-42-4-3(a)(1) and (b) (2012).5 Sexual intercourse is defined as “an act that
includes any penetration of the female sex organ by the male sex organ.” I.C. §
35-31.5-2-302. For purposes of a charge of child molesting or incest,
penetration may be inferred from circumstantial evidence. Mastin v. State, 966
N.E.2d 197, 202 (Ind. Ct. App. 2012), trans. denied. And the testimony of the
victim alone may be sufficient to support a conviction of child molestation by
sexual intercourse. See, e.g., Smith v. State, 779 N.E.2d 111 (Ind. Ct. App.
2002), trans. denied.
[12] To prove child molesting as a Class C felony and sexual misconduct with a
minor as a Class C felony, the State was required to prove that Hall performed
“any fondling or touching, of either the child or the older person, with intent to
4 The State must also show that B.B. was less than fourteen years old for Class A child molesting, and between fourteen and sixteen years old for Class C child molesting. However, B.B.’s date of birth is undisputed and shows that she was a minor child within those age ranges at all relevant times. 5 Hall’s convictions related to years 2009 through 2012, and the statute was materially the same in each of those years.
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1134 | June 10, 2016 Page 7 of 13 arouse or satisfy the sexual desires of either the child or the older person.” I.C.
§ 35-42-4-3(b); I.C. § 35-42-4-9(b).
[13] Here, B.B., who was fifteen years old when she testified, stated that Hall had
touched her in sexual ways, had oral sex with her, and had sexual intercourse
with her on many occasions, and “at least once every year,” between 2005 and
2012. She testified that she knew what “sexual intercourse” meant.6 Tr. at 189-
92, 194, 196. She provided a detailed description of the first such incident, and
she testified that many other such incidents occurred each year when she was
living with Hall.7 B.B.’s testimony was corroborated by her sister’s testimony
that B.B. had told her about the sexual abuse by Hall when B.B. was eight years
old and the sexual intercourse with Hall when B.B. was eleven years old. B.B.’s
testimony was also corroborated by the letters Hall wrote to her while he was
imprisoned. This is sufficient evidence that Hall had sexual intercourse with his
minor daughter, B.B., during the specified time periods. It is also sufficient
evidence that Hall fondled or touched B.B. with the intent to satisfy his sexual
6 Hall claims B.B.’s testimony is not sufficient because she did not explain that sexual intercourse meant “her sex organ was penetrated by her father’s sex organ.” Amended Br. of Appellant at 16. However, a detailed anatomical description of penetration is not necessary to prove child molestation based on sexual intercourse. Spurlock v. State, 675 N.E.2d 312, 315 (Ind. 1996). 7 Hall contends that B.B.’s testimony was “incredibly dubious” because she testified that Hall had sexual intercourse with her every day “over a seven year period.” Appellant’s Br. at 17. He also challenges his conviction for count VI on the grounds that B.B. was not living with him during much of that time period. However, B.B. testified that Hall had sexual intercourse with him “at least once a year” while she lived with him. Tr. at 195-96 (emphasis added). This, along with B.B.’s other testimony, is sufficient evidence of the crimes of which Hall was convicted—i.e., having sexual intercourse with and/or fondling B.B. “sometime” during each of the specified years and/or time periods. Amended App. of Appellant at 23-34.
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1134 | June 10, 2016 Page 8 of 13 desires during the specified time periods. The State presented sufficient
evidence to support Hall’s convictions.
Issue Two: Exclusion of Evidence
[14] Hall contends that the trial court erred in excluding certain evidence. The
admission or exclusion of evidence is a matter left to the sound discretion of the
trial court, and we will reverse only upon an abuse of that discretion. Collins v.
State, 835 N.E.2d 1010, 1016 (Ind. Ct. App. 2005), trans. denied. An abuse of
discretion occurs where the decision is clearly against the logic and effect of the
facts and circumstances. Id. To reverse a trial court’s decision to exclude
evidence, there must be (1) error by the court, (2) that affects Defendant’s
substantial rights, and (3) the defense must have made an offer of proof or the
evidence must have been clear from the context. Stroud v. State, 809 N.E.2d
274, 283 (Ind. 2004). However, “[t]rial court error in excluding evidence is
harmless if the probable impact of the error on the jury, in light of all of the
evidence, is sufficiently minor such that it does not affect the substantial rights
of the parties.” Hauk v. State, 729 N.E.2d 994, 1002 (Ind. 2000).
[15] Hall contends that the trial court erred in excluding evidence that B.B. had been
gang raped by fellow students, which caused her to be terrified of going to
school. He maintains that such evidence was necessary to show that he
enrolled her in an on-line high school not to isolate her from others to make
sexual abuse easier but because she did not want to go to school due to fear of
the rapists. Hall also contends that evidence of the gang rape would provide
some proof that he did not put B.B. on birth control because he was having Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1134 | June 10, 2016 Page 9 of 13 sexual intercourse with her but, rather, in anticipation of “the tragic event that
the child would be victimized again.” Amended Br. of Appellant at 19.
[16] However, even assuming for the sake of argument that the trial court erred in
excluding this evidence, any such error was harmless in that it likely had a
minimal impact on the jury given all the other evidence of Hall’s sexual abuse
of B.B., including his own letters to her. Thus, even if the trial court erred in
excluding evidence that B.B. had been gang raped by fellow students—and we
do not hold that it did so err—any such error was harmless as its impact on the
jury would have been so minor that it would not have affected Hall’s substantial
rights. Hauk, 729 N.E.2d at 1002.
Issue Three: Inappropriateness of Sentence
[17] Hall also contends that his sentence is inappropriate in light of the nature of the
offenses and his character. Article 7, Sections 4 and 6 of the Indiana
Constitution “authorize[] independent appellate review and revision of a
sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind.
Ct. App. 2007) (alteration original). This appellate authority is implemented
through Indiana Appellate Rule 7(B). Id. Revision of a sentence under Rule
7(B) requires the appellant to demonstrate that his sentence is inappropriate in
light of the nature of his offenses and his character. See Ind. Appellate Rule
7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess
the trial court’s recognition or non-recognition of aggravators and mitigators as
an initial guide to determining whether the sentence imposed was
inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006). Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1134 | June 10, 2016 Page 10 of 13 However, “a defendant must persuade the appellate court that his or her
sentence has met th[e] inappropriateness standard of review.” Roush, 875
N.E.2d at 812 (alteration original).
[18] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222, 1224
(Ind. 2008). The principal role of appellate review is to attempt to “leaven the
outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the
end of the day turns on “our sense of the culpability of the defendant, the
severity of the crime, the damage done to others, and myriad other facts that
come to light in a given case.” Id. at 1224. The question is not whether another
sentence is more appropriate, but rather whether the sentence imposed in
inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).
Deference to the trial court “prevail[s] unless overcome by compelling evidence
portraying in a positive light the nature of the offense (such as accompanied by
restraint, regard, and lack of brutality) and the defendant’s character (such as
substantial virtuous traits or persistent examples of good character).” Stephenson
v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[19] Hall first contends that the nature of the offenses does not support an enhanced
sentence. He admits, as certainly he must, that the crimes of which he was
convicted are severe and “heinous.” Amended Br. of Appellant at 30. Yet he
maintains that the imposition of an aggregate sentence of 170 years for his five
felony convictions for sexually abusing his own daughter over a period of four
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1134 | June 10, 2016 Page 11 of 13 years is “vindictive.” Id. We disagree. The trial court found no mitigating
factors, and it found as an aggravating factor the large number of repeated
criminal sexual acts over an extensive period of time committed against his own
child who “was totally at his mercy.” Sentencing Tr. at 28. Given that Hall
repeatedly violated a position of trust with his biological daughter over a period
of years, we cannot say that his sentence is inappropriate in light of the nature
of his offenses.
[20] Hall also maintains that the sentence is inappropriate in light of his character.
He points to evidence that he is forty-five-years old with no history of juvenile
delinquency. However, the trial court did not recognize that evidence as a
mitigating circumstance. Rather, the trial court focused on Hall’s repeated
betrayals of his daughter’s trust over a period of years, which is evidence of his
poor character. Moreover, a criminal history as an adult is evidence of a
person’s character, Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015),
trans. denied, and Hall’s criminal history is extensive. He has six prior
misdemeanors and five prior felony convictions, one of which is a conviction of
sexual misconduct with a minor other than B.B. Thus, we cannot say that his
sentence is inappropriate in light of his character.
Conclusion [21] The State has provided sufficient evidence to support Hall’s convictions; any
error in the exclusion of evidence that B.B. was previously gang raped was
harmless; and Hall has failed to persuade us that his sentence is inappropriate in
light of the nature of his offenses and his character. Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1134 | June 10, 2016 Page 12 of 13 [22] Affirmed.
Robb, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A03-1508-CR-1134 | June 10, 2016 Page 13 of 13