MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 30 2018, 9:15 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ivan A. Arnaez Curtis T. Hill, Jr. Arnaez Law Office Attorney General of Indiana Evansville, Indiana Lee M. Stoy, Jr. Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Timothy M. Schieve, August 30, 2018 Appellant-Defendant, Court of Appeals Case No. 26A01-1711-CR-2815 v. Appeal from the Gibson Circuit Court State of Indiana, The Honorable Jeffrey F. Meade, Appellee-Plaintiff. Judge Trial Court Cause Nos. 26C01-1609-FA-928 26C01-1609-F1-929
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 26A01-1711-CR-2815 | August 30, 2018 Page 1 of 14 Statement of the Case [1] Timothy Schieve (“Schieve”) appeals his convictions following a jury trial for
Class A felony child molesting1 and Level 1 felony child molesting2 as well as
the thirty-six-year concurrent sentences imposed for each conviction. Schieve
specifically argues that: (1) the trial court improperly coerced the jury by
inquiring into the status of its deliberations; (2) the trial court abused its
discretion in sentencing him; and (3) his sentence is inappropriate in light of his
character and the nature of his offenses. Concluding that the trial court did not
improperly coerce the jury or abuse its discretion in sentencing Schieve, and
that Schieve’s sentence is not inappropriate, we affirm his convictions and
sentences.
[2] We affirm.
Issues 1. Whether the trial court improperly coerced the jury when it asked about the status of the jury’s deliberations.
2. Whether the trial court abused its discretion in sentencing Schieve.
3. Whether Schieve’s sentence is inappropriate in light of the nature of his offense and his character.
1 IND. CODE § 35-42-4-3. 2 I. C. § 35-42-4-3.
Court of Appeals of Indiana | Memorandum Decision 26A01-1711-CR-2815 | August 30, 2018 Page 2 of 14 Facts [3] M.S. (“Mother”) and Schieve are the parents of M.S. (“M.S.”), who was born
in December 2004. The couple separated when M.S. was still an infant, and
M.S. typically visited Schieve every other weekend. In 2016, when M.S. was
eleven years old, she told Mother that Schieve had touched her inappropriately.
Following a forensic interview with M.S., the State charged Schieve with Class
A felony child molesting, Class B felony incest, Level 1 felony child molesting,
and Level 4 felony incest.
[4] At an October 2017 jury trial, M.S. testified that Schieve had inappropriately
touched her on three separate occasions. According to M.S., the first incident
occurred in the bathroom of Schieve’s home while M.S. was changing into her
swimsuit. M.S. specifically testified that Schieve entered the bathroom, asked
M.S. to sit on the sink, and “put his hand on [her] swimsuit bottoms and started
moving his hand.” (Tr. Vol. 2 at 247). M.S. further testified that the second
incident occurred in the living room of Schieve’s home. According to M.S.,
while Schieve and M.S. were watching television, Schieve, who was wearing
his boxers, “had [M.S.] take off [her] shorts to where [she] was just in [her]
underwear, and he had [her] sit on his lap while [they] watched TV.” (Tr. Vol.
2 at 150).
[5] In addition, M.S. testified that the third incident occurred in Schieve’s bedroom
when he instructed M.S. to touch his penis with her hands and mouth.
Court of Appeals of Indiana | Memorandum Decision 26A01-1711-CR-2815 | August 30, 2018 Page 3 of 14 According to M.S., Schieve had told her that she “would do it as good as [her]
mother would.” (Tr. Vol. 3 at 5). M.S. explained that she knew what to do
with her hands and her mouth because of the pornographic videos that she and
Schieve had watched together. M.S. further testified that when Schieve
ejaculated, he asked M.S. to “drink the white stuff” because her mother did.
(Tr. Vol. 3 at 5).
[6] Lastly, M.S. testified that she now called Schieve by his first name, Wayne,
rather than Dad. M.S. specifically explained as follows: “[b]ecause after, like,
learning more, it got me to understand that somebody that loved you wouldn’t
hurt you, and “Dad” and “Father” is supposed to be a loving word.” (Tr. Vol.
2 at 32).
[7] Mother testified that she and Schieve had been involved in a six-year
relationship and that oral sex was something that Schieve particularly enjoyed.
Mother also testified that when she and Schieve were together, there was
pornography in the home.
[8] In addition, Brandon Willis (“Willis”), Schieve’s cellmate in the Gibson
County Jail, testified that after Schieve learned that Willis had previously been
convicted of incest, Schieve told him that he had watched pornographic DVDs
with his daughter. Willis also testified that Schieve had told him that he had
fondled his daughter and made his daughter fondle him.
[9] After closing arguments and final instructions, the trial court sent the jury to
deliberate at about 1:30 pm. Four hours later, at approximately 5:30 p.m., the
Court of Appeals of Indiana | Memorandum Decision 26A01-1711-CR-2815 | August 30, 2018 Page 4 of 14 trial court brought the jury back into the courtroom to check on the status of
deliberations. At that time, the following colloquy between the trial court and
the jury foreperson took place:
[10] THE COURT: We show the jury comes back in at the request of the Court just for status. . . . All right. I just want to touch bases with you. And I – when I brought you out here, this is no way meant to encourage you to vote one way or the other. Okay. But I want to just remind you that the evidence has been closed, and I can’t really reopen it for any other testimony or transcripts or so forth because I believe that was one of the jury questions was do we have transcripts available of certain testimony. We don’t have that. They have that stuff on TV. We don’t have that in real life. I guess my question for the jury is a couple. One, do you believe – and who is the foreman? I don’t know who the foreman is. Okay. Do you believe a unanimous opinion can be reached if given more time?
FOREPERSON: Possibly. We had a unanimous decision, but then somebody changed a vote, so we kind of went back to discussing it.
THE COURT: Okay. So that’s kind of where you’re at now? That’s fair. Because I just wanted to get a feel for where you guys were. The other question I had, you did go to lunch early. It’s about 5:30 now. Are you guys getting hungry.
FOREPERSON: Yeah. Everybody is getting pretty hungry.
THE COURT: Okay. Let’s do this. Since – I can read all the jury instructions to you again, but you can read them yourself. I don’t think you really want to hear me read it. That’s really all I can do. So you have the evidence, you have the instructions. Let’s do this. Let me order some pizzas maybe from across the street if that’s okay and then let you go back and see if you guys can get that unanimous verdict that the statute requires.
FOREPERSON: Okay.
THE COURT: Okay. You guys got – anybody got any requests for certain types of pizza?
FOREPERSON: Do they have chocolate pizza?
Court of Appeals of Indiana | Memorandum Decision 26A01-1711-CR-2815 | August 30, 2018 Page 5 of 14 THE COURT: I will let you work that out with the bailiff. I better stay out of this or I’ll get myself in lots of trouble. I’ll let you work that out with the bailiff. All right. I’ll let you guys go back. Yeah. They want to make sure because it is getting – I can see you guys are probably getting hungry. Okay. All right.
(Tr. Vol. 3 at 159-60). After the jury exited the courtroom, the trial court asked,
“Any other motions?” (Tr. Vol. 2 at 160). Neither side made any objections or
motions. Approximately ninety minutes later, the jury returned with their
verdicts finding Schieve guilty on all counts.
[11] During the preparation of his Pre-Sentence Investigation Report, Schieve told
the probation officer that “his hope [was] one day, when his daughter [was]
older, she [would] realize how selfish she was for making up lies about him.”
(App. Vol. 10 at 7). At the November 2017 sentencing hearing, Schieve’s father
testified that Schieve was “a loving father and a loving son” and had “helped in
the community.” (Tr. Vol. 3 at 170). Schieve’s father also testified that the
witness testimony at trial “was full of untruths and fabrications.” (Tr. Vol. 3 at
171). Schieve told the trial court that he did not “feel like [he] had
representation that [he] should have had.” (Tr. Vol. 3 at 173).
[12] M.S. submitted an impact letter wherein she described the emotional impact
that Schieve’s crimes had had on her. Specifically, she explained that she: (1)
cried herself to sleep on many occasions; (2) had nightmares that led her to
“sleep in mommy’s room;” and (3) wondered why a father would abuse his
own daughter. (State’s App. at 2). In the letter, M.S. explained that she “no
longer g[o]t attached easily” and that it was hard to trust anyone. (State’s App.
at 3). Mother also wrote an impact letter where she explained that M.S. no Court of Appeals of Indiana | Memorandum Decision 26A01-1711-CR-2815 | August 30, 2018 Page 6 of 14 longer felt safe in her own home and that she had lost family and her innocence
as a result of Schieve’s offenses.
[13] The evidence presented at the sentencing hearing revealed that Schieve has an
extensive misdemeanor criminal history. Specifically, Schieve has multiple
prior convictions for driving while suspended, criminal mischief, and battery.
In addition, he has a prior conviction for neglect of a dependent, which
involved a child.
[14] Following the presentation of evidence, the trial court found the following
aggravating circumstances: (1) Schieve abused his position of trust with M.S.;
and (2) M.S. suffered emotional and psychological harm. The trial court also
found that Schieve’s lack of remorse was a modest aggravating factor. The trial
court merged each incest conviction with the respective child molesting
conviction and sentenced Schieve to concurrent terms of thirty-six (36) years in
the Department of Correction for each child molesting conviction.
Decision [15] Schieve argues that: (1) the trial court improperly coerced the jury by inquiring
into the status of its deliberations; (2) the trial court abused its discretion in
determining aggravating factors for sentencing him; and (3) his sentence is
inappropriate in light of his character and the nature of his offenses. We
address each of his arguments in turn.
1. Jury Inquiry
Court of Appeals of Indiana | Memorandum Decision 26A01-1711-CR-2815 | August 30, 2018 Page 7 of 14 [16] Schieve first argues that he was deprived of a fair trial because the trial court’s
statement during its colloquy with the jury foreperson “improperly coerced the
jury through numerical inquiry. . . .” (Schieve’s Br. at 21). At the outset, we
note that Schieve did not object at trial to the trial court’s colloquy with the jury
foreperson. He has therefore waived appellate review of this issue. See Palilonis
v. State, 970 N.E.2d 713, 730 (Ind. Ct. App. 2012) (holding that failure to make
a contemporaneous objection when the evidence is introduced at trial results in
waiver of the issue on appeal), trans. denied. Because Schieve has waived
appellate review of this argument, he must establish fundamental error, which is
only available in egregious circumstances. See Absher v. State, 866 N.E.2d 350,
354 (Ind. Ct. App. 2007). To qualify as fundamental error, the “‘error must be
so prejudicial to the rights of the defendant as to make a fair trial impossible’”
and must “‘constitute a blatant violation of basic principles, the harm or
potential for harm must be substantial, and the resulting error must deny the
defendant fundamental due process.’” Id. (citing Benson v. State, 762 N.E.2d
748, 755 (Ind. 2002)).
[17] Here, our review of the trial court’s statement to the jury during the colloquy
between the trial court and the jury foreperson reveals that the State is correct
that the “trial court did not make a specific [numeric] inquiry into the jury’s
divisions on the verdict . . . .” (State’s Br. at 14). Rather, although the jury
foreperson volunteered the jury’s numerical division, the trial court’s question
neither elicited nor required such detail. Specifically, the trial court sought only
to assess whether, if given more time, the foreman believed that the jury could
Court of Appeals of Indiana | Memorandum Decision 26A01-1711-CR-2815 | August 30, 2018 Page 8 of 14 reach a unanimous verdict and whether the jurors were ready for dinner since
they had had an early lunch. We find no error here, fundamental or otherwise. 3
2. Abuse of Discretion in Sentencing
[18] Schieve next argues that the trial court abused its discretion in sentencing him.
Sentencing decisions rest within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). So long as the sentence is
in the statutory range, it is subject to review only for an abuse of discretion. Id.
An abuse of discretion occurs if 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. at 491. 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.
3 Schieve also argues that the trial court’s statement to the jury during the colloquy between the trial court and the jury foreperson amounted to an impermissible Allen charge. An Allen charge is an instruction given to urge an apparently deadlocked jury to reach a verdict. Hero v. State, 765 N.E.2d 599, 604 (Ind. Ct. App. 2002). Such additional instructions are closely scrutinized to ensure that the trial court does not coerce the jury into reaching a verdict that is not truly unanimous. Id. Here, however, the trial court neither believed that the jury was deadlocked nor gave any additional instructions. Schieve’s Allen charge argument therefore fails.
Court of Appeals of Indiana | Memorandum Decision 26A01-1711-CR-2815 | August 30, 2018 Page 9 of 14 [19] Here, Schieve contends that the trial court abused its discretion by including
improper aggravating factors that were unsupported by the record. Our review
of the evidence reveals otherwise.
[20] The trial court’s first aggravating factor was that Schieve violated a position of
trust with M.S. Schieve specifically argues that “trust between parent and child
is already written into the element of Incest as and applied to Child Molestation
under these facts . . . .” (Schieve’s’ Br. at 40). He is mistaken. First, one does
not have to be a parent or have a position of trust to commit the offense of child
molesting. See IND. CODE § 35-42-4-3. In addition, this Court has previously
explained that the “position of trust aggravator is frequently cited by sentencing
courts where an adult has committed an offense against a minor and there is at
least an inference of the adult’s authority over this minor.” Rodriguez v. State,
868 N.E.2d 551, 555 (Ind. Ct. App. 2007). We further explained that this
aggravator applies in cases where the defendant has a more than casual
relationship with the victim and has abused the trust resulting from the
relationship. Id. This is usually the case where the defendant is the victim’s
parent or stepparent. Id. Here, Schieve is M.S.’s father. The record supports
this aggravating factor, and trial court did not abuse its discretion in including
it.
[21] The second challenged aggravating factor was the emotional and psychological
harm inflicted on M.S. The trial court may properly consider this harm as an
aggravating factor where the harm or trauma is more than that which is
normally associated with the crime. Thompson v. State, 793 N.E.2d 1046, 1052
Court of Appeals of Indiana | Memorandum Decision 26A01-1711-CR-2815 | August 30, 2018 Page 10 of 14 (Ind. Ct. App. 2003). Here, the emotional and psychological harm inflicted on
M.S. was exacerbated because Schieve is her biological father. See Ludack v.
State, 967 N.E.2d 41, 48 (Ind. Ct. App. 2012) (explaining that “the acts of
sexual molestation pose a greater threat of severe, long-lasting emotional harm”
when the perpetrator is someone close to the victim). In addition, M.S. wrote
an impact letter describing her ongoing emotional turmoil since being molested.
The trial court did not abuse its discretion in finding the emotional and
psychological harm inflicted on M.S. to be an aggravating factor.
[22] The trial court’s third aggravating factor was Schieve’s lack of remorse. A trial
court may consider a defendant’s lack of remorse as an aggravating
circumstance. Georgopulos v. State, 735 N.E.2d 1138, 1145 (Ind. 2000). It is not
error for a trial court to consider lack of remorse as an aggravating factor even if
the defendant claims that he is innocent. Id. “A lack of remorse is displayed by
a defendant when he displays disdain or recalcitrance, the equivalent of “I don’t
care.’” Cox v. State, 780 N.E.2d 1150, 1158 (Ind. Ct. App. 2002). “This is
distinguished from the right to maintain one’s innocence, i.e., ‘I didn’t do it.’”
Id. Here, Schieve stated that “his hope [was] one day, when his daughter [was]
older, she [would] realize how selfish she [was] for making up lies about him.”
(App. Vol. 10 at 7). Based on this evidence, the trial court acted well within its
Court of Appeals of Indiana | Memorandum Decision 26A01-1711-CR-2815 | August 30, 2018 Page 11 of 14 discretion in finding Schieve’s lack of remorse to be a modest aggravating
factor.4
3. Inappropriate Sentence
[23] Lastly, Schieve argues that his sentence is inappropriate. Indiana Appellate
Rule 7(B) 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 of persuading this Court that his
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
Whether we regard a sentence as inappropriate turns on the “culpability of the
defendant, the severity of the crime, the damage done to others, and myriad
other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d
1219, 1224 (Ind. 2008).
[24] The Indiana Supreme Court has further explained that “[s]entencing is
principally a discretionary function in which the trial court’s judgment should
receive considerable deference.” Id. at 1222. “Such deference should prevail
unless overcome by compelling evidence portraying in a positive light the
44 Schieve also argues that the trial court abused its discretion in finding the victim’s age and Schieve’s criminal history to be aggravating factors. However, our review of the transcript reveals that the trial court considered neither M.S.’s age nor Schieve’s criminal history to be aggravating factors. We further note that even if the trial court had erred in finding these to be aggravating factors, a single aggravating factor can support an enhanced sentence. Willey v. State, 712 N.E.2d 434, 446 (Ind. 1999). Here, we have found three valid aggravating factors.
Court of Appeals of Indiana | Memorandum Decision 26A01-1711-CR-2815 | August 30, 2018 Page 12 of 14 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).
[25] When determining whether a sentence is inappropriate, the advisory sentence is
the starting point the legislature has selected as an appropriate sentence for the
crime committed. Childress, 848 N.E.2d at 1081. The sentencing range for
Level 1 felony is twenty (20) to fifty (50) years, and the range for a Class A
felony is twenty (20) to forty (40) years. IND. CODE § 35-50-2-4(a)-(b). Both
have an advisory sentence of 30 years. Id. Here, Schieve was sentenced to
concurrent terms of thirty-six (36) years for his Class A and Level 1 felonies.
These sentences are each less than the maximum sentence and just six years
more than the advisory sentence.
[26] Regarding the nature of the offenses, Schieve molested his daughter while she
visited him on weekends. He groomed her to perform sex acts by watching
pornography with her and gradually building his sexual contact with her.
Ultimately, Schieve forced M.S. to fondle his penis and perform oral sex on
him.
[27] Turning to Schieve’s character, we note that this was not Schieve’s first contact
with the criminal justice system. Schieve has prior misdemeanor convictions
for criminal mischief, battery, and driving while suspended. In addition,
Schieve has a prior conviction for neglect of a dependent, which involved a
Court of Appeals of Indiana | Memorandum Decision 26A01-1711-CR-2815 | August 30, 2018 Page 13 of 14 child. These multiple convictions reflect poorly on his character. See Moss, 13
N.E.3d at 448 (holding that “even a minor criminal history is a poor reflection
of a defendant’s character”). Schieve’s violation of his position of trust with his
daughter also reflects very poorly on his character.
[28] Schieve has failed to meet his burden to persuade this Court that his aggregate
thirty-six year sentence for one Level 1 felony conviction and one Level A
felony conviction is inappropriate.
[29] Affirmed.
Vaidik, C.J., and Barnes, Sr.J., concur.
Court of Appeals of Indiana | Memorandum Decision 26A01-1711-CR-2815 | August 30, 2018 Page 14 of 14