Todd A. Leek v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 21, 2015
• Docket: 02A03-1502-CR-52
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision Dec 21 2015, 5:33 am shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Anthony S. Churchward Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana

Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Todd A. Leek, December 21, 2015 Appellant-Defendant, Court of Appeals Case No. 02A03-1502-CR-52 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff. Judge Trial Court Cause No. 02D04-1402-FA-11

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 02A03-1502-CR-52 | December 21, 2015 Page 1 of 10 [1] Todd Leek was convicted of three counts of child molesting, 1 two as Class A

felonies and one as a Class C felony. As the admission of certain evidence of

prior bad acts was not fundamental error, the State presented sufficient evidence

of Leek’s age, and Leek’s sentence was not inappropriate or an abuse of

discretion, we affirm.

Facts and Procedural History [2] The facts favorable to the judgment are that Leek met J.J. in 2003 and they

married in 2004. J.J. had five children, including B.L., who was four years old

at the time. Leek adopted all five children. The family moved often during the

next few years, sometimes in order to avoid investigation of physical abuse of

one of the daughters. Leek was verbally and physically abusive toward J.J.

When B.L was between five and eight Leek began inappropriately touching her

sexually, and the inappropriate activity progressed over the next several years.

B.L. did not immediately report the activity because she was afraid of Leek.

[3] In May 2013, J.J. and the children moved out. Shortly afterward B.L.

described to her mother the inappropriate touching by Leek. B.L had made

similar allegations once before, while the family was traveling. After the 2013

allegations an investigation was initiated, and in 2014 Leek was charged and

convicted. Additional facts will be provided as necessary.

1 Ind. Code § 35-42-4-3.

Court of Appeals of Indiana | Memorandum Decision 02A03-1502-CR-52 | December 21, 2015 Page 2 of 10 Discussion and Decision Admission of Character Evidence

[4] Ind. Evidence Rule 404(b) provides: “Evidence of other crimes, wrongs, or acts

is not admissible to prove the character of a person in order to show action in

conformity therewith,” but may “be admissible for other purposes, such as

proof of motive.” The law governing the admissibility of such evidence for

“other purposes” requires a trial court to make three findings. First, the court

must determine that the evidence of other crimes, wrongs, or acts is relevant to

a matter at issue other than the defendant’s propensity to commit the charged

act. Second, the court must determine that the proponent has sufficient proof

that the person who allegedly committed the act did, in fact, commit the act.

And third, the court must balance the probative value of the evidence against its

prejudicial effect pursuant to Rule 403. Camm v. State, 908 N.E.2d 215, 223

(Ind. 2009), reh’g denied. In other words, evidence is inadmissible under Rule

404(b) when its only apparent purpose is to prove that the defendant is someone

who commits crime. Wilson v. State, 931 N.E.2d 914, 919-20 (Ind. Ct. App.

2010), trans. denied.

In October 2014, the State filed its “Second Amended Notice of Intent to Use

404B Evidence,” (App. at 47-48), alleging Leek had a pattern of changing

residences to avoid the involvement of law enforcement in response to

allegations Leek had been physically abusive toward B.L.’s sister H.L., he had

touched H.L. sexually, and he had offered H.L. money to take nude photos of

herself. The State’s Notice also indicated B.L. would testify Leek “had been

Court of Appeals of Indiana | Memorandum Decision 02A03-1502-CR-52 | December 21, 2015 Page 3 of 10 molesting her on a regular basis beginning prior to” a 2010 incident when Leek

allegedly battered B.L.’s sister. (Id. at 47.)

The State said it was offering the 404(B) evidence to explain why B.L “did not

disclose the abuse previously as well as allegedly contradictory statements made

by the victim about the abuse, the nature of the relationship between the parties,

the victim’s state of mind, and [Leek’s] guilty knowledge.” (Id. at 48.) The trial

court allowed use of the evidence at trial.

[5] Leek’s trial counsel did not timely object to the character evidence Leek

challenges on appeal. Failure to object at trial waives an issue on appeal unless

the appellant can show fundamental error -- that is, “an error that ma[de] a fair

trial impossible or constitute[d a] clearly blatant violation[ ] of basic and

elementary principles of due process presenting an undeniable and substantial

potential for harm.” Knapp v. State, 9 N.E.3d 1274, 1281 (Ind. 2014) (quoting

Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009), reh’g denied), cert. denied __ U.S.

__, 135 S. Ct. 978 (2015). That exception is extremely narrow and reaches only

errors so blatant that the trial judge should have taken action sua sponte. Id. “In

sum, fundamental error is a daunting standard that applies ‘only in egregious

circumstances.’” Id. (quoting Brown v. State, 799 N.E.2d 1064, 1068 (Ind.

2003)).

[6] We cannot find fundamental error. The challenged evidence was testimony “as

to the history of the family’s relocations, the reasons therefore [sic] and

Court of Appeals of Indiana | Memorandum Decision 02A03-1502-CR-52 | December 21, 2015 Page 4 of 10 unrelated acts of violence committed by Mr. Leek.” 2 (Br. of Appellant at 14.)

That evidence was offered to show why B.L. had been reluctant to report

Leek’s behavior, and it was evidence relevant to a matter at issue other than the

defendant’s propensity to commit the charged act, i.e., the sexual molestation of

B.L. See Camm, 908 N.E.2d at 223 (court must determine the evidence of other

crimes, wrongs, or acts is relevant to a matter at issue other than the defendant’s

propensity to commit the charged act). We cannot find fundamentally

erroneous the trial court’s determination the challenged evidence was relevant

to show why B.L did not report Leek’s actions sooner, and the challenged

evidence did not show Leek’s propensity to commit child molestation. We

therefore do not reverse on the ground the State’s 404(B) evidence should not

have been admitted.

Proof of Leek’s Age

[7] When reviewing sufficiency of evidence to support a conviction, we do not

reweigh evidence or reassess credibility of witnesses. Walker v. State, 998

N.E.2d 724, 726 (Ind. 2013). We view the evidence and reasonable inferences

drawn therefrom in a light most favorable to the conviction, and will affirm if

there is substantial evidence of probative value to support each element of the

2 As noted above, the State’s notice also referred to evidence Leek had had touched B.L.’s sister sexually and offered her money to take nude photos of herself. It indicated B.L. would testify Leek “had been molesting her on a regular basis beginning prior to” a 2010 incident when Leek allegedly battered B.L.’s sister. (App.at 47.) On appeal, Leek does not address that evidence and we decline to address it sua sponte.

Court of Appeals of Indiana | Memorandum Decision 02A03-1502-CR-52 | December 21, 2015 Page 5 of 10 crime from which a reasonable trier of fact could have found the defendant

guilty beyond a reasonable doubt. Id.

[8] To convict Leek of Class A felony child molesting the State had to prove Leek

was over twenty-one years old when he committed the offense. Ind. Code § 35-

42-4-3. It did. The trial court heard evidence in the form of testimony from

B.L. that Leek was over twenty-one the entire time that he and B.L. lived in

Fort Wayne, which is the same period during which the charged offenses took

place. Leek concedes the uncorroborated testimony of one witness may be

sufficient by itself to sustain a conviction on appeal, Toney v. State, 715 N.E.2d

367, 369 (Ind. 1999), and offers no explanation why B.L.’s testimony is outside

that rule. We therefore may not reverse on the ground there was insufficient

evidence of Leek’s age.

Leek’s Sentence

[9] Sentencing decisions rest within the sound discretion of the trial court and are

reviewed on appeal only for an abuse of discretion. Sandleben v. State, 29

N.E.3d 126, 135 (Ind. Ct. App. 2015), trans. denied. 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. A trial court abuses its discretion if it

does not issue a sentencing statement, gives reasons for imposing a sentence

that are not supported by the record, omits reasons clearly supported by the

record and advanced for consideration, or considers reasons that are improper

as a matter of law. Id. Court of Appeals of Indiana | Memorandum Decision 02A03-1502-CR-52 | December 21, 2015 Page 6 of 10 [10] Leek contends the trial court gave too little weight to the fact he had no

criminal history. That was not an abuse of discretion. A court is not required

to give the same weight to a proffered mitigating factor as does the defendant.

Sandleben, 29 N.E.3d at 136. The trial court acknowledged as a mitigator that

Leek had no criminal history, but it declined to weigh that mitigator heavily.

The charging informations indicated only that Leek molested the victim

between November 2012 and May 2013, but the trial court heard evidence

similar conduct was ongoing over a ten-year period. The trial court noted at

sentencing that Leek’s conduct “over the course of . . . this ten year period, has

been abhorrent and despicable.” (Sentencing Tr. at 21.)

[11] Leek asserts, without explanation or citation to authority, that the trial court

“should not have considered the full ten (10) year period of time which [sic] the

abuse was alleged to have taken place.” (Br. of Appellant at 22.) To the extent

Leek argues the imposition of consecutive sentences was an abuse of discretion

because the trial court reviewed evidence of uncharged crimes and alleged bad

acts, he is incorrect. A trial court properly may consider evidence of prior

criminal conduct that has not been reduced to conviction, as well as evidence of

prior uncharged crimes, so long as such evidence was not gleaned from plea

negotiations that did not result in a plea agreement that was accepted by the

court. Hensley v. State, 573 N.E.2d 913, 917 (Ind. Ct. App. 1991), trans. denied.

Such information may be relevant to the trial court’s assessment of the

defendant’s character in terms of the risk that he will commit another crime.

Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005). And see, e.g., Drakulich v. State,

Court of Appeals of Indiana | Memorandum Decision 02A03-1502-CR-52 | December 21, 2015 Page 7 of 10 877 N.E.2d 525, 536 (Ind. Ct. App. 2007) (“[i]n regard to Drakulich’s

character, . . . his lack of criminal history is tempered by the fact that he was

clearly not living a law-abiding life for a period of time”), trans. denied.

[12] The trial court found as aggravating circumstances Leek’s “violation of the . . .

position of trust over an extensive period of time,” (Sent. Tr. at 21), and the

“extraordinary impact” on the victim. Id. Being in a position of trust with the

victim is a valid aggravating circumstance. Hart v. State, 829 N.E.2d 541, 544

(Ind. Ct. App. 2005). Leek asserts the trial court should not have considered

the full ten-year period during which the abuse allegedly took place, but he

offers no explanation why the duration of the position of trust affects the weight

or validity of that aggravating circumstance. We decline to hold it does.

[13] Leek next argues the impact on the victim should not have been considered as

an aggravator because normally “the impact of an offense is included in the

presumptive sentence.” (Br. of Appellant at 21.) Leek cites two decisions for

that premise, but both address the effect of impact on the victim’s family. In the

case before us the sentencing judge was explicit that she was finding an

aggravator in the form of “an extraordinary impact on this young lady,”

presumably B.L., (Sent. Tr. at 21), but Leek offers argument only about impact

on the family. We are therefore unable to find error in the sentencing court’s

determination the impact on B.L. was an aggravator.

[14] Nor was Leek’s sentence inappropriate. Indiana Appellate Rule 7(B) provides

we “may revise a sentence authorized by statute if, after due consideration of

Court of Appeals of Indiana | Memorandum Decision 02A03-1502-CR-52 | December 21, 2015 Page 8 of 10 the trial court’s decision, the Court finds that the sentence is inappropriate in

light of the nature of the offense and the character of the offender.” The nature

of the offense is found in the details and circumstances of the commission of the

offense. Townsend v. State, No. 02A03-1503-CR-90, 2015 WL 6777110, at *8

(Ind. Ct. App. 2015). The character of the offender is shown by the offender’s

life and conduct. Id. When reviewing a sentence, our principal role is to leaven

the outliers rather than necessarily achieve what is perceived as the correct

result. Id. We do not look to determine if the sentence was appropriate; instead

we look to make sure the sentence was not inappropriate. Id. Leek bears the

burden to show that his sentence is inappropriate. See id.

[15] As to the nature of the offense, the advisory sentence is the starting point the

Legislature selected as appropriate for the crime committed. Id. Leek was

convicted of two counts of child molesting as Class A felonies and one count as

a Class C felony. The sentencing range for a class A felony is twenty to fifty

years, with an advisory sentence of thirty years. Ind. Code § 35-50-2-4. The

sentencing range for a Class C felony is two to eight years, with an advisory

sentence of four years. Ind. Code § 35-50-2-6. The trial court sentenced Leek

to consecutive forty-year terms for the Class A felonies, and to a six-year term

for the Class C felony, to be served concurrent with the other sentences.

[16] We cannot find Leek’s sentence inappropriate based on the nature of his

offense. Leek molested B.L. in a number of ways over a long period of time

and violated his position of trust with her. We cannot find his sentence

inappropriate in light of his offense. See, e.g., Mastin v. State, 966 N.E.2d 197,

Court of Appeals of Indiana | Memorandum Decision 02A03-1502-CR-52 | December 21, 2015 Page 9 of 10 203 (Ind. Ct. App. 2012) (aggregate ninety-year sentence not inappropriate

when Mastin violated a position of trust with his biological daughter, warned

her not to tell anyone about their “secret games,” and molested her for about

two years), trans. denied.

[17] Nor was Leek’s sentence inappropriate based on his character. When

considering the character of the offender, one relevant fact is the defendant’s

criminal history. Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013).

As explained above, Leek has no criminal record but there was ample evidence

before the trial court that for many years he had not lived a law-abiding life. In

light of that evidence, we cannot find Leek’s sentence inappropriate on the

ground he has no criminal history. See Newsome v. State, 797 N.E.2d 293, 300

(Ind. Ct. App. 2003) (repeated molestations occurring over a period of time can

support maximum sentence enhancement), trans. denied.

Conclusion [18] Admission of the State’s 404(b) evidence was not fundamental error, the State

presented sufficient evidence of Leek’s age, and Leek’s sentence was neither

inappropriate nor an abuse of discretion. We accordingly affirm.

[19] Affirmed.

Crone, J., and Bradford, J., concur.

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