Jacob Youngblood v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Mar 07 2018, 8:02 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven E. Ripstra Curtis T. Hill, Jr.
Jacob P. Wahl Attorney General of Indiana
Ripstra Law Office
Jasper, Indiana Lee M. Stoy, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jacob Youngblood, March 7, 2018
Appellant-Defendant, Court of Appeals Case No.
19A01-1709-CR-2037
v. Appeal from the Dubois Circuit
Court
State of Indiana, The Honorable Nathan A.
Appellee-Plaintiff. Verkamp, Judge
Trial Court Cause No.
19C01-1610-F4-853
Najam, Judge.
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Statement of the Case
[1] Jacob Youngblood appeals his convictions for two counts of child molesting, as
Level 4 felonies, and the sentences imposed thereon, following a jury trial.
Youngblood raises two issues for our review, which we restate as the following
four issues:
1. Whether the State presented sufficient evidence to support
his convictions.
2. Whether his two convictions violate the continuing crime
doctrine.
3. Whether the trial court abused its discretion when it
sentenced him.
4. Whether his aggregate term of six years incarceration is
inappropriate under Indiana Appellate Rule 7(B).1
[2] We affirm.
Facts and Procedural History
[3] In August of 2016, K.Q., who was twelve-years-old at the time, went to
Holiday World with her family, which included her seventeen-year-old step-
brother, Youngblood. The family rented a hotel room in Jasper. While
1
In this part of his brief on appeal, Youngblood does not clearly articulate the proper legal standards under
Indiana Appellate Rule 7(B) for our review of his sentence. Nonetheless, we prefer to resolve issues raised on
appeal on their merits, and Youngblood’s argument on this issue is a clear attempt to invoke Appellate Rule
7(B). We address it accordingly.
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everyone was asleep in the room, K.Q. woke up to Youngblood touching her
breast on the inside of her shirt. K.Q. told Youngblood “to go lay back down”
and that she “was telling mom in the morning.” Tr. Vol. II at 51-52.
Youngblood responded, “please don’t tell on me.” Id. at 52. K.Q. was “really
scared” and “afraid to get up” because Youngblood had several “knives” that
he carried around. Id. But Youngblood stopped touching her, and K.Q. “went
back to sleep.” Id.
[4] Some time thereafter that same night, K.Q. “woke up a second time” to
Youngblood’s “hand . . . in my pants touching me in my private part where I
pee at.” Id. at 53. K.Q. also saw that Youngblood was “laying on the ground”
and that “the side of his arm [was] going up and down.” Id. K.Q. again told
Youngblood to “go lay down” and that she was “going to tell mom.” Id. at 54.
K.Q. “was so scared” that she “urinated in the chair.”
[5] The next morning, K.Q. told her mother what had happened the night before.
K.Q.’s brother and aunt both observed a wet spot where K.Q. had slept the
night before. Urinating in her sleep was “not something” K.Q. did. Id. at 96.
[6] K.Q.’s family contacted authorities and, on October 4, the State charged
Youngblood with child molesting, as a Level 4 felony; child molesting, as a
Level 4 felony; and sexual battery, as a Level 6 felony. K.Q., her mother, and
her aunt each testified at Youngblood’s ensuing jury trial. The jury found
Youngblood guilty of the two Level 4 felony offenses. After a sentencing
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hearing, the trial court ordered Youngblood to serve six years for each offense,
which the court ordered to be served concurrently. This appeal ensued.
Discussion and Decision
Issue One: Sufficiency of the Evidence
[7] On appeal, Youngblood first asserts that K.Q.’s testimony, standing alone, was
not sufficient evidence to support both of Youngblood’s two convictions. For
sufficiency challenges, we neither reweigh evidence nor judge witness
credibility. Gibson v. State, 51 N.E.3d 204, 210 (Ind. 2016). We consider only
the evidence most favorable to the judgment together with all reasonable
inferences that may be drawn from the evidence. Id. We will affirm the
judgment if it is supported by substantial evidence, even if the evidence is
conflicting. Id.[8] Although Youngblood acknowledges the well-settled rule that “[c]onvictions
for child molesting may rest upon the uncorroborated testimony of the victim,”
Barger v. State, 587 N.E.2d 1304, 1308 (Ind. 1992), he nonetheless asserts that
K.Q.’s testimony, without more, cannot be the basis for his convictions. We
reject Youngblood’s argument. The jury was free to credit K.Q. and give her
testimony—which plainly establishes a factual basis for his two convictions—
controlling weight, and we will not reconsider the jury’s assessments. Further,
K.Q.’s testimony was not uncorroborated; K.Q.’s mother and aunt each
testified and corroborated at least portions of K.Q.’s testimony. We hold that
the State presented sufficient evidence to support Youngblood’s convictions.
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Issue Two: Continuing Crime Doctrine
[9] Youngblood also asserts that his two convictions, one for touching K.Q.’s
breasts while she slept and the other for touching her vagina at a later time that
same night, violate the continuing crime doctrine. As we have explained:
“The continuing crime doctrine essentially provides that actions
that are sufficient in themselves to constitute separate criminal
offenses may be so compressed in terms of time, place, singleness
of purpose, and continuity of action as to constitute a single
transaction.” Riehle v. State, 823 N.E.2d 287, 296 (Ind. Ct. App.
2005), trans. denied. “[T]he continuing crime doctrine reflects a
category of Indiana’s prohibition against double jeopardy.”
Walker v. State, 932 N.E.2d 733, 736 (Ind. Ct. App. 2010). As we
have explained:
The statutory elements and actual evidence tests [of
double jeopardy, as described in Richardson v. State,
717 N.E.2d 32 (Ind. 1999),] are designed to assist
courts in determining whether two separate[ly]
chargeable crimes amount to the “same offense” for
double jeopardy purposes. The continuous crime
doctrine does not seek to reconcile the double
jeopardy implications of two distinct[,] chargeable
crimes; rather, it defines those instances where a
defendant’s conduct amounts only to a single[,]
chargeable crime. In doing so, the continuous
crime doctrine prevents the state from charging a
defendant twice for the same continuous offense.
Boyd v. State, 766 N.E.2d 396, 400 (Ind.Ct.App.2002) (emphasis
original). That is, “while Indiana’s double jeopardy clause
prohibits convicting a defendant of two or more distinct[,]
chargeable crimes when they constitute the ‘same offense’ . . . , it
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also prohibits” charging a defendant “multiple times for the same
continuous offense.” Walker, 932 N.E.2d at 736-37.
Chavez v. State, 988 N.E.2d 1226, 1228 (Ind. Ct. App. 2013) (alterations and
omissions original to Chavez), trans. denied. Further, although Youngblood did
not object on these grounds in the trial court, the issue is not waived because, as
a category of Indiana’s prohibition against double jeopardy, a violation, if
shown, would constitute fundamental error. Id. at 1228-29.
[10] According to Youngblood, his touching of K.Q.’s breasts and his touching of
her vagina were “so compressed in terms of time, place, singleness of purpose,
and continuity of action” that they amounted to one act. See id. at 1228. In
particular, Youngblood claims that K.Q.’s testimony “does not differentiate
between her body parts[] or establish a time line during which the two
molestations happened.” Appellant’s Br. at 15.
[11] Youngblood is incorrect. K.Q. unambiguously testified that she woke up to
Youngblood touching her breasts, told him to stop, fell back asleep, and,
sometime thereafter that same night, woke up to Youngblood touching her
vagina. K.Q.’s testimony demonstrates a clear cessation of one act and, at a
subsequent time, the commencement of a second act. His two convictions do
not violate the continuing crime doctrine. See, e.g., Chavez, 988 N.E.2d at 1229-
30. We affirm Youngblood’s convictions.
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Issue Three: Sentencing Discretion
[12] Youngblood next argues that the trial court abused its discretion when it
sentenced him because the trial court did not state what factors it relied upon
when it determined his sentence. Youngblood further asserts that the trial court
abused its discretion when it did not find mitigating factors that, according to
Youngblood, are clearly supported by the record.
[13] As our Supreme Court has explained:
sentencing decisions rest within the sound discretion of the trial
court and are reviewed on appeal only for an abuse of discretion.
. . . So long as the sentence is within the statutory range, it is
subject to review only for abuse of discretion. . . . 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.
One way in which a trial court may abuse its discretion is failing
to enter a sentencing statement at all. Other examples include
entering a sentencing statement that explains reasons for
imposing a sentence—including a finding of aggravating and
mitigating factors if any—but the record does not support the
reasons, or the sentencing statement omits reasons that are
clearly supported by the record and advanced for consideration,
or the reasons given are improper as a matter of law. Under
those circumstances, remand for resentencing may be the
appropriate remedy 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.
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Because the trial court no longer has any obligation to “weigh”
aggravating and mitigating factors against each other when
imposing a sentence, . . . a trial court can not now be said to have
abused its discretion in failing to “properly weigh” such factors.
And this is so because once the trial court has entered a
sentencing statement, which may or may not include the
existence of aggravating and mitigating factors, it may then
“impose any sentence that is . . . authorized by statute; and . . .
permissible under the Constitution of the State of Indiana.” I.C.
§ 35-38-1-7.1(d).
Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007) (some citations and
quotation marks omitted).
[14] The trial court did not abuse its discretion when it did not identify or rely on
aggravating or mitigating factors. The trial court imposed the advisory sentence
of six years for each of Youngblood’s convictions, and the court ordered those
sentences to be served concurrently. See I.C. § 35-50-2-5.5. The trial court has
no obligation to explain its imposition of an advisory sentence—as a matter of
law, “the advisory sentence is the starting point the Legislature has selected as
an appropriate sentence for the crime committed.” Anglemyer, 868 N.E.2d at
494; see also I.C. § 35-38-1-1.3.
[15] Neither did the trial court abuse its discretion when it declined to accept
Youngblood’s proposed mitigating circumstances. While Youngblood
reiterates his proposed mitigating circumstances on appeal, his argument on
appeal does not claim, let alone demonstrate, that any of his proffered
mitigators were significant or clearly supported by the record. Anglemyer, 868
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N.E.2d at 493 (requiring the defendant to show on appeal that his proposed
mitigators were both significant and clearly supported to demonstrate that the
trial court abused its discretion in omitting them); see Ind. Appellate Rule
46(A)(8)(a) (requiring an appellant to support his arguments with cogent
reasoning). As such, we cannot say that the trial court’s imposition of the
advisory sentences was an abuse of the court’s discretion.
Issue Four: Appellate Rule 7(B)
[16] Finally, Youngblood asserts that his six-year aggregate term is inappropriate in
light of the nature of the offenses and his character. Indiana Appellate Rule
7(B) provides that “[t]he Court may revise a sentence authorized by statute if,
after due consideration of 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.” As the Indiana Supreme Court has explained, the “principal
role of appellate review” under Rule 7(B) “should be to attempt to leaven the
outliers” and not to “achieve a perceived ‘correct’ result in each case.” Cardwell
v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). The defendant has the burden to
persuade us that his sentence is inappropriate. Anglemyer, 868 N.E.2d at 494.
[17] Youngblood asserts that his sentence is inappropriate in light of the nature of
the offenses because the trial court did not enter a sentencing statement. He
asserts that his sentence is inappropriate in light of his character because he has
no prior adult criminal record, he might respond well to probation or a short
term of incarceration, he grew up with little parental involvement, he
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voluntarily agreed to a waiver from the juvenile court to adult court, and he has
a history of mental illnesses.
[18] We cannot say that Youngblood’s aggregate six-year term is inappropriate in
light of the nature of the offenses. Youngblood physically molested his then-
twelve-year-old step-sister twice in a single night, progressing from touching her
breasts to later—and having already been caught touching her breasts—to her
vagina, and while he was touching her vagina he was simultaneously moving
his arm “up and down.” Tr. Vol. II at 53. Further, K.Q. was so afraid of
Youngblood, who carried knives around with him, that she urinated where she
was sleeping after the second incident.
[19] Neither is his sentence inappropriate in light of his character. While
Youngblood asserts that he has no prior adjudications or convictions against
him, the presentence investigation report states that he had been placed in the
custody of Kentucky’s Department of Juvenile Justice for three years, the
maximum time allowed by Kentucky law, on two counts of sexual abuse of a
victim under twelve years of age. He also has a prior Kentucky adjudication for
possession of marijuana. And, during the instant sentencing hearing, an
investigating officer testified that Youngblood had kept a swimsuit belonging to
K.Q. as a “trophy,” and that Youngblood had not only not taken responsibility
for his actions but had demonstrated behavior that suggested “[j]ust the
opposite.” Tr. Vol. III at 52-53. Youngblood’s aggregate term of six years is
not inappropriate in light of the nature of the offenses and his character. We
affirm his sentence.
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[20] Affirmed.
Mathias, J., and Barnes, J., concur.
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