William Sherman Wilder v. State of Indiana (mem. dec.) ( 2016 )

FILED
MEMORANDUM DECISION Jul 27 2016, 5:53 am
CLERK
Pursuant to Ind. Appellate Rule 65(D), this Indiana Supreme Court
Court of Appeals
Memorandum Decision shall not be regarded as and Tax Court
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
R. Patrick Magrath Gregory F. Zoeller
Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana
Madison, Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William Sherman Wilder, July 27, 2016
Appellant-Defendant, Court of Appeals Case No.
36A05-1512-CR-2278
v. Appeal from the Jackson Circuit
Court.
The Honorable Richard W. Poynter,
State of Indiana, Judge.
Appellee-Plaintiff. Cause No. 36C01-1410-FA-22
Darden, Senior Judge
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Statement of the Case
[1] William Sherman Wilder appeals his three convictions of child molesting, all
1
Class A felonies. He also appeals his sixty-five-year sentence. We affirm.
Issues
[2] Wilder raises two issues, which we restate as:
I. Whether there is sufficient evidence to sustain his
convictions.
II. Whether his sentence is inappropriate in light of the nature
of the offense and the character of the offender.
Facts and Procedural History
[3] On the night of December 31, 2013, thirteen-year-old A.B. sneaked out of her
home with her thirteen-year-old friend, Khloe Clark, to attend a party. Around
midnight, A.B. and Khloe arrived at an apartment in Seymour, Indiana.
[4] Several other people, including Wilder, were present. It is unclear whether this
was the first time A.B. had met Wilder. Vodka was provided to everyone,
including A.B., who became intoxicated. Khloe saw Wilder kissing A.B. at the
party during the evening. Later, Wilder took A.B. into a bedroom, where she
lay down on a bed. He closed the door, approached A.B., and took off her
1
Ind. Code § 35-42-4-3 (2007).
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shorts. Next, he took off his pants, climbed on A.B., and put his penis in her
vagina. After fifteen or twenty minutes, Wilder stopped and left the room.
[5] On another evening in January 2014, A.B. went to a trailer home in Seymour to
visit Lacie Thompson. Lacie’s mother and her mother’s boyfriend were also
present. A.B. and Lacie drank tequila, and A.B. became intoxicated. Wilder
arrived to visit Lacie’s mother. Later, Lacie’s mother announced she and Lacie
were going to the grocery store and asked Wilder to leave. He left the house
when Lacie and her mother left, but he returned five minutes later. Lacie’s
mother’s boyfriend was in a bedroom, but A.B. and Wilder were otherwise
alone.
[6] Wilder sat next to A.B. and touched her shoulder. She told him to “leave her
alone” and that “he wasn’t supposed to be there.” Sept. 1, 2015 Tr. p. 27.
Wilder responded, “Well, I’m here so what do you want to do?” Id. She said,
“Nothing.” Id. Despite A.B.’s objections, Wilder tried to remove her shirt.
She told him to “stop and leave me alone.” Id. at 28. A.B. also kept pushing
him away. Wilder forcibly removed the intoxicated girl’s clothes and fondled
her. A.B. did not call out for help because she felt “scared, trapped” and
thought Lacie’s mother’s boyfriend “probably would have thought it was my
fault.” Id. at 31.
[7] Next, Wilder pushed A.B. onto the couch, got on top of her, and put his penis
in her vagina. After five minutes, Wilder heard Lacie and her mother
returning, so he got up and ran out the back door of the trailer. A.B. tried to get
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dressed and told Lacie what happened. Lacie urged A.B. to tell Lacie’s mother,
but A.B. did not because she was scared.
[8] Later in January 2014, A.B. and Lacie were playing video games with Devin
Dunn in a bedroom at the same apartment where the New Year’s Eve party
had been held. Wilder occasionally stayed at the apartment, and he arrived
while the group was playing video games. A.B. stayed for the night, intending
to sleep on a futon. However, Wilder was already on the futon, and he refused
Lacie’s request to move. As a result, A.B. laid out some blankets on the floor
outside Lacie’s room. Everyone but Wilder and A.B. stayed in the bedroom,
playing video games.
[9] A.B. testified that she got up in the middle of the night and went to the
bathroom. Wilder was waiting for her when she left the bathroom and pulled
her over to the futon, where he laid her down. Next, Wilder tried to kiss A.B.,
but she pushed him away. Undeterred, Wilder pulled up her nightgown and
put his penis in her vagina. Sometime later, Dunn left Lacie’s bedroom and
saw the two of them. Dunn told Wilder to get off of A.B. and took her into the
bedroom. Wilder left, and A.B. called her mother to come pick her up.
[10] On January 25, 2014, Dallas Johnson agreed to drive A.B. to her brother’s
house. Wilder called Johnson, who was a relative of Wilder’s, and asked for a
ride to work. Johnson picked up Wilder, over A.B.’s objection. Next, Johnson
drove to a parking lot and stopped the truck. Sometime later, a police officer
saw the truck and approached to see if the occupants were stranded. A.B. told
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the officer the men knew her mother, but when the officer called A.B.’s mother,
she denied knowing the men. The officer drove A.B. to her mother’s
workplace. After A.B. left, Johnson asked Wilder whether he had sex with
A.B., and Wilder laughingly said yes.
[11] Later that same day, A.B.’s mother called the officer and asked her to come to
her house. A.B. was not present, and her mother showed the officer text
messages on A.B.’s phone. One of the messages was from Wilder, and he
instructed A.B. not to tell the police anything.
[12] An investigation by the police and the Department of Child Services ensued.
During the investigation, Wilder asked Johnson to give him an alibi by telling
the police that they had been together on December 31, 2013, during the time
when Wilder had been at the party. Johnson said he would not lie for Wilder.
[13] The State charged Wilder with three counts of Class A felony child molesting
and alleged that he was an habitual offender. While Wilder was incarcerated,
he wrote multiple letters asking acquaintances to give drugs to A.B. and, once
she was intoxicated, to make a video recording of her saying that she made up
the sexual assault allegations. In an undated letter to an unnamed recipient, he
wrote that A.B. “likes meth and weed” and said he would “repay every dime”
for purchasing the drugs to give A.B. October 5, 2015 Tr. Ex. 1. Wilder further
wrote, “Bribe, lie, threat, cheat, manipulate, etc. . . . I don’t care.” Id.
[14] Apparently, Wilder had asked his acquaintance Marvin Perry to obtain a video
recording of A.B. stating that she had lied about Wilder but was unable to
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convince him to follow through. In a May 12, 2015 letter to Johnson, Wilder
wrote, “I don’t feel at least [sic] bit sorry for what is and will happen to Marvin.
He had his chance to go to [A.B.] and get her to do the video I been [sic] talking
about.” Id.
[15] In a June 29, 2015 letter to Johnson, Wilder stated he needed “someone sneaky
enuff [sic] to go to [A.B.] and get her to amitt [sic] on video that it was all a lie
and that nothing happened. And if someone can get it on video of [A.B.] drink
[sic] or doing drugs that would play in my favor.” Id. Wilder also wrote, “If
you know someone that will get the videos of [A.B.] I could be out before the
end of July.” Id.
[16] In a July 8, 2015 letter to Johnson, Wilder asked him to “find someone to go
get the videos I asked for. Proof of [A.B.] dranking [sic], doing drugs, and
partying will also be a big help on my behalf. The more info you or anyone else
can get will help make me look better and make her look more like the P.O.S.
lier [sic] that she is.” Id. Wilder further stated, “If you got what I asked for I
would buy a place were [sic] you could live rent free. You kinda would be
working for me for rent.” Id.
[17] In later letters to Johnson, dated August 12 and August 13, 2015, Wilder
mentioned a jailhouse acquaintance named Bobby that would be released soon
and had promised to get “the videos of [A.B.] to fully clear [Wilder’s] name.”
Id. Nevertheless, he again asked Johnson to have Perry get a video of [A.B.]
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“saying that nothing never [sic] happened” and deliver copies of the video to
the judge, the prosecutor, and his lawyer. Id.
[18] A.B. experienced substantial psychological trauma as a result of Wilder’s sexual
assaults. She has received psychiatric treatment from inpatient and outpatient
facilities. In addition, she has been prescribed medicine to address “depression,
anxiety, suicidal thoughts.” October 5, 2015 Tr. p. 31.
[19] Wilder waived his right to a trial by jury. The trial court held a bifurcated
bench trial. The court first heard evidence on the three child molesting charges
and determined Wilder was guilty as charged. Next, the trial court heard
evidence on the habitual offender sentencing enhancement and concluded that
Wilder was an habitual offender. Later, the court imposed a sixty-five-year
sentence. Wilder now appeals.
Discussion and Decision
1. Sufficiency of the Evidence
[20] Wilder argues his convictions are based solely on A.B.’s testimony, which he
characterizes as inconsistent and contradicted by other evidence. In response,
the State asserts A.B.’s testimony should not be discounted and is sufficient to
support Wilder’s convictions.
[21] In addressing a claim of insufficient evidence, an appellate court must consider
only the probative evidence and reasonable inferences supporting the judgment,
without weighing evidence or assessing witness credibility, and determine
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therefrom whether a reasonable trier of fact could have found the defendant
guilty beyond a reasonable doubt. Turner v. State, 953 N.E.2d 1039, 1059 (Ind.
2011). A conviction for child molesting may rest solely upon the
uncorroborated testimony of the victim. Rose v. State, 36 N.E.3d 1055, 1061
(Ind. Ct. App. 2015).
[22] Appellate courts may, however, apply the “incredible dubiosity” rule to
impinge upon a fact finder’s function to assess the credibility of a witness.
Turner, 953 N.E.2d at 1059. If a sole witness presents inherently improbable
testimony and there is a complete lack of circumstantial evidence, a defendant’s
conviction may be reversed. Love v. State, 761 N.E.2d 806, 810 (Ind. 2002).
The fact that the victim may have made inconsistent statements does not make
his or her trial testimony inherently improbable. Newsome v. State, 686 N.E.2d
868, 875 (Ind. Ct. App. 1997).
[23] We further note that Wilder waived his right to a trial by jury and submitted his
case to the trial judge for a decision. Trial judges are presumed to know the
law, to apply the law to the facts and, in general, are able to weigh the impact of
inconsistencies on a witness’s testimony. See Leggs v. State, 966 N.E.2d 204, 208
(Ind. Ct. App. 2012) (“We presume the judge knows and will follow the
applicable law.”).
[24] To convict Wilder of child molesting as a Class A felony, the State was required
to prove beyond a reasonable doubt that Wilder (1) a person at least twenty-one
years of age (2) performed or submitted to sexual intercourse or deviate sexual
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conduct (3) with A.B. (4) a child under fourteen years of age. Ind. Code § 35-
42-4-3.
[25] Here, A.B. testified unequivocally that on three occasions, Wilder, who was
older than twenty-one years of age, sexually assaulted her by forcing her to
submit to sexual intercourse when she was thirteen years of age. Parts of her
testimony were corroborated by other evidence. Specifically, Wilder admitted
to Johnson that he had sex with A.B. He also asked Johnson to give him a false
alibi for the night of December 31, 2013. In addition, on December 31, 2013,
Khloe saw Wilder kissing A.B. during the party. Finally, A.B.’s mother
showed a police officer Wilder’s text message to A.B. instructing her to tell the
police nothing. Based on the corroborating evidence, the incredible dubiosity
rule does not apply to this case. See Carter v. State, 44 N.E.3d 47, 54 (Ind. Ct.
App. 2015) (declining to determine the rape victim’s testimony was incredibly
dubious because her testimony was supported by circumstantial evidence,
including defendant’s admission to having sexual contact with the victim).
[26] Wilder points to apparently conflicting testimony about the December 31, 2013
party. Specifically, A.B. testified that Wilder took her into a bedroom and
sexually assaulted her. By contrast, Devin Dunn testified that during the night
he went to the kitchen to get a beer, and as he passed through the living room
he saw A.B. and Wilder by themselves. While he was in the kitchen, Wilder
called out to him to stay in the kitchen for a minute. Dunn sat in the kitchen,
drinking beer, and heard the sounds of people having sex in the living room.
Later, Wilder came into the kitchen and told Dunn he was free to go. Dunn
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walked through the living room, and A.B. was the only one there. Further,
Khloe Clark testified that during the night she went into the living room and
saw A.B. laying on the floor naked, and Wilder was also present. Dunn and
Clark’s testimony tends to corroborate that Wilder had sex with A.B. Any
discrepancies as to time and location were for the finder of fact to resolve. See
Baber v. State, 870 N.E.2d 487, 490 (Ind. Ct. App. 2007) (finder of fact was in
the best position to determine whether defendant could have molested the
victim as described by the victim), trans. denied. The evidence is sufficient to
sustain Wilder’s three convictions for child molestation.
2. Appropriateness of Sentence
[27] Wilder asks the Court to reduce his sentence to forty years. The State contends
Wilder’s sentence is justifiable under the circumstances of the case and Wilder’s
character.
[28] Article 7, section 6 of the Constitution of the State of Indiana authorizes the
Court to review and revise sentences. This authority is implemented through
Indiana Appellate Rule 7(B), which permits the Court to revise a sentence “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.”
[29] The principal purpose of sentencing review under Appellate Rule 7(B) is to level
the outliers, not to achieve a perceived “correct” result in each case. Rose, 36
N.E.3d at 1063. Our inquiry focuses on the defendant’s aggregate sentence,
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rather than the number of counts, the length of the sentence on any individual
count, or whether any sentences are concurrent or consecutive. Remy v. State,
17 N.E.3d 396, 401-402 (Ind. Ct. App. 2014), trans. denied. Whether a sentence
is inappropriate turns on the culpability of the defendant, the severity of the
crime, any damage done to others, and a myriad of other factors that come to
light in a given case. Bratcher v. State, 999 N.E.2d 864, 870 (Ind. Ct. App.
2013), trans. denied. It is the defendant’s burden to persuade the reviewing court
that the sentence is inappropriate. Remy, 17 N.E.3d at 402.
[30] At the time Wilder committed his offenses, a Class A felony was punishable by
a maximum sentence of fifty years, a minimum sentence of twenty years, and
an advisory sentence of thirty years. Ind. Code § 35-50-2-4(a) (2014). In
addition, a person found to be a habitual offender could be sentenced to a fixed
term that was not less than the advisory sentence for the underlying offense nor
more than three times the advisory sentence for the underlying offense, and in
no case could exceed thirty years. Ind. Code § 35-50-2-8 (2005). The trial court
sentenced Wilder to concurrent thirty-five year terms for each Class A felony
conviction, enhanced by thirty years for the habitual offender determination, for
an aggregate sentence of sixty-five years.
[31] Beginning with the nature of the offenses, Wilder had sexual intercourse with a
thirteen-year-old on three separate days and occasions within the timespan of
two months. On the first two occasions, A.B. was incapacitated due to
intoxication and was thus especially vulnerable. On the night of December 31,
2013, Wilder and A.B. were together for several hours before he sexually
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molested her. He had ample opportunity to leave the incapacitated child alone,
but he instead chose to prey on her. As for the second and third sexual
molestations, Wilder could have desisted after the December 31, 2013
molestation, but he chose to persist in his highly illegal conduct despite her
physical and verbal resistance. He later texted A.B. to instruct her not to tell the
police anything, which frightened A.B.
[32] Wilder inflicted severe emotional harm upon A.B., causing her to develop
anxiety, depression, and suicidal thoughts to the point that she required
inpatient and outpatient psychiatric treatment and medication. In addition,
after Wilder was arrested, he undertook an extensive campaign to persuade
others to malign and further harm thirteen-year-old A.B. by getting her high on
illegal drugs and, once she was impaired, to get her to recant her allegations
while being recorded.
[33] Turning to the character of the offender, Wilder, who was thirty-four years old
at his sentencing hearing, has a lengthy criminal history. His habitual offender
determination was based on a 1999 conviction for child molesting, a Class C
felony, and a 2009 conviction for failure to register as a sex offender, a Class D
felony. In addition, Wilder has fifteen misdemeanor convictions for offenses
including failure to register as a sex offender, false informing, battery, criminal
trespass, conversion, driving while suspended, and disorderly conduct. He
accrued his convictions at a rate of one or two every few years, demonstrating
an unwillingness to comply with the law for any period of time. Wilder also
violated the terms of probation on two prior occasions.
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[34] Further, while Wilder was incarcerated and this case was pending, he arguably
engaged in additional criminal conduct by attempting to recruit others to give a
minor, A.B., controlled substances and record her in an impaired state. Wilder
has failed to demonstrate that his sentence is inappropriate.
Conclusion
[35] For the reasons stated above, we affirm the judgment of the trial court.
[36] Affirmed.
Riley, J., and Barnes, J., concur.
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