Manuel Lloyd Jamersen v. State of Indiana ( 2013 )

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
FILED
Feb 11 2013, 9:36 am
court except for the purpose of
establishing the defense of res judicata, CLERK
collateral estoppel, or the law of the case. of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
THOMAS W. VANES GREGORY F. ZOELLER
Crown Point, Indiana Attorney General of Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MANUEL LLOYD JAMERSEN, )
)
Appellant-Defendant, )
)
vs. ) No. 45A03-1206-CR-257
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Salvador Vasquez, Judge
Cause No. 45G01-1010-FA-36
February 11, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Manuel Lloyd Jamersen (Jamersen), appeals his sentence
for Count I, child molesting, a Class A felony, Ind. Code § 35-42-4-3(a); and Count II,
attempted child molesting, a Class A felony, I.C. §§ 35-42-4-3, -41-5-1.
We affirm.
ISSUE
Jamersen raises one issue on appeal, which we restate as: Whether the trial court
abused its discretion in sentencing him.
FACTS AND PROCEDURAL HISTORY
Between December 1, 2009 and July 28, 2010, Jamersen lived with thirteen-year-
old M.F., her mother, and other family members in a building in Gary, Indiana. Over the
course of eight months, Jamersen molested M.F. numerous times with the incidents
taking place in the basement, Jamersen’s bedroom, and throughout the house. Jamersen
engaged in fondling, touching, and oral sex with M.F. Jamersen told M.F. that she was
his girlfriend and threatened to put her mother in jail if M.F. informed her of their
activities. On July 30, 2010, M.F.’s mother contacted the Gary Police Department, which
began investigating. Jamersen was arrested thereafter in Cook County, Illinois and
extradited to Indiana.
On October 22, 2011, the State filed an Information charging Jamersen with Count
I, child molesting, a Class A felony, I.C. § 35-42-4-3(a); Count II, attempted child
molesting, a Class A felony, I.C. §§ 35-42-4-3(a), -41-5-1; and Count III, child
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molesting, a Class C felony, I.C. § 35-42-4-3(b). On April 9, 2012, Jamersen pled guilty
to all Counts without a plea agreement before a magistrate. Jamersen’s counsel
announced that the factual basis for the plea would be established orally and the
magistrate suggested that the probable cause affidavit be used. Jamersen’s counsel
recited portions of the plea agreement which Jamersen affirmed.
Jamersen admitted many of the allegations his counsel read or summarized from
the plea agreement but denied others. Specifically, he denied that he told M.F. not to tell
her mother, that he inserted his finger into M.F.’s vagina, that he told M.F. that he did not
want to engage in intercourse so as to avoid leaving evidence, and that he ejaculated in
M.F.’s mouth. However, at the conclusion of the guilty plea hearing, the magistrate
confirmed the factual basis with Jamersen as follows:
[TRIAL COURT]: Just for the record then, too, in terms of the factual
basis, what I understood you to say, Mr. Jamersen, correct me if I’m wrong,
that you were affirming everything that was in the probable cause affidavit
except for the fact that you never threated or you didn’t in any way try to
threaten [M.F.’s] mother with going to jail if [M.F.] told, right? You never
did that?
[JAMERSEN’S COUNSEL]: You have to speak out loud.
[JAMERSEN]: No. I’m sorry. No, your Honor.
[TRIAL COURT]: Okay. And you never stuck your fingers up inside her;
is that right?
[JAMERSEN]: No, I did not.
[TRIAL COURT]: Okay. Those are the only two things you disputed in
the probable cause affidavit?
[JAMERSEN]: Exactly.
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[TRIAL COURT]: Is that right?
[JAMERSEN]: Yes, your Honor.
[TRIAL COURT]: You are both agreeing?
[JAMERSEN]: Yes, your Honor.
[JAMERSEN’S COUNSEL]: Yes.
[STATE]: Yes, your Honor.
(Plea Transcript. pp. 23-24).
On May 3, 2012, the trial court held a sentencing hearing. Jamersen’s counsel
argued that Counts II and III should merge with Count I. While the trial court agreed that
Count III would merge into Count I, it indicated it would enter judgment on Count II.
During the discussion, the following exchange occurred:
[STATE]: I think the attempted [child molesting, Count II] stands on its
own, based on the facts and the [p]robable [c]ause [a]ffidavit, which he has
adopted as his stipulated factual basis for this plea.
[TRIAL COURT]: My note from the magistrate indicates that he denied
digital penetration.
[* * * ]
[JAMERSEN’S COUNSEL]: Yes, he did.
[TRIAL COURT]: My understanding – and I spoke with Magistrate
Sullivan this morning – of the oral factual basis is that the [p]robable
[c]ause [a]ffidavit was read. And essentially discussion went to Jamersen
and said, “[d]o you agree with what’s been read,” essentially. And he
disagreed with two aspects. One was the […] statement to the mother that
the mother would go – the statement to the child that the mother would go
to jail if she told anyone. Jamersen denied that.
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The second was the […] digital penetration, the finger penetration.
And Jamersen denied that as well. And that’s all I have. Everything else
was consistent and Mr. Jamersen remained consistent with the [p]robable
[c]ause [a]ffidavit. That’s my understanding of what took place at the
change of plea. […].
[JAMERSEN’S COUNSEL]: That is correct, your Honor.
(Sentencing Tr. pp. 6-7). The trial court later found Jamersen had manipulated M.F., a
troubled girl who had been significantly damaged by Jamersen’s acts. The court also
found that Jamersen abused a position of trust over the thirteen year old M.F. The 55
year old Jamersen, who resided in the same house as a “live-in tenant or guest” and
looked over M.F. when her mother was away, “took advantage” of her. (Sent. Tr. p. 33).
The trial court found as a mitigator that Jamersen pled to the charges but nevertheless
concluded that the aggravators clearly outweighed the mitigator. It sentenced Jamersen
to the Department of Correction for forty years on Count I and twenty years on Count II.
Count III was merged into Count I and both Counts I and II were ordered to run
consecutively, resulting in an aggregate sentence of sixty years.
Jamersen now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
Jamersen argues that the trial court abused its discretion when it sentenced him.
Sentencing decisions rest with the sound discretion of the trial court and those decisions
are generally reviewed upon appeal for an abuse of that discretion. Anglemyer v. State,
868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). An
abuse of discretion will be found where the decision is clearly against the logic and effect
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of the facts and circumstances before the court or the reasonable, probable, and actual
deductions to be drawn therefrom. Id. One way that the trial court may abuse its
discretion is by finding a factor in aggravation that is otherwise unsupported by the
record. Id. When reviewing the sufficiency of a sentencing statement, we examine both
the trial court’s written and oral statements. Gleason v. State, 965 N.E.2d 702, 710 (Ind.
Ct. App. 2012).
In both its written and oral sentencing statements, the trial court found the
following six aggravating factors: (1) Jamersen’s criminal history, which included felony
and misdemeanor convictions; (2) Jamersen’s age of 55, his residence with M.F. and her
family, and the supervisory position over M.F. when her mother was not at home; (3)
Jamersen had molested M.F. over a ten month period, during which deviate sexual
conduct and attempted deviate sexual conduct occurred; (4) the emotional impact of his
conduct upon M.F. and her mother; (5) Jamersen’s acts were calculated to conceal his
crimes; and (6) Jamersen’s character was deceptive and manipulative.
Jamersen’s sole challenge to his sentence is that a single aggravating factor
identified by the trial court is unsupported by the evidence. Jamersen references his plea
hearing before the magistrate during which he denied telling M.F. that he abstained from
intercourse with her in order to avoid leaving evidence. He claims that the trial court
later improperly relied on this circumstance by aggravating his sentence based upon its
conclusion that Jamersen’s acts were calculated to conceal evidence of his crimes and
that his character was deceptive and manipulative. This argument is unavailing.
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When establishing the factual basis for Jamersen’s plea, the magistrate expressly
sought Jamersen’s confirmation that he contested only two facts: digital penetration and
threatening to send M.F.’s mother to jail if M.F. revealed his crimes. Jamersen concedes
that neither he nor his counsel objected or attempted to repeat his prior denials. Thus,
Jamersen cannot now argue that he denied telling M.F. that he abstained from intercourse
to avoid leaving evidence. The trial court could and did find this as evidence of a
calculated attempt to conceal Jamersen’s crimes and indicative of a deceptive and
manipulative character.
Even if we were to conclude otherwise, reversal would not be required. The trial
court need only find one aggravating factor before exercising its discretion to enhance a
sentence. See Smith v. State, 908 N.E.2d 1251, 1253 (Ind. Ct. App. 2009). Jamersen
does not challenge the trial court’s finding that he held a position of supervision over
M.F. Nor does he contest other evidence supporting a finding that he molested M.F. in a
manner calculated to hide his offenses such as by secluding M.F. and molesting her away
from other occupants in the house. Given these remaining aggravating factors found by
the trial court, we can say with confidence that the trial court would have imposed the
same sentence. See Anglemyer, 868 N.E.2d at 491.
CONCLUSION
Based on the foregoing, we conclude that the trial court did not abuse its discretion
when sentencing Jamersen.
Affirmed.
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BAKER, J. and BARNES, J. concur
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