Dwayne Carter v. State of Indiana ( 2014 )


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  • Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be
    regarded as precedent or cited before any             Dec 05 2014, 9:45 am
    court except for the purpose of
    establishing the defense of res judicata,
    collateral estoppel, or the law of the case.
    ATTORNEYS FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:
    HEATH Y. JOHNSON                                  GREGORY F. ZOELLER
    SUZY ST. JOHN                                     Attorney General of Indiana
    JOHNSON, GRAY & MACABEE
    Franklin, Indiana                                 CYNTHIA L. PLOUGHE
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    DWAYNE CARTER,                                    )
    )
    Appellant-Defendant,                       )
    )
    vs.                                )       No. 41A01-1401-CR-3
    )
    STATE OF INDIANA,                                 )
    )
    Appellee-Plaintiff.                        )
    APPEAL FROM THE JOHNSON SUPERIOR COURT
    The Honorable Cynthia Emkes, Judge
    Cause No. 41D02-1207-FA-6
    December 5, 2014
    MEMORANDUM DECISION - NOT FOR PUBLICATION
    MAY, Judge
    Dwayne Carter appeals his conviction of and sentence for two counts of Class A
    felony child molesting,1 two counts of Class B felony sexual misconduct with a minor,2 two
    counts of Class D felony dissemination of matter harmful to minors,3 and one count of Class
    D felony possession of child pornography.4 Carter presents two issues for our review:
    1. Whether the trial court abused its discretion when sentencing him; and
    2. Whether his 100-year sentence is inappropriate in light of his character and the nature
    of his offense.
    We affirm.
    FACTS AND PROCEDURAL HISTORY
    Carter was a long-term friend of J.M.’s family. During the summer of 2007, when
    J.M. was fourteen years old, J.M. moved in with his grandmother and began visiting Carter
    and mowing Carter’s lawn. After a few visits, Carter gave J.M. a back rub and then began to
    rub J.M.’s buttocks and perform oral sex on J.M. Thereafter, J.M. visited Carter and spent
    the night at Carter’s house. Carter engaged in sexual activity with J.M. every time J.M.
    visited him. On some occasions, they watched pornography together.
    At one point, when J.M.’s family was going through a rough time, Carter and J.M.’s
    mother agreed J.M. would live with Carter, in order to provide structure and a male role
    model. Carter continued to engage J.M. in sexual activity. After J.M. started dating a girl
    1
    Ind. Code § 35-42-4-3(a)(1) (2012).
    2
    Ind. Code § 35-42-4-9(a)(1) (2012).
    3
    Ind. Code § 35-49-3-3(a)(1) (2012).
    4
    Ind. Code § 35-42-4-4(c) (2012).
    2
    during his sophomore year of high school and moved out of Carter’s home, the sexual
    encounters stopped - largely due to the fact that J.M. would visit Carter only if he had
    someone with him, in order to ensure he was never alone with Carter.
    In 2010, Carter offered to take J.M.’s younger brother, H.M., fishing and swimming.
    H.M. was eleven or twelve years old at the time. Carter repeatedly told H.M. that “he had a
    porno that he was going to put in that night.” (Tr. at 121.) Once Carter started the
    pornographic movie, he proceeded with H.M. as he had with J.M. - by rubbing H.M.’s legs
    and then his buttocks. The next morning H.M. woke up to Carter performing oral sex on
    him. However, H.M. was scared and pretended to still be asleep. Eventually, Carter stopped.
    Carter had made H.M. aware that he had a gun, and H.M. was afraid that Carter would use it
    on him; however, there is no evidence that Carter actually threatened him. H.M. did return to
    spend the night at Carter’s home several times over the next two years. On those occasions,
    Carter would play pornographic movies or require H.M. to pick one for them to watch.
    Carter also showed H.M. pornographic playing cards and magazines. Carter displayed
    pornographic material and performed oral sex on H.M. once or twice a month from the
    summer of 2010 until the summer of 2012. Additionally, Carter and H.M. exchanged
    pictures of their genitals on their cell phones.
    In 2012, J.M., his girlfriend, and their child moved in with Carter. J.M. saw a text
    message from his younger brother on Carter’s cell phone. The text contained a picture of
    H.M.’s genital area. J.M. then informed the police.
    The State charged Carter with two counts of Class A felony child molesting, two
    3
    counts of Class B felony sexual misconduct with a minor, two counts of Class D felony
    dissemination of matter harmful to minors, and one count of Class D felony possession of
    child pornography. A jury found Carter guilty of all seven charged counts. At his
    sentencing, the judge found seven aggravating factors: Carter has a criminal record, Carter
    did more harm than necessary to commit the crime, Carter committed multiple offenses over
    a time period, H.M. was under fourteen, Carter violated a position of trust, Carter used
    pornography to lure his victims, and Carter is at risk to re-offend. The court also found two
    mitigating factors: Carter had kept stable employment, and Carter had the support of his
    family. The court then decided the aggravating factors outweighed the mitigators and
    ordered two thirty-five year sentences to be served consecutively,5 two fifteen-year sentences
    to be served consecutive to one another and to the two thirty-five year sentences,6 and three
    three-year sentences to be served concurrent with all other sentences.7 His aggregate
    sentence is one hundred years.
    DISCUSSION AND DECISION
    1.       Abuse of Discretion
    Carter claims the court abused its discretion in finding three of the court’s seven
    aggravating factors. Sentencing is principally a discretionary function in which the trial
    court’s judgment should receive considerable deference. Cardwell v. State, 
    895 N.E.2d 5
      The advisory sentence for Class A felony child molest is thirty years, with a range of twenty to forty years.
    Ind. Code § 35-50-2-4.
    6
    The advisory sentence for Class B felony sexual misconduct with a minor is ten years, with a range of three to
    sixteen years. Ind. Code § 35-50-2-5.
    7
    The advisory sentence for Class D felony possession of child pornography is one and one-half years, with a
    range of six months to three years. Ind. Code § 35-50-2-7.
    4
    1219, 1222 (Ind. 2008). A trial court may impose any sentence within the allowable range
    for a given crime without a requirement to identify specific aggravating or mitigating
    circumstances. 
    Id. The trial
    court must enter a statement including reasonably detailed
    reasons or circumstances for imposing a particular sentence. 
    Id. The reasons
    given are
    reviewable on appeal for abuse of discretion. 
    Id. The relative
    weight or value assignable to
    reasons properly found, or those which should have been found, is not subject to review for
    abuse. 
    Id. Carter contends
    two of the court’s aggravators were material elements of his crimes.
    A trial court may not use the very elements of the crime as aggravators to enhance a sentence
    unless the circumstances are very egregious. See Edrington v. State, 
    909 N.E.2d 1093
    , 1097
    (Ind. Ct. App. 2009) (using victim’s age as aggravator is not appropriate unless victim is
    particularly young), trans. denied. The trial court cited the use of pornography and the ages
    of J.M. and H.M. (fourteen to sixteen years old and twelve to fourteen years old,
    respectively) during the times the molestations occurred. We agree with Carter that the court
    should not have included these elements of his crimes as aggravators.
    As for the third alleged erroneous aggravator, Carter asserts that, because he was
    declared a sexually violent predator, see Ind. Code § 35-38-1-7.5(b) (“A person who: (1)
    being at least eighteen (18) years of age, commits an offense described in: . . . IC 35-42-4-3
    as a class A or class B felony . . . is a sexually violent predator.”), the court could not cite the
    risk that he would reoffend as an aggravator. We disagree. The finding that Carter is a
    statutory SVP was neither an element of the crimes of which he was convicted, nor used to
    5
    enhance the length of his sentences; rather, that finding results in a requirement that Carter
    register as an SVP after he is released from prison. See Ind. Code § 35-38-1-7.5(f). As such,
    Carter has not demonstrated the trial court abused its discretion in finding an aggravator in
    his high risk of committing additional molestations in the future. See Ind. Code § 35-38-1-
    7.1(c) (“The criteria listed in subsections (a) and (b) do not limit the matters that the court
    may consider in determining the sentence.”).
    Although the court should not have listed two of the seven aggravators, the court
    placed a great deal of weight on the fact that Carter was in a position of trust with these
    children and had committed these acts over a period of many years: “these were crimes that
    occurred over multiple years with multiples [sic] victims with sufficient time to stop and
    reflect . . . the victims were under the care of the defendant. . . . I don’t really think it’s a
    close call in this case.” (Tr. at 367-68.) In light of the remaining aggravators, we are left
    without doubt the court would have imposed the same sentences even had it not found
    improper aggravators. See, e.g., 
    Edrington, 909 N.E.2d at 1101
    (“In light of the minimal
    weight the sentencing court assigned to the mitigators and the importance it assigned to the
    “position of care” aggravator, we can say with confidence the trial court would have imposed
    the same sentence even if it had not considered the improper aggravator . . . .”), trans. denied.
    Accordingly, we hold the trial court did not abuse its discretion when it sentenced Carter.
    2.     Inappropriate Sentence
    Carter also claims his one-hundred-year sentence is inappropriate.
    We “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
    6
    light of the nature of the offense and the character of the offender.” Ind.
    Appellate Rule 7(B). “Although appellate review of sentences must give due
    consideration to the trial court’s sentence because of the special expertise of
    the trial bench in making sentencing decisions, Appellate Rule 7(B) is an
    authorization to revise sentences when certain broad conditions are satisfied.”
    Shouse v. State, 
    849 N.E.2d 650
    , 660 (Ind. Ct. App. 2006), trans. denied
    (citations and quotation marks omitted). “[W]hether we regard a sentence as
    appropriate at the end of the day turns on our sense of 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). In addition to the “due consideration” we are required
    to give to the trial court’s sentencing decision, “we understand and recognize
    the unique perspective a trial court brings to its sentencing decisions.”
    Rutherford v. State, 
    866 N.E.2d 867
    , 873 (Ind. Ct. App. 2007).
    Couch v. State, 
    977 N.E.2d 1013
    , 1017 (Ind. Ct. App. 2012), reh’g denied, trans. denied.
    The appellant bears the burden of demonstrating his sentence is inappropriate. Amalfitano v.
    State, 
    956 N.E.2d 208
    , 212 (Ind. Ct. App. 2011), trans. denied.
    As to his character, Carter asserts that he has had stable employment, he has family
    support, his prior criminal history is not related to the current conviction, and he is not likely
    to reoffend. The court took into consideration the fact of Carter’s employment and did not
    place substantial weight on Carter’s prior criminal history. However, the Court disagreed as
    to his likelihood to reoffend. The court found “[t]here was enough time to stop and take
    responsibility for what happen [sic] and perhaps turn yourself in, but that didn’t stop [you].”
    (Tr. at 367.) The court also was unable to find that Carter “has much humanity” when he
    breached the position of trust that he had with the boys. (Id. at 370). We agree with the trial
    court and find that Carter’s exploitation of his position of trust does not speak well of his
    character. Further, Carter’s long-term grooming and molestation of these children reveal his
    7
    predatory nature.
    As to the nature of the offenses, Carter “acknowledges the fact of two victims and
    repeated violations over a long period warrant enhanced and consecutive sentences.”
    (Appellant’s Br. at 16.) We agree. See, e.g., 
    Couch, 977 N.E.2d at 1018
    (ninety-one year
    sentence found to be appropriate when criminal activity occurred over a lengthy time period).
    Carter’s offenses were of a nature to warrant an enhancement of his sentence. His
    character is such that he was able to reconcile harming two brothers over a lengthy period of
    time.   Carter has not demonstrated his one-hundred-year sentence is inappropriate.
    Accordingly, we affirm.
    Affirmed.
    VAIDIK, C.J., and FRIEDLANDER, J., concur.
    8
    

Document Info

Docket Number: 41A01-1401-CR-3

Filed Date: 12/5/2014

Precedential Status: Non-Precedential

Modified Date: 4/17/2021