Franklin E. Lee v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 03 2020, 8:49 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana
Madison, Indiana
Myriam Serrano
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Franklin E. Lee, August 3, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-113
v. Appeal from the Jackson Circuit
Court
State of Indiana, The Honorable Richard W.
Appellee-Plaintiff. Poynter, Judge
Trial Court Cause No.
36C01-1804-F1-2
Bradford, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020 Page 1 of 12
Case Summary
[1] In April of 2018, Franklin E. Lee molested his then-ten-year old step-
granddaughter. After a jury found him guilty of Level 1 felony child molesting,
he was sentenced to thirty-five years of incarceration. On appeal, Lee
challenges the sufficiency of the evidence to sustain his conviction and the
appropriateness of his sentence. We affirm.
Facts and Procedural History
[2] In April of 2018, M.D. and her sisters resided in a home with their
grandmother, Karen Lee, and step-grandfather, Lee. M.D. was ten years old.
Lee was thirty-nine years old.
[3] On April 17, 2018, Karen left M.D. and her sisters in Lee’s care overnight.
M.D. observed Lee consume four beers over the course of the evening. At
some point, Lee fell asleep and M.D. and her sisters were unable to rouse him
before they went upstairs to get ready for bed. M.D. was awoken later that
night when she “felt someone kind of touching [her] leg,” moving their hand
“down [her] leg.” Trial Tr. Vol. II pp. 143, 144. Although M.D. did not see
Lee, she believed that it was he who had touched her. M.D. went back to sleep
after the touching stopped.
[4] Sometime later, Lee knocked on M.D.’s bedroom door “asking if [she] was
awake.” Trial Tr. Vol. II p. 145. He then asked her “if [she] wanted to go
downstairs” to the patio. Trial Tr. Vol. II p. 146. M.D. accompanied Lee
Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020 Page 2 of 12
outside and they sat together on a chair on the patio. Lee invited M.D. to sit on
his lap, which she did. Once M.D. was on his lap, Lee “started touching”
M.D.’s vagina, which M.D. referred to as her “pee area”. Trial Tr. Vol. II p.
147. Lee’s hand was placed under both M.D.’s pajamas and underwear. While
touching M.D., Lee instructed her to “look at the sky,” commenting on “how
pretty it was.” Trial Tr. Vol. II p. 148. Lee left his hand on M.D.’s vagina for
“like two (2) minutes.” Trial Tr. Vol. II p. 148. Lee and M.D. then went back
inside.
[5] Once inside, Lee invited M.D. to go into his bedroom. M.D. went into the
bedroom and lay down on the bed. Lee lay down next to M.D. and again
touched her vagina under her clothes. Lee’s fingers were “just outside the hole”
where girls “pee out of.” Trial Tr. Vol. II pp. 152, 151. Lee left his hand on
M.D.’s vagina for “like two (2) minutes.” Trial Tr. Vol. II p. 152. After Lee
removed his hand, M.D. briefly fell asleep. M.D. was awoken by Lee
“touching [her] butt” cheek under her clothes. Trial Tr. Vol. II p. 152. She
briefly fell back asleep after Lee removed his hand. M.D. was briefly awoken a
short time later by Lee again touching her vagina under her clothes.
[6] M.D. was again awoken when Lee “asked if he could do one more thing.”
Trial Tr. Vol. II p. 153. He “proceeded to ask [M.D.] to take off [her] pants and
then [when she] didn’t really do it, he just kind of took them off, [and] told [her]
to raise [her] butt.” Trial Tr. Vol. II p. 153. Lee then “opened” M.D.’s legs
“like a double door” and started licking her vagina with his tongue. Trial Tr.
Vol. II p. 154. Lee told M.D. “that everything was going to be okay” after she
Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020 Page 3 of 12
asked him to stop. Trial Tr. Vol. II p. 155. Lee continued licking M.D.’s
vagina for “[t]wo (2) or three (3) minutes.” Trial Tr. Vol. II p. 156. After Lee
stopped, M.D. went to the bathroom and “tried to kind of like clean out” her
vagina, which was “wet” from Lee’s “spit.” Trial Tr. Vol. II p. 156. After
finishing in the bathroom, M.D. went back upstairs to her bedroom. M.D.
went back to sleep but was again awoken by Lee, who told her that “he was
going to shoot himself and how much he hated himself.” Trial Tr. Vol. II p.
157.
[7] The next morning, before taking M.D. and her sisters to school, Lee twice
asked M.D. if she “was ok” and stated that he hoped she would not tell anyone.
Trial Tr. Vol. II p. 159. M.D. did tell some, reporting Lee’s actions to the
school librarian, who then reported the incident to the Department of Child
Services (“DCS”). Later that afternoon, DCS informed Karen. Karen
confronted Lee. At first Lee denied any wrongdoing. Eventually, however,
Lee admitted that he had “rubbed” M.D.’s vagina and “bottom.” Trial Tr. Vol.
II p. 181. Lee claimed to have been asleep when he touched M.D. When
Karen asked Lee “how he could do something like that,” Lee responded that
“[h]e was sorry and he was going to go to Hell for what he had done.” Trial Tr.
Vol. II p. 181. Lee later texted Karen, telling her that he was sorry and asking
whether Karen had contacted the police. During a subsequent interview at the
Child Advocacy Center, M.D. revealed that Lee’s tongue had manipulated her
vaginal opening.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020 Page 4 of 12
[8] On April 30, 2018, the State charged Lee with one count of Level 1 felony child
molesting. A two-day jury trial commenced on October 8, 2019. Lee
absconded following the first day of trial. The jury returned a guilty verdict on
October 9, 2019, and Lee was located and arrested in Louisville, Kentucky, a
few days later. The trial court subsequently sentenced Lee to thirty-five years of
incarceration.
Discussion and Decision
I. Sufficiency of the Evidence
[9] Lee contends that the State produced insufficient evidence to sustain his
conviction.
When reviewing the sufficiency of the evidence to support a
conviction, appellate courts must consider only the probative
evidence and reasonable inferences supporting the verdict. It is
the fact-finder’s role, not that of appellate courts, to assess
witness credibility and weigh the evidence to determine whether
it is sufficient to support a conviction. To preserve this structure,
when appellate courts are confronted with conflicting evidence,
they must consider it most favorably to the trial court’s ruling.
Appellate courts affirm the conviction unless no reasonable fact-
finder could find the elements of the crime proven beyond a
reasonable doubt. It is therefore not necessary that the evidence
overcome every reasonable hypothesis of innocence. The
evidence is sufficient if an inference may reasonably be drawn
from it to support the verdict.
Drane v. State, 867 N.E.2d 144, 146–47 (Ind. 2007) (citations, emphasis, and
quotations omitted). A “molested child’s uncorroborated testimony is sufficient
Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020 Page 5 of 12
to sustain a conviction.” Amphonephong v. State, 32 N.E.3d 825, 832 (Ind. Ct.
App. 2015) (internal quotation omitted); see also Robinson v. State, 446 N.E.2d
1287, 1291 (Ind. 1983) (providing that a victim’s uncorroborated testimony was
sufficient to sustain the defendant’s conviction for child molesting).
[10] In order to prove that Lee committed Level 1 felony child molesting, the State
was required to prove that Lee, who was at least twenty-one years of age,
knowingly or intentionally performed or submitted to sexual intercourse or
other sexual conduct with a child under fourteen years of age. Ind. Code § 35-
42-4-3. “‘Other sexual conduct’ means an act involving: (1) a sex organ of one
(1) person and the mouth or anus of another person; or (2) the penetration of
the sex organ or anus of a person by an object.” Ind. Code § 35-31.5-2-221.5.
We have previously concluded that “a finger is an object for purposes of the
child molesting statute.” Seal v. State, 105 N.E.3d 201, 209 (Ind. Ct. App.
2018). Lee does not dispute on appeal that the State proved the age
requirements of Indiana Code section 35-42-4-3. He only argues that the
evidence is insufficient to prove that he knowingly or intentionally performed
sexual conduct on M.D.
[11] Lee asks us to re-evaluate M.D.’s testimony based upon the incredible dubiosity
rule.
This rule is applicable only when a lone witness offers inherently
contradictory testimony that is equivocal or the result of coercion
and there is a complete lack of circumstantial evidence of the
appellant’s guilt. To interfere with the jury’s authority to judge
witness credibility and evaluate evidence, the court must be
Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020 Page 6 of 12
presented with testimony which runs counter to human
experience and that reasonable persons could not believe.… The
incredible dubiosity test is a difficult standard to meet, one that
requires great ambiguity and inconsistency in the evidence.
Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001) (internal citations and
quotations omitted).
[12] Review of the record reveals that M.D.’s testimony was consistent and was
partially corroborated by other evidence in the record. M.D. consistently
testified that on both the patio and in Lee’s bedroom, Lee touched her vagina
with his fingers under her clothes and that his fingers “were just outside the
hole” where females “pee out of.” Trial Tr. Vol. II p. 152. M.D. also
consistently testified that in Lee’s bedroom, after removing her pajamas and
underwear, Lee “told [M.D.] to raise [her] butt,” trial tr. vol. II p. 153,
“opened” her legs, trial tr. Vol. II p. 154, and “started licking” her vagina. Trial
Tr. Vol. II p. 153. After Lee stopped, M.D. went to the bathroom and “tried to
clean out” her vagina, which was “wet” with Lee’s “spit.” Trial Tr. Vol. II p.
156.
[13] Lee asserts that M.D.’s testimony should be found to be unreliable because it
was “not corroborated by physical evidence.” Appellant’s Br. p. 14. While
there is no physical evidence in the record corroborating M.D.’s account of
what happened, there is ample evidence corroborating other aspects of M.D.’s
testimony. The corroborating evidence includes Lee’s admission to Karen and
Seymour Police Detective Troy Munson that he touched M.D.’s vagina and
Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020 Page 7 of 12
buttocks with his hand and Lee’s admission to Karen that he “rubbed” M.D.’s
vagina and buttocks and that he “was sorry and he was going to Hell for what
he had done.” Trial Tr. Vol. II p. 181. M.D.’s testimony was not incredibly
dubious.
[14] Lee also asserts that the evidence is insufficient to prove that he acted with the
requisite mens rea, claiming that he was asleep when he molested M.D. The
culpability requirement of the child molesting statute is “knowingly or
intentionally.” Ind. Code § 35-42-4-3. “A person engages in conduct
‘knowingly’ if, when he engages in the conduct, he is aware of a high
probability that he is doing so.” Ind. Code § 35-41-2-2(b). “A person engages
in conduct ‘intentionally’ if, when he engages in the conduct, it is his conscious
objective to do so.” Ind. Code § 35-41-2-2(a). “The intent element of child
molesting may be established by circumstantial evidence and may be inferred
from the actor’s conduct and the natural and usual sequence to which such
conduct usually points.” Bowles v. State, 737 N.E.2d 1150, 1152 (Ind. 2000).
M.D. testified that on the night in question, Lee touched her numerous times in
numerous locations in and around their home, including in M.D.’s bedroom,
the patio, and Lee’s bedroom.
[15] Lee touched M.D.’s vagina under her clothing both outside on the patio and in
his bedroom and performed oral sex on M.D. in his bedroom. The jury could
reasonably infer from M.D.’s testimony that Lee was awake and acted
knowingly or intentionally when he committed the acts in various locations in
and around the family’s home. As such, we conclude that the evidence,
Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020 Page 8 of 12
including the reasonable inferences that can be drawn therefrom, is sufficient to
support the jury’s determination that Lee knowingly or intentionally performed
sexual conduct on M.D. See Amphonephong, 32 N.E.3d at 833 (providing that
the victim’s testimony regarding the defendant’s actions together with the
reasonable inferences therefrom was sufficient to support the jury’s
determination that the defendant acted knowingly when he molested the
victim). Lee’s challenge to the sufficiency of the evidence amounts to nothing
more than a request to reweigh M.D.’s credibility and the evidence, which we
will not do. See Stewart v. State, 768 N.E.2d 433, 435 (Ind. 2002) (“We do not
reweigh the evidence or assess the credibility of witnesses.”).
II. Appropriateness of Sentence
[16] Lee also contends that his thirty-five-year sentence is inappropriate. Indiana
Appellate Rule 7(B) provides that “The 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.” In analyzing such claims, we “concentrate less on
comparing the facts of [the case at issue] to others, whether real or hypothetical,
and more on focusing on the nature, extent, and depravity of the offense for
which the defendant is being sentenced, and what it reveals about the
defendant’s character.” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008)
(internal quotation omitted). The defendant bears the burden of persuading us
that his sentence is inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind.
Ct. App. 2008).
Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020 Page 9 of 12
[17] The trial court sentenced Lee to a term of thirty-five years for his Level 1 felony
child-molesting conviction. Indiana Code section 35-50-2-4(c) provides that
“[a] person who commits a Level 1 felony child molesting offense … shall be
imprisoned for a fixed term between twenty (20) and fifty (50) years, with the
advisory sentence being thirty (30) years.” Thus, in sentencing Lee to a thirty-
five-year term, the trial court imposed a slightly-aggravated sentence.
[18] Lee presents the following argument in support of his assertion that his sentence
is inappropriate in light of the nature of his offense:
Lee’s alleged conduct did not exceed the statutory elements for
the offense he was convicted of. There is no evidence that Lee
physically harmed or threatened to harm M.D. M.D. did not
indicate that Lee had threatened her or physically restrained her.
The nature of the acts Lee is alleged to have engaged in did not
support the imposition of an aggravated sentence.
Appellant’s Br. p. 17. We disagree.
[19] Lee violated a position of trust by molesting his then-ten-year-old step-
granddaughter. Lee and Karen shared custody of M.D. and her sisters.
Furthermore, Lee did not commit only one act of molestation, but rather
multiple acts of molestation, in multiple areas in and around the family’s home.
In a letter provided at sentencing, Karen informed the trial court M.D. had
suffered emotional harm as a result of Lee’s actions. Karen indicated that Lee
“was someone [she and her granddaughters] trusted and loved very much”
before he “betrayed” them. Sent. Tr. Vol. II p. 8. Karen further indicated that
M.D. “adored” Lee “and he did the unthinkable” to her. Sent. Tr. Vol. II p. 8.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020 Page 10 of 12
As a result of Lee’s actions, M.D. attends therapy, “won’t sleep upstairs [in her
bedroom] or alone,” “is afraid of the dark,” and “is very leery of others,”
especially men. Sent. Tr. Vol. II p. 8. M.D. informed the court the Lee “broke
[her] family,” stating that she “used to have a happy family like all [of her]
friends, but now it is broken.” Sent. Tr. Vol. II p. 9. Both Karen’s and M.D.’s
statements demonstrate the M.D. has suffered as a result of Lee’s actions.
[20] As for his character, Lee asserts that he is a high school graduate and has
earned an associate’s degree. Lee claims to have a relatively minor criminal
history consisting of only one prior conviction for Class A misdemeanor
possession of marijuana. He also claims to have the support of his new wife
and his father, who is willing to take him into his home. During the sentencing
hearing, Lee’s father described Lee as “honest, he was a good father, he always
had a job, always provided for his family when he was married the best that he
could.” Sent. Tr. Vol. II p. 5. The trial court, however, was not required to
accept Lee’s father’s testimony as proof of good character. See Shorter v. State,
144 N.E.3d 829, 839 (Ind. Ct. App. 2020).
[21] While Lee might have been a largely law-abiding citizen, his actions involving
M.D. demonstrate poor character. Lee violated a position of trust by molesting
his step-granddaughter, who was only ten years old at the time. Lee told M.D.
that “he was going to shoot himself” and “hated himself” and suggested that if
she told anyone about what happened, he would go to Hell. Trial Tr. Vol. II p.
157. The episode negatively impacted M.D., causing her to suffer emotional
pain.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020 Page 11 of 12
[22] Furthermore, Lee attempted to avoid incarceration by absconding following the
first day of trial. A few days after he was convicted, Lee was arrested in
Louisville, Kentucky. Lee admitted that he “had devised a plan to flee to
Louisville and purchase enough methamphetamine to kill himself via overdose.
He had a secondary plan to attempt suicide by law enforcement and was hoping
to be able to get police officers to shoot him when he was taken into custody.”
Appellant’s App. Vol. II p. 117. Lee, however, did not kill himself but was
living in Louisville at the time of his arrest. Lee’s decision to abscond and
attempt to avoid the consequences of his actions does not reflect well on his
character. Lee has failed to convince us that his aggregate thirty-five-year
sentence is inappropriate. See Sanchez, 891 N.E.2d at 176 (“The defendant
bears the burden of persuading us that his sentence is inappropriate.”).
[23] The judgment of the trial court is affirmed.
Najam, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-113 | August 3, 2020 Page 12 of 12