William Remy v. State of Indiana ( 2014 )

Sep 30 2014, 8:46 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN T. WILSON GREGORY F. ZOELLER
Anderson, Indiana Attorney General of Indiana
GEORGE P. SHERMAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
WILLIAM REMY, )
)
Appellant-Defendant, )
)
vs. ) No. 48A02-1310-CR-857
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Thomas Newman Jr., Judge
Cause No. 48C03-1110-FA-1844
September 30, 2014
OPINION - FOR PUBLICATION
ROBB, Judge
Case Summary and Issues
Following a jury trial, William Remy was convicted of three counts of child
molesting, all Class A felonies; one count of child molesting as a Class C felony; and
performing sexual conduct in the presence of a minor, a Class D felony. He received an
aggregate sentence of ninety-five and one-half years imprisonment. Remy appeals his
convictions and sentence, raising the following issues for our review: (1) whether the
trial court abused its discretion by allowing certain pornographic materials to be admitted
at Remy’s trial; and (2) whether Remy’s sentence is inappropriate in light of the nature of
his offenses and his character. Concluding the admission of pornographic images at
Remy’s trial was erroneous but amounts to harmless error and that Remy’s sentence is
not inappropriate, we affirm.
Facts and Procedural History
In 2009, H.B., who was eleven years old, moved to Madison County to live with
his mother and her boyfriend, Remy. In July of 2009, Remy began asking H.B. to
shower with him. While in the shower, Remy would ejaculate on H.B.’s back. On some
of those occasions, Remy inserted a butt plug into H.B.’s anus. On one occasion, Remy
wrapped H.B.’s naked body in saran wrap, cutting holes for his eyes, mouth, nose, and
penis, and Remy then performed oral sex on H.B. H.B. recalled another occasion when
Remy forced H.B. to wear nothing but a dog collar and made him get on all fours and act
like a dog.
Remy, H.B., and H.B.’s mother subsequently moved to another residence in
Madison County. It was there that Remy first had anal sex with H.B. Once this began,
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incidents of molestation occurred on a weekly basis. Remy would instruct H.B. to clean
out his anus with a black hose connected to the shower prior to Remy having anal sex
with him. Remy often used dildos and vibrators on H.B., and Remy had H.B. use them
on him as well. Sometime in the two years during which Remy repeatedly molested
H.B., Remy showed H.B. numerous pornographic images and videos that Remy had on
his computer.
Remy’s molestations of H.B. stopped in July 2011 when Remy’s relationship with
H.B.’s mother ended. H.B. and his mother moved to West Virginia in November 2011.
After H.B. was no longer living with Remy, H.B. informed his biological father about
what had occurred between himself and Remy, and H.B.’s father contacted the police.
H.B. underwent a sexual assault examination performed by a nurse with the Madison
County Sexual Assault Treatment Center, and the examination revealed signs that H.B.
had experienced anal penetration. Police conducted a search of Remy’s residence and
found a butt plug, dog collar, anal lube, plastic wrap, numerous sex toys (including
vibrators and dildos), a black tube connected to the shower line, and pornography stored
in Remy’s computer.
On October 10, 2011, the State charged Remy with Count 1, child molesting, a
Class A felony (oral sex); Count 2, child molesting, a Class A felony (anal penetration);
Count 3, child molesting, a Class A felony (anal penetration); Count 4, child molesting, a
Class C felony; and Count 5, performing sexual conduct in the presence of a minor, a
Class D felony. A jury trial was held over the course of several days in August 2013, at
the end of which the jury found Remy guilty of all five counts. The trial court imposed
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the advisory sentence for each count but ordered that the sentences would run
consecutively, resulting in an aggregate sentence of ninety-five and one-half years. This
appeal followed.
Discussion and Decision
I. Evidence of Pornography
Remy contends that admission of evidence of pornographic materials found inside
his home was improper character evidence prohibited by Indiana Evidence Rule 404(b).
A trial court’s decision to admit or exclude evidence is reviewed for an abuse of
discretion. Young v. State, 980 N.E.2d 412, 417 (Ind. Ct. App. 2012). A trial court
abuses its discretion when its decision is clearly against the logic and effect of the facts
and circumstances or when the trial court has misinterpreted the law. Id.
“Evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith.” Ind. Evidence Rule 404(b)
(2013). However, such evidence may be admitted to prove “motive, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident . . . .” Id. The rule is
“designed to prevent the jury from assessing a defendant’s present guilt on the basis of
his past propensities, the so called ‘forbidden inference.’” Hicks v. State, 690 N.E.2d
215, 218-19 (Ind. 1997). A court faced with a challenge to evidence under Rule 404(b)
must: (1) decide if the evidence of other crimes, wrongs, or acts is relevant to a matter at
issue other than the defendant’s propensity to commit the charged act; and (2) balance the
probative value of the evidence against its prejudicial effect pursuant to Rule 403. Id. at
221.
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Remy argues a number of pornographic images and magazine articles found in his
home—State’s Exhibits 39-48 and 62-68—were irrelevant, highly prejudicial, and
inadmissible under Rule 404(b). Remy’s brief accurately summarizes the challenged
exhibits as follows: men bound and in leather masturbating; a man ejaculating in a
person’s mouth; two people having sexual intercourse; a man tied up with a ball gag in
his mouth; a penis tied up with string; a man putting his fists in two other men’s anuses; a
man in leather on his hands and knees; a man hanging upside down while having oral sex
with another man; a man wearing a dog mask; a young boy looking at an erect penis; a
man wrapped in saran wrap and engaging in oral sex with another man; several pictures
of penises; and an article about a sexual fantasy involving a man dressing and acting like
a dog. See Brief of Appellant at 11. The State responds that these pornographic images
were properly admitted to prove Remy’s plan to commit the charged crimes and that
Remy was “clearly grooming” H.B. Brief of Appellee at 8.
Prior to the promulgation of the Indiana Rules of Evidence, our supreme court
adopted Federal Evidence Rule 404(b) in Lannan v. State, 600 N.E.2d 1334, 1335 (Ind.
1992). In doing so, the court abolished the “depraved sexual instinct” exception that
allowed character evidence in sexual assault cases to be admitted to bolster victim
credibility and prove action in conformity with a defendant’s sexual desires or past acts.
Id. Commenting on Lannan, the adoption of Indiana’s own Evidence Rule 404(b), and
the dismissal of the common law “common scheme or plan” rule in favor of Rule
404(b)’s “plan” exception, Chief Justice Shepard clarified that Rule 404(b) offered “a
narrower exception than our old rule, which tended to degenerate into an all-purpose
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excuse for admitting pretty much any old prior misconduct.” Lay v. State, 659 N.E.2d
1005, 1015 (Ind. 1995) (Shepard, C.J., dissenting).1 This is the backdrop against which
our decision in this case is made. We believe this case presents an example of how a real
danger exists that rationales such as “plan” and “grooming” are becoming all-purpose
excuses to admit prejudicial evidence in child molestation cases. We must take care to
ensure that Rule 404(b)’s exceptions do not swallow the rule.
H.B. testified that Remy showed each of the images to H.B., and the State argues
that some of the images are “similar in nature to several of the scenarios that Remy
played out with H.B.” Br. of Appellee at 8. When the State admitted these challenged
exhibits at trial, the only image the State noted was similar to a charged act was the image
involving saran wrap and oral sex (State’s Exhibit 68). In the State’s brief, the State
identifies six additional images that it believes are similar to activities that H.B. testified
Remy subjected him to. However, three of those images relate to the incident where H.B.
was made to put on a dog collar, which is not among the crimes charged, and two depict
oral sex, making them cumulative of and less relevant than the saran wrap photo.
Therefore, the relevance of those images seems to be negligible. Even assuming all of
the images identified by the State on appeal are at least marginally relevant, this leaves
ten pornographic images admitted against Remy for no perceivable reason other than to
inflame the jury and encourage the “forbidden inference.”
1
Although said in dissent, Chief Justice Shepard’s opinion on that issue of law was shared by a majority of
the court. See Lay, 659 N.E.2d at 1015 (DeBruler, J., concurring); id. (Shepard, C.J., dissenting, joined by
Dickson, J.)
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As to the State’s “grooming” rationale, this court has previously held this is a valid
basis for admitting past acts under Rule 404(b). See Piercefield v. State, 877 N.E.2d
1213, 1216 (Ind. Ct. App. 2007), trans. denied. In Piercefield, the court defined
“grooming” as “the process of cultivating trust with a victim and gradually introducing
sexual behaviors until reaching the point where it is possible to perpetrate a sex crime
against the victim.” Id. at 1216 n.1 (citation and quotation marks omitted). This court
held that evidence of the victim’s past massages of the defendant was relevant to show
preparation, plan, and grooming, because the massages were demanded by the defendant
and used to familiarize the victim with touching and having a more physical relationship
with the defendant. Id. at 1216. The court emphasized, however, that this evidence was
far less prejudicial than evidence of past sexual activity because the “massage
contacts . . . were not criminal by themselves and were not overtly sexual.” Id.
On the spectrum of prejudice, we find this case falls somewhere between
Piercefield and cases like Greenboam v. State, 766 N.E.2d 1247 (Ind. Ct. App. 2002),
trans. denied, which involved evidence of past molestations. There is no question that the
pornographic images admitted by the State in this case are “overtly sexual.” Cf.
Piercefield, 877 N.E.2d at 1216 (implying that evidence of acts that were “overtly sexual”
would be far more prejudicial than the massages at issue in Piercefield). Additionally, we
note that admission of evidence related to these images may be been evidence of other
uncharged criminal conduct: Remy’s possession of at least one of the photos—an image
of what appears to be an adolescent boy preparing to perform oral sex (State’s Exhibit
67)—is potentially criminal by itself to the extent it may be evidence of possession of
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child pornography in violation of Indiana Code section 35-42-4-4(c), and Remy’s acts of
showing these pornographic images to H.B. may also have been criminal dissemination
of matter harmful to minors under Indiana Code section 35-49-3-3. Cf. Piercefield, 877
N.E.2d at 1216 (implying that evidence of acts that were “criminal by themselves” would
be far more prejudicial than the massages at issue in Piercefield). Because the challenged
evidence is overtly sexual and is potentially evidence of uncharged criminal conduct, we
find evidence of these images carries a significant danger of unfair prejudice.
As to the relevance of the pornography as evidence of grooming, we note that the
record is unclear as to precisely when these images were shown to H.B. Thus, their
probative value is further diminished by the fact that we cannot say with any certainty
that the pornography was used to groom H.B. in preparation for a sex act yet to be
committed.
Because the danger of unfair prejudice accompanying the admission of these
pornographic images substantially outweighs their probative value, we conclude the trial
court erred by admitting the vast majority of these images. Given our standard of review,
the fact that Remy showed the image involving saran wrap and oral sex to H.B., and the
image’s strong parallel to one of the charged acts, we would conclude the trial court did
not abuse its discretion by admitting State’s Exhibit 68. However, the remainder of the
challenged images should not have been admitted at trial.
Despite our finding error in the trial court’s admission of this evidence, we hold
that the admission was harmless error. Errors in the admission of evidence are ordinarily
disregarded as harmless error unless they affect the substantial rights of a party. Hoglund
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v. State, 962 N.E.2d 1230, 1238 (Ind. 2012). In determining whether a party’s substantial
rights have been affected, we consider the evidence’s probable impact on the fact finder.
Id. Improper admission of evidence is harmless error “if the conviction is supported by
substantial independent evidence of guilt satisfying the reviewing court there is no
substantial likelihood the challenged evidence contributed to the conviction.” Id. Here,
substantial independent evidence of Remy’s guilt was presented at trial. Most
importantly, H.B. testified to a number of sex acts Remy performed with him, and H.B.’s
testimony was substantially corroborated by evidence found in Remy’s home, including
sex toys described by H.B., anal lube, a butt plug, and a black hose attached to Remy’s
shower line. Although a danger of prejudice and the possibility of the forbidden
inference existed after the admission of pornographic images, we do not believe that the
erroneous admission of that evidence requires a new trial here. In this particular case, the
evidence corroborating H.B.’s testimony shifts the balance toward harmless error, and we
cannot say that the challenged evidence here matches the extreme prejudice that comes
with evidence of past acts of molestation. Cf. Greenboam, 766 N.E.2d at 1256-57
(finding reversible error in the admission of testimony in violation of Indiana Evidence
Rule 404(b) regarding the defendant’s past acts of molestation). Therefore, the trial
court’s error in this case was harmless error.
II. Sentence
Next, Remy argues his sentence is inappropriate. Indiana Appellate Rule 7(B)
gives appellate courts the authority to revise a defendant’s sentence if, “after due
consideration of the trial court’s decision, the Court finds that the sentence is
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inappropriate in light of the nature of the offense and the character of the offender.” Our
inquiry focuses on the defendant’s aggregate sentence, rather than the number of counts,
length of the sentence on any individual count, or whether any sentences are concurrent
or consecutive. Brown v. State, 10 N.E.3d 1, 8 (Ind. 2014). It is the defendant’s burden
to persuade the reviewing court that the sentence is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
Remy believes his ninety-five and one-half year sentence is inappropriate in light
of the nature of his offenses and his character. Specifically, Remy argues there is no
evidence of physical or emotional injury to H.B. and that there was no evidence of
significant force used by Remy to molest H.B. Remy also points out that he has no
criminal history. In support of his request for a reduced sentence, Remy points to our
supreme court’s decision in Harris v. State, 897 N.E.2d 927 (Ind. 2008). In Harris, the
defendant was convicted of two counts of child molesting, Class A felonies, and was
sentenced to consecutive terms of fifty years on each count. Three aggravators were
present in Harris: (1) the defendant was in a position of trust; (2) the defendant
committed multiple acts of sexual misconduct other than the crimes charged; and (3) the
defendant’s criminal history. Our supreme court found “the ongoing nature of Harris’s
crimes coupled with his position of trust sufficiently aggravating to justify enhanced
sentences.” Id. at 930. However, the court also observed that the two counts of child
molestation were identical and involved the same child. Id. And although the defendant
had a criminal history, the court found that history sufficiently different in nature and
gravity such that it was not a significant aggravator. Id. In the end, our supreme court
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held the aggravating circumstances were sufficient to warrant enhanced sentences but not
consecutive ones, and the court revised the defendant’s sentence to fifty years on each
count to be served concurrently. Id.
We believe this case is distinguishable from Harris.2 That case involved a
sentence that gave the maximum on each count and ordered the counts consecutive, while
the consecutive sentences in this case were for the advisory terms. Moreover, unlike the
two counts in Harris, the five counts in this case are not identical. Although they involve
the same victim, the charged acts spanned two years and were based on a variety of
appalling and degrading sex acts. Among the aggravators found by the trial court was the
“heinous” nature of the activities Remy subjected H.B. to in the commission of his
crimes. Transcript at 806. Remy makes no argument that this aggravator is unsupported
by the trial evidence, and we recognize that such an aggravator was not present in Harris.
The trial court identified five aggravators here: (1) Remy abused a position of
trust with the victim; (2) the number of times the activities occurred; (3) the opportunistic
way in which Remy perpetrated the crimes; (4) the many locations in which the crimes
occurred; and (5) the heinous nature of the activities to which Remy subjected H.B.3
Remy’s lack of criminal history was the only mitigator. As the States points out, our case
2
Remy also relies on Monroe v. State, 886 N.E.2d 578, 581 (Ind. 2008), where our supreme court held the
aggravating circumstances were sufficient to warrant imposing enhanced sentences for child molesting, but the
record did not support the trial court’s imposition of consecutive sentences. In that case, the court specifically took
issue with the fact that the trial court ordered consecutive sentences despite imposing sentences on each individual
count below the presumptive sentence, indicating that the trial court believed the mitigators outweighed the
aggravators but nonetheless gave consecutive sentences. Id. at 580. Here, the trial court’s decision to impose
consecutive advisory sentences does not contain a similar internal inconsistency.
3
On appeal, the State contends that psychological or emotional harm suffered by H.B. weighs against
Remy, and the State asserts there is a possibility that H.B. has contracted human papillomavirus. While the State’s
allegations on these points may be true, the State cites to no evidence in the record supporting them.
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law recognizes several of these as valid aggravating factors in child molest cases. See
Hart v. State, 829 N.E.2d 541, 544 (Ind. Ct. App. 2005) (stating that “being in a position
of trust with the victim is a valid aggravating circumstance”); Newsome v. State, 797
N.E.2d 293, 300 (Ind. Ct. App. 2003) (stating “[r]epeated molestations occurring over a
period of time can be an aggravating factor supporting the maximum enhancement.”),
trans. denied. Remy has not convinced us that his sentence is inappropriate in light of the
nature of his offenses and his character.
Conclusion
We conclude the trial court abused its discretion in admitting all but one of the
pornographic images at Remy’s trial, but we find that this violation of Rule 404(b) was
harmless error. Further, we conclude Remy’s sentence is not inappropriate in light of the
nature of his offenses and his character. Accordingly, we affirm his convictions and
sentence.
Affirmed.
BAKER, J., and KIRSCH, J., concur.
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