Charles Alan Keel v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Aug 24 2016, 10:39 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger Gregory F. Zoeller
Public Defender Attorney General of Indiana
Crown Point, Indiana
Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Charles Alan Keel, August 24, 2016
Appellant-Defendant, Court of Appeals Case No.
45A03-1601-CR-153
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Salvador Vasquez,
Appellee-Plaintiff Judge
Trial Court Cause No.
45G01-1503-F5-13
Baker, Judge.
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[1] Charles Keel appeals his conviction for Level 5 Felony Sexual Misconduct with
a Minor and his four-year sentence imposed by the trial court.1 Keel argues that
the trial court erred by admitting certain evidence and by failing to find certain
mitigators, and that Keel’s sentence was inappropriate in light of the nature of
the offense and his character. Finding no error and that the sentence is not
inappropriate, we affirm.
Facts
[2] On February 27, 2015, fifteen-year-old K.S. and her two younger sisters were
staying overnight with her cousin, Kathleen Spargo, in Spargo’s trailer. Keel
and Spargo were in a romantic relationship and had a baby together. The night
of February 27, Keel and the baby were also in the trailer.
[3] The trailer had two bedrooms. Spargo slept in one bedroom, and the baby and
K.S.’s youngest sister slept in the other. K.S. and her other sister slept in the
living room, with K.S. on one side of the couch and her sister on the floor.
Keel was on the other side of the couch. K.S. watched television until she fell
asleep. She was awakened in the middle of the night when she felt a hand
inside of her pants, on her vagina. She did not see whose hand it was. When
she moved and closed her legs, she felt the waistband of her leggings snap back
1
Ind. Code § 35-42-4-9(b)(1).
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on her stomach. K.S. did not say anything and pretended to stay asleep. She
then turned to her side. After a couple minutes, she felt a hand on her buttocks.
[4] K.S. then sat up and said that she had to use the bathroom. She asked Keel
whether anyone else was awake, and he said no. She went to the bathroom,
where she locked herself in and started crying. K.S. then went to Spargo’s
bedroom and asked Spargo whether she could use Spargo’s phone. K.S. took
the phone back to the bathroom, where she locked herself in again, and called
her father. She told her father that she needed him to come get her
immediately. She told him that she was at Spargo’s house and that Keel had
touched her. K.S.’s father could hear that K.S. was panicky on the phone.
[5] K.S.’s father called K.S.’s grandmother and told her that K.S. needed to be
picked up because he did not know Spargo’s address, but the grandmother did.
K.S.’s father also called 911. The police told him to meet them at a nearby gas
station. When K.S.’s grandmother arrived at the trailer, she entered and yelled
for K.S. K.S. left the bathroom. Her grandmother gathered the children and
took them to her car. Keel yelled obscenities at her. K.S.’s grandmother drove
the children to meet their father and the police at the gas station.
[6] On March 2, 2015, the State charged Keel with Level 5 felony sexual
misconduct with a minor. Following Keel’s November 23 and 24, 2015, jury
trial, the jury found him guilty as charged. On December 16, 2015, the trial
court sentenced Keel to four years of incarceration. Keel now appeals.
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Discussion and Decision
I. Admission of Evidence
[7] Keel first argues that evidence relating to the effects of his crime on K.S. should
not have been admitted. A trial court has broad leeway regarding the
admission of evidence. Smith v. State, 889 N.E.2d 836, 839 (Ind. Ct. App.
2008). We will reverse only if the decision is clearly against the logic and effect
of the facts before the trial court. Figures v. State, 920 N.E.2d 267, 271 (Ind. Ct.
App. 2010).
[8] Indiana Evidence Rule 402 provides that relevant evidence is generally
admissible and irrelevant evidence not admissible. Under Indiana Evidence
Rule 401, “[e]vidence is relevant if (a) it has any tendency to make a fact more
or less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.”
[9] Here, Keel objected to testimony from K.S.’s father and grandmother about
how K.S.’s behavior changed following the incident, arguing that their
testimony generated sympathy for K.S. but “did not make it more or less likely
that the offense had occurred.” Appellant Br. p. 7. We disagree; the trial court
could have reasonably found that the changes in K.S.’s behavior after her visit
to Spargo’s trailer had at least some tendency to make it more probable that an
incident happened there. In other words, the trial court did not err by finding
that the evidence was relevant.
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[10] Keel further argues that even if the evidence was relevant, the trial court should
not have admitted it because it was unfairly prejudicial. 2 Specifically, Keel
argues that the testimony at issue aroused the jury’s sympathy for the victim
and allowed the jury to convict Keel based on that sympathy.
[11] Under Indiana Evidence Rule 403, relevant evidence may be excluded “if its
probative value is substantially outweighed by a danger of . . . unfair
prejudice[.]” The trial court uses its discretion when evaluating whether to
admit or exclude the evidence, and it looks for danger that the jury will
substantially overestimate the value of the evidence or that the evidence will
arouse or inflame the jury’s passions or sympathies. Duvall v. State, 978 N.E.2d
417, 428 (Ind. Ct. App. 2012).
[12] Here, we find that the probative value of the testimony regarding K.S.’s
changed behavior is not substantially outweighed by the danger of unfair
prejudice. The probative value of the father’s and grandmother’s testimony was
significant in that it corroborated K.S.’s testimony about Keel’s criminal act.
Although the testimony might have aroused additional sympathy from the jury,
we find that any such sympathy would be only slightly greater than what the
jury may already have had for a teenager who testified about her own scared
reaction to the incident. Therefore, we find that the probative value of this
2
The State argues that Keel waived this argument because his objections at trial did not specifically mention
the allegedly prejudicial nature of the evidence. We decline to resolve this issue on the basis of waiver.
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evidence is not substantially outweighed by any prejudicial effect and that the
trial court did not err by admitting it.
II. Mitigating Factors
[13] Keel next argues that the trial court erred by declining to find his gainful
employment and any possible hardship to his four children as mitigating
factors. Sentencing lies within the discretion of the trial court. A trial court
may impose any sentence authorized by statute and must provide a sentencing
statement that gives a reasonably detailed recitation of the trial court’s reasons
for imposing a particular sentence. Anglemyer v. State, 868 N.E.2d 482, 490
(Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). If a defendant alleges
that the trial court failed to find a mitigating factor, the defendant must establish
that the mitigating evidence is significant and clearly supported by the record.
Id. The trial court is not required to accept a defendant’s arguments as to what
constitutes a mitigating factor, nor is it required to explain why it did not find a
factor to be mitigating. Sherwood v. State, 749 N.E.2d 36, 38 (Ind. 2001); Page v.
State, 878 N.E.2d 404, 408 (Ind. Ct. App. 2007).
[14] Keel asserts that his role as the sole financial supporter for his children and the
undue hardship they would face because of his incarceration are clearly
supported by the record. We disagree. Although Keel stated that he was
gainfully and steadily employed, employment is not necessarily a significant
mitigating factor. See Newsome v. State, 797 N.E.2d 293, 301 (Ind. Ct. App.
2003) (“Many people are gainfully employed such that this would not require
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the trial court to note it as a mitigating factor[.]”). Keel also did not present
evidence on how he financially supported his children, nor did he present
evidence as to whether they lived with him. Rather, he stated that although he
was not ordered to pay child support to his spouse, he still tried to “help out”
when he could. Tr. p. 243. He failed to explain how his children would suffer
undue hardship because of his incarceration or how the advisory sentence of
three years would bring a lesser risk of undue hardship to his children than the
four-year sentence actually imposed. See Battles v. State, 688 N.E.2d 1230, 1237
(Ind. Ct. App. 1997) (holding that the difference between advisory and imposed
sentences do not necessarily create additional hardships on children). Under
these circumstances, we find no error in the trial court’s decision not to find
these mitigators.
III. Appropriateness
[15] Keel also argues, pursuant to Indiana Appellate Rule 7(B), that the four-year
sentence imposed by the trial court is inappropriate in light of the nature of the
offense and his character. Rule 7(B) provides that this Court may revise a
sentence if it is inappropriate in light of the nature of the offense and the
character of the offender. We must “conduct [this] review with substantial
deference and give ‘due consideration’ to the trial court’s decision—since the
‘principal role of [our] review is to attempt to leaven the outliers,’ and not to
achieve a perceived ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274,
1292 (Ind. 2014) (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013))
(internal citations omitted).
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[16] Keel was convicted of a Level 5 felony, for which he faced a sentence of one to
six years, with an advisory term of three years. Ind. Code § 35-50-2-6. Keel
received a four-year sentence.
[17] As for the nature of Keel’s offense, the record demonstrates that Keel touched
K.S. inappropriately while she was asleep on the couch. At the time, Keel was
thirty-two years old and K.S. was fifteen years old. K.S. was staying at her
cousin’s trailer for the night, where she felt safe, and Keel violated the trust that
he had as an adult in a position to care for K.S. and her sisters. Keel argues that
there is no “evidence of penetration or any physical injury of any sort to justify
a greater sentence,” appellant’s br. p. 10, but such an argument minimizes the
impact his actions had on the victim. Following the incident, K.S.’s behavior
changed; she withdrew from her family, struggled in school, became less
trustful, and started to see a therapist.
[18] With respect to Keel’s character, the record demonstrates that Keel has a
criminal history consisting of four misdemeanor convictions. Keel argues that
the remorse he expressed at his sentencing hearing is a substantial mitigating
circumstance, but it is apparent that Keel’s apology was self-serving because it
was immediately followed by his plea for a lenient sentence. Tr. p. 247. The
trial court was not required to find him remorseful or, if it did, it was not
required to find him sufficiently remorseful to reflect positively on his character
or warrant a more lenient sentence. Chambliss v. State, 746 N.E.2d 73, 79 (Ind.
2001). The trial court was in the best position to observe Keel’s demeanor and
determine whether his remorse was genuine; it found that his character is highly
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manipulative and dishonest. In sum, we find that the four-year sentence
imposed by the trial court is not inappropriate in light of the nature of the
offenses and Keel’s character.
[19] The judgment of the trial court is affirmed.
Vaidik, C.J., and Najam, J., concur.
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