Albert Goering v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Feb 18 2015, 9:23 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Gregory F. Zoeller
Alcorn Goering & Sage, LLP Attorney General of Indiana
Madison, Indiana
J.T. Whitfield
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Albert Goering, February 18, 2015
Appellant-Defendant, Court of Appeals Cause No.
88A05-1406-CR-261
v. Appeal from the Washington Circuit
Court
Cause No. 88C01-1303-FB-191
State of Indiana,
The Honorable John T. Evans,
Appellee-Plaintiff. Special Judge
Barnes, Judge.
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Case Summary
[1] Albert Goering appeals his fifteen-year sentence for five counts of Class B
felony sexual misconduct with a minor and one count of Class B felony
attempted sexual misconduct with a minor. We affirm.
Issues
[2] Goering raises three issues, which we restate as:
I. whether the trial court properly excluded
evidence at the sentencing hearing;
II. whether the trial court properly refused to
allow questioning of the victim representatives
at the sentencing hearing; and
III. whether the trial court abused its discretion
when it sentenced him.
Facts
[3] T.C., who was born in 1998, often worked for Goering babysitting and working
on his maple syrup farm. In January 2013, when T.C. was fourteen years old,
their relationship changed when Goering kissed T.C. T.C. was curious and
happy that someone liked her. Goering kissed T.C. again a few days later, and
their relationship escalated to oral sex, digital penetration, and eventually
sexual intercourse. T.C. told her sister-in-law about the relationship, and her
sister-in-law told T.C.’s parents.
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[4] In March 2013, the State charged Goering with five counts of Class B felony
sexual misconduct with a minor and one count of Class B felony attempted
sexual misconduct with a minor. After a jury trial, Goering was found guilty as
charged.
[5] At the sentencing hearing, T.C.’s parents were allowed to make victim impact
statements. Goering then requested “the opportunity to ask [them] some
questions,” and the trial court denied the request. Tr. p. 54. After T.C.’s
parents spoke, Goering also requested the admission of T.C.’s recorded
statements to police officers and Department of Child Services (“DCS”)
workers, which were not admitted at trial, and the State objected. According
to Goering, the statements were not admitted at trial because of the “rape shield
statute.” Id. at 65. However, Goering contended that the statements were
admissible at sentencing because they were relevant to show that T.C.
facilitated the offense and that T.C. did not suffer serious harm. The trial court
found that the statements were not admissible.
[6] The trial court found two aggravators—the fact that the harm, injury, loss, or
damage suffered by T.C. was significant and greater than the elements
necessary to prove the commission of the offense and Goering’s lack of
remorse. The trial court noted that T.C. suffered “physical pain, physical injury
and significant emotional injury” and that Goering was her “supervisor and
employer and was in a position of control and trust.” App. p. 134. The trial
court found one mitigating factor—Goering’s lack of criminal history. For both
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convictions, the trial court sentenced Goering to fifteen-year concurrent
sentences with five years suspended to probation. Goering now appeals.
Analysis
I. Admission of T.C.’s Statements
[7] Goering argues that the trial court abused its discretion by excluding T.C.’s
recorded statements to police officers and DCS workers during the sentencing
hearing. The admission of testimony at a sentencing hearing is at the discretion
of the trial court. Couch v. State, 977 N.E.2d 1013, 1016 (Ind. Ct. App. 2012),
trans. denied. Indiana Evidence Rule 101 provides that the rules of evidence,
except privileges, do not apply to sentencing hearings. Thus, the trial court is
not limited to admissible evidence in evaluating aggravating and mitigating
circumstances. Thacker v. State, 709 N.E.2d 3, 9 (Ind. 1999). The task at a
sentencing hearing is to determine the type and extent of punishment. Bluck v.
State, 716 N.E.2d 507, 512 (Ind. Ct. App. 1999).
[8] The recorded statements apparently related to prior sexual history of T.C.
Goering, however, does not specify the content of the statements. 1 According
1
Although Goering made an offer of proof at the sentencing hearing, we were not provided with the exhibit
on appeal. We also note that, in his reply brief, Goering argues that he was denied the right to present
exculpatory evidence. “Exculpatory is defined as ‘[c]learing or tending to clear from alleged fault or guilt;
excusing.’” Samek v. State, 688 N.E.2d 1286, 1288 (Ind. Ct. App. 1997) (quoting Black’s Law Dictionary 566
(6th ed. 1990)), trans. denied. The presentation of evidence at a sentencing hearing of T.C.’s past sexual
history is clearly not “exculpatory” and would not clear Goering from guilt as he had already been convicted
of the offenses.
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to Goering, the statements, although excluded at trial due to Indiana Code
Section 35-37-4-4 and Indiana Evidence Rule 412, were admissible at the
sentencing hearing to contradict the State’s implication that T.C. was “innocent
and sexually pure.” Appellant’s Br. p. 16. The State responds that the
excluded evidence was completely irrelevant to the trial court’s role in
determining an appropriate sentence based on the character of the offender and
the nature of the offense.
[9] First, contrary to Goering’s argument, we read nothing in the victim impact
statements that implied T.C. was “innocent and sexually pure.” We also agree
with the State that the recorded statements simply were not relevant to the trial
court’s determination of a proper sentence for Goering. T.C.’s prior sexual
history was completely irrelevant to Goering’s character and the fact that he
engaged in sexual intercourse with a fourteen year old child. Goering contends
the evidence showed that T.C. “facilitated the offense.” See Ind. Code § 35-38-
1-7.1 (noting that the trial court may consider the fact that the “victim of the
crime induced or facilitated the offense” as a mitigator). However, a prior
sexual history does not indicate that T.C. facilitated the offenses here.
[10] Moreover, even if the statements were relevant and should have been admitted,
Goering has not demonstrated that he was prejudiced. The trial court was
already aware that T.C. voluntarily participated in the acts with Goering.
Goering has not demonstrated that he was harmed by the exclusion of the
evidence.
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II. Questioning of the Victim Representatives
[11] Next, Goering argues that the trial court erred by refusing to allow him to
question T.C.’s parents, who made victim impact statements. Goering
requested “the opportunity to ask [them] some questions,” which the trial court
denied. Tr. p. 54. According to Goering, his right to confrontation was
violated when the trial court denied his request.
[12] A victim or victim’s representative has the right to be heard at any proceeding
involving sentencing. See I.C. § 35-40-5-5; I.C. § 35-40-5-6(a); I.C. 35-38-1-2.
Victim impact statements are an integral part of the sentencing process, and
trial courts are required to receive and consider them. Cloum v. State, 779
N.E.2d 84, 92-93 (Ind. Ct. App. 2002). Among other things, “the statement
allows for a degree of catharsis by the victim or the victim’s representative,
permitting him or her to express their recommendation as to a sentence, the
impact a crime had, and their feelings toward the defendant, all in a judicial
setting.” Id. at 93. Regarding these statements, we have stated:
[W]e would not want to require victims or victim representatives to
have to make their statement under oath with the ever-present threat of
a perjury charge limiting their ability to speak freely; nor would it be
wise, in our view, to subject a victim or victim’s representative to
defense cross-examination regarding comments made in a victim
impact statement as a general rule. Nonetheless, when a victim impact
statement strays from the effect that a crime had upon the victim and
others and begins delving into substantive, unsworn, and otherwise
unsupported allegations of other misconduct or poor character on the
part of the defendant, caution should be used in assessing the weight to
be given to such allegations, especially where the defendant is not
provided an opportunity to respond directly to them.
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Id.[13] Goering acknowledges that he could not cross-examine the victim
representatives but argues that his request to ask them questions was not cross-
examination. We disagree. Although Goering could have called T.C.’s parents
as witnesses, he did not do so.2 Instead, after T.C.’s parents gave victim impact
statements, Goering sought to ask them questions. The State correctly argues
that Goering’s attempt to distinguish cross-examination and asking questions of
the victim representatives is “a distinction without a difference.” Appellee’s Br.
p. 15. The trial court properly did not allow Goering to cross-examine T.C.’s
victim representatives at the sentencing hearing.
III. Sentencing
[14] Goering also argues that the trial court abused its discretion when it sentenced
him. Sentencing decisions are within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218. However, a trial court may be found to have abused its sentencing
discretion in a number of ways, including: (1) failing to enter a sentencing
statement at all; (2) entering a sentencing statement that explains reasons for
imposing a sentence where the record does not support the reasons; (3) entering
2
In his reply brief, Goering argues that “[t]he question presented is whether Goering should have been
allowed to present evidence in his own defense.” Appellant’s Reply Br. p. 1. There is no indication that
Goering was unable to present evidence at the sentencing hearing. To the contrary, Goering called several
witnesses. Goering also states: “The State fails to explain why Goering’s right to present the parents as
witnesses to offer testimony should have been curtailed.” Id. at 2. However, Goering did not call T.C.’s
parents as witnesses.
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a sentencing statement that omits reasons that are clearly supported by the
record and advanced for consideration; and (4) entering a sentencing statement
in which the reasons given are improper as a matter of law. Id. at 490-91. The
reasons or omission of reasons given for choosing a sentence are reviewable on
appeal for an abuse of discretion. Id. at 491. The weight given to those reasons,
i.e. to particular aggravators or mitigators, is not subject to appellate review. Id.
[15] Goering argues that the record does not support the two aggravators found by
the trial court. The aggravators found by the trial court were: (1) the fact that
the harm, injury, loss, or damage suffered by T.C. was significant and greater
than the elements necessary to prove the commission of the offense; and (2)
Goering’s lack of remorse. When discussing the first aggravator, the trial court
noted that T.C. suffered “physical pain, physical injury and significant
emotional injury” and that Goering was her “supervisor and employer and was
in a position of control and trust.” App. p. 134.
[16] Goering contends that there was no evidence of a significant physical or
emotional injury. We first note that Goering specifically did not “quarrel” with
the proposed aggravator that “the harm, injury or loss . . . or damage suffered
by the victim of the offense was significant and greater than the elements
necessary to prove the commission of the offense.” Tr. p. 71. Consequently, he
has waived this argument regarding the aggravator. Moreover, at the trial, the
State presented evidence that T.C. felt pain during the sexual intercourse, when
Goering placed his finger in her vagina, and when he placed his finger in her
anus. T.C.’s parents stated during the victim impact statements that Goering’s
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actions would affect T.C. during her entire life. We cannot say that the trial
court abused its discretion by finding that T.C. sustained significant physical or
emotional injury.
[17] Goering also argues that T.C. voluntarily changed her job duties to work with
Goering and encouraged the relationship. Regardless of Goering’s argument,
he was the adult, T.C.’s employer and supervisor, and a trusted friend of T.C.’s
family. The trial court did not abuse its discretion when it found that Goering
was in a position of trust with T.C.
[18] Finally, Goering argues that the record does not support the trial court’s finding
of no remorse. “Remorse, or lack thereof, by a defendant often is something
that is better gauged by a trial judge who views and hears a defendant’s apology
and demeanor first hand and determines the defendant’s credibility.” Gibson v.
State, 856 N.E.2d 142, 148 (Ind. Ct. App. 2006). In his sentencing hearing
testimony and his presentence investigation interview, Goering focused on the
effect the accusation and conviction had on his life rather than expressing
remorse for his actions. We acknowledge that Goering apologized to T.C. and
her family at the sentencing hearing, but his credibility on this issue was better
left to the trial court. We cannot say that the trial court abused its discretion
when it found Goering’s lack of remorse as an aggravator.
Conclusion
[19] The trial court did not abuse its discretion by excluding evidence of the victim’s
prior sexual history from the sentencing hearing, and the trial court properly
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denied Goering’s request to question the victim impact statement
representatives. The trial court also did not abuse its discretion when it found
the two aggravators. We affirm.
[20] Affirmed.
May, J., and Pyle, J., concur.
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