Michael P. McCoy v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Feb 16 2016, 6:35 am
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
Thomas G. Godfrey Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael P. McCoy, February 16, 2016
Appellant-Defendant, Court of Appeals Case No.
48A04-1507-CR-1031
v. Appeal from the Madison County
Circuit Court
State of Indiana, The Honorable David A. Happe,
Appellee-Plaintiff. Judge
Trial Court Cause No.
48C04-1412-F1-2094
Altice, Judge.
Case Summary
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[1] Michael P. McCoy pled guilty to Child Molesting as a Level 1 felony,1 Child
Molesting as a Class A felony,2 and Incest as a Class B felony.3 The trial court
sentenced McCoy to an aggregate term of eighty-five years, with twenty-five
years suspended. McCoy presents three issues for our review, which we reorder
and restate as:
1. Was McCoy denied his right of confrontation when the trial
court admitted hearsay evidence during the sentencing hearing
and then relied upon such evidence in deciding the sentence to be
imposed?
2. Is McCoy’s sixty-year executed sentence inappropriate?
3. Did the trial court properly impose consecutive sentences?
[2] We affirm.
Facts & Procedural History
[3] On November 20, 2014, officers with the Anderson Police Department were
dispatched to a local elementary school to assist the Department of Child
1
Ind. Code § 35-42-4-3(a)(1). The charging information alleged that this offense occurred “[o]n or between
July 1, 2014 and November 15, 2014.” Appellant’s Appendix at 12.
2
I.C. § 35-42-4-3(a)(1). The charging information alleged that this offense occurred “[o]n or between
January 1, 2013 and December 31, 2013.” Appellant’s Appendix at 13. Effective July 1, 2014, this offense was
reclassified as a Level 1 felony. Because McCoy committed this offense prior to that date, it retains its prior
classification as a Class A felony.
3
Ind. Code § 35-46-1-3. The charging information alleged that this offense occurred between January 1,
2010 and June 30, 2014. Effective July 1, 2014, this offense was reclassified as a Level 4 felony. Because this
offense was committed prior to that date, it retains its prior classification as a Class B felony.
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Services. Arriving officers were given information that an eleven-year-old child
(the Child) was alleged to have been molested or forced to perform oral sex on
her biological father, McCoy. The Child was transported to the ASPIRE
Center for a forensic interview. During the recorded forensic interview, the
Child stated that every Saturday since she was four or five years old she
performed oral sex on McCoy. McCoy would also force her to engage in oral
sex on other occasions as well. He told the Child that it was a stress reliever for
him and that it would keep him from beating the Child and her brother. Each
time, McCoy would lock Child in his room, provide her with a flavored
lubricant, and tell her to “suck it.” State’s Exhibit 1. On occasion, McCoy
would tell the Child to swallow his semen. McCoy would also have the Child
measure his penis with a ruler.
[4] Beginning in approximately January 2014, McCoy, while the Child was
performing oral sex on him, began to touch her around her vagina. On one
occasion, he placed his finger inside her vagina causing her pain and
discomfort. McCoy also attempted to put a vibrator in the Child’s vagina, but
the Child refused. McCoy provided the Child with sex magazines, x-rated
movies, and a chest containing “stripper clothes.” Id. McCoy told the Child
not to tell anyone about performing oral sex on him and threatened to harm her
physically if anyone found out.
[5] The Child stated McCoy indicated to her that now that she is getting older and
maturing physically, they can start having sex. The Child told the interviewer
that she did not want this to happen and that she was “tired” of McCoy. Id.
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She also expressed fear over McCoy’s request that she “put on a show” using
the outfits in the trunk and sex toys. Id.
[6] On December 1, 2014, the State charged McCoy with Count I, child molesting
as a Level 1 felony; Count II, incest as a Level 4 felony; Counts III, IV, V, and
VI, child molesting as Class A felonies; and Count VII, incest as a Class B
felony. On June 22, 2015, McCoy entered into a plea agreement with the State
whereby McCoy agreed to plead guilty to Counts I, IV, and VII, and the State
agreed to dismiss the remaining counts. The plea agreement further provided
for open sentencing, but with a sixty-year cap on executed time. The trial court
held a guilty plea and sentencing hearing on July 13, 2015.
[7] As a factual basis for Count I, McCoy admitted that he submitted on multiple
occasions to sex acts consisting of his daughter performing oral sex upon him
between July 1 and November 1, 2014. McCoy further admitted that his
daughter was under the age of fourteen when these acts occurred. As a factual
basis for Count IV, McCoy admitted that he engaged in sexual contact with his
daughter between January 1 and December 31, 2013. The sex acts consisted of
him having his daughter perform oral sex on him. With regard to Count VII,
McCoy admitted that he is the Child’s biological father, that the Child was
under sixteen years of age, that he was over twenty-one years old, and that he
submitted to deviate sexual conduct (i.e., oral sex) with her between January 1,
2010 and June 30, 2014. The trial court found that an adequate factual basis
existed and accepted McCoy’s guilty pleas to Count I, IV, and VII. The trial
court then sentenced McCoy to thirty-five years on Count I, thirty-five years on
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Count IV, and fifteen years on Count VII. The trial court ordered the sentences
served consecutively for an aggregate sentence of eighty-five years, of which the
trial court ordered sixty years executed and the balance suspended. Additional
facts will be provided as necessary.
Discussion & Decision
1. Hearsay
[8] McCoy argues that trial court improperly admitted hearsay evidence presented
by way of the recording of the Child’s forensic interview and the testimony of
the Child’s foster parent during the sentencing hearing.4 Specifically, McCoy
argues that admission and consideration of such hearsay evidence violated his
right to confrontation as set forth in Article 1, Section 13 of the Indiana
Constitution.
[9] We begin by noting that McCoy did not object to the trial court’s consideration
of the Child’s forensic interview. Generally, the failure to object results in
waiver of the issue for appellate review. See Cole v. State, 28 N.E.3d 1126, 1135
(Ind. Ct. App. 2015). To avoid waiver, McCoy argues that the trial court
committed fundamental error by admitting into evidence the video of the
4
During the sentencing hearing, the Child’s current foster parent testified that the Child has emotional
problems and struggles with behaving appropriately at school and around other children. She further testified
that the Child has inappropriate knowledge about sex given her age. In terms of hygiene, the Child refuses to
wash her private area. The Child’s foster parent testified that she struggles with what has happened to her
because she loves her father and wants to please him.
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Child’s forensic interview and then by considering such hearsay evidence in
deciding what sentence to impose. Fundamental error is error that “constitutes
a blatant violation of basic principles, the harm or potential for harm is
substantial, and the resulting error denies the defendant fundamental due
process.” Id. (quoting Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006)).
[10] The basis of McCoy’s argument on appeal is that the Child’s forensic interview
and her foster parent’s testimony constituted hearsay. It has long been
established that hearsay is admissible at sentencing hearings. Stokes v. State, 828
N.E.2d 937, 941 (Ind. Ct. App. 2005), trans. denied; see also Ind. Evidence Rule
101(c)(2) (“[t]he rules . . . do not apply in . . . proceedings relating to . . .
sentencing”). “The rationale for exempting certain proceedings, including
sentencing, from the rules of evidence is to provide the trial judge with the
widest range of relevant information in reaching an informed decision.” Dumas
v. State, 803 N.E.2d 1113, 1121 (Ind. 2004). Thus, the hearsay about which
McCoy now complains was properly admitted during the sentencing hearing.
There was no error, let alone fundamental error.
[11] Notwithstanding the above, McCoy asks that we extend the protections
afforded by Article 1, Section 135 of the Indiana Constitution to bar hearsay
evidence in sentencing hearings. McCoy acknowledges that there is no case
law to support his argument, but nonetheless submits that the protections
5
Article 1, Section 13 of the Indiana Constitution provides a criminal defendant the right of confrontation:
“In all criminal prosecutions, the accused shall have the right . . . to meet the witnesses face to face.”
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should be extended to “limited circumstances such as here where most of the
aggravation presented was in the form of hearsay.” Appellant’s Brief at 6.
[12] At the sentencing hearing, however, McCoy objected based on Crawford v.
Washington, 541 U.S. 36 (2004), which addressed the federal right of
confrontation.6 McCoy did not make a separate argument below regarding the
right of confrontation set forth in Article 1, Section 13. McCoy has therefore
waived this argument on appeal.7 See Lehman v. State, 730 N.E.2d 701, 703
(Ind. 2000) (noting that when a defendant presents one argument at trial and a
different argument on appeal, the claims are forfeited).
2. Inappropriate Sentence
6
In Crawford, the United States Supreme Court addressed admission of testimonial evidence at trial and the
impact on a defendant’s federal right of confrontation. 541 U.S. 36. The context of the analysis was
testimonial evidence admitted during trial, not a sentencing hearing. Since the Crawford decision, several
courts have held that the analysis therein does not apply to sentencing hearings. See, e.g., U.S. v. Francis, 39
F.3d 803, 810 (7th Cir. 1994). The rationale is that a sentencing hearing is not a criminal prosecution within
the meaning of the Sixth Amendment because its sole purpose is to determine the appropriate punishment for
the offense. See also Debro v. State, 821 N.E.2d 367, 374 (Ind. 2005).
7
Acknowledging that he did not raise a specific challenge under Article 1, Section 13, McCoy argues that the
denial of his state right to confrontation amounts to fundamental error. As noted above, fundamental error is
error that “constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and
the resulting error denies the defendant fundamental due process.” Cole, 28 N.E.3d at 1135.
Our Supreme Court has noted that the federal right of confrontation and the State’s right to a face-to-face
meeting are, to a considerable degree, co-extensive. Turner v. State, 953 N.E.2d 1039, 1055 n.8 (Ind. 2011);
Brady v. State, 575 N.E.2d 981, 986-87 (Ind. 1991). Nevertheless, “the rights guaranteed by our state
constitution are not necessarily identical to those provided by the federal constitution.” Turner, 953 N.E.2d
at 1055 n.8; Brady v. State, 575 N.E.2d981, 986-87 (Ind. 1991). Even assuming such is the case, we note that
here, McCoy admitted to the operative facts supporting his convictions and it is those core facts that served as
the basis for the trial court’s sentencing decision. McCoy forced the Child to perform oral sex on a regular
basis since she was a child of tender years. McCoy has not established that fundamental error occurred.
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[13] McCoy argues that his eighty-five year sentence with sixty years executed is
inappropriate “for a man forty-five (45) years of age with minimal criminal
record, who pled guilty to the charges and who himself had been physically and
mentally abused by his father as a child.” Appellant’s Brief at 4. McCoy asserts
that because his convictions under Counts I and IV are credit restricted felonies,
“it is likely, then, that [he] will serve the rest of his life in prison.” Id. at 5.
[14] Despite the fact that the trial court imposed a sentence that is authorized by
statute, we may revise McCoy’s sentence if, “after due consideration of the trial
court’s decision, [we] find that the sentence is inappropriate in light of the
nature of the offense and the character of the offender.” Ind. Appellate Rule
7(B). Ultimately, “[t]he principal role of appellate review should be to attempt
to leaven the outliers, and identify some guiding principles for trial courts and
those charged with improvement of the sentencing statutes, but not to achieve a
perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225
(Ind. 2008). Thus, “whether we regard a sentence as appropriate . . . 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.” Id. at 1224. In making this determination, the relevant considerations
are the length of the aggregate sentence and how it is to be served. Id. McCoy
bears the burden of persuading our court that his sentence is inappropriate.
Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012).
[15] We begin with the character of the offender. McCoy has a prior conviction for
domestic battery in 2000. McCoy also pled guilty and accepted responsibility
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for his actions in this case, thereby saving the Child from having to testify. In
its sentencing statement, the trial court noted that it found McCoy’s demeanor
“a little bizarre,” but nevertheless found that McCoy “expressed some measure
of remorse.” Transcript at 63. The court continued, explaining that it found it
to be an “attenuated expression of remorse,” and thus did not afford it much
weight. Id. These considerations are quite unremarkable in our consideration
of the character of the offender. Given the facts of this case, we find that the
nature of the offense is more telling of McCoy’s character.
[16] With regard to the nature of the offense, we note how the Child, now eleven,
recounted that since she was about four years old, McCoy, her biological father,
would make her “suck his dick” every Saturday and at other times of his
choosing. State’s Exhibit 1. The Child described McCoy’s penis as tasting like
“crap” and how he would use a bubblegum flavored lubricant to make it taste
better. Id. Starting around January 2014, McCoy started putting his finger on
her vagina while she was performing oral sex on him. On one occasion he put
his finger in her vagina causing the Child pain and discomfort. In the trial
court’s words, McCoy kept the Child as his “sexual slave . . . to be used at [his]
whim to satisfy his sexual desires.” Transcript at 64. The nature of this offense
is particularly heinous. McCoy’s sixty-year executed sentence is not
inappropriate.8
8
We further note that although McCoy reserved the right to challenge his sentence in his plea agreement, he
also agreed to a sixty-year cap on executed time.
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3. Consecutive Sentences
[17] McCoy argues that the trial court improperly relied upon the age of the victim,
an element of the crimes to which he pled guilty, in ordering that his sentences
be served consecutively. The decision to impose consecutive sentences lies
within the discretion of the trial court. Gross v. State, 22 N.E.3d 863, 869 (Ind.
Ct. App. 2014), trans. denied. A trial court is required to state its reasons for
imposing consecutive sentences. Id. Moreover, a single aggravating
circumstance may justify the imposition of consecutive sentences. Gilliam v.
State, 901 N.E.2d 72, 74 (Ind. Ct. App. 2009).
[18] Here, the trial court found as an aggravating factor that the Child was of an
“extreme tender age” when the abuse began and further noted that such age
was “well below the age . . . necessary to establish the elements of the offense.”
Transcript at 66. This was not improper. See Kien v. State, 782 N.E.2d 398, 414
(Ind. Ct. App. 2003) (holding that it was not improper to consider that the
victim was of “tender age” as an aggravating circumstance); Stewart v. State, 531
N.E.2d 1146, 1150 (Ind. 1988) (holding that trial court could properly consider
age of the victim in a child molesting case as an aggravating circumstance
where the victim was considered to be of “tender age”).
[19] In addition to the Child’s age, the trial court considered as aggravating that
McCoy abused a position of trust and that the pattern of abuse, sexual and
physical, was ongoing and occurred over a long period of time. The trial court
found that McCoy’s conduct had a “very powerful impact” on the Child and
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specifically noted that the Child is having a “very difficult time trusting anyone”
and is having “real difficulties in developing normal social friendships.”
Transcript at 65. The trial court identified ample aggravating circumstances to
support imposition of consecutive sentences resulting in the maximum sixty-
year executed term allowed under the plea agreement.
[20] Judgment affirmed.
[21] Robb, J., and Barnes, J., concur.
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