Tony W. Heroy v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 21 2017, 8:32 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
Donald R. Shuler Curtis T. Hill, Jr.
Barkes, Kolbus, Rife & Shuler, LLP Attorney General of Indiana
Goshen, Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tony W. Heroy, March 21, 2017
Appellant-Defendant, Court of Appeals Case No.
20A05-1607-CR-1572
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Teresa L. Cataldo,
Appellee-Plaintiff. Judge
Trial Court Cause No.
20D03-1407-FA-21
Robb, Judge.
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Case Summary and Issues
[1] Following a jury trial, Tony Heroy was convicted of child molesting as a Class
A felony and the trial court sentenced him to forty-five years executed in the
Indiana Department of Correction. Heroy appeals his conviction and sentence,
raising four issues for our review, which we consolidate and restate as: 1)
whether the trial court abused its discretion in admitting evidence, 2) whether
the evidence is sufficient to sustain his conviction, and 3) whether his sentence
is inappropriate in light of the nature of the offense and his character.
Concluding the trial court did not abuse its discretion in admitting evidence, the
evidence is sufficient, and Heroy’s sentence is not inappropriate, we affirm.
Facts and Procedural History
[2] In 2011, B.G. lived with her father, M.J., and step-mother, S.J., in Elkhart,
Indiana. Heroy, B.G.’s step-uncle, also lived nearby. Over the next several
years, B.G. often spent time at Heroy’s residence to visit with family and also
when Heroy babysat B.G.
[3] In July 2014, then ten-year-old B.G. spent the night at C.R’s home; C.R. is a
member of B.G.’s extended family. B.G. explained to C.R. that Heroy had
previously touched her several times in a sexual manner. C.R. informed S.J. of
B.G.’s statements and S.J. contacted law enforcement.
[4] On July 17, 2014, a child forensic interviewer from the Child and Family
Advocacy Center interviewed B.G., which was video recorded. During the
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interview, B.G. stated Heroy began touching her when she was approximately
seven or eight years old and the touching occurred at two of Heroy’s residences
over the years. B.G. explained that, on at least one occasion, Heroy called her
into his bedroom, positioned her on the bed, and pulled her pants and
underwear down to her ankles. Using his hands, Heroy touched B.G.’s vagina,
butt, and breasts, and also rubbed his penis on her butt and vagina. B.G. also
explained that when she was nine years old, Heroy performed oral sex on her
and she observed “white stuff” coming out of Heroy’s penis. State’s Exhibit 8
at 17:20-17:30. B.G. estimated the touching occurred several times over the
years, and at times, Heroy gave B.G. money and asked her to keep it a secret.
[5] On July 22, 2014, the State charged Heroy with child molesting as a Class A
felony. In January 2016, Heroy wrote a letter to his wife from jail describing
B.G. as a “little c*nt” and requesting his wife find a witness who could falsely
claim B.G. admitted to lying about Heroy’s acts. State’s Ex. 7. The letter was
accidentally sent to Heroy’s brother and later given to law enforcement. On
March 24, 2016, Heroy filed a motion in limine seeking to bar the State from
admitting evidence of the letter at trial, which the trial court denied.
[6] At trial, B.G. testified generally to the sexual encounters, but at times was
unable to provide specific answers, citing an inability to remember. During a
brief recess, the State attempted to refresh B.G.’s memory by having her view
the recording of the interview. B.G. claimed the interview did not sufficiently
refresh her recollection. The State then moved to admit the video recording of
the interview into evidence, which the trial court granted over Heroy’s
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objection. The trial court also admitted the letter over Heroy’s objection. A
jury found Heroy guilty as charged and the trial court sentenced him to forty-
five years executed in the Department of Correction. This appeal ensued.
Additional facts will be added as necessary.
Discussion and Decision
I. Admission of Evidence
A. Standard of Review
[7] The admissibility of evidence is within the sound discretion of the trial
court. Cherry v. State, 971 N.E.2d 726, 730 (Ind. Ct. App. 2012), trans. denied. A
trial court may abuse its discretion in admitting evidence if its decision is clearly
against the logic and effect of the facts and circumstances before the court, or if
the court has misinterpreted the law. Id.
B. The Letter
[8] Heroy contends the trial court abused its discretion in admitting the letter.
Specifically, he claims the probative value of the letter is substantially
outweighed by the danger of unfair prejudice and the letter’s admission likely
inflamed the passions of the jurors. We disagree.
[9] Indiana Rule of Evidence 401 states evidence is relevant if it has “any tendency
to make a fact more or less probable than it would be without the evidence . . .
and the fact is of consequence in determining the action.” However, a trial
court maintains the discretion to exclude relevant evidence “if its probative
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value is substantially outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay, or
needlessly presenting cumulative evidence.” Ind. Evidence Rule 403. In
criminal prosecutions, all relevant evidence is inherently prejudicial to a
defendant. Sanders v. State, 840 N.E.2d 319, 323 (Ind. 2006). Therefore, to
determine whether evidence is unfairly prejudicial, “courts should look for the
dangers that the jury will substantially overestimate the value of the evidence or
that the evidence will arouse or inflame the passions or sympathies of the jury.”
Bell v. State, 29 N.E.3d 137, 142 (Ind. Ct. App. 2015), trans. denied.
[10] In the letter, Heroy describes B.G. in a vulgar manner and requests his wife find
a witness who could claim B.G. lied about Heroy’s acts of molestation. Such
evidence is relevant and highly probative as it indicates Heroy’s consciousness
of guilt and intent to discredit a child victim’s testimony. Although we
acknowledge the letter does have some prejudicial impact and the potential to
arouse or inflame the passions of the jury, we cannot say the admission of the
letter was unfairly prejudicial. We conclude the trial court did not abuse its
discretion in admitting the letter.
C. The Interview
[11] Heroy contends the trial court abused its discretion in admitting a video
recording of the interview. Specifically, he claims the interview constitutes
inadmissible hearsay and further argues its admission violated his right to
confront B.G. The State counters the admission of the interview falls within the
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recorded recollection exception to the hearsay rule and Heroy’s confrontation
rights were not infringed upon because he had an opportunity to face B.G. and
cross-examine her at trial. We agree with the State as to both issues and find no
error in the admission of the interview.
1. Recorded Recollection
[12] Heroy first contends the interview is inadmissible hearsay. “Hearsay is an out-
of-court statement offered in court to prove the truth of the matter
asserted.” Coleman v. State, 946 N.E.2d 1160, 1168 (Ind. 2011) (citing Ind.
Evidence Rule 801(c)). Hearsay can be admissible, however, if it falls within
one of the exceptions delineated in Indiana Evidence Rule 803. Evid. R. 802.
Here, the parties acknowledge the interview constitutes hearsay but dispute
whether the interview was properly admitted under the recorded recollection
exception, which provides that a record may be admitted into evidence if the
record: “(A) is on a matter the witness once knew about but now cannot recall
well enough to testify fully and accurately; (B) was made or adopted by the
witness when the matter was fresh in the witness’s memory, and (C) accurately
reflects the witness’s knowledge.” Evid. R. 803(5). Specifically, it appears
Heroy only challenges the first prong, arguing B.G.’s “memory as displayed
during her testimony should not have been considered so insufficient to warrant
application of the recorded recollection hearsay exception.” Appellant’s Brief
at 13.
[13] At trial, B.G. testified generally as to how Heroy touched her vagina with his
penis and mouth. However, B.G. was unable to answer some questions due to
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her inability to remember certain details of the sexual encounters and
acknowledged having a better memory during the interview. B.G. was then
excused from the stand, and during a brief recess, B.G. viewed the interview.
Following the recess, the State recalled B.G. to the stand. B.G. then
acknowledged she struggled to answer the State’s questions in her previous
testimony due to her memory, and although reviewing the interview helped her
remember some details, she felt the interview adequately described details of the
events she still could not remember. She further explained her statements
during the interview were truthful. The State then moved to admit a redacted
portion of the interview, which the trial court allowed over Heroy’s objection.
[14] We conclude the interview was properly admitted under the recorded
recollection exception to the hearsay rule. B.G. clearly could not recall some
specific details of Heroy’s acts. During the interview and at trial, B.G. noted
the statements she made in the interview were truthful. In addition, she
acknowledged the interview provided a level of detail she could not fully
provide at the time of trial. We further note her testimony pertaining to the
events she could recall at the time of trial were consistent with the statements
she made during the interview. We conclude the interview pertained to a
matter B.G. once knew about but could not remember well enough to
accurately and fully recall at trial. See Horton v. State, 936 N.E.2d 1277, 1283
(Ind. Ct. App. 2010) (finding the admission of a videotaped interview under the
recorded recollection exception to the hearsay rule was proper in light of the
fact the child victim could not recall “some specific details” during live
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testimony, the victim’s statements at trial were consistent with the statements
made during the interview, and the victim timely adopted the statements made
during the interview as accurate), summarily aff’d on this ground, 949 N.E.2d 346
(Ind. 2011).
2. Confrontation Clause
[15] Heroy also contends the admission of the interview into evidence violated the
Confrontation Clauses of the United States and Indiana Constitutions.
Specifically, he claims the vast majority of evidence showing his culpability
stemmed from the admission of the interview, and because the interview
occurred nearly a year and one-half prior to trial, he was deprived of a genuine
opportunity to cross-examine B.G. We disagree.
[16] The Sixth Amendment to the United States Constitution guarantees that, “In
all criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him . . . .” Similarly, Article 1, Section 13 of the
Indiana Constitution guarantees that, “In all criminal prosecutions, the accused
shall have the right . . . to meet the witnesses face to face . . . .” However, in
the event a declarant is unable to recall certain events during live testimony, the
Confrontation Clause is satisfied as long as the declarant is available for cross-
examination. Fowler v. State, 829 N.E.2d 459, 464 (Ind. 2005), cert. denied, 547
U.S. 1193 (2006). Stated differently, “if the declarant ‘appears for cross-
examination at trial,’—sometimes treated as equivalent to ‘available’—the
opportunity for cross-examination on the witness stand is sufficient for purposes
of the Confrontation Clause.” Id. Here, B.G. testified at trial, Heroy had an
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opportunity to face B.G., and B.G. was subject to cross-examination before and
after the interview was admitted into evidence. Heroy’s argument fails.
II. Sufficiency of the Evidence
A. Standard of Review
[17] When reviewing the sufficiency of the evidence needed to support a criminal
conviction, we neither reweigh the evidence nor judge witness
credibility. Smart v. State, 40 N.E.3d 963, 966 (Ind. Ct. App. 2015). Rather, we
consider only the evidence supporting the judgment and any reasonable
inferences arising from such evidence. Id. We will affirm a conviction unless
“no reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt.” Drane v. State, 867 N.E.2d 144, 146-47 (Ind.2007) (citation
omitted).
B. Child Molesting
[18] Heroy contends the evidence is insufficient to support his conviction for child
molesting. To prove Heroy committed child molesting as a Class A felony as
charged, the State was required to prove Heroy, being a person of at least
twenty-one years of age, performed or submitted to sexual intercourse or
deviate sexual conduct with B.G., a child under the age of fourteen. Ind. Code
§ 35-42-4-3(a) (2007). “‘Deviate 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-
31.5-2-94 (2012).
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[19] At the outset, we note B.G.’s testimony establishes Heroy performed deviate
sexual conduct when he performed oral sex on her and the uncorroborated
testimony of a victim or eyewitness is sufficient to sustain a conviction. See
Hubbard v. State, 719 N.E.2d 1219, 1220 (Ind. 1999). Heroy acknowledges this
point, see Appellant’s Br. at 26, but contends the doctrine of incredible dubiosity
dictates his conviction cannot stand. The incredible dubiosity rule allows a
reviewing court to “impinge on the jury’s responsibility to judge the credibility
of the witnesses only when it has confronted inherently improbable testimony
or coerced, equivocal, wholly uncorroborated testimony . . . .” Moore v.
State, 27 N.E.3d 749, 755 (Ind. 2015) (citations and internal quotation marks
omitted). In other words, “Application of this rule is rare and the standard to
be applied is whether the testimony is so incredibly dubious or inherently
improbable that no reasonable person could believe it.” Love v. State, 761
N.E.2d 806, 810 (Ind. 2002). In Moore, our supreme court described the
appropriate scope of the rule, which requires: “1) a sole testifying witness; 2)
testimony that is inherently contradictory, equivocal, or the result of coercion;
and 3) a complete absence of circumstantial evidence.” 27 N.E.3d at 756. If all
three factors are not present, application of the incredible dubiosity rule is
precluded. Id. at 758.
[20] Here, we note Heroy does not point to any portion of the record showing
B.G.’s testimony was inherently contradictory, equivocal, or the result of
coercion. Instead, Heroy claims B.G., during the interview and at trial, was
unable to confidently say when the acts of molestation occurred. What Heroy
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fails to acknowledge, however, is the fact he molested B.G., a young child, on
several occasions over an extended period of time. In light of these
circumstances, B.G.’s inability to consistently and specifically identify when the
acts occurred does not make her testimony incredibly dubious. We decline
Heroy’s request to apply the doctrine of incredible dubiosity and conclude the
State presented sufficient evidence to sustain Heroy’s conviction for child
molesting as a Class A felony.
III. Inappropriateness of Sentence
[21] Indiana Appellate Rule 7(B) provides, “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.” The defendant bears the burden of
persuading this court his or her sentence is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as inappropriate
turns on “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.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role
of appellate review is to “leaven the outliers,” not achieve the perceived
“correct” result in each case. Id. at 1225.
[22] The advisory sentence is the starting point the legislature selected as an
appropriate sentence for the crime committed. Anglemyer v. State, 868 N.E.2d
482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). Here, Heroy
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was convicted of child molesting as a Class A felony. A person convicted of a
Class A felony shall be imprisoned for a fixed term of between twenty and fifty
years, with the advisory sentence being thirty years. Ind. Code § 35-50-2-4(a).
The trial court sentenced Heroy to forty-five years executed in the Department
of Correction.
[23] As to the nature of the offense, we note Heroy took advantage of B.G. several
times over an extended period of time, all while he was in a position of trust,
care, and authority over her. In addition, Heroy gave B.G. money after several
sexual encounters and requested she keep the encounters a secret. As to
Heroy’s character, we note he attempted to avoid responsibility for his conduct
by requesting his wife find a witness who would falsely claim B.G. fabricated
the acts of molestation. Also in the letter, Heroy described B.G., his niece, as a
“little c*nt.” State’s Ex. 7. Although these prior two points speak greatly to
Heroy’s character, we further note Heroy has been convicted of at least three
prior crimes, including child abuse, and has violated probation on two
occasions. We conclude Heroy’s sentence is not inappropriate in light of the
nature of the offense and his character.
Conclusion
[24] We conclude the trial court did not abuse its discretion in admitting evidence,
the evidence is sufficient to sustain Heroy’s conviction, and Heroy’s sentence is
not inappropriate. Accordingly, we affirm.
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[25] Affirmed.
Kirsch, J., and Barnes, J., concur.
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