Johnny Riley Jonas 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 Sep 24 2019, 9:22 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
R. Patrick Magrath Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Attorney General of Indiana
Magrath, LLP
Megan M. Smith
Madison, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Johnny Riley Jonas, September 24, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-3121
v. Appeal from the Jackson Circuit
Court
State of Indiana, The Honorable Richard W.
Appellee-Plaintiff Poynter, Judge
Trial Court Cause No.
36C01-1612-F4-27
Baker, Judge.
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[1] Johnny Riley Jonas appeals his convictions and sentence for Level 4 Felony
Child Molesting1 and Level 6 Felony Domestic Battery,2 arguing that the
evidence is insufficient to support the child molesting conviction and that the
sentence is inappropriate in light of the nature of the offenses and his character.
Finding that the evidence is sufficient and that the sentence is not inappropriate,
we affirm.
Facts
[2] Jonas married his wife, Rebecca Hawn, on February 12, 2016. At the time,
Rebecca had two children from prior relationships, R.W. and O.T. Rebecca
gave birth to her and Jonas’s son, S.J., in May 2016. As of September 2016,
Jonas lived with Rebecca, R.W., O.T., and S.J. The family lived together in
one shared bedroom at Jonas’s parent’s house. R.W. and O.T., aged four and
two at the time, slept in a bunk bed, S.J. slept in a crib, and Jonas and Rebecca
shared a mattress on the floor.
[3] At some point in September 2016, Billie Richie was babysitting R.W. and
another boy when Billie saw R.W. standing over the boy and heard R.W. state
that she was “going to kiss him,” motioning to the boy’s genitals. Tr. Vol. II p.
51. When Billie asked R.W. where she had learned that, R.W. responded that
she had learned it from Jonas and that “me and my Mommy kisses Johnny
1
Ind. Code § 35-42-4-3(b).
2
I.C. § 35-42-2-1.3(a)(1), -1.3(b)(2).
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down there.” Tr. Vol. II. p. 51. Billie then texted Rebecca that there was an
emergency with R.W. and to come pick her up. When Rebecca arrived, Jonas
waited in the car while Billie told Rebecca what had happened. Rebecca left
with R.W. and told Jonas about R.W.’s statement to Billie, at which point
Jonas denied that he had touched R.W., asked R.W. several questions, and
attempted to get her to say that Billie’s husband, Patrick Richie, was the one
who had touched her, not Jonas. Jonas then drove the family to the police
station to report that Patrick had molested R.W.
[4] The next day, R.W. was forensically interviewed by Kelly Bridges at the Child
Advocacy Center. Bridges testified that she only knew to gather information
regarding Patrick, not Jonas. R.W. stated during the interview that Patrick was
mean and once had tried to choke her, but that he had never touched her
private parts. R.W. told Bridges that Jonas, not Patrick, had previously
“tickled” her “where she pees,” state’s ex. 3, and that, while R.W. and
everyone else slept in the shared bedroom, Jonas had climbed into R.W.’s bed,
pulled down her pants, and tickled her vagina. R.W. first told Bridges that this
had happened in a dream, but later said it happened in real life. When asked,
R.W. repeatedly stated that nobody besides Jonas had touched her private
parts. Bridges testified that R.W. was consistent throughout the interview and
answered questions in a manner appropriate for her age and development.
[5] As a result of the forensic interview, the Department of Child Services (DCS)
became involved with the family. DCS employees told Rebecca that Jonas had
molested R.W. and that she and the children were required to move out of the
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house. However, after four to five weeks, DCS had not yet substantiated the
allegations, so Rebecca and the children moved back into Jonas’s parents’
home.
[6] On November 26, 2016, the day after R.W.’s fifth birthday, Jonas and Rebecca
had an altercation at home during an argument about R.W.’s biological father
contacting Rebecca. Jonas accused Rebecca of lying and cheating on him, and
stated that if Rebecca did not tell him the truth, Jonas would “tell [her] the truth
about what he does to the kids.” Tr. Vol. II p. 124. Rebecca testified that Jonas
then demonstrated what he meant by picking up R.W., bending her over his
knee, and rubbing her genitals; he then did the same thing with O.T.
[7] The argument ultimately ended in a shoving match in which Jonas shoved
Rebecca into the freezer, causing her to fall to the ground and items on top of
the freezer to fall to the floor. Rebecca locked Jonas out of the house and called
911. Rebecca told the officer who responded that Jonas had molested R.W.,
and R.W. told him that Jonas had tickled her vagina. Jonas was arrested and
later called Rebecca from jail, asking her to tell the police she was lying.
[8] On December 1, 2016, Jonas was charged with three counts of Level 4 felony
child molesting, one count of Class C felony child molesting,3 and one count of
Level 6 felony domestic battery. A jury trial took place October 16-18, 2018.
At trial, R.W. testified about the events of November 26, 2016, but testified that
3
The State later dismissed this count.
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she could not remember if Jonas had molested her prior to that date. She
testified that nobody besides Jonas had ever touched her private parts.
[9] At the conclusion of the trial, the jury found Jonas guilty of one count of Level
4 felony child molesting and of Level 6 domestic battery; the jury found him not
guilty of the remaining charges. On November 29, 2018, Jonas was sentenced
to nine years for child molesting and one year for domestic battery, to be served
consecutively, for an aggregate sentence of ten years imprisonment. Jonas now
appeals.
Discussion and Decision
I. Sufficiency of the Evidence
[10] Jonas’s first argument on appeal is that the evidence is insufficient to support
his Level 4 felony child molesting conviction. In reviewing the sufficiency of
the evidence to support a conviction, we must consider only the probative
evidence and the reasonable inferences supporting the conviction and will
neither assess witness credibility nor reweigh the evidence. Drane v. State, 867
N.E.2d 144, 146 (Ind. 2007). We will affirm unless no reasonable factfinder
could find the elements of the crime proved beyond a reasonable doubt. Id.
[11] To convict Jonas of Level 4 felony child molesting, the State was required to
prove beyond a reasonable doubt that Jonas performed or submitted to any
fondling or touching of or by R.W., who was under age fourteen, with the
intent to arouse or satisfy the sexual desires of R.W. or himself. I.C. § 35-42-4-
3(b). Jonas does not argue that the specific statutory elements are unsupported
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by sufficient evidence, but instead asserts that the conviction should be reversed
because it is based on incredibly dubious evidence.
[12] To warrant reversal under the rule of incredible dubiosity, there must be: “‘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.’” Smith v. State, 34 N.E.3d 1211, 1221 (Ind. 2015) (quoting Moore v.
State, 27 N.E.3d 749, 756 (Ind. 2015)). Application of the rule is very rare and
is limited to these specific circumstances because we are extremely hesitant to
invade the jury’s function to judge witness credibility. Id. The applicable
standard is “‘whether the testimony is so incredibly dubious or inherently
improbable that no reasonable person could believe it.’” Levya v. State, 971
N.E.2d 699, 702 (Ind. Ct. App. 2012) (quoting Love v. State, 761 N.E.2d 806,
810 (Ind. 2002)).
[13] Here, the rule of incredible dubiosity does not apply because there were
multiple witnesses who testified at trial. But even if it did, we would affirm the
conviction because the evidence is not inherently contradictory, equivocal, or
the result of coercion, and thus fails to meet the incredibly dubious standard.
[14] Jonas claims that R.W.’s testimony was inherently improbable due to the
logistics of the allegation and inconsistent statements made by R.W. prior to
trial. Specifically, he first argues that the “mere logistics” of Jonas climbing
into the bunk bed, pulling down R.W.’s pants, touching her vagina, and
returning to his own bed all while the three other family members slept is
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inherently improbable. Appellant’s Br. p. 13. He then argues that R.W.’s own
statements are inherently improbable because of their inconsistencies and her
behavior during the forensic interview, during which R.W. initially claimed the
touching happened in a dream before stating, repeatedly, that it happened in
real life. Jonas also points to R.W.’s apparent inability to maintain focus
during the interview, her young age, and the fact that the video interview was
unsworn as reasons to treat R.W.’s statements as inherently improbable.
[15] None of these grounds renders the evidence incredibly dubious. We have
previously rejected an incredible dubiosity argument where the child victim
testified that the defendant molested her while the rest of the family slept in the
same room and no one else heard or saw the alleged conduct. Levya, 971
N.E.2d at 701-02 (“[W]e cannot say that the testimony of [victim] regarding
Levya’s actions . . . was so inherently improbable that no reasonable person
could believe it.”). Here, a reasonable person could likewise believe that Jonas
climbed into her bed while she and the rest of the family slept, pulled her pants
down, and touched her vagina. Therefore, Jonas’s argument regarding the
logistics of the allegation fails to meet the incredibly dubious standard.
[16] Further, R.W.’s statement that the touching happened in a dream does not
make her later testimony that the touching happened in real life inherently
improbable or contradictory. In evaluating whether testimony is inherently
contradictory, the question is whether there were inconsistencies within the trial
testimony itself, rather than whether it was inconsistent with other evidence or
statements made prior to trial. Smith, 34 N.E.3d at 1221; see also Murray v. State,
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761 N.E.2d 406, 409 (Ind. 2002) (“The fact that a witness gives trial testimony
that contradicts earlier pre-trial statements does not necessarily render the trial
testimony incredibly dubious.”).
[17] Here, R.W. made four separate and consistent disclosures about Jonas touching
her, and Jonas even demonstrated for Rebecca what he had done. The only
times R.W. made statements to the contrary were when Jonas first told her to
say Patrick Richie had molested her, and then during the interview with Bridges
when R.W. first described the touching as happening in a dream. Anyone
waking up in the middle of the night to someone touching them inappropriately
might feel as if they were in a dream-like state, especially a four-year-old child.
Given R.W.’s consistency at trial and the lack of any additional evidence that
her testimony is inherently improbable, we find the evidence sufficient to
support the child molesting conviction.
II. Sentencing
[18] Jonas’s second argument on appeal is that his sentence is inappropriate and
should be revised in light of the nature of the offenses and his character.
[19] Indiana Appellate Rule 7(B) provides that this Court may revise a statutorily
authorized sentence “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.” In conducting this review, “substantial
deference” must be given 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
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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). The defendant bears the burden of proving that the sentence
is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[20] For Level 4 felony child molesting, Jonas faced a term of two to twelve years,
with an advisory sentence of six years. Ind. Code § 35-50-2-5.5. For Level 6
felony domestic battery, Jonas faced a term of six months to two and one-half
years, with an advisory sentence of one year. I.C. § 35-50-2-7(b). The trial
court imposed a nine-year term for the child molesting conviction and a one-
year term for the domestic battery conviction, to be served consecutively, for an
aggregate term of ten years.
[21] With respect to the nature of the offenses, the advisory sentence is treated as
“the starting point the Legislature selected as appropriate for the crime
committed,” Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014), and serves as a
guideline for imposing a fair and proportional sentence, Hamilton v. State, 955
N.E.2d 723, 726 (Ind. 2011). Maximum sentences, in contrast, are reserved for
those offenses constituting the “worst of the worst.” Id. In deciding to increase
Jonas’s sentence beyond the advisory term, the trial court specifically noted
R.W.’s young age, Jonas’s position of control or authority over R.W. as her
stepfather, and the fact that this was not an isolated incident.
[22] Our courts have consistently held that a victim’s age in child molestation
offenses generally supports a sliding scale in sentencing, with younger ages of
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victims supporting harsher sentences. Id. at 727-28 (finding that nine-year-old
molestation victim, “although still young, was not of tender years,” and that her
age did not, on its own, support a harsher sentence); Light v. State, 926 N.E.2d
1122, 1124 (finding that the young age of the victims, ages six, one, and two-
months, “highlight[ed] the depravity of [defendant’s] offenses and her lack of
character”). In some cases, young age alone may support a longer sentence.
See Bresson v. State, 498 N.E.2d 91, 97 (Ind. Ct. App. 1986) (upholding trial
court’s sentence where the only aggravating factor was two-year-old victim’s
young age). Here, R.W. was only four years old and thus was of “particularly
tender years” when she was molested, which is a valid basis for imposing an
increased sentence. Buchanan v. State, 767 N.E.2d 967, 971 (Ind. 2002).
[23] As R.W.’s stepfather, Jonas was in a position of care, control, or authority over
R.W., a position this Court has also long recognized as highly relevant in
reviewing the nature of the offense for sentencing purposes. See, e.g., Hamilton,
955 N.E.2d at 727; Singer v. State, 674 N.E.2d 11 (Ind. Ct. App. 1996);
Middlebrook v. State, 593 N.E.2d 212, 214 (Ind. Ct. App. 1992) (“A reasonable
person could conclude that the imposition of the maximum sentence . . . for the
offense of child molesting where the victims were defendant’s daughter and
step-daughter is appropriate.”). Here, as R.W.’s stepparent, Jonas abused his
position of care and control when he molested her.
[24] Next, repeatedly committing acts and patterns of molestation over long periods
of time, as opposed to committing molestation on one isolated incident, is a
valid basis for imposing a higher sentence for child molesting. Singer, 674
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N.E.2d at 14; contra Hamilton, 955 N.E.2d at 723 (revising sentence for child
molesting and noting, as one reason, the fact that defendant “engaged in a
single act of sexual misconduct as opposed to a long-term pattern of abuse and
violence”). Here, although R.W. could only recall the November 2016 incident
in her trial testimony, the record suggests Jonas had, in fact, molested R.W. at
least once prior to November 2016.
[25] With respect to Jonas’s character, we note that other than the two prior
convictions for operating while intoxicated, Jonas has no criminal record.
Though these two offenses occurred only a few years before the offenses at issue
in this case, they are otherwise wholly unrelated in nature and do not, without
more, support an enhanced sentence. See Hamilton, 955 N.E.2d at 727
(reducing maximum sentence for child molesting in part because defendant’s
criminal history contained only a misdemeanor DUI and felony robbery, both
of which occurred over seven years prior to the molestation and were unrelated
to sexual misconduct); Ruiz v. State, 818 N.E.2d 927, 929 (Ind. 2004)
(concluding that criminal history with four alcohol-related offenses did not
support a harsher sentence for felony child molesting, even when alcohol had
been involved in the molesting offense).
[26] We concede that there is no right answer as to the proper sentence in this case
or in any other, and that our sense of what is appropriate ultimately “turns on
our sense of the culpability of the defendant, the severity of the crime, the
damage done to others, and myriad of other factors that come to light in a given
case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). “[A]ppellate review
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and revision [of sentences] ultimately boils down to the appellate court’s
‘collective sense of what is appropriate, not a product of a deductive reasoning
process.’” Brown, 10 N.E.3d at 8 (quoting Cardwell, 895 N.E.2d at 1225).
[27] We agree with Jonas that neither his offenses nor his character are the worst of
the worst. But the trial court did not impose the maximum term for either
conviction. Given this record and our deference to trial courts in sentencing
matters, we find that the aggregate ten-year term is not inappropriate in light of
the nature of the offenses and Jonas’s character.
[28] The judgment of the trial court is affirmed.
Robb, J., and Pyle, J., concur.
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