Adrian P. Jerrell v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the Mar 20 2013, 8:31 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEVEN E. RIPSTRA GREGORY F. ZOELLER
Ripstra Law Office Attorney General of Indiana
Jasper, Indiana
J.T. WHITEHEAD
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ADRIAN P. JERRELL, )
)
Appellant-Defendant, )
)
vs. ) No. 63A01-1207-CR-326
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE PIKE CIRCUIT COURT
The Honorable Jeffrey L. Biesterveld, Judge
Cause No. 63C01-1111-FA-536
March 20, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issues
Adrian P. Jerrell was convicted of two counts of child molesting, both Class A
felonies, and two counts of sexual misconduct with a minor, both Class B felonies. He
was sentenced to an aggregate seventy-year term of imprisonment. Jerrell now appeals,
raising the following issues: 1) whether there was sufficient evidence to sustain his child
molesting convictions; 2) whether the trial court erred when it allowed the State to cross-
examine him during his allocution at sentencing; and 3) whether his sentence is
inappropriate in light of the nature of the offenses and his character. Concluding there
was sufficient evidence, allowing cross-examination at allocution was not fundamental
error, and the sentence is not inappropriate, we affirm.
Facts and Procedural History
The evidence most favorable to the judgment indicates that the victim, E.D., was
ten or eleven years old when he met Jerrell through his church youth group. Jerrell
supervised youth group activities, which included camping out in Jerrell’s backyard.
E.D. and Jerrell became good friends despite the twenty-five-year age difference between
them. Jerrell would pick up E.D. from his grandfather’s house and help him complete
odd jobs in the community.
Jerrell introduced E.D. to sexuality six months to a year after they met. Jerrell
showed pornographic videos to E.D. and the other youth group children while camping in
his backyard. Further, Jerrell would show E.D. pornographic magazines while they were
alone in his truck. The Truth or Dare games played by Jerrell led to him daring E.D. to
show him his penis and to him showing E.D. his penis. This progressed to oral sex and
later anal sex. E.D. testified that he was twelve or thirteen years old the first time oral
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sex occurred and under fourteen the first time anal sex occurred. The molestation ended
when E.D. became sixteen years old, obtained a driver’s license, and no longer relied on
Jerrell for rides. Several years later, E.D. told his father about what happened, who in
turn reported it to the police.
Jerrell was charged with two counts of child molesting, both Class A felonies, and
two counts of sexual misconduct with a minor, both Class B felonies. The jury returned a
verdict of guilty on all four counts. During sentencing, Jerrell exercised his right of
allocution and the State cross-examined him on his statement. The trial court sentenced
Jerrell to concurrent fifty-year terms for the child molesting convictions to be served
consecutively to concurrent twenty-year terms for the sexual misconduct convictions, for
an aggregate seventy-year sentence. Jerrell now appeals. Additional facts will be
provided as necessary.
Discussion and Decision
I. Sufficiency of the Evidence
A. Standard of Review
Our standard of review for sufficiency claims is well-settled. We do not reweigh
the evidence or assess witness credibility for ourselves. Boggs v. State, 928 N.E.2d 855,
864 (Ind. Ct. App. 2010), trans. denied. We consider only the probative evidence and
reasonable inferences supporting the verdict. Id. It is not necessary that the evidence
overcome every reasonable hypothesis of innocence; the evidence is sufficient if an
inference may reasonably be drawn from it to support the verdict. Id. We will affirm the
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conviction unless no reasonable finder of fact could find the elements of a crime proven
beyond a reasonable doubt. Id.B. Evidence of E.D.’s Age
Jerrell was convicted of two counts of child molesting under Indiana Code section
35-42-4-3(a), which provides: “[a] person who, with a child under fourteen (14) years of
age, performs or submits to sexual intercourse or deviate sexual conduct commits child
molesting . . . .” Deviate sexual conduct is defined, in part, by statute as “an act
involving: (1) a sex organ of one (1) person and the mouth or anus of another person.”1
Ind. Code § 35-31.5-2-94. Jerrell contends that the evidence is insufficient to sustain his
child molesting convictions because E.D.’s testimony was conflicting regarding whether
the oral and anal sex started when he was under the age of fourteen.2 We disagree.
The uncorroborated testimony of the victim is sufficient to sustain a conviction of
child molesting. Feyka v. State, 972 N.E.2d 387, 393 (Ind. Ct. App. 2012), trans. denied.
This is true even if there are inconsistencies in the victim’s own testimony. Id. Here,
E.D. testified that he was twelve or thirteen years old when Jerrell dared him to put his
mouth on Jerrell’s penis and that within a week, E.D. performed oral sex on Jerrell, and
that they engaged in oral sex almost every time they were together. The jury heard
E.D.’s testimony and had the opportunity to determine his credibility. We refuse to
1
Count I alleged that Jerrell performed anal sex on E.D. when E.D. was under fourteen. Count II alleged
that Jerrell performed oral sex on E.D. when E.D. was under fourteen.
2
Jerrell’s other convictions were for sexual misconduct with a minor, which is defined as performing or
submitting to sexual intercourse or deviate sexual conduct “with a child at least fourteen (14) years of age but less
than sixteen (16) years of age.” Ind. Code § 35-42-4-9(a). Jerrell does not contend that the evidence was
insufficient to establish the age of the victim for those convictions.
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reweigh the evidence or assess witness credibility. E.D’s testimony is sufficient to
establish that he was under the age of fourteen when oral sex occurred.
E.D. also testified that he was younger than fourteen the first time Jerrell
performed anal sex on him. Even though he later testified that he was “probably around
fourteen (14) or fifteen (15)” when anal sex took place, Transcript at 70, we consider
conflicting evidence most favorably to the trial court’s ruling, Feyka, 972 N.E.2d at 392.
The evidence most favorable to the trial court’s judgment in this case is that E.D. was
younger than fourteen when anal sex occurred. Because E.D. testified that he was
younger than fourteen when oral and anal sex occurred, there was sufficient evidence
establishing E.D.’s age to sustain Jerrell’s convictions of child molesting. See Fajardo v.
State, 859 N.E.2d 1201, 1209 (Ind. 2007) (finding sufficient evidence to sustain child
molesting convictions because there was “clear, unequivocal testimony from the child
that establishes the necessary elements of the charged offense,” despite the fact that
“equivocations, uncertainties, and inconsistencies” appeared in the testimony); Feyka,
972 N.E.2d at 393-94 (finding sufficient evidence to sustain child molesting convictions
despite “the conflicting testimony and some inconsistencies in [the victim’s] own
statements”).
II. Allocution
Criminal defendants have the right to offer statements in their own behalf at
sentencing; this is known as the “right of allocution.” Biddinger v. State, 868 N.E.2d
407, 410 (Ind. 2007). The purpose of this right “is to give the trial court the opportunity
to consider the facts and circumstances relevant to the sentencing of the defendant in the
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case before it.” Id. at 413 (quoting Ross v. State, 676 N.E.2d 339, 343 (Ind. 1996)). Our
supreme court has held that a defendant should not be subject to cross-examination upon
his or her statement in allocution. Id. at 413.
While it is concerning that the State asked to cross-examine Jerrell upon his
statement in allocution and that the trial court allowed it do so, Jerrell did not object to
the State’s cross-examination at the hearing.3 Thus, this issue has been waived unless the
unpreserved error constituted fundamental error. Phelps v. State, 914 N.E.2d 283, 290
(Ind. Ct. App. 2009) (finding defendant waived his claim of error caused by the State’s
cross-examination during allocution because he did not object at the sentencing hearing
and made no claim of fundamental error). Jerrell claims that allowing the cross-
examination was fundamental error in this case. Fundamental error occurs only when the
alleged error is a blatant violation of basic principles, the harm or potential for harm as a
result of the error is substantial, and the resulting error denies the defendant fundamental
due process.4 Vermillion v. State, 978 N.E.2d 459, 463 (Ind. Ct. App. 2012). There was
no fundamental error here.
When the defendant is given the opportunity to explain his views of the facts and
circumstances, the purpose of the right of allocution has been satisfied. Biddinger, 868
N.E.2d at 413. Jerrell was given the opportunity to explain his view of the facts and
circumstances of the case at sentencing. He read his statement in its entirety before the
State began its cross-examination. Thus, the purpose of the right of allocution was
3
Jerrell did make several objections during the cross-examination but those were on relevancy and other
grounds. A specific objection is required to preserve an issue for appeal. See Riley v. State, 427 N.E.2d 1074, 1077
(Ind. 1981).
4
While Jerrell correctly states that sentencing is a critical stage and claims that he was forced to “in effect
testify before the sentencing fact-finder,” Brief of Appellant at 6, he does not explain how the cross-examination
violated his rights to fundamental due process.
6
accomplished. See Pruitt v. State, 834 N.E.2d 90, 120 (Ind. 2005) (rejecting the
defendant’s argument that requiring his opportunity to speak take place at the close of his
case at the penalty phase “allowed the state an opportunity to rebut his claims and this
sequence thwarted the purpose of the statutory right to allocution,” because the defendant
“had an opportunity to speak on his own behalf” and his statutory right was therefore
preserved), cert. denied, 548 U.S. 910 (2006).
Finally, Jerrell does not explain how his sentence would have changed had the
State not been allowed to cross-examine him. In Biddinger, the defendant was not
allowed to read his statement in its entirety, and, yet, the court found that any error was
harmless because defendant failed “to establish how the excluded portion of his statement
would have made a difference in the sentence the trial court imposed.” 868 N.E.2d at
412-13. Here, unlike the defendant in Biddinger, Jerrell was given the opportunity to
read his entire statement to the trial court. But he has similarly failed to establish how his
sentence may have changed had the State not been allowed to cross-examine him. Thus,
there was no fundamental error.
III. Inappropriate Sentence
A. Standard of Review
This court has the authority to revise a 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.” Ind. Appellate Rule 7(B). The
“nature of the offense” portion of inappropriate sentence review concerns the advisory
sentence for the class of crimes to which the offense belongs; therefore, the advisory
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sentence is the starting point in our sentence review. Anglemyer v. State, 868 N.E.2d
482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). The “character of
the offender” portion of the sentence review involves consideration of the aggravating
and mitigating circumstances and general considerations. Clara v. State, 899 N.E.2d 733,
736 (Ind. Ct. App. 2009). Whether a sentence is inappropriate ultimately 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 defendant bears the burden of persuading this court that his
or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
B. Nature of Jerrell’s Offenses and Character
Jerrell was convicted of two Class A felonies and two Class B felonies. The
sentencing range for a Class A felony is between twenty and fifty years imprisonment,
with an advisory sentence of thirty years. Ind. Code § 35-50-2-4. The sentencing range
for a Class B felony is between six and twenty years imprisonment, with an advisory
sentence of ten years. Ind. Code § 35-50-2-5. The trial court imposed an aggregate
sentence of seventy years.5
Regarding the nature of his offenses, Jerrell was in a position of trust with the
victim and, strategically and over time, befriended him and introduced him to sexuality.
5
Jerrell argues that receiving the maximum sentence for each of his four convictions was inappropriate and
that advisory sentences would have been “more appropriate.” Br. of Appellant at 4. The inquiry, however, “is not
whether another sentence is more appropriate; rather the question is whether the sentence imposed is inappropriate.”
King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in original). In addition, even though the trial
court ordered the maximum sentence for each of Jerrell’s convictions, the Class A felony sentences are to run
concurrent to each other and the Class B felony sentences are to run concurrent to each other. So, while the trial
court could have ordered an aggregate sentence of one-hundred-and-forty years, it only sentenced Jerrell to an
aggregate sentence of seventy years. For purposes of review, the length of the aggregate sentence is what matters.
Cardwell, 895 N.E.2d at 1224.
8
He then repeatedly molested him over the course of several years. The trial court found
that the harm suffered by the victim “was significant and above and beyond the normal
for this type of offense.” Corrected Appellant’s Appendix at 124-25. The nature of his
offenses therefore supports his maximum sentences. See Purvis v. State, 829 N.E.2d 572,
589 (Ind. Ct. App. 2005) (affirming a maximum sentence because “the repeat nature of
the offense and the grooming and targeting of the victim place [the defendant’s] crime in
the same league as the worst sex offenses”), trans. denied, cert. denied, 547 U.S. 1026(2006).
In regard to his character, Jerrell has, in addition to the convictions that are the
subject of this opinion, one misdemeanor conviction of furnishing alcohol to a minor and
ten counts of felony possession of child pornography. As the State points out, all of his
convictions involved inappropriate conduct relating to minor children. Also, one of his
previous convictions involved the same victim as this case. Jerrell’s criminal history
reflects poorly on his character. The trial court also found Jerrell’s lack of candor in his
statements made to the court to be an aggravating factor.6 Finally, the pre-sentence
investigation indicated that Jerrell was at a high risk to re-offend. Jerrell’s character
therefore provides further support for the appropriateness of his sentence.7 For the
6
Jerrell did not testify at trial. However, an audio recording of an interview conducted during the
investigation was played at the trial. Further, Jerrell read a statement to the court during sentencing, as discussed in
part II above.
7
Jerrell points to Monroe v. State, 886 N.E.2d 578, 581 (Ind. 2008), and Harris v. State, 897 N.E.2d 927,
930 (Ind. 2008), as examples of cases in which there were “enough aggravators to support enhancing sentences, but
not running them consecutively.” Br. of Appellant at 15. However, both of those cases involved a situation in
which the trial court had failed to explain how the aggravating factors supported consecutive sentences as it was
required to do under the previous presumptive sentencing scheme it was governed by. See Monroe, 886 N.E.2d at
580; Harris, 897 N.E.2d at 929.
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foregoing reasons, we conclude that Jerrell’s sentence is not inappropriate in light of the
nature of his offenses and his character.
Conclusion
There was sufficient evidence to support Jerrell’s convictions for child molesting,
the trial court did not commit fundamental error when it allowed the State to cross-
examine Jerrell at allocution, and the seventy-year aggregate sentence he received is not
inappropriate. We therefore affirm his convictions and sentence.
Affirmed.
FREIDLANDER, J., and CRONE, J., concur.
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