Michael W. Sloan v. State of Indiana

FOR PUBLICATION Sep 18 2014, 9:54 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ANDREW J. BALDWIN GREGORY F. ZOELLER
Baldwin Adams & Kamish Attorney General of Indiana
Franklin, Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MICHAEL W. SLOAN, )
)
Appellant-Defendant, )
)
vs. ) No. 41A01-1312-CR-526
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE JOHNSON CIRCUIT COURT
The Honorable K. Mark Loyd, Judge
Cause No. 41C01-1106-FB-23
September 18, 2014
OPINON - FOR PUBLICATION
BROWN, Judge
Michael W. Sloan appeals his conviction and sentence for child molesting as a
class A felony. Sloan raises two issues, which we revise and restate as:
I. Whether the trial court abused its discretion by excluding certain
evidence; and
II. Whether the court abused its discretion in sentencing him.
We affirm in part, reverse in part, and remand.
FACTS AND PROCEDURAL HISTORY
In the early morning hours of June 23, 2011, K.W. and her friend J.W. were at
Sloan’s home. At the time, K.W., who was born on September 9, 1997, was thirteen
years old, J.W. was nineteen or twenty years old, and Sloan, who was born on April 26,
1989, was twenty-two years old. At some point when K.W. was asleep on the couch,
Sloan woke her up, carried her from the couch to his bed, removed her and his own
clothing, and placed his penis inside her vagina. Sloan told K.W. that “if he got caught
that he would tell them that he was drunk and [K.W.] raped him.” Transcript at 87.
At approximately 7:00 p.m. on June 23, 2011, Sloan went to the Edinburgh Police
Department and reported to Officer Dwayne Little “that he had been raped, and [Sloan]
believed it was by his cousin, [K.W.].” Id. at 15. Sloan told Officer Little that he had
been drinking the previous night, that he had met a Mexican male in the alley way who
offered him a couple of beers, and that he consumed the beers and approximately three
quarters of a fifth of vodka. Sloan stated that he went inside his residence and found J.W.
and K.W. asleep on the couch, that he then went to sleep, and that “sometime overnight
he got a weird feeling.” Id. at 18. When further questioned, Sloan reported that “he
believed that [the] weird feeling was him ejaculating.” Id. at 19. Sloan stated that “it was
2
really, really dark in his apartment” and that he “woke up when he had this weird feeling
and he looked up and saw somebody getting off of him and walking towards the
bathroom” and that “he was so tired that he went back to sleep, or passed out.” Id. Sloan
also reported that he woke up at approximately 9:30 a.m. and rushed to work, that “about
9:50ish [] he felt [] a sticky feeling,” that he went to the bathroom to investigate the
feeling, that he saw residue on his skin, and that he “thought maybe it had been an
ejaculation.” Id. at 20. Sloan stated that he had spoken to J.W., “who said that it wasn’t
her that had sex with him,” and because only J.W. and K.W. were in his house, “he
believed that it was his cousin, [K.W.].” Id. at 22.
The police picked up K.W. from Sloan’s residence.1 K.W. told Officer Little that
she had been dating Sloan for two and a half weeks, and she reported the facts above.
Police collected the clothing of K.W. and Sloan and mouth swabs from K.W. and Sloan.
K.W. was taken to the hospital for a sexual assault examination, and Sloan submitted to a
sexual assault examination. Subsequent testing showed there were DNA mixtures found
on K.W.’s underwear and on external genital swabs taken during K.W.’s examination and
that Sloan could not be excluded as a contributor.
The State charged Sloan with child molesting as a class A felony in its amended
information.2 At the jury trial, the State presented the testimony of K.W., Officer Little,
and a forensic analyst with the Indiana State Police consistent with the facts above. K.W.
1
Officer Little testified that K.W. had been reported as a runaway. K.W. testified that she had
run away more than one time in the past, but that the night of the offense was the first time she had stayed
away from her home all night.
2
The initial charging information alleging child molesting as a class B felony was filed on June
28, 2011, and an amended information alleging the offense as a class A felony was filed on October 3,
2011.
3
testified she had been dating Sloan for two and one-half weeks, that she was thirteen
years old at the time of the offense, and that Sloan was awake the whole time they were
having sex. When asked “did [Sloan] know how old you were,” K.W. replied “[y]eah,”
and when asked “[h]ow did he know,” she testified “[b]ecause we told him.” Id. at 85.
When asked “[w]hat did you tell him,” K.W. testified “[t]hat I was thirteen (13),” and
when asked “why did you tell him that,” she said “[b]ecause he asked.” Id. K.W.
testified that she was five feet and one inch tall, weighed 103 pounds, and that she was no
taller and weighed no more at the time of the offense. She also testified that Sloan was
taller and bigger than her. She testified she did not scream out at the time of the offense
because she was scared of Sloan. On cross-examination, K.W. indicated that no one had
been smoking marijuana or spice that night. When asked if she had talked to Sloan’s
mother on the phone that night or the next day, K.W. answered “No,” and when asked if
she knew Sloan’s mother, K.W. stated “No.” Id. at 117. K.W. also stated that she did not
talk to anyone on the telephone during the time she was at Sloan’s house.
Following K.W.’s testimony, Sloan’s counsel asked to approach the bench to
address an issue outside the presence of the jury. Sloan’s counsel indicated it was the
intent of the defense to ask that K.W. be recalled for omitted questions regarding her date
of birth and that “the Defense has now a rebuttal witness to here [sic] testimony, which
was not disclosed and who was in the courtroom during the testimony of [K.W.].” Id. at
125. The State objected and argued that there was a separation of witnesses order and the
proposed witness had heard the testimony of everybody who had been in court. The
court asked the point which defense counsel wished to address on rebuttal, and defense
4
counsel answered that K.W. had repeatedly stated that she did not talk to anyone on the
phone the night while she was at Sloan’s residence, that the defense had “a witness to
whom she spoke that night and that would be the mother of [Sloan],” and that K.W. had
“indicated that there was no drinking that night” and that Sloan’s mother would “testify
that she was told there was drinking.” Id. at 126. The following exchange then occurred
between Sloan’s defense counsel and the court:
Defense Counsel: [Sloan’s mother] will testify . . . that she was told that
[K.W.] was twenty (20) years of age and told by
[K.W.], and that [K.W.] was told that because she was
underage and there was drinking she needed to leave.
Court: Okay. Well, you’ve known this since the very start of
the case, so, no, you can’t use her for that purpose.
Because you knew that and when you saw the probable
cause affidavit, why you guys would have not put her
on the witness list to challenge that issue is absolutely
beyond me at this stage. So, consequently you can’t
use her for that purpose. I’m not sure I understand the
relevance of whether or not, uh, she spoke to someone
on the phone that night.
Defense Counsel: It goes to her credibility on the issue of whether or not
she is telling the truth.
Court: Well, okay, if you want to call . . . my inclination is if
you want to call the mother to indicate whether or not
she spoke to her on the phone or not, that’s the one
issue that is new. The other ones you guys waived
when you knew it existed.
Defense Counsel: So that I’m clear and we don’t screw up here Judge, or
I don’t screw up, and Lord knows I’ve done it before,
uh, it is okay to ask her if there was a conversation that
night, but not about the age, her statement about the
age?
Court: Correct. Yeah, you knew that, you knew that way
before this case . . . .
5
Defense Counsel: The age, okay.
Court: And you also knew about the drinking.
Defense Counsel: Okay.
Court: So those issues, uh, . . . . you kept a witness in here
and you knew you wanted to address and, uh, and on a
separation of witness order you asked for, uh, so
accordingly those issues, uh, I’m not going to now, uh,
relieve you of the separation of witness order that you
asked for.
Id. at 126-128.
Sloan’s counsel asked to make an offer of proof for the record, and the court
granted the request. Outside the presence of the jury, Sloan’s counsel called Sloan’s
mother, Paula Smith, to the stand. Sloan’s counsel elicited testimony from Smith that she
received a telephone call from Sloan at about 2:00 a.m. on June 23, 2011, and Sloan told
her that that he had been up for several days, that he had been smoking spice, that he had
some people in his house, that he wanted to go to bed, and that the people would not
leave. The following exchange then occurred between defense counsel and Smith outside
the presence of the jury:
Smith: I talked to a lady on the phone.
Defense Counsel: And who was that?
Smith: [J.W.].
Defense Counsel: Okay.
Smith: Uh, she said to me that she was twenty (20) years old.
And I told her, uh, [Sloan] had also mentioned that he
had a little bit to drink, I said, “You’re under age,” I
said, “You do not need to be there.” Uh, I threatened
6
to call the police on her to have her removed from the
home, which I should have.
Defense Counsel: Did you talk to [K.W.]?
Smith: It, that, it was . . . I’m sorry. It was [K.W.] that I
spoke to, that said she was twenty (20) years old.
Defense Counsel: Okay.
Id. at 131. Smith also indicated that she had never met or seen K.W. and had not spoken
to K.W. or heard her voice before that night.
Later, in the presence of the jury, K.W. was recalled to the stand. Sloan’s counsel
elicited testimony from K.W. that her birth date was September 9, 1997. When asked if
she had ever told anybody that her birthday was a date other than September 9, 1997,
K.W. answered “No.” Id. at 195. Sloan’s counsel asked K.W. about a Facebook page
which contained K.W.’s name and photograph and which showed K.W.’s date of birth as
September 9, 1992, and K.W. testified that the Facebook page did not belong to her, that
it belonged to another “kid named Jake.” Id. at 196. Upon questioning by the prosecutor,
K.W. indicated that she had a Facebook page but that the one presented was not hers.
The prosecutor asked K.W. if she ever “entered anything on that Facebook page,” and
K.W. answered “I had it at first. But, then, I got in trouble and he had it. . . . And I’ve
never been back on it.” Id. at 197-198. When asked if she “put [her] date of birth on
there as [] 9-9-92,” K.W. answered “No.” Id. at 198. When asked if the Facebook
account was set up before June of 2011, K.W. answered “[m]ost likely, yes.” Id. at 200.
Sloan’s counsel then called Smith, Sloan’s mother, to the stand before the jury,
and Smith testified that she received a phone call from Sloan’s telephone at around 2:00
7
a.m. on June 23, 2011, that she spoke with Sloan, and that she then spoke to a person who
said her name was K.W. Smith indicated that she had not previously spoken to or seen
K.W. Sloan’s counsel then called Sloan to the stand. Sloan testified that he had not met
K.W. prior to the date of the alleged offense and that he knew J.W.’s boyfriend at the
time. Sloan indicated that he had not given permission for K.W. and J.W. to come over
to his house and that he did not have any conversations with K.W. Sloan testified he
returned from a party about 2:00 a.m. and called his mother, that he told his mother that
there were people in his house and that he did not want them there, and that he had been
drinking a little bit and did not like dealing with the cops. Sloan testified he had been
smoking marijuana and spice. Sloan testified that, after he woke up, he went to work.
Sloan testified he did not knowingly have sex with anyone the previous night. Sloan
testified that he was never in a relationship or dating K.W., that he did not know K.W.
until that night, that he had known J.W. for about a week, that he never told K.W. that, if
she said he had sex with her, he would say that she had raped him. Sloan indicated that
he concluded that he had been assaulted and that someone had forced themselves on him.
When asked “did you tell Officer Little that it must have been [K.W.] that did it,” Sloan
answered “[i]t could have been” and “I did, I was not sure.” Id. at 218.
The following exchange occurred between Sloan and his counsel:
Q. Did [K.W.] tell you her age?
A. Yes.
Q. Okay. Uh, and that was after she left your house.
A. Yes, sir.
8
Q. Okay.
A. It was upon arrival, sir.
Q. Okay. Why would they do that? You don’t normally . . . Strike. If
you know, you don’t normally tell a person your age when you
arrive at their house.
A. I asked them how old they were. And they both showed ID’s [sic].
Q. Okay. What were you concerned about?
A. Them being in my home.
Id. at 222-223. Sloan later testified, in response from a juror question, that the
identification K.W. showed him stated she was twenty years old. The jury found Sloan
guilty as charged.
At sentencing, the court stated “[y]ou have done absolutely nothing, uh, during the
course of the proceedings, uh, to assist me in understanding why this circumstance
occurred, and why it’s not going to occur again in the future” and “that because the most
problematic, uh, aggravator in this sentencing [] because it does lead to the conclusion, []
from my standpoint” that “you are best confined [] in an institution until . . . we have an
ability to start to control your behavior, put you in a position where you can protect
yourself, and others can be protected from you . . . .” Id. at 332. The court further stated
that it found Sloan’s need for correctional treatment and lack of remorse to be
aggravating circumstances. The court also found as a mitigating factor that Sloan had a
minimal criminal record although he had visits to the juvenile justice and criminal justice
systems, and then sentenced Sloan to thirty-five years in the Department of Correction.
9
DISCUSSION
I.
The first issue is whether the trial court abused its discretion by excluding the
testimony Sloan wished to elicit from Smith that K.W. had stated on the telephone that
she was twenty years old. Sloan contends that “[t]he age that K.W. represented herself to
[him] the night in question was a key and necessary piece of evidence for [him]” and that,
“[i]f the jury believed that [he] had a reasonable belief that K.W. was at least sixteen
years of age, then it could have found him ‘not guilty’ based upon the statutory defense
provided under I.C. 35-42-4-3(c).”3 Appellant’s Brief at 6. Sloan argues that, other than
himself, “the only witness who could provide testimony that K.W. was presenting herself
as a twenty year old the night in question was [his] mother,” that “[w]hen combined with
the fact that K.W. came to Sloan’s house with a nineteen or twenty year old female, it
would certainly make sense that Sloan could believe K.W. was also in that same age
range as her friend,” and that, “[w]ithout the key testimony, [he] was forced to testify in
order to get that information in front of the jury, thereby subjecting him to vigorous and
damaging cross-examination.” Id. at 7-8. Sloan states that Smith may have never
disclosed the phone call to Sloan’s counsel and that Sloan and his counsel may not have
known that they should place Smith on the witness list and have her stay out of the
courtroom.
3
At the time of the filing of Sloan’s brief, Ind. Code § 35-42-4-3(c) provided in part that “[i]t is a
defense that the accused person reasonably believed that the child was sixteen (16) years of age or older at
the time of the conduct . . . .” (Subsequently amended by Pub. L. No. 168-2014, § 68 (eff. July 1, 2014)
(amended section now found under subsection (d)).
10
The State maintains the court properly disallowed part of Smith’s testimony, that it
appears the prosecution did not know about Smith having any information regarding
K.W.’s age, and that the importance of the desired testimony was low because Sloan’s
defense “was not that K.W. was over the age of consent” but “that he did not knowingly
perform sexual intercourse with K.W. but that K.W. forced herself on him while he was
asleep.” Appellee’s Brief at 10. The State further argues that a continuance “would not
have been appropriate because there was no way to undo the harm caused by the fact that
the undisclosed witness had sat through the trial, including K.W.’s testimony” and the
State “would have been unduly surprised and prejudiced because it contradicted all
previously available evidence, which suggested that [Sloan] knew K.W.’s age to be
thirteen because she told him her age.” Id. at 10-11. The State also contends that any
error in excluding the desired testimony was harmless, noting that “the jury heard
evidence about K.W. representing herself to be older than she actually was,” K.W. was at
Sloan’s home with J.W. who was nineteen or twenty years old at the time, K.W. was
questioned about her date of birth and her Facebook page, the Facebook page had been
set up for her with her name and picture and a date of birth of September 9, 1992, and
that Sloan himself testified that he had not known K.W. prior to that day and that K.W.
showed him identification when she went to his home. The State also notes that Sloan’s
counsel argued in closing that the identification K.W. showed Sloan indicated she was
twenty years old.
The trial court has inherent discretionary power on the admission of evidence, and
its decisions are reviewed only for an abuse of that discretion. Vasquez v. State, 868
11
N.E.2d 473, 476 (Ind. 2007). Likewise, we leave to the trial court decisions regarding the
orderly procedure of a trial. Id. Where a trial court has made a decision regarding a
violation or sanction, we will reverse only if there is clear error and resulting prejudice.
Id. The trial court must give substantial weight to a defendant’s constitutional rights. Id.The Indiana Supreme Court has provided factors that are helpful in determining whether
to exclude a witness: (i) when the parties first knew of the witness; (ii) the importance of
the witness’s testimony; (iii) the prejudice resulting to the opposing party; (iv) the
appropriateness of lesser remedies such as continuances; and (v) whether the opposing
party would be unduly surprised and prejudiced by the inclusion of the witness’s
testimony. Id. Generally, errors in the admission or exclusion of evidence are to be
disregarded as harmless unless they affect the substantial rights of a party. Coleman v.
State, 694 N.E.2d 269, 277 (Ind. 1998). In determining whether an evidentiary ruling
affected a party’s substantial rights, the court assesses the probable impact of the
evidence on the trier of fact. Id.The record reveals the State first learned of Sloan’s desire to present the testimony
of Smith following the presentation of K.W.’s testimony, and Smith was in court during
the presentation of the evidence, including the testimony of K.W., although a separation
of witnesses order had been issued on Sloan’s request. According to the testimony of
Sloan and the testimony of Officer Little regarding the statements Sloan made to him,
Sloan believed he had been assaulted during the night and concluded that K.W. could
have been the person who assaulted him. The evidence reveals that J.W. was nineteen or
twenty years old at the time of the offense. The jury heard and observed K.W.’s
12
testimony in response to questions by the prosecutor and defense counsel about the fact
that her name, photograph, and a date of birth of September 9, 1992, were shown on a
Facebook page. Sloan testified he did not know K.W. prior to her arrival at his home and
that K.W. showed him her identification stating she was twenty years old when she
arrived at his home. Also, Sloan’s counsel argued during closing arguments that K.W.
presented identification to Sloan which showed that she was twenty years old.
Based upon the record, we conclude that the evidence that Sloan wished to elicit
from his mother would not have had a probable impact on the jury, that the exclusion of
this evidence did not affect Sloan’s substantial rights, and that the trial court did not
abuse its discretion in excluding this testimony. See Mathis v. State, 776 N.E.2d 1283,
1286-1287 (Ind. Ct. App. 2002) (holding that the trial court properly excluded evidence
that would not have had any impact on the verdict), trans. denied.
II.
The next issue is whether the court abused its discretion in sentencing Sloan. The
Indiana Supreme Court has held that “the trial court must enter a statement including
reasonably detailed reasons or circumstances for imposing a particular sentence.”
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218(Ind. 2007). We review the sentence for an abuse of discretion. Id. An abuse of
discretion occurs if the decision is “clearly against the logic and effect of the facts and
circumstances before the court, or the reasonable, probable, and actual deductions to be
drawn therefrom.” Id. A trial court abuses its discretion if it: (1) fails “to enter a
sentencing statement at all;” (2) enters “a sentencing statement that explains reasons for
13
imposing a sentence—including a finding of aggravating and mitigating factors if any—
but the record does not support the reasons;” (3) enters a sentencing statement that “omits
reasons that are clearly supported by the record and advanced for consideration;” or (4)
considers reasons that “are improper as a matter of law.” Id. at 490-491. If the trial court
has abused its discretion, we will remand for resentencing “if we cannot say with
confidence that the trial court would have imposed the same sentence had it properly
considered reasons that enjoy support in the record.” Id. at 491. However, the relative
weight or value assignable to reasons properly found, or those which should have been
found, is not subject to review for abuse of discretion. Id.Sloan asserts the court abused its discretion in finding as an aggravating
circumstance the fact that he did not provide an explanation for his criminal behavior and
requests this court to strike the five-year aggravated executed time ordered by the trial
court. The State argues that the aggravating factor challenged by Sloan was akin to a
finding that Sloan did not express remorse, and that the trial court found other proper
aggravating factors.
The court found the aggravating factors to be that Sloan did not provide an
explanation of why he committed the offense, that he lacked remorse, and that he was in
need of correctional treatment. We note that “[a] court may not enhance a sentence for a
defendant consistently maintaining his innocence if the defendant does so in good faith.”
Cox v. State, 780 N.E.2d 1150, 1158 (Ind. Ct. App. 2002). A trial court may consider as
an aggravator the defendant’s lack of remorse. Id. A lack of remorse is displayed by a
defendant “when he displays disdain or recalcitrance, the equivalent of ‘I don’t care.’”
14
Id. “This is distinguished from the right to maintain one’s innocence, i.e., ‘I didn’t do
it.’” Id.Here, the court found Sloan did “absolutely nothing [] during the course of the
proceedings to assist [the court] in understanding why this circumstance occurred, and
why it’s not going to occur again in the future,” which the court found to be “the most
problematic [] aggravator.” Transcript at 332. Further, in identifying lack of remorse as
an aggravator, the court noted Sloan’s “inability . . . to at least . . . enunciate in any way,
shape, or form, by your conduct, actions, or words [] a desire or ability to start a
rehabilitative course that makes any kind of meaningful sense.” Id. at 334. We find that
these were improper bases to enhance Sloan’s sentence in light of the record. See Cox,
780 N.E.2d at 1158. Sloan did not testify or present evidence at his sentencing hearing.4
Sloan’s position throughout trial was that he did not commit the charged offense but that
he had been assaulted by K.W. while he was asleep or passed out. He did not argue that
he did not have sex with K.W., but rather that he had been drinking, that he woke up and
saw a person move off of him and toward the bathroom, and that he went back to sleep or
passed out. Sloan was permitted to maintain his innocence of the charge against him in
good faith; in fact it was his constitutional right to do so, and his position and statements
at trial did not exhibit disdain or recalcitrance. The record does not support the court’s
finding that Sloan lacked remorse, and it was error for the court to use the fact that Sloan
did not provide an explanation as to why he committed the offense to enhance his
4
Sloan’s counsel indicated counsel had been hired to pursue an appeal and potential post-
conviction review.
15
sentence.5 See Kien v. State, 782 N.E.2d 398, 412 (Ind. Ct. App. 2003) (noting the
defendant did not dispute that the victim had been sexually abused, but only that he was
not the guilty party, that “it is not an aggravating factor for a defendant, in good faith, to
consistently maintain his innocence through all stages of the criminal proceedings,
including sentencing,” and finding that the trial court should not have relied upon his
maintaining his innocence as an aggravator), reh’g denied, trans. denied; Hollen v. State,
740 N.E.2d 149, 159 (Ind. Ct. App. 2000) (observing that the rejection of a defense by
the finder of fact based upon corroborating evidence of guilt does not necessarily mean
that the defense was asserted in bad faith, that otherwise a defendant “would be subjected
to an enhanced penalty whenever he maintained his innocence and lost,” and that there
was no indication that the defendant’s assertion of his innocence was in bad faith or
amounted to disdain or recalcitrance, and holding that the trial court erred by enhancing
the defendant’s sentence on that basis), opinion adopted, 761 N.E.2d 398 (Ind. 2002);
Cox, 780 N.E.2d at 1158 (noting that the trial court found the defendant failed to take
responsibility for the action that led to his conviction, but that the defendant was doing no
more than maintaining that he was innocent, and holding there was no indication that the
statements made by the defendant in discussing the conviction were made in disdain or
recalcitrance).
5
The dissent references statements by the prosecutor at sentencing regarding a phone call made
by Sloan from the Johnson County jail to a person named Ashley. The court allowed the phone call
recording to be admitted, but said “I don’t need to hear it,” Transcript at 321, and indeed, the recording
was not played. Further, the court made no reference to the phone call or recording in sentencing Sloan
and the record is devoid of evidence that the court considered it in any way.
16
In addition, the Indiana Supreme Court has held that, when relying on the “in need
of correctional treatment” aggravating circumstance, a trial court “must articulate why
this specific defendant requires corrective or rehabilitative treatment.” Ford v. State, 718
N.E.2d 1104, 1107 (Ind. 1999). In Ford, the trial court identified the defendant’s
previous unsuccessful attempts at rehabilitation as justification for imposing the
maximum sentence as opposed to a more lenient sentence, and the Court found that
“[t]his was sufficient to support the trial court’s use of the ‘in need of correctional
treatment’ aggravating circumstance.” Id. Here, the trial court did not articulate why
Sloan in particular required corrective or rehabilitative treatment. Rather, the court found
Sloan’s minimal criminal record to be a mitigating circumstance. The presentence
investigation report provides that Sloan pled guilty to disorderly conduct as a class B
misdemeanor as charged in 2010, and the State at sentencing noted that Sloan’s defense
counsel “properly stated [Sloan] does not have a criminal record.” Transcript at 325.
This criminal record does not support the trial court’s use of the “in need of correctional
treatment” aggravating circumstance.
We find the record does not support the aggravating circumstances found by the
trial court. Accordingly, we conclude the court abused its discretion in enhancing
Sloan’s sentence by five years and remand with instructions to impose the advisory
sentence of thirty years.
17
CONCLUSION
For the foregoing reasons, we affirm Sloan’s conviction for child molesting as a
class A felony, reverse the sentencing order, and remand with instructions to impose the
advisory sentence of thirty years served in the Department of Correction.
Affirmed in part, reversed in part, and remanded.
BARNES, J., concurs.
BRADFORD, J., concurs in part and dissents in part with separate opinion.
18
IN THE
COURT OF APPEALS OF INDIANA
MICHAEL SLOAN, )
)
Appellant-Plaintiff, )
)
vs. ) No. 41A01-1312-CR-526
)
STATE OF INDIANA, )
)
Appellee-Defendant. )
BRADFORD, Judge, concurring in part, dissenting in part.
I concur with the majority’s conclusion that the trial court acted within its
discretion in excluding certain evidence from trial. However, I respectfully dissent from
the majority’s conclusion that the trial court abused its discretion in sentencing Sloan.
FACTUAL OVERVIEW
Although Sloan maintained his innocence throughout the underlying proceedings,
the facts most favorable to the jury’s determination are as follows: On June 23, 2011,
thirteen-year-old K.W. fell asleep at Sloan’s residence. Sloan was twenty-two years old
at the time. At one point during the night, K.W., who was asleep on the couch, was
“woken up” by Sloan carrying her to his bed. Tr. p. 81. Upon placing K.W. on his bed,
19
Sloan removed both his and K.W.’s clothing and placed his penis inside her vagina.
Sloan told K.W. that if he “got caught he would tell them all that he was drunk and
[K.W.] raped him.” Tr. p. 87. K.W. had not seen Sloan drink any alcohol that night and
was scared of Sloan who was much bigger than she was. After Sloan completed his act,
K.W. got dressed and went to sleep on the couch.
DISCUSSION AND DECISION
Whether the Trial Court Abused Its Discretion in Sentencing Sloan
Sentencing decisions rest within the sound discretion of the trial court and are
reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482,
490 (Ind. 2007), modified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2007). “An
abuse of discretion occurs if the decision is clearly against the logic and effect of the facts
and circumstances before the court, or the reasonable, probable, and actual deductions to
be drawn therefrom.” Id. (quotation omitted).
One way in which a trial court may abuse its discretion is failing to
enter a sentencing statement at all. Other examples include entering a
sentencing statement that explains reasons for imposing a sentence-
including a finding of aggravating and mitigating factors if any-but the
record does not support the reasons, or the sentencing statement omits
reasons that are clearly supported by the record and advanced for
consideration, or the reasons given are improper as a matter of law. Under
those circumstances, remand for resentencing may be the appropriate
remedy if we cannot say with confidence that the trial court would have
imposed the same sentence had it properly considered reasons that enjoy
support in the record.
Id. at 490-91.
In sentencing Sloan to a slightly aggravated thirty-five-year term of imprisonment,
the trial court found three aggravating factors. Specifically, the trial court found Sloan’s
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alleged failure to enunciate a meaningful desire or ability to rehabilitate his wrongful
behavior, the fact that Sloan was in need of correctional treatment, and Sloan’s lack of
remorse to be aggravating factors. On appeal, Sloan argues that the trial court abused its
discretion in sentencing him because the above-stated factors were not supported by the
record.
Sloan’s Alleged Failure to Enunciate a Meaningful Desire or
Ability to Rehabilitate His Wrongful Behavior
It is well-established that Sloan had the absolute right to maintain his innocence
and to assert that he did not commit any wrongful behavior. Cox v. State, 780 N.E.2d
1150, 1158 (Ind. Ct. App. 2002). Sloan’s alleged failure to enunciate a meaningful desire
or ability to rehabilitate his allegedly wrongful behavior was consistent with his good
faith claim of innocence. As such, the trial court abused its discretion in finding Sloan’s
alleged failure to enunciate a meaningful desire or ability to rehabilitate his wrongful
behavior to be an aggravating factor.
Sloan’s Need for Correctional Treatment
The Indiana Supreme Court has previously held that “when relying on the ‘in need
of correctional treatment’ aggravating factor, a trial court ‘must articulate why this
specific defendant requires corrective or rehabilitative treatment that could best be
provided by commitment to a penal facility for a period of time in excess of the [advisory
sentence].’” Ford v. State, 718 N.E.2d 1104, 1107 (Ind. 1999) (quoting Beason v. State,
690 N.E.2d 277, 282 (Ind. 1998)). The trial court did not make such a statement here.
As a result, the trial court abused its discretion in finding that Sloan was “in need of
correctional treatment” to be an aggravating factor.
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During sentencing, the trial court stated as follows:
Until we have some assurance, uh, that we have an ability to start to control
your behavior, put you in a position where you can protect yourself, and
others can be protected from you, uh, then there is no rational choice, uh,
such as lower supervision, on probation, community corrections, etcetera.
Tr. pp. 332-33. This statement alone insufficiently articulated why the trial court
believed that Sloan was in need of correctional treatment. However, it is worth noting
that the trial court witnessed Sloan’s attack on court personnel, attempted escape, and
overall disdain for court orders immediately following the finding of guilt. Had the trial
court also articulated this observation and Sloan’s apparent disregard for the courts of this
State as a justification for its determination, the trial court’s articulation would have been
sufficient to justify its determination that Sloan was in need of correctional treatment.
Sloan’s Lack of Remorse
Again, while it is well-established that a court may not enhance a sentence for a
defendant consistently maintaining his innocence, a defendant’s lack of remorse may
justify an appropriate aggravating factor.
A court may not enhance a sentence for a defendant consistently
maintaining his innocence if the defendant does so in good faith. Bluck v.
State, 716 N.E.2d 507, 512 (Ind. Ct. App. 1999). However, a trial court
may consider as an aggravator the defendant’s lack of remorse. Id. at 513.
A lack of remorse is displayed by a defendant when he displays disdain or
recalcitrance, the equivalent of “I don’t care.” Id. This is distinguished
from the right to maintain one’s innocence, i.e., “I didn’t do it.” Id.Cox, 780 N.E.2d at 1158.
The trial court acknowledged that Sloan had the right to maintain his innocence.
(Tr. 331) The State, however, presented evidence at sentencing which displayed a lack of
remorse that was completely separate from his continued good faith claim of innocence.
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Specifically, the State presented evidence relating to a telephone call made by Sloan from
the Johnson County Jail, during which he spoke to a person named Ashley. During this
conversation, Sloan instructed Ashley to “[t]ell her to go kill f***ing [K.W.] because
she’s the reason I’m here.” Tr. p. 320. Ashley then responded, “[y]ou’ve already got two
(2) people going after her.” Tr. p. 320. This conversation, again during which Sloan
attempted to instruct others to kill his victim, independently demonstrates that Sloan
lacked remorse. As such, the trial court did not abuse its discretion in finding Sloan’s
lack of remorse to be an aggravating circumstance.
The Indiana Supreme Court has held that “[a] lack of remorse by a defendant who
insists upon his innocence is to be regarded only as a modest aggravator.” Bacher v.
State, 686 N.E.2d 791, 801 (Ind. 1997) (citing Owens v. State, 544 N.E.2d 1375, 1379
(Ind. 1989)). Further, because a single aggravating circumstance is adequate to justify an
enhanced sentence, Hawkins v. State, 748 N.E.2d 362, 363 (Ind. 2001), I would conclude
that the trial court did not abuse its discretion in imposing a slightly-enhanced thirty-five-
year sentence.
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