Steven R. Grogan 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 Oct 11 2018, 8:58 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
Nicole A. Zelin Curtis T. Hill, Jr.
Pritzke & Davis, LLP Attorney General
Greenfield, Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Steven R. Grogan, October 11, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-302
v. Appeal from the Hancock Circuit
Court
State of Indiana, The Honorable Jeffrey C. Eggers,
Appellee-Plaintiff Judge Pro Tem
Trial Court Cause No.
30C01-1701-F3-59
Crone, Judge.
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Case Summary
[1] A jury found Steven Grogan guilty of three counts of level 3 felony rape and
one count of class B misdemeanor battery, and the trial court sentenced him to
twenty-seven years. On appeal, Grogan contends that his rape convictions are
not supported by sufficient evidence, that the trial court erred in instructing the
jury, and that his sentence is inappropriate in light of the nature of the offenses
and his character. We affirm.
Facts and Procedural History
[2] The facts most favorable to the jury’s verdicts are as follows. In June 1999,
when Grogan was eighteen, his girlfriend gave birth to their daughter, C.G.
Grogan joined the military, and C.G. lived with her mother in Kentucky.
Grogan obtained custody of C.G. when she was thirteen, and she moved into
the home that Grogan shared with another girlfriend and their young son. In
December 2015, Grogan found out that C.G. was talking to a male high school
classmate, and “he did not like that fact at all.” Tr. Vol. 2 at 134. He told C.G.
“that he believed that he’s the only man that [she] needed, the only man that
[she] needed to love and that he could give [her] everything that [she] needed
from a man.” Id. Their relationship “started to become more of a romantic
relationship not just your average Father/Daughter relationship.” Id. at 136.
Grogan “started to be much more touchy with [C.G.]” and “would say that
[she] had a nice butt, that [her] butt looked nice[,]” that she had “a nice body.”
Id.
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[3] During Christmas break, Grogan told C.G. that she should “just let” him
perform oral sex on her and that “it would feel good.” Id. at 138. He led her
into her bedroom, removed her shorts and underwear, and placed his mouth on
her genitals. C.G. felt that she had to participate because Grogan “had
complete control over [her]” and “because of his anger I mean you don’t – you
don’t want to see him angry, it’s – it’s very frightening and it was very hard.”
Id. at 140. C.G.’s “life was already so bad and [she] knew it was going to
become even more of a hell if [she] didn’t give him what he wanted.” Id. She
knew “if [she] didn’t give him what he wanted he would get even more angry.”
Id. at 141. She had seen Grogan angry “[m]any times.” Id. He would “usually
… break things[,]” but he had also physically abused her and others in the past.
Id.
[4] Thereafter, Grogan engaged in sexual activity with C.G. almost “daily[.]” Id.
at 143. He had sexual intercourse with C.G. “[p]robably over three hundred
times.” Id. at 144. He also “made [her] give him oral sex” on multiple
occasions. Id. at 149. C.G. “would gag very badly, but for some odd reason he
enjoyed that, like he was satisfied by that and he like wanted that to happen
more.” Id. at 181. Grogan never held C.G. down or brandished any weapon,
but if C.G. “turned him down he would fly off the handle.” Id. at 147-48. On
one occasion, Grogan “kept trying to pull down [her] shorts[,]” and C.G. “was
like no please no please no.” Id. at 148. He yelled at her and was “stomping up
and down the stairs pushing [her] around.” Id. “[I]n order to calm him down
[she] ended up having to give in like [she] always did.” Id. On another
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occasion, Grogan tried to “squeeze” his penis into C.G.’s anus, which “was just
excruciating”; she “screamed and cried” and “couldn’t take it.” Id. at 151.
[5] In the spring of 2016, C.G. secretly went to prom with her male classmate.
Grogan found out and repeatedly slapped her face, leaving “a bad mark on
[her] lip.” Id. at 157. In September, C.G. was removed from Grogan’s home
by the Department of Child Services. In December, C.G. told her therapist that
Grogan had sexually abused her.
[6] The State charged Grogan with three counts of level 3 felony rape (one relating
to sexual intercourse and two relating to “other sexual conduct”1), one count of
level 5 felony incest, and one count of class B misdemeanor battery. After a
trial, the jury found him guilty as charged. The trial court merged the incest
conviction with the rape convictions and imposed consecutive nine-year
executed sentences on the latter, to run concurrent with a 180-day sentence on
the battery conviction, for an aggregate sentence of twenty-seven years. Grogan
now appeals. Additional facts will be provided below.
1
Indiana Code Section 35-31.5-2-221.5 defines “other sexual conduct” in pertinent part as an act involving
the sex organ of one person and the mouth or anus of another person.
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Discussion and Decision
Section 1 – Grogan’s rape convictions are supported by
sufficient evidence.
[7] Indiana Code Section 35-42-4-1(a) provides in relevant part that level 3 felony
rape is knowingly or intentionally having sexual intercourse or other sexual
conduct with another person when the other person is compelled by force or
imminent threat of force. Grogan contends that the State failed to present
sufficient evidence that he compelled C.G. to have sexual intercourse and other
sexual conduct by force or imminent threat of force. In reviewing a sufficiency
of the evidence claim, we neither reweigh the evidence nor assess the credibility
of witnesses. Bell v. State, 31 N.E.3d 495, 500 (Ind. 2015). We respect the jury’s
exclusive province to weigh conflicting evidence, and we “must consider only
the probative evidence and reasonable inferences supporting the verdict.”
McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). “A conviction can be
sustained on only the uncorroborated testimony of a single witness, even when
that witness is the victim.” Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012).
“[I]f the testimony believed by the trier of fact is enough to support the verdict,
then the reviewing court will not disturb it.” Bell, 31 N.E.3d at 500.
[8] Our supreme court has explained that “[t]he force necessary to sustain a rape
conviction need not be physical; it may be constructive or implied from the
circumstances.” Jones v. State, 589 N.E.2d 241, 242 (Ind. 1992). In arguing that
the State failed to prove that he used force or imminent threat of force to
compel C.G. to engage in sexual activity, Grogan points to C.G.’s testimony
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that he never held her down or used a weapon. He also asserts that “C.G.’s
statements that [he] would pout or that she feared [he] would not allow her to
engage in extra-curricular activities outside the home if she did not submit to
sexual intercourse or other sexual conduct [do] not lead to an inference of
constructive or implied force.” Appellant’s Br. at 14.
[9] Grogan’s argument disregards C.G.’s testimony that he “she worried that he
would “fly off the handle” if she spurned his sexual advances, and that he had
physically abused her when he got angry.2 Tr. Vol. 2 at 148. It also disregards
C.G.’s testimony that he once “push[ed her] around” when she resisted his
entreaties until she “ended up having to give in like [she] always did.” Id.3 This
testimony, if believed, is sufficient to support a verdict that Grogan compelled
C.G. to engage in sexual intercourse and other sexual conduct by force or
imminent threat of force, and therefore we will not disturb it.4
Section 2 – Grogan has waived his claim of instructional
error.
[10] Grogan also contends that the trial court committed reversible error in giving
the following jury instruction tendered by the State:
2
Grogan’s assertions to the contrary on pages 9 and 13 of his initial brief are not well taken.
3
The State emphasizes the forcefulness with which Grogan engaged in oral and anal sex. Evidence that a
person forcefully engaged in sexual activity is not dispositive of whether force was used to compel the sexual
activity.
4
We decline Grogan’s invitation to second-guess the jury’s decision under the incredible dubiosity rule,
because C.G.’s testimony was not “inherently contradictory, equivocal, or the result of coercion[.]” Moore v.
State, 27 N.E.3d 749, 756 (Ind. 2015). Grogan’s reliance on pre-Moore authority is misplaced.
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Although an element of the offense of sexual battery is that the
victim was compelled to submit to the touching by force or the
imminent threat of force, the force need not be physical or
violent, but may be implied from the circumstances. Evidence
that a victim did not voluntarily consent to a touching does not,
in itself, support the conclusion that the defendant compelled the
victim to submit to the touching by force or threat of force.
However, it is the victim’s perspective, not the assailant’s, from
which the presence or absence of forceful compulsion is to be
determined. This is a subjective test that looks to the victim’s
perception of the circumstances surrounding the incident in
question. The issue is thus whether the victim perceived the
aggressor’s force or imminent threat of force as compelling her
compliance.
Tr. Vol. 4 at 93.
[11] “Generally, jury instructions are within the sole discretion of the trial court, and
we will reverse the trial court’s decision only for an abuse of that discretion.”
Harris v. State, 884 N.E.2d 399, 402 (Ind. Ct. App. 2008), trans. denied. “Jury
instructions are to be considered as a whole and in reference to each other, and
we will not reverse the trial court’s decision as an abuse of discretion unless the
instructions as a whole mislead the jury as to the law of the case.” Id. (quoting
Brown v. State, 830 N.E.2d 956, 966 (Ind. Ct. App. 2005)). “To be entitled to a
reversal, the defendant must affirmatively show that the erroneous instruction
prejudiced his substantial rights.” Id.[12] The foregoing instruction derives from Chatham v. State, in which another panel
of this Court used that language to address the defendant’s claim that the
evidence was insufficient to support his conviction for sexual battery. 845
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N.E.2d 203, 206-07 (Ind. Ct. App. 2006). Grogan notes that our supreme court
has stated that “[t]he mere fact that certain language or expression [is] used in
the opinions of this Court to reach its final conclusion does not make it proper
language for instructions to a jury.” Ludy v. State, 784 N.E.2d 459, 462 (Ind.
2003) (second alteration in Ludy) (quoting Drollinger v. State, 274 Ind. 5, 25, 408
N.E.2d 1228, 1241 (1980)). He further notes that the court in Newbill v. State,
citing Ludy, discouraged trial courts from giving this similar instruction:
It is the victim’s perspective, not the assailant’s, from which the
presence or absence of forceful compulsion is to be determined.
This is a subjective test that looks to the victim’s perception of the
circumstances surrounding the incident in question. The issue is
whether the victim perceived the aggressor’s force or imminent
threat of force as compelling her compliance. The element of
force may be inferred from the circumstances.
884 N.E.2d 383, 393 (Ind. Ct. App. 2008), trans. denied. The Newbill court
agreed with the defendant, who had been convicted of rape, that the instruction
“may not properly reflect the perspective from which a jury should consider the
evidence of forceful compulsion” and opined that “the ‘perspective’ for a jury’s
consideration of the evidence of forceful compulsion in a rape trial might better
be described as either the ‘objective perspective of the victim’ or the ‘reasonable
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perspective of the victim.’” Id.5 The Newbill court “discourage[d] trial courts
from using this language as an instruction in the future” but went on to consider
the instructions as a whole and determined that the trial court did not abuse its
discretion “by giving the instruction at issue.” Id. at 393-94.
[13] Beyond mentioning the Newbill court’s admonishment, Grogan has failed to
affirmatively show that the instruction in this case,6 let alone the instructions as
a whole, prejudiced his substantial rights. “Bald assertions of error unsupported
by either cogent argument or citation to authority result in waiver of any error
on review.” Pasha v. State, 524 N.E.2d 310, 314 (Ind. 1988). We find that
Grogan has waived any instructional error and therefore affirm his convictions.
Section 3 – Grogan has failed to establish that his sentence is
inappropriate.
[14] Finally, Grogan asks us to reduce his twenty-seven-year sentence pursuant to
Indiana Appellate Rule 7(B), which provides that we may revise a sentence
authorized by statute 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
5
The defendant in Newbill had posited
that “a female may have been constantly beaten in the past, to the extent that she fears telling
any man ‘no’ when he asks her for sex, least [sic] she again be beaten. A man who otherwise
innocently has sex with this woman would be committing rape because from her perspective,
she perceived any requests for sex as a threat of force which compelled her to have sex.”
884 N.E.2d at 393 n.6 (quoting Appellant’s Br. at 14-15).
6
Grogan was not charged with sexual battery, which has been held not to be a lesser included offense of
rape. Thompson v. State, 761 N.E.2d 467, 469-70 (Ind. Ct. App. 2002). Grogan makes no argument in this
regard.
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the character of the offender. “The principal role of appellate review under
Rule 7(B) is to attempt to leaven the outliers, not to achieve a perceived
‘correct’ result in each case.” Threatt v. State, 105 N.E.3d 199, 200 (Ind. Ct.
App. 2018), trans. denied. “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.’” Evans v.
State, 85 N.E.3d 632, 636 (Ind. Ct. App. 2017) (quoting Cardwell v. State, 895
N.E.2d 1219, 1224 (Ind. 2008)). “[T]he question under Appellate Rule 7(B) is
not whether another sentence is more appropriate; rather, the question is
whether the sentence imposed is inappropriate. The defendant bears the burden
of persuading the appellate court that his or her sentence is inappropriate.”
Threatt, 105 N.E.3d at 200 (citation omitted).
[15] “The advisory sentence is the starting point selected by the legislature as an
appropriate sentence for the crime committed.” Reis v. State, 88 N.E.3d 1099,
1104 (Ind. Ct. App. 2017). The sentencing range for a level 3 felony is three to
sixteen years, with an advisory sentence of nine years. Ind. Code § 35-50-2-
5(b). Grogan received the advisory sentence for each of his rape convictions.
His only argument regarding the nature of those offenses is premised on a
“deviation from the advisory sentence[,]” which did not occur here.
Appellant’s Br. at 19. In any event, Grogan’s serial raping of his teenaged
daughter in her own home, which left her with “nightmares and scars[,]” does
not support a sentence reduction. Tr. Vol. 4 at 129 (C.G.’s testimony at
sentencing hearing).
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[16] As for Grogan’s character, we acknowledge that he had no prior criminal or
juvenile history. But we cannot overlook Grogan’s betrayal of his position of
trust, which the trial court found to be an aggravating factor. “Abusing a
position of trust is, by itself, a valid aggravator that may support a maximum
sentence.” Baumholser v. State, 62 N.E.3d 411, 417 (Ind. Ct. App. 2016)
(emphasis added), trans. denied (2017). Grogan argues that his sentences should
be concurrent,7 but our supreme court has cautioned that “additional criminal
activity directed to the same victim should not be free of consequences.”
Cardwell, 895 N.E.2d at 1225. Grogan’s “additional criminal activity” took the
form of sexually assaulting his teenaged daughter almost daily for nine months,
which calls for serious penal consequences. Grogan has failed to persuade us
that his sentence is inappropriate in light of the nature of the offenses and his
character, and therefore we affirm.
[17] Affirmed.
Najam, J., and Pyle, J., concur.
7
Grogan’s argument is premised on Kocielko v. State, 943 N.E.2d 1282 (Ind. Ct. App. 2011), opinion on reh’g,
trans. denied, which is inapposite because it involved a single encounter with one victim.
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