Carter v. State

• Decision Date: 10 April 2015
• Docket Number: No. 02A03–1405–CR–181.,02A03–1405–CR–181.
• Citation: 31 N.E.3d 17
• Parties: Johnathon I. CARTER, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

31 N.E.3d 17

Johnathon I. CARTER, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 02A03–1405–CR–181.

Court of Appeals of Indiana.

April 10, 2015.

Rehearing Denied June 10, 2015.

Richard J. Thonert, Fort Wayne, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

Opinion

KIRSCH

, Judge.

[1] Following a jury trial, Johnathon I. Carter was convicted of three counts of Class A felony child molesting² and two counts of Class C felony child molesting.³ He raises four issues on appeal that we restate as:

I. Whether the manner in which the jury was instructed concerning the requirement of jury unanimity constituted fundamental error;

II. Whether the trial court abused its discretion in admitting certain expert testimony; III. Whether the State presented sufficient evidence to convict Carter;

IV. Whether Carter's ninety-eight-year sentence is inappropriate in light of the nature of the offense and the character of the offender.

[2] We affirm the convictions, revise the sentence, and remand with instructions.⁴

Facts and Procedural History

[3] On June 28, 2009, Carter married Q.C. (“Mother”), who at that time had three sons, M.S., age fifteen, M.J., age fourteen, and M.N., age eight. Mother and her sons moved from Gary to Fort Wayne in December 2010, and Carter moved shortly thereafter, in January 2011. M.S. had his own room in the residence. M.J. and M.N. shared a bedroom. Between January 2011 and April 2013, the family lived in five different residences in Fort Wayne. M.N. and M.J. shared a bedroom at each of the locations. Carter and Mother worked for the same employer, but generally worked different shifts from each other, such that when Mother was at work, Carter was at home.

[4] From at least early August 2010 to near the end of April 2013, Carter engaged in sexual acts with M.N. The encounters took place at each of the residences where the family lived, usually in M.N.'s bedroom or Carter's bedroom, sometimes happening in the morning after the older brothers had left for school, sometimes in the afternoon when no one else was home, or during the night. Carter would require M.N. to perform oral sex and would also require him to submit to it. He also required M.N. to engage in anal sex. Carter also fondled and touched M.N.'s penis, and Carter required M.N. to touch Carter's penis. Carter bribed M.N. with candy and money.

[5] At some point, M.N. told M.J. what Carter was doing, but M.J. “didn't believe me.” Tr. at 249. In November 2011, M.N. disclosed to Mother that Carter had been molesting him. Mother and M.N. made a police report to the Fort Wayne Police Department, a department of child services (“DCS”) investigation began, and Carter moved out of the residence. On November 23, 2011, Julie DeJesus, a forensic interviewer, interviewed M.N. at the Dr. Bill Lewis Center for Children. DeJesus wore an earpiece, and a multi-disciplinary team⁵ listened from another room. M.N. disclosed to DeJesus, with words and demonstrating with his hands, that Carter had abused him. That same day, Sharon Robinson, a sexual assault nurse examiner, at the Fort Wayne Sexual Assault Treatment Center, examined M.N. Detective Robin Pfeiffer of the Fort Wayne Police Department separately interviewed M.N. and Carter on November 28, 2011.

[6] M.J. and Carter had an amicable relationship, and M.J. enjoyed spending time with him. M.J. was angry that Carter had left the residence, due to M.N.'s disclosures, and M.J. treated M.N. differently after Carter was gone. M.J. ignored M.N. and was less playful with M.N. He called him a snitch and a coward. M.S. observed M.J. sometimes push M.N. and “tell him to get in the corner or whatever,” even though M.N. had done nothing wrong. Id. at 430–31. At some point, M.J. asked M.N. if the accusations against Carter were true, and M.N. told M.J. that he had lied about Carter molesting him, but told M.J. not to tell Mother. That same day, M.J. told the school counselor, Shirley Snider that M.N. said that he had made up the accusations against Carter. Snider contacted Detective Pfeiffer who, in turn, contacted Mother. Detective Pfeiffer requested to interview M.N. again, but Mother required that she be present for the interview, which was against police department policy, and the investigation stalled. According to Detective Pfeiffer, the investigation “was closed based on the uncooperation of the family.” Id. at 559.

[7] In January or February 2012, Carter moved back into the residence, and the molestations resumed. The relationship between Mother and Carter deteriorated, and Carter moved out of the house again in April 2013. Thereafter, on May 2, 2013, M.N. told Mother that Carter had been molesting him again. The investigation resumed. On May 23, 2013, Angela Mellon, a sexual assault nurse examiner at the Fort Wayne Sexual Assault Treatment Center, examined M.N. Patricia Smallwood, a forensic interviewer at the Dr. Bill Lewis Center for Children also interviewed M.N. in or around May 2013. Detective Pfeiffer interviewed M.N., as well as Carter, on June 5, 2013.

[8] On November 28, 2013, the State charged Carter with three counts of Class A felony child molesting and two counts of Class C felony child molesting. The State alleged: Count I, between August 1, 2010 and April 27, 2013, Carter performed or submitted to sexual deviate conduct by placing his penis in or on the mouth of M.N.; Count II, between August 1, 2010 and April 27, 2013, Carter performed or submitted to sexual deviate conduct by placing his mouth on the penis of M.N.; Count III, between August 1, 2010 and April 27, 2013, Carter performed or submitted to sexual deviate conduct by placing his penis in or on the anus of M.N.; Count IV, between August 1, 2010 and April 27, 2013, Carter performed or submitted to fondling or touching of M.N.; and Count V, August 1, 2010 and April 27, 2013, Carter performed or submitted to fondling or touching of M.N.

[9] At the two-day April 2014 jury trial, “M.N. testified about multiple occasions of many different times, dates and locations of different acts of sexual deviate conduct and fondling.” Appellant's Br. at 5. M.N., who was ten years old at the time of trial, testified that Carter molested him in all of the places where they lived. Carter sometimes engaged in the conduct after M.N.'s brothers went to school, but before M.N. went to school, sometimes when no one was home, and other times when people were in the house. Carter made M.N. “suck his thing,” meaning Carter's penis, and Carter did the same to M.N. Tr. at 237. M.N. described that when he would suck Carter's penis, sperm would come out, although sometimes Carter would wear a condom or put a sock over his penis. Id. at 240–41. M.N. described one occurrence, when he was ten years old, in which Carter came into M.N.'s bedroom while he was playing video games before school, and Carter sucked M.N.'s penis. Id. at 244–45. On various occasions, M.N. “would give [Carter] masturbation” by using his hands on Carter's penis; M.N. demonstrated at trial how he would hold and move his hand on Carter's penis. Id. at 247. Carter would do the same to M.N.'s penis. M.N. also testified that Carter “made [me] put my private in his butt.” Id. at 240.

[10] One afternoon, when M.N.'s brothers were at the park, M.N. was in Carter's bedroom, and Carter positioned M.N. “with [his] butt up,” and hands on the bed, and Carter put his penis in M.N.'s “butt.” Id. at 247. M.N. said Carter put his “private part” in M.N.'s “butt” on other occasions and, “[i]t would hurt.” Id. M.N. also described an incident that occurred while he was sleeping in his bed at night, when Carter came in and engaged in anal sex for about four minutes. Id. at 266.

[11] M.N. testified that, after he reported that Carter was molesting him, and Carter moved out of the residence the first time, M.J. began treating M.N. differently. M.N. said that M.J. was mean to him and would call him a coward, punk, and “the b-word.” Id. at 431. M.N. told the jury that, with Carter out of the house, he knew that Mother was struggling to work and supervise the children on her own. M.N. explained that the reason that he previously had recanted, saying that the allegations were not true, was because he wanted to help Mother. Carter returned to the home, and the molestations resumed. M.N. testified that Carter, after coming back, asked him, “Why did you tell on me?” Id. at 248.

[12] In her testimony, Mother mentioned that after Carter left the family's residence in November 2011 M.J. cried and missed him, and she observed that M.J. was “standoff-ish” to M.N. Id. at 460. Mother was aware that during the period of time when Carter was not living at the residence, but before M.N. recanted, M.J. and Carter were in contact with one another and exchanged text messages. Carter returned in January or February 2012, but she “put him out” in late April 2013 due to difficulties in their marriage. Id. at 469.

[13] The State also presented, over Carter's objections, the testimony of Smallwood, a forensic interviewer and expert on child sexual abuse. Carter had filed a motion to exclude Smallwood's testimony, which the trial court denied, and he made continuing objections both prior to opening statement and during her testimony. At trial, Smallwood testified that she had been a family and child sexual abuse counselor for over twenty years, having worked as a marriage and family therapist at Parkview Hospital and as the Director of Victim Assistance at the Allen County Sheriff's Department and the Fort Wayne Police Department. She interviewed M.N. in May 2013, but she did not testify about M.N. or his individual case, instead offering generalized testimony about how children deal with sexual abuse, the disclosure process, and the matter of when and why children recant or retract their disclosures of abuse. She testified that a...