856 N.E.2d 1203 (Ind. 2006), 06S04-0509-CR-413, Prickett v. State

Docket Nº06S04-0509-CR-413.
Citation856 N.E.2d 1203
Party NameShawn A. PRICKETT, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
Case DateNovember 21, 2006
CourtSupreme Court of Indiana

Page 1203

856 N.E.2d 1203 (Ind. 2006)

Shawn A. PRICKETT, Appellant (Defendant below),


STATE of Indiana, Appellee (Plaintiff below).

No. 06S04-0509-CR-413.

Supreme Court of Indiana

November 21, 2006

Appeal from the Boone County Superior Court I, No. 06D01-0110-CF-0107, The Honorable Matthew C. Kincaid, Judge

On Petition To Transfer from the Indiana Court of Appeals, No. 06A04-0410-CR-00553

Page 1204

[Copyrighted Material Omitted]

Page 1205

Attorney for Appellant, Sarah L. Nagy Indianapolis, Indiana

Attorneys for Appellee, Steve Carter Attorney General of Indiana, Grant H. Carlton Deputy Attorney General

Sullivan, Justice.

Defendant Shawn Prickett was convicted of child molesting for having sex with a 13-year-old girl. The presumptive sentence for this crime is 30 years. Prickett was sentenced to 40 years and ordered to pay restitution and register as a sex offender. He contends that the evidence at his trial was insufficient to support his conviction, but we find that there was ample evidence to support the jury's verdict. He also argues that the restitution and registration orders were imposed absent jury findings required by Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), but we hold that Blakely imposes no such requirement. We do agree with Prickett that the factors relied on by the trial court did not justify increasing the sentence above 30 years.


The facts most favorable to the judgment show that on the evening of October 5, 2001, A.M., age 13, went to the house of her friend, M.D. Also at the home that evening were M.D.'s half brother, Shawn Prickett, age 21, and his friends Justin Anderson, Quinn Bailey, and Cassie Wetherald.

Prickett and his three friends were in an upstairs room of the home and were eventually joined by A.M. and M.D. M.D. left the upstairs room shortly after arriving, while A.M. remained alone with Prickett and his friends. At some point after M.D.'s departure, Prickett asked A.M. to remove her clothing. A.M. complied with Prickett's request out of fear. Prickett then removed his own clothing and engaged in sexual intercourse with A.M. as his friends remained in the room and watched. During this encounter, Prickett also touched A.M.'s breast. The encounter ended after Prickett became angry at A.M.'s requests that he stop.

A.M. reported this incident to the Lebanon City Police Department on October 14, 2001. Prickett was subsequently charged with one count of Class A felony child molesting and one count of Class C felony child molesting. After a jury trial, Prickett was found guilty on both charges.

At his sentencing hearing, Prickett received a sentence of 40 years for the Class A felony child molesting conviction and a sentence of 8 years for the Class C felony child molesting conviction. The sentencing court enhanced both sentences from their respective 30- and four-year presumptives

Page 1206

on the following aggravating bases: (1) Prickett had been on probation at the time he committed the offenses; (2) he had a previous criminal record; (3) he was in need of correctional and rehabilitative treatment that was best provided by commitment to a penal facility; and (4) his crime was committed forcibly. On balance, the court found no mitigating circumstances. It ordered that the sentences run concurrently. Prickett appealed both his convictions and his sentences.

In an unpublished memorandum decision, the Court of Appeals affirmed both of Prickett's convictions for Class A and Class C felony child molesting. Prickett v. State, No. 06A04-0410-CR-553, slip op., 831 N.E.2d 854 (Ind. Ct. App. 2005) (table). With respect to Prickett's sentence, the court found that it was appropriate given "his extensive criminal history ...." Id., slip op. at 7. Prickett sought, and we granted, transfer. Prickett v. State, 841 N.E.2d 183 (Ind. 2005) (table).


Prickett presents three arguments. He asserts there was insufficient evidence to support his conviction. Prickett also contends that his sentence was unconstitutional because it "exceed[ed] the presumptive sentence established by the Legislature, [and was] based upon aggravating factors not found by a jury." Pet. to Trans. at i. Lastly, Prickett argues that the trial court committed reversible error in ordering him to register as a sex offender and pay restitution to his victim since "there was no independent finding by a jury beyond a reasonable doubt that [his] conduct met the requirements to merit the[se] additional penalt[ies] ...." Id. at 7.


Prickett claims there is insufficient evidence to support his conviction because the testimony of the witnesses was "all conflicting." Id. at 1. It is well established that where a defendant is challenging the sufficiency of the evidence to support a conviction, we "neither reweigh the evidence nor judge the credibility of the witnesses, and we affirm if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt." Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005) (quoting Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004)). The factfinder bears the responsibility for determining whether the evidence in a given case is sufficient to satisfy each element of an offense, and we consider conflicting evidence in the light most favorable to the trial court's ruling. See id.

Indiana Code section 35-42-4-3(a) provides that a person who is at least 21 years of age commits Class A felony child molesting if, "with a child under fourteen (14) years of age, [he or she] performs or submits to sexual intercourse or deviate sexual conduct ...." Section (b) of the statute makes it a Class C felony for a person, "with a child under fourteen (14) years of age, [to] perform[] or submit[] to any fondling or touching, of either the child or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person ...."

In the instant case, the evidence shows that Prickett was 21 years of age and A.M. was 13 years old at the time of the crime. In addition to the testimony of the victim, A.M., Justin Anderson, and Quinn Bailey also gave eyewitness testimony at trial indicating that Prickett and A.M. had engaged in sexual intercourse on October 5, 2001. Anderson also testified to witnessing Prickett having touched A.M.'s breast during this incident.

Page 1207

Prickett points us to inconsistent testimony regarding the victim's demeanor after the incident and the precise location of the witnesses and occupants of the home during the commission of the crime. All of these facts were put before the factfinder, which weighed the testimony and determined that Prickett had committed Class A and Class C felony child molesting beyond a reasonable doubt.1 Under the above circumstances and the reasonable inferences that could be drawn from them, and given the probative evidence, we find that the evidence was sufficient for a reasonable trier of fact to find Prickett guilty of Class A and Class C felony child molesting.2


Indiana Code section 35-50-2-4 governs the sentencing parameters to be applied to persons convicted of Class A felonies. It directs that "a person who commits a Class A felony shall be imprisoned for a fixed term of thirty (30) years, with not more than twenty (20) years added for aggravating circumstances or not more than ten (10) years subtracted for mitigating circumstances ...."3 As noted earlier, the trial court sentenced Prickett to an enhanced term of 40 years of imprisonment for committing Class A felony child molesting. He now seeks relief from that enhanced sentence.


When a trial court relies on mitigating or aggravating circumstances in deciding whether to deviate from the statutory presumptive sentence, it is required to: "(1) identify all significant mitigating and aggravating circumstances; (2) state the specific reason why each circumstance has been determined to be mitigating or aggravating; and (3) articulate the court's evaluation and balancing of circumstances." Francis v. State, 817 N.E.2d 235, 237 (Ind. 2004). As already noted, the trial court in this case listed four aggravating circumstances to support its sentence: (1) Prickett was on probation at the time he committed the offense; (2) he had an extensive juvenile and adult criminal record; (3) Prickett was in need of correctional and rehabilitative treatment best provided by commitment to a penal institution; and (4) he committed his offense forcibly. The court gave substantial weight to the fact Prickett was on probation at the time he committed his offense. It found no mitigating circumstances.

Page 1208

First, the trial court considered Prickett's criminal history. Prickett's juvenile record shows adjudications for incorrigibility, burglary, and theft. His adult record consists of misdemeanor convictions for illegal consumption of alcohol as a minor, mischief, and conversion. Prickett was placed on probation of one year for the latter offense. As such, there was evidence of a criminal history on which the trial court could have relied. We defer for a moment the discussion of the weightiness of Prickett's criminal history as a sentence enhancement factor.

Second, the trial court relied on Prickett's need for correctional and rehabilitative treatment best provided by commitment to a penal institution. We have found that "[f]or this aggravating circumstance to justify in part an enhanced sentence, it must be understood to mean that the defendant is in need...

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  • 873 N.E.2d 1144 (Ind.App. 2007), 15A01-0612-CR-539, Stewart v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • 25 Septiembre 2007
    ...will vary 'based on the gravity, nature and number of prior offenses as they relate to the current offense.' " Prickett v. State, 856 N.E.2d 1203, 1209 (Ind. 2006) (quoting Ruiz v. State, 818 N.E.2d 927, 929 (Ind. Stewart's criminal history consists of a 1991 juvenile adjudication for ......
  • 875 N.E.2d 826 (Ind.App. 2007), 34A02-0705-CR-419, Besser v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • 24 Octubre 2007
    ...is very significant because of its length and the relation of many of the offenses to the current offense. See Prickett v. State, 856 N.E.2d 1203, 1209 (Ind. 2006). Indeed, Besser has four previous felony convictions and one juvenile adjudication for robbery, clearly indicating that with re......
  • 860 N.E.2d 1268 (Ind.App. 2007), 45A03-0604-CR-183, Townsend v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • 7 Febrero 2007
    ...but in doing so write separately to set forth a view with regard to the Supreme Court's footnote statement in Prickett v. State, 856 N.E.2d 1203, 1207 n. 3 (Ind.2006), that "[w]e apply the version of the statute in effect at the time of Prickett's sentence...." I do not agree......
  • 873 N.E.2d 202 (Ind.App. 2007), 70A01-0702-CR-92, Middleton v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • 4 Septiembre 2007
    ...in ordering maximum sentences based on the fact that the defendant committed the crime while on probation); but see Prickett v. State, 856 N.E.2d 1203, 1209 (Ind. 2006) (where defendant had an insignificant criminal history, and weak evidence supported trial court's finding that defendant u......
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