Hardison v. State, 022916 INCA, 22A01-1504-CR-273

Docket Nº22A01-1504-CR-273
Opinion JudgeROBB, JUDGE.
Party NameWilliam M. Hardison, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff
AttorneyAttorney for Appellant Matthew J. McGovern Anderson, Indiana. Attorneys for Appellee Gregory F. Zoeller Attorney General of Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana.
Judge PanelBarnes, J., and Altice, J., concur.
Case DateFebruary 29, 2016
CourtCourt of Appeals of Indiana

William M. Hardison, Appellant-Defendant,

v.

State of Indiana, Appellee-Plaintiff

No. 22A01-1504-CR-273

Court of Appeals of Indiana

February 29, 2016

NOT FOR PUBLICATION

Appeal from the Floyd Superior Court, The Honorable Susan Orth, Judge, Trial Court Cause No. 22D01-1303-FB-590

Attorney for Appellant Matthew J. McGovern Anderson, Indiana.

Attorneys for Appellee Gregory F. Zoeller Attorney General of Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana.

MEMORANDUM DECISION

ROBB, JUDGE.

Case Summary and Issues

[1] Following a jury trial, William Hardison1 was convicted of one count of child molesting as a Class A felony and one count of child molesting as a Class C felony. He received an aggregate sentence of forty-five years executed in the Indiana Department of Correction. Hardison appeals his convictions and sentence, raising four issues for our review, which we consolidate and restate as 1) whether the trial court committed fundamental error in admitting certain evidence; and 2) whether Hardison's sentence is inappropriate in light of the nature of the offenses and his character. Concluding the trial court did not commit fundamental error in the admission of evidence and Hardison's sentence is not inappropriate in light of the nature of the offenses and his character, we affirm.

Facts and Procedural History

[2] Born in 1999, J.C. grew up with her mother, D.C;2 J.C.'s father abandoned the family when J.C. was two years old. Shortly thereafter, D.C befriended her neighbor, Hardison. When J.C. turned five years old, Hardison offered to babysit J.C. Needing a break, D.C agreed. Hardison began spending more alone time with J.C., including taking J.C. to the park and playing video games in his apartment. Recognizing J.C. did not have a fatherly figure in her life, Hardison began to act as one, and J.C. would sometimes call Hardison "dad." At some point, Hardison moved to a new apartment, but continued to spend alone time with J.C. at his apartment.

[3] In early February 2013, thirteen-year-old J.C. visited Hardison's apartment. According to J.C.,

[A]round February 4th or 5th . . . he had asked if I would put in a movie and he had on his TV stand, he had, uh, there was, uh, the TV was here and the Playstation always stayed right underneath of it and it had drawers and he had the movies in there and I took the movies out and laid them across the floor and there was one in particular that I asked about, because it had naked women on the front of it, and I asked what it was, and he said it's just a porno, and I asked what it was and he told me to stick it in. Well, I did and I turn, I eventually took it out and put in an actual movie, and uh, a little bit later after the mo- the, we had watched a scary movie and after that movie was finished, uh the dog was, uh, jumping on the couch, so I started playing with him and, uh, I started running around the house with him and, uh, I had walked into Billy's bedroom and I sat on the bed to play with the dog and Billy sat up on the bed with me and he asked if he could touch my breast and I said, I said no, and then he asked if he could have sex with me and I said no. And then he just stopped asking and then Spike, [the dog], acted like he wanted to go to the restroom, so I let him out, because in Billy's bedroom the balcony was, uh, hooked to his bedroom, and I let Spike out and I sat on the bed and he asked if he could touch my breast again and I said no and he lifted my shirt and he touched my breast and then he asked if I would give him oral sex, and I asked him if he would quit asking if I did and he said yes, so I did.

Transcript at 288-89. Hardison ejaculated into J.C.'s mouth. J.C. "[s]pit it out in the sink and rinsed [her] mouth out." Id. J.C. did not tell her mother because "often [Hardison] would tell me not to tell her that things were happening because it was normal" for "[a] father and daughter." Id. at 292.

[4] On February 15, Hardison invited J.C. over to his apartment, stating he had a gift for her. When J.C. arrived, Hardison gave her a "dog key chain thing and a Valentine heart, little one with chocolates in it." Id. at 293. During the visit Hardison again requested J.C. perform oral sex on him. J.C. refused, but Hardison grabbed J.C.'s hand and forced J.C. to stroke his penis. J.C. attempted to stop when Hardison removed his hand from J.C.'s hand, but then Hardison put his hand back and told J.C. to keep going. Hardison ejaculated on J.C.'s hand. After Hardison returned J.C. to her mother's residence, J.C. sat in her room and cried; again, she did not tell her mother. At some point unclear from the record, J.C. disclosed Hardison's acts of molestation to her neighbor, Jasmine Ross. Ross told D.C., and D.C. called the police.

[5] The Indiana Department of Child Services ("DCS") assigned Margaret Kochert to J.C's case, and Kochert scheduled a forensic interview with Rebecca Sanders, a child forensic interviewer with the Family and Children's Place. At the forensic interview, J.C. disclosed Hardison's acts of molestation. On February 27, Detective Kelly Brown with the New Albany Police Department interviewed Hardison about J.C.'s allegations, and Hardison denied molesting J.C. and denied owning pornographic movies. Hardison later submitted to a stipulated polygraph examination. During the examination, the examiner asked Hardison whether he had oral sex with J.C. and whether J.C. performed oral sex on him. Hardison denied both allegations, but his responses indicated deception. When questioned about his deception by Detective Brown, Hardison continued to deny any acts of molestation and stated, "I hope that girl burns in hell." Id. at 118. Despite previously stating he did not own pornographic material, Hardison admitted J.C. turned on a video game console and a pornographic movie started playing. Hardison also stated he thought J.C. had a crush on him and there was one incident where she sat on his lap and gave him a kiss.

[6] On March 19, the State charged Hardison with two counts of child molesting as Class B felonies. The State later amended Count I to a Class A felony and Count II to a Class C felony. At trial, the State called numerous witnesses, including J.C.; Hardison testified J.C.'s allegations were false. The jury found Hardison guilty of both counts. The trial court entered a judgment of conviction and sentenced Hardison to forty-five years for the Class A felony conviction and eight years for the Class C felony conviction, to be served concurrently. This appeal ensued. Additional facts will be added as necessary.

Discussion and Decision

I. Admission of Evidence

A. Standard of Review

[7] Hardison contends the trial court committed fundamental error in admitting repetitious testimony, vouching testimony, and testimony of Hardison's prior uncharged acts of molestation. On appeal, we afford the trial court wide discretion in ruling on the admissibility of evidence. Beasley v. State, No. 49S02-1601-CR-20, 2016 WL 166541, at *2 (Ind. Jan. 14, 2016). In such circumstances, our review is limited to determining whether the trial court abused that discretion. Id. However, because Hardison did not contemporaneously object to the admission of the evidence at trial, a fact he concedes, the claims of error are waived. See Jackson v. State, 735 N.E.2d 1146, 1152 (Ind. 2000). Consequently, we will only reverse the trial court if the trial court committed fundamental error in the admission of evidence. Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). The fundamental error exception is extremely narrow. Id. "Fundamental error is a substantial, blatant violation of due process that must be so prejudicial to the rights of a defendant as to make a fair trial impossible." Rosales v. State, 23 N.E.3d 8, 11 (Ind. 2015) (internal quotation marks and citation omitted).

B. Challenged Testimony

[8] Hardison contends the trial court committed fundamental error in admitting the testimony of five witnesses, including J.C. First, Hardison cites to Detective Brown's testimony about the lack of DNA evidence. Specifically, Detective Brown stated there is likely no DNA evidence when there is an allegation of oral sex and fondling made ninety-six hours after the alleged acts of molestation. In addition, Detective Brown testified at length regarding the process of investigating claims of child molestation. As a part of this process, Detective Brown explained once an allegation of child abuse is made, he schedules an interview for the child at the Child Advocate Center to see if the child discloses abuse during the interview.

[State:] And if they disclose you're looking for signs they fabricated, is that correct?

[Detective Brown:] Uh, obviously, uh, through that investigation, through that testimony, yes, we're looking for any signs or any type of motivation for any of the story to be fabricated.

[State:] And if you don't see those signs and they disclose, then what do you do?

[Detective Brown:] A true investigation will then ensue.

Tr. at 86-87. Thereafter, the State asked what steps Detective Brown took to corroborate J.C.'s disclosure:

[Detective Brown:] Uh, like I said, there was certain [sic] individuals that were mentioned within, uh, the interview, so I began reaching out to them, making phone calls and stuff. And at times, uh, during any investigation with the police, a lot of times it's very difficult. Uh, we make phone calls, we don't get returned phone calls, we knock on doors, we might not get an answer and we leave a business card, but a lot times [sic] we don't get a call back, that there were a chance to make, get a hold of certain individuals in this case.

[State:] And in your opinion, was there, at this point, you were able to corroborate enough to move on into the investigation? [Detective Brown:] Yes, Ma'am. [State:] And how did you move forward in the investigation?

I...

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