Grimes v. State

• Decision Date: 05 September 2017
• Docket Number: Court of Appeals Case No. 31A01-1609-CR-2190.
• Citation: 84 N.E.3d 635
• Parties: Jessie GRIMES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

84 N.E.3d 635

Jessie GRIMES, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 31A01-1609-CR-2190.

Court of Appeals of Indiana.

Filed September 5, 2017

Attorney for Appellant : Matthew J. McGovern, Anderson, Indiana

Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, Lyubov Gore, Deputy Attorney General, Indianapolis, Indiana

Mathias, Judge.

[1] Jessie Grimes ("Grimes") was convicted in Harrison Superior Court of eighteen counts of Level 4 felony incest, two counts of Level 6 felony dissemination of matter harmful to minors, and one count of Level 6 felony obstruction of justice. He was ordered to serve an aggregate sentence of 111 years in the Department of Correction. Grimes appeals his convictions and sentence and argues:

I. Whether the trial court committed fundamental error when it denied Grimes's motion to dismiss the charging information because it failed to notify him of the specific allegations against him;

II. Whether the trial court erred when it denied Grimes's motion to sever the obstruction of justice charge;

III. Whether the trial court abused its discretion by ordering the sentences for each count to be served consecutively and by finding certain aggravating circumstances; and,

IV. Whether Grimes's 111-year aggregate sentence is inappropriate in light of the nature of the offense and the character of the offender.

We affirm.

Facts and Procedural History

[2] Grimes is the father of A.G., D.G., and J.G., and in 2015, the children lived with Grimes and his girlfriend, Ashleigh Keck ("Keck"). In August 2015, S.G. was fourteen and started the seventh grade, and her sister D.G. turned ten in October 2015.

[3] In the summer or fall of 2015, Grimes showed a pornographic movie to S.G. He asked S.G. questions about the sexual acts depicted in the movie and whether she knew how to perform them.

[4] Keck moved out of Grimes's home in November 2015. Shortly thereafter, Grimes showed a video to ten-year-old D.G. showing a male and female touching each other under their clothes. D.G. knew the video was inappropriate and tried not to watch it. Grimes instructed D.G. not to tell anyone about the video.

[5] Also, in November 2015, Grimes punished S.G. by making her touch his penis. Grimes established a Facebook account under a fake name and sent S.G. pictures of his penis. S.G. also met a girl on Facebook who refused to video chat with her, but told S.G. that she was having sex with her father. The girl encouraged S.G. to have sex with Grimes and sent S.G. bible verses that the girl claimed gave daughters permission to have sexual intercourse with their fathers. In this same month, Grimes also took S.G. to purchase birth control.

[6] At the end of November 2015, Grimes began to have sexual intercourse with S.G. S.G. was later able to describe more than eighteen separate incidents of sexual intercourse between herself and Grimes. They also performed oral sex on each other. In addition, Grimes had unprotected sex with S.G. when she remembered to take her birth control. Grimes told S.G. that he could go to jail if anyone knew that they had sexual intercourse and to keep it a secret between them. On one occasion, Grimes also recorded himself having sex with S.G. because Grimes wanted S.G. to "see how [she] was like porn." Tr. Vol. I, p. 212. During this time, Grimes also purchased a vibrator for S.G.

[7] On February 5, 2016, S.G. told a school official that she was having sexual intercourse with Grimes. S.G. and her siblings were removed from Grimes's home and placed with their paternal grandmother. Grimes was arrested a few days later and charged with twenty counts of Level 4 felony incest, twenty counts of Level 6 felony sexual misconduct with a minor, and two counts of Level 6 felony dissemination of matter harmful to minors.

[8] While he was in jail awaiting trial, Grimes asked his former girlfriend Keck to access S.G.'s Facebook account and send a group message to S.G.'s friends. Keck did not know how to send a group message, and Grimes instructed her to ask her thirteen-year-old son. When Keck finally agreed to send the message, Grimes gave Keck S.G.'s username, password, dictated the message and told Keck what time to send it. Keck sent the following message from S.G.'s Facebook account to S.G.'s friend from church, Grimes's stepsister, and S.G.'s former boyfriend:

Everything is working. They are believing it all. I will be out of here and we will be together. This new school sucks. My grandma is still not [believing] me but when they find the stuff I planted. My dad is [staying] in jail for a long time. Love you. I told you everything what Lisa said to.

Ex. Vol., State's Ex. 6. Grimes's stepsister, a recipient of the message, disclosed it to an attorney involved in the criminal proceeding.

[9] Thereafter, on April 11, 2016, the State charged Grimes with Level 6 felony obstruction of justice. Grimes filed a motion to sever the charge from the remaining charges, arguing that the offense was not of the same or similar character of the other charged acts. The trial court denied the motion. The trial court also denied Grimes's separately filed motion to dismiss the incest and sexual misconduct with a minor charges for lack of specificity.

[10] Grimes's four-day jury trial commenced on June 14, 2016. During trial, the trial court granted the State's motion to dismiss two counts of incest and two counts of sexual misconduct with a minor. The jury found Grimes guilty of the remaining charges.

[11] The sentencing hearing was held on August 29, 2016. The trial court vacated the eighteen sexual misconduct with a minor counts for double jeopardy reasons. Grimes was then ordered to serve consecutive six-year sentences for each of the eighteen Level 4 felony incest convictions, a total of 108 years. He was also ordered to serve consecutive one-year terms for each of the two Level 6 felony convictions for dissemination of matter harmful to minors and the single Level 6 felony obstruction of justice conviction. In the aggregate, Grimes was ordered to serve a 111-year sentence in the Department of Correction. Grimes now appeals his convictions and sentence.

Specificity in the Charging Information

[12] Grimes argues that the twenty counts of incest in the charging information lack specific facts to distinguish each charged count from the others, and therefore, he was not given sufficient notice of the charges against him. Indiana Code section 35-34-1-2 provides that the charging information shall state "the nature and elements of the offense charged in plain and concise language without unnecessary repetition" and contain "a plain, concise, and definite written statement of the essential facts constituting the offense charged." I.C. § 35-34-l-2(a)(4), (d). The purpose of a charging information is to advise the defendant of the particular offense charged so that he can prepare a defense and be protected from being twice placed in jeopardy for the same offense. Leggs v. State , 966 N.E.2d 204, 207 (Ind. Ct. App. 2012).

[13] "The State is not required to include detailed factual allegations in a charging information." Laney v. State , 868 N.E.2d 561, 567 (Ind. Ct. App. 2007), trans. denied . "An information that enables an accused, the court, and the jury to determine the crime for which conviction is sought satisfies due process. Errors in the information are fatal only if they mislead the defendant or fail to give him notice of the charge filed against him." Dickenson v. State , 835 N.E.2d 542, 550 (Ind. Ct. App. 2005) (citations omitted), trans. denied . "[W]here a charging instrument may lack appropriate factual detail, additional materials such as the probable cause affidavit supporting the charging instrument may be taken into account in assessing whether a defendant has been apprised of the charges against him." State v. Laker , 939 N.E.2d 1111, 1113 (Ind. Ct. App. 2010), trans. denied .

[14] The trial court may dismiss a charging information if it "does not state the offense with sufficient certainty" or if the "facts stated do not constitute an offense." Ind. Code § 35-34-l-4. But a defendant charged with a felony must file such motion no later than twenty days before the omnibus date. Id . Grimes concedes that he failed to timely challenge the allegedly defective charging information.

[15] Failure to timely challenge an allegedly defective charging information results in waiver unless fundamental error has occurred. See Hayden v. State , 19 N.E.3d 831, 840 (Ind. Ct. App. 2014), trans. denied ; Leggs , 966 N.E.2d at 207–08. Fundamental error is an extremely narrow exception to the waiver rule, and the defendant faces the heavy burden of showing that the alleged error is so prejudicial to the defendant's rights as to make a fair trial impossible. Ryan v. State , 9 N.E.3d 663, 668 (Ind. 2014), reh'g denied . An error in a charging information is fundamental if it "mislead[s] the defendant or fail[s] to give him notice of the charges against him so that he is unable to prepare a defense to the accusation." Leggs , 966 N.E.2d at 208 (quotation omitted).

[16] In this case, Grimes was charged with twenty counts of Level 4 felony incest. In each of the twenty counts, the State alleged that

In Harrison County, State of Indiana, on or about the time between August 1st, 2015 and February 1st, 2016, and at a different time than alleged in any other Count, JESSIE GRIMES, a person eighteen (18) years of age or older, did engage in sexual intercourse or other sexual conduct, with another person, when the person knows that the other person is related to the person biologically as a parent, child, grandparent, grandchild, sibling, aunt, uncle, niece, or nephew and the other person is less than sixteen (16) years of age;

To-Wit: JESSIE GRIMES, a person over eighteen (18) years of age did engage in sexual intercourse with S.G., his biological daughter who is less than sixteen (16) years of age, in

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