Hoglund v. State Of Ind.
Decision Date | 22 February 2011 |
Docket Number | No. 90A02-1005-CR-591,90A02-1005-CR-591 |
Parties | KEITH HOGLUND, Appellant/Defendant, v. STATE OF INDIANA, Appellee/Plaintiff. |
Court | Indiana Appellate Court |
FOR PUBLICATION
ATTORNEY FOR APPELLANT:
JOHN PINNOW
GREGORY F. ZOELLER
Attorney General of Indiana
KARL M. SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE WELLS CIRCUIT COURT
The Honorable David L. Hanselman, Sr., Judge
OPINION-FOR PUBLICATION
BRADFORD, Judge Appellant/Defendant Keith Hoglund appeals from his conviction of and sentence for Class A felony Child Molesting.1 Hoglund contends that the trial court abused its discretion in admitting testimony regarding whether the victim was falsifying or exaggerating stories of Hoglund's molestation of her, whether the trial court abused its discretion in sentencing him, and whether his fifty-year sentence is inappropriately harsh. We affirm.
FACTS AND PROCEDURAL HISTORY
In 1997, Hoglund met Teresa Malott in a Fort Wayne nightclub, and the couple married later that year. On February 20, 1998, A.H., the couple's first daughter was born. Beginning when A.H. was four or five years old, Hoglund caused her to fellate him. The fellatio occurred until after A.H.'s seventh birthday; A.H. testified that it occurred two to three times a week. Hoglund would rub flavored substances onto his penis and occasionally ejaculate into A.H.'s mouth. Hoglund also showed A.H. pornographic movies depicting oral sex, told her that her mother viewed her with "disgust" and cared more about her younger sister and half-brother than her, promised to give her money and toys, and told her that she would be "covered in black and blue" and that he would go to jail if she told anyone about their activities. Tr. pp. 34, 78. After A.H. told Hoglund that she no longer wanted to fellate him, she asked him if he would ever force her younger sister to fellate him, and he responded, "I don't know, maybe." Tr. p. 30.
On May 4, 2006, the State charged Hoglund with two counts of Class A felony child molesting. At trial, pediatrician Carol Butler, mental health counselor Christine Ottaviano Shestak, and clinical psychologist Amanda Mayle, who met with A.H. in March of 2006, January of 2007, and July and August of 2009, respectively, all testified. During Dr. Butler's testimony, the following exchange occurred:
During Shestak's testimony, the following exchange occurred:
Also during Shestak's testimony, the following exchange occurred:
During Dr. Mayle's testimony, the following exchange occurred:
The jury found Hoglund guilty as charged. On May 17, 2010, the trial court sentenced Hoglund to fifty years of incarceration for one count of child molesting.2 The trial court found Hoglund's violation of a position of trust and that A.H. was less than twelve years old when the molestation occurred to be aggravating circumstances, Hoglund's lack of criminal convictions to be a mitigating circumstance, and that the aggravating circumstances "significantly" outweighed the mitigating. Sentencing Tr. p. 15.
DISCUSSION AND DECISION
I. Whether the Trial Court Abused its Discretion in Admitting Evidence
Regarding the Likelihood that A.H. was Fabricating her Story of Child Abuse
The admissibility of evidence is within the sound discretion of the trial court. Curley v. State, 777 N.E.2d 58, 60 (Ind. Ct. App. 2002), trans denied. We will reverse a trial court's decision on the admissibility of evidence only upon a showing of an abuse of that discretion. Id. An abuse of discretion may occur if the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law. Id. The Court of Appeals may affirm the trial court's ruling if it is sustainable on any legal basis in the record, even though it was not the reason enunciated by the trial court. Moore v. State, 839 N.E.2d 178, 182 (Ind. Ct. App. 2005), trans. denied. We do not reweigh the evidence, and consider the evidencemost favorable to the trial court's ruling. Hirsey v. State, 852 N.E.2d 1008, 1012 (Ind. Ct. App. 2006), trans. denied.
Hoglund contends that the admission regarding whether A.H. was fabricating her story of child abuse was an abuse of discretion requiring reversal.
Stewart v. State, 555 N.E.2d 121, 125 (Ind. 1990), abrogated on other grounds by Lannan v. State, 600 N.E.2d 1334 (Ind. 1992).
In this case, the three witnesses who testified regarding whether A.H. had a tendency to fabricate were a pediatrician, a mental health counselor, and a clinical psychologist. A parent or teacher, both of whom would have countless hours of contact with a child is distinguishable from a therapist or counselor, who may meet with a childfor a few hours or less. In addition to cases involving parents and teachers, the case law recognizes that a...
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