Jewell v. State
| Decision Date | 07 April 2011 |
| Docket Number | No. 32A04-1003-CR-187.,32A04-1003-CR-187. |
| Citation | 938 N.E.2d 1283 |
| Parties | Christopher JEWELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
James H. Voyles, Jr., Jennifer M. Lukemeyer, Voyles Zahn Paul Hogan & Merriman, Indianapolis, IN, Attorneys for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Henry A. Flores, Jr., Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Christopher Jewell appeals his convictions and aggregate forty-year term for six counts of sexual misconduct and child molesting. Jewell was arrested and charged for another alleged offense not at issue here. He posted bond and secured counsel. While that charge was pending, law enforcement enlisted the victim in this case to call Jewell and elicit incriminating statements relating to his sexual misconduct. The calls were recorded. Jewell was charged thereafter with the instant sex offenses, and Jewell's recorded statements were introduced against him at trial. Jewell argues that the statements were procured and admitted in violation of his federal and state constitutional rights to counsel. We conclude that Jewell's statements were not obtained unconstitutionally. The right to counsel is offense-specific and attaches only after adversarial judicial proceedings have commenced. Although Jewell had been charged and had hired counsel in an unrelated case, he had not been charged with the present crimes when the subject phone calls took place. Accordingly, Jewell's right to counsel for this proceeding had not attached, and the investigatory phone calls were permissible. We also find that Jewell's aggregate sentence is not inappropriate in light of the nature of his offenses or his character. We affirm the judgment and sentence of the trial court.
The evidence most favorable to the verdict reveals that Jewell engaged in sexual activity with his stepdaughter, T.S., on at least six occasions when T.S. was between the ages of thirteen and sixteen. The activity included fondling, oral sex, and sexual intercourse.
In August 2008, Jewell was arrested and charged with aiding or abetting the tattooing of a minor. Jewell allegedly helped T.S. get a tattoo. Detective Terry Judy of the Hendricks County Sheriff's Department initiated the filing. Jewell posted bond and retained counsel in connection with that case.
About one week later, T.S. revealed to her boyfriend and mother that Jewell sexually abused her. The disclosures were relayed to authorities. Detective Judy was assigned to investigate T.S.'s sexual misconduct allegations as well.
Detective Judy asked T.S. to participate in recorded phone calls to Jewell to elicit incriminating statements from him pertaining to his sexual misconduct. T.S. agreed. T.S. placed two phone calls to Jewell on August 19 and 20. During the phone calls, Detective Judy prompted T.S. with notes on what to say and what questions to ask. Jewell and T.S. discussed their relationship. Jewell made several references to their sexual involvement and instructed T.S. not to let anyone know about it. Excerpts from the conversations include:
The State charged Jewell with several offenses, namely two counts of Class B felony sexual misconduct with a minor, one count of Class C felony child molesting, one count of Class C felony sexual misconduct with a minor, and two counts of Class D felony child seduction.
Jewell's sex offense charges proceeded to trial. The tattooing charge ultimately was dismissed.
Before trial, Jewell moved to suppress the statements obtained from him during his recorded phone calls with T.S. Jewell argued that the statements were procured in violation of his federal and state constitutional rights to counsel. The trial court denied Jewell's motion following a suppression hearing.
A jury found Jewell guilty on all six counts.
The trial court sentenced Jewell to consecutive twenty-year terms for each Class B felony, eight years for each Class C felony to run concurrently to each other and all other counts, and three years for each Class D felony also to run concurrently to each other and all other counts, for an aggregate term of forty years. The trial court found in part:
Number one, the harm caused to the victim by the Defendant is significant. She's undergoing mental health counseling, is likely to continue to do so for many years. Number two, the Defendant was in a position of trust having the care, custody and control of the victim. He was the victim's stepfather. He was in a position of a surrogateparent. The evidence revealed that the victim never knew her biological father and that she and her brother were adopted when she was three years old.... Shortly thereafter her adoptive parents were divorced and she lived with her adoptive mother.... After her adoptive mother married the Defendant when she was seven or eight years old the victim looked upon the defendant as her father and trusted him. The victim testified that the defendant, quote "took my virginity", end of quote. The Court finds that these were heinous violations of trust. Aggravator number three, the Defendant has a history of criminal activity. He has a conviction for Battery as a misdemeanor in 1998. Four counts of Child Molesting were dismissed pursuant to a plea agreement. Although this conviction was twelve years ago, it is significant that the victim was also a stepdaughter twelve years of age at the time of the conviction who had made allegations of sexual abuse by the Defendant beginning when she was seven years old until she was eleven years old. I'm going to find one mitigating circumstance that being that the imprisonment will cause a hardship on his family and he will not be able to pay child support for his youngest son who is seventeen years of age.... In addition the Court finds, number one, that each count was a separate episode of criminal conduct with increasing severity. What began as a touching or fondling developed into sexual intercourse and deviate sexual conduct with the victim on multiple occasions over a three year period which is an extended period of time. While only six counts were filed against the Defendant by the State in this case, the victim testified that the Defendant sexually assaulted her over thirty times and maybe as many as fifty times over the three year period. Number two, as stated above the victim is undergoing psychological counseling and will continue to do so in the future. She suffers from nightmares, panic attacks and loss of sleep. The Defendant's criminal conduct has adversely affected the victim for the rest of her life. Number three, the victim also testified that the Defendant's sons were present in the home during some of the assaults. This shows ... the Defendant's complete lack of respect not only for the victim but for his own sons. Number four, the Defendant made a conscious choice to continue his sexual assaults on the victim even after promising her that he wouldn't do it again. Number five, the Defendant told the victim not to tell anyone because it would ruin his life. This shows that the Defendant cared only about himself and has no regard for the victim's wellbeing. Additionally the Defendant bought gifts for the victim and gave her money. He also took her to Planned Parenthood to get her birth control pills without her mother's knowledge and took the victim to get a tattoo where he signed the consent form as legal guardian without her mother's knowledge or consent. This reflects on the Defendant's bad character. Number six, the current six convictions as well as the 1998 Battery conviction were crimes against children and crimes against children are particularly contemptible....
Jewell now appeals.
Jewell raises two...
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Jewell v. State
...class C felony and concurrent three-year terms for each class D felony. Jewell appealed. The Court of Appeals affirmed. Jewell v. State, 938 N.E.2d 1283 (Ind.Ct.App.2010). It noted that the Sixth Amendment's protection is specific to the offense on which counsel represents a defendant, citi......