Lavoie v. State

• Decision Date: 20 March 2009
• Docket Number: No. 71A03-0811-CR-573.,71A03-0811-CR-573.
• Citation: 903 N.E.2d 135
• Parties: Andre LAVOIE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

903 N.E.2d 135

Andre LAVOIE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 71A03-0811-CR-573.

Court of Appeals of Indiana.

March 20, 2009.

Mark S. Lenyo, South Bend, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Tiffany N. Romine, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

FRIEDLANDER, Judge.

Andre Lavoie pleaded guilty, pursuant to a plea agreement, to class A felony Child Molesting,¹ class C felony Neglect of a Dependent,² class C felony Child Exploitation,³ class C felony Criminal Confinement,⁴ class D felony Battery,⁵ and three counts of class D felony Intimidation.⁶ Following his guilty plea, the trial court sentenced Lavoie to an aggregate term of seventy-one years in prison. Lavoie appeals his sentence, presenting the following restated issues for review:

1. Did the trial court abuse its discretion by imposing consecutive sentences on all eight counts?

2. Did the trial court abuse its discretion by imposing the maximum eight-year sentence for criminal confinement?

3. Is Lavoie's aggregate sentence inappropriate?

We affirm.

In February 2008, Roberta Lavoie reported to South Bend Police that she had evidence that her husband, Lavoie, had molested her grandson, T.H. Her information was based upon videotapes and microcassette tapes she found in Lavoie's gun safe while he was arrested on a warrant out of Elkhart County for an unrelated matter. Specifically, Roberta reported that the tapes depicted events that took place in 2003 when her grandson was four or five years old.

The charges in the instant case arose from the tape labeled "T.H. Meets the Monster Ghost" and dated November 8, 2003. Appendix at 78. The tape starts by Lavoie positioning the camera so that the majority of his living room is seen on the camera.⁷ After T.H. comes into the room, Lavoie tells him that he has to run over to the neighbor's house but that he will be back soon. Lavoie turns on the television for T.H. and then leaves.

Lavoie's voice can then be heard from the television calling for T.H. T.H. walks toward the television, which cannot be seen on the camera. The voice says, "I'm the Flash. I'm the fastest man alive." Id. at 79. Then Lavoie, posing as the Flash on the television, tells T.H., "I warned you about the monster with the big red eyes." Id. He goes on to remind T.H. that he had been told to "poopy in his pants." Id. He asks T.H. why he has not listened and then tells the child that now he is afraid the Monster Ghost is going to get T.H. Lavoie/the Flash tells T.H. that there is only one thing T.H. can do, which is to quickly remove his clothes like he is going to take a bath. He then says, "Hurry, I hear the monster coming." Id. T.H. asks where he should hide, and Lavoie/the Flash directs the naked child to hide under a blanket on the couch.

After T.H. is fully under the blanket, Lavoie comes back into the room but is now dressed as the Monster Ghost. Lavoie is wearing a white sheet with a cut-out for his head and a skeleton monster mask and gloves. He has duct tape in his hands. Lavoie, as the Monster Ghost, pulls T.H. off the couch, which causes T.H. to start screaming uncontrollably. Lavoie pushes T.H. to the floor while yelling, "Are you going to listen to me now? Do you want me to kill you? Don't cry." Id. The child immediately stopped crying until Lavoie strikes him on the naked buttocks ten times, causing pain. While out of range of the camera, Lavoie can be heard grunting and making monster-type noises. T.H. continues to scream and says, "What are you doing to me?" and "I can't move." Id.

Lavoie eventually leaves the room, while taking off his disguise. T.H. then stands up, still crying, screaming, and naked, and his hands can now be seen on the video duct taped behind his back. Breathing heavily, Lavoie comes back into the room as himself. T.H. immediately asks Lavoie why he did that, but Lavoie assures T.H. that he was at the neighbor's house. Lavoie consoles T.H. and removes the tape from his arms. While holding T.H. on his lap for several minutes, Lavoie intentionally exhibits T.H.'s genitals for the camera.

Lavoie asks T.H. if he knows why the monster tried to hurt him and if his "buddy Flash" tried to take care of him. Id. at 80. During their discussion, T.H. uses the word "poop", and Lavoie slaps him across the face and tells him to use the right word. T.H. says "poopy" and Lavoie praises him. Lavoie then pretends to answer the telephone and commences a conversation with the Monster Ghost. T.H. begins crying very hard after hearing Lavoie say, "No, you can't get him. What do you mean you're going to wait at his house?" Id. Lavoie then relays what the Monster Ghost is saying: "If you don't go poopy in your pants, he's going to kill you." Id. Lavoie explains that T.H. must poop in his pants each day so that the Monster Ghost will leave him alone. After further discussions with the Monster Ghost, Lavoie tells T.H. that the Monster Ghost is coming to the house. T.H. screams in fear. Lavoie directs T.H. to poop, pick the poop up with his hands, and put it in the potty. Lavoie repeatedly warns T.H. that the Monster Ghost is coming. Lavoie also says into the phone, "No, I don't want you waiting under his bed at night." Id. at 81. All the while T.H. is terrified and screaming.

Lavoie directs T.H. to put his underwear back on. Before he is allowed to do so, however, Lavoie check's T.H.'s buttocks. He gets back on the phone and tells T.H. that the monster is waiting for him and that the monster talked to T.H.'s mommy and his mommy said that the monster could have him. While T.H. is still screaming, Lavoie reports that the monster says that his mommy and daddy do not want him anymore. He then says that the monster is coming over and that T.H. better "poopy quick." Id.

Lavoie says to the monster, "He can't poopy. Don't come over! What does that mean, you'll bring your friends?" Id. He continues to urge the terrified and screaming T.H. to defecate so that the monster will not come. On the tape, T.H. is seen and heard straining and pushing, desperately trying to have a bowel movement. In the meantime, Lavoie knocks on the door when T.H. is not looking and says, "He's out there! Oh God, he's scary! Hurry and poopy!" Id.

After making sure to position T.H. in the camera's view, Lavoie leaves that room and comes back with some plastic and places it on the ground. T.H. tells Lavoie that he has peed and is trying to poop but cannot. T.H. is screaming while he is saying this and begging to go home. Lavoie reminds him that his mommy said the monster could have him. Lavoie gets back on the phone and then tells T.H. that the monster said he is going to cut T.H.'s "`winky' off if he doesn't poopy." Id. at 82.

Lavoie tells T.H. that he loves him for trying so hard and directs T.H. to use his hands to pull the poopy out. Lavoie again moves T.H. into better camera view and has him on the plastic. He then says into the phone, "you've been watching him at school too? You're going to get him? No, he doesn't want you to cut his weiner off." Id. Lavoie tells T.H. that the monster says he is not trying hard enough, so T.H. pushes and strains with his fists balled up and his cheeks puffing out.

Lavoie then tells T.H. that he must pee in his pants at school. T.H. is specifically directed on what to say to his teacher, and Lavoie makes the child repeat it into the phone. Lavoie tells T.H. that if he does not comply, the monster says he is going to cut off T.H.'s winky and eat it. After further discussion, Lavoie gets T.H. to apologize and promise that he will not go "poopy in the potty" anymore. Id. Lavoie eventually tells the child that he does not have to pee in his pants everyday but that he must poop in his pants everyday at school. Otherwise, according to Lavoie, the monster will cut off T.H.'s winky and eat it and T.H. will bleed to death.

After T.H. had been pushing and straining for at least twenty or thirty minutes, Lavoie offers to help T.H. by getting medicine that will help him poop. He leaves the room and comes back with a long, narrow tube with a larger, rounded area at the end. Lavoie directs T.H. to stand and then turns T.H. so that the child's back is toward the camera. Lavoie pulls down T.H.'s underwear and inserts the narrow tube into T.H.'s anus and squeezes the larger end. While telling T.H. to try to poop, Lavoie tells him how much he loves him for doing this. Lavoie asks, "does it feel good coming?" Id. at 83. After checking T.H.'s underwear, he tells him that there is not much there and that there could be more. He checks again after T.H. tries once more, and Lavoie then dials the phone and tells the monster that T.H. is doing great and had just pooped in his pants.

Thereafter, Lavoie warns T.H. that he cannot tell anyone about the Monster Ghost and specifically lists a number of individuals. T.H. promises not to tell. Lavoie further cautions that the Monster Ghost will kill T.H. and "make [him] into bones" if he says anything. Id. He directs that if T.H. gets into trouble at school for pooping his pants, he is to tell his teacher that his friend B. told him to do it. Lavoie inquires of the monster what will happen if T.H. does not follow these directions and then informs T.H. that the monster will cut his winky off. He then makes T.H. say into the phone that he is going to "peepee and poopy in his pants." Id.

At the conclusion of the tape, Lavoie makes T.H. take off his underwear while on the plastic sheet in front of the camera. After having T.H. show him the poop and pee in the underwear, Lavoie has T.H. turn around and point to his buttocks and say, "this is my poopy little butt." Id. The camera is then turned off.

On February 22, 2008, the State charged Lavoie with class A felony child molesting (Count I), class C felony neglect of a dependent (Count II), class C felony child exploitation (Count III),...