Miller v. State
| Decision Date | 29 April 2008 |
| Docket Number | No. 40A01-0707-CR-343.,40A01-0707-CR-343. |
| Citation | 884 N.E.2d 922 |
| Parties | Leslie G. MILLER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Alison T. Frazier, Madison, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Marjorie Lawyer-Smith, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant-Defendant, Leslie G. Miller (Miller), appeals his conviction for child molesting as a Class A felony, Ind.Code § 35-42-4-3, and the sentence he received for that crime and two counts of child molesting as a Class C felony, I.C. § 35-42-4-3.
We affirm in part, reverse in part, and remand.
On appeal, Miller raises, four issues, which we restate as:
(1) Whether the evidence is sufficient to support his conviction for child molesting as a Class A felony;
(2) Whether the trial court sentenced him in violation of his rights under Blakely v. Washington, 542 U.S. 296 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), reh'g denied;
(3) Whether his sentence is inappropriate in light of the nature of the offenses and his character; and
(4) Whether the trial court erred when it ordered him to pay $10,770.00 to the Jennings County Prisoner Reimbursement Fund without first inquiring into his ability to pay.
In 2005, fifty-six-year-old Miller lived with his wife next door to twelve-year-old A.W. and her family in North Vernon, Indiana. A.W. and her fourteen-year-old brother K.W. had spent a great deal of time at Miller's house over the previous several years, and by 2005, A.W. and K.W. were at Miller's house nearly every day. Miller sometimes paid A.W. and K.W. for working around his yard. Other times, Miller would give them money without them having done any work. Miller also purchased numerous gifts for A.W. and her family, including a computer, an air conditioner, and a scooter. He also purchased cellular phones for A.W. and K.W.
One evening in January 2005, when A.W. was at Miller's house, Miller told her that he wanted to show her something in his bedroom. Once in the bedroom, Miller first told A.W. to sit down on the bed and then told her to lie down. Miller then told A.W. to take her pants off. Miller touched A.W.'s breasts and then her "private" with his hand or fingers. (Transcript p. 83). Miller unzipped his pants and "took out his private," and A.W. touched it. (Tr. pp. 84-85). Miller also told A.W. to touch his "private" with her mouth, which she did. (Tr. pp. 88-89). When the encounter was over, Miller told A.W. that he would hurt her if she told anybody. Miller then took A.W. and K.W. out for dinner.
On January 29, 2005, Miller's wife discovered a contract for the cellular phone Miller had purchased for A.W. When she confronted Miller, he admitted that he bought the phone for A.W. and had been paying for it. That same day, Miller's wife found a picture of A.W. in Miller's truck. After Miller and his wife had an argument over the nature of his relationship with A.W., Miller left to take his mother out to eat. When Miller left, his wife decided to look through the garage. While doing so, she found letters Miller had written to A.W. torn up and/or crumpled up in the trash. The letters made reference to love and sexual activity. Because she found the letters to be "very inappropriate," Miller's wife called police to report the situation. (Tr. p. 46). The police contacted A.W.'s parents and spoke with A.W. and K.W. A.W. told police about the incident in Miller's bedroom and also about a separate incident that had allegedly taken place in Miller's garage. In addition to the acts listed above, A.W. stated that Miller "took his and rubbed it on mine" and "licked down there." (Tr. pp. 203, 209).
On February 3, 2005, the State filed an Information charging Miller with five counts of child molesting under Indiana Code section 35-42-4-3: Count I, a Class A felony for performing oral sex on A.W.; Count II, a Class A felony for submitting to oral sex performed by A.W.; Count III, a Class C felony for submitting to the fondling of his penis by A.W.; Count IV, a Class C felony for fondling A.W.'s vagina with his finger; and Count V, a Class C felony for fondling A.W.'s genitals with his genitals.
On July 6, 2006, the first day of trial, Miller pled guilty to Counts III and IV, both Class C felonies. The plea agreement contained the following provision: "You have been informed that by pleading guilty, you have voluntarily waived the right to have a jury determine the aggravating or mitigating circumstances that can enhance or reduce your sentence above or below the presumptive sentence." (Appellant's App. p. 102). The first provision of the agreement informed Miller that he "must read this document carefully," and the last provision of the agreement required Miller to certify that he read and understood the agreement and wished to waive the enumerated rights. (Appellant's App. pp. 102, 105). At the guilty plea hearing, Miller acknowledged that he had read his plea agreement carefully, that he had discussed it with his attorney, and that he understood it.
During the ensuing bench trial on Counts I, II, and V, A.W. testified, in part, that Miller had told her to put her mouth on his penis and that she did it. Miller acknowledged that A.W.'s mouth touched his penis but contended that he pushed her away as soon as her lips made contact and told her not to do that. Nonetheless, the trial court found Miller guilty of Count II, child molesting as a Class A felony, which alleged that Miller had submitted to oral sex performed by A.W. The trial court found Miller not guilty on Counts I and V.
On June 29, 2007, the parties appeared for sentencing on Counts II, III, and IV. The trial court identified the following four aggravating circumstances: (1) Miller's acts were part of an ongoing scheme or plan rather than an isolated incident of extremely poor judgment; (2) the negative emotional impact on A.W.; (3) Miller used gifts to foster the relationship; and (4) Miller violated the position of trust he held with A.W. The trial court also found the following seven mitigating circumstances: (1) Miller is a high school graduate; (2) Miller showed remorse; (3) Miller was employed most of his adult life; (4) Miller voluntarily sought counseling; (5) Miller had no criminal history; (6) there is no evidence that Miller used any force; and (7) there is evidence that it is unlikely that Miller will re-offend.
Finding that the aggravators "slightly" outweighed the mitigators, the trial court stated that it was imposing an aggravated sentence of thirty-five years on the Class A felony, to run concurrently with six-year sentences for each of the Class C felonies, with ten years suspended to probation, for a total executed sentence of twenty-five years. (Tr. pp. 408-09). However, in its written sentencing order, the abstract of judgment, and the chronological case summary (CCS), the trial court indicated that it was imposing the presumptive sentence of thirty years on the Class A felony, to run concurrently with six-year sentences for each of the Class C felonies, with five years suspended to probation, for the same total executed sentence of twenty-five years. (Appellant's App. pp. 6, 131, 136).
Furthermore, the trial court's written sentencing order provided, in pertinent part:
Five (5) years of the sentence are suspended provided the Defendant complies with all conditions of probation for sixty (60) months as follows:
...
(20) The Defendant shall pay Ten Thousand Seven Hundred Dollars ($10,770.00) to the Jennings County Prisoner Reimbursement/Fund, which shall be entered as a judgment against the Defendant and in favor of the Auditor of Jennings County in the judgment docket of the Clerk of this Court.
(Appellant's App. pp. 131, 134). The trial court attached "Conditions of Probation" to its sentencing order. Condition 16 stated: "You shall make a minimum payment of $225.00 per month/week toward all fines and fees associated with this case until a total of $13,309.00 is paid." (Appellant's App. p. 138). The $13,309.00 amount included the $10,770.00 payable to the Jennings County Prisoner Reimbursement Fund.
Miller now appeals. Additional facts will be provided as necessary.
Miller first challenges the sufficiency of the evidence with regard to his conviction for Count II, child molesting as a Class A felony. In reviewing a sufficiency of the evidence claim, this court does not reweigh the evidence or judge the credibility of the witnesses. Perez v. State, 872 N.E.2d 208, 212-13 (Ind.Ct.App. 2007), trans. denied. We will consider only the evidence most favorable to the verdict and the reasonable inferences drawn therefrom and will affirm if the evidence and those inferences constitute substantial evidence of probative value to support the judgment. Id. at 214. Reversal is appropriate only when reasonable persons would not be able to form inferences as to each material element of the offense. Id.
In Count II, the State charged Miller under Indiana Code section 35-42-4-3, which provides, in pertinent part:
(a) A person who, with a child under fourteen (14) years of age, performs or submits to sexual intercourse or deviate sexual conduct commits child molesting, a Class B felony. However, the offense is a Class A felony if:
(1) it is committed by a person at least twenty-one (21) years of age[.]
In turn, Indiana Code section 35-41-1-9 defines "deviate sexual conduct" as an act involving either (1) a sex organ of one person and the mouth or anus of another person or (2) the penetration of the sex organ or anus of a person by an object. Here, Count II alleged that Miller, a person at least twenty-one years of age, submitted to deviate sexual conduct, specifically, oral sex, performed by A.W., a person under fourteen years of age.
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