Reahard v. State
| Citation | 13 N.E.3d 551 (Table) |
| Decision Date | 20 May 2014 |
| Docket Number | No. 85A02–1311–CR–1005.,85A02–1311–CR–1005. |
| Parties | Zackery REAHARD, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Jeffry G. Price, Peru, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
BROWN
, Judge.
Zackery Reahard appeals his convictions and sentences for child molesting as a class A felony, sexual misconduct with a minor as a class B felony, child molesting as a class C felony, sexual misconduct with a minor as a class D felony, and child molesting as a class B felony. Reahard raises two issues, which we revise and restate as:
I. Whether the evidence is sufficient to sustain certain convictions; and
II. Whether the court erred in sentencing him. We affirm.
Between August 2006 and July 27, 2007, Reahard lived with his mother, Mona Dalton, and his father Dave Dalton, his younger brother C.D., his sister Toccara, and Toccara's child in a house on East Ninth Street in North Manchester, Indiana. During that time, CD. became friends with J.F. and M.S., and the three boys would spend time together at the house. Reahard, who was about nine years older than the three boys, would give the boys marijuana and smoke marijuana with them.
In late July 2007, Reahard's family moved to the Warsaw area while he moved in with a friend on Bond Street, which was next to the college. On September 3, 2007, Reahard turned twenty-one years old. J.F., who at the time was between eleven and twelve years old, would visit the home on Bond Street with CD. and spend time with CD. and Reahard. At some point, Reahard moved in with his family in Warsaw, and J.F. lost contact with CD. and Reahard until September 5, 2008, when Reahard's family moved back to the Manchester area and into the Clear Creek Apartments (the “Clear Creek Home”), where they lived until April 15, 2010.
While living in the Clear Creek Home, Reahard began dating J.F.'s aunt, and as a result J.F. resumed visiting C.D. and Reahard. Soon after Reahard's family moved into the Clear Creek Home, J.F. and Reahard engaged in sexual activity for the first time in which J.F. “lost his virginity.” Transcript at 61. J.F., who at the time was twelve years old, stayed over the night before, and when J.F., C .D., and Reahard were on the bed in Toccara's room Reahard began “showing his thing” to J.F. Id. at 56. The next night, the two boys and Reahard were in the bedroom and Reahard started “getting touchy” with J.F. on the bed. Id. at 58. C.D. decided to leave the bed and use his laptop on the floor of the room, Reahard then began “messing” with J.F.'s penis, and J.F. touched Reahard's penis. Id. at 58–59. J.F. and Reahard began to kiss, and when C.D. noticed he announced he was leaving to go visit M.S. at his house. After CD. left, J.F. and Reahard undressed, and Reahard performed oral sex on J.F. J.F. also put his mouth around Reahard's penis. Reahard then placed J.F.'s penis into Reahard's anus, and they engaged in anal sex.
While J.F. and Reahard were naked under the covers, Reahard's mother Mona entered the room to speak with them and asked them to spend time with her. They responded in the negative, and after she left Reahard attempted to put his penis inside J.F.'s anus but was unsuccessful. Reahard and J.F. continued to kiss, and Mona again entered the room. When she observed them, she began “going off” on Reahard because J.F. was only twelve years old. Id. at 61. Mona then left the room to go to sleep, and when Reahard again attempted to initiate sexual contact J.F. pushed him away. J.F. then went home and told his best friend about what had happened. He also told CD., but CD. already knew what had occurred. Reahard and J.F. did not have sexual contact for some time after that incident because Reahard was incarcerated for about six months beginning in January of 2009.
After Reahard was released from jail and his family moved to a residence on 103 Mill Street (the “Mill Street Home”), where they lived from April 15, 2010 through September 15, 2011, he and J.F. had “[m]any other encounters.” Id. at 64. Reahard would text J.F. on a nightly basis and talk to him on the phone, and they engaged in sexual activity “too many [times] to count” before J.F. turned sixteen. Id. at 67. Specifically, J.F. and Reahard engaged in oral sex on approximately ten occasions and had anal sex in Reahard's bedroom. Reahard and J.F. would also smoke, get high, and have anal sex in another small house on the same property. Also, when J.F. was fifteen years old, he and Reahard engaged in anal sex at J.F.'s house while CD. was also in the room. On that occasion, J.F.'s mother discovered that Reahard was there and kicked him out of the house. Later, J.F.'s mother found out about what had occurred and forbade J.F. from visiting Reahard's home. J.F. moved away and lost contact with Reahard and his family, and J.F. subsequently was put into therapy and the police were contacted.
In addition to the incidents with J.F., Reahard also engaged in sexual activity with M.S. when M.S. would visit with CD. or stay the night. Reahard would touch M.S.'s legs and have oral sex with M.S., and sometimes they would get high before engaging in sexual contact. Beginning when M.S. was twelve years old, he engaged in anal sex, oral sex, and “hand jobs” with Reahard approximately ten times. Id. at 117. J.F. also witnessed M.S. and Reahard engaging in anal sex at M.S.'s house on one occasion. M.S. believes that J.F. may have mentioned what had been occurring between Reahard and J.F. to M.S. at around the same time the incidents involving M.S. were occurring.
On February 21, 2013, the State charged Reahard with Count I, child molesting as a class A felony; Count II, sexual misconduct with a minor as a class B felony; Count III, child molesting as a class C felony; Count IV, sexual misconduct with a minor as a class D felony; Count V, child molesting as a class B felony; Count VI, child molesting as a class C felony; and Count VII, child molesting as a class A felony. Counts I–IV pertained to conduct against J.F., and Counts V–VII pertained to conduct against M.S. On September 24, 2013, the court commenced a jury trial in which evidence consistent with the foregoing was presented. Following the State's case-in-chief, the State moved to dismiss Counts VI and VII, and the court granted the motion. Mona testified as a defense witness that she observed J.F. on top of Reahard kissing Reahard and that Reahard was not responding, that she kicked Reahard out, and that she told J .F.'s mother about the incident. On September 25, 2013, the jury found Reahard guilty on Counts I–V.
On October 28, 2013, the court held a sentencing hearing in which the court identified the following aggravating circumstances: (1) Counts I and V are crimes of violence; (2) the evidence showed that Reahard seduced his victims with drugs and bragged about being a drug dealer; (3) Reahard's juvenile and adult criminal history; and (4) the imposition of a reduced sentence would depreciate the seriousness of the crimes. The court sentenced Reahard to thirty-five years, including three years suspended to probation, on Count I, ten years on Count II, four years on Count III, one and one-half years on Count IV, and twelve years on Count V. The court ordered that Counts I–IV be served concurrent to one another, and that Count V be served consecutive to Counts I–IV. Thus, the court ordered that Reahard serve an aggregate term of forty-four years in the Department of Correction followed by three years of probation.
The first issue is whether the evidence is sufficient to sustain Reahard's convictions on Counts I–IV.1 When reviewing claims of insufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind.1995)
, reh'g denied. Rather, we look to the evidence and the reasonable inferences therefrom that support the verdict. Id. We will affirm the conviction if there exists evidence of probative value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Id. The uncorroborated testimony of one witness, even if it is the victim, is sufficient to sustain a conviction. Ferrell v. State, 565 N.E.2d 1070, 1072–1073 (Ind.1991).
The arguments raised by Reahard on appeal all, at their core, constitute challenges to J.F.'s credibility. Specifically, Reahard argues regarding Count I that J.F. testified “emphatically” that he was twelve years old when the first sexual encounter between he and Reahard occurred and that it occurred at the Clear Creek Home, rather than the home on Ninth Street, but that due to J.F.'s birthday on October 9, 2008, there was “only one month when the encounter could have occurred....” Amended Appellant's Brief at 7–8. Reahard further notes that he did not immediately move into the Clear Creek Home, which “further reduce[s] the opportunity for the events to occur when J.F. was still 12 years old.” Id. at 8. Reahard also asserts that J.F. “told the jury, as well as the State Police Detective ... that the first sexual encounter with Reahard occurred on New Year's Eve,” and notes various problems with such testimony, including that Reahard was living on Ninth Street on December 31, 2007, and that “Reahard and his Mother testified that he went out and partied” and “would have been incapable of a sexual encounter with J.F. because he was unconscious/high or passed out.” Id. at 9. Reahard also argues that J.F. presented testimony running afoul of the incredible dubiosity rule when he testified that C.D. was in the room while J.F. and Reahard were performing oral sex on each other and when J.F. stated that Mona walked into the room and “actually laid down on the bed with them and talked to them.” Id. He also invokes the...
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