Smith v. State

• Decision Date: 26 February 2021
• Docket Number: Court of Appeals Case No. 20A-CR-1392
• Citation: Smith v. State, 167 N.E.3d 705(Table) (Ind. App. 2021)
• Parties: Jayme L. SMITH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
• Court: Indiana Appellate Court

167 N.E.3d 705 (Table)

Jayme L. SMITH, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 20A-CR-1392

Court of Appeals of Indiana.

FILED February 26, 2021

Attorney for Appellant: David T.A. Mattingly, Mattingly Law, LLC, Lafayette, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General, Caroline G. Templeton, Deputy Attorney General, Indianapolis, Indiana

MEMORANDUM DECISION

Crone, Judge.

Case Summary

[1]Jayme L. Smith appeals his conviction, following a jury trial, for level 4 felony child molesting.Smith challenges the sufficiency of the evidence to support his conviction and also contends that the twelve-year sentence imposed by the trial court is inappropriate in light of the nature of the offense and his character.Finding the evidence sufficient and that Smith has not met his burden to prove that his sentence is inappropriate, we affirm.

Facts and Procedural History

[2] The facts most favorable to the verdict are as follows.M.E. was born in December 2008.In January 2017, M.E. was eight years old and Smith was thirty-seven years old.Smith is M.E.’s mother's cousin and was over at M.E.’s house "all of the time" and "helped out around the house."Tr. Vol. 2at 209. M.E.’s mother considered Smith to be one of her "best friends," and he had a "close" relationship with the whole family.Id.

[3] On January 8, 2017, M.E. and her brother were in M.E.’s bedroom playing video games on her bed.Smith came into the bedroom and sat down on the bed.He told M.E. to come and sit next to him because he wanted to watch her play.M.E. moved next to Smith, who had a blanket on top of him, which he used to also partially cover M.E. Smith then "put his hands on the inside" of M.E.’s jeans on top of her underwear, with his fingers being "about an inch and one-half" from her vagina for approximately ten seconds.Id. at 177-78.M.E. did not say anything to Smith because she was "scared."Id. at 178.At some point, M.E.’s mother walked by the bedroom door and saw Smith quickly "jerk his hand out from under the blanket."Id. at 202. M.E.’s mother was "dumfounded and shock[ed]" and thought that "something weird was going on."Id. at 203.After Smith left the bedroom, M.E. went into the living room and told her mother what happened.M.E.’s mother told Smith to leave, and he became angry, "started cussing," and called M.E. a "f**king little b word."Id. at 205. M.E.’s mother contacted the police later that evening.

[4]The State subsequently charged Smith with level 4 felony child molesting and level 5 felony child solicitation.Following a trial, the jury found Smith guilty of child molesting but not guilty of child solicitation.The trial court imposed a twelve-year sentence, with ten years executed in the Indiana Department of Correction and two years suspended to home detention.This appeal ensued.

Discussion and Decision

Section 1 – Sufficient evidence supports Smith's conviction.

[5] Smith first challenges the sufficiency of the evidence to support his level 4 felony child molesting conviction.In reviewing a challenge to the sufficiency of evidence, we neither reweigh evidence nor judge witness credibility.Moore v. State , 27 N.E.3d 749, 754(Ind.2015).The evidence need not "overcome every reasonable hypothesis of innocence."Dalton v. State , 56 N.E.3d 644, 647(Ind. Ct. App.2016)(quotingDrane v. State , 867 N.E.2d 144, 147(Ind.2007) ), trans. denied.

[6] To convict Smith of level 4 felony child molesting, the State was required to prove that Smith fondled or touched M.E., a child under fourteen years of age, with "intent to arouse or to satisfy the sexual desires of either the child or the older person."Ind. Code § 35-42-4-3(b).Smith asserts that the State failed to establish that he touched M.E. with the intent to arouse or satisfy his or her sexual desires.

[7] The intent element of child molesting may be established by circumstantial evidence and may be inferred from the actor's conduct and the natural and usual sequence to which such conduct usually points.Bowles v. State,737 N.E.2d 1150, 1152(Ind.2000).Further, the "intent to gratify required by the statute must coincide with the conduct; it is the purpose or motivation for the conduct."T.G. v. State , 3 N.E.3d 19, 23(Ind. Ct. App.2014)(quotingDeBruhl v. State , 544 N.E.2d 542, 546(Ind. Ct. App.1989) ).

[8] It is well established that the "[i]ntentional touching of the genital area can be circumstantial evidence of intent to arouse or satisfy sexual desires."Sanchez v. State , 675 N.E.2d 306, 311(Ind.1996).In Nuerge v. State , 677 N.E.2d 1043, 1049(Ind. Ct. App.1997), trans. denied , we concluded that because an inner thigh is in close proximity to the genitals, an erogenous zone, it may itself be the source of sexual gratification.We have also held that a factfinder could reasonably infer that the touching of a child's bare bottom is close enough to the genitals as to constitute the source of sexual gratification.Altes v. State , 822 N.E.2d 1116, 1121-22(Ind. Ct. App.2005), trans. denied.

[9] Here, the evidence indicates that Smith waited for the other adults to be absent before going into a bedroom where eight-year-old M.E. was playing video games and asking her to sit close to him.After ensuring that both their laps were concealed with a blanket, Smith "put his hands on the inside" of her jeans on top of her underwear, with his fingers remaining "about an inch and one-half" from her vagina for approximately ten seconds.Tr. Vol. 2at 177-78.The natural and usual sequence to which Smith's behavior points, coupled with the fact that the area where Smith intentionally placed his hand was close to M.E.’s genitals, supports a reasonable inference that the purpose or motivation for Smith's touching was to arouse or satisfy his or M.E.’s sexual desires.Smith's assertions to the contrary are simply a request for this Court to reweigh the evidence, and we may not.The State presented sufficient evidence of Smith's intent to support his conviction for level 4 felony child molesting.

Section 2 – Smith has not met his burden to prove that his sentence is inappropriate.

[10] Smith also requests that we reduce his sentence pursuant to Indiana AppellateRule 7(B), which states that we"may revise a sentence authorized by statute if, after due consideration of the trial court's decision, [this] Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.""Sentence review under AppellateRule 7(B) is very deferential to the trial court."Conley v. State , 972 N.E.2d 864, 876(Ind.2012)."[W]hen reviewing a sentence, our principal role is to ‘leaven the outliers’ rather than necessarily achieve what is perceived as the ‘correct’ result."Id.(quotingCardwell v. State , 895 N.E.2d 1219, 1225(Ind.2008) )."We do not look to determine if the sentence was appropriate; instead, we look to make sure the sentence was not inappropriate."Id."Whether a sentence is inappropriate ultimately turns on the culpability of the defendant, the severity of the crime, the damage done to others, and a myriad of other factors that come to light in a given case."McFall v. State , 71 N.E.3d 383, 390(Ind. Ct. App.2017)."In assessing whether a sentence is inappropriate, appellate courts may take into account whether a portion of the sentence is ordered suspended or is otherwise crafted using any of the variety of sentencing tools available to the trial judge."Id.The burden is on the defendant to persuade us that his sentence is inappropriate.Id.

[11] Turning first to the nature of Smith's offense, the advisory sentence is the starting point the legislature has selected as an appropriate sentence.Green v. State , 65 N.E.3d 620, 637-38(Ind. Ct. App.2016), trans. denied(2017).The sentencing range for a level 4 felony is between two and twelve years, with an advisory sentence of six years.Ind. Code § 35-50-2-5.5.The trial court here imposed a twelve-year sentence, with ten years executed and two years suspended to home detention.When determining the appropriateness of a sentence that deviates from an advisory sentence, we consider whether there is anything more or less egregious about the offense as committed by the defendant that "makes it different from the typical offense accounted for by the legislature when it set the advisory sentence."Holloway v. State , 950 N.E.2d 803, 807(Ind. Ct. App.2011).We do this while still giving "substantial deference" and "due consideration" to the trial court's decision.Knapp v. State , 9 N.E.3d 1274, 1292(Ind.2014).

[12] Our review of Smith's offense indicates that it is indeed more egregious than the typical offense accounted for by the legislature.Specifically, Smith took advantage of his familial relationship and position of trust with M.E. in order to fulfill his sexual desires.M.E.’s family trusted Smith to come over to the home and to spend time alone with M.E. and her siblings.Smith waited until M.E.’s parents were not around, and then he lured M.E. to sit close to him on her bed under the guise of watching her play video games.He covered himself and M.E. with a blanket so he could surreptitiously put his hand inside her jeans and touch her body extremely close to her vagina.Eight-year-old M.E. "was scared."Tr. Vol. 2at 178. M.E.’s mo...