Ware v. State

• Decision Date: 03 November 2004
• Docket Number: No. 69A05-0311-CR-590.,69A05-0311-CR-590.
• Parties: Kevin WARE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

816 N.E.2d 1167

Kevin WARE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 69A05-0311-CR-590.

Court of Appeals of Indiana.

November 3, 2004.

George Hoffman, III, Michael R. Auger, Jones Hoffman & Admire, Franklin, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant, Kevin Ware (Ware), appeals his convictions for sexual misconduct with a minor as a Class B felony, Ind.Code § 35-42-4-9(a)(1); and sexual misconduct with a minor as a Class C felony, I.C. § 35-42-4-9(b)(1).

We affirm in part, reverse in part, and remand.

ISSUES

Ware raises three issues on appeal, which we restate as follows:

(1) Whether the State presented sufficient evidence to support Ware's convictions for the two counts of sexual misconduct with a minor alleged to have occurred on or about February 2001 to April 15, 2001;

(2) Whether Ware is entitled to a new trial on the ground that he was substantially prejudiced by the admission of evidence of acts that occurred outside of Ripley County, Indiana; and

(3) Whether the trial court abused its discretion in sentencing Ware.

FACTS AND PROCEDURAL HISTORY

S.H. was born in April 1985. In the fall of 1999, when S.H. was fourteen years old, he befriended Ware's adolescent son and, subsequently, began spending time at Ware's house. By the winter of 2000-2001, S.H. was spending the night at the Ware house at least every other weekend. S.H. also accompanied Ware and Ware's son on several vacations during this period. Specifically, Ware took his son and S.H. to Canada during Spring Break of 2000, to West Virginia in February 2001, and on a Caribbean Cruise during Spring Break of 2001.

In September of 2000, Ware acquired a hot tub. Within one month of acquiring the hot tub and after S.H. had been in the hot tub a couple of times with Ware, Ware told S.H. that he did not need to wear swim trunks in the hot tub. After S.H. complied, Ware began to touch S.H.'s genitals with his foot while they were in the hot tub. Soon thereafter, Ware also began fondling S.H. with his hands, and S.H. began to touch Ware—these incidents occurred in the hot tub approximately two or three times a month. Moreover, every time S.H. was in the hot tub, he drank alcohol supplied by Ware. During a visit to Ware's house, a friend of S.H., J.M., observed Ware and S.H. sitting naked in the hot tub together and told S.H. that he found it "weird." (Transcript p. 195). Another friend of S.H., K.G., observed S.H. drinking alcohol while sitting in the hot tub and also noticed that S.H. and Ware did not wear swim trunks in the hot tub. While Ware and S.H. were in the hot tub, Ware's son was generally inside the house playing video games.

At some point before the end of 2000, Ware lifted S.H. above the water of the hot tub and performed oral sex on him. Ware and S.H. then began going regularly to Ware's bedroom to watch pornographic movies while lying in bed. At the end of one of several parties Ware hosted in early 2001, S.H.'s older brother observed Ware and S.H. engaging in sexual conduct in Ware's bedroom, and he confronted S.H. the next day. Following this confrontation, S.H. and Ware continued their sexual relationship "the same as before." (Tr. p. 288). Within the time period of December 2000 to April 2001, Ware fondled S.H. between ten and twenty times and there were five episodes of oral sex. The sexual activity did not "slow down" until the summer of 2001. (Tr. p. 293).

In August of 2002, Child Protective Services called the Batesville City Police Department to report Ware's sexual misconduct, which S.H. had disclosed in a counseling session. Shortly thereafter, Officer David Abel of the Batesville City Police Department formulated a plan involving S.H.'s father, who had befriended Ware when their sons began spending time together, and several officers from the Batesville City Police Department and the Indiana State Police Department. Specifically, the Batesville City Police Department outfitted S.H.'s father with an electronic listening device and sent him to confront Ware. Immediately following the confrontation, during which Ware admitted to S.H.'s father that he and S.H. had touched each other and had engaged in oral sex, several officers from both police departments served search and arrest warrants.

On September 6, 2002, the State filed an information, charging Ware with Count I, sexual misconduct with a minor as a Class B felony, I.C. § 35-42-4-9(a)(1); Count II, sexual misconduct with a minor as a Class C felony, I.C. § 35-42-4-9(b)(1); and Count III, dissemination of matter harmful to minors, a Class D felony, I.C. § 35-49-3-3.

On March 27, 2003, the State deposed S.H. On April 7, 2003, the State moved to file Count IV, sexual misconduct with a minor as a Class B felony, I.C. § 35-42-49(a)(1); and Count V, sexual misconduct with a minor as a Class C felony, I.C. § 35-42-4-9(b)(1).

A jury trial commenced on September 2, 2003. Following the trial, on September 4, 2003, the jury found Ware guilt of all counts.

On October 20, 2003, the trial court held a sentencing hearing. Following the sentencing hearing, the trial court sentenced Ware to ten years on Count I, sexual misconduct with a minor as a Class B felony; four years on Count II, sexual misconduct with a minor as a Class C felony; one and one-half years on Count III, dissemination of matter harmful to minors, a Class D felony; ten years on Count IV, sexual misconduct with a minor as a Class B felony; and four years on Count V, sexual misconduct with a minor as a Class C felony.

The trial court ordered that the sentences for Counts I, II, and III were to be served concurrently; that the sentences for Counts IV and V were to be served concurrently; and that the concurrent sentences for Counts I-III were to be served consecutive to the concurrent sentences imposed for Counts IV and V. Finally, the trial court ordered that five years of the total 20 year sentence be suspended, with Ware on probation, and ordered Ware to pay for any counseling S.H. receives as a result of these crimes.

Ware now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Sufficiency of the Evidence

First, Ware contends that the State presented insufficient evidence to support his convictions for Counts IV and V, sexual misconduct with a minor as a Class B felony and as a Class C felony. I.C. § 35-42-4-9(a)(1), (b)(1). When reviewing sufficiency of the evidence claims, this Court does not reweigh the evidence or assess the credibility of witnesses. Causey v. State, 808 N.E.2d 139, 143 (Ind.Ct. App.2004). Instead, we consider only the evidence most favorable to the verdict, together with all reasonable and logical inferences to be drawn therefrom. Id. The conviction will be affirmed if there is substantial evidence of probative value to support the conclusion of the trier of fact. Id. A molested child's uncorroborated testimony is sufficient to sustain a conviction. Sipe v. State, 797 N.E.2d 336, 339 (Ind.Ct.App.2003). Sexual misconduct with a minor is defined by Indiana Code § 35-42-4-9, which provides in pertinent part:

(a) A person at least eighteen (18) years of age who, with a child at least fourteen (14) years of age but less than sixteen (16) years of age, performs or submits to ... deviate sexual conduct commits sexual misconduct with a minor, a Class C felony. However, the offense is:

(1) a Class B felony if it is committed by a person at least twenty-one (21) years of age[.]

...

(b) A person at least (18) years of age who, with a child at least fourteen (14) years of age but less than sixteen (16) years of age, performs or submits to any fondling or touching, of either the child or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person, commits sexual misconduct with a minor, a Class D felony. However, the offense is:

(1) a Class C felony if it is committed by a person at least twenty-one (21) years of age[.]

...

(c) It is a defense that the accused person reasonably believed that the child was at least sixteen (16) years of age at the time of the conduct....

Thus, in order to convict Ware of sexual misconduct with a minor as a Class B felony and as a Class C felony, the State was required to prove beyond a reasonable doubt that Ware performed or submitted to deviate sexual conduct and fondling or touching with a child between the ages of fourteen and sixteen. "Deviate sexual conduct" means an act involving a sex organ of one person and the mouth or anus of another person. I.C. § 35-41-1-9(1).

Ware contends specifically that the evidence is insufficient to support two of his convictions for sexual misconduct with a minor because the State did not present evidence that the acts alleged in Counts IV and V occurred on or about February 2001 to April 15, 2001, as specified in the charging information. S.H. testified that Ware began making sexual advances toward S.H. within one month of acquiring his hot tub in September 2000 and that their sexual relationship, which included oral sex and fondling, did not "slow down" until the summer of 2001. (Tr. p. 293). According to S.H.'s testimony, Ware fondled S.H. between ten and twenty times and there were five episodes of oral sex within the time period of December of 2000 to April of 2001. When Detective Stanley Holt of the Batesville City Police Department interviewed Ware on September 23, 2002, Detective Holt inquired, "[I]f the time frame that S[.H.] is giving is from November of 2000 to November of 2001, does that time frame sound to be correct?" (Tr. p. 86). Ware replied, "It, it sounds like, yeah, it sounds reasonable." (Tr. p. 86). Thus, the evidence indicates that the sexual relationship began in approximately October 2000, one month...