Hale v. State

Levi Conrad Hale, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff,

No. 21A-CR-704

Court of Appeals of Indiana

November 1, 2021

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata collateral estoppel, or the law of the case.

Appeal from the Tippecanoe Superior Court The Honorable Steven P Meyer, Judge Trial Court Cause No. 79D02-2002-F1-4

ATTORNEY FOR APPELLANT Bruce W. Graham Graham Law Firm P.C. Lafayette, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Sierra A. Murray Deputy Attorney General Indianapolis, Indiana

MEMORANDUM DECISION

Robb, Judge.

Case Summary and Issues

[¶1] Following a jury trial, Levi Hale was convicted of child molesting, a Level 1 felony. The trial court sentenced Hale to forty years in the Indiana Department of Correction ("DOC") with four years suspended to probation. Hale now appeals, raising multiple issues for our review, which we restate as: (1) whether the State presented sufficient evidence to support his conviction of child molesting; (2) whether the trial court abused its discretion in identifying aggravating circumstances; and (3) whether his sentence is inappropriate in light of the nature of the offense and his character. Concluding there was sufficient evidence to support his conviction, the trial court did not abuse its discretion in determining aggravating circumstances, and Hale's sentence was not inappropriate, we affirm.

Facts and Procedural History

[¶2] In November 2019, Hale lived with Amanda Smith, his wife of five years.^[1] They lived together with Smith's children, including Smith's thirteen-year-old daughter S.C. who had recently moved back in with them.^[2] Smith worked the nightshift so Hale would watch the children while she worked. One night while Smith was at work, Hale had sex with S.C.

[¶3] On January 4, 2020, SC vomited and experienced stomach pain. After speaking with S.C., Smith purchased multiple pregnancy tests. S.C. took the tests, and they came back positive. S.C. then informed Hale that she was pregnant. Initially, SC told Smith that "some kid from school" had gotten her pregnant; however, she later told Smith that Hale had impregnated her. Transcript, Volume 2 at 130. S.C. testified that Hale had instructed her to lie to Smith regarding the cause of her pregnancy.

[¶4] Smith took S.C. to the hospital to arrange for S.C. to get a medically induced abortion and then contacted the police. On January 9, 2020, the passing of the "products of conception" occurred and the fetal remains were given to authorities for DNA testing. Id. at 140-43. Subsequently, Hale's DNA was collected, and a paternity test was conducted. The test revealed that the probability of paternity for Hale was 99.9999%. Confidential Exhibit, Volume 2 at 7.

[¶5] The State charged Hale with child molesting, a Level 1 felony. At trial, Hale argued that he was unaware of S.C.'s exact age:

Now remember, the State's got to prove to you beyond a reasonable doubt that there was knowing intentional sex with someone under the age of fourteen years old. There's no testimony about that.

Yes, we got a date of birth of [S.C.]. But that doesn't mean that Mr. Hale had any idea what date she was born. In fact, she wasn't even living in the household for most of his married life with [Smith]. . . . It wasn't his biological daughter. And so what you've got is testimony of [S.C.] that she went into the bedroom, that they had intercourse and no other evidence that Mr. Hale had any idea that . . . she was under fourteen years of age.

Tr., Vol. 2 at 170. However, the jury concluded Hale was guilty as charged.

[¶6] On April 14, 2021, the trial court conducted a sentencing hearing. As aggravating circumstances the trial court found: Hale has a significant criminal history; Hale has had four petitions to revoke probation filed against him; Hale has been unsuccessfully discharged from probation in the past; Hale was on probation at the time of the offense; Hale is wanted on warrants out of the state of Kentucky; Hale has a history of failing to appear; the harm, injury loss, or damage suffered by S.C. was significant and greater than the elements necessary to prove the commission of the offense; Hale was in a position of having care, custody, or control of S.C.; and Hale was placed in segregation at the county jail while this case was pending. See Appellant's Appendix, Volume II at 13-14; Tr., Vol. 2 at 196-97.

[¶7] As for mitigating circumstances, the trial court found: Hale's substance abuse issues^[3]; Hale's family support; and Hale's expressed remorse. See Appellant's App., Vol. II at 14; Tr., Vol. 2 at 194-96. Finding that the aggravating circumstances outweighed the mitigating circumstances, the trial court sentenced Hale to forty years to be served in the DOC with four years suspended to probation. Hale now appeals.

Discussion and Decision

I. Sufficiency of the Evidence

A. Standard of Review

[¶8] Our standard of reviewing a sufficiency claim is well-settled: we do not reweigh the evidence or assess the credibility of the witnesses. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). Instead, we consider only the evidence most favorable to the verdict and the reasonable inferences supporting it. Id. Therefore, the evidence need not overcome every reasonable hypothesis of innocence. Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007). "[W]e will affirm the conviction unless no reasonable trier of fact could have found the elements of the crime beyond a reasonable doubt." Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011).

B. Child Molesting

[¶9] Hale argues that the State failed to present sufficient evidence to support his child molesting conviction. To convict Hale of child molesting by sexual intercourse as a Level 1 felony, the State was required to prove beyond a reasonable doubt that Hale, being at least twenty-one years old, with a child under fourteen years of age, knowingly or intentionally performed or submitted to sexual intercourse. Ind. Code § 35-42-4-3(a)(1).

[¶10] Hale contends that the State "is required to present some evidence to demonstrate Hale's knowledge that S.C. was younger than fourteen years of age - but failed to do so."^[4] Brief of Appellant at 11. Hale relies on the fact that S.C. had only lived with him and Smith for a short period of time to support his contention that the State failed to show he knew her age. However, the State presented evidence that S.C. lived with them at the time of the offense and Hale watched S.C. while Smith worked. Further, Hale had been married to Smith for five years and had known her since they were five years old. We expect jurors to draw upon their own personal knowledge and experience in assessing credibility and deciding guilt or innocence. See Lamar v. State, 514 N.E.2d 1269, 1271 (Ind. 1987). Therefore, we conclude that because S.C. lived with Hale and Hale was married to Smith for a significant period of time, a reasonable juror could conclude that Hale knew S.C. was under fourteen years old.

II. Abuse of Discretion in Sentencing

A. Standard of Review

[¶11] Sentencing determinations are within the trial court's discretion and will be reversed only for an abuse of discretion. Harris v. State, 964 N.E.2d 920, 926 (Ind.Ct.App. 2012), trans. denied. An abuse of discretion occurs if the decision is "clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom." Gross v. State, 22 N.E.3d 863, 869 (Ind.Ct.App. 2014) (citation omitted), trans. denied. Examples of how a trial court may abuse its sentencing discretion include if it: (1) fails "to enter a sentencing statement at all"; (2) enters "a sentencing statement that explains reasons for imposing a sentence -including a finding of aggravating and mitigating factors if any - but the record does not support the reasons"; (3) enters a sentencing statement that "omits reasons that are clearly supported by the record and advanced for consideration"; or (4) considers reasons that "are improper as a matter of law." Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007).

B. Aggravating Circumstances

[¶12] Hale contends that the trial court abused its discretion by finding that "the damage suffered by the victim was significant and greater than the elements necessary to prove the commission of the offense" was an aggravating circumstance. Br. of Appellant at 18.

[¶13] First, other aggravating circumstances identified by the trial court and not challenged by Hale are sufficient to support Hale's maximum sentence. The trial court found a multitude of aggravating circumstances including Hale's lengthy criminal history and that Hale was in a position of having care, custody, or control of S.C. See Singer v. State, 674 N.E.2d 11, 14 (Ind.Ct.App. 1996) (stating that "[a]busing a 'position of trust' is, by itself, a valid aggravator which supports the maximum enhancement of a sentence for child molesting."). These valid aggravating circumstances support the enhancement of Hale's sentence. See Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002) (holding that "[e]ven when a trial court improperly applies an aggravator, a sentence enhancement may be upheld if other valid aggravators exist.").

[¶14] Second, although Hale correctly points out that a court may not use an element of the offense itself to enhance a sentence, see Gomillia v. State, 13 N.E.3d 846, 852-53 (Ind. 2014), the trial court did not do so in this case. The trial court stated:

For this Court, that

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