Mehringer v. State

152 N.E.3d 667

Michael MEHRINGER, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 19A-CR-2281

Court of Appeals of Indiana.

Filed August 24, 2020

Attorney for Appellant: Bryan L. Ciyou, Alexander N. Moseley, Ciyou and Dixon, P.C., Indianapolis, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Samuel J. Dayton, Deputy Attorney General, Indianapolis, Indiana

May, Judge.

[1] Michael Mehringer appeals his conviction of and sentence for Level 3 felony child molesting.¹ He presents five issues for our review, which we revise and restate as:

1. Whether the State presented sufficient evidence to support Mehringer's conviction;

2. Whether the trial court abused its discretion by omitting proposed mitigating circumstances from its sentencing statement;

3. Whether Mehringer's sentence is inappropriate in light of the nature of his offense and his character;

4. Whether Indiana Code section 35-38-1-7.5 unconstitutionally encroaches on the judicial fact-finding function; and

5. Whether Mehringer's right to due process was violated when he was determined to be a sexually violent predator by operation of law pursuant to Indiana Code section 35-38-1-7.5.

We affirm.

Facts and Procedural History

[2] After dating since 2006, Mehringer married a woman named Andrea, who had a daughter from a previous relationship. Mehringer acted as a father figure toward Andrea's daughter and legally adopted her in 2012, making her name G.M. Mehringer would help G.M. with her homework, attend her sporting events, go on family vacations, and perform other parenting functions.

[3] While on winter break from school in December 2017, G.M., who was approximately thirteen years old, attended twice-daily swim practices. Mehringer would sometimes give G.M. massages to alleviate her soreness from practice. That December, Mehringer had several days off from his job working for the Federal Aviation Administration ("FAA"). The night before he was to return to work, Mehringer visited G.M.'s bedroom and laid down next to her on her bed. G.M. played games on Mehringer's cell phone, and then she decided to read a book. G.M. reached over Mehringer to grab the book from the nightstand and then laid back down.

[4] G.M. was wearing panties and a long t-shirt, and as she was reading, Mehringer "started to touch [G.M.'s] legs and then eventually went through [her] underwear." (Tr. Vol. I at 71.) Mehringer inserted his finger into G.M.'s vagina and stated, "if I massage you too hard let me know." (Id. at 72.) G.M. froze while Mehringer touched her, and she eventually asked to use the restroom. After using the restroom, G.M. returned to the bedroom and said that she was going to bed. Mehringer got off G.M.'s bed, and G.M. laid down on the edge of her bed. Mehringer then tried to lay down next to G.M., but he fell off her bed. Mehringer asked G.M. if she wanted him to continue lying next to her, and she indicated that she did not. Mehringer then promised G.M. an iPod, a car on her 16th birthday, and "the best 21st birthday." (Id. at 73.)

[5] G.M. mentioned Andrea would be very upset if she found out what Mehringer had done to her, and Mehringer told G.M. not to tell her mom about what happened because Andrea would kick him out of the house if she found out. Mehringer then asked, "what about the other times this happened[?]," alluding to a time when he rubbed against G.M. while they were both lying on her bed and a time when G.M. was sitting in the living room and Mehringer touched her breast. (Id. at 76.) Mehringer then left G.M.'s bedroom. G.M. cried and had trouble falling asleep that night. She decided not to go to swim practice the next morning because she was too tired.

[6] While Andrea drove G.M. to her evening swim practice the day after the incident, G.M. told Andrea that Mehringer "needs to tell you something when he gets home." (Id. at 66.) Andrea called Mehringer after dropping G.M. off, and she asked Mehringer what happened the previous night. Mehringer said, " ‘I'm not sure. I know I did something wrong. I think I touched G.M.’ " (Id. at 28.) The three discussed the matter when G.M. returned home from swim practice. Andrea did not immediately contact the police or the Department of Child Services ("DCS"). Mehringer moved out of the house in January 2018. In April or May of 2018, G.M. started to attend counseling. Around this time, Andrea also contacted DCS and filed for divorce from Mehringer. DCS contacted the Greenwood Police Department, and a detective interviewed G.M.

[7] The State charged Mehringer with Level 3 felony child molesting on August 2, 2018. The court held a bench trial on August 26, 2019. At trial, Mehringer acknowledged lying next to G.M. on her bed and giving her a massage, but he denied inserting his finger in her vagina. He testified that when he told G.M. she was not going to get an iPod for Christmas as punishment for sending lewd photographs to a teenage boy, G.M. accused him of touching her inappropriately. The trial court found Mehringer guilty and entered judgment of conviction.

[8] The court held a sentencing hearing on September 16, 2019. At the conclusion of the hearing, Mehringer asked for a lenient sentence. He noted his lack of criminal history, the good parenting behaviors he exhibited in raising G.M., his inability to continue making child support payments while incarcerated, and his low likelihood of recidivism. The State pointed out that Mehringer exploited a position of trust to commit his crime and asked the court to sentence Mehringer to an eleven-year term, with eight years executed followed by three years on probation.

[9] In pronouncing sentence, the court recognized as an aggravating circumstance that Mehringer occupied a position of trust when he committed his offense. The court also recognized as mitigating factors Mehringer's lack of criminal history and his payment of child support for G.M. following his divorce. However, the court assigned the latter circumstance minimal mitigating weight because Mehringer victimized G.M. and because both G.M. and Andrea asked for Mehringer to receive a long sentence. The court sentenced Mehringer to a nine-year term, with seven years executed in the Indiana Department of Correction ("DOC") and two years suspended to probation. The court also found Mehringer to be an offender against children pursuant to Indiana Code section 35-42-4-11 and a sexually violent predator ("SVP") pursuant to Indiana Code section 35-38-1-7.5.

Discussion and Decision

I. Sufficiency of the Evidence

[10] Mehringer asserts the State did not present sufficient evidence to sustain his conviction. In assessing whether there was sufficient evidence to support a conviction, we consider the probative evidence in the light most favorable to the verdict. Burns v. State , 91 N.E.3d 635, 641 (Ind. Ct. App. 2018). "It is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction." Drane v. State , 867 N.E.2d 144, 146 (Ind. 2007). "Reversal is appropriate only when no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Thus, the evidence is not required to overcome every reasonable hypothesis of innocence and is sufficient if an inference may reasonably be drawn from it to support the verdict." Burns , 91 N.E.3d at 641 (internal citation omitted).

[11] Indiana Code section 35-42-4-3 states: "A person who, with a child under fourteen (14) years of age, knowingly or intentionally performs or submits to sexual intercourse or other sexual conduct (as defined in IC 35-31.5-2-221.5 ) commits child molesting, a Level 3 felony." Indiana Code section 35-31.5-2-221.5 defines "other sexual conduct" to include, in relevant part, "the penetration of the sex organ or anus of a person by an object." Mehringer argues the State failed to prove he acted knowingly or intentionally. The State may prove intent through circumstantial evidence. Lee v. State , 973 N.E.2d 1207, 1210 (Ind. Ct. App. 2012), trans. denied . "Intent can be inferred from a defendant's conduct and the natural and usual sequence to which such conduct logically and reasonably points. The fact finder is entitled to infer intent from the surrounding circumstances." Id. (internal citation omitted).

[12] While Mehringer maintains "the circumstantial evidence can only lead to the inference that [Mehringer's] conduct and actions were completely innocent, and in no way different than any other night," (Appellant's Br. at 20), G.M.'s reaction to Mehringer's actions demonstrates they were out of the ordinary. G.M. cried and had trouble sleeping after Mehringer left her room. She testified the digital penetration occurred for at least ten seconds and could have lasted as long as three minutes. When G.M. confronted Mehringer about the incident afterwards, he alluded to other times he sexually touched G.M. These three facts demonstrate the touching was not accidental. Mehringer notes several facts in support of his argument that he did not intend to penetrate G.M.'s vagina with his finger, including that he routinely gave G.M. massages; testimony that G.M.'s room was dark and the door was open on the night of the incident; and that G.M. did not accuse Mehringer of misconduct before December 2017. However, Mehringer is merely requesting that we reweigh the evidence, which we will not do. See Wright v. State , 828 N.E.2d 904, 906 (Ind. 2005) (holding defendant's sufficiency of the evidence argument was a request for the appellate court to reweigh the evidence, which it will not do).

II. Trial Court's Sentencing Decision

[13] Mehringer contends the trial court erred in omitting proposed mitigating factors from the sentencing statement. Sentencing decisions rest within the sound discretion of the trial court, and we review such decisions for an abuse of discretion. Hudson v....