Morgan v. State

171 N.E.3d 656 (Table)

Joshua MORGAN, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 20A-CR-960

Court of Appeals of Indiana.

FILED May 20, 2021

Attorney for Appellant: Elizabeth A. Flynn, Braje, Nelson & Janes, LLP, Michigan City, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Tiffany A. McCoy, Deputy Attorney General Indianapolis, Indiana

MEMORANDUM DECISION

May, Judge.

[1] Joshua Morgan appeals his thirty-six-year aggregate sentence following convictions of three counts of Level 1 felony child molestation,¹ two counts of Level 4 felony child molestation,² and one count of Level 4 felony child solicitation.³ He raises two issues on appeal, which we revise and restate as: (1) whether the trial court abused its discretion at sentencing; and (2) whether his sentence is inappropriate in light of the nature of his offense and his character. We affirm.

Facts and Procedural History

[2] B.R. was born in November of 2005, and in 2016, she lived in LaPorte, Indiana, with her mother V.R. ("Mother"), her father R.R. ("Father"), her younger brother, her grandmother, and occasionally, her stepbrother. Morgan was friends with both Mother and Father. He would routinely visit them, and they would smoke marijuana together. Morgan and Mother also had a sexual relationship. Father would watch Morgan and Mother perform coitus, and Father would sometimes join them in the activity.

[3] Morgan spent time with B.R. and her younger brother when he visited Mother and Father. Morgan would take them to a nearby gas station to get treats, and he would give them rides on his moped. Morgan would also exchange text messages and messages through Facebook Messenger with B.R. on an almost daily basis. B.R. was ten years old at the time, and she testified that the messages started as "the normal, ‘hello,’ ‘hi,’ at the beginning" but that progressed to Morgan calling her "certain names with—like what you do with couple names ... Like, ‘Hey there, beautiful[.]’ " (Tr. Vol. III at 121.) Morgan and B.R. also sent each other pictures. On April 2, 2016, Morgan messaged B.R., "How old are you now?" (State's Ex. 39.) B.R. stated, "10," and Morgan asked, "R u going through puberty yet?" (Id. ) B.R. answered, "No puberty yet." (Id. )

[4] Morgan also asked B.R. to send him pictures of her vagina, and B.R. complied with Morgan's requests. Morgan sent B.R. a picture of his penis. In one June 2016 text conversation, Morgan sent B.R. messages stating, "Would u like me to Fuck that tiny little pussy;" "I can boom on your beach lol;" and "Would you like me to rape you. Lol[.]" (State's Ex. 23) (errors in original).

[5] During one of Morgan's visits when B.R. was ten years old, Morgan entered B.R.’s bedroom while she was lying on the floor, sleeping. Morgan moved B.R.’s blanket off her body and put it over her face. He then removed her pajama bottoms and used his hand to poke and rub B.R.’s vagina. He also performed oral sex on B.R. and inserted his penis into her vagina. B.R.’s younger brother was sleeping in a nearby bed when this occurred.

[6] Another time, Morgan visited the house while B.R. was home alone. B.R. was lying on her stomach near the edge of her parents’ bed playing a video game when Morgan entered the bedroom. Morgan then began rubbing his crotch against B.R.’s behind. Both Morgan and B.R. were fully clothed, and B.R. tried to ignore Morgan and concentrate on the video game during the encounter.

[7] A third encounter occurred when Morgan woke B.R. while she was sleeping on the floor. They talked and either Morgan or B.R. removed B.R.’s clothes. Morgan unzipped his pants and directed B.R. to masturbate him. Morgan also used his hand to rub B.R.’s vagina and inserted his penis into B.R.’s vagina while B.R. was lying on her back on the floor. Morgan ejaculated on B.R.’s stomach.

[8] A fourth event occurred when Morgan accompanied B.R. and her family on a visit to a hair salon. Morgan and B.R. waited alone in the family's sport utility vehicle for the other members of B.R.’s family to finish receiving haircuts. B.R. and Morgan were sitting on a row of seats behind the driver and front-passenger seats, and Morgan unzipped his pants. Pursuant to Morgan's instructions, B.R. masturbated Morgan and put her lips around the head of his penis.

[9] There was also an incident in which B.R. witnessed Morgan and Mother having sex from the hallway after Father temporarily opened the bedroom door. Afterwards, Morgan approached B.R. while she was sitting on an outdoor porch swing. Morgan sat down next to B.R. and started to talk to her about what she had just witnessed. Morgan then unzipped his pants, and he directed B.R. to rub his penis. On separate occasions, Morgan also asked B.R. to masturbate him while they were sitting together in a shed in her family's backyard and Morgan sucked on one of B.R.’s breasts while they were sitting together on a couch in the family's living room.

[10] On July 18, 2016, Mother noticed a message from Morgan appear on B.R.’s phone during a family cookout. Mother realized the message was inappropriate, and she contacted the police. An officer with the LaPorte City Police interviewed Mother, collected B.R.’s phone, and referred the matter to the department's detective bureau. As part of the detective bureau's investigation, B.R. underwent a sexual assault examination at a local hospital, and an Indiana Department of Child Services coordinator conducted a forensic interview. Officers initially contacted Morgan via phone, and they later conducted an in-person interrogation. Morgan denied abusing B.R., and when officers asked Morgan about the text messages between him and B.R., Morgan stated that he thought he was texting Mother.

[11] The State charged Morgan with four counts of Level 1 felony child molestation, two counts of Level 4 felony child molestation, and one count of Level 4 felony child solicitation. Morgan agreed to accept a plea agreement, and on August 2, 2017, the LaPorte County Probation Department filed a pre-sentence investigation report ("PSI") that included a psychosexual report. In a statement Morgan submitted in connection with the psychological assessment, he wrote, "On what [B.R.] say happen to her was not ‘all’ me. there were others. She just putting it all on one person." (App. Vol. II at 94) (errors in original). The report indicated that Morgan presented a medium to high risk to re-offend. The report noted that Morgan demonstrated:

• Poor understanding of sexual offending risk factors and risk management strategies.

• Serious problems associated with alcohol and drug abuse.

• Fails to identify obvious life problems and has difficulty recognizing negative consequences of his decisions.

• Precontemplation stage: Does not recognize his problems and has no intention to change.

• No fixed address.

• Associates with primarily negative social influences.

(Id. at 96.) However, at the sentencing hearing on August 11, 2017, the trial court rejected the plea agreement.⁴ Morgan's case then proceeded to trial.

[12] The court held a jury trial from February 10 to February 13, 2020. Following presentation of the evidence, the State dismissed one of the Level 1 felony counts, and the jury returned guilty verdicts on all remaining counts. The trial court ordered the preparation of an updated PSI, but the court expressly chose not to order a psychosexual evaluation because "[t]hat would entail that Mr. Morgan would have to admit his guilt, so I don't think he wants to do that at this point." (Tr. Vol. IV at 241.)

[13] The court held a sentencing hearing on March 30, 2020. At the sentencing hearing, Morgan acknowledged that he had read the updated PSI. He explained the PSI incorrectly indicated that his alcoholism began earlier than it did and the PSI erroneously stated he first tried marijuana at age nine when he actually first tried it at thirteen. The parties also clarified the number of days of jail time credit Morgan earned, but Morgan did not point to any other inaccuracies in the PSI. The State asked the court to impose a forty-year sentence with no more than five years suspended. Morgan argued for the court to impose the mandatory minimum sentence of twenty years. Morgan declined to make an allocution statement, but his counsel proposed as mitigating factors: (1) that the crimes were the result of circumstances unlikely to recur, and (2) that Morgan's character and attitudes indicate he is unlikely to commit another crime. In response, the court stated:

THE COURT: What attitude? The attitude where he blames basically the victim throughout most of his statement that he gave to probation? That attitude?

[Defense Counsel]: No. The—

THE COURT: Okay. I'm now just wondering where you're pulling this out of other than just reading down the list. But how are you applying it to this situation? I see no evidence that that effects either [sic]. Also, you said that this is likely to not occur again, and, yet, the psychosexual evaluation said he's very highly likely to reoccur [sic] again. Then you said it was a situation that might not [happen] again. Pure conjecture once again. So I don't find any of those mitigators. Do you have any others?

[Defense Counsel:] No, I do not, Your Honor.

(Tr. Vol. V at 4.)

[14] The court found Morgan's criminal history to be an aggravating factor. The court also found as an aggravating factor that while Morgan was incarcerated awaiting trial in the case at bar, the State charged him with battery against a public safety officer.⁵ The court sentenced Morgan to a term of thirty-six years in the Indiana Department of Correction on the first count of Level 1 felony child molestation, thirty-year terms of imprisonment for each of the remaining counts of Level 1 felony child molestation, six-year terms of imprisonment for each of the two counts of Level 4 felony child molestation, and six-years imprisonment for the one count of Level 4 felony child...