Michael P. McCoy v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Feb 16 2016, 6:35 am 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.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Thomas G. Godfrey Gregory F. Zoeller Anderson, Indiana Attorney General of Indiana

James B. Martin Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Michael P. McCoy, February 16, 2016 Appellant-Defendant, Court of Appeals Case No. 48A04-1507-CR-1031 v. Appeal from the Madison County Circuit Court State of Indiana, The Honorable David A. Happe, Appellee-Plaintiff. Judge Trial Court Cause No. 48C04-1412-F1-2094

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-1031 | February 16, 2016 Page 1 of 11 ^[1] Michael P. McCoy pled guilty to Child Molesting as a Level 1 felony,1 Child

Molesting as a Class A felony,2 and Incest as a Class B felony.3 The trial court

sentenced McCoy to an aggregate term of eighty-five years, with twenty-five

years suspended. McCoy presents three issues for our review, which we reorder

and restate as:

1. Was McCoy denied his right of confrontation when the trial court admitted hearsay evidence during the sentencing hearing and then relied upon such evidence in deciding the sentence to be imposed?

2. Is McCoy’s sixty-year executed sentence inappropriate?

3. Did the trial court properly impose consecutive sentences?

^[2] We affirm.

Facts & Procedural History

^[3] On November 20, 2014, officers with the Anderson Police Department were

dispatched to a local elementary school to assist the Department of Child

1 Ind. Code § 35-42-4-3(a)(1). The charging information alleged that this offense occurred “[o]n or between July 1, 2014 and November 15, 2014.” Appellant’s Appendix at 12. 2 I.C. § 35-42-4-3(a)(1). The charging information alleged that this offense occurred “[o]n or between January 1, 2013 and December 31, 2013.” Appellant’s Appendix at 13. Effective July 1, 2014, this offense was reclassified as a Level 1 felony. Because McCoy committed this offense prior to that date, it retains its prior classification as a Class A felony. 3 Ind. Code § 35-46-1-3. The charging information alleged that this offense occurred between January 1, 2010 and June 30, 2014. Effective July 1, 2014, this offense was reclassified as a Level 4 felony. Because this offense was committed prior to that date, it retains its prior classification as a Class B felony.

Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-1031 | February 16, 2016 Page 2 of 11  Services. Arriving officers were given information that an eleven-year-old child

(the Child) was alleged to have been molested or forced to perform oral sex on

her biological father, McCoy. The Child was transported to the ASPIRE

Center for a forensic interview. During the recorded forensic interview, the

Child stated that every Saturday since she was four or five years old she

performed oral sex on McCoy. McCoy would also force her to engage in oral

sex on other occasions as well. He told the Child that it was a stress reliever for

him and that it would keep him from beating the Child and her brother. Each

time, McCoy would lock Child in his room, provide her with a flavored

lubricant, and tell her to “suck it.” State’s Exhibit 1. On occasion, McCoy

would tell the Child to swallow his semen. McCoy would also have the Child

measure his penis with a ruler.

^[4] Beginning in approximately January 2014, McCoy, while the Child was

performing oral sex on him, began to touch her around her vagina. On one

occasion, he placed his finger inside her vagina causing her pain and

discomfort. McCoy also attempted to put a vibrator in the Child’s vagina, but

the Child refused. McCoy provided the Child with sex magazines, x-rated

movies, and a chest containing “stripper clothes.” Id. McCoy told the Child

not to tell anyone about performing oral sex on him and threatened to harm her

physically if anyone found out.

^[5] The Child stated McCoy indicated to her that now that she is getting older and

maturing physically, they can start having sex. The Child told the interviewer

that she did not want this to happen and that she was “tired” of McCoy. Id.

Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-1031 | February 16, 2016 Page 3 of 11  She also expressed fear over McCoy’s request that she “put on a show” using

the outfits in the trunk and sex toys. Id.

^[6] On December 1, 2014, the State charged McCoy with Count I, child molesting

as a Level 1 felony; Count II, incest as a Level 4 felony; Counts III, IV, V, and

VI, child molesting as Class A felonies; and Count VII, incest as a Class B

felony. On June 22, 2015, McCoy entered into a plea agreement with the State

whereby McCoy agreed to plead guilty to Counts I, IV, and VII, and the State

agreed to dismiss the remaining counts. The plea agreement further provided

for open sentencing, but with a sixty-year cap on executed time. The trial court

held a guilty plea and sentencing hearing on July 13, 2015.

^[7] As a factual basis for Count I, McCoy admitted that he submitted on multiple

occasions to sex acts consisting of his daughter performing oral sex upon him

between July 1 and November 1, 2014. McCoy further admitted that his

daughter was under the age of fourteen when these acts occurred. As a factual

basis for Count IV, McCoy admitted that he engaged in sexual contact with his

daughter between January 1 and December 31, 2013. The sex acts consisted of

him having his daughter perform oral sex on him. With regard to Count VII,

McCoy admitted that he is the Child’s biological father, that the Child was

under sixteen years of age, that he was over twenty-one years old, and that he

submitted to deviate sexual conduct (i.e., oral sex) with her between January 1,

2010 and June 30, 2014. The trial court found that an adequate factual basis

existed and accepted McCoy’s guilty pleas to Count I, IV, and VII. The trial

court then sentenced McCoy to thirty-five years on Count I, thirty-five years on

Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-1031 | February 16, 2016 Page 4 of 11  Count IV, and fifteen years on Count VII. The trial court ordered the sentences

served consecutively for an aggregate sentence of eighty-five years, of which the

trial court ordered sixty years executed and the balance suspended. Additional

facts will be provided as necessary.

Discussion & Decision

1. Hearsay

^[8] McCoy argues that trial court improperly admitted hearsay evidence presented

by way of the recording of the Child’s forensic interview and the testimony of

the Child’s foster parent during the sentencing hearing.4 Specifically, McCoy

argues that admission and consideration of such hearsay evidence violated his

right to confrontation as set forth in Article 1, Section 13 of the Indiana

Constitution.

^[9] We begin by noting that McCoy did not object to the trial court’s consideration

of the Child’s forensic interview. Generally, the failure to object results in

waiver of the issue for appellate review. See Cole v. State, 28 N.E.3d 1126, 1135

(Ind. Ct. App. 2015). To avoid waiver, McCoy argues that the trial court

committed fundamental error by admitting into evidence the video of the

4 During the sentencing hearing, the Child’s current foster parent testified that the Child has emotional problems and struggles with behaving appropriately at school and around other children. She further testified that the Child has inappropriate knowledge about sex given her age. In terms of hygiene, the Child refuses to wash her private area. The Child’s foster parent testified that she struggles with what has happened to her because she loves her father and wants to please him.

Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-1031 | February 16, 2016 Page 5 of 11  Child’s forensic interview and then by considering such hearsay evidence in

deciding what sentence to impose. Fundamental error is error that “constitutes

a blatant violation of basic principles, the harm or potential for harm is

substantial, and the resulting error denies the defendant fundamental due

process.” Id. (quoting Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006)).

^[10] The basis of McCoy’s argument on appeal is that the Child’s forensic interview

and her foster parent’s testimony constituted hearsay. It has long been

established that hearsay is admissible at sentencing hearings. Stokes v. State, 828

N.E.2d 937, 941 (Ind. Ct. App. 2005), trans. denied; see also Ind. Evidence Rule

101(c)(2) (“[t]he rules . . . do not apply in . . . proceedings relating to . . .

sentencing”). “The rationale for exempting certain proceedings, including

sentencing, from the rules of evidence is to provide the trial judge with the

widest range of relevant information in reaching an informed decision.” Dumas

v. State, 803 N.E.2d 1113, 1121 (Ind. 2004). Thus, the hearsay about which

McCoy now complains was properly admitted during the sentencing hearing.

There was no error, let alone fundamental error.

^[11] Notwithstanding the above, McCoy asks that we extend the protections

afforded by Article 1, Section 135 of the Indiana Constitution to bar hearsay

evidence in sentencing hearings. McCoy acknowledges that there is no case

law to support his argument, but nonetheless submits that the protections

5 Article 1, Section 13 of the Indiana Constitution provides a criminal defendant the right of confrontation: “In all criminal prosecutions, the accused shall have the right . . . to meet the witnesses face to face.”

Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-1031 | February 16, 2016 Page 6 of 11  should be extended to “limited circumstances such as here where most of the

aggravation presented was in the form of hearsay.” Appellant’s Brief at 6.

^[12] At the sentencing hearing, however, McCoy objected based on Crawford v.

Washington, 541 U.S. 36 (2004), which addressed the federal right of

confrontation.6 McCoy did not make a separate argument below regarding the

right of confrontation set forth in Article 1, Section 13. McCoy has therefore

waived this argument on appeal.7 See Lehman v. State, 730 N.E.2d 701, 703

(Ind. 2000) (noting that when a defendant presents one argument at trial and a

different argument on appeal, the claims are forfeited).

2. Inappropriate Sentence

6 In Crawford, the United States Supreme Court addressed admission of testimonial evidence at trial and the impact on a defendant’s federal right of confrontation. 541 U.S. 36. The context of the analysis was testimonial evidence admitted during trial, not a sentencing hearing. Since the Crawford decision, several courts have held that the analysis therein does not apply to sentencing hearings. See, e.g., U.S. v. Francis, 39 F.3d 803, 810 (7th Cir. 1994). The rationale is that a sentencing hearing is not a criminal prosecution within the meaning of the Sixth Amendment because its sole purpose is to determine the appropriate punishment for the offense. See also Debro v. State, 821 N.E.2d 367, 374 (Ind. 2005). 7 Acknowledging that he did not raise a specific challenge under Article 1, Section 13, McCoy argues that the denial of his state right to confrontation amounts to fundamental error. As noted above, fundamental error is error that “constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.” Cole, 28 N.E.3d at 1135. Our Supreme Court has noted that the federal right of confrontation and the State’s right to a face-to-face meeting are, to a considerable degree, co-extensive. Turner v. State, 953 N.E.2d 1039, 1055 n.8 (Ind. 2011); Brady v. State, 575 N.E.2d 981, 986-87 (Ind. 1991). Nevertheless, “the rights guaranteed by our state constitution are not necessarily identical to those provided by the federal constitution.” Turner, 953 N.E.2d at 1055 n.8; Brady v. State, 575 N.E.2d981, 986-87 (Ind. 1991). Even assuming such is the case, we note that here, McCoy admitted to the operative facts supporting his convictions and it is those core facts that served as the basis for the trial court’s sentencing decision. McCoy forced the Child to perform oral sex on a regular basis since she was a child of tender years. McCoy has not established that fundamental error occurred.

Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-1031 | February 16, 2016 Page 7 of 11 ^[13] McCoy argues that his eighty-five year sentence with sixty years executed is

inappropriate “for a man forty-five (45) years of age with minimal criminal

record, who pled guilty to the charges and who himself had been physically and

mentally abused by his father as a child.” Appellant’s Brief at 4. McCoy asserts

that because his convictions under Counts I and IV are credit restricted felonies,

“it is likely, then, that [he] will serve the rest of his life in prison.” Id. at 5.

^[14] Despite the fact that the trial court imposed a sentence that is authorized by

statute, we may revise McCoy’s sentence if, “after due consideration of the trial

court’s decision, [we] find that the sentence is inappropriate in light of the

nature of the offense and the character of the offender.” Ind. Appellate Rule

7(B). Ultimately, “[t]he principal role of appellate review should be to attempt

to leaven the outliers, and identify some guiding principles for trial courts and

those charged with improvement of the sentencing statutes, but not to achieve a

perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225

(Ind. 2008). Thus, “whether we regard a sentence as appropriate . . . turns on

our sense of the culpability of the defendant, the severity of the crime, the

damage done to others, and myriad other factors that come to light in a given

case.” Id. at 1224. In making this determination, the relevant considerations

are the length of the aggregate sentence and how it is to be served. Id. McCoy

bears the burden of persuading our court that his sentence is inappropriate.

Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012).

^[15] We begin with the character of the offender. McCoy has a prior conviction for

domestic battery in 2000. McCoy also pled guilty and accepted responsibility

Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-1031 | February 16, 2016 Page 8 of 11  for his actions in this case, thereby saving the Child from having to testify. In

its sentencing statement, the trial court noted that it found McCoy’s demeanor

“a little bizarre,” but nevertheless found that McCoy “expressed some measure

of remorse.” Transcript at 63. The court continued, explaining that it found it

to be an “attenuated expression of remorse,” and thus did not afford it much

weight. Id. These considerations are quite unremarkable in our consideration

of the character of the offender. Given the facts of this case, we find that the

nature of the offense is more telling of McCoy’s character.

^[16] With regard to the nature of the offense, we note how the Child, now eleven,

recounted that since she was about four years old, McCoy, her biological father,

would make her “suck his dick” every Saturday and at other times of his

choosing. State’s Exhibit 1. The Child described McCoy’s penis as tasting like

“crap” and how he would use a bubblegum flavored lubricant to make it taste

better. Id. Starting around January 2014, McCoy started putting his finger on

her vagina while she was performing oral sex on him. On one occasion he put

his finger in her vagina causing the Child pain and discomfort. In the trial

court’s words, McCoy kept the Child as his “sexual slave . . . to be used at [his]

whim to satisfy his sexual desires.” Transcript at 64. The nature of this offense

is particularly heinous. McCoy’s sixty-year executed sentence is not

inappropriate.8

8 We further note that although McCoy reserved the right to challenge his sentence in his plea agreement, he also agreed to a sixty-year cap on executed time.

Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-1031 | February 16, 2016 Page 9 of 11  3. Consecutive Sentences

^[17] McCoy argues that the trial court improperly relied upon the age of the victim,

an element of the crimes to which he pled guilty, in ordering that his sentences

be served consecutively. The decision to impose consecutive sentences lies

within the discretion of the trial court. Gross v. State, 22 N.E.3d 863, 869 (Ind.

Ct. App. 2014), trans. denied. A trial court is required to state its reasons for

imposing consecutive sentences. Id. Moreover, a single aggravating

circumstance may justify the imposition of consecutive sentences. Gilliam v.

State, 901 N.E.2d 72, 74 (Ind. Ct. App. 2009).

^[18] Here, the trial court found as an aggravating factor that the Child was of an

“extreme tender age” when the abuse began and further noted that such age

was “well below the age . . . necessary to establish the elements of the offense.”

Transcript at 66. This was not improper. See Kien v. State, 782 N.E.2d 398, 414

(Ind. Ct. App. 2003) (holding that it was not improper to consider that the

victim was of “tender age” as an aggravating circumstance); Stewart v. State, 531

N.E.2d 1146, 1150 (Ind. 1988) (holding that trial court could properly consider

age of the victim in a child molesting case as an aggravating circumstance

where the victim was considered to be of “tender age”).

^[19] In addition to the Child’s age, the trial court considered as aggravating that

McCoy abused a position of trust and that the pattern of abuse, sexual and

physical, was ongoing and occurred over a long period of time. The trial court

found that McCoy’s conduct had a “very powerful impact” on the Child and

Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-1031 | February 16, 2016 Page 10 of 11  specifically noted that the Child is having a “very difficult time trusting anyone”

and is having “real difficulties in developing normal social friendships.”

Transcript at 65. The trial court identified ample aggravating circumstances to

support imposition of consecutive sentences resulting in the maximum sixty-

year executed term allowed under the plea agreement.

^[20] Judgment affirmed.

^[21] Robb, J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-1031 | February 16, 2016 Page 11 of 11