                                                               FILED
                                                          Jan 20 2017, 6:02 am

                                                               CLERK
                                                           Indiana Supreme Court
                                                              Court of Appeals
                                                                and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Jeremy K. Nix                                              Curtis T. Hill, Jr.
Matheny, Hahn, Denman & Nix, LLP                           Attorney General of Indiana
Huntington, Indiana
                                                           James B. Martin
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Wiley W. Walters, Jr.,                                     January 20, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           35A02-1601-CR-168
        v.                                                 Appeal from the Huntington
                                                           Circuit Court
State of Indiana,                                          The Honorable Thomas M. Hakes,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           35C01-1502-F1-41



May, Judge.




Court of Appeals of Indiana | Opinion 35A02-1601-CR-168 | January 20, 2017               Page 1 of 12
[1]   Wiley W. Walters, Jr. appeals his convictions for two counts of Level 1 felony

      child molest 1 and two counts Level 4 felony child molest. 2 Walters raises two

      issues, which we restate as:

                 1. Whether the court abused its discretion in allowing hearsay
                    testimony pursuant to the exception for statements made for
                    medical diagnosis or treatment, and


                 2. Whether his fifty-year sentence was inappropriate.


      We affirm.



                                Facts and Procedural History
[2]   On January 16, 2015, Walters picked up ten-year-old B.E., his relative, 3 from

      her home. B.E. and her siblings had stayed with Walters before but he

      requested they visit separately this time because “they’re a little too

      rambunctious together.” (Tr. at 336.) Walters and B.E. first went to Dairy

      Queen, where Walters told B.E. they would be staying in a hotel rather than

      with his brother, John, where Walters usually lived. B.E. objected to this




      1
          Ind. Code § 35-42-4-3(a)(1) (2014).
      2
          Ind. Code § 35-42-4-3(b) (2014).
      3
       Walters is the victim’s great-grandmother’s brother. (See Tr. at 335 (victim’s mother testifies Walters is her
      “great-uncle . . . father’s uncle . . . grandmother’s brother”).)

      Court of Appeals of Indiana | Opinion 35A02-1601-CR-168 | January 20, 2017                         Page 2 of 12
      change in plans, but Walters took her to the hotel. B.E.’s mother, C.E., was not

      aware of Walters’ plan to stay at a hotel.


[3]   When they arrived at the hotel, Walters already had the room key. Walters and

      B.E. went to the room and watched some television. Walters then insisted B.E.

      disrobe and take a bath. When she objected, he threatened to spank her and

      started to count to three, so she disrobed. Walters followed her into the

      bathroom and asked if he could watch. B.E. objected, and Walters left the

      bathroom.


[4]   B.E.’s clothing was outside the bathroom. When she came out of the bath,

      Walters insisted he dry her off. As he dried her, he touched her “who-who.” 4

      (Id. at 179.) B.E. got dressed, but Walters ordered her to disrobe again and get

      into bed under the covers. He undressed down to his underwear and got into

      the bed. Walters proceeded to squeeze B.E.’s breasts and her buttocks. He

      kissed B.E. and then touched and penetrated B.E.’s genitalia with his finger.

      He forced B.E. to touch his genitalia and performed oral sex on her. Afterward,

      Walters and B.E. went to John’s house. The following day, B.E.’s brother

      joined them.


[5]   On January 24, 2015, while planning B.E.’s eleventh birthday party, C.E.

      noticed her daughter was decidedly moody and “having bouts of emotions.”

      (Id. at 341.) When C.E. tried to talk to B.E., B.E. told her what had happened.



      4
          B.E. identified her “who-who” to be her “female sex organ.” (Tr. at 186.)


      Court of Appeals of Indiana | Opinion 35A02-1601-CR-168 | January 20, 2017      Page 3 of 12
      C.E. contacted her husband, Walters, and her father. C.E. then contacted the

      Huntington County Sheriff’s Department. On January 29, 2015, B.E. was

      interviewed at McKenzie’s Hope, a Child Advocacy Center. On January 30,

      2015, B.E. was examined at the Fort Wayne Sexual Assault Treatment Center

      by Shawn Callahan, a sexual assault nurse examiner.


[6]   The State charged Walters with two counts of Level 1 felony child molest and

      two counts Level 4 felony child molest. At trial, when Nurse Callahan testified

      as to what she was told by B.E., Walters objected. His objection was overruled

      pursuant to the “medical records exception.” (Id. at 303.) Although Walters

      continued his objection, the trial court still overruled him because B.E.’s

      discussion with Callahan was for “medical purposes, and the witness was

      identified as a nurse, and identified herself to the child[.]” (Id. at 308.) The jury

      found him guilty of all counts.


[7]   During sentencing, the trial court found as aggravators Walters’s violation of

      his position of trust, his position of authority, and his “extensive” criminal

      history. (Id. at 457.) The trial court proceeded to sentence Walters to the

      maximum term of fifty years each on the Level 1 felonies and to the maximum

      of twelve years each for the Level 4 felonies. The court ordered all sentences

      served concurrently, resulting in an aggregate sentence of fifty years.



                                  Discussion and Decision


      Court of Appeals of Indiana | Opinion 35A02-1601-CR-168 | January 20, 2017   Page 4 of 12
                                        Admission of Evidence
[8]    Admission of evidence at trial is left to the discretion of the trial court. Clark v.

       State, 994 N.E.2d 252, 259-60 (Ind. 2013). We review its determinations for

       abuse of that discretion, and we reverse only when admission is clearly against

       the logic and effect of the facts and circumstances, and the error affects a party’s

       substantial rights. Id. at 260. We will not reweigh evidence and we consider

       conflicting evidence most favorably to the trial court’s ruling. Rush v. State, 881

       N.E.2d 46, 50 (Ind. Ct. App. 2008). We also consider uncontested evidence in

       favor of the nonmovant. Id. We affirm the court’s decision if it is supported by

       “substantial evidence of probative value.” Id. The ruling will be upheld if it can

       be sustained “on any legal theory supported by the record, even if the trial court

       did not use that theory.” Id.


[9]    Walters asserts the court abused its discretion by admitting inadmissible

       hearsay. Hearsay is “a statement that: (1) is not made by the declarant while

       testifying at the trial or hearing; and (2) is offered in evidence to prove the truth

       of the matter asserted.” Ind. Evidence Rule 801(c). Hearsay is inadmissible

       except as provided by law or other court rules. Evid. R. 802.


[10]   One exception to that inadmissibility rule is a statement made for purposes of a

       medical diagnosis or treatment. Evid. R. 803(4). For hearsay to fall into this

       exception, it must be a statement that:


               (A) is made by a person seeking medical diagnosis or treatment;



       Court of Appeals of Indiana | Opinion 35A02-1601-CR-168 | January 20, 2017   Page 5 of 12
               (B) is made for--and is reasonably pertinent to--medical diagnosis
               or treatment; and


               (C) describes medical history; past or present symptoms, pain or
               sensations; their inception; or their general cause.


       Id. This exception “reflects the idea that people are unlikely to lie to their

       doctors because doing so might jeopardize their opportunity to be made well.”

       VanPatten v. State, 986 N.E.2d 255, 260 (Ind. 2013). To test whether the

       declarant’s self-interest in obtaining effective medical treatment makes the

       hearsay report adequately reliable for admission, the court must determine: “1)

       is the declarant motivated to provide truthful information in order to promote

       diagnosis and treatment; and 2) is the content of the statement such that an

       expert in the field would reasonably rely on it in rendering diagnosis or

       treatment.” McClain v. State, 675 N.E.2d 329, 331 (Ind. 1996).


[11]   The statements made by victims of sexual assault “satisfy the second prong of

       the analysis because they assist medical providers in recommending potential

       treatment for sexually transmitted disease, pregnancy testing, psychological

       counseling, and discharge instructions.” VanPatten, 986 N.E.2d at 260. The

       first prong regarding the declarant’s motivation can generally be inferred from

       the fact a victim sought medical treatment. Id. at 260-61. However, when

       children are brought to the medical provider by their parents, an “inference [of

       the declarant’s motivation] may be less than obvious” as the child may not

       understand the purpose of the examiner or the relationship between “truthful

       responses and accurate medical treatment.” Id. Thus, in these situations,

       Court of Appeals of Indiana | Opinion 35A02-1601-CR-168 | January 20, 2017   Page 6 of 12
       evidence must be presented to show the child understood the medical

       professional’s role and the importance of being truthful. Id. Such evidence may

       be presented “in the form of foundational testimony from the medical

       professional detailing the interaction between [her] and the declarant, how [she]

       explained [her] role to the declarant, and an affirmation that the declarant

       understood that role.” Id. at 261.


[12]   Walters claims the testimony of the forensic nurse Shawn Callahan was

       analogous to the testimony of the forensic nurse in VanPatten. In VanPatten, our

       Indiana Supreme Court held the State had not established the six-year-old

       victims understood the importance of telling the nurse the truth in order to get

       accurate medical treatment. Id. at 265. The nurse had observed the police

       interviews, the medical examination had been directly preceded by extensive

       interviews at the Department of Child Services, and the children themselves did

       not testify they had understood the nurse’s role. Id. at 266. The nurse was

       unable to testify what she said to the victims, how they responded, and if they

       understood the situation. Id. at 267.


[13]   The facts here are distinguishable from those in VanPatten. First, B.E. was

       eleven years old, not six, when she saw the nurse. Second, the nurse had not

       attended any of the previous interviews of B.E., so there was no suggestion she

       would steer the conversation to support the allegations. Third, the physical

       examination took place on a different day than the other interviews, rather than

       immediately following the police interviews. Fourth, Nurse Callahan was able

       to recall exactly what and how she explained her role to B.E. In fact, she twice

       Court of Appeals of Indiana | Opinion 35A02-1601-CR-168 | January 20, 2017   Page 7 of 12
       explained her role to B.E. before starting the physical examination. In addition,

       Nurse Callahan was dressed in scrubs and explained that medical practitioners

       wear them, the building was situated separate from law enforcement agencies,

       and the décor of the office mimicked that of a regular doctor’s office. Fifth,

       B.E. was able to articulate Nurse Callahan was “a nurse or doctor.” (Tr. at

       198.) See VanPatten, 986 N.E.2d at 265 (if victims are older, “the appearance of

       the building, the exam room, and [nurse’s] scrubs and job title would probably

       be sufficient circumstances from which to infer [the victims] were thus

       motivated to speak truthfully”). Thus, we find no abuse in discretion in the trial

       court’s admission of Nurse Callahan’s reiteration of B.E.’s description of

       Walter’s assault pursuant to the medical treatment exception to the hearsay

       rules.


                                      Sentence Appropriateness
[14]   Walters asserts his sentence is inappropriate. We may revise a sentence if it is

       inappropriate in light of the nature of the offense and the character of the

       offender. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008) (citing

       Ind. Appellate Rule 7(B)). As we conduct our review, we consider not only the

       aggravators and mitigators found by the trial court, but also any other factors

       appearing in the record. Roney v. State, 872 N.E.2d 192, 206 (Ind. Ct. App.

       2007), trans. denied. The appellant bears the burden of demonstrating his

       sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).




       Court of Appeals of Indiana | Opinion 35A02-1601-CR-168 | January 20, 2017   Page 8 of 12
[15]   When considering the nature of the offense, the advisory sentence is the starting

       point to determine the appropriateness of a sentence. Anglemyer v. State, 868

       N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (Ind. 2007). The

       sentencing range for a Level 1 felony is “a fixed term of between twenty (20)

       and fifty (50) years, with the advisory sentence being thirty (30) years.” Ind.

       Code § 35-50-2-4(c) (2014). 5 The sentencing range for a Level 4 felony is “a

       fixed term of between two (2) and twelve (12) years, with the advisory sentence

       being six (6) years.” Ind. Code § 35-50-2-5.5 (2014). Walters requests we

       “reduce his sentence to slightly above the advisory sentence in each count.”

       (Appellant’s Br. at 11.)


[16]   As to the nature of his offense, Walters first claims that, because the abuse only

       happened once and no physical injuries were found, he should not have been

       given the “maximum, fully executed sentence.” (Id. at 1, 4, 9, 10, and 11.)

       Walters did not, however, receive the maximum possible sentence. He was

       given the maximum sentence for each conviction, but the four sentences were

       ordered served concurrently. His maximum possible sentence was 124 years,

       and he received only fifty. Cf. Brown v. State, 760 N.E.2d 243, 245 (Ind. Ct.

       App. 2002) (maximum sentence on both charges to be served consecutively

       indicates a maximum sentence), trans. denied.




       5
        Two sentencing ranges for Level 1 felonies exist. Compare Ind. Code § 35-50-2-4(a) with Ind. Code § 35-50-
       2-4(c). The parties do not challenge Walter’s crime falls into the longer of those two ranges.

       Court of Appeals of Indiana | Opinion 35A02-1601-CR-168 | January 20, 2017                     Page 9 of 12
[17]   Regardless, Walters violated the position of authority he had over B.E. by

       ordering B.E. to undress twice, requiring her to bathe, and threatening to spank

       her if she did not do as she was told. He violated his position of trust when he

       contrived to have B.E. alone for the night and perpetrated these crimes. He

       planned for these acts, as proven by the facts he rented the motel room prior to

       getting B.E. and gave C.E. an excuse for taking one child at a time. His

       molestation of B.E. included: “multiple digital touches of [B.E.]’s vagina,

       including penetration; forced oral sex; fondling and groping of her breasts and

       butt cheeks; and attempting to place her hand on his genitals, including

       brushing her knuckles against his penis through his underwear.” (Appellee’s

       Br. at 21.)


[18]   As to whether B.E. was injured, Walters is correct the physical examination did

       not reveal injury. However, B.E.’s mother, C.E., testified B.E. is now “leery of

       her own grandfather. Her own uncles.” (Tr. at 448.) C.E. noticed B.E. “was

       real moody [and] she would get angry for no reason. She would be sad for no

       reason. She’d just cry. She’d be mad and stomp and she started scratching

       herself with sharp objects.” (Id. at 449.)


[19]   We see nothing inappropriate about Walters’ fifty-year sentence in light of

       Walters’ violation of his position of trust, violation of his position of authority,

       his premeditation, the multiple acts he committed against B.E., and the injury

       done to her. See Edrington v. State, 909 N.E.2d 1093, 1101 (Ind. Ct. App. 2009)

       (violation of position of trust and non-physical injury is evidence to warrant an

       enhanced sentence), trans. denied.

       Court of Appeals of Indiana | Opinion 35A02-1601-CR-168 | January 20, 2017   Page 10 of 12
[20]   When considering the character of the offender, 6 one relevant fact is the

       defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.

       App. 2007). The significance of a criminal history in assessing a defendant’s

       character varies based on the gravity, nature, and number of prior offenses in

       relation to the current offense. Id.


[21]   Walters asserts his criminal history, although extensive, should not increase his

       sentence. Walters told the pre-sentence report investigator “he had only had

       prior criminal history in Terre Haute and Marion, Indiana[,]” (Conf. App. at

       169), but the report shows Walters had history in seventeen Indiana counties

       and also in Michigan, Missouri, and Kentucky. The crimes listed in the report

       are mostly crimes of dishonesty. Contrary to Walters’ assertion, his lifelong

       criminal history of deceptive behaviors is pertinent to this case. Walters used

       deception to gain the trust of B.E. and her parents, and he then violated that

       trust. This does not reflect well on his character.


[22]   In light of Walters’ character, including his violation of the position of trust and

       the position of authority, together with his criminal history, we see nothing

       inappropriate about his fifty-year sentence. See Johnson v. State, 986 N.E.2d 852,




       6
        Walters now argues the fact he held the position of trust with B.E.’s family should be viewed as proof of his
       good character. However, violating such a position is correctly regarded as an aggravator. See Robinson v.
       State, 61 N.E.3d 1226, 1229 (Ind. Ct. App. 2016) (Robinson’s “abuse of his position of trust . . . reflect[s] his
       poor character”).

       Court of Appeals of Indiana | Opinion 35A02-1601-CR-168 | January 20, 2017                         Page 11 of 12
       857 (Ind. Ct. App. 2013) (affirming sentence as not inappropriate based on

       criminal history).



                                                Conclusion
[23]   As the evidence was not admitted in error and Walters has not demonstrated

       his sentence is inappropriate in light of his character and the nature of the

       offense, we affirm.


[24]   Affirmed.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 35A02-1601-CR-168 | January 20, 2017   Page 12 of 12
