MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                      FILED
regarded as precedent or cited before any                        Apr 15 2020, 8:56 am

court except for the purpose of establishing                          CLERK
                                                                  Indiana Supreme Court
the defense of res judicata, collateral                              Court of Appeals
                                                                       and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Jane H. Ruemmele                                          Curtis T. Hill, Jr.
Hayes Ruemmele, LLC                                       Attorney General of Indiana
Indianapolis, Indiana
                                                          Evan Matthew Comer
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James S. McKinley,                                        April 15, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-1557
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Shatrese M. Flowers,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          49G02-1806-F1-19520



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020            Page 1 of 19
                                           Case Summary
[1]   James S. McKinley (“McKinley”) appeals his convictions, following a jury

      trial, for four counts of child molesting, as Level 1 felonies,1 and his seventy-

      year sentence.


[2]   We affirm.



                                                    Issues
[3]   McKinley raises the following restated issues:


                1.       Whether the State presented sufficient evidence to support
                         his convictions.


                2.       Whether the trial court abused its discretion when it
                         sentenced him.


                3.       Whether his sentence was inappropriate in light of the
                         nature of his offenses.


                4.       Whether the trial court’s exclusion of certain persons from
                         the sentencing hearing violated his constitutional right to a
                         public trial.




      1
          Ind. Code § 35-42-4-3(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020   Page 2 of 19
                            Facts and Procedural History
[4]   A.G., born February 7, 2006, is the daughter of Whitney Mickens (“Mickens”)

      and Antonio Gavia (“Gavia”). A.G. lived with Mickens and had very little

      contact with Gavia until she was twelve years old. Between May and June of

      2018, A.G. began visiting Gavia at the home he shared with his nine-year-old

      son.


[5]   On Friday, June 8, 2018, Mickens and Gavia planned for A.G. to stay at

      Gavia’s house while Mickens worked that evening. Sometime that day, Gavia

      contacted Mickens and asked her to pick him up from work. When Mickens

      arrived, Gavia was with McKinley, whom Mickens had never met before. Both

      Gavia and McKinley got into Mickens’s car, and she drove the two men to pick

      up their paychecks at a staffing agency and then to a bank to have those checks

      cashed. Mickens then informed McKinley that she would not be able to drive

      him anywhere else because she was going to be late for work. McKinley left on

      foot, and Mickens drove Gavia and A.G. back to Gavia’s apartment.


[6]   A.G. ended up spending that entire weekend at Gavia’s apartment, with

      Mickens’s consent. When Mickens picked A.G. up from Gavia’s home in the

      late evening of Sunday, June 10, A.G. appeared “tired” and “groggy.” Tr. Vol.

      II at 131. At approximately midnight that night, Gavia called Mickens and

      asked her to bring A.G. back to his apartment because he “want[ed] to spend

      more time with her.” Id. at 132. Mickens refused. The following afternoon,

      Gavia contacted Mickens and asked her to meet him at a “cash-checking place”


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020   Page 3 of 19
      close to his home so that he could give her some money for A.G. Id. Mickens

      thought it was odd that Gavia would offer to give A.G. cash because he had

      never supported A.G. financially in the past. When Mickens and A.G. arrived

      at the agreed-upon location, Gavia was there along with McKinley and two

      other women who Mickens did not know.


[7]   Mickens had an “uneasy” feeling about A.G.’s weekend visit with Gavia. Id. at

      134. Therefore, before A.G. left for school on the morning of Wednesday, June

      13, Mickens asked A.G. if there “was anything going on at her father’s house”

      that she “needed to know about.” Id. At first, A.G. denied that anything had

      happened over the weekend, but when Mickens asked a second time, A.G.

      disclosed that she had been sexually assaulted by her father. Mickens took

      A.G. to school and instructed her to inform her “auntie” Taruko Knight-Galvia

      (“Galvia”)—a school administrative assistant with whom A.G. and Mickens

      had become close—about what had happened over the weekend. Id. at 144.

      Mickens then called 9-1-1 to report the abuse but was told that A.G. needed to

      be with her for them to investigate.


[8]   At school that morning, A.G. reported her father’s sexual abuse to school staff,

      including Galvia. The school called the police and the Indiana Department of

      Child Services (“DCS”). DCS workers came to the school and took custody of

      A.G. A.G. was transported to the Child Advocacy Center in Indianapolis

      where she gave a forensic interview. During the interview, A.G. disclosed that

      she had been the victim of molestation and neglect and named both Gavia and



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020   Page 4 of 19
       McKinley, whom she identified by his first name “James,” as the perpetrators.

       Id. at 181. She provided a physical description of both Gavia and McKinley.


[9]    Detective Jonathan Schultz (“Det. Schultz”) with the Indianapolis

       Metropolitan Police Department (“IMDP”) observed A.G.’s forensic interview

       from a remote room. Following the interview, Det. Schulz spoke to Mickens

       and then travelled to the staffing agency where McKinley and Gavia worked in

       order to obtain information about the two men. Once Det. Schulz learned

       McKinley’s identity, he compiled a six-pack photo array for A.G. to view.

       When presented with the photo array, A.G. positively identified McKinley as

       the person who molested her.


[10]   That same day, i.e., June 13, the IMPD executed a search warrant on Gavia’s

       apartment. The officers collected two towels that, under a UV light, indicated

       the presence of possible biological fluids. In one of the bedrooms on the second

       floor of the residence, they also found a mattress pad that had been placed

       downside up. When the mattress was flipped over, the officers discovered

       possible staining from biological fluid. Crime scene technicians cut three

       clippings from the mattress and collected them as evidence. Laboratory testing

       later revealed the presence of seminal material on the mattress clippings, and

       subsequent DNA testing confirmed that in each of the three mattress clippings

       the sperm cell DNA matched McKinley’s DNA profile.


[11]   The following day, Det. Schulz contacted McKinley, and he agreed to meet for

       an interview at the Child Advocacy Center. Prior to the start of the interview,


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020   Page 5 of 19
       McKinley signed a written advisement of rights form provided by Det. Schulz.

       Initially, McKinley admitted that he had been present at Gavia’s apartment the

       previous weekend, but he denied any sexual contact with AG. As he was

       questioned, McKinley eventually agreed that “this is the one time and only

       time” that anything like what had happened the previous Sunday would occur.

       Ex. at 48, State’s Ex. 58 at 1:00:20-1:00:40. When Det. Schulz asked if

       anything similar would “ever happen again,” McKinley said, “No.” Id. at

       1:01:45-1:01:58. Det. Schulz then asked McKinley if he was “sorry for what

       happened,” and McKinley nodded his head. Id. at 1:01:49-1:02:08. McKinley

       later stated, “I didn’t force her, no, she was begging me on.” Id. at 1:13:09-

       1:13:13. And when Schulz asked him one final time whether he had engaged in

       sex with A.G., McKinley nodded and responded, “Basically.” Id. at 1:13:14-

       1:13:23.


[12]   On June 18, 2018, the State charged McKinley with four counts of child

       molesting, as Level 1 felonies, and one count of intimidation, as a Level 6

       felony.2 McKinley had a jury trial on June 10-11, 2019. At trial, A.G. testified

       that, sometime on Sunday, June 10, 2018, Gavia approached her after she had

       just finished showering and instructed her to lie down naked on a nearby bed.

       Gavia walked up to A.G. as she lay on the bed and licked her vagina. He then

       went out into the hallway and started arguing with a man A.G. recognized to

       be McKinley. They were arguing “about what [McKinley] should do to [her].”



       2
           I.C. § 35-45-2-1(a)(1), (b)(1)(A).


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020   Page 6 of 19
       Tr. Vol. II at 141-42. Eventually, McKinley entered the room and asked A.G.

       how old she was. A.G. responded that she was twelve. McKinley told her that

       he “wasn’t going to do it” and left the room. Id. at 142.


[13]   Out in the hallway, McKinley and Gavia began arguing again. McKinley then

       returned to the room and instructed A.G. to “suck” on his penis. Id. A.G. did

       so, and afterwards, McKinley inserted his penis into her vagina. The

       penetration “hurt, a lot,” and A.G. told McKinley that she “didn’t want to do

       it.” Id. Once McKinley stopped, A.G. put on some clothes and McKinley left

       the bedroom. A.G. then overheard Gavia tell McKinley “you could do it” and

       that McKinley “could go back up there and do whatever you want with her.”

       Id. McKinley then went back to A.G. in the bedroom, removed A.G.’s clothes,

       and forced her to perform oral sex on him a second time. He then inserted his

       penis into A.G.’s vagina and forced her to engage in vaginal sex. When

       McKinley finished, he removed his penis from A.G.’s vagina and ejaculated on

       her. A.G. then used a towel to clean the “white stuff” off her body. Id. at 143.

       Both Gavia and McKinley threatened harm to A.G.’s family if she told anyone

       what had happened.


[14]   A.G. also testified that, after she told Mickens what Gavia had done to her,

       Mickens immediately began trying to contact Gavia and told A.G. to go to

       school and report it. Therefore, at that time A.G. did not have the opportunity

       to tell Mickens what McKinley had done to her. A.G. testified that, at first, she

       also did not tell the school about what McKinley had done because McKinley

       had threatened her if she told anyone.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020   Page 7 of 19
[15]   On June 11, 2019, the jury found McKinley guilty of four counts of Level 1

       felony child molesting and not guilty on one count of Level 6 felony

       intimidation. Shortly after the jury announced its verdict, Lisa Yednak

       (“Yednak”), who is the mother of McKinley’s six children, began shouting

       “You just took my kids [sic] daddy away. You just took my kids [sic] daddy

       away.” Tr. Vol. III at 75. An outburst involving several members of

       McKinley’s family then ensued, which resulted in the family members’ removal

       from the courtroom and direct contempt proceedings against Yednak.


[16]   During the contempt hearing, the trial judge appointed McKinley’s attorney to

       represent Yednak. The trial court recounted that Yednak “yelled something”

       which caused a “may-lay”—melee—to begin. Supp. Tr. at 3. During the

       tumult, McKinley “threw down his headset” and “[g]ot out of his seat and

       walked over and was in front of the bench.” Id. That was where McKinley was

       detained by security personnel. Ultimately, the court found Yednak not to be in

       contempt of court but barred her and several other family members from

       returning to the courtroom for McKinley’s sentencing hearing. The trial court

       later clarified that its exclusion order extended to all of McKinley’s family

       members except for an “older female,” who was the only person in McKinley’s

       family who “did not have an outburst.” Tr. Vol. III at 80. The court granted

       McKinley’s subsequent request to permit a single family representative to

       attend his sentencing hearing.


[17]   McKinley’s sentencing hearing was held on June 25. The trial court noted that

       a family representative was present in the courtroom in support of McKinley

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020   Page 8 of 19
       and that the court had reviewed a number of letters that had been submitted to

       the court by McKinley’s family members. After hearing argument from the

       State and from McKinley, the trial court issued both oral and written sentencing

       statements in which it found, as the sole mitigating factor, that a prolonged

       period of incarceration would impose an “undue hardship on the defendant’s

       six children.” Id. at 92; Appealed Order at 2. The court found three

       aggravating factors: (1) McKinley’s criminal history, (2) the nature and

       circumstances of the offenses in that they were “two separate instances,” and

       (3) the harm suffered by the victim was greater than the elements necessary to

       prove the offenses. Id. The court sentenced McKinley to thirty-five years for

       each count of child molesting with two counts to run consecutive to one

       another, for an aggregated sentence of seventy years. This appeal ensued.



                                  Discussion and Decision
                                  Sufficiency of the Evidence
[18]   McKinley challenges the sufficiency of the evidence to support his convictions.

       Our standard of review of the sufficiency of the evidence is well-settled.


               When an appellate court reviews the sufficiency of the evidence
               needed to support a criminal conviction, it neither reweighs
               evidence nor judges the credibility of witnesses. Bailey v. State,
               907 N.E.2d 1003, 1005 (Ind. 2009). The appellate court only
               considers “the evidence supporting the judgment and any
               reasonable inferences that can be drawn from such evidence.” Id.
               (quoting Henley v. State, 881 N.E.2d 639, 652 (Ind. 2008)). A
               conviction will be affirmed if there is substantial evidence of

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020   Page 9 of 19
                probative value supporting each element of the offense such that
                a reasonable trier of fact could have found the defendant guilty
                beyond a reasonable doubt. Bailey, 907 N.E.2d at 1005. A
                verdict of guilt may be based upon an inference if reasonably
                drawn from the evidence. See Drane v. State, 867 N.E.2d 144, 147
                (Ind. 2007).


       Tin Thang v. State, 10 N.E.3d 1256, 1258 (Ind. 2014). Moreover, a conviction

       may be sustained on only the uncorroborated testimony of a single witness,

       even when that witness is the victim. Bailey v. State, 979 N.E.2d 133, 135 (Ind.

       2012).


[19]   To support McKinley’s convictions of child molesting, as Level 1 felonies, the

       State was required to prove for each count that McKinley, who was at least

       twenty-one years old, performed or submitted to sexual intercourse or other

       sexual conduct with a child under age fourteen. I.C. § 35-42-4-3(a)(1). “Other

       sexual conduct” includes an act involving “a sex organ of one (1) person and

       the mouth or anus of another person.” I.C. § 35-31.5-2-221.5. McKinley’s only

       allegation regarding the sufficiency issue is that there was not sufficient

       evidence to show that he was the person who performed or submitted to sexual

       intercourse or other sexual conduct with A.G.


[20]   At the trial, A.G. positively identified McKinley and described in detail his

       molestation of her at her father’s apartment on June 10, 2018. She testified that

       McKinley performed or submitted to four specific sex acts on or with her at two

       distinct points over the course of a single evening. That evidence, alone, was

       sufficient to support McKinley’s four convictions. Bailey, 979 N.E.2d at 135.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020   Page 10 of 19
       However, the State also provided evidence that McKinley’s DNA was found on

       the mattress at the scene of the crime. In addition, the State provided a video

       tape of the police interview of McKinley on June 14, 2018, in which McKinley

       was asked, “You guys [referring to him and A.G.] had sex, right?” and

       McKinley nodded as he responded, “Basically.” Ex. at 48, State’s Ex. 58 at

       1:13:14-1:13:23.


[21]   McKinley maintains that the evidence was not sufficient because there were

       some inconsistencies in A.G.’s description of him and his DNA was not found

       on A.G. at her forensic examination—which took place three days after the

       crime—or on a towel that A.G. said she had used to wipe off McKinley’s

       semen. However, McKinley’s contentions are requests that we reweigh the

       evidence, which we may not do. Tin Thang, 10 N.E.3d at 1258. Rather, it is

       the jury’s exclusive province to weigh conflicting evidence. Smith v. State, 34

       N.E.3d 1211, 1222 (Ind. 2015); see also Brooks v. State, 560 N.E.2d 49, 53 (Ind.

       1990) (citation omitted) (“The circumstances under which B.B. viewed his

       attacker and the discrepancies between his description, the composite, and

       appellant’s appearance were fully disclosed to the jury, and it was for them to

       determine the weight given to the identification evidence and to decide whether

       it was satisfactory or trustworthy.”).


[22]   The State presented sufficient evidence to support McKinley’s convictions.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020   Page 11 of 19
                            Abuse of Discretion in Sentencing
[23]   McKinley maintains that the trial court erred in sentencing him. Sentencing

       decisions lie within the sound discretion of the trial court. Cardwell v. State, 895

       N.E.2d 1219, 1222 (Ind. 2008). 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. A trial court abuses its discretion in sentencing if it does

       any of the following:


               (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.”


       Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-491 (Ind. 2007), clarified on

       reh’g, 875 N.E.2d 218 (Ind. 2007)). So long as a sentence is within the statutory

       range, the trial court may impose it without regard to the existence of

       aggravating or mitigating factors. Anglemyer, 868 N.E.2d at 489. However, if

       the trial court does find the existence of aggravating or mitigating factors, it

       must give a statement of its reasons for selecting the sentence it imposes. Id. at

       490. But the relative weight or value assignable to reasons properly found, or




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020   Page 12 of 19
       those which should have been found, is not subject to review for abuse of

       discretion. Gross, 22 N.E.3d at 869.


[24]   The sentencing range for a Level 1 felony committed after June 30, 2014, is a

       fixed term of imprisonment between twenty and forty years, with an advisory

       sentence of thirty years. I.C. § 35-50-2-4(b). The trial court sentenced

       McKinley to thirty-five years per conviction, which was five years below the

       maximum for each count. Moreover, the court ordered two of those sentences

       to run consecutive to one another. Thus, the challenged aggregate sentence

       imposed—i.e., seventy years—was not the maximum possible aggregate

       sentence for four Level 1 felony convictions; rather, it was ninety years below

       the maximum sentence he could have received. Id.


[25]   Nevertheless, McKinley contends the trial court abused its discretion by

       considering “improper” aggravators in the decision to impose the thirty-five-

       year sentences and to require two of the sentences to run consecutively.

       Appellant’s Br. at 20. Specifically, he asserts that the trial court improperly

       found his prior felony firearms convictions involved violence and improperly

       relied on the arrests in his criminal history. However, even if we assume for the

       sake of argument that the trial court considered those factors and that they were

       improper, any such error was harmless as we can confidently say the trial court

       would have properly entered those same sentences based solely upon the valid

       aggravating factor of McKinley’s undisputed criminal history of two non-

       violent felony convictions and two misdemeanor convictions. See Anglemyer v.

       State, 868 N.E.2d 482, 491 (Ind. 2007). See also Gleason v. State, 965 N.E.2d

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020   Page 13 of 19
       702, 712 (Ind. Ct. App. 2012) (citation omitted) (“One valid aggravator alone is

       enough to enhance a sentence or to impose it consecutive to another.

       Moreover, the same factor may be used both to enhance a presumptive sentence

       and to justify consecutive sentences.”); Ind. Code § 35-38-1-7.1(a)(2) (stating

       criminal history is an aggravating circumstance a court may consider in

       sentencing). We will not reweigh the mitigating and aggravating

       circumstances, as McKinley requests. Gross, 22 N.E.3d at 869.


                                 Inappropriateness of Sentence
[26]   McKinley contends that his sentence is inappropriate in light of the nature of

       the offense.3 Article 7, Sections 4 and 6, of the Indiana Constitution authorize

       independent appellate review and revision of a sentence imposed by the trial

       court. See, e.g., Sanders v. State, 71 N.E.3d 839, 843 (Ind. Ct. App. 2017), trans.

       denied. This appellate authority is implemented through Indiana Appellate Rule

       7(B). Id. Revision of a sentence under Rule 7(B) requires the appellant to

       demonstrate that his sentence is inappropriate in light of the nature of his

       offense and his character. Id. (citing Ind. Appellate Rule 7(B)). We assess the

       trial court’s recognition or non-recognition of aggravators and mitigators as an

       initial guide to determining whether the sentence imposed was inappropriate.

       Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).




       3
        McKinley makes no argument that the sentence is inappropriate in light of his character; therefore, he has
       waived any such argument. Ind. Appellate Rule 46(A).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020                 Page 14 of 19
[27]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment “should

       receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.

       2008). The principal role of appellate review is to attempt to “leaven the

       outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the

       end of the day turns on “our sense of the culpability of the defendant, the

       severity of the crime, the damage done to others, and myriad other facts that

       come to light in a given case.” Id. at 1224. The question is not whether another

       sentence is more appropriate, but rather whether the sentence imposed is

       inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).

       Deference to the trial court “prevail[s] unless overcome by compelling evidence

       portraying in a positive light the nature of the offense (such as accompanied by

       restraint, regard, and lack of brutality) and the defendant’s character (such as

       substantial virtuous traits or persistent examples of good character).” Stephenson

       v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[28]   McKinley contends that the nature of the offense does not support his thirty-

       five-year sentences for each count of child molesting. First, we emphasize

       again that thirty-five years is within the twenty-to-forty-year sentencing range

       for a Level 1 felony and is only five years above the advisory sentence of thirty

       years. I.C. § 35-50-2-4(b). Moreover, the trial court ordered two of the

       sentences to run concurrently, thereby reducing his actual time of incarceration

       by half. Second, when considering the nature of the offense, we look at the

       defendant’s actions in comparison to the elements of the offense. Cannon v.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020   Page 15 of 19
       State, 99 N.E.3d 274, 280 (Ind. Ct. App. 2018), trans. denied. Child molestation

       is among the most severe and heinous of offenses and, here, the crime was

       made worse by the fact that McKinley repeatedly forced a young girl to submit

       to sex acts with him despite specifically asking her her age and being informed

       that she was only twelve-years-old and being encouraged to sexually exploit her

       by her own father, who McKinley knew had also sexually assaulted A.G.

       McKinley showed no “restraint” in the commission of his crimes. Stephenson,

       29 N.E.3d at 122. In short, there is nothing about the nature of the offense that

       merits a reduction of McKinley’s sentence.


                                         Right to Public Trial
[29]   McKinley asserts that the trial court denied his constitutional4 right to a public

       trial when it barred most of his family from attending his sentencing hearing.

       However, he raises this contention for the first time on appeal. It is the general

       rule that an argument or issue raised for the first time on appeal is waived for

       appellate review. See, e.g., Plank v. Cmty. Hosp. of Ind., Inc., 981 N.E.2d 49, 53

       (Ind. 2013) (“[A]ppellate review presupposes that a litigant’s arguments have

       been raised and considered in the trial court.”); Carney v. Patino, 114 N.E.3d 20,

       29 n.6 (Ind. Ct. App. 2018) (“The trial court cannot be found to have erred as to

       an issue or argument that it never truly had an opportunity to consider.”), trans.




       4
         McKinley raises this issue under both the Sixth Amendment to the United States Constitution and Article
       1, Section 13 of the Indiana Constitution. However, neither he nor our Supreme Court has suggested that the
       Indiana Constitution establishes a right different from that found in the Sixth Amendment. See Williams v.
       State, 690 N.E.2d 162, 167 (Ind.1997).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020               Page 16 of 19
       denied. Our Supreme Court has signaled a shift away from this rule as it relates

       to appellees. Citimortgage v. Barabas, 975 N.E.2d 805, 813 (Ind. 2012) (holding

       that a party who has prevailed at the trial court “may defend the trial court’s

       ruling on any grounds, including grounds not raised at trial”). However, an

       appellant still “may not present an argument that was not presented to the trial

       court.” Ind. Bureau of Motor Vehicles v. Gunter, 27 N.E.3d 306, 312 (Ind. Ct.

       App. 2015); see also Reynolds v. Reynolds, 64 N.E.3d 829, 834 (Ind. 2016)

       (“Appellants may not sit idly by and raise issues for the first time on appeal.”).

       Thus, McKinley has waived a claim regarding his right to a public trial.


[30]   Waiver notwithstanding, we discern no violation of McKinley’s constitutional

       right to a public trial. In Williams v. State, our Supreme Court addressed the

       right to a public hearing under both the federal and state constitutions:


               The right to a public trial has long been recognized as a
               fundamental right of the accused. [In re] Oliver, 333 U.S. [257,]
               266-67; Hackett v. State, 266 Ind. [103,] 109, 360 N.E.2d [1000,]
               1004 [(1977)]. It helps ensure a fair trial because “the presence of
               interested spectators may keep [the accused’s] triers keenly alive
               to a sense of their responsibility and to the importance of their
               functions....” Waller [v. Georgia], 467 U.S. [39,] 46 [(1984)]. It
               protects the accused by allowing the public to assess the fairness
               of the proceedings. In addition, it encourages witnesses to come
               forward, and discourages perjury. Waller, 467 U.S. at 46. In
               addition to the rights of the defendant, the public trial implicates
               the First Amendment right of the press and public to attend a
               criminal trial or other proceeding. However, neither right is
               absolute. Complete or partial exclusion of the public may be
               justified if a court finds “that closure is essential to preserve
               higher values and is narrowly tailored to serve that interest. The

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020   Page 17 of 19
               interest is to be articulated along with findings specific enough
               that a reviewing court can determine whether the closure order
               was properly entered.” Waller, 467 U.S. at 45.


       690 N.E.2d 162, 166-67 (Ind. 1997) (some citations omitted); see also Long v.

       State, 121 N.E.3d 1085, 1088 (Ind. Ct. App. 2019) (citing Marcum v. State, 725

       N.E.2d 852 (Ind. 2000)) (noting a trial court is given latitude to manage the

       courtroom and maintain order and decorum), trans. denied. Thus, “limited

       restrictions on the right to a public trial are within the trial court’s discretion

       where they are related to a legitimate purpose furthering the integrity of the

       judicial process, so long as there is a sufficient record supporting the judge’s

       exercise of that discretion.” Hackett, 360 N.E.2d at 1004.


[31]   Here, the trial court excluded members of McKinley’s family from attending his

       sentencing hearing only after they caused a “melee” at the end of his jury trial.

       Supp. Tr. at 3. All except one of his family members disrupted the proceedings,

       requiring their removal from the court room and direct contempt proceedings

       against Yednak. Although the court ultimately decided not to hold Yednak in

       contempt, it barred her and all family members except one “older female” who

       “did not have an outburst” from subsequent proceedings, which included the

       sentencing hearing. Tr. Vol. III at 80. Thus, the court narrowly tailored its

       exclusion exclusively to those who had caused a disruption. And, upon

       McKinley’s request, the court allowed one representative family member to

       attend the sentencing hearing. The trial court specifically articulated its reasons

       for the exclusion of most family members, the exclusion was no broader than


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020   Page 18 of 19
       necessary, and it was justified by the need to maintain order in the proceedings.

       The trial court did not violate McKinley’s right to a public hearing or abuse its

       discretion in excluding some of McKinley’s family members from attending his

       sentencing hearing.



                                               Conclusion
[32]   The State presented sufficient evidence to support McKinley’s four Level 1

       felony convictions of child molesting, and the trial court did not abuse its

       discretion when it sentenced him to an aggregate term of seventy years for those

       convictions. McKinley’s sentence is not inappropriate given the nature of his

       offenses. The trial court was justified in excluding some members of

       McKinley’s family from his sentencing hearing.


[33]   Affirmed.


       Crone, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1557 | April 15, 2020   Page 19 of 19
