MEMORANDUM DECISION
                                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D), this                                 Nov 29 2017, 10:52 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                               CLERK
                                                                             Indiana Supreme Court
purpose of establishing the defense of res judicata,                            Court of Appeals
                                                                                  and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Bruce W. Graham                                        Curtis T. Hill, Jr.
Graham Law Firm P.C.                                   Attorney General of Indiana
Lafayette, Indiana
                                                       Matthew B. MacKenzie
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Walter Small,                                              November 29, 2017

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           79A02-1706-CR-1215

        v.                                                 Appeal from the Tippecanoe
                                                           Superior Court
State of Indiana,                                          The Honorable Randy J. Williams,
                                                           Judge
Appellee-Plaintiff.
                                                           Trial Court Cause No.
                                                           79D01-1602-F1-3




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1706-CR-1215 | November 29, 2017        Page 1 of 10
                                          Case Summary
[1]   In July of 2015, Appellant-Defendant Walter Small, who was thirty-eight years

      old at the time, encountered the then-twelve-year-old S.B. in a park. At some

      point, Small pulled S.B. into a bathroom stall, where he partially undressed her

      and had sexual intercourse with her as she struggled. The State charged Small

      with Level 1 felony child molesting and a jury found him guilty as charged.

      The trial court sentenced Small to thirty-six years of incarceration. Small

      contends that the trial court abused its discretion in admitting certain evidence

      and in sentencing him and that his sentence in inappropriately harsh. Because

      we conclude that any error the trial court might have made in admitting

      evidence was harmless and that Small’s sentence challenges are without merit,

      we affirm.



                            Facts and Procedural History
[2]   On the afternoon of July 20, 2015, twelve-year-old S.B. met a friend at

      Columbian Park in Lafayette. While S.B. was at the park she encountered

      Small, who had lived with her family for a time and was a cousin to her

      mother’s ex-husband. Small and S.B. had been communicating frequently via

      Facebook over the previous few days. S.B. saw Small at a water fountain near

      a bathroom, and Small entered a bathroom. While S.B. was near the bathroom

      door, Small pulled her into the stall located inside the bathroom by the front of

      her shirt. Small pulled down S.B.’s pants and underwear, pulled down his own

      pants, and sat on the toilet. Small placed S.B. on top of him and inserted his

      Court of Appeals of Indiana | Memorandum Decision 79A02-1706-CR-1215 | November 29, 2017   Page 2 of 10
      penis into S.B.’s vagina while S.B. struggled to escape. After Small finished

      and S.B. got off of his lap, S.B. stated that “white stuff was coming down my

      leg and I wiped it up with tissue and I put it in the toilet[.]” Tr. Vol. II p. 109.

      S.B. stayed in the bathroom for ten to fifteen minutes after Small left until a

      male friend came in the bathroom and asked S.B. what had happened. S.B.

      told her friend what had happened, and park security along with local law

      enforcement were notified. When arrested, Small gave officers a false name

      and two false dates of birth.


[3]   At an interview with Lafayette Police Detective Michael Humphrey later that

      day, Small denied any touching at all between himself and S.B. multiple times.

      S.B. was examined by a sexual assault nurse and the results of that examination

      revealed that vaginal penetration had occurred and that S.B.’s vagina was

      lacerated and tender. Small’s DNA was found on the inside of S.B.’s thighs

      and S.B.’s underwear, from external genital swabs of S.B.’s vagina, and from a

      vaginal wash of S.B.’s vagina. Seminal material from the vaginal wash also

      contained Small’s DNA. S.B.’s DNA was also found on Small’s penis. When

      Small was interviewed a second time approximately six months later and asked

      about the results of the DNA tests, Small said that S.B. had forced herself on

      him.


[4]   On February 10, 2016, the State charged Small with Level 1 felony child

      molesting. Detective Humphrey testified that in his experience, it was common

      for defendants to give a different explanation of events after being confronted

      with test results that showed the incriminating presence of their DNA. Small

      Court of Appeals of Indiana | Memorandum Decision 79A02-1706-CR-1215 | November 29, 2017   Page 3 of 10
      was convicted as charged on March 22, 2017, and proceeded to a sentencing

      hearing on May 8, 2017. The trial court acknowledged Small’s employment as

      a mitigating factor and found Small’s criminal history, the young age of the

      victim, and Small’s abuse of a position of trust to be aggravating. The trial

      court sentenced Small to thirty-six years of incarceration.


                                Discussion and Decision
            I. Admission of Detective Humphrey’s Testimony
[5]   Small contends that the trial court abused its discretion in allowing Detective

      Humphrey to testify that defendants often changed their stories when

      confronted with incriminating DNA evidence. In general, the admissibility of

      evidence is within the sound discretion of the trial court. Curley v. State, 777

      N.E.2d 58, 60 (Ind. Ct. App. 2002), trans. denied. We will reverse a trial court’s

      decision on the admissibility of evidence only upon a showing of an abuse of

      that discretion. Id. An abuse of discretion may occur if the trial court’s

      decision is clearly against the logic and effect of the facts and circumstances

      before the court, or if the court has misinterpreted the law. Id. We may affirm

      the trial court’s ruling if it is sustainable on any legal basis in the record, even

      though it was not the reason enunciated by the trial court. Moore v. State, 839

      N.E.2d 178, 182 (Ind. Ct. App. 2005), trans. denied. We do not reweigh the

      evidence, and consider the evidence most favorable to the trial court’s ruling.

      Hirsey v. State, 852 N.E.2d 1008, 1012 (Ind. Ct. App. 2006), trans. denied.




      Court of Appeals of Indiana | Memorandum Decision 79A02-1706-CR-1215 | November 29, 2017   Page 4 of 10
[6]   While we strain to find any relevance of Detective Humphrey’s testimony, and

      clearly see the potential for unfair prejudice, any error the trial court might have

      committed can only be considered harmless. “Errors in the admission of

      evidence are to be disregarded as harmless unless they affect the substantial

      rights of the defendant.” Goudy v. State, 689 N.E.2d 686, 694 (Ind. 1997). “If

      the State presents evidence of guilt that is overwhelming and independent of the

      challenged evidence, the error is harmless and reversal is not warranted.”

      Hughley v. State, 737 N.E.2d 420, 424 (Ind. Ct. App. 2000), trans. denied. At

      trial, the only issue truly in dispute was whether Small and S.B. had sexual

      intercourse.1 The evidence that Small had sexual intercourse with S.B. is, to say

      the least, overwhelming. In addition to S.B.’s testimony, Small’s DNA was

      found on both of S.B.’s thighs, her underwear, and on the exterior of her

      vagina. A vaginal wash and seminal material collected in the wash also tested

      positive for Small’s DNA. Finally, a penile swab of Small tested positive for

      S.B.’s DNA, all but fatally undercutting his argument at trial that the presence

      of Small’s DNA in S.B.’s vaginal wash did not necessarily mean that they had

      sexual intercourse. Any error the trial court may have committed in admitting

      Detective Humphrey’s testimony was harmless.




      1
        “A person who, with a child under fourteen (14) years of age, knowingly or intentionally performs or
      submits to sexual intercourse … commits child molesting, … a Level 1 felony if … it is committed by a
      person at least twenty-one (21) years of age[.]” Ind. Code § 35-42-4-3(a).

      Court of Appeals of Indiana | Memorandum Decision 79A02-1706-CR-1215 | November 29, 2017        Page 5 of 10
                                                   II. Sentence
                                          A. Abuse of Discretion
[7]   The trial court imposed an enhanced sentence of thirty-six years of

      incarceration, which is six years more than the advisory sentence for a Level 1

      felony.2 At sentencing, the trial court identified the following aggravating

      circumstances:


               The aggravating factors, there is a criminal history. I recognize
               that it’s nowhere near what we often see in here in terms of that
               history. The victim was twelve years old. And I had written
               down that the defendant was in a position of trust, having
               acknowledged like an uncle.
      Tr. Vol. II p. 212. Small contends that the trial court abused its discretion in

      finding S.B.’s age to be an aggravating circumstance.3


[8]   Under our current sentencing scheme, “the trial court must enter a statement

      including reasonably detailed reasons or circumstances for imposing a

      particular sentence.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),

      modified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2008). We review the

      sentence for an abuse of discretion. Id. An abuse of discretion occurs if “the




      2
        Indiana Code section 35-50-2-4(b) provides that a person who commits a Level 1 felony shall be imprisoned
      for a fixed term of between twenty and forty years with the advisory sentence being thirty years.
      3
        Small also contends that the trial court found his continued profession of innocence to be an aggravating
      circumstance. The record does not support this contention. Although the trial court discussed Small’s right
      to have a jury trial, saying, “I don’t hold that against you in any way[,]” Tr. Vol. II p. 211, it did not identify
      Small’s continued professions of innocence to be aggravating in either its statements on the record at
      sentencing or in its sentencing order.

      Court of Appeals of Indiana | Memorandum Decision 79A02-1706-CR-1215 | November 29, 2017               Page 6 of 10
      decision is clearly against the logic and effect of the facts and circumstances.”

      Id.


[9]   A trial court abuses its discretion if it (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. at 490-91. If the trial court has abused its discretion, we will remand for

      resentencing “if we cannot say with confidence that the trial court would have

      imposed the same sentence had it properly considered reasons that enjoy

      support in the record.” Id. at 491. However, the relative weight or value

      assignable to reasons properly found, or to those which should have been

      found, is not subject to review for abuse of discretion. Id. There is no

      requirement that a trial court generate a list of aggravating and mitigating

      circumstances, only that it state reasonably detailed reasons. Id. at 490. A

      single aggravating factor can support enhanced sentences. See Willey v. State,

      712, N.E.2d 434, 446 (Ind. 1999) (stating that a single aggravating circumstance

      may be sufficient to support an enhanced sentence). Although material

      elements of the crime may not be considered as aggravating factors at

      sentencing, the particularized circumstances of the elements properly may be

      considered as such. See, e.g., McElroy v. State, 865 N.E.2d 584, 598-99 (Ind.

      2007); Scott v. State, 840 N.E.2d 376, 382 (Ind. Ct. App. 2006).


      Court of Appeals of Indiana | Memorandum Decision 79A02-1706-CR-1215 | November 29, 2017   Page 7 of 10
[10]   As for S.B.’s age, Small argues that the trial court improperly identified it as

       aggravating because it is a material element of Level 1 felony child molesting,

       namely, that the victim be less than fourteen years old. Even if we assume that

       the trial court abused its discretion in this regard, Small does not challenge the

       trial court’s identification of his criminal record and abuse of a position of trust

       as aggravating. While Small’s criminal record is not terribly serious (a felony

       conviction for dealing in cocaine and misdemeanor convictions for marijuana

       possession and operating without a license), the abuse of his position as a

       person S.B. thought of as an uncle fully supports Small’s enhanced sentence.

       Even if we assume that the trial court abused its discretion in this regard, we are

       confident that it would have imposed the same sentence in any event. See

       Anglemyer, 868 N.E.2d at 491.


                                         B. Appropriateness
[11]   We “may revise a sentence authorized by statute if, after due consideration of

       the trial court’s decision, the Court finds that the sentence is inappropriate in

       light of the nature of the offense and the character of the offender.” Ind.

       Appellate Rule 7(B). “Although appellate review of sentences must give due

       consideration to the trial court’s sentence because of the special expertise of the

       trial bench in making sentencing decisions, Appellate Rule 7(B) is an

       authorization to revise sentences when certain broad conditions are satisfied.”

       Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations

       and quotation marks omitted). “[W]hether we regard a sentence as appropriate

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

       Court of Appeals of Indiana | Memorandum Decision 79A02-1706-CR-1215 | November 29, 2017   Page 8 of 10
       severity of the crime, the damage done to others, and myriad other factors that

       come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.

       2008). In addition to the “due consideration” we are required to give to the

       trial court’s sentencing decision, “we understand and recognize the unique

       perspective a trial court brings to its sentencing decisions.” Rutherford v. State,

       866 N.E.2d 867, 873 (Ind. Ct. App. 2007).


[12]   The nature of Small’s offense justifies an enhanced sentence. The record

       indicates that in the days before the incident in Columbian Park, Small and S.B.

       exchanged dozens of Facebook messages, including one where S.B. indicated to

       Small, “I love you but you’re a pain in the butt[,]” to which Small responded

       that he wished to meet her at a convenience store near Columbian Park. Tr.

       Vol. II 54. Small exploited his previous relationship with S.B. to build trust and

       affection, only to force S.B. into a bathroom stall where he had intercourse with

       her as she struggled. Small’s betrayal of S.B.’s trust justifies his enhanced

       sentence.


[13]   Small’s continuous efforts to lie reflect poorly on his character, beginning with

       his name and date of birth and continuing with his ever-changing stories

       regarding the crime—that he never touched S.B., that S.B. forced herself on

       him, and that he was framed by a twelve-year-old girl. Small’s poor character is

       also revealed by his criminal record, consisting of a felony conviction for

       dealing in cocaine and misdemeanor convictions for marijuana possession and

       operating without a license. Given the nature of Small’s offense and his



       Court of Appeals of Indiana | Memorandum Decision 79A02-1706-CR-1215 | November 29, 2017   Page 9 of 10
       character, he has failed to establish that his thirty-six-year sentence for Level 1

       felony child molesting is inappropriately harsh.


[14]   We affirm the judgment of the trial court.


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1706-CR-1215 | November 29, 2017 Page 10 of 10
