MEMORANDUM DECISION
                                                                   Feb 18 2015, 9:23 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be 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
R. Patrick Magrath                                        Gregory F. Zoeller
Alcorn Goering & Sage, LLP                                Attorney General of Indiana
Madison, Indiana
                                                          J.T. Whitfield
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Albert Goering,                                          February 18, 2015

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         88A05-1406-CR-261
        v.                                               Appeal from the Washington Circuit
                                                         Court
                                                         Cause No. 88C01-1303-FB-191
State of Indiana,
                                                         The Honorable John T. Evans,
Appellee-Plaintiff.                                      Special Judge




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 88A05-1406-CR-261 February 18, 2015     Page 1 of 10
                                             Case Summary
[1]   Albert Goering appeals his fifteen-year sentence for five counts of Class B

      felony sexual misconduct with a minor and one count of Class B felony

      attempted sexual misconduct with a minor. We affirm.


                                                    Issues
[2]   Goering raises three issues, which we restate as:


                       I.      whether the trial court properly excluded
                               evidence at the sentencing hearing;


                       II.     whether the trial court properly refused to
                               allow questioning of the victim representatives
                               at the sentencing hearing; and


                       III.    whether the trial court abused its discretion
                               when it sentenced him.

                                                     Facts
[3]   T.C., who was born in 1998, often worked for Goering babysitting and working

      on his maple syrup farm. In January 2013, when T.C. was fourteen years old,

      their relationship changed when Goering kissed T.C. T.C. was curious and

      happy that someone liked her. Goering kissed T.C. again a few days later, and

      their relationship escalated to oral sex, digital penetration, and eventually

      sexual intercourse. T.C. told her sister-in-law about the relationship, and her

      sister-in-law told T.C.’s parents.




      Court of Appeals of Indiana | Memorandum Decision 88A05-1406-CR-261 February 18, 2015   Page 2 of 10
[4]   In March 2013, the State charged Goering with five counts of Class B felony

      sexual misconduct with a minor and one count of Class B felony attempted

      sexual misconduct with a minor. After a jury trial, Goering was found guilty as

      charged.


[5]   At the sentencing hearing, T.C.’s parents were allowed to make victim impact

      statements. Goering then requested “the opportunity to ask [them] some

      questions,” and the trial court denied the request. Tr. p. 54. After T.C.’s

      parents spoke, Goering also requested the admission of T.C.’s recorded

      statements to police officers and Department of Child Services (“DCS”)

      workers, which were not admitted at trial, and the State objected. According

      to Goering, the statements were not admitted at trial because of the “rape shield

      statute.” Id. at 65. However, Goering contended that the statements were

      admissible at sentencing because they were relevant to show that T.C.

      facilitated the offense and that T.C. did not suffer serious harm. The trial court

      found that the statements were not admissible.


[6]   The trial court found two aggravators—the fact that the harm, injury, loss, or

      damage suffered by T.C. was significant and greater than the elements

      necessary to prove the commission of the offense and Goering’s lack of

      remorse. The trial court noted that T.C. suffered “physical pain, physical injury

      and significant emotional injury” and that Goering was her “supervisor and

      employer and was in a position of control and trust.” App. p. 134. The trial

      court found one mitigating factor—Goering’s lack of criminal history. For both



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      convictions, the trial court sentenced Goering to fifteen-year concurrent

      sentences with five years suspended to probation. Goering now appeals.


                                                     Analysis
                                    I. Admission of T.C.’s Statements

[7]   Goering argues that the trial court abused its discretion by excluding T.C.’s

      recorded statements to police officers and DCS workers during the sentencing

      hearing. The admission of testimony at a sentencing hearing is at the discretion

      of the trial court. Couch v. State, 977 N.E.2d 1013, 1016 (Ind. Ct. App. 2012),

      trans. denied. Indiana Evidence Rule 101 provides that the rules of evidence,

      except privileges, do not apply to sentencing hearings. Thus, the trial court is

      not limited to admissible evidence in evaluating aggravating and mitigating

      circumstances. Thacker v. State, 709 N.E.2d 3, 9 (Ind. 1999). The task at a

      sentencing hearing is to determine the type and extent of punishment. Bluck v.

      State, 716 N.E.2d 507, 512 (Ind. Ct. App. 1999).


[8]   The recorded statements apparently related to prior sexual history of T.C.

      Goering, however, does not specify the content of the statements. 1 According




      1
        Although Goering made an offer of proof at the sentencing hearing, we were not provided with the exhibit
      on appeal. We also note that, in his reply brief, Goering argues that he was denied the right to present
      exculpatory evidence. “Exculpatory is defined as ‘[c]learing or tending to clear from alleged fault or guilt;
      excusing.’” Samek v. State, 688 N.E.2d 1286, 1288 (Ind. Ct. App. 1997) (quoting Black’s Law Dictionary 566
      (6th ed. 1990)), trans. denied. The presentation of evidence at a sentencing hearing of T.C.’s past sexual
      history is clearly not “exculpatory” and would not clear Goering from guilt as he had already been convicted
      of the offenses.



      Court of Appeals of Indiana | Memorandum Decision 88A05-1406-CR-261 February 18, 2015            Page 4 of 10
       to Goering, the statements, although excluded at trial due to Indiana Code

       Section 35-37-4-4 and Indiana Evidence Rule 412, were admissible at the

       sentencing hearing to contradict the State’s implication that T.C. was “innocent

       and sexually pure.” Appellant’s Br. p. 16. The State responds that the

       excluded evidence was completely irrelevant to the trial court’s role in

       determining an appropriate sentence based on the character of the offender and

       the nature of the offense.


[9]    First, contrary to Goering’s argument, we read nothing in the victim impact

       statements that implied T.C. was “innocent and sexually pure.” We also agree

       with the State that the recorded statements simply were not relevant to the trial

       court’s determination of a proper sentence for Goering. T.C.’s prior sexual

       history was completely irrelevant to Goering’s character and the fact that he

       engaged in sexual intercourse with a fourteen year old child. Goering contends

       the evidence showed that T.C. “facilitated the offense.” See Ind. Code § 35-38-

       1-7.1 (noting that the trial court may consider the fact that the “victim of the

       crime induced or facilitated the offense” as a mitigator). However, a prior

       sexual history does not indicate that T.C. facilitated the offenses here.


[10]   Moreover, even if the statements were relevant and should have been admitted,

       Goering has not demonstrated that he was prejudiced. The trial court was

       already aware that T.C. voluntarily participated in the acts with Goering.

       Goering has not demonstrated that he was harmed by the exclusion of the

       evidence.



       Court of Appeals of Indiana | Memorandum Decision 88A05-1406-CR-261 February 18, 2015   Page 5 of 10
                            II. Questioning of the Victim Representatives

[11]   Next, Goering argues that the trial court erred by refusing to allow him to

       question T.C.’s parents, who made victim impact statements. Goering

       requested “the opportunity to ask [them] some questions,” which the trial court

       denied. Tr. p. 54. According to Goering, his right to confrontation was

       violated when the trial court denied his request.


[12]   A victim or victim’s representative has the right to be heard at any proceeding

       involving sentencing. See I.C. § 35-40-5-5; I.C. § 35-40-5-6(a); I.C. 35-38-1-2.

       Victim impact statements are an integral part of the sentencing process, and

       trial courts are required to receive and consider them. Cloum v. State, 779

       N.E.2d 84, 92-93 (Ind. Ct. App. 2002). Among other things, “the statement

       allows for a degree of catharsis by the victim or the victim’s representative,

       permitting him or her to express their recommendation as to a sentence, the

       impact a crime had, and their feelings toward the defendant, all in a judicial

       setting.” Id. at 93. Regarding these statements, we have stated:

               [W]e would not want to require victims or victim representatives to
               have to make their statement under oath with the ever-present threat of
               a perjury charge limiting their ability to speak freely; nor would it be
               wise, in our view, to subject a victim or victim’s representative to
               defense cross-examination regarding comments made in a victim
               impact statement as a general rule. Nonetheless, when a victim impact
               statement strays from the effect that a crime had upon the victim and
               others and begins delving into substantive, unsworn, and otherwise
               unsupported allegations of other misconduct or poor character on the
               part of the defendant, caution should be used in assessing the weight to
               be given to such allegations, especially where the defendant is not
               provided an opportunity to respond directly to them.


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       Id.


[13]   Goering acknowledges that he could not cross-examine the victim

       representatives but argues that his request to ask them questions was not cross-

       examination. We disagree. Although Goering could have called T.C.’s parents

       as witnesses, he did not do so.2 Instead, after T.C.’s parents gave victim impact

       statements, Goering sought to ask them questions. The State correctly argues

       that Goering’s attempt to distinguish cross-examination and asking questions of

       the victim representatives is “a distinction without a difference.” Appellee’s Br.

       p. 15. The trial court properly did not allow Goering to cross-examine T.C.’s

       victim representatives at the sentencing hearing.


                                                  III. Sentencing

[14]   Goering also argues that the trial court abused its discretion when it sentenced

       him. Sentencing decisions are within the sound discretion of the trial court.

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

       218. However, a trial court may be found to have abused its sentencing

       discretion in a number of ways, including: (1) failing to enter a sentencing

       statement at all; (2) entering a sentencing statement that explains reasons for

       imposing a sentence where the record does not support the reasons; (3) entering




       2
         In his reply brief, Goering argues that “[t]he question presented is whether Goering should have been
       allowed to present evidence in his own defense.” Appellant’s Reply Br. p. 1. There is no indication that
       Goering was unable to present evidence at the sentencing hearing. To the contrary, Goering called several
       witnesses. Goering also states: “The State fails to explain why Goering’s right to present the parents as
       witnesses to offer testimony should have been curtailed.” Id. at 2. However, Goering did not call T.C.’s
       parents as witnesses.

       Court of Appeals of Indiana | Memorandum Decision 88A05-1406-CR-261 February 18, 2015           Page 7 of 10
       a sentencing statement that omits reasons that are clearly supported by the

       record and advanced for consideration; and (4) entering a sentencing statement

       in which the reasons given are improper as a matter of law. Id. at 490-91. The

       reasons or omission of reasons given for choosing a sentence are reviewable on

       appeal for an abuse of discretion. Id. at 491. The weight given to those reasons,

       i.e. to particular aggravators or mitigators, is not subject to appellate review. Id.


[15]   Goering argues that the record does not support the two aggravators found by

       the trial court. The aggravators found by the trial court were: (1) the fact that

       the harm, injury, loss, or damage suffered by T.C. was significant and greater

       than the elements necessary to prove the commission of the offense; and (2)

       Goering’s lack of remorse. When discussing the first aggravator, the trial court

       noted that T.C. suffered “physical pain, physical injury and significant

       emotional injury” and that Goering was her “supervisor and employer and was

       in a position of control and trust.” App. p. 134.


[16]   Goering contends that there was no evidence of a significant physical or

       emotional injury. We first note that Goering specifically did not “quarrel” with

       the proposed aggravator that “the harm, injury or loss . . . or damage suffered

       by the victim of the offense was significant and greater than the elements

       necessary to prove the commission of the offense.” Tr. p. 71. Consequently, he

       has waived this argument regarding the aggravator. Moreover, at the trial, the

       State presented evidence that T.C. felt pain during the sexual intercourse, when

       Goering placed his finger in her vagina, and when he placed his finger in her

       anus. T.C.’s parents stated during the victim impact statements that Goering’s

       Court of Appeals of Indiana | Memorandum Decision 88A05-1406-CR-261 February 18, 2015   Page 8 of 10
       actions would affect T.C. during her entire life. We cannot say that the trial

       court abused its discretion by finding that T.C. sustained significant physical or

       emotional injury.


[17]   Goering also argues that T.C. voluntarily changed her job duties to work with

       Goering and encouraged the relationship. Regardless of Goering’s argument,

       he was the adult, T.C.’s employer and supervisor, and a trusted friend of T.C.’s

       family. The trial court did not abuse its discretion when it found that Goering

       was in a position of trust with T.C.


[18]   Finally, Goering argues that the record does not support the trial court’s finding

       of no remorse. “Remorse, or lack thereof, by a defendant often is something

       that is better gauged by a trial judge who views and hears a defendant’s apology

       and demeanor first hand and determines the defendant’s credibility.” Gibson v.

       State, 856 N.E.2d 142, 148 (Ind. Ct. App. 2006). In his sentencing hearing

       testimony and his presentence investigation interview, Goering focused on the

       effect the accusation and conviction had on his life rather than expressing

       remorse for his actions. We acknowledge that Goering apologized to T.C. and

       her family at the sentencing hearing, but his credibility on this issue was better

       left to the trial court. We cannot say that the trial court abused its discretion

       when it found Goering’s lack of remorse as an aggravator.


                                                 Conclusion
[19]   The trial court did not abuse its discretion by excluding evidence of the victim’s

       prior sexual history from the sentencing hearing, and the trial court properly

       Court of Appeals of Indiana | Memorandum Decision 88A05-1406-CR-261 February 18, 2015   Page 9 of 10
       denied Goering’s request to question the victim impact statement

       representatives. The trial court also did not abuse its discretion when it found

       the two aggravators. We affirm.


[20]   Affirmed.


       May, J., and Pyle, J., concur.




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