MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          May 06 2020, 10:05 am
court except for the purpose of establishing
                                                                        CLERK
the defense of res judicata, collateral                             Indiana Supreme Court
                                                                       Court of Appeals
estoppel, or the law of the case.                                        and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Yvette M. LaPlante                                       Curtis T. Hill, Jr.
LaPlante LLP                                             Attorney General of Indiana
Evansville, Indiana
                                                         Tina L. Mann
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Stacy R. Goldman,                                        May 6, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-74
        v.                                               Appeal from the Vanderburgh
                                                         Superior Court
State of Indiana,                                        The Honorable Robert J. Pigman,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         82D03-1904-F4-2383



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-74 | May 6, 2020                   Page 1 of 9
[1]   Stacy Goldman appeals the sentence imposed by the trial court after he pleaded

      guilty to two counts of Level 4 Felony Child Solicitation1 and two counts of

      Level 4 Felony Sexual Misconduct With a Minor.2 Goldman argues that the

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

      We find that the sentence is not inappropriate, but we also find, sua sponte, that

      the two child solicitation convictions violate Indiana’s prohibition against

      double jeopardy. Therefore, we affirm the aggregate eight-year sentence, but

      we reverse in part and remand with instructions to vacate the conviction and

      sentence for one of the two counts of child solicitation.


                                                    Facts
[2]   On February 6, 2019, K.D., who has high-functioning autism, was fifteen years

      old. She had been communicating via Facebook Messenger with a man who

      she knew as Ryan King. “Ryan King” was an alias used online by Goldman,

      who was twenty-eight years old. Goldman has a variety of intellectual and

      emotional disabilities and has never lived completely independently. He

      functions at the approximate maturity level of a fifteen-year-old.


[3]   K.D., who believed that “King” was nineteen years old, had told him that she

      was fifteen and believed that they were “dating.” Appellant’s App. Vol. II p.

      26. Goldman set up a time and place to meet K.D. to engage in sexual




      1
          Ind. Code § 35-42-4-6(c).
      2
          I.C. § 35-42-4-9(a).


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-74 | May 6, 2020   Page 2 of 9
      conduct. He also acknowledged that K.D. wanted a baby. He suggested, “this

      weekend let’s shoot for getting you pregnant” and said that he would “man up”

      and take care of her and the baby. Tr. Ex. Vol. II p. 31. He called himself her

      “daddy,” telling her “daddy loves you” and will “take care of you” and to “just

      trust your daddy . . . .” Id. at 32.


[4]   On February 6, 2019, K.D. told her parents she was going for a walk. She

      walked to a nearby church, where she met Goldman for the first time in person.

      The two ended up walking down into a ditch, where Goldman laid down a

      blanket that he had brought. They took off their clothes, and Goldman

      performed oral sex on K.D.; the two then had sexual intercourse.


[5]   The next day, K.D. tried to break up with Goldman. He threatened to post

      pictures of K.D. that he had taken the previous day so that her family would see

      them, saying, “I have screenshots of your boobs and your p**sy so I’m going to

      expose it on Facebook right now.” Id. at 10. Goldman also threatened to come

      to K.D.’s house to tell her parents what had happened. He also told K.D. that

      she could not prove anything because she did not know his real name and that

      because (as far as she knew) he was nineteen years old, nothing could happen to

      him because their ages were “four years apart” and what they did was legal. Id.

      at 8. He also told her “to go kill your f*cking slut self” and “you’re just a little

      slut that deserves to disappear from [l]ife hahaha . . . .” Id. at 8-9.


[6]   Eventually, K.D. told her school counselor what had happened. The counselor

      informed K.D.’s parents and law enforcement. Evansville Police Detective


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-74 | May 6, 2020    Page 3 of 9
      Mike Kennedy discovered that “King’s” real name was Stacy Goldman and

      that he was twenty-eight years old. Detective Kennedy met with Goldman and

      Goldman’s sister on February 20, 2019. Goldman admitted that he had

      arranged to meet up with K.D., that he had brought a blanket to have sex on,

      that he knew K.D. was only fifteen years old, and that he had threatened and

      insulted her after she tried to break up with him.


[7]   On April 4, 2019, the State charged Goldman with two counts of Level 4 felony

      child solicitation and two counts of Level 4 felony sexual misconduct with a

      minor. On September 26, 2019, Goldman pleaded guilty as charged without a

      plea agreement. The trial court held a sentencing hearing on November 8,

      2019. It found Goldman’s “mental condition” to be a mitigating circumstance

      and found his prior criminal history, including multiple probation violations, to

      be an aggravating factor. Appellant’s App. Vol. II p. 17. On December 13,

      2019, the trial court imposed concurrent eight-year sentences on all four counts.

      Goldman now appeals.


                                   Discussion and Decision
                                       I. Double Jeopardy
[8]   First, we are compelled to address, sua sponte, whether Goldman’s convictions

      violate Indiana’s prohibition against double jeopardy. Generally, when a

      defendant pleads guilty, he waives the right to relief on double jeopardy

      grounds because “[a] defendant who enters a plea agreement to achieve an

      advantageous position must keep the bargain . . . .” Kunberger v. State, 46

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-74 | May 6, 2020   Page 4 of 9
       N.E.3d 966, 971 (Ind. Ct. App. 2015). But where, as here, a defendant pleads

       guilty without the benefit of a plea agreement, he may be entitled to relief on

       this issue. Id.


[9]    The Double Jeopardy Clause of the Indiana Constitution provides that “No

       person shall be put in jeopardy twice for the same offense.” Ind. Const. art. 1, §

       14. It is well established that two or more offenses are the “same offense” in

       violation of the double jeopardy clause “if, with respect to either the statutory

       elements of the challenged crimes or the actual evidence used to convict, the

       essential elements of one challenged offense also establish the essential elements

       of another challenged offense.” Richardson v. State, 717 N.E.2d 32, 49 (Ind.

       1999) (emphases in original).


[10]   Here, Goldman was convicted of two counts of Level 4 felony child solicitation

       and two counts of Level 4 felony sexual conduct with a minor. For child

       solicitation, the State was required to prove beyond a reasonable doubt that

       Goldman, who was at least twenty-one years old, knowingly or intentionally

       solicited K.D., who was between fourteen and sixteen years old, to engage in

       sexual conduct; that the solicitation occurred via a computer network; and that

       Goldman traveled to meet K.D. I.C. § 35-42-4-6(c). For sexual misconduct

       with a minor, the State was required to prove that Goldman, who was at least

       twenty-one years old, knowingly or intentionally performed or submitted to

       sexual intercourse (first count) and other sexual conduct (second count) with

       K.D., who was less than sixteen years of age. I.C. § 35-42-4-9(a).



       Court of Appeals of Indiana | Memorandum Decision 20A-CR-74 | May 6, 2020   Page 5 of 9
[11]   There is no issue with respect to the statutory elements of these crimes because

       to prove child solicitation, the State was required to prove that Goldman

       solicited K.D. to meet to engage in sexual conduct, and to prove sexual

       misconduct, the State was required to prove that the sexual conduct actually

       occurred.


[12]   We do find a violation, however, with respect to the actual evidence used to

       support Goldman’s convictions for the two counts of child solicitation. While

       he actually engaged in both sexual intercourse and oral sex with K.D.—two

       separate acts—there is only evidence that he engaged in one act of solicitation.3

       That the one act of solicitation led to two types of sexual conduct supports the

       two sexual misconduct with a minor convictions, but only one child solicitation

       conviction. See Kunberger, 46 N.E.3d at 970 (holding that to find a violation of

       the actual evidence test, there must be a reasonable possibility that the

       evidentiary facts used to establish the essential elements of one offense may

       have also been used to establish the essential elements of a second offense).


[13]   Therefore, the two child solicitation convictions violate the prohibition against

       double jeopardy. We reverse in part with instructions that the trial court vacate

       the conviction and sentence for one of the child solicitation charges. This will

       not affect the aggregate eight-year sentence imposed by the trial court (or our




       3
         In other words, there is no evidence that Goldman solicited K.D. once to engage in sexual intercourse and a
       second, separate time to engage in other sexual conduct.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-74 | May 6, 2020                         Page 6 of 9
       analysis of the appropriateness of the sentence) because the sentences were

       ordered to run concurrently.


                                        II. Appropriateness
[14]   Goldman’s sole argument on appeal is that the aggregate eight-year sentence is

       inappropriate in light of the nature of the offenses and his character pursuant to

       Indiana Appellate Rule 7(B). We must “conduct [this] review with substantial

       deference and give ‘due consideration’ to the trial court’s decision—since the

       ‘principal role of [our] review is to attempt to leaven the outliers,’ and not to

       achieve a perceived ‘correct’ sentence.” Knapp v. State, 9 N.E.3d 1274, 1292

       (Ind. 2014) (internal citations omitted) (quoting Chambers v. State, 989 N.E.2d

       1257, 1259 (Ind. 2013)).


[15]   Goldman pleaded guilty to four Level 4 felonies, which we have revised to

       three Level 4 felonies. For a Level 4 felony conviction, he faced a sentence of

       two to twelve years, with an advisory term of six years imprisonment. Ind.

       Code § 35-50-2-5.5. The trial court imposed eight-year terms. The State

       concedes that these convictions arose out of a single episode of criminal

       conduct. Appellee’s Br. p. 10. As such, had the trial court ordered consecutive

       sentences, the maximum term would have been fifteen years imprisonment.

       I.C. § 35-50-1-2(d)(3). The trial court imposed concurrent terms, however,

       resulting in an aggregate sentence of eight years imprisonment.


[16]   With respect to the nature of Goldman’s offenses, he used a fake Facebook

       account with a pseudonym to form a relationship with a young woman whom

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-74 | May 6, 2020   Page 7 of 9
       he knew to be fifteen years old; she also had autism. He was twenty-eight years

       old, but told her he was nineteen. He convinced her to meet him to have sex.

       He planned the whole encounter. They had sex and oral sex. The next day,

       when K.D. tried to break up with him, he threatened to post graphic pictures of

       her online and to come to her house to tell her parents what had happened. He

       told her that she could prove nothing because she did not know his real name.

       He called her a “slut” and told her to kill herself. Tr. Ex. Vol. p. 8. We do not

       find that the nature of these offenses renders the sentence inappropriate.


[17]   As to Goldman’s character, he emphasizes that he has many intellectual and

       emotional disabilities and states that he functions at the maturity level of a

       fifteen-year-old. But he was clearly able to act as a predator online and lure a

       young woman into a sexual relationship, including planning out all the details

       and threatening and degrading her afterwards. The trial court took Goldman’s

       mental capabilities into account when imposing the sentence by finding his

       “mental condition” to be a mitigating circumstance. Appellant’s App. Vol. II p.

       17. The trial court would have acted reasonably had it imposed a lower

       sentence, but we cannot say that the sentence imposed—which is slightly more

       than the advisory term of six years, but a good deal less than the maximum

       possible fifteen-year term—is inappropriate given Goldman’s mental

       disabilities.


[18]   We also note that Goldman has a lengthy criminal history that includes

       convictions for Level 5 felony battery against a public safety officer, Level 6

       felony and Class A misdemeanor theft, Level 6 felony and Class A

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-74 | May 6, 2020    Page 8 of 9
       misdemeanor resisting law enforcement, Class A misdemeanor criminal

       trespass, Class A misdemeanor battery, Class A misdemeanor conversion, and

       Class A misdemeanor false informing. Goldman has been on probation

       multiple times, and the State has had to file many petitions to revoke probation

       after his behavior failed to comply with the conditions of probation.


[19]   Goldman has been afforded leniency by the judicial system many times in the

       past. But he has shown an inability or unwillingness to conform his behavior to

       the rule of law. And now, his criminal activity has escalated, resulting in

       trauma to a vulnerable fifteen-year-old young woman. Under these

       circumstances, we find that the eight-year aggregate term imposed by the trial

       court is not inappropriate.


[20]   The judgment of the trial court is affirmed in part and reversed in part with

       instructions to vacate the conviction and sentence for one of the two counts of

       child solicitation.


       Bradford, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-74 | May 6, 2020   Page 9 of 9
