MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                             FILED
this Memorandum Decision shall not be                                   Sep 04 2019, 6:59 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger                                   Curtis T. Hill, Jr.
Crown Point, Indiana                                     Attorney General of Indiana

                                                         Angela N. Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Scott Anthony Smolen,                                    September 4, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-3012
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Salvador Vasquez,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         45G01-1512-F1-9



May, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-CR-3012 | September 4, 2019                Page 1 of 7
[1]   Scott Anthony Smolen appeals his convictions of Level 1 felony child

      molesting 1 and Level 4 felony child molesting. 2 Smolen argues the court’s

      allegedly improper jury instruction violated his right against self-incrimination

      and the trial court abused its discretion by ordering Smolen to serve his

      sentences consecutively. We affirm.



                                Facts and Procedural History
[2]   In April 2015, Smolen was dating T.B.’s mother. T.B. thought of Smolen as a

      father figure and referred to him as “dad” or “daddy.” (Tr. Vol. II at 115.)

      Smolen lived with T.B., her mother, her grandmother, and her three sisters. At

      the time, T.B. was thirteen and Smolen was twenty-three. That same month,

      Smolen and T.B. had sex for the first time. Smolen and T.B. engaged in some

      sort of sexual activity every day for several months.


[3]   T.B. and Smolen would write letters and notes back and forth. In December

      2015, T.B. accidently left multiple of their notes in the back of a library book.

      A librarian discovered these notes and became concerned over the sexually

      explicit matter in the notes. The librarian contacted the police. Two days later,

      police interviewed Smolen. Smolen admitted it was his handwriting on the

      notes but accused T.B. of trying to touch him. Later, Smolen admitted having




      1
          Ind. Code § 35-42-4-3(b) (2015).
      2
          Ind. Code § 35-42-4-3(a)(1) 2015).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3012 | September 4, 2019   Page 2 of 7
      sex with T.B., but he claimed it only happened once. Smolen also admitted

      T.B. had touched his penis approximately twenty-five times.


[4]   On December 18, 2015, the State charged Smolen with one count of Level 1

      felony child molesting and one count of Level 4 felony child molesting. A jury

      found Smolen guilty of both counts. The trial court sentenced Smolen to

      consecutive terms of thirty years for Level 1 felony child molesting and four

      years for Level 4 felony child molesting, for an aggregate sentence of thirty-four

      years.



                                 Discussion and Decision
                                            Jury Instruction
[5]   Smolen first argues the trial court improperly instructed the jury.


               Upon review of a trial court’s decision to give or refuse a jury
               instruction, we apply an abuse of discretion standard. Treadway
               v. State, 924 N.E.2d 621, 636 (Ind. 2010) (internal citation
               omitted). “[T]his Court considers: (1) whether the instruction
               correctly states the law; (2) whether there is evidence in the
               record to support the giving of the instruction; and (3) whether
               the substance of the tendered instruction is covered by other
               instructions which are given.” Guyton v. State, 771 N.E.2d 1141,
               1144 (Ind. 2002) (internal citation omitted). Reversal arises
               “only if the appellant demonstrates that the instruction error
               prejudices his substantial rights.” Treadway, 924 N.E.2d at 636
               (internal citation omitted).




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3012 | September 4, 2019   Page 3 of 7
      Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015). For prejudice to arise, “the

      instructions taken as a whole must misstate the law or otherwise mislead the

      jury.” Brooks v. State, 895 N.E.2d 130, 132 (Ind. Ct. App. 2008).


[6]   Jury instruction 5 originally stated:


              A determination of the Defendant’s intent may be arrived at by
              the jury from a consideration of the Defendant’s conduct and the
              natural and usual consequences to which such conduct logically
              and reasonably points.


      (App. Vol. II at 47.) Smolen objected at trial, arguing the instruction unduly

      prejudiced him because “even though there’s an instruction that says he doesn’t

      have to testify, this instruction implies . . . if he didn’t testify, then you can infer

      what you want from that.” (Tr. Vol. II at 174.) As a result of Smolen’s

      argument, the trial court revised jury instruction 5 to state:


              A determination of the Defendant’s intent to arouse may be
              inferred by the jury from a consideration of the Defendant’s
              conduct and the natural and usual consequences to which such
              conduct logically and reasonably points.


      (App. Vol. II at 68) (emphasis added).


[7]   On appeal, Smolen argues this instruction violated his right to be free from self-

      incrimination because it permitted the jury to find the intent element based on

      Smolen’s conduct at trial. (Appellant’s Br. at 8.) We disagree, because “the

      Defendant’s intent” and “the Defendant’s conduct” at issue are Smolen’s intent

      and conduct at the time the crimes were alleged to have occurred. (App. Vol. II

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3012 | September 4, 2019   Page 4 of 7
      at 68.) This should have been obvious to the jury as “intent to arouse” was an

      element of the crime allegedly committed and the jury received instructions as

      to the elements of each crime. (See id. at 51) (jury instruction listing elements of

      Level 4 felony child molesting). Smolen has failed to demonstrate any juror

      would have made the inference he asserts as error. See Davis-Martin v. State, 116

      N.E.3d 1178, 1192 (Ind. Ct. App. 2019) (defendant failed to establish how jury

      instruction would create irreversible error).


[8]   Furthermore, “[w]e consider the jury instructions as a whole, and in reference

      to each other.” Isom v. State, 651 N.E.2d 1151, 1152 (Ind. 1995). Jury

      instruction 14 states:


              No defendant may be compelled to testify. A defendant has no
              obligation to testify. The defendant in this case did not testify
              and you must not consider this in any way.


      (App. Vol. II at 77.) This instruction tells the jury Smolen was not required to

      testify and they may not consider his decision whether to testify as evidence of

      his guilt or innocence. This instruction, when considered with jury instruction

      5, directs the jury to determine Smolen’s intent from the evidence presented at

      trial and not from Smolen’s action at trial. See Aldana v. School City of East

      Chicago, 769 N.E.2d 1201, 1211 (Ind. 2002) (given jury instruction, when

      considered as a whole with all instructions, removed any unduly prejudicial

      impact), trans. denied. Smolen has not demonstrated the trial court abused its

      discretion in instructing his jury.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3012 | September 4, 2019   Page 5 of 7
                                        Consecutive Sentences
[9]    Smolen asserts the trial court abused its discretion when ordering his sentences

       served consecutively. Whether to impose consecutive or concurrent sentences

       is within the trial courts sound discretion and is reviewed only for an abuse of

       discretion. Gellenbeck v. State, 918 N.E.2d 706, 712 (Ind. Ct. App. 2009). The

       trial court abuses its discretion if its decision is clearly against the logic and

       effect of the facts and circumstances. Id.


[10]   “[T]he court shall determine whether terms of imprisonment shall be served

       concurrently or consecutively. The court may consider the: (1) aggravating

       circumstances . . . and (2) mitigating circumstances . . . in making a

       determination under this subsection[.]” Ind. Code § 35-50-l-2(c). “To impose

       consecutive sentences, the trial court must find at least one aggravating

       circumstance.” Jones v. State, 705 N.E.2d 452, 455 (Ind. 1999).


[11]   The trial court specifically noted the seriousness of the crimes, Smolen’s

       position of trust, and the impact of the abuse on T.B.’s life. The trial court also

       found the multiple instances of abuse to be an aggravating circumstance. Thus,

       the trial court did not abuse its discretion by ordering Smolen to serve his

       sentences consecutively. See O’Connell v. State, 742 N.E.2d 943, 952 (Ind. 2001)

       (multiple victims or multiple crimes justifies imposing consecutive sentences).



                                               Conclusion


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3012 | September 4, 2019   Page 6 of 7
[12]   Smolen’s jury instructions did not violate his right against self-incrimination,

       and the trial court did not abuse its discretion by sentencing Smolen to

       consecutive sentences because it found as an aggravating circumstance that

       Smolen abused T.B. multiple times. Accordingly, we affirm.


[13]   Affirmed.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3012 | September 4, 2019   Page 7 of 7
