MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              Oct 27 2015, 9:32 am




regarded as precedent or cited before any                                 Oct 27 2015, 9:32 am
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
Marce Gonzalez, Jr.                                      Gregory F. Zoeller
Dyer, Indiana                                            Attorney General of Indiana

                                                         Richard C. Webster
                                                         Deputy Attorney General



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeffery Allen Hmurovic, Sr.                              October 27, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A03-1503-CR-94
        v.                                               Appeal from the Lake County
                                                         Superior Court
State of Indiana,                                        The Honorable Salvador Vasquez,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         45G01-1403-FC-25



Altice, Judge.


                                          Case Summary




Court of Appeals of Indiana | Memorandum Decision 45A03-1503-CR-94 | October 27, 2015                     Page 1 of 9
[1]   Following a jury trial, Jeffery Allen Hmurovic, Sr. was convicted of class B

      felony Sexual Misconduct with a Minor1 and class C felony Incest.2 He

      challenges, on appeal, only the former conviction and his aggregate sentence.

      Hmurovic presents four appellate issues of which we find the following

      dispositive: Did the State present sufficient evidence to support his conviction

      for sexual misconduct with a minor?


[2]   We reverse in part and remand.


                                             Facts & Procedural History


[3]   E.H. was born in September 1987 to Jeffery and Donna Hmurovic. She is the

      youngest of three children born to the Hmurovics, having two older brothers.

      E.H. has a learning disability and has always lived with her parents. They lived

      on Maple Street in Gary until E.H. was almost eighteen years old. Thereafter,

      except for a brief period of homelessness, the family lived on Elkhart Street in

      Lake Station.


[4]   Hmurovic began having sexual intercourse with E.H. while in the home on

      Maple Street. By the time the family was evicted in August 2005, the sexual

      activity between Hmurovic and his teenage daughter had been going on for




      1
        Ind. Code § 35-42-4-9 (a)(1). Effective July 1, 2014, this offense was reclassified as a Level 4
      felony. Because Hmurovic committed this offense prior to that date, it retains its prior classification as a class
      B felony.

      2
          Ind. Code § 35-46-1-3. Effective July 1, 2014, this offense was reclassified as a Level 5 felony.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1503-CR-94 | October 27, 2015                   Page 2 of 9
      quite some time. E.H. “[k]ind of” remembered sexual activity with her dad

      around the age of sixteen. Transcript at 92. She could not, however, recall at

      trial whether it began before she was sixteen. The sexual relationship continued

      on a regular basis into E.H.’s adulthood.


[5]   E.H.’s mother died in June 2013, and around this same time, E.H. became

      impregnated by her father. On March 9, 2014, E.H. gave birth to a baby girl,

      with her father alongside during the delivery. Hmurovic made a number of

      curious statements at the hospital, which caused the nursing staff concern.

      Similarly, E.H. told hospital staff that she was a virgin, there was no father, and

      the baby was a miracle from her mother.


[6]   The Indiana Department of Child Services (the DCS) began investigating the

      matter on March 10, 2014, and the City of Lake Station Police Department

      became involved shortly thereafter. The baby was taken into custody by the

      DCS, and Hmurovic was interviewed by police on March 12.


[7]   During the interrogation, Hmurovic initially denied having any sexual contact

      with his daughter. E.H., however, had told investigators otherwise. When

      confronted with E.H.’s statements, Hmurovic eventually admitted the sexual

      relationship, placing much of the blame on his daughter. The detectives pressed

      him for information regarding when the sexual intercourse began, and

      Hmurovic indicated he could not recall. At one point, he stated that the first

      time he had intercourse with E.H. was at the Maple Street residence, which

      would have been before she turned eighteen. He believed the first incident was


      Court of Appeals of Indiana | Memorandum Decision 45A03-1503-CR-94 | October 27, 2015   Page 3 of 9
      sometime after junior high school.3 Hmurovic admitted that over the last nine

      years or so he had sex with his daughter one to two times per week. DNA

      testing confirmed that Hmurovic was the father of E.H.’s baby.


[8]   The State charged Hmurovic with four counts: Count I, class A felony child

      molesting (victim under the age of fourteen); Count II, class B felony sexual

      misconduct with a minor (victim at least fourteen but less than sixteen); Count

      III, class B felony incest (victim under the age of sixteen); and Count IV, class C

      felony incest. The jury acquitted Hmurovic of Count I and found him guilty of

      the remaining counts. At the sentencing hearing on February 11, 2015, the trial

      court merged Counts II and III. The court entered judgment of conviction on

      Counts II and IV and sentenced Hmurovic to consecutive terms of fifteen and

      six years, respectively, for an aggregate sentence of twenty-one years.


                                              Discussion & Decision


[9]   Hmurovic contends that the State failed to present sufficient evidence to

      support his conviction for class B felony sexual misconduct with a minor. 4

      Specifically, he argues that the State presented insufficient evidence that E.H.

      was under the age of sixteen when he first performed sexual intercourse or

      deviate sexual conduct with her.




      3
        The State indicates that Hmurovic admitted he began having sex with his daughter “just after she started
      junior high school”. Appellee’s Brief at 4. This is a misstatement of the record.
      4
          Hmurovic does not challenge his incest conviction on appeal.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1503-CR-94 | October 27, 2015             Page 4 of 9
[10]   The standard of review of a jury verdict is well settled. When reviewing the

       sufficiency of evidence supporting a conviction, we neither reweigh the

       evidence nor judge the credibility of witnesses. Staton v. State, 853 N.E.2d 470,

       474 (Ind. 2006). We, rather, look to the evidence most favorable to the verdict

       together with all reasonable inferences to be drawn from that evidence. Id. We

       will affirm the verdict if there is substantial evidence of probative value

       supporting each element of the crime from which a reasonable trier of fact

       could have found the defendant guilty beyond a reasonable doubt. Id.


[11]   To prove that Hmurovic committed class B felony sexual misconduct with a

       minor, the State was required to prove beyond a reasonable doubt: 1) when he

       was at least twenty-one years of age; 2) Hmurovic performed sexual intercourse

       or deviate sexual conduct with E.H.; 3) when E.H. was at least fourteen years

       of age, but less than sixteen years of age. Hmurovic challenges only the

       sufficiency of the evidence with respect to the last element, E.H.’s age. I.C. §

       35-42-4-9 (a)(1).


[12]   In a criminal prosecution, the State must prove every element of the offense

       charged beyond a reasonable doubt, including statutorily specified ages. See

       Staton, 853 N.E.2d at 473. Circumstantial testimonial evidence, however, can

       be sufficient to prove age. Id. at 474.


[13]   The State contends that the following evidence was sufficient to establish E.H.’s

       age at the time Hmurovic began having sexual intercourse with her:




       Court of Appeals of Indiana | Memorandum Decision 45A03-1503-CR-94 | October 27, 2015   Page 5 of 9
               Defendant admitted that he began fondling and having sex with
               E.H. just after she entered Junior High School when the family
               lived on Maple Avenue. E.H. was born on September 19, 1987,
               and logically would have been in Junior High School and High
               School between the ages of 14 and 16 which is the time specified
               in Count II. Moreover, E.H. testified that she told Chief Garber
               she was around 13 years of age when Defendant began having
               sex with her.


       Appellee’s Brief at 9 (citations to record omitted).


[14]   This court has viewed and carefully listened to Hmurovic’s videotaped

       interrogation a number of times, and Hmurovic did not indicate that the sexual

       activity began just after his daughter entered junior high school. Rather, he was

       equivocal regarding when it began and stated that it maybe began after junior

       high while they were still living on Maple. The evidence reveals that the family

       moved from the Maple residence the month before E.H. turned eighteen.

       Accordingly, Hmurovic’s statement does not establish that the sexual activity

       began when E.H. was fourteen or fifteen years of age.


[15]   The remaining evidence upon which the State relies comes from the following

       portion of E.H.’s testimony:

               Q.       How old were you when you started having sexual contact
                        with your dad?


               A.       I can’t remember the age.


               Q.       Do you remember telling Chief Garber around 13?


       Court of Appeals of Indiana | Memorandum Decision 45A03-1503-CR-94 | October 27, 2015   Page 6 of 9
               A.       Yeah, but that popped in my head. I truly don’t remember
                        when I was 13.


       Transcript at 66. E.H. then went on to testify, like her father had indicated, that

       it began in the Maple residence. When asked by the State, she agreed that the

       sexual activity “had already been going on for quite some time” when the

       family moved from the Maple residence. Id. at 67. Later, E.H. testified she did

       not remember having sex with her father prior to her sixteenth birthday but that

       she “[k]ind of” remembered it going on around the age of sixteen. Id. at 92.


[16]   E.H.’s testimony does not establish beyond a reasonable doubt that the sexual

       activity began when she was fourteen or fifteen years of age. See Adcock v. State,

       22 N.E.3d 720, 726 (Ind. Ct. App. 2014) (finding lack of proof as to victim’s age

       with respect to a child molesting charge, where victim could only testify that the

       sexual abuse occurred while she was in junior high school; she was thirteen for

       about one-half of that time and fourteen for the other half). Further, we observe

       that the jury acquitted Hmurovic of Count I, the class A felony child molesting

       charge, which alleged sexual intercourse or deviate sexual conduct when E.H.

       was under the age of fourteen. Thus, the jury apparently did not rely on E.H.’s

       acknowledgment that she had previously told an investigator that it started

       around the age of thirteen.


[17]   The only evidence placing E.H. within the required age range of the sexual

       misconduct charge was the testimony of Lynn Wronko, a social worker at the

       hospital where E.H. gave birth. Wronko testified that E.H. informed her in the

       hospital that the sexual relationship with her dad “had been going on for 12
       Court of Appeals of Indiana | Memorandum Decision 45A03-1503-CR-94 | October 27, 2015   Page 7 of 9
       years.” Transcript at 127. E.H. was twenty-seven when she made this

       statement, so that would have placed the beginning of the sexual abuse at the

       age of fifteen. This evidence, however, was expressly limited by the trial court,

       after a proper objection by the defense, to use for impeachment purposes.

       Accordingly, the evidence could not be used by the jury as substantive evidence

       to establish the victim’s age.5 Lawrence v. State, 959 N.E.2d 385, 389 (Ind. Ct.

       App. 2012) (“evidence admitted only for impeachment may not be used as

       substantive evidence”), trans. denied.


[18]   The State had the burden of establishing that Hmurovic performed sexual

       intercourse or deviate sexual conduct with E.H. when E.H. was fourteen or

       fifteen years of age. On this record, we simply cannot find that sufficient

       evidence exists with respect to the age element. As a result, we must reverse his

       conviction for sexual misconduct with a minor.6


[19]   On remand, the trial court has the authority to resentence Hmurovic on the

       class C felony conviction for incest. See Sanjari v. State, 981 N.E.2d 578, 583

       (Ind. Ct. App. 2013), trans. denied (“trial court [has] flexibility upon remand,

       including the ability to increase sentences for individual convictions without




       5
        The State improperly relied on this prior inconsistent statement as substantive evidence of the victim’s age
       when making its closing argument and rebuttal closing argument to the jury. See Transcript at 271 and 289.
       6
         Because we reverse this conviction, we need not reach the three remaining issues (instructional error,
       prosecutorial misconduct, and sentencing), which Hmurovic expressly presents as alternative arguments. As
       to the instruction issue, we note that Hmurovic proposed a final instruction that would have specifically, and
       correctly, informed the jury of the limited use of impeachment evidence, which was of particular import in
       this case. The trial court refused this instruction.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1503-CR-94 | October 27, 2015               Page 8 of 9
       giving rise to a presumption of vindictive sentencing, so long as the aggregate

       sentence is no longer than originally imposed”). This flexibility to resentence is

       in recognition of the fact that “a trial court is likely to view individual sentences

       in a multi-count proceeding as part of an overall plan, a plan that can be

       overthrown if one or more of the convictions is reversed or reduced in degree.”

       Id. Given the circumstances of this case, we remand this case to the trial court

       to vacate Count II and to resentence Hmurovic, if the court so chooses, on

       Count IV.


[20]   Judgment reversed in part and remanded.


       Riley, J., and Brown, concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1503-CR-94 | October 27, 2015   Page 9 of 9
