MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Jun 28 2019, 10:41 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




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Bradley Keffer                                           Curtis T. Hill, Jr.
Brooke Smith                                             Attorney General of Indiana
Keffer Barnhart, LLP                                     Robert A. Rowlett
Indianapolis, Indiana                                    Angela Sanchez
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA
Guy Sheets,                                              June 28, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2027
        v.                                               Appeal from the Adams Circuit
                                                         Court
State of Indiana,                                        The Honorable Chad E. Kukelhan,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         01C01-1704-F1-1



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2027 | June 28, 2019                 Page 1 of 14
[1]   Guy Sheets (“Sheets”) was convicted in the Adams Circuit Court of three

      counts: Count I child molesting (other sexual conduct), a Level 1 felony; Count

      II child molesting (fondling or touching of a minor), a Level 4 felony; and


[2]   Count III child molesting (submitting to touching by a minor), a Level 4 felony.

      Sheets now appeals, arguing his convictions on Counts I and II violate the

      prohibition against double jeopardy and that his aggregate sentence of forty-two

      years is inappropriate in light of the nature of his offense and his character.


[3]   We affirm.


                                 Facts and Procedural History
[4]   Samantha Gumm (“Samantha”) and Dustin Sheets (“Dustin”) have two

      children, eight-year old R.S. and six-year old Z.S. In August of 2014, R.S. and

      Z.S. were removed from Samantha and Dustin’s home and placed with Sheets,

      their paternal grandfather. The children lived with Sheets and his wife, Angie

      Sheets (“Angie”), for approximately eight months before they returned to live

      with Samantha and Dustin.

[5]   At the end of 2016, Samantha and Dustin were moving and needed a

      temporary place to live. Samantha and Dustin along with R.S. and Z.S. stayed

      with Sheets for two to three months. Around Christmas, Samantha and Z.S.

      moved out of Sheets’s home. However, Dustin and R.S. continued to reside

      with Sheets because Dustin was on house arrest and R.S. wanted to finish the

      school year at the same school she had been attending. Dustin later moved out

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2027 | June 28, 2019   Page 2 of 14
      and stayed with Samantha and Z.S., leaving R.S. behind at her grandfather’s

      house.

[6]   During the periods when R.S. was not living at Sheets’s home, R.S. would visit

      every weekend and routinely spend the entire weekend. Between December

      2016 and the early months of 2017, Sheets and Angie had legal custody of R.S.

      In early 2017, R.S. moved out of Sheets’s home and back in with her mother.

      On March 2, 2017, seven-year-old R.S. told her mother that Sheets had touched

      her inappropriately when she was living at Sheets’s home. Samantha testified

      that R.S. was “frantic, hysterical, [and] crying” when she told her that Sheets

      had been touching her private parts. Tr. Vol. II, p. 161. Samantha took R.S. to

      the Adams Memorial Hospital emergency room to have R.S. evaluated for

      injuries.


[7]   On March 6, 2017, R.S. was interviewed at the Fort Wayne Child Advocacy

      Center by Lorrie Freiburger (“Freiburger”). R.S recalled that she would

      sometimes sleep in the same bed as Sheets because she was afraid of the spiders

      that would come from the crack in the ceiling of her bedroom. Tr. Vol. II, pp.

      214-15. R.S. stated that it was during these times that Sheets would “touch my

      private parts and he made me touch his.” Id. at 213. R.S. stated that she

      touched Sheets’s penis with her hand under his clothing and remembered it as

      being “hairy.” Ex. Vol., State’s Ex. 7 at 26:12-26:24. R.S. would attempt to

      pull her hand away, but Sheets would nonetheless compel her to place her hand

      on his genitals. Tr. Vol. II, pp. 217-18. When Freiburger asked R.S. how many
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2027 | June 28, 2019   Page 3 of 14
      times Sheets touched her, R.S. responded, “a little over fifty.” Id. at 220. R.S.

      said that these incidents made her feel “uncomfortable.” Ex. Vol., State’s Ex. 7

      at 38:55-39:38. Later in the interview, R.S. stated that Sheets never touched her

      “monkey”1 with anything other than his finger. Ex. Vol., State’s Ex. 7 at 17:02–

      17:20. Freiburger asked R.S. whether Sheets touched her on the outside of the

      “monkey” or on the inside of her “monkey.” Id. R.S. stated that it was on the

      inside. Id.


[8]   On March 9, 2017, police interviewed Sheets. Sheets denied molesting R.S. and

      stated that he and R.S. had “laid down together lots of times” when R.S. could

      not sleep. Ex. Vol., State’s Ex. 13 at 7:59-8:25. Sheets explained that “the only

      way” something could have happened was if he molested R.S. while he was

      sleeping. Id. Sheets told the officer, “I didn’t do anything that I know of.” Ex.

      Vol., State’s Ex. 13 at 15:45-16:28.


[9]   On April 10, 2017, the State charged Sheets with Count I, child molesting as a

      Level 1 felony; Count II, child molesting as a Level 4 felony; and Count III,

      child molesting as a Level 4 felony. Count I alleged that Sheets penetrated

      R.S.’s sex organ with his finger. Count II alleged that Sheets fondled or touched




      1
          R.S. referring to the female sex organ.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2027 | June 28, 2019   Page 4 of 14
       R.S.’s sex organ. Count III alleged that Sheets submitted to touching of his sex

       organ by R.S with intent to arouse or satisfy his sexual desires.

[10]   A two-day jury trial commenced on March 22, 2018. The jury found Sheets

       guilty as charged on all three counts of child molesting. A sentencing hearing

       was held on August 7, 2018. Prior to the hearing, the trial court received and

       read multiple letters written in support of mitigating Sheets’s sentence. The

       court found the “magnitude” of the crime, the nature of the offense, and the

       fact that Sheets had care, custody, and control of R.S. when the crime was

       committed to be aggravators, the last being a statutory aggravator pursuant to

       Ind. Code § 35-38-1-7.1(a)(8). Sheets was ordered to serve an aggregate forty-

       two-year sentence. Specifically, he was ordered to serve thirty years executed at

       the Indiana Department of Correction for Count I. On Counts II and III, Sheets

       was sentenced to consecutive terms of six years for each count, and both

       sentences were suspended to probation upon release from incarceration on

       Count I, for a total of twelve years suspended to probation. Sheets now appeals.


                                               I. Double Jeopardy

[11]   Sheets contends that his convictions for Level 1 felony child molesting and

       Level 4 felony child molesting violate his right to be free from double jeopardy.

       The Indiana Constitution provides that “[n]o person shall be put in jeopardy

       twice for the same offense.” Ind. Const. Art. 1, § 14. Our supreme court has

       developed a two-part test for Indiana double jeopardy claims, holding that “two

       or more offenses are the ‘same offense’ in violation of Article 1, Section 14, if,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2027 | June 28, 2019   Page 5 of 14
       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).


[12]   The “statutory elements test” referenced in Richardson is essentially the same

       test enunciated in Blockburger v. United States, 284 U.S. 299 (1932). Brown v.

       State, 912 N.E.2d 881, 896 (Ind. Ct. App. 2009), trans. denied. Multiple

       convictions will not be precluded if each statutory offense requires proof of an

       additional fact that the other does not. Robinson v. State, 835 N.E.2d 518, 522

       (Ind. Ct. App. 2005). We look only to the statutory elements of the offenses. Id.


[13]   Sheets contends that his convictions for Count I and Count II child molesting

       violate the statutory elements test because “the State failed to delineate which of

       the occurrences [of child molestation] it attributed to Count I and which it

       attributed to Count II,” and because “the acts alleged by the State in Counts I

       and II overlap significantly.” Appellant’s Br. pp. 13-14. We disagree. Level 1

       felony child molesting requires “other sexual conduct,” which involves

       penetration of the sex organ, while Level 4 felony child molesting requires

       fondling or touching with intent to arouse sexual desires. See Ind. Code § 35-42-

       4-3(a)(l) & (b). Because each offense requires proof of an additional fact which

       the other does not, there is no violation of the statutory elements test. See Sloan

       v. State, 947 N.E.2d 917, 924 (Ind. 2011) (“Sloan concedes that the statutory



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2027 | June 28, 2019   Page 6 of 14
       elements of Class A felony child molesting and Class C felony child molesting

       are different.”)

[14]   Under the actual evidence test, the evidence presented at trial is examined to

       determine whether each challenged offense was established by separate and

       distinct facts. Lee v. State, 892 N.E.2d 1231, 1234 (Ind. 2008). To show that two

       challenged offenses constitute the “same offense,” a defendant must

       demonstrate a reasonable possibility that the evidentiary facts used by the fact-

       finder to establish the essential elements of one offense may also have been used

       to establish the essential elements of a second challenged offense. Id.

       Application of this test requires the court to identify the essential elements of

       each of the challenged crimes and to evaluate the evidence from the fact-finder’s

       perspective. Id. The reviewing court may consider the charging information,

       jury instructions, and arguments of counsel. Id. Violations of Indiana’s Double

       Jeopardy Clause are reviewed de novo. Rexroat v. State, 966 N.E.2d 165, 168

       (Ind. Ct. App. 2012), trans. denied.


[15]   To convict Sheets of Level 1 felony child molesting as charged, the State was

       required to prove that Sheets,


               a person of at least twenty-one (21) years of age, did perform or
               submit to other sexual conduct as defined in Indiana Code
               Section 35-31.5-2-221.5. He penetrated [R.S.]’s sex organ with an
               object, to wit: his finger, a child under the age of fourteen years
               (14)[.]



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2027 | June 28, 2019   Page 7 of 14
       Appellant’s App. p. 16. As alleged in the charging information, the State proved

       that Sheets inserted his finger into R.S.’s vagina. In a video interview that was

       played before the jury, R.S. stated that Sheets made her “hold this of his and he

       put his finger down there on mine.”2 Ex. Vol., State’s Ex. 7 at 15:06–15:15.

       Further, R.S. told the forensic interviewer that Sheets touched her inside of her

       “monkey,” meaning that Sheets would place his finger inside R.S.’s labia

       majora. Tr. Vol. II, pp. 213-16.; Tr. Vol. III, pp. 5-6. From this evidence, the

       State proved that Sheets committed Level 1 felony child molesting.


[16]   To convict Sheets of Count II Level 4 felony child molesting, the State was

       required to prove that Sheets


               did perform fondling or touching of [R.S.]’s sex organ, a child
               under the age of fourteen years, with the intent to arouse or
               satisfy the sexual desires of the child or defendant[.]


       Appellant’s App. p. 16. In support of the Count II Level 4 felony child

       molesting conviction, the State proved that Sheets touched R.S.’s genitals but

       did not penetrate on more than one occasion. In a video statement, R.S. told

       the interviewer that whenever Sheets touched her, he would do so under her

       clothes, engaging in skin-to-skin contact. Tr. Vol. II, pp. 213-16.




       2
         By pointing to her own body parts and body parts on two diagrams of the male and female body, R.S.
       indicated that Sheets made her touch his penis and put his finger in her sex organ.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2027 | June 28, 2019                 Page 8 of 14
[17]   The prosecutor clearly explained to the jury that it had to rely on distinct

       evidence in finding Sheets guilty under each count. Tr. Vol. III, pp. 38-40. The

       jury could find Sheets guilty under Count I (other sexual conduct) based on one

       of the fifty incidents and guilty under Count II (fondling or touching of a minor)

       based on a different instance out of the fifty incidents. Id. at 38. If the jury did

       not avail itself of that route, “the only other option” it had was to find Sheets

       guilty of Count I (other sexual conduct) based on the first time R.S. was

       molested and guilty of Count II (fondling or touching of a minor) based on the

       last time R.S. was molested, or vice versa. Id. at 38-39. The prosecutor’s

       statements to the jury in closing arguments made it clear that the jury had to

       rely on different facts to convict Sheets of the two separate counts of “other

       sexual conduct” and “fondling or touching of a minor.”


[18]   The trial court further instructed the jury that they had to consider “the law and

       the evidence as it may apply to each count individually and separately from the

       other counts.” Appellant’s App. p. 126; Tr. Vol III, p. 57. Juries are presumed

       to fulfill their oath and follow the court’s instructions. Tabor v. State, 461 N.E.2d

       118, 125 (Ind. 1984). Given the evidence admitted at trial, counsel’s arguments

       and the court’s instructions, we may reasonably presume that the jury identified

       distinct, separate evidence for each count when finding Sheets guilty of each

       count.

[19]   Although the charged acts often occurred together, there was independent and

       distinct evidence of both penetration and touching to support the Level 1 felony

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2027 | June 28, 2019   Page 9 of 14
       and Level 4 felony child molesting convictions. See Sloan, 947 N.E.2d at 924

       (rejecting the defendant’s double jeopardy argument because the defendant

       penetrated the victim’s vagina numerous times and on multiple occasions

       fondled and touched her breasts). Moreover, the fact that Sheets committed

       numerous acts, over fifty times, of child molesting “greatly weighs against”

       Sheets argument. See id. We conclude that there is no reasonable possibility that

       the jury used the same evidentiary facts to establish both the essential elements

       of the Level 1 felony child molesting charges and the essential elements of the

       Level 4 felony child molesting charges. Consequently, there is no double

       jeopardy violation.


                                          II. Inappropriate Sentence

[20]   Sheets argues that his aggregate forty-two-year sentence is inappropriate in light

       of the nature of the offense and the character of the offender. Specifically,

       Sheets argues that his sentence is inappropriate because he has no prior criminal

       history, has stable employment, R.S. was not physically harmed or threatened

       during the commission of his offenses, and approximately twenty-five

       individuals wrote letters to the trial court in support of mitigating his sentence.


[21]   Although a trial court may have acted within its lawful discretion in imposing a

       sentence, Article 7, Sections 4 and 6 of the Indiana Constitution authorize

       independent appellate review and revision of sentences through Indiana

       Appellate Rule 7(B), which provides that a court “may revise a sentence

       authorized by statute if, after due consideration of the trial court’s decision, the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2027 | June 28, 2019   Page 10 of 14
       Court finds that the sentence is inappropriate in light of the nature of the offense

       and the character of the offender.” Reid v. State, 876 N.E.2d 1114, 1116 (Ind.

       2007) (citing Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007)). The

       defendant has the burden of persuading us that his sentence is inappropriate. Id.

       Finally, although we have the power to review and revise sentences, “[t]he

       principal role of appellate review should be to attempt to leaven the outliers,

       and identify some guiding principles for trial courts and those charged with

       improvement of the sentencing statutes, but not to achieve a perceived ‘correct’

       result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).


[22]   In this case, Sheets was ordered to serve a thirty-year advisory sentence for the

       Level 1 felony conviction and the advisory six-year sentence for each Level 4

       felony conviction. See Ind. Code §§ 35-50-2-4 & 5.5. The advisory sentence is a

       helpful guidepost for ensuring fairness, proportionality, and transparency in

       sentencing. Hamilton v. State, 955 N.E.2d 723, 726 (Ind. 2011) (citing Ind. Code

       § 35-50-2.1-3 (2008), which defined “advisory sentence” as “a guideline

       sentence that the court may voluntarily consider as the midpoint between the

       maximum sentence and the minimum sentence”). And because the “advisory

       sentence is the starting point our General Assembly has selected as an

       appropriate sentence for the crime committed, the defendant bears a

       particularly heavy burden in persuading us that his sentence is inappropriate

       when the trial court imposes the advisory sentence.” Fernbach v. State, 954

       N.E.2d 1080, 1089 (Ind. Ct. App. 2011) (citing Golden v. State, 862 N.E.2d


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2027 | June 28, 2019   Page 11 of 14
       1212, 1216 (Ind. Ct. App. 2007), trans. denied), trans. denied). Sheets was also

       ordered to serve consecutive sentences due to the heinous nature of his offenses.

[23]
       Crimes against children are particularly contemptible. See Singer v. State, 674

       N.E.2d 11 (Ind. Ct. App. 1996). However, our supreme court and this court

       have found in various instances the imposition of consecutive sentences in child

       molest cases to be inappropriate. See Rivers v. State, 915 N.E.2d 141 (Ind. 2009)

       (finding that consecutive sentences totaling sixty years for two counts of child

       molesting to be inappropriate and revising to concurrent terms of thirty years);

       Monroe v. State, 886 N.E.2d 578, 580 (Ind. 2008) (explaining that consecutive

       sentences totaling 100 years for five counts of child molesting inappropriate and

       revising to concurrent terms of fifty years); Walker v. State, 747 N.E.2d 536, 538

       (Ind. 2001) (imposing consecutive sentences totaling eighty years for two counts

       of child molesting was inappropriate and revised to concurrent terms of forty

       years); Laster v. State, 918 N.E.2d 428, 434 (Ind. Ct. App. 2009) (consecutive

       sentences totaling sixty-four years for two counts of child molesting

       inappropriate, revised to concurrent terms of thirty-six years). But based on our

       review of the record, we are unconvinced that revision is warranted here

       because both consecutive sentences were suspended to probation for a total of

       twelve years.

[24]   Concerning the nature of the offense, Sheets repeatedly molested five-year-old

       R.S. more than fifty times over two-and-a-half years. The molestation included

       fondling and penetration of R.S.’s sex organs during a time when R.S. was

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2027 | June 28, 2019   Page 12 of 14
       vulnerable and in need of her grandfather’s support and protection. R.S.

       testified that after the incidents, “whenever [she would] stand up it kind of

       hurt.” Ex. Vol., State’s Ex. 7 at 16:41-17:31.


[25]   “A harsher sentence is [] more appropriate when the defendant has violated a

       position of trust that arises from a particularly close relationship between the

       defendant and the victim, such as a parent-child. . . relationship.” Hillenburg v.

       State, 777 N.E.2d 99, 108 (Ind. Ct. App. 2002). There is no question in this case

       that Sheets violated his position of trust with R.S. when he subjected her to

       repeated acts of molestation. Sheets was R.S.’s “favorite grandpa,” and she

       lived with Sheets due to instability in R.S.’s parents’ lives. Tr. Vol. II, p. 141.

[26]   Concerning the character of the offender, Sheets has no prior criminal history.

       Sheets also cooperated in part with the police and was gainfully employed.

       Although Sheets may have been a productive member of society, the severe and

       grotesque nature of Sheets’ actions toward his own granddaughter support the

       trial court’s decision to impose advisory sentences and to order the sentences to

       run consecutively. Sheets has not met his substantial burden of persuading us

       that his sentence is inappropriate in light of the nature of the offense and the

       character of the offender.


                                                 Conclusion
[27]   Sheets’s convictions for Count I child molesting and Count II child molesting

       do not violate the prohibition against double jeopardy. In addition, Sheets’s

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2027 | June 28, 2019   Page 13 of 14
aggregate forty-two-year sentence is not inappropriate in light of the nature of

his offense and his character. Accordingly, we affirm Sheets’s convictions for

child molesting and the sentences imposed.


Vaidik, C.J., and Crone, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2027 | June 28, 2019   Page 14 of 14
