Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                  Jan 14 2015, 10:03 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:

TIMOTHY P. BRODEN                                  GREGORY F. ZOELLER
Lafayette, Indiana                                 Attorney General of Indiana

                                                   CHANDRA K. HEIN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                                IN THE
                     COURT OF APPEALS OF INDIANA

TRAVIS WILSON,                                     )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 79A02-1405-CR-314
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                           The Honorable Randy J. Williams, Judge
                               Cause No. 79D01-1305-FB-13


                                        January 14, 2015

                MEMORANDUM DECISION - NOT FOR PUBLICATION

BARTEAU, Senior Judge
          Travis J. Wilson appeals his conviction by jury of Criminal Deviate Conduct as a

Class B felony.1 We affirm.

          Wilson raises two issues, which we restate as:

          I.      Whether any error in the admission of an alleged evidentiary harpoon
                  was harmless.

          II.     Whether Wilson’s sentence is inappropriate.

          On May 24, 2013, following the last day of their freshman year in high school, J.O.

and A.C., both fourteen years old, spent the night at the home of their friend, A.W., also

fourteen years old. Wilson, A.W.’s nineteen-year-old brother, invited four friends over for

a night of drinking alcohol and playing drinking games such as beer pong and spin the

bottle with Wilson’s father around a fire pit in the backyard. During the course of the

evening, Wilson went into the house where the girls were watching television and

“h[anging] out,” and gave the girls what they thought was orange soda in red cups. Tr. p.

47.

          After drinking the orange soda, J.O. felt “weird.” Id. at 105. Her face felt hot and

her head “felt really like floating.” Id. J.O. had never felt like this before. Her friends

noticed that she was acting “really crazy” as she began dancing around the room. Id. at 51.

After it was clear to Wilson that J.O. was intoxicated, Wilson commented to his sister,

“awe, [J.O.]’s a little drunk isn’t she?” Id. at 381. At 1:46 a.m., Wilson texted his sister

that J.O. was “cute.” State’s Exhibit 39.




1
    Ind. Code § 35-42-4-2. Repealed by P.L.158-2013, SEC.438 and P.L.214-2013, SEC.37, eff. July 1, 2014.
                                                     2
      The three young ladies eventually went to sleep. A.W. slept on her bed, and J.O.

and A.C. slept on the floor. At some point during the night, J.O. woke up to Wilson moving

his finger in and out of her vagina. J.O. was able to identify Wilson because the door was

open and there was a light from the hallway shining into the bedroom. J.O. jumped up on

A.W.’s bed, and Wilson stood by the closet in A.W.’s bedroom for 20 to 30 minutes making

a repeated noise as if he was rubbing his clothes. When Wilson left the room, J.O. locked

the door and tried to wake up A.W. and A.C. Unsuccessful, J.O. went back to sleep.

      The following morning, J.O. told the girls what had happened. A.W. said she would

tell her dad, and A.C. texted her mother to pick up the two girls. While they were waiting

for A.C.’s mother to arrive, Wilson’s father apologized to J.O. When A.C.’s mother

arrived, A.C. and J.O. got into the car. J.O was sobbing. Between sobs, she was able to

tell A.C.’s mother that Wilson “had touched her.” Tr. p. 37.

      A.C.’s mother contacted J.O.’s mother, and they took J.O. to the hospital. During

an examination, Sexual Assault Nurse Catherine Clark noticed abrasions on J.O.’s exterior

genitals. Based on Nurse Clark’s training and experience, such injuries are typically

sustained through the “forcible prodding of an area.” Id. at 235. Nurse Clark took swabs

from J.O.’s genitals and collected J.O.’s underwear.       Tippecanoe County Sheriff’s

Department Deputy Aaron Gilman was dispatched to Wilson’s residence, where he found

an orange soda bottle in the back yard on a table next to the fire pit. Tippecanoe County

Sheriff’s Department Detective Matthew Couch interviewed Wilson, who admitted to

drinking wine coolers and an alcoholic beverage mixed with orange soda in a red cup.

Wilson, however, denied giving alcohol to the girls or touching J.O.


                                            3
       The State charged Wilson with Criminal Deviate Conduct as a Class B felony,

Sexual Misconduct with a Minor as a Class C felony, and Sexual Misconduct with a Minor

as a Class D felony. At trial, the State introduced evidence that Amylase2 consistent with

that of Wilson or one of his male relatives was found on J.O’s underwear and external

genitals.   There were no allegations that Wilson’s father touched J.O.’s genitals or

underwear.

       Following the direct and cross examinations of Wilson’s father, a juror submitted

the following question: “On the morning after the night in question what exactly were you

apologizing to [J.O.] about?” Id. at 357. Wilson did not object to the question, and

Wilson’s father responded as follows:

               She had told me about an incident occurring and I felt that - - I felt
       horrible that she felt something had happened and instantly I would try and
       comfort her and tell her I’m sorry. I mean I never – I never expected anything
       of that nature to be brought to my attention and I immediately felt obligated
       to comfort her and apologize.

Id.

       Thereafter, the parties discussed an unrelated matter outside the presence of the jury.

When the jurors returned to the courtroom, the following colloquy ensued:

       STATE:          Sir you just responded to the juror[’]s question and part of your
       response was that you were apologizing to [J.O.] because you felt horrible
       that she felt that something had happened[,] correct?

       WILSON’S FATHER:                Correct.

       STATE:        And previously you said you admitted that you had given the
       statement that [J.O.] had no reason to lie[,] correct?

       WILSON’S FATHER:                Correct.
2
 Amylase is an enzyme found in the salivary glands. See MedicineNet.com.
http://www.medicinenet.com/script/main/art.asp?articlekey=20630 (last visited on Dec. 29, 2014).
                                                   4
       STATE:        And did you also previously tell Detective Couch in my heart
       I think something happened?

Id. at 362-63.

       Wilson objected, and the trial court conducted a side bar conference. Wilson moved

to strike the State’s question and requested a mistrial. The trial court apparently denied the

mistrial while counsel were talking off the record. When the parties went back on the

record, the State withdrew the question. The jury subsequently convicted Wilson of all

three charges.

       Evidence presented at the sentencing hearing revealed that Wilson had previously

inappropriately touched his sister A.W., but it had not been reported to the police. J.O.’s

mother testified that J.O.’s grades have dropped from A’s and B’s to D’s and F’s, she has

lost some of the life in her eyes, she struggles with being alone, and she suffers from

anxiety.

       Following the presentation of evidence, the trial court noted that alcohol had been

illegally consumed by nineteen-year-old Wilson, who then illegally provided alcohol to

three fourteen-year-old girls, and committed a sexual offense against one of the girls in the

presence and within the hearing of the two other girls. In addition, although defense

counsel argued that Wilson had a good family support system, the trial court pointed out

that Wilson’s father was playing beer pong with Wilson and his friends that night. The

trial court merged the Class C and D felonies with the Class B felony, and entered judgment

of conviction on the Class B felony. The trial court then sentenced Wilson to thirteen years




                                              5
with eleven years executed and two years on probation for the Class B felony. Wilson

appeals his conviction and sentence.

       Wilson first argues that the deputy prosecutor engaged in misconduct when she

“injected an evidentiary harpoon into the proceedings when questioning Wilson’s father in

follow-up to a jury question.” Appellant’s Br. p. 5. An evidentiary harpoon is the placing

of inadmissible evidence before the jury so as to prejudice the jurors against the defendant.

Perez v. State, 728 N.E.2d 234, 237 (Ind. Ct. App. 2000), trans. denied. Here, however,

we need not determine whether the deputy prosecutor injected an evidentiary harpoon into

the proceedings because when the jury’s determination is supported by independent

evidence of guilt and it was likely that the evidentiary harpoon did not play a part in the

defendant’s conviction, any error is harmless. See id.

       Our review of the evidence in this case reveals that nineteen-year-old Wilson gave

fourteen-year-old J.O. alcohol mixed in orange soda for the purpose of intoxicating her.

While J.O. was sleeping in a room with two other fourteen-year-old girls, she woke up to

Wilson moving his finger in and out of her vagina. J.O. was able to identify Wilson because

the door was open and the hallway light was shining into the bedroom. In addition, there

was physical evidence such as the injuries on J.O’s genitals which are typically sustained

through the “forcible prodding of an area,” and the presence of Amylase consistent with

that of Wilson or one of his male relatives on J.O’s external genitals and underwear. Tr.

p. 235. In light of this independent evidence of guilt, it was likely that even if the State

injected an evidentiary harpoon into the proceedings, this harpoon did not play a part in

Wilson’s conviction. Any error is therefore harmless. See Perez, 728 N.E.2d at 234.


                                             6
         Wilson also argues that his thirteen-year sentence is inappropriate. Specifically, he

contends that his “sentence should be revised to the advisory term of ten (10) years with

seven (7) years to be executed in the Department of Correction and three (3) years

suspended to probation.”3 Appellant’s Br. p. 11.

         Article VII, section 4 of the Indiana Constitution authorizes independent appellate

review of sentences. Rice v. State, 6 N.E.3d 940, 946 (Ind. 2014). This review is

implemented through Indiana Appellate Rule 7(B), which states that we may revise a

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

decision, the sentence is inappropriate in light of the nature of the offense and the character

of the offender. In determining whether a sentence is inappropriate, this Court looks at the

culpability of the defendant, the severity of the crime, the damage done to others, and

myriad other factors that come to light in a given case. Cardwell v. State, 895 N.E.2d 1219,

1224 (Ind. 2008). Wilson bears the burden on appeal of persuading us that his sentence is

inappropriate. See Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

         As to the nature of the offense, nineteen-year-old Wilson drank alcohol and gave

fourteen-year-old J.O. enough alcohol to intoxicate her. When J.O. woke up in the middle

of the night, Wilson was moving his finger in and out of her vagina in the presence of the

other two fourteen-year-old girls. He then stood in the bedroom by the closet for 20 to 30

minutes making a repeated noise as if he was rubbing his clothes. Because of Wilson’s

actions, J.O.’s grades have dropped, she suffers from anxiety, and she struggles with being

alone.


3
  The advisory sentence for a Class B felony is ten years, with a sentencing range of six to twenty years.
Ind. Code § 35-50-2-5 (2005).
                                                    7
       As to the character of the offender, we note that the significance of criminal history

in assessing a defendant’s character is based on the gravity, nature and number of prior

offenses in relation to the current offense. Moss v. State, 13 N.E.3d 440, 447 (Ind. Ct. App.

2014), trans. denied. Even a minor criminal history is a poor reflection of a defendant’s

character. Id. at 448. Further, “Wilson does not dispute that a sentencing court may

consider uncharged crimes in determining [his] character and risk that he will reoffend.”

See Kent v. State, 675 N.E.2d 332, 341 (Ind. 1996). Here, Wilson has a history of underage

consumption of alcohol. He also inappropriately touched his sister A.W. although it was

not reported. Considering the nature of the offense and Wilson’s character, Wilson has not

met his burden of proving that his sentence is inappropriate.

       Affirmed.

FRIEDLANDER, J., and BRADFORD, J., concur.




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