MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Oct 11 2018, 8:58 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
Nicole A. Zelin                                          Curtis T. Hill, Jr.
Pritzke & Davis, LLP                                     Attorney General
Greenfield, Indiana
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Steven R. Grogan,                                        October 11, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-302
        v.                                               Appeal from the Hancock Circuit
                                                         Court
State of Indiana,                                        The Honorable Jeffrey C. Eggers,
Appellee-Plaintiff                                       Judge Pro Tem
                                                         Trial Court Cause No.
                                                         30C01-1701-F3-59



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-302 | October 11, 2018                Page 1 of 11
                                             Case Summary
[1]   A jury found Steven Grogan guilty of three counts of level 3 felony rape and

      one count of class B misdemeanor battery, and the trial court sentenced him to

      twenty-seven years. On appeal, Grogan contends that his rape convictions are

      not supported by sufficient evidence, that the trial court erred in instructing the

      jury, and that his sentence is inappropriate in light of the nature of the offenses

      and his character. We affirm.


                                 Facts and Procedural History
[2]   The facts most favorable to the jury’s verdicts are as follows. In June 1999,

      when Grogan was eighteen, his girlfriend gave birth to their daughter, C.G.

      Grogan joined the military, and C.G. lived with her mother in Kentucky.

      Grogan obtained custody of C.G. when she was thirteen, and she moved into

      the home that Grogan shared with another girlfriend and their young son. In

      December 2015, Grogan found out that C.G. was talking to a male high school

      classmate, and “he did not like that fact at all.” Tr. Vol. 2 at 134. He told C.G.

      “that he believed that he’s the only man that [she] needed, the only man that

      [she] needed to love and that he could give [her] everything that [she] needed

      from a man.” Id. Their relationship “started to become more of a romantic

      relationship not just your average Father/Daughter relationship.” Id. at 136.

      Grogan “started to be much more touchy with [C.G.]” and “would say that

      [she] had a nice butt, that [her] butt looked nice[,]” that she had “a nice body.”

      Id.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-302 | October 11, 2018   Page 2 of 11
[3]   During Christmas break, Grogan told C.G. that she should “just let” him

      perform oral sex on her and that “it would feel good.” Id. at 138. He led her

      into her bedroom, removed her shorts and underwear, and placed his mouth on

      her genitals. C.G. felt that she had to participate because Grogan “had

      complete control over [her]” and “because of his anger I mean you don’t – you

      don’t want to see him angry, it’s – it’s very frightening and it was very hard.”

      Id. at 140. C.G.’s “life was already so bad and [she] knew it was going to

      become even more of a hell if [she] didn’t give him what he wanted.” Id. She

      knew “if [she] didn’t give him what he wanted he would get even more angry.”

      Id. at 141. She had seen Grogan angry “[m]any times.” Id. He would “usually

      … break things[,]” but he had also physically abused her and others in the past.

      Id.


[4]   Thereafter, Grogan engaged in sexual activity with C.G. almost “daily[.]” Id.

      at 143. He had sexual intercourse with C.G. “[p]robably over three hundred

      times.” Id. at 144. He also “made [her] give him oral sex” on multiple

      occasions. Id. at 149. C.G. “would gag very badly, but for some odd reason he

      enjoyed that, like he was satisfied by that and he like wanted that to happen

      more.” Id. at 181. Grogan never held C.G. down or brandished any weapon,

      but if C.G. “turned him down he would fly off the handle.” Id. at 147-48. On

      one occasion, Grogan “kept trying to pull down [her] shorts[,]” and C.G. “was

      like no please no please no.” Id. at 148. He yelled at her and was “stomping up

      and down the stairs pushing [her] around.” Id. “[I]n order to calm him down

      [she] ended up having to give in like [she] always did.” Id. On another

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-302 | October 11, 2018   Page 3 of 11
      occasion, Grogan tried to “squeeze” his penis into C.G.’s anus, which “was just

      excruciating”; she “screamed and cried” and “couldn’t take it.” Id. at 151.


[5]   In the spring of 2016, C.G. secretly went to prom with her male classmate.

      Grogan found out and repeatedly slapped her face, leaving “a bad mark on

      [her] lip.” Id. at 157. In September, C.G. was removed from Grogan’s home

      by the Department of Child Services. In December, C.G. told her therapist that

      Grogan had sexually abused her.


[6]   The State charged Grogan with three counts of level 3 felony rape (one relating

      to sexual intercourse and two relating to “other sexual conduct”1), one count of

      level 5 felony incest, and one count of class B misdemeanor battery. After a

      trial, the jury found him guilty as charged. The trial court merged the incest

      conviction with the rape convictions and imposed consecutive nine-year

      executed sentences on the latter, to run concurrent with a 180-day sentence on

      the battery conviction, for an aggregate sentence of twenty-seven years. Grogan

      now appeals. Additional facts will be provided below.




      1
        Indiana Code Section 35-31.5-2-221.5 defines “other sexual conduct” in pertinent part as an act involving
      the sex organ of one person and the mouth or anus of another person.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-302 | October 11, 2018                  Page 4 of 11
                                     Discussion and Decision

            Section 1 – Grogan’s rape convictions are supported by
                             sufficient evidence.
[7]   Indiana Code Section 35-42-4-1(a) provides in relevant part that level 3 felony

      rape is knowingly or intentionally having sexual intercourse or other sexual

      conduct with another person when the other person is compelled by force or

      imminent threat of force. Grogan contends that the State failed to present

      sufficient evidence that he compelled C.G. to have sexual intercourse and other

      sexual conduct by force or imminent threat of force. In reviewing a sufficiency

      of the evidence claim, we neither reweigh the evidence nor assess the credibility

      of witnesses. Bell v. State, 31 N.E.3d 495, 500 (Ind. 2015). We respect the jury’s

      exclusive province to weigh conflicting evidence, and we “must consider only

      the probative evidence and reasonable inferences supporting the verdict.”

      McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). “A conviction can be

      sustained on only the uncorroborated testimony of a single witness, even when

      that witness is the victim.” Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012).

      “[I]f the testimony believed by the trier of fact is enough to support the verdict,

      then the reviewing court will not disturb it.” Bell, 31 N.E.3d at 500.


[8]   Our supreme court has explained that “[t]he force necessary to sustain a rape

      conviction need not be physical; it may be constructive or implied from the

      circumstances.” Jones v. State, 589 N.E.2d 241, 242 (Ind. 1992). In arguing that

      the State failed to prove that he used force or imminent threat of force to

      compel C.G. to engage in sexual activity, Grogan points to C.G.’s testimony

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-302 | October 11, 2018   Page 5 of 11
       that he never held her down or used a weapon. He also asserts that “C.G.’s

       statements that [he] would pout or that she feared [he] would not allow her to

       engage in extra-curricular activities outside the home if she did not submit to

       sexual intercourse or other sexual conduct [do] not lead to an inference of

       constructive or implied force.” Appellant’s Br. at 14.


[9]    Grogan’s argument disregards C.G.’s testimony that he “she worried that he

       would “fly off the handle” if she spurned his sexual advances, and that he had

       physically abused her when he got angry.2 Tr. Vol. 2 at 148. It also disregards

       C.G.’s testimony that he once “push[ed her] around” when she resisted his

       entreaties until she “ended up having to give in like [she] always did.” Id.3 This

       testimony, if believed, is sufficient to support a verdict that Grogan compelled

       C.G. to engage in sexual intercourse and other sexual conduct by force or

       imminent threat of force, and therefore we will not disturb it.4


               Section 2 – Grogan has waived his claim of instructional
                                       error.
[10]   Grogan also contends that the trial court committed reversible error in giving

       the following jury instruction tendered by the State:




       2
           Grogan’s assertions to the contrary on pages 9 and 13 of his initial brief are not well taken.
       3
        The State emphasizes the forcefulness with which Grogan engaged in oral and anal sex. Evidence that a
       person forcefully engaged in sexual activity is not dispositive of whether force was used to compel the sexual
       activity.
       4
        We decline Grogan’s invitation to second-guess the jury’s decision under the incredible dubiosity rule,
       because C.G.’s testimony was not “inherently contradictory, equivocal, or the result of coercion[.]” Moore v.
       State, 27 N.E.3d 749, 756 (Ind. 2015). Grogan’s reliance on pre-Moore authority is misplaced.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-302 | October 11, 2018                      Page 6 of 11
               Although an element of the offense of sexual battery is that the
               victim was compelled to submit to the touching by force or the
               imminent threat of force, the force need not be physical or
               violent, but may be implied from the circumstances. Evidence
               that a victim did not voluntarily consent to a touching does not,
               in itself, support the conclusion that the defendant compelled the
               victim to submit to the touching by force or threat of force.
               However, it is the victim’s perspective, not the assailant’s, from
               which the presence or absence of forceful compulsion is to be
               determined. This is a subjective test that looks to the victim’s
               perception of the circumstances surrounding the incident in
               question. The issue is thus whether the victim perceived the
               aggressor’s force or imminent threat of force as compelling her
               compliance.


       Tr. Vol. 4 at 93.


[11]   “Generally, jury instructions are within the sole discretion of the trial court, and

       we will reverse the trial court’s decision only for an abuse of that discretion.”

       Harris v. State, 884 N.E.2d 399, 402 (Ind. Ct. App. 2008), trans. denied. “Jury

       instructions are to be considered as a whole and in reference to each other, and

       we will not reverse the trial court’s decision as an abuse of discretion unless the

       instructions as a whole mislead the jury as to the law of the case.” Id. (quoting

       Brown v. State, 830 N.E.2d 956, 966 (Ind. Ct. App. 2005)). “To be entitled to a

       reversal, the defendant must affirmatively show that the erroneous instruction

       prejudiced his substantial rights.” Id.


[12]   The foregoing instruction derives from Chatham v. State, in which another panel

       of this Court used that language to address the defendant’s claim that the

       evidence was insufficient to support his conviction for sexual battery. 845

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-302 | October 11, 2018   Page 7 of 11
N.E.2d 203, 206-07 (Ind. Ct. App. 2006). Grogan notes that our supreme court

has stated that “[t]he mere fact that certain language or expression [is] used in

the opinions of this Court to reach its final conclusion does not make it proper

language for instructions to a jury.” Ludy v. State, 784 N.E.2d 459, 462 (Ind.

2003) (second alteration in Ludy) (quoting Drollinger v. State, 274 Ind. 5, 25, 408

N.E.2d 1228, 1241 (1980)). He further notes that the court in Newbill v. State,

citing Ludy, discouraged trial courts from giving this similar instruction:


        It is the victim’s perspective, not the assailant’s, from which the
        presence or absence of forceful compulsion is to be determined.
        This is a subjective test that looks to the victim’s perception of the
        circumstances surrounding the incident in question. The issue is
        whether the victim perceived the aggressor’s force or imminent
        threat of force as compelling her compliance. The element of
        force may be inferred from the circumstances.


884 N.E.2d 383, 393 (Ind. Ct. App. 2008), trans. denied. The Newbill court

agreed with the defendant, who had been convicted of rape, that the instruction

“may not properly reflect the perspective from which a jury should consider the

evidence of forceful compulsion” and opined that “the ‘perspective’ for a jury’s

consideration of the evidence of forceful compulsion in a rape trial might better

be described as either the ‘objective perspective of the victim’ or the ‘reasonable




Court of Appeals of Indiana | Memorandum Decision 18A-CR-302 | October 11, 2018   Page 8 of 11
       perspective of the victim.’” Id.5 The Newbill court “discourage[d] trial courts

       from using this language as an instruction in the future” but went on to consider

       the instructions as a whole and determined that the trial court did not abuse its

       discretion “by giving the instruction at issue.” Id. at 393-94.


[13]   Beyond mentioning the Newbill court’s admonishment, Grogan has failed to

       affirmatively show that the instruction in this case,6 let alone the instructions as

       a whole, prejudiced his substantial rights. “Bald assertions of error unsupported

       by either cogent argument or citation to authority result in waiver of any error

       on review.” Pasha v. State, 524 N.E.2d 310, 314 (Ind. 1988). We find that

       Grogan has waived any instructional error and therefore affirm his convictions.


           Section 3 – Grogan has failed to establish that his sentence is
                                 inappropriate.
[14]   Finally, Grogan asks us to reduce his twenty-seven-year sentence pursuant to

       Indiana Appellate Rule 7(B), which provides that we may revise a sentence

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

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




       5
           The defendant in Newbill had posited
                that “a female may have been constantly beaten in the past, to the extent that she fears telling
                any man ‘no’ when he asks her for sex, least [sic] she again be beaten. A man who otherwise
                innocently has sex with this woman would be committing rape because from her perspective,
                she perceived any requests for sex as a threat of force which compelled her to have sex.”
       884 N.E.2d at 393 n.6 (quoting Appellant’s Br. at 14-15).
       6
         Grogan was not charged with sexual battery, which has been held not to be a lesser included offense of
       rape. Thompson v. State, 761 N.E.2d 467, 469-70 (Ind. Ct. App. 2002). Grogan makes no argument in this
       regard.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-302 | October 11, 2018                       Page 9 of 11
       the character of the offender. “The principal role of appellate review under

       Rule 7(B) is to attempt to leaven the outliers, not to achieve a perceived

       ‘correct’ result in each case.” Threatt v. State, 105 N.E.3d 199, 200 (Ind. Ct.

       App. 2018), trans. denied. “Whether we regard a sentence as inappropriate turns

       on 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.’” Evans v.

       State, 85 N.E.3d 632, 636 (Ind. Ct. App. 2017) (quoting Cardwell v. State, 895

       N.E.2d 1219, 1224 (Ind. 2008)). “[T]he question under Appellate Rule 7(B) is

       not whether another sentence is more appropriate; rather, the question is

       whether the sentence imposed is inappropriate. The defendant bears the burden

       of persuading the appellate court that his or her sentence is inappropriate.”

       Threatt, 105 N.E.3d at 200 (citation omitted).


[15]   “The advisory sentence is the starting point selected by the legislature as an

       appropriate sentence for the crime committed.” Reis v. State, 88 N.E.3d 1099,

       1104 (Ind. Ct. App. 2017). The sentencing range for a level 3 felony is three to

       sixteen years, with an advisory sentence of nine years. Ind. Code § 35-50-2-

       5(b). Grogan received the advisory sentence for each of his rape convictions.

       His only argument regarding the nature of those offenses is premised on a

       “deviation from the advisory sentence[,]” which did not occur here.

       Appellant’s Br. at 19. In any event, Grogan’s serial raping of his teenaged

       daughter in her own home, which left her with “nightmares and scars[,]” does

       not support a sentence reduction. Tr. Vol. 4 at 129 (C.G.’s testimony at

       sentencing hearing).


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-302 | October 11, 2018   Page 10 of 11
[16]   As for Grogan’s character, we acknowledge that he had no prior criminal or

       juvenile history. But we cannot overlook Grogan’s betrayal of his position of

       trust, which the trial court found to be an aggravating factor. “Abusing a

       position of trust is, by itself, a valid aggravator that may support a maximum

       sentence.” Baumholser v. State, 62 N.E.3d 411, 417 (Ind. Ct. App. 2016)

       (emphasis added), trans. denied (2017). Grogan argues that his sentences should

       be concurrent,7 but our supreme court has cautioned that “additional criminal

       activity directed to the same victim should not be free of consequences.”

       Cardwell, 895 N.E.2d at 1225. Grogan’s “additional criminal activity” took the

       form of sexually assaulting his teenaged daughter almost daily for nine months,

       which calls for serious penal consequences. Grogan has failed to persuade us

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

       character, and therefore we affirm.


[17]   Affirmed.


       Najam, J., and Pyle, J., concur.




       7
         Grogan’s argument is premised on Kocielko v. State, 943 N.E.2d 1282 (Ind. Ct. App. 2011), opinion on reh’g,
       trans. denied, which is inapposite because it involved a single encounter with one victim.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-302 | October 11, 2018                  Page 11 of 11
