MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                   Jul 14 2017, 8:35 am
court except for the purpose of establishing                                    CLERK
the defense of res judicata, collateral                                     Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Esther Martin,                                           July 14, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A05-1605-CR-1016
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Teresa L. Cataldo,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         20D03-1110-FA-27



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A05-1605-CR-1016 | July 14, 2017                Page 1 of 14
                                             Case Summary
[1]   Esther Martin appeals her convictions and eighty-year sentence for two counts

      of Class A felony child molesting. We affirm in part, reverse in part, and

      remand.


                                                     Issues
[2]   The issues before us are:


              I.       whether the trial court properly admitted Martin’s
                       recorded interview with police into evidence; and


              II.      whether her sentence is inappropriate.


                                                     Facts
[3]   Martin helped provide child care to brothers B.H. and A.H. at a daycare that

      Martin’s mother, Arlene Martin, operated out of her home in rural Elkhart

      County. Martin sometimes was left alone with the children while Arlene cared

      for her own mother. Martin lived with her parents and did not work outside the

      home.


[4]   In January 2011, B.H. told his father that Martin had been touching him

      inappropriately. At this time, B.H. was ten years old, and Martin was twenty-

      six. B.H. believed that the touching began when he was six or seven years old.

      B.H. said that the first occasion occurred when he was in the bathroom, and

      Martin came in, closed the door, and kissed his “privates.” Tr. p. 923. Further



      Court of Appeals of Indiana | Memorandum Decision 20A05-1605-CR-1016 | July 14, 2017   Page 2 of 14
      similar incidents involving Martin kissing B.H.’s genitals or putting his penis in

      her mouth occurred once or twice a week over the next few years.


[5]   B.H.’s parents reported his statements to police, who then arranged to interview

      Martin. Before the interview, Martin’s father told Detective Ryan Hubbell of

      the Elkhart County Sheriff’s Department that Martin communicated at the level

      of a twelve-year-old child. Detective Hubbell discussed this information with

      coworkers and considered taking Martin to a local child and family advocacy

      center that specializes in child abuse cases for an interview but ultimately

      decided to interview her at the station. Detective Hubbell began the interview

      by explaining Martin’s Miranda rights to her. Martin had never heard of the

      rights before or seen them discussed on television; she and her parents are “Old

      Order” Mennonites. Detective Hubbell went through each of the rights

      individually and attempted to explain them to Martin in language she would

      understand. Martin was not entirely clear as to what an attorney is or does;

      Detective Hubbell explained that an attorney was someone who could give her

      advice like her father did, but who knew more about the law than her father.

      After initialing that she understood each of the rights and signing a waiver of

      her rights, Detective Hubbell began questioning Martin.


[6]   Throughout the eighty-minute-long interview, Martin consistently and

      repeatedly denied ever touching B.H. in a sexual manner. She did say that B.H.

      once tried to look up her dress and that she scolded him, and on at least one

      other occasion, B.H. brushed up against her and touched her and she again

      scolded him. Martin said that B.H. referred to her as his “girlfriend” but that

      Court of Appeals of Indiana | Memorandum Decision 20A05-1605-CR-1016 | July 14, 2017   Page 3 of 14
      she was uncomfortable being around B.H. as he got older because he talked

      “yucky” and acted “disgusting.” Ex. 2. She also said that B.H. talked about

      “yucky” movies he and his brothers sometimes watched when their parents

      were not home. Id. Martin consistently referred to penises as “pee pees,” and

      at one point asked Detective Hubbell why he was repeatedly talking about

      “peanuts.” Id. Detective Hubbell explained that penises were the same as “pee

      pees.” Id. Martin also said it made her “feel like throwing up” to think about

      kissing a penis. Id.


[7]   Also during the interview, Martin said that ten to fifteen years ago she had a

      “problem” about wanting to touch the “pee pees” of children brought to her

      mother’s daycare but that she had grown out of it. Id. She said that once, when

      she was eleven or twelve, she touched the “pee pee” of a female infant, but her

      mother saw her do it and told her “not to play with their pee pee or whatever.”

      Id. Martin also described one incident, when she was about ten years old, when

      she touched her younger cousin’s penis. Martin said she has prayed regularly

      about her “problem” since she touched the infant girl, and that if she does not

      pray, she feels “rebellious” and wants to kill herself. Id. She said she has never

      had a boyfriend and has no interest in having one or getting married because

      she does not “understand about a lot of stuff.” Id.


[8]   On October 7, 2011, the State charged Martin with two counts of Class A

      felony child molesting. In December 2011, psychologist Gerald Wingard

      evaluated Martin at defense counsel’s request. Dr. Wingard concluded that

      Martin had a full-scale IQ of sixty-two, which placed her in the range of mildly

      Court of Appeals of Indiana | Memorandum Decision 20A05-1605-CR-1016 | July 14, 2017   Page 4 of 14
       mentally handicapped. According to Dr. Wingard, a person’s IQ does not

       change significantly over the course of their life. Dr. Wingard also evaluated

       Martin’s abilities at certain tasks such as reading comprehension, math skills,

       and spelling; the tests indicated Martin pronounced words equivalent to a

       twelve-year-old but only understood words equivalent to a nine year and eight-

       month-old child. Martin had to repeat the fifth grade as a child and did not

       attend school beyond eighth grade.


[9]    Defense counsel did not move to have Martin’s competency to stand trial

       evaluated. However, after a jury had been seated for a trial set to commence on

       July 7, 2014, one of the jurors sent a note to the trial judge asking if Martin’s

       mental state had been evaluated. After receiving that note and speaking with

       Dr. Wingard over the phone, the State agreed to Martin’s request for a mistrial

       and that her competency be evaluated. Dr. Wingard opined that Martin was

       incompetent to stand trial, as did two psychiatrists appointed by the trial court.


[10]   The trial court ordered Martin committed to the Madison State Hospital. After

       three months, a psychologist and a psychiatrist at the hospital agreed that

       Martin was competent to stand trial. They believed that her IQ score of sixty-

       two underestimated her mental abilities and that she was properly diagnosed as

       having low intellectual functioning rather than mild mental retardation.

       Additionally, it was reported that while hospitalized, Martin engaged in

       repeated improper conduct with a fellow patient, such as grabbing her buttocks,

       touching her face and attempting to kiss her, and hugging her. Martin also



       Court of Appeals of Indiana | Memorandum Decision 20A05-1605-CR-1016 | July 14, 2017   Page 5 of 14
       once grabbed a female staff member’s buttocks. Martin denied engaging in this

       behavior or claimed not to remember it.


[11]   Before Martin’s second jury trial commenced, defense counsel moved to

       suppress her interview with Detective Hubbell on the basis that she did not

       freely and voluntarily waive her Miranda rights due to her mental disability.

       The trial court denied this motion. At trial, the interview was played to the

       jury, although Martin’s references to having touched other children when she

       herself was a child were redacted.


[12]   On January 27, 2016, the second jury found Martin guilty of both counts of

       Class A felony child molesting. The trial court sentenced Martin to terms of

       forty years executed on each count, to be served consecutively for a total term

       of eighty years. Martin now appeals.


                                                    Analysis
                                     I. Admission of Police Interview

[13]   Martin first claims the trial court improperly admitted her police interview into

       evidence because she did not understand or knowingly waive her Miranda

       rights. “The admissibility of a confession is controlled by determining from the

       totality of the circumstances whether the confession was made voluntarily and

       was not induced by violence, threats, or other improper influences that

       overcame the defendant’s free will.” Carter v. State, 730 N.E.2d 155, 157 (Ind.

       2000). “The same test determines whether Miranda rights were voluntarily

       waived.” Id. “In evaluating a claim that a statement was not given voluntarily,

       Court of Appeals of Indiana | Memorandum Decision 20A05-1605-CR-1016 | July 14, 2017   Page 6 of 14
       the trial court is to consider the totality of the circumstances, including the

       crucial element of police coercion, the length of the interrogation, its location,

       its continuity, the defendant’s maturity, education, physical condition, and

       mental health.” Wells v. State, 904 N.E.2d 265, 271 (Ind. Ct. App. 2009), trans.

       denied. Violations of Miranda will not result in reversal of a conviction if the

       State can show beyond a reasonable doubt that the error did not contribute to

       the verdict. Rawley v. State, 724 N.E.2d 1087, 1090 (Ind. 2000) (citing Chapman

       v. California, 386 U.S. 18, 24, 87 S. Ct. 824 (1967)). In order to meet this

       standard, the State must demonstrate that the alleged error was unimportant in

       relation to everything else the jury considered on the issue in question, as

       revealed by the record. Alford v. State, 699 N.E.2d 247, 251 (Ind. 1998).


[14]   Here, even if we were to conclude that Martin’s interview with Detective

       Hubbell was conducted in violation of Miranda, in light of her low IQ, we

       conclude any such error in the admission of that interview into evidence would

       be harmless beyond a reasonable doubt. Martin never confessed during that

       interview, and instead repeatedly denied that she initiated any sexual conduct

       with B.H. Rather, she discussed instances of inappropriate behavior by B.H.

       that she rebuffed. Although Martin did mention instances of inappropriate

       sexual behavior by her when she was much younger, those statements were

       redacted when the video was played for the jury. By contrast, B.H. testified

       about the repeated occurrences of sexual conduct by Martin. His pretrial

       forensic interview, describing those occurrences, also was introduced during

       trial. It is difficult to discern that the playing of the interview of the jury could


       Court of Appeals of Indiana | Memorandum Decision 20A05-1605-CR-1016 | July 14, 2017   Page 7 of 14
       have had a substantial impact on its verdict in light of B.H.’s clear testimony.

       In other words, the interview was unimportant in relation to the evidence

       supporting Martin’s conviction and its introduction was harmless error, if error

       at all.1


                                       II. Appropriateness of Sentence

[15]   We now address Martin’s claim that her eighty-year sentence is inappropriate

       under Indiana Appellate Rule 7(B) in light of the nature of the offenses and her

       character. See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), aff’d on r’hg.

       Although Rule 7(B) does not require us to be “extremely” deferential to a trial

       court’s sentencing decision, we still must give due consideration to that

       decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We

       also understand and recognize the unique perspective a trial court brings to its

       sentencing decisions. Id. “Additionally, a defendant bears the burden of

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


[16]   The principal role of Rule 7(B) 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). We “should focus on the forest—the aggregate sentence—rather than



       1
         Martin claims in part in her reply brief that Detective Hubbell improperly bolstered B.H.’s credibility by
       repeatedly stating during the interview that he did not think B.H. had lied when he accused Martin of
       molesting him. However, Martin does not develop a cogent argument supported by citation to authority that
       Detective Hubbell’s statements constituted improper vouching for B.H.

       Court of Appeals of Indiana | Memorandum Decision 20A05-1605-CR-1016 | July 14, 2017            Page 8 of 14
       the trees—consecutive or concurrent, number of counts, or length of the

       sentence on any individual count.” Id. Whether a sentence is inappropriate

       ultimately 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. Id. at 1224. When reviewing the appropriateness of a sentence

       under Rule 7(B), we may consider all aspects of the penal consequences

       imposed by the trial court in sentencing the defendant, including whether a

       portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,

       1025 (Ind. 2010). A conviction for a Class A felony carries a sentencing range

       of twenty to fifty years, with thirty years being the advisory term. 2 Ind. Code §

       35-50-2-4(a).


[17]   With respect to Martin’s character, she has no prior criminal history.

       Generally, leniency should be shown to persons who have not yet been through

       the criminal justice system. Filice v. State, 886 N.E.2d 24, 40 (Ind. Ct. App.

       2008), trans. denied. It also is difficult to place much negative weight upon her

       admission to two instances of inappropriate sexual conduct when she was ten to

       twelve years old. We also note the evidence of Martin’s limited intellectual

       functioning; although there was some disagreement as to the extent of that

       limitation, there does seem to be no doubt that it exists, whether as a result of

       mental disability, a sheltered upbringing with limited education, or a




       2
           Martin committed these offenses before the change from Class A-D to Level 1-6 felonies took effect.


       Court of Appeals of Indiana | Memorandum Decision 20A05-1605-CR-1016 | July 14, 2017              Page 9 of 14
       combination of the two. The several instances of inappropriate conduct that

       were sexual in nature while she was at Madison State Hospital is troubling;

       however, the conduct was not directed toward minors.


[18]   Regarding the nature of the offenses, there is evidence Martin committed

       considerably more than two acts of molestation upon B.H. The events occurred

       repeatedly over a span of several years, beginning when B.H. was about six or

       seven. Martin had a position of trust over B.H. as his babysitter. There is no

       evidence that any of the acts resulted in physical injury to B.H., or that Martin

       used force or threats to coerce B.H. Likewise, there is no evidence that Martin

       victimized anyone other than B.H.


[19]   We acknowledge that, when exercising our power to review and revise a

       sentence, we are not required to compare a defendant’s sentence with sentences

       received by other defendants in similar cases. Corbally v. State, 5 N.E.3d 463,

       471-72 (Ind. Ct. App. 2014). “However, comparison of sentences among those

       convicted of the same or similar offenses can be a proper consideration when

       deciding whether a particular sentence is inappropriate.” Id. at 472. “[A]

       respectable legal system attempts to impose similar sentences on perpetrators

       committing the same acts who have the same backgrounds.” Serino v. State, 798

       N.E.2d 852, 854 (Ind. 2003). With that in mind, we will consider several cases

       with similar scenarios.


[20]   In Harris v. State, 897 N.E.2d 927 (Ind. 2008), the defendant was convicted of

       two counts of Class A felony child molesting based on two incidents of


       Court of Appeals of Indiana | Memorandum Decision 20A05-1605-CR-1016 | July 14, 2017   Page 10 of 14
       intercourse with the eleven-year-old daughter of his live-in girlfriend; the girl

       considered him her father. The two incidents of which he was convicted were

       only two of many incidents that had occurred since the girl was eight years old.

       The trial court imposed consecutive sentences of fifty years for a total term of

       100 years. Our supreme court reduced this to concurrent terms, or a total of

       fifty years, based on the two counts being identical and involving the same

       victim, as well as the defendant’s minimal criminal history. Harris, 897 N.E.2d

       at 930.


[21]   In Tyler v. State, 903 N.E.2d 463 (Ind. 2009), the defendant was convicted of

       two counts of Class A felony child molesting, two counts of Class C felony

       child molesting, and one count of Class D felony vicarious sexual gratification

       for an incident involving five different children. He was sentenced to a total

       term of 110 years, which included an habitual offender enhancement. Our

       supreme court reduced the sentence to a total of sixty-seven and one-half years.

       It based the reduction upon the fact that the defendant did not use force on or

       physically injure the children, that he was not in a position of trust, and he had

       no prior sex offense convictions. Tyler, 903 N.E.2d at 469. Additionally, the

       court noted evidence of the defendant having had mental and emotional health

       problems from an early age and that he had an IQ of between 61 and 72. Id.


[22]   The final case we mention for comparison purposes is Pierce v. State, 949 N.E.2d

       349 (Ind. 2011). In that case, the defendant repeatedly molested the ten-year-

       old daughter of his live-in girlfriend over the course of a year. He was

       convicted of three counts of Class A felony child molesting, one count of Class

       Court of Appeals of Indiana | Memorandum Decision 20A05-1605-CR-1016 | July 14, 2017   Page 11 of 14
       C felony child molesting, and was found to be a repeat sexual offender based

       upon a prior Class C felony molesting conviction. He received a total sentence

       of 124 years, but our supreme court reduced it to a total of eighty years. Pierce,

       949 N.E.2d at 352-53. It acknowledged the defendant’s position of trust over

       the victim and that the offenses occurred repeatedly, but also noted that only

       one child was harmed. Id. It also noted that, aside from the prior molesting

       conviction that formed the basis of the repeat sexual offender enhancement, the

       defendant had no prior criminal history. Id.


[23]   The State cites Pierce as supporting the eighty-year sentence in this case.

       However, that defendant was convicted of more offenses than Martin and

       additionally was found to be a repeat sexual offender. As such, we take more

       guidance from the fact that our supreme court reduced that defendant’s

       sentence by over a third.


[24]   Martin’s position of trust over B.H. and the fact that repeated incidents

       occurred over several years are egregious circumstances, but are similar to those

       in Harris and Pierce. As was the case in Harris and Pierce, B.H. was the only

       victim and the alleged incidents all were similar. As was the case in Tyler, there

       was no evidence Martin used force or threats against B.H. and no evidence of

       physical injury to him. Martin also has no criminal history, unlike the

       defendants in Harris, Tyler, and Pierce. She has documented mental limitations,

       like the defendant in Tyler, although they do not appear to be as severe as that

       defendant’s problems.



       Court of Appeals of Indiana | Memorandum Decision 20A05-1605-CR-1016 | July 14, 2017   Page 12 of 14
[25]   We are cognizant that crimes against children are particularly heinous. See

       Pierce, 949 N.E.2d at 352. The repeated occurrences and Martin’s position of

       trust over B.H. warrant an enhanced sentence. But given the nature of the

       offenses of which Martin was convicted and her character, and after considering

       cases from our supreme court addressing similar scenarios, we cannot conclude

       that those sentences should be served consecutively. We find her aggregate

       eighty-year sentence to be inappropriate. We revise Martin’s sentence and

       order that her two forty-year sentences be served concurrently rather than

       consecutively.


                                                 Conclusion
[26]   Even if it was erroneous to admit Martin’s interview with police into evidence,

       any such error was harmless beyond a reasonable doubt. We affirm her

       convictions. However, we reverse her sentence and remand for the trial court

       to enter an amended sentencing order directing that her forty-year sentences be

       served concurrently.


[27]   Affirmed in part, reversed in part, and remanded.


       Crone, J., concurs.


       Baker, J., concurs and dissents with separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 20A05-1605-CR-1016 | July 14, 2017   Page 13 of 14
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Esther Martin,                                           Court of Appeals Case No.
                                                                20A05-1605-CR-1016
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Baker, Judge, concurring in part, dissenting in part.


[28]   While I concur as to the first issue because of harmless error, I must dissent as

       to the sentencing issue.


[29]   The majority has eloquently explained why the eighty-year sentence is

       inappropriate. I believe that explanation compels a sentence for each

       conviction of no more than the advisory sentence of thirty years and, like the

       majority, believe that the sentences should be concurrent.


[30]   While Martin was in a position of trust and there were more incidents than

       charged, the evidence is without challenge that because of Martin’s mental

       limitations, she was found to be incompetent to stand trial at one time, and she

       has no criminal history.


[31]   Thus, I would believe a thirty-year sentence appropriate.



       Court of Appeals of Indiana | Memorandum Decision 20A05-1605-CR-1016 | July 14, 2017   Page 14 of 14
