Joshua C. Johnson v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited FILED
before any court except for the Oct 24 2012, 8:49 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the CLERK
of the supreme court,
law of the case. court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN C. BOHDAN GREGORY F. ZOELLER
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana
KARL M. SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JOSHUA C. JOHNSON, )
)
Appellant-Defendant, )
)
vs. ) No. 02A03-1203-CR-130
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable John F. Surbeck, Judge
Cause No. 02D06-1109-FA-57
October 24, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issues
A jury convicted Joshua Johnson of five counts of child molesting, three as Class
A felonies and two as Class C felonies; one count of child exploitation, a Class C felony;
and one count of possession of child pornography and two counts of dissemination of
matter harmful to minors, all Class D felonies. Johnson was sentenced to an aggregate of
fifty-eight and one-half years in prison. Johnson appeals, raising two issues for our
review, which we expand and restate as four: 1) whether the trial court abused its
discretion by allowing Nurse Robison to testify as to what A.H. told her during a sexual
assault examination; 2) whether the trial court abused its discretion by allowing Nurse
Robison to state the statistical likelihood of a young victim exhibiting no physical injuries
after being sexually assaulted; 3) whether the trial court abused its discretion by deeming
as inadmissible proffered testimony concerning Johnson’s wife’s prior viewing of child
pornography; and 4) whether Johnson’s sentence is inappropriate in light of the nature of
his offenses and his character. Concluding the trial court did not abuse its discretion
regarding the challenged evidentiary decisions, and Johnson’s sentence is not
inappropriate, we affirm.
Facts and Procedural History
Johnson was married to Lela Johnson, with one daughter of the marriage and one
daughter, A.H., of Lela’s from a different relationship. In August 2011, Lela began a
new job that required her to work from 3:30 p.m. to 12:30 a.m. While Johnson and Lela
were both working, Johnson’s cousin, Jennifer Boisvert, would babysit the two girls. On
August 25, 2011, Johnson picked up the girls around 10:30 p.m. from his cousin’s home
and took them back to their apartment. On August 26, 2011, Johnson was spending time
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with Shawn Boisvert, his second cousin, playing video games. Johnson and Shawn
recorded the video games to an SD card from Johnson’s cell phone to later upload to the
Internet. After they finished, they inserted the SD card into Johnson’s computer. A
video began to play, and Shawn saw A.H. masturbating an erect penis. He recognized
the room A.H. was in as Johnson’s living room. He also noted the date stamp on the
video was August 25, 2011, at 11:30 p.m. While testifying, Shawn stated he knew the
penis to be Johnson’s because, even though Johnson’s face was not on the video, Johnson
had previously shown Shawn videos on his phone of Johnson and Lela having sex.
Shawn was sixteen years old at the time. After approximately fifteen to twenty seconds,
Johnson shut off the video, and the two did not discuss it.
Shawn reported what he had seen to the Department of Child Services (“DCS”).
When interviewed by Luna Dejesus of DCS, A.H. told Dejesus that Johnson sexually
abused her. After the interview, A.H. saw Nurse Sharon Robison for a sexual assault
examination. Nurse Robison testified about the examination at trial. Prior to such
testimony, she stated she received a health care technician degree and a nursing degree;
she worked for the Fort Wayne Sexual Assault Treatment Center for the twelve years
preceding trial; at the time of trial she was the Chief Administrative Officer for the
Center and a sexual assault nurse; for the first eight years that she worked at the Center
she was primarily a pediatric assistant and would attend all forensic exams of children
with the sexual assault nurses; in 2008, she attended a seventy-two hour adult and
adolescent sexual abuse examination training course, a forty-two and one half hour
classroom course for pediatric sexual abuse, and a fifty-hour clinical course; she
participated in a preceptorship with the Chief Nursing Officer at the Center for six
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months; and she is certified by the International Association of Forensic Nurses to
conduct sexual assault examinations on adults, adolescents, and children. Nurse Robison
stated she participated in over eight-hundred sexual assault examinations as a pediatric
assistant, and four-hundred and fifty-two as the primary nurse.
Nurse Robison testified that her first step during a sexual assault examination is to
take a “patient history,” wherein she finds out “what’s been going on” in order to
diagnose the patient and develop a treatment plan. Transcript at 233. In addition to
diagnosing and developing a treatment plan for physical symptoms of abuse, Nurse
Robison stated it is important to discover if the patient is at risk for a post traumatic
response, and that if the patient is, she refers them for counseling. In regards to A.H.’s
examination, Nurse Robison testified:
What she had stated to me was, she said him, and I clarified who him was,
and she said Josh. So she said him’s [sic] pee pee, it hurted. He hurted my
gina last night. She said that him’s [sic] mouth was on my boobs, he put
him’s [sic] mouth on my mouth and she actually pointed to her mouth.
Him [sic] put his mouth on my poop hole and she stated him’s [sic] put his
pee pee in my mouth, I drank his milk out of his peanuts, it tasted nasty.
She also stated that him’s [sic] put his pee pee in my butt, I cried, it hurted.
She said he showed me naked video and he had me do this to his pee pee,
and she actually cupped her hand and went like this.
Id. at 236. In addition to this testimony, the State offered into evidence the medical
report filled out by Nurse Robison during her examination. Johnson objected to the
admissibility of both Nurse Robison’s testimony and the report as including hearsay:
statements of A.H. made to Nurse Robison. The trial court overruled his objections.
After testifying that she did not discover any injuries to A.H.’s genitalia or anus,
the State asked Nurse Robison if she knew how frequently children from ages zero to
thirteen exhibit injuries in sexual assault cases. Defense counsel objected based on
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hearsay and the State inadequately laying the foundation for an expert witness, and the
trial court overruled the objection. Nurse Robison then stated that “[t]he latest research
shows that 95% of female children who disclose penetration have no injury.” Id. at 241.
Ultimately, the record does not reflect that Nurse Robison ordered any further medical
treatment after her examination of A.H., but her report states that she was “strongly
encouraging counseling.” State’s Exhibit 3 at 6.
A.H., who was five years old at the time of trial, also testified. A.H. stated that
Johnson’s “peanuts” went inside her “gina” and “butt,” and his “peanuts” touched her
“boobies.” Tr. at 188-89.1 She testified the contact with Johnson’s “peanuts” and her
“gina” happened when she was three, four, and five. Id. at 191. A.H. first stated nothing
happened with her hands or mouth, but she then stated that Johnson’s “peanuts” went into
her mouth and it tasted “like milk.” Id. at 189-90. A.H. also testified Johnson showed
her a video with him and Lela naked, in which “Lela just sucked the peanuts.” Id. at 190.
Johnson now appeals. Additional facts will be supplied as appropriate.
Discussion and Decision
I. Evidentiary Rulings
A. Standard of Review
“The decision to admit or exclude evidence is within a trial court’s sound
discretion and is afforded great deference on appeal.” Carpenter v. State, 786 N.E.2d
696, 702 (Ind. 2003) (citation omitted). We will not reverse a trial court’s discretion
short of an abuse of that discretion. Id. “An abuse of discretion in this context occurs
1
Johnson acknowledges in his brief that A.H. interchanged the word “penis” and “peanuts.” Appeal Brief
at 14.
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where the trial court’s decision is clearly against the logic and effect of the facts and
circumstances before the court or it misinterprets the law.” Id. at 703.
B. A.H.’s Statements to Nurse Robison
Prior to Nurse Robison testifying as to what A.H. told her during the sexual assault
examination, Johnson objected and argued such testimony is hearsay, and the trial court
overruled his objection. Johnson argues the trial court abused its discretion by deeming
such testimony admissible because it is inadmissible hearsay. “‘Hearsay’ is a statement,
other than one made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” Ind. Evidence Rule 801(c). “Hearsay
is not admissible except as provided by law or by these rules.” Evid. R. 802.
The State responds that Nurse Robison’s testimony was admissible as an
exception to the hearsay rule because it was made for the purposes of medical diagnosis
or treatment. That exception is provided by our rules of evidence:
The following are not excluded by the hearsay rule, even though the
declarant is available as a witness. . . . (4) Statements made by persons
who are seeking medical diagnosis or treatment and describing medical
history, or past or present symptoms, pain, or sensations, or the inception or
general character of the cause or external source thereof insofar as
reasonably pertinent to diagnosis or treatment.
Evid. R. 803. “Statements made to non-physicians may fall within Evid. R. 803(4) if the
statement is made to promote diagnosis or treatment.” McClain v. State, 675 N.E.2d 329,
331 (Ind. 1996). This is because, as was the case with Nurse Robison’s examination of
A.H., it is not important whether the person hearing the statement is an expert and able to
testify regarding the proper diagnosis and treatment of the patient, what is important is
whether the statement made by the patient is trustworthy. “The rationale underlying the
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exception is that a declarant’s self-interest in seeking treatment reduces the likelihood
that she will fabricate information that she provides to those who treat her.” Perry v.
State, 956 N.E.2d 41, 49 (Ind. Ct. App. 2011) (citing McClain, 675 N.E.2d at 331).
While assessing the admissibility of hearsay based on Rule 803(4), courts evaluate:
(1) whether the declarant’s motive was to provide truthful information to
promote diagnosis and treatment and (2) whether the content of the
statement is such that an expert in the field would reasonably rely on it in
rendering diagnosis or treatment.
Id. (citations omitted).
Statements identifying a perpetrator are typically inadmissible under the medical
diagnosis exception because such statements are generally irrelevant to diagnosis and
treatment. Id. However, as the State points out, this court has previously held that trial
courts may exercise their discretion in admitting medical diagnosis statements which
relay the identity of a perpetrator when the case involves child abuse, sexual assault,
and/or domestic violence. See id. We stated the rationale for such a distinction in Perry:
All victims of domestic sexual abuse suffer emotional and psychological
injuries, the exact nature and extent of which depend on the identity of the
abuser. The physician generally must know who the abuser was in order to
render proper treatment because the physician’s treatment will necessarily
differ when the abuser is a member of the victim’s family or household. In
the domestic sexual abuse case, for example, the treating physician may
recommend special therapy or counseling and instruct the victim to remove
herself from the dangerous environment by leaving the home and seeking
shelter elsewhere. In short, the domestic sexual abuser’s identity is
admissible under Rule 803(4) where the abuser has such an intimate
relationship with the victim that the abuser’s identity becomes “reasonably
pertinent” to the victim’s proper treatment.
Id. (quoting Nash v. State, 754 N.E.2d 1021, 1024-25 (Ind. Ct. App. 2001), trans.
denied); see also, Dowell v. State, 865 N.E.2d 1059, 1066 (Ind. Ct. App. 2007)
(concluding victim’s identification of her estranged boyfriend as her sexual attacker was
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admissible under the medical diagnosis and treatment hearsay exception because part of
the nurse practitioner’s role was to inform the victim of available domestic dispute
resources, and the nurse would need to know the victim’s relationship with her
perpetrator in order to know if the victim needed such resources), aff’d in part and rev’d
in part on other grounds, 873 N.E.2d 59 (Ind. 2007).
This court ultimately concluded that statements identifying a perpetrator made to a
nurse by an adult woman during a sexual assault examination were admissible because
they were “pertinent to potential treatment for HIV or other sexually transmitted diseases,
relevant to any psychological counseling for domestic abuse, and significant to medical
personnel in deciding how to discharge their patient.” Perry, 956 N.E.2d at 50.
Johnson argues, however, that the medical diagnosis exception does not apply
because no evidence shows A.H. or Lela came “forward seeking help or treatment from
anyone.” Appeal Br. at 18. While evidence establishing such a circumstance is relevant
to whether the declarant’s motive was to provide truthful information to promote
diagnosis and treatment, it is only one factor that could be considered. The absence of
such a fact is not conclusive on its own. As to the evidence in the record establishing that
A.H. was motivated to provide truthful information to promote diagnosis and treatment,
Nurse Robison offered the following testimony concerning her examination process:
Typically I introduce myself while they’re with the care giver and tell them
that I’m a nurse and I’m a special kind of nurse and that I’m going to look
at them from the top of their head all the way to their toes, front and back.
And then I do it again when we go into the exam room, myself and the
child, again just reinforcing that I’m a nurse and I’m just going to look at
them and take care of them. . . . [T]ypically as we’re walking in I explain
to them that I’m going to weigh them and see how tall you are . . . . We’ll
go into the exam room, I’ll have them sit up on the chair and just tell them
that we’re going to talk for a few minutes and I kind of explain to them
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what’s going to happen. And then basically just find out what has
happened. . . . I’ll tell them to sit on the table and I’m going to look head
to toe . . . and I let them know what I’m going to do . . . .
Tr. at 231-32. Nurse Robison confirmed that she followed her typical procedures when
she examined A.H. We conclude Nurse Robison’s testimony regarding her examination
process provides a proper basis for the trial court’s admission of Nurse Robison’s
testimony concerning A.H.’s statements to her during the examination. Nurse Robison’s
testimony makes it clear that she indicated to A.H. that she is a medical nurse and the
purpose of the examination was to evaluate A.H. from head to toe for any medical issues.
This is sufficient to conclude A.H. was motivated to provide truthful information to
Nurse Robison. See Cooper v. State, 714 N.E.2d 689, 692-94 (Ind. Ct. App. 1999)
(concluding evidence supported determination that child declarant’s motive was to
provide truthful information to promote medical diagnosis and treatment where a nurse
made it clear to the child that she was in an emergency room to be examined by a
physician because of a sexual assault), trans. denied. As to whether A.H.’s statements
could reasonably be relied upon by a medical professional to render diagnosis or
treatment, we conclude that they can. Indeed, here, Nurse Robison, a nurse specially
trained to handle sexual assault examinations, relied upon A.H.’s statements in
concluding that counseling for A.H. was strongly encouraged.
Nevertheless, we conclude even if Nurse Robison’s testimony should not have
been admitted, such error would have been harmless because sufficient evidence would
still exist to support Johnson’s convictions even without Nurse Robison’s testimony. See
Rowe v. State, 717 N.E.2d 1262, 1265 (Ind. Ct. App. 1999) (“The improper admission of
evidence is harmless error when the conviction is supported by substantial independent
9
evidence of guilt sufficient to satisfy the reviewing court that there is no likelihood that
the questioned evidence contributed to the conviction.”) (citing Bonner v. State, 650
N.E.2d 1139, 1141 (Ind. 1995)). During A.H.’s testimony, she revealed that contact
between Johnson’s penis and her vagina occurred at least three times—when she was
three, four, and five years old. She also stated he put his penis in her anus, and he rubbed
it on her breasts. Indiana Code section 35-42-4-3(a) provides a person commits Class A
felony child molesting if he or she is at least twenty-one years of age and performs sexual
intercourse or deviate sexual conduct with a child under fourteen years of age. A person
commits Class C felony child molesting if he fondles or touches a child under fourteen
years of age, or has the child do the same to him, with the intent to arouse or to satisfy the
sexual desire of either the child or the perpetrator. Ind. Code § 35-42-4-3(b).
Johnson was twenty-four years of age at the time he was charged. A.H.’s
testimony alone supports his five convictions for child molesting. She referenced at least
three occasions of sexual intercourse, one occasion of anal sex, and one occasion of
fondling. In addition, Shawn testified he observed a video wherein A.H. was
masturbating Johnson.
As to dissemination of matter harmful to minors, A.H.’s and Shawn’s testimonies
sufficiently support Johnson’s convictions. A.H. testified Johnson showed her a video of
Johnson and Lela engaging in sexual activity, and Shawn testified that Johnson displayed
the video of A.H. masturbating him and Johnson had previously shown him a video of
Johnson and Lela engaging in sexual activity. As to child exploitation, Shawn’s
testimony that Johnson videotaped A.H. masturbating him sufficiently supports his
conviction. Finally, as to possession of child pornography, an Indiana State Police
10
forensic phone and computer examiner searched Johnson’s phone and discovered child
pornography. Even if Johnson did not always exclusively possess his cell phone, it is
reasonable for a finder of fact to conclude the child pornography on Johnson’s phone was
downloaded by him where Lela specifically denied having anything to do with it and
stated the phone was almost always in Johnson’s possession.
C. Nurse Robison As an Expert Witness
Johnson next argues the trial court abused its discretion in admitting Nurse
Robison’s testimony concerning the percentage of sexual assault cases where young girls
exhibit no physical injuries. Johnson contends “[t]he record is completely devoid of any
foundation established” that would allow Nurse Robison to testify as to such statistics.
Appeal Br. at 19. Although it is not clear from his argument what legal authority Johnson
asks us to apply, see Ind. Appellate Rule 46(A)(8)(a) (the argument section of an
appellant’s brief must be supported by citations to the authorities relied on), it appears he
is contending the State did not sufficiently qualify Nurse Robison as an expert witness
pursuant to Indiana Rule of Evidence 702(a). We disagree.
As stated above, the State elicited that Nurse Robison received healthcare
technician and nursing degrees, worked for the Fort Wayne Sexual Assault Treatment
Center for twelve years, attended a variety of training courses for sexual assault
examinations, participated in over eight-hundred sexual assault examinations as a
pediatric assistant and four-hundred and fifty-two as the primary examining nurse, and
was certified to conduct sexual assault examinations by the International Association of
Forensic Nurses. We conclude this sufficiently demonstrates Nurse Robison is “qualified
as an expert by knowledge, skill, experience, training, or education.” Id. If it is to the
11
specific scientific testimony that Johnson objects, pursuant to Indiana Rule of Evidence
702(b), we conclude Nurse Robison’s background, training, and experience support the
conclusion that the statistic she recited was reliable. We therefore conclude the trial court
did not abuse its discretion in admitting Nurse Robison’s testimony concerning the
likelihood that a young girl would not exhibit injuries after being sexually assaulted.
We also note, however, that even if such testimony should have been excluded,
any error in admitting it was harmless error. While it is true that the lack of an
explanation concerning A.H. not having any physical injuries could have been a piece of
evidence helpful to Johnson, we conclude a substantial amount of other evidence was
presented demonstrating Johnson’s guilt of each offense.
D. Lela Johnson’s History with Pornography
Prior to Johnson’s trial, the State filed a motion in limine to exclude testimony
from Brenda Allen that when Johnson and Lela lived with Allen, Lela downloaded child
pornography on Allen’s computer. The trial court granted the State’s motion in limine.
During trial, while Lela was testifying, defense counsel began asking questions
apparently aimed at determining if Lela had downloaded the child pornography rather
than Johnson. After Lela stated she did not download pornography on Johnson’s phone,
defense counsel asked, “[a]re you telling the folks on this jury you don’t know how to
access those materials?” Tr. at 305. At that point, the State and defense counsel
approached the bench, and the trial court ultimately allowed the question but requested
defense counsel not attempt to attack Lela’s character based on her having potentially
downloaded pornography, as Allen might have testified if Lela denied knowing how to
12
download pornography. Thereafter, Lela stated that she did not know how to access
pornographic materials.
After the State’s case in chief and outside the presence of the jury, Johnson
proffered evidence, including the testimony of Allen that Lela had downloaded child
pornography on Allen’s computer. The trial court declared such evidence inadmissible
pursuant to Indiana Rule of Evidence 403.
Johnson argues the trial court abused its discretion in determining Allen’s
testimony that Lela previously downloaded child pornography was inadmissible.
Johnson argues he should have been able to present such testimony to impeach Lela.
Rule 403 provides, “[a]lthough relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice . . . .” Further, Rule 404(b)
provides, “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith.” While Johnson is
correct that the proffered evidence would have had some probative value by virtue of
impeaching Lela’s testimony that she did not know how to download pornographic
materials, we conclude such probative value is substantially outweighed by the danger of
unfair prejudice. Specifically, it is highly likely that testimony that Lela had previously
downloaded child pornography would have been perceived as evidence establishing Lela
acted in conformity with her prior actions and downloaded the pornography that was
found on Johnson’s phone. As demonstrated by Rule 404(b), this perception would
create an unfair prejudice.
As with our prior assessments of Johnson’s evidentiary claims, we also conclude
that even if the trial court erred by not allowing evidence of Lela’s history with
13
pornography, such error was harmless. The child pornography discovered by police was
found on Johnson’s phone, and Shawn’s testimony reveals that Johnson used his phone
for pornographic purposes. Even with evidence impeaching Lela’s testimony, a
reasonable finder of fact could still conclude Johnson possessed child pornography on his
cellular phone.
II. Sentencing
A. Standard of Review
This court “may revise a sentence authorized by statute if, after due consideration
of the trial court’s decision, the Court finds that the sentence is inappropriate in light of
the nature of the offense and the character of the offender.” App. R. 7(B). “Our review
of the sentence should focus on the forest—the aggregate sentence—rather than the
trees—consecutive or concurrent, number of counts, or length of the sentence on any
individual count.” Gleason v. State, 965 N.E.2d 702, 712 (Ind. Ct. App. 2012) (citing
Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011)). The defendant bears the burden of
proving that the sentence is inappropriate. Id. (citation omitted).
B. Johnson’s Sentence
The statutory sentencing ranges for Johnson’s felonies are as follows: for Class A
felonies, twenty to fifty years, with an advisory sentence of thirty years; for Class C
felonies, two to eight years, with an advisory sentence of four years; and for Class D
felonies, six months to three years, with an advisory sentence of one and one-half years.
Ind. Code § 35-50-2-4, -6, -7. Johnson was sentenced to fifty years for each of his three
Class A felony child molesting convictions and to eight years for both of his Class C
felony child molesting convictions, all to be served concurrently. He was sentenced to
14
four years for his Class C felony child exploitation conviction and one and one-half years
each for his Class D felony convictions for possession of child pornography and two
counts of dissemination of matter harmful to minors, all to be served consecutively to
each other and consecutive to his fifty-year sentence for his child molesting convictions.
In total, Johnson was sentenced to fifty-eight and one-half years in prison.
Johnson first argues the trial court abused its discretion by imposing maximum
sentences for his child molesting convictions and only advisory sentences for his
remaining convictions. However, trial courts have discretion in issuing sentences, and, as
stated above, we review sentences for multiple convictions in the aggregate rather than
the length attributed to any one individual count. Gleason, 965 N.E.2d at 712. We
therefore reject Johnson’s argument that the trial court abused its discretion in issuing
maximum sentences for some convictions and advisory sentences for others.
Johnson also argues the above sentence is inappropriate in light of the nature of his
offenses and his character. As to the nature of his offenses, Johnson contends the
maximum sentences he received for his five child molesting convictions are inappropriate
because they did not include “[e]xcessive brutality, use of a weapon, threats of violence
or physical injury.” Appeal Br. at 21. We first reiterate that we review sentences for
multiple convictions in the aggregate, not based upon each individual sentence. We also
point out, however, that while Johnson is correct that those elements were not revealed in
the record, two characteristics of his convictions demonstrate the particularly depraved
nature of his offenses and his character: A.H.’s young age at the time of the incidents,
which made her especially vulnerable as easy prey, see Light v. State, 926 N.E.2d 1122,
1124 (Ind. Ct. App. 2010), trans. denied; and Johnson’s position of trust in A.H.’s life as
15
her step-father, see Edrington v. State, 909 N.E.2d 1093, 1101 (Ind. Ct. App. 2009),
trans. denied.
Despite Johnson’s relatively minor criminal history that includes two juvenile
adjudications from almost a decade ago and does not include any sexual offenses, we
conclude his sentence is not inappropriate. That he abused his position of trust and
victimized a girl when she was of the ages three, four, and five is beyond deplorable, and
these facts speak to both the depravity of his offenses and character. Further, examining
the aggregate sentence imposed, if Johnson were sentenced only to advisory sentences for
each conviction and ordered to serve them consecutively, his sentence would have been
one-hundred and six and one-half years. Because the trial court ordered his Class A
felonies ordered concurrently, however, Johnson’s aggregate sentence is considerably
less than that. Johnson’s sentence is not inappropriate in light of the nature of his
offenses and his character.
Conclusion
The trial court did not abuse its discretion in admitting Nurse Robison’s testimony
concerning what A.H. said during her sexual assault examination and the statistical
likelihood that a sexually assaulted young girl would not exhibit injuries, nor did the trial
court abuse its discretion by concluding evidence of Lela’s prior experience with
pornography was inadmissible. Additionally, Johnson’s sentence is not inappropriate in
light of the nature of his offenses and his character. We therefore affirm.
Affirmed.
BRADFORD, J., concurs.
BAKER, J., concurs in result with opinion.
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IN THE
COURT OF APPEALS OF INDIANA
JOSHUA C. JOHNSON, )
)
Appellant-Defendant, )
)
vs. ) No. 02A03-1203-CR-130
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
BAKER, Judge, concurring in result,
While I disagree with the trial court’s exclusion of Allen’s proffered testimony
that Lela had previously downloaded child pornography, I agree that its exclusion was
harmless error.
17