William E. Gilliland v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be May 24 2016, 8:51 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jennifer G. Schlegelmilch Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William E. Gilliland, May 24, 2016
Appellant-Defendant, Court of Appeals Case No.
48A02-1508-CR-1246
v. Appeal from the Madison County
Circuit Court
State of Indiana, The Honorable David A. Happe,
Appellee-Plaintiff. Judge
Trial Court Cause No.
48C04-1412-FA-2222
Altice, Judge.
Case Summary
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[1] Following a jury trial, William E. Gilliland was convicted of child molesting as
a Class A felony and two counts of child molesting as a Class C felony. The
trial court sentenced Gilliland to an aggregate term of forty years. Gilliland
presents two issues for our review:
1. Did the trial court abuse its discretion in identifying
aggravating and mitigating factors?
2. Is his sentence inappropriate in light of his character and the
nature of the offense?
[2] We affirm.
Facts & Procedural History
[3] In 2001, Gilliland retired from General Motors and purchased a business in
Pendleton, Indiana that had been operating as a glass and gift shop. By 2006 or
2007, Gilliland had transitioned the business to function solely as the Old
Fashion Candy Store.
[4] In January 2010, A.A. (Father) opened an office for his mortgage company in
the rental space located above Gilliland’s candy store. Father and J.A.
(Mother) worked out of the rented space and soon befriended and grew to trust
Gilliland. Four of their five children, F.A., O.A., A.A., and A.J.A., would
spend quite a bit of time at the office because their school was located a few
blocks away. The children “spent a lot of time downstairs in the candy shop.”
Transcript at 315. F.A. took a particular interest in “hanging out and talking”
with Gilliland. Id. at 316. When F.A. was ten years old, she began helping out
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at the candy shop several days a week. Gilliland eventually paid F.A. two
dollars an hour for restocking candy, working the cash register, and helping
customers. F.A. testified that she trusted Gilliland and described him as being
“like a grandfather” to her. Id. at 401.
[5] F.A. and her sisters also spent time with Gilliland outside of the candy store. In
January 2011, Father became ill and had to be hospitalized. Gilliland offered
to have the three girls, F.A., O.A., and A.A., stay with him in his home for a
few nights so Mother could stay at the hospital. At the time, F.A. was ten years
old, O.A. was nine years old, and A.A. was eight years old. F.A. and A.A.
slept in Gilliland’s guest bedroom while O.A. slept downstairs on the couch.
F.A. spent the night at Gilliland’s home on two other occasions.
[6] On one occasion, Gilliland told F.A. to go upstairs to the guest bedroom and
undress to her bra and underwear because he was going to clean her up.
Gilliland told F.A. that he had been trained to clean up people and that he had
done so when he was in Vietnam. Gilliland asked F.A. to lie on the floor on
her back with her knees propped up. He told her that she needed to lie still and
that she “need[s] to be healthy because only good girls get to be healthy.” Id. at
418. He then removed her underwear and used a wet washcloth to wipe her
chest area. Gilliland then proceeded to wipe F.A.’s vaginal area and inserted
his finger in and out of her vagina. He did not wash any other areas of her
body. F.A. testified that Gilliland’s actions hurt her and made her feel “very
uncomfortable” and “confused”. Id. at 417, 420. F.A. observed blood on the
washcloth Gilliland used to wipe her vagina. After the incident, Gilliland
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offered F.A. snacks and a drink and asked her if she wanted to watch a movie.
Gilliland engaged in similar behavior with F.A. a total of three to four times.
On perhaps as many as two occasions, Gilliland brought a video camera and
faced it toward F.A.’s vaginal area as he engaged in this conduct.
[7] F.A. also described incidents when Gilliland “play wrestled” with her while she
was in her underwear. He would tickle her upper thigh, near her vagina.
Gilliland had an erection while doing this. On another occasion, Gilliland had
the girls watch a movie with him that contained a sexual scene in which the
actress was clothed in an outfit comprised of blinking lights over her breasts and
private area. Gilliland told the girls he should buy outfits like that for them.
[8] On another occasion, Gilliland took F.A. and her sisters to his son’s farm where
the three girls swam in a pond, went fishing, and played with puppies. Before
leaving the farm, Gilliland checked the girls for fleas. He pulled A.A. aside and
lifted her shirt so he could examine her chest area. He then pulled down her
shorts and underwear, exposing her “no-no square,” which is the term she uses
for her “private area.” Transcript at 560, 559. Gilliland “pulled [A.A.’s vagina]
apart,” looked at it, and moved his hands around it. Id. at 560. He did not
check any other parts of A.A.’s body.
[9] After leaving the farm Gilliland took the girls back to his home, where he told
F.A. that he needed to more thoroughly check her for fleas. He directed F.A. to
go to the guest bedroom, get out of her clothes, and lie on the floor just as she
had on previous occasions. Gilliland then spread F.A.’s legs apart, looked in
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her vaginal area, and poked and prodded inside her vagina with his fingers. He
did not check any other parts of her body for fleas. After he was done, he
instructed F.A. to shower and get dressed. Gilliland then called F.A.’s sister,
A.A., into the guest bedroom. As A.A. entered, F.A. told her that Gilliland
was “checking for fleas.” Transcript at 431.
[10] During another night when the girls stayed at Gilliland’s home, A.A. wet the
bed. A.A. told Gilliland about it, and he took her into the guest bedroom and
had her remove her clothing. He then instructed A.A. to lie on the bed with her
legs spread apart so he could wipe her vagina with a wet washcloth. A.A.
explained that Gilliland kept rubbing the inside and outside of her vagina,
making her feel “[a]wkward and uncomfortable.” Id. at 569. Gilliland told
A.A., “Don’t be loud,” and wiped her chest with the washcloth as well. Id.
[11] In April 2012, Father and Mother divorced and Father moved his office into his
home. The children stopped going to Gilliland’s candy store on a regular basis,
but F.A. continued to work for Gilliland until about May 2012. In early 2014
F.A. began having trouble sleeping and started having nightmares. She became
angry and sad and started cutting herself. In May 2014, F.A. disclosed to her
parents what Gilliland had done to her. In July 2014, F.A. attempted suicide
by taking an overdose of Adderall and Prozac. F.A. thought she was “nasty
and dirty and disgusting” and thought her parents would be ashamed of her
because of what Gilliland had done. Id. at 458.
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[12] After the suicide attempt, F.A. was placed in intensive inpatient therapy where
she talked about what had happened to her. A.A. subsequently disclosed what
Gilliland had done to her as well. The Madison County Sheriff’s Department
initiated an investigation, which included executing a search warrant at
Gilliland’s home. Officers found a video recording device in the guest
bedroom that F.A. later identified as being the device he used to record his
actions toward her. The recording device contained a deleted, close-up video of
a two to four year old girl spreading her vagina with her hands. The girl was
not F.A. or A.A.
[13] Gilliland was subsequently arrested and on December 29, 2014, the State
charged him with Count I, Class A felony child molesting; Counts II and III,
Class C felony child molesting; Count IV, Class C felony child exploitation;
Count V, Class D felony possession of child pornography; and Count VI, Level
6 felony possession of child pornography. A four-day jury trial commenced on
July 21, 2015. The jury found Gilliland guilty of Counts I, II, and III and not
guilty of Counts IV and V.1 The trial court held a sentencing hearing on August
17, 2015. During the sentencing hearing, M.D., Gilliland’s adult daughter,2
testified that when she heard the allegations against Gilliland, she spoke with
detectives and told them that Gilliland did the exact same things to her when
she was a child. M.D. detailed that between the ages of nine and thirteen,
1
The State dismissed Count VI prior to trial.
2
During her testimony at the sentencing hearing, M.D. stated that she was forty years old.
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Gilliland wiped her down with a washcloth and placed his fingers inside her
vagina.
[14] In addressing the evidence presented during the sentencing hearing, the trial
court noted, “with respect to the defendant’s daughter, the evidence does
support a conclusion that he had also abused her in a similar fashion.”
Transcript at 1102. Prior to pronouncing the sentence, the trial court made the
following statement:
In terms of the formal finding of aggravation and mitigation the
court does find aggravation as noted by the probation department
in that multiple counts were committed here, and there were
multiple victims. And it is certainly true here that the defendant
violated a position of trust by committing these offenses. The
defendant was a very good close long term friend of the [A.]
family and in fact to the extent that [Father] suffered a medical
crisis and the family was in crisis and needed someone to help
out with the children, it was to Mr. Gilliland that they turned.
That’s how much they trusted him. And he did take advantage
of that trust and commit the offenses that happened here. And
while the defendant does not have a history of criminal
convictions, the court does find that it is an aggravating
circumstance that he did offend in a similar manner against his
daughter. Weight against that aggravation the court notes that
the defendant, again, gave to his community, he gave to his
church, and was very actively involved in church activities and
with helping other people in that capacity. And it’s also a
mitigator that he did serve his country honorably in the military.
I do find, in comparing the relative weight of the aggravation and
mitigation, that the aggravation does outweigh the mitigation.
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Transcript at 1104-05. The trial court then sentenced Gilliland to thirty-five
years on Count I and five years each on Counts II and III. The trial court
ordered Counts I and III (referring to F.A. as the victim) to be served
concurrently with each other but consecutive to Count II (referring to A.A. as
the victim), resulting in an aggregate sentence of forty years incarceration.
Additional facts will be provided where necessary.
Discussion & Decision
Abuse of Discretion
[15] Sentencing decisions rest within the sound discretion of the trial court and are
reviewed on appeal for an abuse of discretion. Anglemyer v. State, 868 N.E.2d
482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). An abuse of
discretion occurs if the decision is clearly against the logic and effect of the facts
and circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom. Id. at 490-91. A trial court may be found to
have abused its discretion by (1) failing to enter a sentencing statement; (2)
entering a sentencing statement that includes reasons not supported by the
record; (3) entering a sentencing statement that omits reasons clearly supported
by the record and advanced for consideration; or (4) entering a sentencing
statement that includes reasons that are improper as a matter of law. Id. at 490-
91. Because a court may impose any sentence authorized by statute “regardless
of the presence or absence of aggravating circumstances or mitigating
circumstances,” a trial court is no longer obligated to weigh aggravating and
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mitigating factors against each other when imposing a sentence. See Richardson
v. State, 906 N.E.2d 241, 243 (Ind. Ct. App. 2009) (citing Anglemyer, 868 N.E.2d
at 490-91).
[16] Gilliland argues that the trial court abused its discretion in identifying and
considering as an aggravating circumstance uncharged criminal conduct with
respect to his daughter.
[17] “Allegations of prior criminal activity need not be reduced to conviction before
they may be properly considered as aggravating circumstances by a sentencing
court.” Harlan v. State, 971 N.E.2d 163, 170 (Ind. Ct. App. 2012) (citing Beason
v. State, 690 N.E.2d 277, 281 (Ind. 1998)). Indeed, our Supreme Court has
specifically held that a trial court does not abuse its discretion in sentencing
when it considers allegations of prior sexual abuse as an aggravating
circumstance. See Carter v. State, 711 N.E.2d 835, 840 (Ind. 1999) (concluding
that the trial court did not abuse its discretion when it identified defendant’s
attempted molestation of his sister as an aggravating circumstance). In the case
of prior uncharged crimes of sexual abuse, the rationale is “that prior uncharged
crimes of that nature reliably indicate a high probability that the defendant will
commit similar crimes in the future.” Russelburg v. State, 529 N.E.2d 1193, 1197
(Ind. 1988). Furthermore, evidence of uncharged crimes is relevant to the issue
of the defendant’s past and his character. See Kent v. State, 675 N.E.2d 332, 340-
41 (Ind. 1996) (letters from women who knew defendant and reported that he
had been physically abusive to them in the past could be considered at
sentencing hearing on issue of defendant’s past and his character).
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[18] Testimony from M.D., Gilliland’s adult daughter, that Gilliland had molested
her from the time she was nine years old until thirteen years old was a proper
aggravating circumstance. Her testimony was particularly significant because
Gilliland molested M.D. in the same manner that he molested F.A. and A.A.
As he had with F.A. and A.A., Gilliland wiped M.D. down with a washcloth
and inserted his fingers inside her vagina. The pre-sentence investigation report
indicates that M.D. contacted detectives and reported the molestation when
Gilliland was first arrested. Under these circumstances, the trial court was well
within its discretion to credit M.D.’s testimony and to consider such in
sentencing Gilliland.
[19] Gilliland’s reliance on Tunstill v. State, 568 N.E.2d 539, 544-46 (Ind. 1991), in
support of his argument that his molestation of his daughter was an improper
aggravating circumstance is misplaced. In Tunstill, the Court held that if a trial
court identifies a defendant’s criminal history as an aggravating circumstance,
the criminal history must be supported by a history of conviction, the
defendant’s admission, or properly admitted trial evidence. The Court
specifically noted that “[a] record of arrest, without more, does not establish the
historical fact that the defendant committed a criminal offense on a previous
occasion such that it may be properly considered as evidence that the defendant
has a history of criminal activity.” Id. at 544. Here, the trial court specifically
noted that Gilliland did not have a history of criminal convictions. The court
thus did not consider his molestation of his daughter as part of his criminal
history, but rather as a nonstatutory aggravating factor. See Singer v. State, 674
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N.E.2d 11, 14-15 (Ind. Ct. App. 1996) (concluding that the trial court did not
abuse its discretion during sentencing by citing as an aggravating factor Singer’s
uncharged acts of violence against his children). Thus, Tunstill does not support
Gilliland’s position that the trial court abused its discretion in considering
uncharged crimes of sexual abuse against his own daughter.
Inappropriate Sentence
[20] Gilliland argues that his aggregate forty-year sentence is inappropriate. Despite
the fact that the trial court imposed a sentence that is authorized by statute, we
may revise Gilliland’s sentence 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 the character of the offender.” Ind. Appellate Rule 7(B).
Ultimately, “[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). Thus, “whether we regard a sentence as appropriate ... turns on
our sense of 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. In making this determination, the relevant considerations
are the length of the aggregate sentence and how it is to be served. Id. Gilliland
bears the burden of persuading our court that his sentence is inappropriate.
Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012).
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[21] We first consider the nature of the offense. Over the course of two years,
Gilliland molested two innocent children who were entrusted to his care by
their parents. F.A. and A.A. were only ten years old and eight years old when
the molestation began. The girls trusted him and described him as being like
their grandfather. Gilliland abused this trust and used his position of power
over them to inappropriately touch each of them on several occasions.
Gilliland ensured that the girls would not disclose what was happening to them
by making them feel as though his conduct was normal, using the ruse that he
was cleaning them or looking for fleas.
[22] With regard to the character of the offender, we note, as did the trial court, that
Gilliland abused a position of trust he held with Father and Mother and with
F.A. and A.A. Further, Gilliland molested F.A. three to four times and A.A. at
least twice and yet, he was charged and sentenced for three offenses. His
conduct toward these two young victims, as well as his conduct toward his own
daughter many years prior, demonstrates a pattern of ongoing criminal conduct
against some of the most vulnerable individuals in our society—individuals
over whom he held a position of trust, care, and responsibility. Although
Gilliland has no formal criminal history, served his country, and gives to his
community and his church, none of these aspects of his character prevented
him from repeatedly molesting two young girls entrusted to his care as well as
his own daughter.
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[23] Here, Gilliland received a thirty-five year sentence for Count I, Class A felony3
child molesting, and five years each for Counts II and III, Class C felony4 child
molesting. The sentences for the offenses involving F.A. (Counts I and III) are
to be served concurrently. To account for the multiple victims involved, the
sentence on Count II is to be served consecutively to Counts I and III, resulting
in an aggregate forty-year sentence. Having reviewed the record, we cannot say
that Gilliland’s sentence is inappropriate.
[24] Judgment affirmed.
[25] Bailey, J. and Bradford, J., concur.
3
“A person who commits a Class A felony shall be imprisoned for a fixed term of between twenty (20) and
fifty (50) years, with the advisory sentence being thirty (30) years.” Ind. Code § 35-50-2-4.
4
“A person who commits a Class C felony shall be imprisoned for a fixed term of between two (2) and eight
(8) years, with the advisory sentence being four (4) years.” I.C. § 35-50-2-6.
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