Paul Simon Price v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 04 2018, 10:26 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.
Greenfield, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Paul Simon Price, September 4, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-23
v. Appeal from the Hancock Circuit
Court
State of Indiana, The Honorable Richard D. Culver,
Appellee-Plaintiff Judge
The Honorable Jeffrey C. Eggers,
Judge Pro Tempore
Trial Court Cause No.
30C01-1702-F4-404
Altice, Judge.
Case Summary
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[1] Following a bench trial, Paul S. Price was convicted of three counts of sexual
misconduct with a minor, two as Level 4 felonies and one as a Level 5 felony.
Price was sentenced to an aggregate term of thirteen years, with three years
suspended. On appeal, Price presents three issues for our review:
1. Is the evidence sufficient to support his convictions?
2. Do his convictions violate double jeopardy principles?
3. Is his sentence inappropriate?
[2] We affirm.
Facts & Procedural History
[3] C.D., born on December 14, 2001, is the youngest of four girls. C.D.’s oldest
sister, Lyndsey, is sixteen years older. Price began dating Lyndsey when C.D.
was about two years old, and he and Lyndsey eventually married in July 2010.1
On the morning of Saturday, February 18, 2017, C.D. disclosed information to
her mother about encounters between her and Price that were sexual in nature.
[4] The first sexual encounter occurred early in the summer of 2016 when C.D.
was fourteen years old. C.D. would often visit and spend the night at Lyndsey
and Price’s home. On this particular occasion, C.D.’s mother dropped her off
around 1:00 p.m. Lyndsey and Price were both home. The afternoon began
1
Price and Lyndsey are now divorced.
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normally, but around 4:00 p.m., Price, who was drinking, offered C.D. alcohol.
Between 4:00 and midnight, C.D. consumed six shots of vodka. The drinking
occurred in the kitchen and only Price and C.D. were present. This was C.D.’s
first exposure to alcohol and it left her feeling “[v]ery dizzy and disoriented”
and in a state C.D. described as “tunnel vision.” Transcript at 67.
[5] Lyndsey fell asleep in her bedroom around midnight. Price and C.D. were in
the living room on the couch watching television. At some point they began to
kiss. They ended up “on top of each other” and they each took their clothes off.
Id. at 68. According to C.D., she and Price “made out”, and after about thirty
minutes, Price stepped back and suggested that C.D.’s family would hate him
for what he was doing. Id. They then continued. When C.D. and Price were
both fully naked, Price inserted his fingers inside C.D.’s vagina, rubbed his
penis on her vagina, and then performed oral sex on her. The sexual encounter
lasted until around 4:00 a.m. when C.D. told Price that she wanted to go to
sleep. Price then went to his and Lyndsey’s bedroom. The next morning, C.D.
awoke around 10:00 a.m. Price seemed panicked and asked C.D. if she had
consented to his actions. After she indicated that she had consented, Price had
her “pinky-promise[]” not to say anything to anyone. Id. at 72.
[6] Near the end of that same summer, C.D. was again staying the night at Price’s
home. In the evening, over the course of a couple of hours, Price provided
C.D. with four to six shots of vodka. Price was also drinking and was the only
one present when C.D. drank. Again, Lyndsey fell asleep in her bedroom late
in the evening. A second sexual encounter occurred between Price and C.D.
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while they were in the living room sitting on the couch. Price and C.D. had
both removed their pants and underwear and Price rubbed his erect penis on
C.D.’s vagina.2 This encounter ended when C.D. told Price that she was going
to throw up. Price retrieved a bowl from the kitchen and after C.D. finished
throwing up, he stood next to her while she showered. Price then went to bed,
and C.D. slept on the couch.
[7] A third sexual encounter occurred in the winter, either in January or February
2017. C.D. had asked to stay at her sister and Price’s home and her mother
dropped her off. Price and Lyndsey were both home. As with the first two
incidents, Price was drinking alcohol and provided C.D. with shots of vodka.
Lyndsey was not present in the kitchen when C.D. consumed alcohol. That
night, Lyndsey fell asleep in the living room. Price and C.D. went into the
garage and discussed their prior sexual encounters and agreed that they should
stop engaging in such behavior. During this discussion, Price told C.D. that he
had “planned to go all the way.” Id. at 82, 90. He also told her that he had put
a condom in the bookshelf area in the living room. Although he said that “he
would own up to what he did,” Price indicated that he preferred she not tell
anyone about what had happened between them. Id. at 83.
[8] When they were finished talking, Price carried C.D. into the house on his back.
He took her into his bedroom and they wrestled on his bed in a playful manner.
2
Price did not insert his penis into C.D.’s vagina.
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While straddling C.D. and holding her hands above her head, Price tried to kiss
her, but she did not reciprocate. Price then lifted C.D.’s shirt and started licking
and sucking on her breasts. The encounter ended when C.D. told Price she
wanted to go to bed. C.D. was fifteen years old at the time.
[9] A couple weeks after this incident, C.D. made the decision to tell her mom
about what had occurred between her and Price. Even though it was unusual
for C.D. to cry, she cried when she told her mother about her sexual encounters
with Price. C.D.’s mother immediately called her second oldest daughter.
C.D.’s mother then called Lyndsey, who, at the time, was travelling back from
Evansville with Price. Lyndsey’s mother told her about what C.D. had
disclosed. Lyndsey confronted Price, and Price called her mother back.
Lyndsey and C.D.’s mother told Price what she had learned and that she did
not know how she could keep C.D.’s father from “ripping [his] head off,” a
figure of speech she used to convey her husband’s suspected anger. Id. at 39.
Price responded, “maybe I should just blow my head off.” Id. Price then said
he was sorry. After the phone conversation ended, Lyndsey asked Price if he
had touched C.D. and Price nodded in the affirmative. Price told her that it
happened in the summer.
[10] C.D.’s mother then contacted the police and made a report. On February 20,
2017, C.D. was interviewed by a family case worker with DCS in collaboration
with the prosecutor’s office and local sheriff’s department. On February 24,
2017, the State charged Price with five counts: Counts I and II, sexual
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misconduct with a minor as Level 4 felonies;3 Count III, sexual misconduct
with a minor as a Level 5 felony; Count IV, criminal confinement as a Level 6
felony; and Count V, sexual battery as a Level 6 felony. A bench trial was held
on October 23, 2017. The trial court found Price guilty of Counts I, II, and III,
and not guilty of Counts IV and V. The trial court held a sentencing hearing on
December 7, 2017, and sentenced Price to consecutive terms of five years on
Counts I and II and three years on Count III, with three years suspended. In
sentencing Price, the trial court cited as mitigating circumstances Price’s lack of
a criminal record and that the offense was not likely to recur. As aggravating,
the court found that Price violated a position of trust and that he lacked
remorse. Price now appeals. Additional facts will be provided as necessary.
Discussion & Decision
1. Sufficiency
[11] Price argues that the State failed to present sufficient evidence to prove that he
met the requisite age to have committed the offenses. He also generally attacks
3
The charging information for Counts I and II is verbatim:
on or between May 27, 2016 and July 31, 2016, in Hancock County, State of Indiana, Paul S.
Price, a person at least twenty-one (21) years of age, did perform sexual intercourse or other
sexual conduct, as defined by I.C. 35-31.5-2-221.5, with C.D., a child at least fourteen (14) years
of age but less than sixteen (16) years of age, to-wit: 15 years of age.
Appellant’s Appendix Vol. II at 14-15. In its closing statement, the trial court argued that Count I was
supported by evidence that Price placed his mouth on C.D.’s vagina and performed oral sex on her. With
respect to Count II, the State asserted that such charge was supported by evidence that Price put his fingers in
C.D.’s vagina. Both acts were part of the initial sexual encounter between Price and C.D. The State did not
rely upon evidence of the second sexual encounter between Price and C.D. as support for any of the charges
of sexual misconduct with a minor.
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the State’s poof that he committed acts of sexual misconduct with a minor. In
reviewing a challenge to the sufficiency of the evidence, we neither reweigh the
evidence nor judge the credibility of witnesses. Atteberry v. State, 911 N.E.2d
601, 609 (Ind. Ct. App. 2009). Instead, we consider only the evidence
supporting the conviction and the reasonable inferences flowing therefrom. Id.
If there is substantial evidence of probative value from which a reasonable trier
of fact could have drawn the conclusion that the defendant was guilty of the
crime charged beyond a reasonable doubt, the judgment will not be disturbed.
Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind. Ct. App. 2008).
[12] To prove that Price committed sexual misconduct with a minor as a Level 4
felony, the State was required to prove beyond a reasonable doubt that (1) being
at least twenty-one years of age, (2) Price performed sexual intercourse or other
sexual conduct with C.D., (3) when C.D. was at least fourteen years of age, but
less than sixteen years of age. Ind. Code § 35-42-4-9(a)(1). To prove that he
committed sexual misconduct as a Level 5 felony, the State was required to
prove that (1) being at least twenty-one years of age, (2) Price performed or
submitted to fondling or touching with C.D., (3) when C.D. was at least
fourteen years of age, but less than sixteen years of age. I.C. § 35-42-4-9(b)(1).
[13] Price first argues that the State failed to establish that he was of the requisite age
at the time of the offenses. We disagree. Price testified that he was nineteen
when he met Lyndsey and that he knew Lyndsey for about five years before
they were married in July 2010. The sexual encounters between Price and C.D.
occurred about six years later. This evidence establishes that Price was well
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over twenty-one years old (i.e., approximately thirty years old) when he
committed sexual misconduct with a minor.
[14] Price also argues that the State failed to prove any of the incidents of sexual
misconduct with a minor. Price asserts that C.D.’s testimony is unsupported by
other evidence. He asserts that C.D. was aware that her parents did not like
him, that C.D. drank large amounts of alcohol, and that Lyndsey was present in
the home when the alleged sexual misconduct took place and yet she was not
aware of what occurred between him and C.D. Price also directs us to his
testimony in which he adamantly denied having any sexual contact with C.D.
[15] Price’s arguments amount to a request that this court reweigh the evidence and
assess the credibility of the witnesses. We will not engage in such task on
appeal. Here, the trial court, as the fact-finder, heard and believed C.D.’s
testimony in which, as set forth above, she clearly delineated three instances of
sexual misconduct—Price put his mouth on her vagina, Price put his fingers in
her vagina, and Price put his mouth on her breasts.4 The first two acts are
sufficient to support Counts I and II and the third act supports Count III.
2. Double Jeopardy
[16] Article 1, section 14 of the Indiana Constitution provides that “[n]o person shall
be put in jeopardy twice for the same offense.” Price argues that his convictions
4
The first two instances were part of the initial sexual encounter between Price and C.D.
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and sentences on Counts I and II violate double jeopardy principles.
Specifically, Price asserts that Counts I and II were established by evidence
arising from a single offense “as the conduct took place simultaneously on one
occasion.”5 Appellant’s Brief at 11. In support of his argument, Price directs us
to Watkins v. State, 575 N.E.2d 624 (Ind. 1991) and Bowling v. State, 560 N.E.2d
658 (Ind. 1990). We note that these cases relied upon the Supreme Court’s
decision in Ellis v. State, 528 N.E.2d 60 (Ind. 1988). While Price’s argument
may have merit under this line of cases, in Richardson v. State, 717 N.E.2d 32, 49
(Ind. 1999), our Supreme Court explicitly stated that Ellis was superseded
because the court did not separately evaluate a double jeopardy claim by
looking to the actual evidence as required by Indiana’s double jeopardy clause.
Thus, Price’s claim of double jeopardy in this regard fails.
[17] In Richardson, the Indiana Supreme Court determined that two or more offenses
constitute the same offense for double jeopardy purposes “if, with respect to
either the statutory elements of the challenged crimes or the actual evidence
used to obtain convictions, the essential elements of one challenged offense also
establish the essential elements of another challenged offense.” Frazier v. State,
988 N.E.2d 1257, 1262 (Ind. Ct. App. 2013) (citing Richardson v. State, 717
N.E.2d 32, 49 (Ind. 1999)). “Whether convictions violate double jeopardy is a
question of law which we review de novo.” Id.
5
As noted supra, the State relied upon evidence of two acts occurring during the initial sexual encounter
between Price and C.D. as establishing the charges set out in Counts I and II.
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[18] The focus here is on the actual evidence used to convict Price of the offenses.
This analysis requires a consideration of whether there is a reasonable
possibility that the evidentiary facts used to establish the essential elements of
one offense may also have been used to establish all of the essential elements of
the other challenged offense. See Spivey v. State, 761 N.E.2d 831, 833 (Ind.
2002) (“the Indiana Double Jeopardy Clause is not violated when the
evidentiary facts establishing the essential elements of one offense also establish
only one or even several, but not all, of the essential elements of a second
offense”). The possibility must be reasonable, not speculative or remote. Griffin
v. State, 717 N.E.2d 73, 89 (Ind. 1999).
[19] As delineated by the State, Count I was supported by evidence that Price, being
at least twenty-one years of age, performed “other sexual conduct,” in that he
placed his mouth on C.D.’s sex organ, i.e., her vagina. See I.C. § 35-42-4-
9(a)(1); Ind. Code § 35-31.5-2-221.5 (defining “[o]ther sexual conduct” as an act
involving “a sex organ of one (1) person and the mouth or anus of another
person”). With regard to Count II, the State relied on separate evidence that
Price penetrated C.D.’s vagina with an object, i.e., his fingers. See I.C. § 35-
31.5-2-221.5 (defining “[o]ther sexual conduct” as including “the penetration of
the sex organ . . . of a person by an object). Notwithstanding the fact that Price
performed both of these acts during the first sexual encounter with C.D., the
two offenses are based on separate and distinct acts. Thus, Price’s convictions
under Counts I and II do not violate double jeopardy principles. See Vermillion
v. State, 978 N.E.2d 459, 465 (Ind. Ct. App. 2012) (finding no double jeopardy
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violation where two convictions for sexual misconduct with a minor were based
on separate, distinct facts occurring during a single encounter).
3. Inappropriate Sentence
[20] Price argues that his sentence is inappropriate in light of the nature of the
offense and his character. Article 7, section 4 of the Indiana Constitution grants
our Supreme Court the power to review and revise criminal sentences. See
Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014), cert. denied, 135 S. Ct. 978
(2015). Pursuant to Ind. Appellate Rule 7, the Supreme Court authorized this
court to perform the same task. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.
2008). Per App. R. 7(B), we may revise a sentence “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.” Inman v.
State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R. 7). “Sentencing review
under Appellate Rule 7(B) is very deferential to the trial court.” Conley v. State,
972 N.E.2d 864, 876 (Ind. 2012). “Such deference should prevail unless
overcome by compelling evidence portraying in a positive light the nature of the
offense (such as accompanied by restraint, regard, and lack of brutality) and the
defendant’s character (such as substantial virtuous traits or persistent examples
of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[21] The determination of whether we regard a sentence as inappropriate “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
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case.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell, 895
N.E.2d at 1224). Moreover, “[t]he principal role of such review is to attempt to
leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). It is
not our goal in this endeavor to achieve the perceived “correct” sentence in
each case. Knapp, 9 N.E.3d at 1292. Accordingly, “the question under
Appellate Rule 7(B) is not whether another sentence is more appropriate;
rather, the question is whether the sentence imposed is inappropriate.” King v.
State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in original).
[22] In order to assess the appropriateness of a sentence, we first look to the
statutory range established for the classification of the relevant offense. Price
was convicted of two Level 4 felonies, the statutory range for which is two to
twelve years with an advisory sentence of six years. See Ind. Code § 35-50-5-
5.5. Price was also convicted of a Level 5 felony, the statutory range for which
is one to six years with an advisory sentence of three years. See I.C. § 35-50-2-6.
Here, Price was sentenced to one year less than the advisory with respect to the
Level 4 felonies and the advisory sentence of three years, which the trial court
suspended, on the Level 5 felony. He thus bears a particularly heavy burden in
persuading us that his sentence is inappropriate. See Fernbach v. State, 954
N.E.2d 1080, 1089 (Ind. Ct. App. 2011) (noting that because the advisory
sentence is the starting point the legislature has chosen as appropriate for the
crime committed, a defendant who has received the advisory sentence bears a
particularly heavy burden in persuading us that his sentence is inappropriate),
trans. denied.
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[23] One fact that relates to both the nature of the offense and the character of the
offender is that before every sexual encounter between Price and C.D., Price
provided vodka to C.D., who was at the time just fourteen/fifteen years old.
C.D. testified that after consuming the alcohol, her faculties were impaired in
that she felt dizzy and disoriented and experienced what she described as
tunnel-vision. A second fact that relates to both considerations is that Price was
in a position of trust as C.D., being his wife’s youngest sister, was a member of
his family. Perhaps in recognition that Price does not have a criminal history,
the trial court sentenced him to one year less than the advisory sentence for
each Level 4 felony and suspended the three-year advisory sentence on the
Level 5 felony. Given the foregoing, we cannot say that Price’s aggregate
thirteen-year sentence with three years suspended for three separate instances of
sexual misconduct with a minor is inappropriate.
[24] Judgment affirmed.
Najam, J. and Robb, J., concur.
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