Karl A. Wikstrom, Jr. v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Aug 31 2015, 8:50 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Patricia Caress McMath Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Brian Reitz
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Karl A. Wikstrom, Jr., August 31, 2015
Appellant-Defendant, Court of Appeals Case No.
52A02-1502-CR-65
v. Appeal from the Miami Circuit
Court
State of Indiana, The Honorable Timothy P. Spahr,
Appellee-Plaintiff Judge
Trial Court Cause No.
52C01-1208-FA-58
Bradford, Judge.
Case Summary
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[1] Over a period of two years, Appellant-Defendant Karl Wikstrom sexually
molested his step-daughters when they were between the ages of twelve and
fourteen. Wikstrom was convicted of four counts of Class A felony child
molestation, one count of Class C felony child molesting, and one count of
Class D felony child solicitation. The court imposed an aggregate 124-year
sentence: four years for count 1, Class C felony child molesting; one-and-a-half
years on count 2, Class D felony child solicitation; and thirty years on each of
the four counts of Class A felony child molesting, with counts 1 and 2 to be
served concurrently and the remaining counts to be served consecutively.
Wikstrom argues that his sentence is inappropriate and should be revised
pursuant to Indiana Appellate Rule 7(B). We affirm Wikstrom’s sentence.
Facts and Procedural History
[2] Wikstrom and Leslie Wikstrom (“Leslie”) married in 2002. Leslie had two
daughters from a previous marriage, Sa.B. and Sh.B., who were born in 1996
and 1998, respectively. Wikstrom and Leslie had one child together, K.W, who
was born in 2002. In 1999, Wikstrom injured his back at work, was
permanently disabled and unable to work, received disability benefits, and was
prescribed pain medication. Wikstrom would typically take his prescribed
medication by crushing and snorting it, a process he would carry out in front of
the children. Sa.B. testified that the medication would make Wikstrom violent
and aggressive.
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[3] In 2010, Sa.B. and Sh.B. lived with Wikstrom, Leslie, and K.W. at the Cedar
Creek Mobile Home Park in Peru, Indiana. Leslie and Wikstrom lived in
separate mobile home trailers because the two would often fight and separate.
On one occasion when Sa.B. was thirteen years old, Wikstrom entered her
room, asked her to wake up, gave her an unidentified white pill, and took her
into the back bedroom, where she laid in bed between Leslie and Wikstrom. At
some point, Leslie performed oral sex on Wikstrom after which Sa.B. was
instructed to and did perform oral sex on Wikstrom. During this incident,
Leslie touched Sa.B.’s breasts and Wikstrom inserted his finger into Sa.B.’s
vagina. This was the first incident of sexual misconduct between Sa.B. and
Wikstrom.
[4] A couple weeks after the first incident, Wikstrom approached Sa.B. while she
was in the bathroom and requested that she perform oral sex on him. After
refusing several times, Sa.B. ultimately submitted to Wikstrom’s request. Sa.B.
then told Wikstrom that “[she] couldn’t do it anymore because [her] throat
hurt,” at which point “he got mad and told [Sa.B.] to get the f[***] out of the
bathroom.” Tr. p. 350.
[5] On September 21, 2010, Wikstrom was arrested for domestic battery. Leslie
and the children stayed in a domestic violence shelter for approximately two
weeks until the domestic abuse charges against Wikstrom were dropped at
Leslie’s request.
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[6] After being evicted from their trailers on November 19, 2010, Wikstrom, Leslie,
and the three children moved into a single room at Skyview Motel in which
Wikstrom and Leslie slept in one bed and the three children slept in the
adjacent bed. On one occasion at Skyview, Wikstrom approached then-twelve-
year-old Sh.B. while the two were alone in the room and asked her to perform
oral sex on him, which she did. At the time, a pornographic film was playing
on the television. While the family lived at Skyview, Wikstrom played
pornographic films nearly every night. Sa.B. and Sh.B. saw and heard
Wikstrom and Leslie having sex most nights.
[7] The first incident of sexual misconduct involving Sa.B. at Skyview occurred late
one night when then-thirteen-year-old Sa.B. got up to use the bathroom.
Wikstrom requested that Sa.B. perform oral sex on him. Sa.B. initially refused
before finally giving in to his requests. During this incident, Sa.B. performed
oral sex on both Wikstrom and Leslie, and Leslie performed oral sex on Sa.B.
During the month that the family lived at Skyview, Sa.B. estimated that she had
approximately fifty sexual encounters with Leslie and Wikstrom.
[8] In December 2010, the family moved to a home on North Lincoln Street in
Peru. A couple months after moving to the Lincoln street home, Leslie came
into Sh.B.’s room at night, woke her up, and asked if she would go into
Wikstrom’s bedroom an perform oral sex on him. Sh.B. began crying and
pleaded not to. The following night, Leslie asked Sh.B. if she would “squeeze
in between” Wikstrom and Leslie while they had sex, to which Sh.B. complied.
Tr. p. 290. During this encounter, Sh.B. gave Wikstrom a “hand job,” tr. p.
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290, Wikstrom touched Sh.B.’s breast, Leslie performed oral sex on Sh.B., and
Wikstrom attempted to have anal sex with Sh.B.
[9] A couple weeks later, in February or March of 2011, Wikstrom approached
Sh.B. and again asked her to perform oral sex on him, which she did.
Afterward, Wikstrom masturbated in front of Sh.B. Sh.B. estimated that while
living at the Lincoln street home, she had “five or ten” sexual encounters with
Wikstrom and performed oral sex on him four or five times. Tr. p. 295.
[10] In May 2012, the Department of Child Services (“DCS”) began investing the
family after receiving reports of fighting and drug abuse. On May 14, 2012,
Sa.B. and Sh.B. were placed in foster care. A couple months after being placed
in foster care, Sh.B. admitted that she had been physically, verbally, and
sexually abused by Wikstrom. On August 10, 2012, the State of Indiana (“the
State”) charged Wikstrom with five counts of Class A felony child molesting,
one count of Class C felony child molesting, and one count of Class D felony
child solicitation. On December 11, 2014, a jury found Wikstrom guilty of four
of the five counts of Class A felony child molesting, Class C felony child
molesting, and Class D felony child solicitation.
[11] In fashioning its sentence, the trial court identified two aggravating factors:
Wikstrom’s position of trust and the significant harm to the victims. Both
victims were diagnosed with post-traumatic stress disorder (“PTSD”), required
in-patient treatment for five days following their removal from the home, had
been receiving counseling for two-and-a-half years at the time of sentencing to
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address the PTSD issues, and will require ongoing therapy. The trial court
found that Wikstrom’s lack of criminal convictions was a mitigating factor,
although afforded it little weight due to the evidence suggesting that “there was
a period of ongoing and estensive, continuing drug activity, illegal drug activity
on the part of both of the adults in the [] home….that blunts the argument that
[the lack of criminal history] should somehow serve as a very significant
mitigator.” Tr. p. 591. The court imposed an aggregate 124-year sentence: four
years for count 1, Class C felony child molesting; one-and-a-half years on count
2, Class D felony child solicitation; and thirty years on each of the four counts
of Class A felony child molesting, with counts 1 and 2 to be served concurrently
and the remaining counts to be served consecutively.
Discussion and Decision
[12] Wikstrom argues that his 124-year sentence is inappropriate in light of the
nature of his offenses and his character. “Ind. Appellate Rule 7(B) empowers
us to independently review and revise sentences authorized by statute if, after
due consideration, we find the trial court’s decision inappropriate in light of the
nature of the offense and the character of the offender.” Anderson v. State, 989
N.E.2d 823, 827 (Ind. Ct. App. 2013), trans. denied. “An appellant bears the
burden of showing both prongs of the inquiry favor revision of [his] sentence.”
Id. (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)). “We must give
‘deference to a trial court’s sentencing decision, both because Rule 7(B) requires
us to give due consideration to that decision and because we understand and
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recognize the unique perspective a trial court brings to its sentencing
decisions.’” Gil v. State, 988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013) (quoting
Trainor v. State, 950 N.E.2d 352, 355-56 (Ind. Ct. App. 2011), trans. denied.)
[13] Indiana Code section 35-50-1-2 provides that the trial court shall determine
whether terms of imprisonment shall be served concurrently or consecutively
and that the court may consider the aggravating and mitigating circumstances
in making such a determination. “The decision to impose consecutive or
concurrent sentences is within the trial court’s sound discretion and is reviewed
only for an abuse of discretion…. A single aggravating circumstance may
support the imposition of consecutive sentences.” Gellenbeck v. State, 918
N.E.2d 706, 712 (Ind. Ct. App. 2009) (citations omitted).
[14] Initially, we note that the trial court imposed the advisory sentence for each of
the convictions and that Wikstrom was eligible for a sentence of up to 211
years. However, Wikstrom argues that the trial court’s decision to run the
sentences consecutively was inappropriate. Wikstrom argues that his offenses
were comparable to those at issue in Smith v. State, 889 N.E.2d 261 (Ind. 2008).
Smith was convicted of four counts of Class A felony child molesting, one
count of Class C felony child molesting, and one count of Class D felony
fondling in the presence of a minor. Id. at 262. Smith had engaged in sexual
misconduct with his step-daughter on numerous occasions over a four-year
period. Id. The victim was between the ages of ten and thirteen during the
various incidents. Id. The trial court sentenced Smith to an aggregate 120-year
sentence, thirty years for each Class A felony conviction to be served
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consecutively. Id. On appeal, the Indiana Supreme Court revised the sentence
to “a total executed sentence of 60 years (consecutive standard 30-year terms on
two counts, remaining terms concurrent).” Id. at 264. The Court reasoned as
follows:
We assign aggravating weight in the low range to Smith’s prior
criminal history….We assign mitigating weight in the low range
to Smith’s poor mental health. Taken together, these factors do
not warrant any deviation from the presumptive sentence of 30
years imposed by the trial court for each count. However, we
find that Smith’s repeated molestations of K.J., together with his
violation of his position of trust and his infliction of
psychological abuse, warrant the sentence on one of these counts
being imposed consecutive to one of the other counts. We direct
that the sentences on the remaining two counts be served
concurrently with the other two.
Id.
[15] Wikstrom also cites to Pierce v. State to bolster his argument that his sentence
should be revised. 949 N.E.2d 349 (Ind. 2011). In Pierce, the Indiana Supreme
Court reduced defendant’s sentence for three convictions of Class A felony
child molestation and one count of Class C felony child molesting from 134
years to eighty years. Id. at 353. The Court found that reducing the sentence
was appropriate where there was only one victim.
“Whether the counts involve one or multiple victims is highly
relevant to the decision to impose consecutive sentences....”
[Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).]. See also
Harris v. State, 897 N.E.2d 927, 930 (Ind. 2008) (revising
consecutive child molesting sentences to run concurrently where
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there was only one victim); Smith v. State, 889 N.E.2d 261, 264
(Ind. 2008) (same); Monroe v. State, 886 N.E.2d 578, 580 (Ind.
2008) (same). Cf. Sanchez v. State, 938 N.E.2d 720, 723 (Ind.
2010) (acknowledging that “generally, multiple victims justify the
imposition of enhanced and consecutive sentences”).
Id.
[16] Wikstrom’s argument is unpersuasive. We find that Pierce and Smith do not
support the reduction of Wikstrom’s sentence and instead provide significant
justification for the trial court’s imposition of consecutive sentences. Although
the Courts in both Pierce and Smith reduced defendants’ overall sentences, both
defendants still received consecutive sentences for Class A felony child
molesting despite the fact that there was only one victim in those cases. The
principal distinction in the instant case is that there were two victims of
Wikstrom’s predatory behavior, a fact which is “highly relevant” in the decision
to impose additional consecutive sentences. Cardwell, 895 N.E.2d at 1225.
[17] Furthermore, in regards to the nature of the offense, Wikstrom’s crimes were
particularly egregious. Wikstrom molested the victims during “so many
incidents, that [you] can’t [] put a number to it,” tr. p. 313, “it was a constant
thing.” Tr. p. 356. The record reveals that Wikstrom perpetrated these
molestations on a nearly daily basis. In addition to the direct molestations,
Wikstrom’s constant overtly sexual behavior permeated every facet of the
victims’ lives. When the family lived in a single motel room, Wikstrom
continued to play pornographic films daily and would have sex with Leslie in
front of the children. Wikstrom openly discussed his sex life with Leslie with
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the children and would “take it out on [Sh.B.], Leslie, and [Sa.B.]” when “he
didn’t get sex that day.” Tr. p. 279. Sa.B. testified that on one occasion,
Wikstrom gave her an unidentified white pill before engaging her sexually with
Leslie. The victims also reported that Wikstrom would become verbally
abusive when they were reluctant to submit to his sexual advances. In sum, the
victims were sexually, physically, and verbally abused so comprehensively and
consistently that it was inescapable.
[18] Although Wikstrom’s lack of criminal history is an appropriate mitigating
factor, the record portrays Wikstrom’s character much more poorly. In
addition to the general depravity necessary to commit the instant crimes, the
record indicates that “there was a period of ongoing and extensive, continuing
[] illegal drug activity on the part of both adults [] in the home, both Mr.
Wikstrom and his wife.” Tr. p. 591. Sa.B. testified that Wikstrom would abuse
his medication by crushing and snorting it and would thereafter become
aggressive and violent.
[19] Wikstrom’s offenses and character more than justified his sentence. “Whether
the counts involve one or multiple victims is highly relevant to the decision to
impose consecutive sentences if for no other reason than to preserve potential
deterrence of subsequent offenses. Similarly, additional criminal activity
directed to the same victim should not be free of consequences.” Cardwell, 895
N.E.2d at 1225. In light of this precedent, it was not inappropriate for the trial
court to impose separate consecutive sentences when considering both the
repeated nature of the offenses and the multiple victims.
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[20] The judgment of the trial court is affirmed.
May, J., and Crone, J., concur.
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