ATTORNEY FOR APPELLANT : ATTORNEYS FOR APPELLEE:
DANA CHILDRESS-JONES STEVE CARTER
Indianapolis, Indiana Attorney General of Indiana
GARY DAMON SECREST
Deputy Attorney General
LESLEY KREBS, ) ) Appellant-Defendant, ) ) vs. ) No. 49A04-0310-CR-549 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
(Appellants App. at 55-56.) The State elicited testimony from P.K. about three
incidents of sexual abuse. She testified the first incident occurred when she
was between nine and ten years old. The following exchange took place
during direct examination:
Q And do you recall - approximately how old were you at the time the sexual abuse began.
A That would be between 9 and 10.
(Tr. at 43-45.)
Child molesting under Ind. Code § 35-42-4-3 encompasses the acts of sexual intercourse, deviate sexual conduct, and fondling or touching with the intent to arouse sexual desires. Downey v. State, 453 N.E.2d 794, 796 (Ind. Ct. App. 2000). In Count I, Krebs was charged with and convicted of child molesting by deviate sexual conduct under Ind. Code § 35-42-4-3(a). On this charge, the State was required to prove Krebs (1) performed or submitted to (2) deviate sexual conduct (3) with a child under the age of fourteen. Id. Deviate sexual conduct is an act involving: (1) a sex organ of one person and the mouth or anus of another person; or (2) the penetration of the sex organ or anus of a person by an object. Ind. Code § 35-41-1-9.
In Shackelford v. State, 622 N.E.2d 1340, 1344 (Ind. Ct. App. 1993), we reversed a conviction of child molesting by deviate sexual conduct because the victims testimony made it impossible for the jury to make a finding beyond a reasonable doubt the defendant committed deviate sexual conduct. The victim testified Shackelford had touched one of her private parts with his penis, that he had kissed her private parts, and that she had kissed his private parts. In describing her private parts, the victim included her breasts. She was never asked to define what she meant when she referred to Shackelfords private parts. Though it was clear that an inappropriate touching or fondling took place, the evidence was not sufficient to permit a jury to infer beyond a reasonable doubt that Shackelford had engaged in an act involving his penis and her mouth or anus or her sex organ and his mouth.
Similarly, in this case, while an inappropriate touching clearly took place, the evidence was insufficient to permit a jury to infer beyond a reasonable doubt that Krebs inserted an object, i.e., his finger, into the sex organ of P.K. when she was ten (10) years old. (Appellants App. at 55-56.) Therefore, the evidence was insufficient to convict Krebs as charged on Count I, and the trial court must vacate that conviction. See footnote
Count II of the charging information provides:
On or between April 28, 1997 and March 13, 2002, [Krebs], being at
least twenty-one (21) years of age, did perform or submit to deviate sexual
conduct, an act involving the sex organ of [Krebs], and the mouth of
[L.K.] while [L.K.] was then under the age of fourteen (14) years, that
is: ten (10) years old[.]
Id.) L.K. testified about an incident of sexual abuse where Krebs told
her to get on her knees and he forced her to put her
mouth on his penis. Although L.K. could not remember how old she
was at the time, she testified the temperature outside was about middle
ways . . . some warm . . . kind of a little
chilled outside. (Tr. at 84.) She also testified it was probably
in the fall. (Id). L.K. could not remember the specific date
of the incident; however, as time is not of the essence in child
molestation cases, the State simply had to prove the acts occurred within the
While the charging information alleged L.K. was ten years old, it also indicated the crime occurred between April 28, 1997 and March 13, 2002. During this time, L.K. was ten to fourteen years old. As L.K. testified the abuse started when she was ten, and P.K. called the police on March 13, 2002, when L.K. was fourteen, the jury could reasonably infer the act occurred within the time charged. Therefore, Krebs allegation fails for this count.
Count III of the charging information provides:
On or between April 28, 1999 and April 27, 2000, [Krebs] being at least twenty-one (21) years of age, did perform or submit to deviate sexual conduct, by inserting his finger into the sex organ of [L.K.], while [L.K.] was then under the age of fourteen (14) years, that is: twelve (12) years old[.]
(Appellants App. at 56.) Again, L.K. could not remember how old she
was when the second incident of sexual abuse occurred; however, she testified on
that occasion Krebs took off all of his clothing except his shirt, took
off all of her clothing, took her into a bedroom, and kissed her
and put his finger in her vaginal area. As discussed above, Krebs
abuse of L.K. occurred when she was between ten and fourteen years old.
Although L.K. could not remember the specific date of the incident, it
did not occur near the dividing line between classes of felonies.
Barger, 587 N.E.2d at 1307. Therefore, proof of the exact time the
act occurred is not essential to the States case, and Krebs allegation fails
for this count.
Count IV provides:
On or between March 29, 2000 and March 28, 2001, [Krebs] being at
least twenty-one (21) years of age, did perform or submit to criminal deviate
conduct, by placing his mouth on the sex organ of [P.K.], a child
that was at least fourteen (14) years of age but less than sixteen
(16) years of age[.]
(Appellants App. at 56.) P.K. testified Krebs molested her by inserting his
thumb into her vaginal area when she was probably say--14 - 15.
(Tr. at 47.) Thereafter, she testified to an incident where Krebs unbuttoned
her pants and started licking on [her] vaginal area. (Id. at 50.)
P.K. did not specify when this incident occurred; however, P.K. testified to
this incident after testifying to an incident that occurred when she was fourteen
or fifteen, and P.K. had not yet turned seventeen when she called the
police on March 13, 2002. As time is not of the essence
in a child molestation case, the jury could reasonably infer Krebs committed the
act when P.K. was between fourteen and sixteen.
Count V provides:
On or between April 28, 1999 and April 27, 2000, [Krebs], did perform or submit to any [sic] fondling or touching with [L.K.], a child who was then under the age of fourteen (14) years, that is: twelve (12) years old, with intent to arouse or satisfy the sexual desires of Krebs[.]
(Appellants App. at 56.) The following exchange took place during the direct examination of L.K.:
Q How old were you - how old were you the first time you can recall something happening.
A Age 10[.]
(Tr. at 80-81.) This was sufficient evidence to prove beyond a reasonable
doubt that Krebs engaged in the fondling or touching of L.K. when she
was under fourteen years old. See Barger, 587 N.E.2d 1304, 1307 (Ind.
Krebs also argues the evidence is insufficient to prove he committed child molestation and sexual misconduct because P.K. told a judge the incidents of molestation never happened. During cross-examination, P.K. testified that she had lied to the judge because [she] was in fear of losing [her] daughter. (Tr. at 52.) Krebs son, J.K., testified L.K. and P.K. told him Krebs did not molest them and they had accused Krebs because they were mad at him. The jury heard the testimony and was free to weigh the credibility of the witnesses. Krebs invites us to reweigh the evidence, which we cannot do.
Krebs argues the trial judges imposition of a one hundred year sentence is inappropriate and disproportionate. However, we do not address that argument. Instead we evaluate sua sponte the constitutionality of Krebs sentence under the United States Supreme Courts recent decision in Blakely v. Washington, ___U.S. ____, 124 S. Ct. 2531 (2004).
Prior to Blakely, we reviewed our trial courts sentencing decisions for an abuse of discretion. See, e.g., Bocko v. State, 769 N.E.2d 658, 667 (Ind. Ct. App. 2002), rehg denied, trans. denied 783 N.E.2d 702 (Ind. 2002). If a trial court used aggravating or mitigating circumstances to modify the presumptive sentence, all we required the trial court to do was: (1) identify all significant mitigating and aggravating circumstances; (2) state the specific reason why each circumstance is determined to be mitigating or aggravating; and (3) articulate the courts evaluation and balancing of the circumstances. See id.
However, in Blakely, the Supreme Court held the Sixth Amendment requires a jury to determine beyond a reasonable doubt the existence of aggravating factors used to increase the sentence for a crime above the presumptive sentence assigned by the legislature. 124 S. Ct. at 2536. The Court held the fact of a prior conviction is an exception to this rule. Id. Accordingly, it appears our trial courts no longer have discretion to sentence a criminal defendant to more than the presumptive sentence unless the defendant waives his right to a jury at sentencing, a jury first determines the existence of aggravating factors, or the defendant has a criminal history.
The trial court enhanced Krebs sentences based on the following aggravating circumstances:
Im finding aggravating circumstances throughout this because the crime was particular [sic] heinous crime involving a 10 and a 12 year old daughter who - and he had obviously confronted the victims to commit the crime. Thats aggravating. He was obviously in a position of trust being a father and from the pattern of this occurrence, it would appear that he would probably commit these crimes again, it appears to the Court.
(Tr. at 217-18.)
The trial court then sentenced Krebs to a total of one hundred years in the Indiana Department of Correction, stating:
Im adding 5 years to the 30 years on that. 30 years will be executed in DOC. 5 years will be suspended. On Count II, also a Class A felony, there will be a 30 year sentence to be consecutive with Count I - it will be a 35 year sentence. 30 years executed. 5 years suspended. Count II to be consecutive with Count I. Count III, is a Class A felony. There will be a 30 year sentence. Im finding aggravating circumstances for the same reasons I already stated and Count III will be consecutive with Counts I and II. Count IV is a Class B felony a 10 year stated term. Im finding aggravating circumstances that I repeated and adding 2 years to that. 10 years will be executed consecutive with Counts I, II and III. Count V merged. Count VI is a Class A misdemeanor. There will be a one year sentence to be concurrent with Counts I, II, III, and IV. And executed sentence sentence thereby of 100 years and the aggravating circumstances that I stated - that I considered and repeat for deciding this sentence consecutively.
(Appellants App. at 218.)
The trial court enhanced Krebs sentences based on factual findings without a jury making those findings beyond a reasonable doubt. That procedure violates Krebs Sixth Amendment right to trial by jury. See Blakely, 124 S. Ct. at 2536.