BROWN, Judge.
In this consolidated appeal, Robert Huskey appeals his convictions and sentence for attempted sexual misconduct with a minor as a class B felony
We affirm.
The relevant facts follow. In 1996, pursuant to a plea agreement Huskey pled guilty to criminal confinement as a class B felony under Cause No. 37, and the court sentenced Huskey to twenty years, all suspended to probation.
On August 25, 2009, Huskey and his former wife Edith had family members over to their house for dinner and a card game. The family members included Huskey's granddaughter, N.H., who was born on May 6, 1995, and N.H.'s father. N.H. texted and talked on the phone with her friend S.F., and N.H.'s father played cards.
At some point, N.H. wished to go home to her father's house, and Huskey offered to give her a ride. During the trip home, N.H. told Huskey that she was thinking about having sex, and Huskey told her that she "needed to be careful and . . . needed to masturbate or . . . finger [her]self" and that "[t]hat way [she] don't get hurt when [she] have it." Transcript at 243.
After Huskey and N.H. arrived at N.H.'s house, N.H. went to check the phone to see if S.F. had called because she was expecting a call from her, and Huskey went inside with N.H. Huskey approached N.H., and N.H. believed Huskey was going to give her a hug before he left, but Huskey then kissed N.H. on the lips. Huskey "pulled down [N.H.'s] top and got [her] breast out" and "sucked on [her] nipple."
N.H. went to her room, saw that Huskey had left, and spoke with S.F. on the phone, crying and telling S.F. that she was upset because of what had just happened with Huskey. S.F. called N.H.'s father, who was still at Huskey's house, and told him that he needed to go home because N.H. was upset. N.H.'s father went home, and N.H. told him what Huskey did to her. N.H.'s father then returned to Huskey's house and confronted him. Huskey stated that he had tried to hug N.H. and she took it the wrong way. N.H.'s father asked Huskey to go to Florida, where Edith had a home, and Huskey agreed. The following morning, Huskey and Edith left to travel to Florida.
Indiana State Police Detective Vance Patton investigated the case and, in October 2009, obtained a warrant for Huskey's arrest. On October 2, 2009, the State charged Huskey under Cause No. 21 with: Count I, attempted sexual misconduct with a minor as a class B felony;
During voir dire prior to Huskey's jury trial, a prospective juror indicated that she had a brother who had been convicted of incest in the same courtroom where Huskey's trial was being conducted and that she did not believe the evidence was strong enough to convict her brother. The State asked for the juror to be removed for cause, and the court granted the State's challenge. During the trial, the State presented evidence and testimony which included the testimony of N.H., S.F., N.H.'s father, and Detective Patton, and Huskey's defense presented evidence which included the testimony of Huskey and Edith. N.H. testified that she and Huskey had discussed sex at times and more frequently when N.H. became older. N.H. testified that Huskey and Edith had previously obtained and paid for birth control for her, that Huskey was the first one that mentioned it, and that her father was against it. N.H. testified that, when Huskey moved his hand down to unbutton her pants, she "knew what he was going to do," and when asked what she believed Huskey was attempting to do, she testified "to finger me." Transcript at 244-245. The jury found Huskey guilty of the charged offenses under Cause No. 21.
After a hearing in Cause No. 37, the court revoked Huskey's probation and ordered that he serve his previously-suspended sentence of twenty years in the Indiana Department of Correction. Following a sentencing hearing in Cause No. 21, the court found no mitigating circumstances, found the aggravating circumstances to include Huskey's history of delinquent or criminal behavior, the fact that he has recently violated probation, and the fact that he was in a position having care, custody, or control of the victim at the time of the offense, and the court sentenced Huskey to fifteen years and ordered the sentence to be served consecutive to the reinstated sentence under Cause No. 37.
The first issue is whether the court abused its discretion in removing a prospective juror for cause. Huskey argues that "[d]espite her experiences from her brother's trial, [the prospective juror] assured the court she was unbiased and could render a decision based on the evidence," that "[a]cknowledging it was a tough call, the court granted the State's strike for cause," that the juror "was not saying she would unfairly favor the defendant" but that "[w]hat [she] was concerned with was that the State actually prove its's [sic] case beyond a reasonable doubt," and that "[t]his attitude is highly appropriate given the seriousness of a criminal case." Appellant's Brief at 8-10.
The State argues that the prospective juror's brother had been convicted of incest three years prior to Huskey's trial and in the same courtroom as Huskey's trial and that the juror disagreed with the result of her brother's case. The State argues that "[i]t therefore stands to reason that she likely harbored resentment against the prosecutor's office," that the juror's "statements as a whole show that she was disinclined to convict a defendant in a he-said, she-said type of case," that "[h]ad [the prospective juror] been seated on the jury, her voir dire responses and accompanying demeanor suggest that this case would have reminded her too much of her brother's trial for her to decide it dispassionately," and that "[a]lthough [the juror] said in general terms that she could follow the law and convict if the State proved its case, she never said that she could lay aside her specific views about the kind of proof she regarded as alone sufficient to meet the State's burden." Appellee's Brief at 12-14 (citations to record omitted). In his reply brief, Huskey argues that "[t]he State's argument is based on conjecture that because [the prospective juror's] brother had been convicted, [the juror] could not be fair or impartial in Huskey's case" and that "[t]his is contrary to [the juror's] testimony that she would not unfairly favor the defendant." Appellant's Reply Brief at 3.
Article 1, Section 13 of the Indiana Constitution guarantees criminal defendants the right to trial by an impartial jury.
During voir dire, prospective juror D.S. revealed: "I had a brother who was accused of incest and was tried here in this courtroom. And I feel, he didn't have a jury trial. I felt, you know, that if he'd had a jury trial that he was a man that I still feel to this day that was innocent and went to prison." Transcript at 185. D.S. stated that "[a]nd I just strongly believe that, you know, that if there's not evidence to prove someone did something like this, you know, to detriment, to destroy their life . . . the life is basically in[] your hands . . . ."
The State then asked D.S. if she "realize[d] that he say, she say is evidence," and D.S. responded that "It's evidence, but I think that there should be more proof that it is he said, she said," that "I don't think it should just solely go that, yes, this young girl is crying that he did this and the guy is saying, I didn't do it," and that "I just feel that . . . maybe there should have been, could have been and should be more consultation with other resources that are available to the State."
The prosecutor challenged the seating of D.S. on the jury for cause because "she's too close to the last situation and she basically said that she can't render a verdict based upon two people saying different things like a he said, she said case."
Based upon the record, we cannot say the court's decision was illogical or arbitrary, and thus, excusing prospective juror D.S. for cause was not an abuse of discretion.
The next issue is whether Huskey's fifteen-year sentence under Cause No. 21 is inappropriate in light of the nature of the offense and the character of the offender. Ind. Appellate Rule 7(B) provides that this court "may revise a sentence authorized by statute 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." Under this rule, the burden is on the defendant to persuade the appellate court that his or her sentence is inappropriate.
Huskey argues that "N.H. testified the breast touching was quick and [] Huskey stopped when she placed her hand on top of his before he did more than unbutton her pants" and that "[w]hile this is admittedly illegal behavior, the fact that this is a serious crime has already been taken into account by the legislature in making the offenses Class B and C Felonies." Appellant's Brief at 13. Huskey also argues that he "is an old man with many health problems," that "[h]e has been on social security disability for the last two years," that "[w]hile his crime is troubling, he did stop when N.H. asked him to do so," and "[h]e also complied with his son's request for him to go back to Florida to be away from N.H. following this incident."
The State argues that Huskey's fifteen-year sentence is not inappropriate, that the nature of the offense "is that Huskey attempted to digitally penetrate N.H., his fourteen-year-old granddaughter" and that specific evidence that Huskey had the intent to "finger" N.H. is provided by the "conversation between Huskey and N.H. in which he suggested that she `finger' herself before having sex," that "once they got inside the house, [] he unbuttoned her pants and put his hand inside her pants," and that "he told N.H. he wanted to know how `loose' she was or `how many fingers [she could] get.'" Appellee's Brief at 16. The State further argues that Huskey "does not challenge the trial court's finding that he was in a position having care, custody, or control of N.H. at the time of the offense."
Our review of the nature of the offense reveals that, when Huskey was driving N.H. home, she told him that she was thinking about having sex and Huskey told her that she "needed to masturbate or . . . finger [her]self" and that "[t]hat way [she] don't get hurt when [she] have it." Transcript at 243. Once at N.H.'s home, Huskey kissed N.H. on the lips, "pulled down [N.H.'s] top and got [her] breast out" and "sucked on [her] nipple."
In addition, a warrant for Huskey's arrest was issued in October 2009. Law enforcement was unable to locate Huskey at the Florida residence on October 22, 2009. Between August 2009 and December 2010, Huskey moved between Florida, Kentucky, and Ohio. Huskey was eventually arrested in Ohio on December 28, 2010. When officers initially encountered Huskey, he "responded back that that was his brother."
Our review of the character of the offender reveals that, according to the presentence investigation report (the "PSI"), Huskey was born on October 9, 1948, and his criminal history includes convictions for breaking and entering in Ohio in 1968 for which he was sentenced to thirty days in jail, criminal confinement as a class B felony in 1996 under Cause No. 37, and contributing to the unruliness or delinquency of a child as a first degree misdemeanor in Ohio in 2005. The PSI shows that he was charged with desertion in 1972 "for leaving the US Marines without permission" and that Huskey "stated he was AWOL from the Marines for approximately 3-4 years prior to being arrested and returned" and that he was later discharged and released. Appellant's Appendix at 255. The PSI further indicates that Huskey reported that he was receiving social security disability at the time of his arrest for his "medical conditions of COPD-third stage, severe arthritis and a heart valve problem" and that he advised he took medication for his arthritis, a heart medication, a blood thinner pill, and a pill for his prostrate issue, and that he used an inhaler.
After due consideration, we conclude that Huskey has not sustained his burden of establishing that his aggregate sentence of fifteen years under Cause No. 21 is inappropriate in light of the nature of the offense and his character.
The next issue is whether the court abused its discretion in ordering Huskey to serve the entirety of his previously-suspended sentence of twenty years under Cause No. 37 in the Indiana Department of Correction. Huskey argues that his "violation is serious (committing new offenses) and he isn't asking this Court to ignore the violation" and that "[r]ather, he points out he has already been punished severely with a fifteen-year sentence for the new offenses." Appellant's Brief at 16. Huskey argues that he is sixty-three years old and has some serious health concerns, including breathing problems and a leaky heart valve. Huskey argues that "[r]evocation of his entire sentence was not necessary to bring about his reform."
The State argues that "Huskey does not point to any facts or circumstances that the trial court improperly failed to consider, nor does he claim that the court based its decision upon impermissible or unsupported reasons" and that "[t]hus, Huskey has not presented a cognizable claim that the trial court abused its discretion." Appellee's Brief at 20-21. The State further argues that "it was reasonable for the trial court to revoke all twenty years of Huskey's suspended sentence," that in 1996 the court "initially granted Huskey considerable leniency by suspending his entire sentence" under Cause No. 37, that in 2006 the court "continued that leniency in finding that his probation violation by committing a new criminal offense in Ohio did not warrant revocation," and that "[n]ow, after a second new conviction for crimes committed in 2009, the court was well within its discretion to conclude that enough was enough and that the original suspension of the twenty-year sentence should no longer stand."
Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled.
The record reveals that in 1996 Huskey pled guilty under Cause No. 37 to criminal confinement as a class B felony for removing his former wife from Indiana by force using a deadly weapon, and the court sentenced Huskey pursuant to a plea agreement to twenty years, all suspended to probation. In July 2005, a petition for probation violation hearing was filed alleging that Huskey committed a new criminal offense, namely, that Huskey committed the offense of contributing to the delinquency of a minor as a misdemeanor in Ohio. The court found that Huskey had violated his probation but did not order that Huskey serve any portion of his suspended sentence and continued probation. On May 20, 2010, the probation department filed a probation violation hearing based upon the charges against Huskey under Cause No. 21. Following Huskey's conviction under Cause No. 21, the court held a hearing in Cause No. 37 and ordered that Huskey serve the entirety of his previously-suspended sentence of twenty years in the Indiana Department of Correction.
Given Huskey's criminal history and probation violation, we cannot say that the court abused its discretion in ordering him to serve the entire portion or balance of his previously-suspended sentence.
For the foregoing reasons, we affirm Huskey's convictions and sentence under Cause No. 21 and the court's order that he serve his previously-suspended sentence in the Department of Correction under Cause No. 37.
Affirmed.
BAKER, J., and KIRSCH, J., concur.
