Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be May 31 2013, 9:36 am
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:
CHRIS M. TEAGLE GREGORY F. ZOELLER
Muncie, Indiana Attorney General of Indiana
KARL M. SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JASON A. DAVISON, )
)
Appellant-Defendant, )
)
vs. ) No. 05A02-1211-CR-968
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE BLACKFORD CIRCUIT COURT
The Honorable Dean A. Young, Judge
Cause No. 05C01-1111-FC-429
May 31, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
Jason A. Davison appeals his conviction for Child Molesting 1 as a class C felony, as
well as the sentence imposed by the trial court. Davison raises the following issues on
appeal:
1. Did fundamental error occur when the trial court failed to sua sponte
admonish the jury not to consider Davison’s testimony concerning a
polygraph examination?
2. Is Davison’s four-year advisory sentence inappropriate in light of the
nature of the offense and his character?
We affirm.
In 2010, twelve-year-old H.B., who lived in Muncie with her father, spent much of the
summer visiting her mother, Kristie Oliver, who lived in Hartford City. Oliver and her
husband lived in a one-bedroom apartment above Davison’s detached garage. Davison lived
in the house with his mother, wife, two daughters, and H.B.’s half-sister, E.S. When H.B.
would come to visit, she also stayed in the house.
During the week following her twelfth birthday, H.B. accompanied Davison and his
family to the Hartford City Pool. When the group returned to the house, they watched a
movie and ate dinner. At some point, people began going to bed, and eventually only
Davison, H.B., and E.S. were awake. At that point, the three of them began watching videos
on Davison’s computer. At around 11:00 or 12:00, E.S. went upstairs to bed, leaving
Davison and H.B. alone. About ten minutes after E.S. went to bed, Davison reached over
and put his hand up the leg of H.B.’s shorts and touched the outside of her vagina. H.B.
1 Ind. Code Ann. § 35-42-4-3 (West, Westlaw current through P.L. 171 with effective dates through May 7,
2013).
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pushed Davison’s hand away and told him that she was going to bed. Davison then withdrew
his hand and stuck his finger in his mouth, and H.B. went upstairs and went to bed.
H.B. did not speak to anyone about the incident until approximately a year later, when
she told her aunt. As a result, a report was made to Child Protective Services and an
investigation ensued. During a police interview, Davison confessed to fondling H.B. and
wrote her an apology letter.
On November 1, 2011, the State charged Davison with class C felony child molesting.
A two-day jury trial commenced on September 18, 2012, and Davison was found guilty as
charged. A sentencing hearing was held on October 16, 2012, and Davison was sentenced to
an executed four-year term in the Department of Correction. This appeal ensued.
1.
Davison first argues that the trial court committed fundamental error when it failed to
sua sponte admonish the jury not to consider Davison’s testimony concerning a polygraph
examination. During the police investigation, Davison agreed to take a polygraph
examination, which was scheduled for October 27, 2011. Because Davison confessed to the
offense during the pre-exam interview on that date, the polygraph was not administered.
During his trial testimony, Davison made mention of the scheduled polygraph three times.
First, on direct examination, when defense counsel asked Davison why he wrote H.B. an
apology letter, Davison stated
Originally I was not supposed to be there for an interview. I was there
voluntarily to take a polygraph test that was never administered. Officer
Beckley was supposed to administer a polygraph to me, and he sat there and
told me that he would explain everything about it and that if I had any
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questions after that to ask them. He explained how a polygraph works and I
asked him one question. I said, “Since this has been going on, I’ve been
reading the charges against me over and over again and I started… I had been
starting to have nightmares about it. I don’t know what the nightmares or what
caused the nightmares, but I, uhm, but will me having nightmares about what
I’ve been reading cause, cause any problems with the polygraph?”
Transcript at 70. On cross-examination, Davison made two more references to the scheduled
polygraph examination. Specifically, he testified that a video of his confession was edited
such that it did not show “the fact that [he] was there for a polygraph.” Id. at 72. He again
mentioned the polygraph in the context of claiming that Officer Beckley coerced him into
making a false confession. Specifically, he claimed that before beginning the polygraph, he
explained to the officer that he was under stress, sleep-deprived, and not feeling well.
According to Davison, Officer Beckley asked him if he wanted to go ahead with the
polygraph, and he responded affirmatively.
Davison acknowledges that he did not object to any of this testimony, but argues that
its admission amounted to fundamental error. The fundamental error rule is “extremely
narrow” and applies “only when the record reveals a clearly blatant violation of basic and
elementary principles, where the harm or potential for harm cannot be denied, and which
violation is so prejudicial to the rights of the defendant as to make a fair trial impossible.”
Jewell v. State, 887 N.E.2d 939, 942 (Ind. 2008). The error alleged in this case falls far short
of these requirements.
We note that as a general matter, “reference to a polygraph examination without an
agreement by both parties is inadmissible and grounds for error.” Shriner v. State, 829
N.E.2d 612, 618 (Ind. Ct. App. 2005) (quoting Glenn v. State, 796 N.E.2d 322, 325 (Ind. Ct.
4
App. 2003)). “A defendant is prohibited from stating he offered to take a polygraph test and
the State is equally prohibited from referring to such a test.” Id. (quoting Couch v. State, 527
N.E.2d 183, 185 (Ind. 1988)). Because the parties never agreed to the admission of evidence
concerning the polygraph, Davison was prohibited from mentioning it during his testimony.
We note, however, that “[t]he mere fact that error occurred and that it was prejudicial
will not satisfy the fundamental error rule.” Absher v. State, 866 N.E.2d 350, 355 (Ind. Ct.
App. 2007). As an initial matter, it is clear that any error resulting from Davison’s own
testimony concerning the polygraph was invited by Davison, and therefore does not amount
to fundamental error. See Kingery v. State, 659 N.E.2d 490 (Ind. 1995) (alleged error in
admission of testimony elicited from a witness by defense counsel was invited and not
fundamental). Moreover, we fail to see how Davison’s testimony concerning the polygraph
made a fair trial impossible in this case. In fact, it appears that the testimony would have
aided him in his defense. Indeed, Davison’s testimony that he offered to take a polygraph
examination but the police declined to administer one would have bolstered his credibility,
and he relied on the circumstances surrounding the scheduled polygraph to attempt to explain
away his confession and support his claim that he was coerced. For all of these reasons, we
cannot conclude that the trial court’s failure to give an admonishment amounted to
fundamental error.
2.
Next, Davison 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
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Court the power to review and revise criminal sentences. 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 (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.” Wilkes v. State, 917
N.E.2d 675, 693 (Ind. 2009), cert. denied, 131 S.Ct. 414 (2010). Nevertheless, “we must and
should exercise 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
recognize the unique perspective a trial court brings to its sentencing decisions.” Stewart v.
State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007).
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.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
Furthermore, “[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.” Id. at 1225. 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).
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Davison committed class C felony child molesting, for which the sentencing range is
two to eight years, with an advisory sentence of four years. Ind. Code Ann. § 35-50-2-6
(West, Westlaw current through P.L. 171 with effective dates through May 7, 2013).
Davison received the four-year advisory sentence. “Since the advisory sentence is the
starting point our General Assembly has selected as an appropriate sentence for the crime
committed, the defendant bears a particularly heavy burden in persuading us that his sentence
is inappropriate when the trial court imposes the advisory sentence.” Fernbach v. State, 954
N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied. Davison has not satisfied that burden
in this case.
With respect to the nature of the offense, we note that Davison stuck his hand up the
leg of twelve-year-old H.B.’s shorts and touched the outside of her vagina, and when she
pushed his hand away, stuck his finger in his mouth. Davison argues that the nature of the
offense warrants revision because he did not penetrate H.B.’s vagina with his finger, he did
not use physical force or threaten H.B, and the molestation was an isolated incident. Davison
fails to acknowledge, however, that if he had penetrated H.B.’s vagina, he could have been
convicted of child molesting as a class A felony, which carries a potential sentence of up to
fifty years in prison. See I.C. § 35-42-4-3 (providing that a person who is at least twenty-one
years of age and performs or submits to deviate sexual conduct with a child under fourteen
years of age commits class A felony child molesting); I.C. § 35-50-2-4 (West, Westlaw
current through P.L. 171 with effective dates through May 7, 2013) (setting forth sentencing
range for class A felonies); Hurley v. State, 560 N.E.2d 67 (Ind. Ct. App. 1990) (noting that
7
deviate sexual conduct is defined in part as the penetration of the sex organ of a person by an
object, and holding that a finger is an object for the purposes of the statute). Although we
acknowledge that Davison did not engage in a repeated pattern of molesting H.B. or use
threats or physical force against her, we also note that in molesting H.B., he violated a
position of trust. H.B. testified that she had known Davison her whole life, and the record
reveals that she spent extensive time with him and his family.
With respect to the character of the offender, Davison points out that he had no prior
criminal convictions. We note, however, that Davison readily admitted to sexually abusing
another girl. Specifically, at his sentencing hearing, Davison testified that nine or ten years
ago, he “fingered” a fifteen-year-old girl. Transcript at 156. In light of this information, we
cannot conclude that Davison’s history of steady employment and the financial support he
has provided to his family warrants a downward revision of his sentence. For all of these
reasons, we conclude that Davison’s four-year advisory sentence is not inappropriate.
Judgment affirmed.
ROBB, C.J., and CRONE, J., concur.
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Jason Davison v. State of Indiana
Combined Opinion