FILED
Jun 17 2019, 8:39 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Jack Kenney Curtis T. Hill, Jr.
Stacy R. Uliana Attorney General of Indiana
Bargersville, Indiana
Tiffany A. McCoy
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nathaniel Hale, June 17, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2920
v. Appeal from the Hamilton
Superior Court
State of Indiana, The Honorable Steven R. Nation,
Appellee-Plaintiff. Judge
Trial Court Cause No.
29D01-1703-F1-2048
Najam, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-2920 | June 17, 2019 Page 1 of 18
Statement of the Case
[1] Nathaniel Hale appeals his convictions for five counts of child molesting, as
Level 1 felonies, following a jury trial. 1 Hale presents the following issues for
our review:
1. Whether the State presented sufficient evidence to support
his convictions.
2. Whether the trial court abused its discretion when it
sentenced him.
3. Whether his sentence is inappropriate in light of the nature
of the offenses and his character.
[2] We affirm.
Facts and Procedural History
[3] In 2016, Hale became engaged to S.F. Hale moved into S.F.’s home, where she
lived with her then-ten-year-old daughter, K.F. One night in September, Hale
went into K.F.’s bedroom while she was sleeping. K.F. heard him enter, but
she pretended to be asleep. Hale reached under the blanket on K.F.’s bed and
put his hand inside K.F.’s pajama pants and underwear. Hale moved his hand
and fingers “up and down or in circular motions” on her “private parts,” which
she later explained referred to her “vagina,” and that it “hurt [K.F.] a lot.” Tr.
Vol. 2 at 207-08. This incident lasted approximately three to six minutes before
1
Hale was also convicted of two counts of child molesting, as Level 4 felonies, but he does not appeal those
convictions.
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Hale left the bedroom. About a week later, Hale entered K.F.’s bedroom again
while she was sleeping, and he used his fingers to go “up or down or [in]
circular motions” on her vagina. Id. at 210.
[4] A week or so after that incident, Hale again entered K.F.’s bedroom while she
was sleeping, and he touched her “on [her] private parts” under her underwear
“doing the same motions” as before. Id. at 212. Hale also took K.F.’s hand
and put her hand on his penis “and made [her] hand go up and down with his
hand.” Id. After approximately ten minutes, Hale left K.F.’s bedroom.
[5] One night, K.F. fell asleep on a couch in the living room. Hale sat down on the
couch next to her and touched K.F.’s vagina under her clothing, and he put his
hand on her hand and made her hand move up and down on his penis. While
Hale was touching K.F., he asked her whether it felt good and whether she
wanted to see his penis. K.F. pretended to be asleep, but she eventually got up
and told Hale that she had to go to the bathroom. K.F.’s hands felt wet after
touching Hale’s penis, so she washed them.
[6] On another occasion in early January 2017, K.F. asked Hale to play a game,
and the two were sitting on Hale’s bed in his bedroom. K.F. was sitting with
her legs crossed in front of her when Hale began moving his fingers up and
down her leg. Hale eventually began touching K.F.’s “private parts on the
outside of [her] pants,” and K.F. got off of the bed to “get away from that.” Id.
at 218. They stopped playing the game, and K.F. sat down again on the bed.
K.F. said she was tired, and she lay down on the bed. At that point, Hale put
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his hands inside K.F.’s pants and touched her vagina with “up and down” and
“circular” motions, and he made her touch his penis. Id. at 219. After several
minutes, Hale left the bedroom, and K.F. fell asleep.
[7] One day or so later, when K.F. came home from school, S.F. told her that she
and Hale were “taking a break” from their engagement and that Hale “had left”
their house for an indefinite period of time. Id. at 220. K.F. felt like it “was a
good time” to tell her mother about what Hale had done to her over the past
several months. Id. After hearing about the molestations, S.F. contacted law
enforcement, and S.F. and K.F. went to stay at K.F.’s grandparents’ house. On
January 11, K.F. met with a forensic interviewer to discuss the molestations.
[8] The State charged Hale with seven counts of child molesting, five as Level 1
felonies and two as Level 4 felonies. At trial, then-twelve-year-old K.F.
described each of the molestations, and a portion of her videorecorded forensic
interview was played for the jury. The jury found Hale guilty as charged. The
trial court entered judgment of conviction accordingly and sentenced Hale to
thirty years for each Level 1 felony conviction (Counts 1-5) and six years for
each Level 4 felony conviction (Counts 6 and 7). And the court ordered as
follows:
• Counts 1, 2, and 3 shall be served concurrently but
consecutive[] to Counts 4 and 5, and to Counts 6 and 7.
• Counts 4 and 5 shall be served concurrently but consecutive[]
to Counts 1 through 3, and to Counts 6 and 7.
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• Counts 6 and 7 shall be served [concurrently but] consecutive[]
to Counts l through 3, and to Counts 4 and 5.
Thus, the trial court imposed an aggregate term of sixty-six years. This appeal
ensued.
Discussion and Decision
Issue One: Sufficiency of the Evidence
[9] When reviewing a claim of insufficient evidence to sustain a conviction, we
consider only the probative evidence and reasonable inferences supporting the
verdict. Meehan v. State, 7 N.E.3d 255, 257 (Ind. 2014).
“It is the fact-finder’s role, not that of appellate courts, to assess
witness credibility and weigh the evidence to determine whether
it is sufficient to support a conviction. Appellate courts affirm
the conviction unless no reasonable fact-finder could find the
elements of the crime proven beyond a reasonable doubt. It is
therefore not necessary that the evidence overcome every
reasonable hypothesis of innocence. [T]he evidence is sufficient
if an inference may reasonably be drawn from it to support the
verdict.”
Id. (quoting Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007)). Further, it is
well settled that the testimony of a sole child witness is sufficient to sustain a
conviction for molestation. Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind.
2012).
[10] To prove the five counts of child molesting, as Level 1 felonies, as charged, the
State was required to show that on five occasions Hale, who was at least
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twenty-one years old, performed “other sexual conduct” with K.F., who was
under the age of fourteen. Ind. Code § 35-42-4-3(a)(1) (2018). To prove “other
sexual conduct” as charged here, the State was required to show that Hale used
his hand or finger to penetrate the sex organ of K.F. I.C. § 35-31.5-2-221.5.
Our Supreme Court recently held that “proof of the slightest penetration of the
sex organ, including penetration of the external genitalia, is sufficient to demonstrate
a person performed other sexual []conduct with a child.” Boggs v. State, 104
N.E.3d 1287, 1289 (Ind. 2018) (emphasis added).
[11] Hale contends that the State presented insufficient evidence to prove that his
hand or finger penetrated the sex organ of K.F. In particular, Hale maintains
that the evidence is insufficient to show penetration because: K.F., who was
twelve years old at the time of trial, “had the capability of describing any
penetration by Hale’s fingers or hand if it had occurred, but she did not”; “the
record is devoid of any medical or physical evidence of penetration”; and, while
K.F. described pain after the molestations, she did not attribute that pain to
penetration of her genitalia. Appellant’s Br. at 18. Hale acknowledges that
child witnesses are not required to give a detailed anatomical description of
penetration, but he asserts that “K.F.’s vague and equivocal testimony here fell
far short of meeting the element of penetration[.]” Id. at 19. We cannot agree.
[12] At trial, K.F. testified in relevant part as follows:
Q: Okay. [During the first incident,] was [Hale’s] hand inside
your pants or inside your underwear, or both?
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A: Both. It was inside both.
Q: Okay. And what did you feel?
A: I felt that [Hale’s] hand was moving and like, almost like up
and down or like circular motions.
Q: And where was it moving up and down or in circular
motions?
A: My private parts.
***
Q: Is there another word that you use for your private parts?
A: Yes.
Q: What is that word?
A: Vagina.
Q: And when the hand was moving up and down or in a circle
on your vagina, what did that feel like?
A: It hurt a lot.
***
Q: Okay. And that second time when [Hale] touch[ed] you on
your vagina, what did you feel [him] touch you with?
A: A hand, like [his] fingers.
Q: Okay. And what were [his] hand or fingers doing that second
time?
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A: It felt like they had been going up or down or circular
motions.
Q: And when that was happening, how did that feel that second
time?
A: It hurt still.
***
Q: Okay. And what happened that third time?
A: It started out the same, and then he made me touch him.
***
Q: And when he worked his way into your pants, where did he
touch you that third time?
A: On my private parts.
Q: On your private parts. And what was he touching you with
on your private parts that third time?
A: His hands.
Q: And what was his hand doing?
A: It was doing the same motions.
Q: Okay. And how did it feel that third time?
A: It hurt still.
***
Q: And what happened[ the fourth time]?
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A: It was the same thing where he touched me and then made
me touch him.
Q: Okay. Can you tell us about when he touched you that time
on the couch?
A: It was the same feeling and it felt like the same movements as
well.
Q: How was he touching you?
A: It was just his hands.
Q: And where was his hand touching you?
A: On my private part.
Q: And was it touching you on the outside of your clothes or the
inside of your clothes?
A: The inside.
Q: And what was his hand doing when it was touching your
private parts?
A: It was going again in the same motions as before.
Q: And how did that feel?
A: It hurt again.
***
Q: And what happened [the fifth time]?
A: And that time I had, he touched me and made me touch him.
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Q: Okay. And how did he touch you?
A: It was in the same way where it felt like he was going up and
down in a circular motion inside of my pants.
Q: And how did that feel?
A: It hurt again.
Q: Okay. And you said it felt like he was going up and down in
a circular motion. Where was he touching you that time?
A: In my private parts.
Q: And what was he touching you with?
A: His hand.
Tr. Vol. 2 at 207-08, 210-12, 214-15, 218-19.
[13] At trial, the State also played for the jury a portion of K.F.’s forensic interview,
which included the following:
Q: Okay. Okay. And when he’s touching you on your vagina,
tell me what is he touching you with?
A: His fingers.
Q: Fingers, okay. And tell me, are his fingers on top of the
clothes or are they underneath the clothes?
A: Underneath.
Q: Underneath? Okay. And tell me are his fingers on the inside
or the outside of your vagina?
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A: Uh, I think—I don’t know for sure, because I try to keep my
eyes closed but I think, it feels like he’s trying to find something.
***
Q: Okay, thank you. And I heard you say that it hurts when he
touches your vagina and you’ll go to the bathroom afterwards
and it hurts to use the restroom. And tell me, I heard you say
he’ll use his fingers, yeah. Tell me, does he use one finger or two
fingers? Do you know?
A: Um, his whole hand will end up like down there but it will
only end up being, it will be like one finger. So he’ll just look like
this but his whole hand is down there.
Q: Tell me what it feels like when he’s using the one finger?
A: It either feels like he’s going up and down or like in circles,
and like pressing down really hard and it really hurts.
Id. at 239, 241.
[14] In sum, K.F. testified that, on five separate occasions, Hale touched her vagina
with his finger or hand using an “up and down” or “circular” motion that felt
like he was “trying to find something.” Id. at 207, 239. While K.F. did not
know whether Hale’s finger had penetrated her vagina, again, penetration of the
vaginal canal is not required to prove Level 1 felony child molesting as charged
here. Boggs, 104 N.E.3d at 1289. The State need only have proven penetration
of K.F.’s external genitalia. And it would have been physically impossible for
Hale to touch any part of K.F.’s vagina without having first penetrated her
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vulva, or external genitalia. 2 We conclude that a reasonable fact-finder could
have determined from the evidence that Hale penetrated K.F.’s external
genitalia, and we affirm his five convictions for child molesting, as Level 1
felonies.
Issue Two: Abuse of Discretion in Sentencing
[15] Hale also contends that the trial court abused its discretion when it sentenced
him. Sentencing decisions lie within the sound discretion of the trial court.
Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). An abuse of discretion
occurs if the decision is “clearly against the logic and effect of the facts and
circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct.
App. 2014) (citation omitted), trans. denied.
[16] A trial court abuses its discretion in sentencing if it does any of the following:
(1) fails “to enter a sentencing statement at all;” (2) enters “a
sentencing statement that explains reasons for imposing a
sentence—including a finding of aggravating and mitigating
factors if any—but the record does not support the reasons;” (3)
enters a sentencing statement that “omits reasons that are clearly
supported by the record and advanced for consideration;” or (4)
considers reasons that “are improper as a matter of law.”
2
Stedman’s Medical Dictionary defines “vagina” in relevant part as the genital canal in the female extending
from the uterus to the vulva. Stedman’s Medical Dictionary 1682 (25th ed. 1990). “Vulva” is defined in
relevant part as the external genitalia of the female. Id. at 1730.
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Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-491 (Ind.), clarified on reh’g
other grounds, 875 N.E.2d 218 (Ind. 2007)).
[17] The sentencing range for a Level 1 felony is twenty years to forty years, with an
advisory sentence of thirty years. I.C. § 35-50-2-4. And the sentencing range
for a Level 4 felony is two years to twelve years, with an advisory sentence of
six years. I.C. § 35-50-2-5.5. Here, at sentencing, the trial court identified two
aggravators: the number of molestations that occurred over the course of four
months, and Hale’s violation of his position of trust with K.F. And the court
identified two mitigators: Hale’s lack of a significant criminal history, and the
hardship that Hale’s incarceration would impose on his dependents. The court
found that the aggravators outweighed the mitigators and imposed sentence as
follows: thirty years for each Level 1 felony conviction and six years for each
Level 4 felony conviction, with some of the sentences to run concurrently and
others to run consecutively for a total aggregate sentence of sixty-six years
executed.
[18] Hale asserts that the trial court abused its discretion when it identified an
improper aggravator and when it did not identify as mitigators his military
service, disability, and employment history. We address each contention in
turn.
[19] Hale maintains that the trial court abused its discretion when it identified as an
aggravator “the extended time over which the violation of the law occurred.”
Tr. Vol. 3 at 176. Hale asserts that that factor is improper “as a matter of law
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because it covers exactly the offense[s] for which Hale stands convicted and it is
not supported by the record.” Appellant’s Br. at 32. In particular, Hale states
that each information charged him with child molesting that occurred between
September 1, 2016, and January 7, 2017. Thus, he contends that the trial court
relied on material elements of the offenses as an aggravator, which is
prohibited. See Gomillia v. State, 13 N.E.3d 846, 852-53 (Ind. 2014).
[20] However, the State points out that, when Hale objected to this aggravator, the
trial court clarified that its “comments were based upon the [number] of
occurrences that happened during that period of time[.]” Tr. Vol. 3 at 178.
And the State maintains that that aggravator was proper because a trial court
may consider the particularized circumstances of the factual elements as
aggravating factors. See McElroy v. State, 865 N.E.2d 584, 589-90 (Ind. 2007).
We agree with the State. This court has previously held that a trial court
properly found aggravating that the defendant had molested his daughter
several times within one month. Hart v. State, 829 N.E.2d 541, 544 (Ind. Ct.
App. 2005). The aggravator underscores the deliberate nature of Hale’s crimes,
which were not limited to a single incident but manifested a habitual pattern of
conduct. The trial court did not abuse its discretion when it identified this
aggravator.
[21] Hale also contends that the trial court abused its discretion when it did not find
mitigating his military service, disability, and employment. The finding of
mitigating circumstances is within the discretion of the trial court. Rascoe v.
State, 736 N.E.2d 246, 248-49 (Ind. 2000). An allegation that the trial court
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failed to identify or find a mitigating circumstance requires the defendant to
establish that the mitigating evidence is both significant and clearly supported
by the record. Id. at 249. The trial court is not obligated to accept the
defendant’s contentions as to what constitutes a mitigating circumstance. Id.
[22] Hale emphasizes his “extensive” military service over the course of a decade,
including tours in Iraq and Afghanistan, his physical and mental health issues
related to his service, and his honorable discharge. Appellant’s Br. at 35.
However, military service is not necessarily a mitigating circumstance. Harmon
v. State, 4 N.E.3d 209, 218 (Ind. Ct. App. 2014), trans. denied. Given the nature
of Hale’s crimes, which reflect conduct especially incompatible with that
expected of a member of our military, we cannot say that the trial court abused
its discretion when it declined to adopt this proffered mitigator.
[23] Finally, Hale asserts that his employment in the military and, since his
discharge, as a personal trainer warrants mitigating weight. However, as this
court has previously stated, “many people are gainfully employed,” and “a
defendant’s employment is not necessarily a mitigating factor.” Holmes v. State,
86 N.E.3d 394, 399 (Ind. Ct. App. 2017), trans. denied. We cannot say that the
trial court abused its discretion when it declined to adopt this proffered
mitigator. Hale has not demonstrated any abuse of discretion by the trial court
in imposing sentence.
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Issue Three: Inappropriateness of Sentence
[24] Finally, Hale asserts that his sixty-six-year aggregate sentence is inappropriate
in light of the nature of the offenses and his character. Indiana Appellate Rule
7(B) provides that “[t]he Court may revise a sentence authorized by statute 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.” This Court has recently held that “[t]he advisory sentence is
the starting point the legislature has selected as an appropriate sentence for the
crime committed.” Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017).
And the Indiana Supreme Court has explained that:
The principal role of appellate review should be to attempt to
leaven the outliers . . . but not achieve a perceived “correct”
result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). Defendant has the burden to persuade us that the
sentence imposed by the trial court is inappropriate. [Anglemyer,
868 N.E.2d at 494].
Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).
[25] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we
regard a sentence as inappropriate at the end of the day turns on “our sense of
the culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other facts that come to light in a given case.” Id. at 1224.
The question is not whether another sentence is more appropriate, but rather
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whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,
268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] 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).
[26] Hale concedes that his offenses “are serious and deserve punishment.”
Appellant’s Br. at 27. But he maintains that his offenses “fall[] on the fringes of
Indiana’s Level 1 felony child molesting statute, which typically involves far
more intrusive sexual abuse” and “a minimum concurrent sentence should have
been imposed.” Id. at 28. However, as the State points out, Hale, who had a
position of trust with K.F., molested her on multiple occasions over the course
of four months. He violated the safety of K.F.’s bedroom and molested her
while she was trying to sleep. And K.F.’s statement at Hale’s sentencing
hearing clearly set out the myriad ways that the molestations have negatively
impacted K.F.’s young life. We cannot say that Hale’s sentence is
inappropriate in light of the nature of the offenses.
[27] Hale contends that his sentence is inappropriate in light of his character because
he: “has led a significantly law-abiding life”; he is “in college and on track to
graduate with honors”; his military service includes having received multiple
medals and an honorable discharge; and he has maintained employment
despite his partial disability. Id. at 28-29. However, Hale’s criminal history,
while relatively minor, does not reflect a good character. In 1999, when he was
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about fifteen years old, Hale was adjudicated a delinquent for charges of
possession of marijuana and visiting a common nuisance. Hale’s adult criminal
history began in 2002 and consists of eight misdemeanor convictions, including
convictions for resisting law enforcement and trespass, and he violated his
probation twice. Finally, we agree with the State’s assessment that the offenses
“were not isolated incidents of poor decision-making; they were predatory acts
by a man who intentionally abused a relationship of trust” with a ten-year-old
girl. Appellee’s Br. at 24. We cannot say that Hale’s aggregate sentence of
sixty-six years is inappropriate in light of the nature of the offenses and his
character.
[28] Affirmed.
Baker, J., and Robb, J., concur.
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