ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Geoffrey A. Rivers Steve Carter
Muncie, Indiana Attorney General of Indiana
Adam Dulik
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
JAMES W. BUCHANAN )
Appellant (Defendant Below), )
)
v. ) No. 18S04-0105-CR-238
)
STATE OF INDIANA )
Appellee (Plaintiff Below). )
________________________________________________
APPEAL FROM THE DELAWARE SUPERIOR COURT
The Honorable Robert L. Barnet, Judge
Cause No. 18D01-9908-CF-69
________________________________________________
On Transfer
May 10, 2002
DICKSON, Justice
The defendant, James W. Buchanan, was convicted and sentenced to
fifty years for child molesting as a class A felony[1] and determined to be
a sexually violent predator required to register indefinitely as a sex
offender.[2] The Court of Appeals reversed and remanded for a new trial
finding that evidence was erroneously admitted in violation of Indiana
Evidence Rule 404(b). Buchanan v. State, 742 N.E.2d 1018 (Ind. Ct. App.
2001). We granted transfer. Buchanan v. State, 753 N.E.2d 13 (Ind. 2001).
We find the admission of the evidence, though erroneous, does not require
reversal in light of the substantial other evidence supporting the jury's
verdict.
The defendant's conviction arises from an incident while he was baby-
sitting five-year old H.B. The defendant took H.B. swimming in the river
in the woods behind his house. H.B. returned home without her original
clothing. A few days afterwards, H.B. told her mother that the defendant
had licked her between her legs after she had been swimming. Police and
medical authorities were notified. During a physical examination of H.B.,
she told the examining physician that an older man had taken pictures of
her while she was naked and had licked her private area. Two law
enforcement officers then interviewed the defendant and, after informing
the defendant of his Miranda rights and obtaining his written waiver, they
videotaped their interview with the defendant. During the videotaped
interview, the defendant told the officers that he was a pedophile and
obsessed with young girls, especially nude young girls. Record at 403, 477-
78, 498-500. After the interview, the police obtained a warrant to search
the defendant's home.
Executing the warrant, the police found an assortment of drawings, and
postcards depicting nude or semi-nude young girls, a magazine containing
nude photographs of women and titled "Little Girls," and a digital zoom
video camera. The defendant was arrested and taken to the Delaware County
Jail where, after again being informed of his Miranda rights, he was
further interviewed by FBI agents regarding a videotape found in the
defendant's house that showed another man molesting a child. The agents
were seeking the defendant's help in identifying the man. After he
persistently declined the requested identification, one of the FBI agents
told the defendant that the FBI would be in contact with H.B.'s mother, and
again asked the defendant if he had anything to tell them. At this point,
the defendant began to cry, told the agents that he was sorry, and admitted
telling H.B. to remove her clothes, performing oral sex on her, and
videotaping her while she was nude.
Reversing the defendant's conviction, the Court of Appeals found that
"the drawings and photographs of naked little girls are not tied" to the
defendant's relationship with H.B., and were improperly admitted under
Indiana Evidence Rule 404(B). Buchanan, 742 N.E.2d at 1022. The State
argues that any error in the admission of this evidence was harmless.
The erroneous admission of evidence does not warrant a reversal and
new trial unless the admission affected the substantial rights of the
party. Ind.Evid. Rule 103(a); Ind.Trial Rule 61; Berry v. State, 715
N.E.2d 864, 867 (Ind. 1999)("An error in admitting evidence 'will be found
harmless if its probable impact on the jury, in the light of all of the
evidence in the case, is sufficiently minor so as not to affect the
substantial rights of the parties.'" (quoting Fleener v. State, 656 N.E.2d
1140, 1142 (Ind.1995))).
The other evidence available to the jury for consideration included
the victim's testimony, the statements of five adults that the victim told
them essentially the same story, and the defendant's statements to FBI
agents that were consistent with the victim's testimony. Given the
substantial quantity of incriminating evidence presented, particularly the
defendant's confession, we find that the admission of the drawings and
postcards did not affect the defendant's substantial rights and does not
warrant reversal.
Because the Court of Appeals reversed and remanded for a new trial,
it did not address the defendant's sentencing claims. In his appeal, the
defendant argues that the trial court improperly weighed and applied
mitigating and aggravating circumstances, and that imposition of the
maximum fifty-year sentence is manifestly unreasonable and not proportional
to the nature of his offense.
The defendant argues that the eight aggravating circumstances found
by the trial court amount to only three circumstances restated differently,
that most of them should not be allowed as aggravating circumstances
because they are factors used by the legislature to make the crime of child
molesting a class A felony, and that the trial court failed to find
mitigating circumstances shown by the evidence.
Sentencing decisions rest within the discretion of the trial court,
and are reviewed on appeal only for an abuse of discretion. Monegan v.
State, 756 N.E.2d 499, 501 (Ind. 2001). It is within the trial court's
discretion to determine whether a presumptive sentence will be enhanced due
to aggravating factors. Id. Because reasonable minds may differ due to
the subjectivity of the sentencing process, it is generally inappropriate
for us to merely substitute our opinions for those of the trial judge.
Hurt v. State, 657 N.E.2d 112, 114 (Ind. 1995).
The defendant argues that the following aggravating circumstances
found by the trial court constitute the same aggravating circumstance:
2. The Court notes the difference in ages between the [d]efendant and
the victim.
3. The age of the victim made her particularly vulnerable to this
type of attack.
4. Defendant was in a position of trust with the victim which he
violated.
6. The facts of the crime are particularly disturbing and heinous.
8. This was a crime designed specifically to take advantage of the
victim's inability to protect herself.
Record at 157-58.[3] He also asserts that the trial court erroneously
considered the defendant's history of criminal activity (two convictions
for second degree burglary, one for robbery, and one for public indecency)
and the failure of prior attempts at rehabilitation. The defendant
emphasizes that his three prior felony convictions occurred thirty-six
years earlier and his misdemeanor conviction was nineteen years ago. The
defendant does not challenge the adequacy of the trial court's
individualized discussion of the specific aggravating circumstances found.
We decline to find that the trial court's sentencing decision is
improper because of its articulation of separate individual factors that
the defendant views as separate components of the same aggravating
circumstance. One of the non-exclusive aggravating circumstances
designated by statute for consideration in imposing sentence is "whether
the victim of the crime was less than twelve years of age." Ind.Code § 35-
38-1-7.1(a)(4). The aggravators found and considered by the trial court
were not merely that the victim was under twelve. It noted various aspects
of the victim's particularly tender years (age 5) and the defendant's
advanced adulthood (age 58). We encourage trial courts to state specific
facts and reasons that lead it to find the existence of aggravating
circumstances. See Hammons v. State, 493 N.E.2d 1250, 1254 (Ind. 1986).
Thoroughness and specificity in sentencing statements facilitate meaningful
appellate review. See Totten v. State, 486 N.E.2d 519, 522 (Ind. 1985).
The trial court did not "double-count" the aggravating circumstances.
With respect to the dates of the defendant's prior criminal history,
the defendant argues that the extreme remoteness of these convictions
should not constitute an aggravating but rather a mitigating circumstance.
The defendant committed this offense at age 58. He was approximately 19
when convicted of two second degree burglaries, 22 when convicted of
robbery, and 39 when convicted of public indecency. From these convictions
and the resulting penal consequences, the trial court found a history of
prior criminal activity and prior unsuccessful attempts at rehabilitation
as aggravating circumstances. The defendant argues that his law-abiding
life for many years following these convictions is a mitigating
circumstance.
The chronological remoteness of a defendant's prior criminal history
should be taken into account. Harris v. State, 396 N.E.2d 674, 677 (Ind.
1979). However, "we will not say that remoteness in time, to whatever
degree, renders a prior conviction irrelevant." Id. The remoteness of
prior criminal history does not preclude the trial court from considering
it as an aggravating circumstance. Bowling v. State, 493 N.E.2d 783, 787
(Ind. 1986) (citing Perry v. State, 447 N.E.2d 599, 600 (Ind. 1983)).
The trial court could view the remoteness of the defendant's prior
criminal history as a mitigating circumstance, or on the other hand, it
could find the remoteness to not affect the consideration of the criminal
history as an aggravating circumstance. Either opinion by a trial court
would be within the ambit of its discretion. We observe that many of the
other aggravating circumstances cited by the trial court likely played a
more important role in the judge's sentencing decision. Notwithstanding
its remoteness, we decline to find an abuse of discretion in the trial
court's inclusion of the criminal history as an aggravating circumstance.
As mitigating circumstances, the trial court found that the defendant
had maintained gainful employment throughout his adult life, had attempted
to meet his responsibilities to his family and mother, had received his
G.E.D. during a prior incarceration, is on disability from health problems,
and has family support to aid in rehabilitation. The defendant contends,
however, that the trial court failed to consider that he has led a law-
abiding life for a substantial period, that his imprisonment will create
undue hardship on his family, and that the nature and circumstances of the
crime demonstrates that "[t]here was no weapon, no threats, no force, no
violence, no fear on the part of the victim, . . . no physical damage, [and
that] [t]here was a licking for less than a minute." Br. of Appellant at
25.
A trial court need not regard or weigh a possible mitigating
circumstance the same as urged by the defendant. Monegan, 756 N.E.2d at
504. The trial court is not required to make an affirmative finding
expressly negating each potentially mitigating circumstance. Stout v.
State, 528 N.E.2d 476, 481 (Ind. 1988). The failure to find mitigating
circumstances that are clearly supported by the record, however, may imply
that they were overlooked and not properly considered. Jones v. State, 467
N.E.2d 681, 683 (Ind. 1984).
Reviewing the trial court's findings, we conclude that the trial
court did not overlook and fail to consider the mitigating factors urged by
the defendant. To the contrary, the court's findings of aggravating and
mitigating circumstances demonstrate that the court considered the evidence
that the defendant claims is mitigating. We decline to find that the trial
court failed to consider mitigating circumstances clearly supported in the
record.
The defendant further contends that this Court should reduce his
sentence as manifestly unreasonable. He argues that the maximum possible
sentences are generally most appropriate for the worst offenders.
Although a trial court may have acted within its lawful discretion in
determining a sentence, Article 7, § 4 of the Indiana Constitution
authorizes independent appellate review and revision of a sentence imposed
by the trial court. This appellate authority is implemented through
Indiana Appellate Rule 7(B), which provides: "The Court shall not revise a
sentence authorized by statute unless the sentence is manifestly
unreasonable in light of the nature of the offense and the character of the
offender." Id. "In determining whether a sentence is manifestly
unreasonable, 'the issue is not whether in our judgment the sentence is
unreasonable, but whether it is clearly, plainly, and obviously so.'"
Evans v. State, 725 N.E.2d 850, 851 (Ind. 2000); see also Spears v. State,
735 N.E.2d 1161, 1168 (Ind. 2000); Brown v. State, 698 N.E.2d 779,783-84
(Ind. 1998); Bunch v. State, 697 N.E.2d 1255, 1258 (Ind. 1998); Prowell v.
State, 687 N.E.2d 563, 568 (Ind. 1997).
We have also observed that "the maximum possible sentences are
generally most appropriate for the worst offenders." Evans, 725 N.E.2d at
851; see also Buchanan v. State, 699 N.E.2d 655, 657 (Ind. 1998); Bacher v.
State, 686 N.E.2d 791, 802 (Ind. 1997). This is not, however, a guideline
to determine whether a worse offender could be imagined. Despite the
nature of any particular offense and offender, it will always be possible
to identify or hypothesize a significantly more despicable scenario.
Although maximum sentences are ordinarily appropriate for the worst
offenders, we refer generally to the class of offenses and offenders that
warrant the maximum punishment. But such class encompasses a considerable
variety of offenses and offenders.
Here, the fifty-eight year old defendant, aware that he was a
pedophile and obsessed with young girls, accepted the responsibility of
baby-sitting a five-year old girl. He took her and his video camera to a
private location, directed her to remove her clothes, molested her by
licking her vagina, and then videotaped her while she was nude. He has a
history of criminal activity consisting of three prior felony convictions
(two in 1960 for second degree burglary and one for robbery in 1963) and
one misdemeanor conviction for public indecency in 1980. The defendant was
in a position of trust with victim, which he violated. Two psychologists
found the defendant to be a sexually violent predator. Record at 677, 682.
On the other hand, we find that this crime was committed without excessive
physical brutality, the use of a weapon, or resulting physical injury.[4]
The offense was not part of a protracted episode of molestation but a one-
time occurrence. In addition, the trial court noted that the defendant had
maintained gainful employment through his adult life, that he earned his
G.E.D. during prior incarceration, that he suffers from health problems,
and that he has family support to aid in his rehabilitation.
In determining the sentence for child molesting as a class A felony,
the trial court was authorized to sentence the defendant "for a fixed term
of thirty (30) years, with not more than twenty (20) years added for
aggravating circumstances or not more that ten (10) years subtracted for
mitigating circumstances." Ind.Code § 35-50-2-4. It imposed a sentence of
fifty years, the maximum penalty.
In light of the nature of the offense and the character of the
offender, we find that the sentence should be greater than the thirty-year
presumptive sentence for child molesting as a class A felony. We find,
however, that the defendant is not within the class of offenders for whom
the maximum possible sentence is appropriate. Pursuant to Article 7, § 4
of the Indiana Constitution, we revise the defendant's sentence to forty
years.
The defendant also argues that his fifty-year sentence is not
proportioned to the offense as required by Article 1, § 16 of the
Constitution of Indiana. Because of our decision revising the fifty-year
maximum penalty imposed by the trial court to forty years, this claim is
moot.
We grant transfer and find that the claimed error in admitting
evidence contrary to Evid. Rule 404(B) is harmless and does not warrant
reversal and that the sentence should be revised to forty years. On all
other issues we summarily affirm the Court of Appeals. Ind.Appellate Rule
58(A)(2). This case is remanded to the trial court to impose a sentence of
forty years.
SHEPARD, C.J., and BOEHM and RUCKER, JJ., concur. SULLIVAN, J.,
concurs in result.
-----------------------
[1] Ind.Code § 35-42-4-3(a)(1).
[2] Ind.Code § 5-2-12-13(b).
[3] The eight aggravating circumstances specifically enumerated by the
trial court also included the following:
1. This [d]efendant does have a history of criminal activity
consisting of three (3) prior felony convictions and one (1) prior
misdemeanor conviction: In Madison County in 1960, two felony
convictions for Second Degree Burglary; in Fort Myers, Florida in
1963, a Robbery felony conviction; and in Madison County, Indiana in
1980, Public Indecency, class A misdemeanor.
5. The Court notes the recommendation of the family of the victim for
an aggravated sentence.
7. Prior attempt at rehabilitation through the justice system have
not been successful.
Record at 157-58. In addition, although not specifically enumerated in its
sentencing order, the trial court stated: "In my mind, Mr. Buchanan is a
danger to this community and a danger to the State of Indiana. There is a
great danger and, in fact, unacceptable danger that repeat offenses would
occur, and that, Mr. Buchanan, is too great a danger." Record at 703.
[4] As this Court noted in Fointno v. State, 487 N.E.2d 140 (Ind.
1986):
While the absence of [brutality] does not in any way lessen the
severity of the crimes as such, and thus does not constitute a
mitigating factor justifying a reduction or suspension of the
presumptive sentence, the presence of aggravated brutality
distinguishes the defendants who commit such acts and justifies a
substantially aggravated term where it is present. We do not by this
observation debase the seriousness of [sexual assault crimes]
themselves. Nor do we suggest that the absence of collateral
brutality prevents the imposition of an enhanced sentence.
Id. at 148 (emphasis in original).