McCarthy v. State

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MARCE GONZALEZ, JR. JEFFREY A. MODISETT
Merrillville, Indiana Attorney General of Indiana

LARRY W. ROGERS TERESA DASHIELL GILLER
Valparaiso, Indiana Deputy Attorney General
Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

TIMOTHY MCCARTHY, JR., )
) Supreme Court Cause Number
Appellant-Defendant, ) 37S04-0006-CR-359
)
v. )
)
STATE OF INDIANA, ) Court of Appeals Cause Number
) 37A04-9903-CR-108
Appellee-Plaintiff. )

APPEAL FROM THE JASPER SUPERIOR COURT
The Honorable J. Philip McGraw, Judge
Cause No. 37D01-9711-CF-389

On Petition to Transfer

June 28, 2001

RUCKER, Justice

Case Summary
A jury convicted Timothy McCarthy of one count of sexual misconduct
with a minor as a Class B felony and one count of sexual misconduct with a
minor as a Class C felony. On initial review McCarthy raised several
issues. Finding one issue dispositive, the Court of Appeals reversed the
convictions and remanded the cause for a new trial. More specifically, the
Court of Appeals determined that the trial court erred in limiting
McCarthy’s right to cross-examine a witness on the question of bias and
that the error was per se reversible. McCarthy v. State, 726 N.E.2d 789
(Ind. Ct. App. 2000). We agree the trial court erred. However, we
conclude the error was harmless. We grant transfer on this point and also
address the remaining issues which we restate as follows: (1) did the
trial court erroneously admit evidence of McCarthy’s prior bad acts; (2)
did the trial court err in denying McCarthy’s motion for a change of venue;
(3) was the evidence sufficient to support the convictions; and (4) did the
trial court err in imposing enhanced and consecutive sentences. We affirm
the trial court.

Facts

The facts most favorable to the verdict show that in the fall of 1997,
McCarthy was employed as a music teacher and band director at Kankakee
Valley High School. K.G. and M.T. attended the school as fifteen-year-old
sophomore students. Both participated in the school band and served as
McCarthy’s student assistants. On November 4, 1997, McCarthy told M.T.
that he needed to speak with her and arranged for her to meet him in the
faculty bathroom. Once inside, McCarthy locked the door, kissed M.T.,
exposed and touched her breasts, exposed himself, and encouraged M.T. to
touch his penis. M.T. refused, and the encounter ended when McCarthy
unlocked the door and M.T. left the bathroom.
Later that same day, traveling isolated roads, McCarthy drove K.G.
home from school. While en route they played a game the parties referred
to either as “perdiddle” or “strip perdiddle,” which required participants
to remove articles of clothing. After both McCarthy and K.G. were nude,
McCarthy pulled to the side of the road where K.G. stroked his penis, and
he touched her breasts and placed his finger in her vagina. McCarthy also
attempted to engage K.G. in sexual intercourse but was not successful.
When a car approached, both scrambled to get dressed. McCarthy then
proceeded to take K.G. home.
That evening K.G. and M.T. talked with each other over the telephone
and discussed the day’s events. A couple of days later, the two students
confronted McCarthy and told him they regretted what they had done and that
it never should have happened. McCarthy became angry and told the students
not to pretend they were victims and that they had voluntarily engaged in
the encounters. Shortly thereafter, the students reported McCarthy’s
conduct to school officials.
On November 14, 1997, McCarthy was charged with two counts of sexual
misconduct with a minor: Count I as a Class B felony concerning his
conduct with K.G. and Count II as a Class C felony concerning his conduct
with M.T. A trial conducted in June 1998 ended in a hung jury, and the
trial court declared a mistrial. The second trial began in November 1998.
In its case-in-chief upon retrial, the State called M.T.’s mother to the
stand. On cross-examination, the following exchange occurred:
Q. Mrs. Cooper, you have a lot of animosity towards Mr.
McCarthy, and rightfully so. Right?

A. For him molesting my daughter? Yes, I do.

Q. Uh, how much money are you going to make, or do you seek to get
because of that?

R. at 1402-03. At this juncture, the State objected, and the trial court
sustained the objection. Outside the presence of the jury, McCarthy made
the following offer of proof:
Your Honor, I believe if this witness were allowed to [] answer this
question, she would indicate[] that a Notice of Tort Claim has been
filed against [] the Kankakee Valley School Corporation [] seeking
damages from the school corporation and [] perhaps Mr. McCarthy
personally, and I believe that that goes to the bias and/or prejudice
of the witness, and is an appropriate subject for cross-examination.

R. at 1403. The trial court reaffirmed its ruling, prohibited McCarthy
from pursuing this line of inquiry, and admonished the jury to disregard
counsel’s question. Ultimately the jury returned a verdict of guilty as
charged. The trial court sentenced McCarthy to enhanced and consecutive
terms of thirteen years for the Class B felony and five years for the Class
C felony. On direct appeal, the Court of Appeals concluded that the trial
court erred in denying McCarthy the opportunity to cross-examine Mrs.
Cooper on the question of her potential bias due to her financial interest
in the outcome of this case. Applying a per se error standard, the Court
of Appeals reversed the conviction and remanded the cause for a new trial.
The State seeks transfer. We affirm the trial court’s judgment.

Discussion

I.

The right to cross-examine witnesses is guaranteed by the Sixth
Amendment to the United States Constitution as well as Article 1, Section
13 of the Indiana Constitution. It is “one of the fundamental rights of
our criminal justice system.” Pigg v. State, 603 N.E.2d 154, 155 (Ind.
1992). It is true “this right is subject to reasonable limitations placed
at the discretion of the trial judge.” McQuay v. State, 566 N.E.2d 542,
543 (Ind. 1991). However, the trial court’s exercise of discretion in
determining the permissible scope of cross-examination to test the
credibility of a witness must be consistent with due process. Timberlake
v. State, 690 N.E.2d 243, 255 (Ind. 1997). If a witness in a criminal
trial has a financial motive for testifying in a certain fashion, then the
jury should hear about those matters because they are relevant to the
question of the witness’ credibility. Domangue v. State, 654 N.E.2d 1, 3
(Ind. Ct. App. 1995); see also Bryant v. State, 233 Ind. 274, 118 N.E.2d
894, 896 (1954) (declaring that cross-examination of a witness who is
motivated by financial concerns is properly considered as it affects the
credibility of that witness’ testimony). In this case, denying McCarthy
the opportunity to cross-examine Mrs. Cooper about an event that the jury
may have determined furnished her with a motive for favoring the
prosecution violated the Confrontation Clause and thus was error. The
question however is whether the error automatically requires reversal.
There is authority for the proposition that a court of review has at
its disposal two alternative courses of action when evaluating claims
concerning the denial of the right to cross-examine witnesses. According
to Haeger v. State, 181 Ind. App. 5, 390 N.E.2d 239 (1979), where the trial
court permits “some” cross-examination on the question of witness bias, a
court of review should evaluate the error “by the application of the
harmless constitutional error test.” Haeger, 390 N.E.2d at 241. On the
other hand, where the record reflects a “curtailment” of cross-examination
on the question of witness bias, then a court of review should assess such
error by a “per se error standard.” Id. (quoting Springer v. United
States, 388 A.2d 846, 856 (D.C. 1978)); accord Tucker v. State, 728 N.E.2d
261, 262 (Ind. Ct. App. 2000), trans. denied; Kleinrichert v. State, 530
N.E.2d 321, 322 (Ind. Ct. App. 1988); Higginbotham v. State, 427 N.E.2d
896, 901 (Ind. Ct. App. 1981), overruled on other grounds by Micinski v.
State, 487 N.E.2d 150 (Ind. 1986); Pfefferkorn v. State, 413 N.E.2d 1088,
1090 (Ind. Ct. App. 1980). In sum, under Haeger and its progeny, where a
defendant has been denied any opportunity to cross-examine a witness on the
question of bias, then the error is reversible per se. It is this
authority upon which McCarthy relied in advancing his argument that because
the trial court’s ruling resulted in a curtailment of his right to cross-
examine Mrs. Cooper, his conviction must be reversed. Since Haeger, the
United States Supreme Court has addressed the question of the appropriate
standard for reviewing a defendant’s claim alleging the denial of his Sixth
Amendment right to cross-examine witnesses:
[T]he constitutionally improper denial of the defendant’s opportunity
to impeach a witness for bias, like other Confrontation Clause errors,
is subject to Chapman [Chapman v. California, 386 U.S. 18, 24 (1967)]
harmless-error analysis. The correct inquiry is whether, assuming
that the damaging potential of the cross-examination were fully
realized, a reviewing court might nonetheless say that the error was
harmless beyond a reasonable doubt.

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)[1] (ruling that the trial
court violated defendant’s rights secured by the Confrontation Clause by
prohibiting all inquiry into the possibility that a prosecution witness
would be biased as a result of the State’s dismissal of his pending public
drunkenness charge). In two fairly recent decisions, this Court has
followed Chapman and Van Arsdall. See Smith v. State, 721 N.E.2d 213, 219
(Ind. 1999) (“[V]iolations of the right to cross-examine are subject to
harmless-error analysis.”); Standifer v. State, 718 N.E.2d 1107, 1110 (Ind.
1999) (ruling that even though the defendant was denied the opportunity to
fully cross-examine two State’s witnesses concerning their bias in favor of
the State, “his convictions will not be reversed if the State can
demonstrate beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.” (quotation omitted)). Because
prevailing case authority dictates a harmless error analysis, we disapprove
of language in those cases suggesting that violations of a defendant’s
right to cross-examine witnesses is subject to a per se error standard on
appeal.
In his Brief in Opposition to Transfer, McCarthy acknowledges
Standifer and Smith. He argues, however, that even under a harmless error
standard of review, his conviction should be reversed and this cause
remanded for a new trial.[2] According to McCarthy, this case represents a
credibility contest between him and the two students and that Mrs. Cooper’s
testimony was critical to the State’s case because it served to bolster the
students’ credibility.
Whether the trial court’s error is harmless depends on several factors
including:
[T]he importance of the witness’ testimony in the prosecution’s case,
whether the testimony was cumulative, the presence or absence of
evidence corroborating or contradicting the testimony of the witness
on material points, the extent of cross-examination otherwise
permitted, and, of course, the overall strength of the prosecution’s
case.

Van Arsdall, 475 U.S. at 684; accord Munn v. State, 505 N.E.2d 782, 786
(Ind. 1987). As with most cases involving claims of child molestation,
here the credibility of witnesses was a key issue at trial. Indeed,
McCarthy testified on his own behalf and essentially denied that he ever
inappropriately touched any student including M.T. or K.G. He also denied
playing a game known as “strip perdiddle.” R. at 2044. Further, he
portrayed himself as a professional and a “strict disciplinarian.” R. at
1967. By contrast, both K.G. and M.T. testified that McCarthy molested
them. In addition, contrary to McCarthy’s assertion, two other former
students of Kankakee Valley High School, C.G. and J.K., testified that they
played the game “strip perdiddle” while on a trip to Michigan with McCarthy
prior to November 4, 1997. R. at 1625, 1734. Several students also
testified about McCarthy’s frequent and pointed sexual comments concerning
the bodies of female students. R. at 1457-58, 1482-83, 1538, 1622-23,
1674, 1767, 2145-46. Thus, from the standpoint of credibility, the State’s
case was relatively strong. As for Mrs. Cooper’s testimony, although it
may have been important to the State’s case, we disagree with McCarthy’s
assertion that her testimony was critical. She was not an occurrence
witness, and the material point of her testimony, as McCarthy points out,
was to “describe her daughter’s demeanor before and after the alleged
incident with McCarthy.” Br. in Opposition to Transfer at 6 (citing R. at
1386-1401). Among other things, Mrs. Cooper testified that before this
incident, her daughter was outgoing, happy, had a good sense of humor, and
was fun to be around. R. at 1368. She testified that after this incident,
M.T. was “very depressed[,] . . . cried a lot[,]. . . [and] was [] very
distraught.” R. at 1399. Another witness corroborated Mrs. Cooper’s
testimony. R. at 1677. Also, the record shows that other than the trial
court limiting the questioning concerning the Tort Claims Notice,
McCarthy’s cross-examination of Mrs. Cooper was thorough and unlimited. R.
at 1406-21. Among other things, McCarthy confronted Mrs. Cooper with
discrepancies concerning details of her account of events versus those
about which M.T. testified, and he questioned Mrs. Cooper on whether she
helped her daughter prepare for her trial testimony. The effect of this
line of questioning was to demonstrate Mrs. Cooper’s bias and to imply that
M.T. fabricated her charge.
In sum, although the trial court erred in limiting McCarthy’s cross-
examination, the error was harmless. We are satisfied that the State has
demonstrated beyond a reasonable doubt that the exclusion of evidence that
Mrs. Cooper may have had a financial motive in testifying at trial did not
contribute to the jury’s verdict. Accordingly, McCarthy is not entitled to
reversal of his convictions.
II.
McCarthy also complains that the trial court erred in admitting into
evidence what he characterizes as “alleged uncharged sexual misconduct and
bad acts by the defendant.” Br. of Appellant at 16. This complaint
centers on testimony concerning the trip to Michigan where the parties
played the “strip perdiddle” game and testimony that McCarthy allegedly
expressed amorous interests in Mrs. Cooper.
A claim of error in the exclusion or admission of evidence will not
prevail on appeal unless the error affects the substantial rights of the
moving party. Gant v. State, 694 N.E.2d 1125, 1129 (Ind. 1998) (citing
Ind. Evidence Rule 103(a)). When reviewing such claims, an appellate court
determines whether the trial court abused its discretion when it ruled upon
the evidence. Id.
A.
Prior to trial, the State gave notice that it intended to introduce
testimony regarding the “strip perdiddle” incident. McCarthy filed a
motion in limine seeking to prohibit introduction of the evidence, and the
trial court denied the motion. Over McCarthy’s objection, testimony
concerning “strip perdiddle” and the Michigan trip were introduced at
trial. On appeal, McCarthy complains that this evidence portrayed him as a
sexual predator and was inadmissible under Indiana Rule of Evidence 404(b)
and our decision in Lannan v. State, 600 N.E.2d 1334, 1339 (Ind. 1992)
(abandoning the “depraved sexual instinct” exception to the general rule
prohibiting evidence of prior bad acts).
McCarthy paints with too broad a brush. The Rule provides “[e]vidence
of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show
action in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident . . . .” Evid.R. 404(b). The
Rule is designed to prevent the jury from making the “forbidden inference”
that prior bad conduct suggests guilt in the present action. Barker v.
State, 695 N.E.2d 925, 930 (Ind. 1998). First, it is not at all clear to
us that the “strip perdiddle” activity represents “other crimes, wrongs, or
acts” within the meaning of 404(b). In any event, we disagree that the
evidence was introduced for the forbidden inference. Rather, it was
introduced to show that McCarthy had knowledge of the existence of
“perdiddle” or “strip perdiddle” - something he consistently denied. The
evidence was relevant because it was after engaging in this activity that
K.G. testified McCarthy molested her. Its probative value outweighed any
prejudicial impact because if, as McCarthy maintained, he had never heard
of the game and had certainly never played it, then it would appear that
K.G.’s testimony was made of whole cloth. Evidence that McCarthy
apparently played this “game” with students on an earlier occasion
certainly went to the heart of McCarthy’s defense. However, it was not
rendered inadmissible by Evidence Rule 404(b).
B.
As for evidence indicating that McCarthy may have had an amorous
interest in Mrs. Cooper, it is again unclear to us how such evidence
represents “other crimes, wrongs, or acts” within the meaning of 404(b).
Be that as it may, the record shows that although McCarthy filed a motion
in limine seeking to exclude such evidence, R. at 692-93, which the trial
court denied, McCarthy did not object when the evidence was introduced at
trial. A ruling on a motion in limine does not determine the ultimate
admissibility of the evidence. Cook v. State, 734 N.E.2d 563, 568 n.2
(Ind. 2000). Rather, the trial court in the context of the trial itself
makes the determination. Id. This Court has consistently held that a
party may not assert on appeal a claim of trial court error in the
overruling of a motion in limine seeking the exclusion of evidence unless
the party objected to the evidence at the time it was offered. Sisk v.
State, 736 N.E.2d 250, 251 (Ind. 2000); White v. State, 687 N.E.2d 178, 179
(Ind. 1997); Clausen v. State, 622 N.E.2d 925, 927 (Ind. 1993); Conner v.
State, 580 N.E.2d 214, 220 (Ind. 1991). This issue is waived for review.
III.
McCarthy next complains the trial court erred in denying his motion
for a change of venue. At a hearing on the motion, McCarthy introduced a
survey conducted of Jasper County citizens indicating there was significant
bias against him among potential jurors. McCarthy also introduced numerous
newspaper articles that reported on his first trial and testimony that
McCarthy required police protection during and immediately after his first
trial.
A defendant is entitled to a change of venue upon showing the
existence of prejudicial publicity and that jurors will be unable to
disregard preconceived notions of guilt and render a verdict based upon the
evidence. Wethington v. State, 560 N.E.2d 496, 504 (Ind. 1990). A trial
court’s denial of a motion for a change of venue will be reversed only for
an abuse of discretion. Barnes v. State, 693 N.E.2d 520, 523-24 (Ind.
1998). Showing potential juror exposure to press coverage is not enough.
Elsten v. State, 698 N.E.2d 292, 294 (Ind. 1998).
The defendant must demonstrate that the jurors were unable to disregard
preconceived notions of guilt to render a verdict based upon the evidence.
Id.
The record here shows that each juror that was ultimately selected to
serve indicated that he or she could render a verdict based upon the
evidence presented at trial. R. at 514-690. Those potential jurors who
indicated they could not render a verdict based upon the evidence were
excused for cause. R. at 515-16, 518, 519-20, 521-22, 530, 531, 536, 552,
554-55, 561, 562, 573, 596-97, 607, 609, 629, 637-38, 650-52. The trial
court does not abuse its discretion in denying a motion for change of venue
where there is no showing that jurors are unable to set aside preconceived
notions of guilt and render a verdict based upon the evidence. See Specht
v. State, 734 N.E.2d 239, 241 (Ind. 2000). There was no abuse of
discretion here.
IV.
McCarthy also complains that his convictions are not supported by
sufficient evidence. When reviewing a claim of insufficient evidence, we
do not reweigh the evidence or assess the credibility of the witnesses.
Albrecht v. State, 737 N.E.2d 719, 731 (Ind. 2000), reh’g denied. Rather,
we look to the evidence and the reasonable inferences drawn therefrom that
support the verdict and will affirm the conviction if there is probative
evidence from which a reasonable jury could have found the defendant guilty
beyond a reasonable doubt. Id.
McCarthy’s contention on this issue centers on the testimony of K.G
and M.T., which he characterizes as “[inherently] incredible given the
totality of the circumstances. . . .” Br. of Appellant at 33. McCarthy
seeks to invoke the “incredible dubiosity rule” under which this Court will
impinge upon the jury’s responsibility to judge witness credibility only
when confronted with inherently improbable testimony or coerced, equivocal,
wholly uncorroborated testimony of incredible dubiosity. Tillman v. State,
642 N.E.2d 221, 223 (Ind. 1994); Gaddis v. State, 253 Ind. 73, 251 N.E.2d
658, 661-62 (1969). “Application of this rule is limited to cases, such as
Gaddis, where a sole witness presents inherently contradictory testimony
which is equivocal or the result of coercion and there is a complete lack
of circumstantial evidence of the appellant’s guilt.” Tillman, 642 N.E.2d
at 223.
Reciting the victims’ testimony, McCarthy essentially complains the
events could not have happened the way the victims described them. He does
not argue their testimony was the result of coercion, and the record shows
neither witness was equivocal nor did they give inherently contradictory
testimony. Rather, the record shows that even though McCarthy thoroughly
cross-examined both witnesses, they nonetheless did not waiver in their
account of events. R. at 852-961, 980-95, 1273-1339. The incredible
dubiosity rule is simply not applicable here. See, e.g., Berry v. State,
703 N.E.2d 154, 160 (Ind. 1998) (declining to apply the rule even though
there were inconsistencies in the testimony among witnesses but no one
witness contradicted himself).
A conviction may be supported by the uncorroborated testimony of one
witness or by circumstantial evidence alone. Frederick v. State, 658
N.E.2d 941, 944 (Ind. Ct. App. 1995). It is for the trier of fact to
resolve conflicts in the evidence and to decide which witnesses to believe
or disbelieve. Marshall v. State, 621 N.E.2d 308, 320 (Ind. 1993). If the
testimony believed by the trier of fact is enough to support the verdict,
then the reviewing court should not disturb it. In this case, the jury
heard the testimony of K.G. and M.T. as well as the testimony of McCarthy.
The jury apparently believed the two students. As set forth in the facts
section of this opinion, their testimony was sufficient to support guilty
verdicts for one count of child molesting as a Class B felony and one count
of child molesting as a Class C felony.
V.
The trial court sentenced McCarthy to thirteen years imprisonment for
the Class B felony conviction, which is three years beyond the presumptive
term, and five years for the Class C felony, which is one year beyond the
presumptive term. In so doing the trial court identified four aggravating
factors: (1) the age of the victims; (2) the effect of the crime on the
lives of the victims and their families; (3) McCarthy’s position of trust
with the victims; and (4) the likelihood that McCarthy would repeat his
conduct. The trial court also listed three mitigating factors: (1) the
lack of any criminal history; (2) an extended sentence would result in
personal hardship to McCarthy’s family; and (3) an extended sentence would
result in financial hardship to McCarthy’s family.
McCarthy mounts a multi-prong attack challenging his sentence. First,
he contends the age of the victims in this case is not a valid aggravator
and, according to McCarthy, there is insufficient evidence in the record to
support the trial court’s finding that McCarthy is likely to engage in this
conduct again. Having eliminated two aggravators, McCarthy reasons, there
are now only two valid aggravating factors weighed against three mitigating
factors. According to McCarthy, one of the mitigators, lack of criminal
history, should be given “substantial mitigating weight.” Reply Br. of
Appellant at 16 (quoting Loveless v. State, 642 N.E.2d 974, 976, (Ind.
1994)). Second, McCarthy complains that the trial court was obligated to
explain which specific aggravating factor provided the basis for the
enhanced sentence and why consecutive sentences are appropriate. Because
the court provided no such explanation, McCarthy argues the trial court
apparently relied on matters outside the record which, according to
McCarthy, was the basis for the trial court’s comment at sentencing that he
needs something “to hang my hat [on].” R. at 2366. Finally, as a part of
his attack, McCarthy contends that his sentence is manifestly unreasonable
and urges us to revise his sentence to the presumptive term to be served
concurrently.
The decision to enhance a presumptive sentence or to impose
consecutive sentences for multiple offenses is generally within the trial
court’s discretion. Brown v. State, 698 N.E.2d 779, 781 (Ind. 1998). A
single aggravating factor may be sufficient to support an enhanced
sentence. Garrett v. State, 714 N.E.2d 618, 623 (Ind. 1999). And the same
factors may be used both to enhance a presumptive sentence and to justify
consecutive sentences. Miller v. State, 716 N.E.2d 367, 371 (Ind. 1999).
Thus, contrary to McCarthy’s assertion, the trial court was not obligated
to identify the factors that support the sentence enhancements separately
from the factors that support consecutive sentences; nor was the trial
court required to identify separate factors to support each sentence
enhancement. See Blanche v. State, 690 N.E.2d 709, 715 (Ind. 1998)
(finding two aggravating factors sufficient to support enhanced sentences
for attempted murder, carrying a handgun without a license, and resisting
law enforcement); Williams v. State, 690 N.E.2d 162, 172 (Ind. 1997)
(finding same three aggravating factors justified enhanced sentences for
murder and conspiracy to commit murder).
When the age of a victim constitutes a material element of the crime,
then the victim’s age may not also constitute an aggravating circumstance
to support an enhanced sentence. Stewart v. State, 531 N.E.2d 1146, 1150
(Ind. 1988). However, the trial court may properly consider the
particularized circumstances of the factual elements as aggravating
factors. Id. In this case, the age of the victims, both under sixteen,
was a material element of both the Class C and Class B felony offenses.
However, the trial court did not set forth any particularized circumstance
that would justify relying on the victims’ ages as aggravating
circumstances. We agree with McCarthy that this aggravator is
inappropriate. McCarthy is wrong, however, in his assessment that there is
no evidence to support the trial court’s finding that he is likely to re-
offend. To the contrary, at the sentencing hearing the State called to the
stand another of McCarthy’s former female students. The witness testified
that she and McCarthy were engaged in a sexual relationship that first
began when she was a sixteen-year-old high school junior, two years before
the molestations in this case, and continued until her freshman year at
college. R. at 2292-2319. Thus, contrary to McCarthy’s assertion, there
are three valid aggravators and three valid mitigators. And even accepting
as true McCarthy’s observation that this Court has held the lack of
criminal history should be given substantial mitigating weight, see
Loveless, 642 N.E.2d at 976, that does not mean lack of criminal history
automatically outweighs any valid aggravating circumstance. Rather, it is
a balancing test. The trial court’s finding that McCarthy’s position of
trust with the victims and the likelihood he would re-offend are two
aggravating factors that should be given substantial aggravating weight.
Indeed in this case, the trial court very well could conclude that the
aggravating factors outweighed the mitigating factors in spite of the fact
that one of the aggravators was invalid. See, e.g., Walter v. State, 727
N.E.2d 443, 447 (Ind. 2000) (“Even when a trial court improperly applies an
aggravator, a sentence enhancement may be upheld if other valid aggravators
exist.”).
Finally, we reject McCarthy’s invitation to revise his sentence.
Although this Court is empowered to review and revise criminal sentences,
we will not do so unless the sentence is “manifestly unreasonable in light
of the nature of the offense and the character of the offender.” Prowell
v. State, 687 N.E.2d 563, 568 (Ind. 1997). An eighteen-year sentence,
imposed for molesting two young students over whom McCarthy held a position
of trust, is not manifestly unreasonable.
Conclusion
We affirm the judgment of the trial court.

SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
-----------------------
[1] In Bassil v. United States, 517 A.2d 714, 717 n.5 (D.C. 1986),
the court acknowledged that Van Arsdall effectively overruled its decision
in Springer. It was the Springer decision upon which Haeger relied.

[2] Pointing out that the State raised the question of harmless error
for the first time in its Petition to Transfer, McCarthy complains that the
issue should be deemed waived because the State failed to raise it either
in its Brief of Appellee or at oral argument before the Court of Appeals.
The waiver rule does not apply in this context. Transfer is an
administrative term this Court has attached to the process of retaining
control over this Court’s declaration of law function. Ind. Appellate Rule
58 (formerly App.R. 11); Tyson v. State, 593 N.E.2d 175, 180 (Ind. 1992).
A part of that function includes addressing a petitioner’s allegation that
an “opinion or memorandum decision of the Court of Appeals contravenes a
ruling precedent of the Supreme Court . . . .” App.R. 11(B)(2)(a) (now
App.R. 57(H)(2)). Although the better practice may have been for the State
to have raised this issue before the Court of Appeals, nothing in the rules
prohibits this Court from addressing the State’s claim.
Also, we deny McCarthy’s request to submit additional briefing on the
question of harmless error. His Brief in Opposition to the State’s
Petition to Transfer fully explores this issue and no additional briefing
is necessary.