FILED
Jan 20 2017, 6:02 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeremy K. Nix Curtis T. Hill, Jr.
Matheny, Hahn, Denman & Nix, LLP Attorney General of Indiana
Huntington, Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Wiley W. Walters, Jr., January 20, 2017
Appellant-Defendant, Court of Appeals Case No.
35A02-1601-CR-168
v. Appeal from the Huntington
Circuit Court
State of Indiana, The Honorable Thomas M. Hakes,
Appellee-Plaintiff. Judge
Trial Court Cause No.
35C01-1502-F1-41
May, Judge.
Court of Appeals of Indiana | Opinion 35A02-1601-CR-168 | January 20, 2017 Page 1 of 12
[1] Wiley W. Walters, Jr. appeals his convictions for two counts of Level 1 felony
child molest 1 and two counts Level 4 felony child molest. 2 Walters raises two
issues, which we restate as:
1. Whether the court abused its discretion in allowing hearsay
testimony pursuant to the exception for statements made for
medical diagnosis or treatment, and
2. Whether his fifty-year sentence was inappropriate.
We affirm.
Facts and Procedural History
[2] On January 16, 2015, Walters picked up ten-year-old B.E., his relative, 3 from
her home. B.E. and her siblings had stayed with Walters before but he
requested they visit separately this time because “they’re a little too
rambunctious together.” (Tr. at 336.) Walters and B.E. first went to Dairy
Queen, where Walters told B.E. they would be staying in a hotel rather than
with his brother, John, where Walters usually lived. B.E. objected to this
1
Ind. Code § 35-42-4-3(a)(1) (2014).
2
Ind. Code § 35-42-4-3(b) (2014).
3
Walters is the victim’s great-grandmother’s brother. (See Tr. at 335 (victim’s mother testifies Walters is her
“great-uncle . . . father’s uncle . . . grandmother’s brother”).)
Court of Appeals of Indiana | Opinion 35A02-1601-CR-168 | January 20, 2017 Page 2 of 12
change in plans, but Walters took her to the hotel. B.E.’s mother, C.E., was not
aware of Walters’ plan to stay at a hotel.
[3] When they arrived at the hotel, Walters already had the room key. Walters and
B.E. went to the room and watched some television. Walters then insisted B.E.
disrobe and take a bath. When she objected, he threatened to spank her and
started to count to three, so she disrobed. Walters followed her into the
bathroom and asked if he could watch. B.E. objected, and Walters left the
bathroom.
[4] B.E.’s clothing was outside the bathroom. When she came out of the bath,
Walters insisted he dry her off. As he dried her, he touched her “who-who.” 4
(Id. at 179.) B.E. got dressed, but Walters ordered her to disrobe again and get
into bed under the covers. He undressed down to his underwear and got into
the bed. Walters proceeded to squeeze B.E.’s breasts and her buttocks. He
kissed B.E. and then touched and penetrated B.E.’s genitalia with his finger.
He forced B.E. to touch his genitalia and performed oral sex on her. Afterward,
Walters and B.E. went to John’s house. The following day, B.E.’s brother
joined them.
[5] On January 24, 2015, while planning B.E.’s eleventh birthday party, C.E.
noticed her daughter was decidedly moody and “having bouts of emotions.”
(Id. at 341.) When C.E. tried to talk to B.E., B.E. told her what had happened.
4
B.E. identified her “who-who” to be her “female sex organ.” (Tr. at 186.)
Court of Appeals of Indiana | Opinion 35A02-1601-CR-168 | January 20, 2017 Page 3 of 12
C.E. contacted her husband, Walters, and her father. C.E. then contacted the
Huntington County Sheriff’s Department. On January 29, 2015, B.E. was
interviewed at McKenzie’s Hope, a Child Advocacy Center. On January 30,
2015, B.E. was examined at the Fort Wayne Sexual Assault Treatment Center
by Shawn Callahan, a sexual assault nurse examiner.
[6] The State charged Walters with two counts of Level 1 felony child molest and
two counts Level 4 felony child molest. At trial, when Nurse Callahan testified
as to what she was told by B.E., Walters objected. His objection was overruled
pursuant to the “medical records exception.” (Id. at 303.) Although Walters
continued his objection, the trial court still overruled him because B.E.’s
discussion with Callahan was for “medical purposes, and the witness was
identified as a nurse, and identified herself to the child[.]” (Id. at 308.) The jury
found him guilty of all counts.
[7] During sentencing, the trial court found as aggravators Walters’s violation of
his position of trust, his position of authority, and his “extensive” criminal
history. (Id. at 457.) The trial court proceeded to sentence Walters to the
maximum term of fifty years each on the Level 1 felonies and to the maximum
of twelve years each for the Level 4 felonies. The court ordered all sentences
served concurrently, resulting in an aggregate sentence of fifty years.
Discussion and Decision
Court of Appeals of Indiana | Opinion 35A02-1601-CR-168 | January 20, 2017 Page 4 of 12
Admission of Evidence
[8] Admission of evidence at trial is left to the discretion of the trial court. Clark v.
State, 994 N.E.2d 252, 259-60 (Ind. 2013). We review its determinations for
abuse of that discretion, and we reverse only when admission is clearly against
the logic and effect of the facts and circumstances, and the error affects a party’s
substantial rights. Id. at 260. We will not reweigh evidence and we consider
conflicting evidence most favorably to the trial court’s ruling. Rush v. State, 881
N.E.2d 46, 50 (Ind. Ct. App. 2008). We also consider uncontested evidence in
favor of the nonmovant. Id. We affirm the court’s decision if it is supported by
“substantial evidence of probative value.” Id. The ruling will be upheld if it can
be sustained “on any legal theory supported by the record, even if the trial court
did not use that theory.” Id.
[9] Walters asserts the court abused its discretion by admitting inadmissible
hearsay. Hearsay is “a statement that: (1) is not made by the declarant while
testifying at the trial or hearing; and (2) is offered in evidence to prove the truth
of the matter asserted.” Ind. Evidence Rule 801(c). Hearsay is inadmissible
except as provided by law or other court rules. Evid. R. 802.
[10] One exception to that inadmissibility rule is a statement made for purposes of a
medical diagnosis or treatment. Evid. R. 803(4). For hearsay to fall into this
exception, it must be a statement that:
(A) is made by a person seeking medical diagnosis or treatment;
Court of Appeals of Indiana | Opinion 35A02-1601-CR-168 | January 20, 2017 Page 5 of 12
(B) is made for--and is reasonably pertinent to--medical diagnosis
or treatment; and
(C) describes medical history; past or present symptoms, pain or
sensations; their inception; or their general cause.
Id. This exception “reflects the idea that people are unlikely to lie to their
doctors because doing so might jeopardize their opportunity to be made well.”
VanPatten v. State, 986 N.E.2d 255, 260 (Ind. 2013). To test whether the
declarant’s self-interest in obtaining effective medical treatment makes the
hearsay report adequately reliable for admission, the court must determine: “1)
is the declarant motivated to provide truthful information in order to promote
diagnosis and treatment; and 2) is the content of the statement such that an
expert in the field would reasonably rely on it in rendering diagnosis or
treatment.” McClain v. State, 675 N.E.2d 329, 331 (Ind. 1996).
[11] The statements made by victims of sexual assault “satisfy the second prong of
the analysis because they assist medical providers in recommending potential
treatment for sexually transmitted disease, pregnancy testing, psychological
counseling, and discharge instructions.” VanPatten, 986 N.E.2d at 260. The
first prong regarding the declarant’s motivation can generally be inferred from
the fact a victim sought medical treatment. Id. at 260-61. However, when
children are brought to the medical provider by their parents, an “inference [of
the declarant’s motivation] may be less than obvious” as the child may not
understand the purpose of the examiner or the relationship between “truthful
responses and accurate medical treatment.” Id. Thus, in these situations,
Court of Appeals of Indiana | Opinion 35A02-1601-CR-168 | January 20, 2017 Page 6 of 12
evidence must be presented to show the child understood the medical
professional’s role and the importance of being truthful. Id. Such evidence may
be presented “in the form of foundational testimony from the medical
professional detailing the interaction between [her] and the declarant, how [she]
explained [her] role to the declarant, and an affirmation that the declarant
understood that role.” Id. at 261.
[12] Walters claims the testimony of the forensic nurse Shawn Callahan was
analogous to the testimony of the forensic nurse in VanPatten. In VanPatten, our
Indiana Supreme Court held the State had not established the six-year-old
victims understood the importance of telling the nurse the truth in order to get
accurate medical treatment. Id. at 265. The nurse had observed the police
interviews, the medical examination had been directly preceded by extensive
interviews at the Department of Child Services, and the children themselves did
not testify they had understood the nurse’s role. Id. at 266. The nurse was
unable to testify what she said to the victims, how they responded, and if they
understood the situation. Id. at 267.
[13] The facts here are distinguishable from those in VanPatten. First, B.E. was
eleven years old, not six, when she saw the nurse. Second, the nurse had not
attended any of the previous interviews of B.E., so there was no suggestion she
would steer the conversation to support the allegations. Third, the physical
examination took place on a different day than the other interviews, rather than
immediately following the police interviews. Fourth, Nurse Callahan was able
to recall exactly what and how she explained her role to B.E. In fact, she twice
Court of Appeals of Indiana | Opinion 35A02-1601-CR-168 | January 20, 2017 Page 7 of 12
explained her role to B.E. before starting the physical examination. In addition,
Nurse Callahan was dressed in scrubs and explained that medical practitioners
wear them, the building was situated separate from law enforcement agencies,
and the décor of the office mimicked that of a regular doctor’s office. Fifth,
B.E. was able to articulate Nurse Callahan was “a nurse or doctor.” (Tr. at
198.) See VanPatten, 986 N.E.2d at 265 (if victims are older, “the appearance of
the building, the exam room, and [nurse’s] scrubs and job title would probably
be sufficient circumstances from which to infer [the victims] were thus
motivated to speak truthfully”). Thus, we find no abuse in discretion in the trial
court’s admission of Nurse Callahan’s reiteration of B.E.’s description of
Walter’s assault pursuant to the medical treatment exception to the hearsay
rules.
Sentence Appropriateness
[14] Walters asserts his sentence is inappropriate. We may revise a sentence if it is
inappropriate in light of the nature of the offense and the character of the
offender. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008) (citing
Ind. Appellate Rule 7(B)). As we conduct our review, we consider not only the
aggravators and mitigators found by the trial court, but also any other factors
appearing in the record. Roney v. State, 872 N.E.2d 192, 206 (Ind. Ct. App.
2007), trans. denied. The appellant bears the burden of demonstrating his
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
Court of Appeals of Indiana | Opinion 35A02-1601-CR-168 | January 20, 2017 Page 8 of 12
[15] When considering the nature of the offense, the advisory sentence is the starting
point to determine the appropriateness of a sentence. Anglemyer v. State, 868
N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (Ind. 2007). The
sentencing range for a Level 1 felony is “a fixed term of between twenty (20)
and fifty (50) years, with the advisory sentence being thirty (30) years.” Ind.
Code § 35-50-2-4(c) (2014). 5 The sentencing range for a Level 4 felony is “a
fixed term of between two (2) and twelve (12) years, with the advisory sentence
being six (6) years.” Ind. Code § 35-50-2-5.5 (2014). Walters requests we
“reduce his sentence to slightly above the advisory sentence in each count.”
(Appellant’s Br. at 11.)
[16] As to the nature of his offense, Walters first claims that, because the abuse only
happened once and no physical injuries were found, he should not have been
given the “maximum, fully executed sentence.” (Id. at 1, 4, 9, 10, and 11.)
Walters did not, however, receive the maximum possible sentence. He was
given the maximum sentence for each conviction, but the four sentences were
ordered served concurrently. His maximum possible sentence was 124 years,
and he received only fifty. Cf. Brown v. State, 760 N.E.2d 243, 245 (Ind. Ct.
App. 2002) (maximum sentence on both charges to be served consecutively
indicates a maximum sentence), trans. denied.
5
Two sentencing ranges for Level 1 felonies exist. Compare Ind. Code § 35-50-2-4(a) with Ind. Code § 35-50-
2-4(c). The parties do not challenge Walter’s crime falls into the longer of those two ranges.
Court of Appeals of Indiana | Opinion 35A02-1601-CR-168 | January 20, 2017 Page 9 of 12
[17] Regardless, Walters violated the position of authority he had over B.E. by
ordering B.E. to undress twice, requiring her to bathe, and threatening to spank
her if she did not do as she was told. He violated his position of trust when he
contrived to have B.E. alone for the night and perpetrated these crimes. He
planned for these acts, as proven by the facts he rented the motel room prior to
getting B.E. and gave C.E. an excuse for taking one child at a time. His
molestation of B.E. included: “multiple digital touches of [B.E.]’s vagina,
including penetration; forced oral sex; fondling and groping of her breasts and
butt cheeks; and attempting to place her hand on his genitals, including
brushing her knuckles against his penis through his underwear.” (Appellee’s
Br. at 21.)
[18] As to whether B.E. was injured, Walters is correct the physical examination did
not reveal injury. However, B.E.’s mother, C.E., testified B.E. is now “leery of
her own grandfather. Her own uncles.” (Tr. at 448.) C.E. noticed B.E. “was
real moody [and] she would get angry for no reason. She would be sad for no
reason. She’d just cry. She’d be mad and stomp and she started scratching
herself with sharp objects.” (Id. at 449.)
[19] We see nothing inappropriate about Walters’ fifty-year sentence in light of
Walters’ violation of his position of trust, violation of his position of authority,
his premeditation, the multiple acts he committed against B.E., and the injury
done to her. See Edrington v. State, 909 N.E.2d 1093, 1101 (Ind. Ct. App. 2009)
(violation of position of trust and non-physical injury is evidence to warrant an
enhanced sentence), trans. denied.
Court of Appeals of Indiana | Opinion 35A02-1601-CR-168 | January 20, 2017 Page 10 of 12
[20] When considering the character of the offender, 6 one relevant fact is the
defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.
App. 2007). The significance of a criminal history in assessing a defendant’s
character varies based on the gravity, nature, and number of prior offenses in
relation to the current offense. Id.
[21] Walters asserts his criminal history, although extensive, should not increase his
sentence. Walters told the pre-sentence report investigator “he had only had
prior criminal history in Terre Haute and Marion, Indiana[,]” (Conf. App. at
169), but the report shows Walters had history in seventeen Indiana counties
and also in Michigan, Missouri, and Kentucky. The crimes listed in the report
are mostly crimes of dishonesty. Contrary to Walters’ assertion, his lifelong
criminal history of deceptive behaviors is pertinent to this case. Walters used
deception to gain the trust of B.E. and her parents, and he then violated that
trust. This does not reflect well on his character.
[22] In light of Walters’ character, including his violation of the position of trust and
the position of authority, together with his criminal history, we see nothing
inappropriate about his fifty-year sentence. See Johnson v. State, 986 N.E.2d 852,
6
Walters now argues the fact he held the position of trust with B.E.’s family should be viewed as proof of his
good character. However, violating such a position is correctly regarded as an aggravator. See Robinson v.
State, 61 N.E.3d 1226, 1229 (Ind. Ct. App. 2016) (Robinson’s “abuse of his position of trust . . . reflect[s] his
poor character”).
Court of Appeals of Indiana | Opinion 35A02-1601-CR-168 | January 20, 2017 Page 11 of 12
857 (Ind. Ct. App. 2013) (affirming sentence as not inappropriate based on
criminal history).
Conclusion
[23] As the evidence was not admitted in error and Walters has not demonstrated
his sentence is inappropriate in light of his character and the nature of the
offense, we affirm.
[24] Affirmed.
Kirsch, J., and Crone, J., concur.
Court of Appeals of Indiana | Opinion 35A02-1601-CR-168 | January 20, 2017 Page 12 of 12