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Carter v. State

Court of Appeals of Indiana

April 10, 2015

Johnathon I. Carter, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Appeal from the Allen Superior Court. The Honorable Frances C. Gull, Judge. Cause No. 02D05-1311-FA-46[1] .

ATTORNEY FOR APPELLANT: Richard J. Thonert, Fort Wayne, Indiana.

ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, Indiana.

Kirsch, Judge. Friedlander, J., and Crone, J., concur.

OPINION

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Kirsch, Judge.

[¶1] Following a jury trial, Johnathon I. Carter was convicted of three counts of Class A felony child molesting[2] and two counts of Class C felony child molesting.[3] He raises four issues on appeal that we restate as:

I. Whether the manner in which the jury was instructed concerning the requirement of jury unanimity constituted fundamental error;

II. Whether the trial court abused its discretion in admitting certain expert testimony;

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III. Whether the State presented sufficient evidence to convict Carter;
IV. Whether Carter's ninety-eight-year sentence is inappropriate in light of the nature of the offense and the character of the offender.

[¶2] We affirm the convictions, revise the sentence, and remand with instructions.[4]

Facts and Procedural History

[¶3] On June 28, 2009, Carter married Q.C. (" Mother" ), who at that time had three sons, M.S., age fifteen, M.J., age fourteen, and M.N., age eight. Mother and her sons moved from Gary to Fort Wayne in December 2010, and Carter moved shortly thereafter, in January 2011. M.S. had his own room in the residence. M.J. and M.N. shared a bedroom. Between January 2011 and April 2013, the family lived in five different residences in Fort Wayne. M.N. and M.J. shared a bedroom at each of the locations. Carter and Mother worked for the same employer, but generally worked different shifts from each other, such that when Mother was at work, Carter was at home.

[¶4] From at least early August 2010 to near the end of April 2013, Carter engaged in sexual acts with M.N. The encounters took place at each of the residences where the family lived, usually in M.N.'s bedroom or Carter's bedroom, sometimes happening in the morning after the older brothers had left for school, sometimes in the afternoon when no one else was home, or during the night. Carter would require M.N. to perform oral sex and would also require him to submit to it. He also required M.N. to engage in anal sex. Carter also fondled and touched M.N.'s penis, and Carter required M.N. to touch Carter's penis. Carter bribed M.N. with candy and money.

[¶5] At some point, M.N. told M.J. what Carter was doing, but M.J. " didn't believe me." Tr. at 249. In November 2011, M.N. disclosed to Mother that Carter had been molesting him. Mother and M.N. made a police report to the Fort Wayne Police Department, a department of child services (" DCS" ) investigation began, and Carter moved out of the residence. On November 23, 2011, Julie DeJesus, a forensic interviewer, interviewed M.N. at the Dr. Bill Lewis Center for Children. DeJesus wore an earpiece, and a multi-disciplinary team[5] listened from another room. M.N. disclosed to DeJesus, with words and demonstrating with his hands, that Carter had abused him. That same day, Sharon Robinson, a sexual assault nurse examiner, at the Fort Wayne Sexual Assault Treatment Center, examined M.N. Detective Robin Pfeiffer of the Fort Wayne Police Department separately interviewed M.N. and Carter on November 28, 2011.

[¶6] M.J. and Carter had an amicable relationship, and M.J. enjoyed spending time with him. M.J. was angry that Carter had left the residence, due to M.N.'s disclosures, and M.J. treated M.N. differently after Carter was gone. M.J. ignored M.N. and was less playful with M.N. He called him a snitch and a coward. M.S. observed M.J. sometimes push M.N. and " tell him to get in the corner or whatever," even though M.N. had done nothing wrong. Id. at 430-31. At some point, M.J. asked M.N. if the accusations against Carter were true, and M.N. told M.J. that he had lied about Carter molesting him,

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but told M.J. not to tell Mother. That same day, M.J. told the school counselor, Shirley Snider that M.N. said that he had made up the accusations against Carter. Snider contacted Detective Pfeiffer who, in turn, contacted Mother. Detective Pfeiffer requested to interview M.N. again, but Mother required that she be present for the interview, which was against police department policy, and the investigation stalled. According to Detective Pfeiffer, the investigation " was closed based on the uncooperation of the family." Id. at 559.

[¶7] In January or February 2012, Carter moved back into the residence, and the molestations resumed. The relationship between Mother and Carter deteriorated, and Carter moved out of the house again in April 2013. Thereafter, on May 2, 2013, M.N. told Mother that Carter had been molesting him again. The investigation resumed. On May 23, 2013, Angela Mellon, a sexual assault nurse examiner at the Fort Wayne Sexual Assault Treatment Center, examined M.N. Patricia Smallwood, a forensic interviewer at the Dr. Bill Lewis Center for Children also interviewed M.N. in or around May 2013. Detective Pfeiffer interviewed M.N., as well as Carter, on June 5, 2013.

[¶8] On November 28, 2013, the State charged Carter with three counts of Class A felony child molesting and two counts of Class C felony child molesting. The State alleged: Count I, between August 1, 2010 and April 27, 2013, Carter performed or submitted to sexual deviate conduct by placing his penis in or on the mouth of M.N.; Count II, between August 1, 2010 and April 27, 2013, Carter performed or submitted to sexual deviate conduct by placing his mouth on the penis of M.N.; Count III, between August 1, 2010 and April 27, 2013, Carter performed or submitted to sexual deviate conduct by placing his penis in or on the anus of M.N.; Count IV, between August 1, 2010 and April 27, 2013, ...


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