COA revises sentence for molestation of stepson

April 10, 2015

The Indiana Court of Appeals found sufficient evidence as well as no errors by the trial court in affirming five molestation convictions of a man involving his stepson. But, the judges believed his nearly 100-year sentence needs revised.

In Johnathon I. Carter v. State of Indiana, 02A03-1405-CR-181, Johnathon Carter challenged his five molestation convictions, three as Class A felonies and two as Class C felonies, based on sexual acts he performed on his 8-year-old stepson or had the child perform. The molestations occurred over a nearly three-year period, with a short break after Carter moved out of the family home. M.N. told his mother about the molestation, but he later recanted after seeing his mother struggle to be a single mother and being bullied by his brother about it. Carter moved back in and the molestations continued until M.N. again told his mother about it, which led to criminal charges against Carter.

Carter contended that the trial court erred by rejecting his tendered final jury instruction regarding jury unanimity. He claimed because the jury heard from M.N. about molestation over the years, it could have considered uncharged conduct, just some of the charged conduct or a combination of it, so there was not a unanimous jury verdict. But the decision to refuse the instruction was proper because it was not a correct statement of law, the COA held, and Carter has failed to show that any instructional error constituted fundamental error.

The judges also affirmed the testimony from Patricia Smallwood, a forensic interviewer who interviewed M.N. in 2013. Smallwood never testified specifically about M.N., but she testified in general terms as to why children recant stories and how children deal with sexual abuse. Her testimony did not run afoul of Ind. Evidence Rule 704(b), as Carter claimed.

There is sufficient evidence to affirm the convictions, but the judges concluded his 98-year sentence “is out of range of appropriate results,” even with the facts that Carter occupied a position of trust with M.N. and his offenses are quite serious.

The COA revised his sentence for an aggregate total of 68 years and remanded to the trial court to enter such a sentence.


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