90-year sentence upheld
The Indiana Court of Appeals has upheld a 90-year sentence handed down by Judge Fredrick A. Shurger in December, 2011, to a Decatur man Andrew E. Stetler, 33, who was convicted on two counts of child molestation and of being a habitual offender.
Stetler appealed his sentence, questioning if sufficient evidence was presented to uphold one of his child molestation convictions and whether his 90-year sentence is inappropriate considering the nature of the offenses and his character.
The court document states in July of 2010, Stetler attended a campfire at the home of a 9-year-old girl, at which a 7-year-old girl was also present. At some point during the campfire, the younger girl walked to her home next door for a pillow and Stetler walked with her. As Stetler and the child arrived at the back porch to her home, he allegedly pulled down the girl's pants and underpants and orally molested the child, according to the document.
The court record states when Stetler and the 7-year-old girl returned to the campfire, the older child climbed onto his lap and fell asleep. She reportedly awoke when Stetler put his hand down the front of her pants and inside her underpants, touching her private area .
Both girls reported Stetler's behavior to a neighbor, who informed the girls' parents. The parents called police to report the alleged abuse and the girls were taken to the Child Advocacy Center in Fort Wayne, where they were questioned.
The girls were examined by a sexual assault nurse, and the 9-year-old testified during trial that, during the examination, the nurse touched her in the same location Stetler had. The document further states that after a jury found Stetler guilty of two counts of child molesting, both Class A felonies, he then admitted to being a habitual offender. Judge Shurger sentenced Stetler to 30 years for each conviction, with an additional 30-year sentence added to one of the sentences for being a habitual offender. The sentences are to be served consecutively, for a total of 90 years.
Stetler challenged the sufficiency of evidence supporting his conviction of child molestation of the 9-year-old girl. To convict Stetler of child molesting as a Class A felony, the state was required to prove beyond a reasonable doubt that Stetler, being at least 21 years old, performed deviate sexual conduct on the child, who was under 14 years old, according to the report.
The document states that for this purpose, "deviate sexual conduct" requires proof of an act involving a sex organ of one person and the mouth or anus of another person; or the penetration of the sex organ or anus of a person by an object. The state alleged Stetler penetrated the 9-year-old child's sex organ with his finger.
Stetler contends the evidence is insuffcient to prove penetration because the "undisputed evidence" is that his finger did not penetrate the child's sex organ, he maintained in his appeal.
The 9-year-old girl testified during trial that Stetler "didn't put his finger inside my private." Nurse Leslie Cook, who conducted the sexual assault examination on the girl, testified during trial that the child also told her that Stetler had touched her "on the outside on her skin," according to court records.
However, Cook also testified that during the examination she began using a cotton swab on the external genitalia and asked the child if she had felt Stetler's fingers "anywhere else besides from where I just swabbed." The child indicated she had, so Cook used a second cotton swab on the internal sex organ and asked the girl to tell her when she was touching what Stetler's fingers had touched.
When Cook swabbed an internal feature of the female sex organ, the child indicated she had felt Stetler's fingers there. Cook said that this was not a change of story, but based on her experience feels it is the child's perception. Cook said the girl knew where Stetler touched her, but because of her youth and limited understanding, she was unable to recognize or verbalize the clitoral hood as an internal part of the female sex organ, according to court documents.
Stetler argued that in order to prove the crime according to Indiana Code, the state would need to show that he entered, more than slightly, into the child's female sex organ. Stetler posed to the court that greater proof of penetration is required to prove sexual intercourse, the document states.
The appellate court stated that the supreme court has held that proof of the slightest penetration is sufficient to prove sexual intercourse.
"Whether greater penetration is required to prove deviate sexual conduct is not something we need to decide," the court said in ruling, "because [the child] confirmed that Stetler touched her on the clitoral hood, which nurse Cook explained as an internal organ. The evidence as a whole supports the jury's finding that Stetler penetrated [the child's] female sex organ and therefore supports his conviction of Class A felony child molesting."
Concerning the nature of the offense, the document said Stetler took advantage of two young girls, in their homes. In addition, Stetler was a friend of one child's family, and the child testified that she experienced a burning sensation when she went to the restroom after Stetler touched her.
As to the nature of Stetler's character, the document stated Stetler had a prior child molesting conviction in 2003. He violated probation on that conviction by failing to register as a sex offender and was re-incarcerated. He was released just two months prior to committing these offenses and was still on parole.
His criminal history also includes a juvenile disposition for which he was initially placed on probation, but ultimately committed to a secure facility. As an adult, Stetler also has convictions for operating a vehicle without a license or proof of financial responsibility; dealing marijuana; possession of cocaine; and check deception.
He has violated his probation on several occasions and has not responded well to prior attempts at rehabilitation, the court document states.
Stetler maintained to the court that although his offenses and character may warrant the advisory sentence he was given, which limits the amount of credit time he may receive, it does not warrant the consecutive sentences.
Stetler told the court the incidents were isolated and he did not threaten the girls, use force in molesting them, or cause them any physical harm, according to court records. Stetler also noted that his prior child molestation conviction was nearly eight years prior to these convictions. The court determined that Stetler's criminal record is extensive and includes a prior molestation conviction, which does not support Stetler's claim that these were isolated incidents.
Furthermore, the court noted that Stetler spent most of those intervening eight years in prison, and the sentences were not ordered consecutively solely because of the prior convictions that support the habitual offender determination.
"Considering the nature of Stetler's offenses, the nature of his character, and the totality of the penal consequences imposed by the trial court, we cannot say Stetler has met his burden of demonstrating his sentence is inappropriate.
"As the trial court noted, Stetler took advantage of an opportunity to with two young girls to commit two separate and distinct acts offenses, he has a prior conviction for the same crime, multiple previous attempts at rehabilitation have failed, and he was released on parole for his prior molestation conviction only two months before committing these crimes," the court said in ruling.
Stetler must serve at least 85 percent of his sentence, or 75years before he is eligible for parole.