Tony E. Powers, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Tony Powers appeals his conviction and ten-year executed sentence for Level 4 felony child molesting. He asserts that the trial court erred by not granting the State's motion for a mistrial stemming from a juror's comments made in the jury room about a witness. Powers also challenges the sufficiency of the evidence to support his conviction and the appropriateness of his sentence under Ind. Appellate Rule 7(B).

[2] We affirm.

Facts & Procedural History

[3] S.L. (Mother) and M.L. (Father) (collectively, Parents) are the biological parents of daughter P.L. (Child), born in 2008, as well as two older sons (Sons). When Child was two or three years old, Parents’ marriage was dissolved, and by agreement, Child lived with Mother, and Sons lived with Father, with the noncustodial parent exercising parenting time.

[4] When Child was in the third and fourth grades, Mother's girlfriend, A.W. (Girlfriend), lived with Mother and Child. Mother or Girlfriend regularly dropped off Child at the home of Girlfriend's sister, K.W., whose teenaged daughter P.H. lived there, along with K.W.’s boyfriend, Powers. Child and P.H. developed a close friendship, and Child would regularly spend the night there. Child felt comfortable in the home and called Powers “Uncle Tony.” Transcript Vol. 3 at 127, 203.

[5] Near the end of fifth grade, Child expressed to Parents that she wanted to live at Father's home. Father and Mother agreed to a change of custody, which began in the summer of 2020. About a year later, Child told Father that she “had some stuff ․ that she wanted to get off her mind” and disclosed to him that she had been touched inappropriately when she was in the third and fourth grades while at the home of a friend named P.H. by a man named “Tony.” Id. at 56. Father contacted law enforcement, who through investigation was able to determine that P.H. lived with Powers during the time in question.

[6] DCS became involved, and Child was forensically interviewed by Franklin Police Department Detective Adam Joseph. In April 2022, the State charged Powers with Level 4 felony child molesting, alleging that between August 9, 2017 and June 4, 2019, when Child was eight to ten years old, Powers fondled or touched her. A two-day jury trial occurred in April 2024.

[7] P.H., then twenty-three years old, testified that, when she was around fifteen, she met Child through her maternal aunt, A.W., who was Mother's Girlfriend at the time. P.H. stated that, despite a “big age gap” between her and Child, the two of them became close. Transcript Vol. 3 at 125. Child often spent the night, and they would sleep in P.H.’s bedroom. P.H. testified to observing Child sitting on Power's lap sometimes, which P.H. thought was inappropriate and made her feel uncomfortable. She also testified about one occasion when Child spent the night that they build a fort in her bedroom out of blankets and chairs. The exit to the fort was near the door of her bedroom. P.H.stated that, at some point, she fell asleep, and she did not know what happened after that. P.H. testified that after her aunt and Child's Mother broke up, she did not see Child anymore. Some years later, P.H. moved out of the home and learned about allegations involving Powers and Child in around 2021.

[8] After P.H.’s testimony, the jurors were excused for a break during which Juror 15 shared in the jury room that, once P.H. began testifying, she realized that she and P.H. had attended high school together. Juror 15 reported this to the bailiff, who advised the trial court. After consulting with the parties, the trial court, in the presence of counsel, questioned Juror 15 about the matter. Juror 15 explained that she and P.H. had attended the same high school, had one class together, and had spoken once but were not friends. When asked by the State whether she had had any conversations with other jurors about this, Juror 15 reported that, in addition to stating that she knew P.H., she noted to other jurors that P.H.’s “body language was a little off” from how she knew P.H. to be at school, with some jurors responding that P.H. “probably was just nervous.” Id. at 150, 152.

[9] After Juror 15 was sent to the jury room, the parties and court continued discussion of the matter, with the State expressing that its primary concern was not that Juror 15 knew P.H., but rather, that “she had an active conversation with all of the jurors about her memory of [P.H.] then versus now,” and what perception that may have given to any of the jurors about P.H.’s credibility. Id. at 154. The parties agreed that Juror 15 should be excused. On the State's suggestion, the jurors were then individually voir dired about the matter. A couple of the jurors recounted that Juror 15 made comments to the effect that P.H. was “acting different” or “was a big fibber,” and another juror stated that he had the impression that Juror 15's impartiality may have been compromised. Id. at 162, 165. The court individually admonished each juror to disregard the comments of Juror 15 as well as her removal, to not further discuss the matter, and to consider only the evidence and the court's instructions in making a determination.

[10] Following a recess to allow the parties to consider the jurors’ responses, Powers reported satisfaction with trial court's actions and expressed that nothing further, beyond Juror 15's removal, needed to be done. The State moved for a mistrial, arguing that “the remedies are inadequate to cure the problem.” Id. at 183. Powers objected to the State's motion, opining that P.H. was a “tangential witness” and that it was “far-fetched” that “some extraneous knowledge” about P.H. would impact the jury. Id. at 186. Powers argued that the trial court followed the proper procedure where, as here, “no impact was identified by any of the jurors.” Id. at 187. Powers maintained that a mistrial was not warranted and, further, such could prejudice Powers's Criminal Rule 4 rights. The trial court denied the State's motion for mistrial but stated that it would be giving the jury, collectively, another admonishment, “much the same as the other admonishment.” Id. at 191. Powers confirmed that he did not desire any additional action or statements by the court to the jury.

[11] Thereafter, Child, then fifteen years old, testified. She stated that, during the time that she was in the third and fourth grades, she often visited Girlfriend's sister's home, where P.H. lived. While at the home, Child would sometimes spend time with Powers, usually in the living room, playing video games and chatting. She testified that when Powers was teaching her video games, he would put her on his lap to show her the controls and would “make sure that [she] was like in the middle of his lap,” which made her feel “very uncomfortable.” Id. at 205, 206. Child started noticing that he would place his hands on her hips to purposely move her around and “felt his penis rise and press against [her].” Id. at 206. She recalled one occasion when she heard Powers make “like a slight grunt.” Id. at 209. She testified that there were occasions when others in the home could see her on Powers's lap, including P.H. Child explained that because she did not know for sure that what was happening was wrong, she did not tell anyone, but she stopped playing video games with Powers and would only leave P.H.’s room with P.H.

[12] Child also testified about an incident when she and P.H. made a fort in P.H.’s room after midnight on New Year's Eve, and at some point P.H. went to sleep. Child was lying on her side with her back toward the fort's entrance, which was near the bedroom door, when she felt a hand on her back. She turned her body to see who it was, and then the hand traveled to her breasts. Child testified that it was dark so she could not see who it was, but when she pushed the person away, she felt a bald head “and that's when [she] knew it was Tony.” Id. at 210. Despite Child telling Powers to leave, he moved his hands down and rubbed her vagina, first outside of her shorts, then underneath her underwear. Child explained that she tried to get Powers's hands off her but did not yell because she was scared. Child recalled that Powers eventually “just got up and walked out” when his girlfriend, P.H.’s mother, came out of her bedroom. Id. at 217. Child testified that Powers subsequently did similar things to her on a few other occasions, and put his penis in her vagina twice, but she particularly remembered the fort incident as it was the first time he touched her in that way.

[13] Child testified that, in or after fourth grade, Mother and Girlfriend broke up, and she never saw P.H. again. She recounted eventually disclosing the abuse to Father and being interviewed by Detective Joseph. Child described that she was not comfortable with Detective Joseph, as he was bald and “had a resemblance to [Powers],” which “kind of triggered” Child, causing her to feel “panic,” such that she did not share with him everything that had happened. Id. at 227; Transcript Vol. 4 at 9. Child testified that she felt no one would believe her, as Powers had told her that it was his word against hers, “a kid's against an adult's.” Transcript Vol. 4 at 13.

[14] The jury found Powers guilty as charged. At the sentencing hearing, Powers gave a statement in allocution, asserting that he was falsely accused, and Child gave a victim impact statement. Detective Joseph testified to having investigated other cases “similar in nature” involving Powers, namely allegations made by two female juveniles, who were visiting their grandparents in a home across the street from Powers, who reported that in April 2022 Powers “had grabbed [the] butt” of one girl and sent inappropriate texts to the other. Id. Detective Joseph had submitted a charging information to the prosecutor's office based on the girls’ allegations. Detective Joseph also testified that, while this action was pending, police were called to Powers's home pertaining to “inappropriate behavior” that was sexual in nature, involving P.H. Id. at 74. The State submitted into evidence trial courtroom security camera video from when the verdict was read showing Powers make a “gun shooting motion with his fingers.” Id. at 73.

[15] Powers asked for a six-year sentence with four in the Indiana Department of Correction, while the State requested an executed twelve-year sentence. The court imposed a ten-year executed sentence at the DOC. Powers now appeals.

Discussion & Decision

1. Denial of Motion for Mistrial

[16] Powers asserts that the trial court erred “in not declaring a mistrial” due to Juror 15's comments about P.H. to other jurors. Appellant's Brief at 17. More specifically, Powers's contention is that the trial court properly followed procedure, individually questioning each juror and admonishing them individually and collectively, “but should have ultimately declared a mistrial either sua sponte or on the State's motion.” Id. at 18.

[17] “A party may not invite error, then later argue that the error supports reversal, because error invited by the complaining party is not reversible error.” Booher v. State, 773 N.E.2d 814, 822 (Ind. 2002) (additional quotations omitted). To establish invited error, there must be “some evidence that the error resulted from the appellant's affirmative actions as part of a deliberate, well-informed trial strategy.” Batchelor v. State, 119 N.E.3d 550, 558 (Ind. 2019) (internal quotations omitted). A passive lack of objection, standing alone, is simply not enough. Id. That is, we have consistently required something more than mere “neglect” before applying invited error's automatic rule of preclusion. Id. at 557.

[18] Here, not only did Powers object to the State's request for a mistrial, he presented argument regarding why it should be denied. He asserted that a mistrial was not warranted because P.H. was not an essential witness to the State's case and that it was unlikely that Juror 15's remarks about P.H. would have any impact on the jury and suggested that a mistrial might have prejudicial implications upon his Crim. R. 4 rights. And throughout the court's extended discussion about Juror 15, Powers agreed to the trial court's method of voir dire, the questions it asked, and affirmatively expressed satisfaction with the language of the admonishments given.

[19] We agree with the State that Powers's trial strategy was to “take a gamble” that P.H.’s testimony might be called into doubt – potentially weakening the State's case against him – and he “does not get to place his bet on a different horse on appeal and argue now that the trial court should have granted the State's motion[.]” Appellee's Brief at 21-22. Having requested and expressly asked the court to deny the State's motion for mistrial, Powers may not now assert denial of the motion as error.

2. Sufficiency of the Evidence

[20] Powers contends that the State failed to present sufficient evidence to convict him. When reviewing the sufficiency of evidence supporting a conviction, we neither reweigh the evidence nor assess the credibility of witnesses. Sorgdrager v. State, 208 N.E.3d 646, 650 (Ind. Ct. App. 2023), trans. denied. In conducting our review, we consider only the evidence that supports the jury's determination, not evidence that might undermine it. Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024). We will affirm unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Sorgdrager, 208 N.E.3d at 650. A victim's testimony, even if uncorroborated, is ordinarily sufficient to sustain a conviction for child molesting. Bowles v. State, 737 N.E.2d 1150, 1152 (Ind. 2000).

[21] For Level 4 felony child molesting, the State was required to prove beyond a reasonable doubt that Powers “did perform and/or submit to fondling and/or touching with [Child], a child under the age of fourteen years, to wit: 8 to 10 years old, with the intent to arouse and/or satisfy the sexual desires of [ ] Powers and/or [Child].” Appendix Vol. 2 at 22; see also Ind. Code 35-42-4-3(b). Powers argues that the State failed to present sufficient evidence to establish Child's age when Powers allegedly touched her. We disagree.

[22] At trial, Child testified that she was fifteen years old and that it had been at least five years since the molesting occurred. She also testified repeatedly that the incidents with Powers occurred when she was in the third and fourth grades. Father testified that, around fifth grade, Child moved in with him and that, about a year later, she disclosed to Father that, a couple years prior, a man named “Tony” had touched her inappropriately. Transcript Vol. 3 at 56. P.H. testified that, when she was fifteen to seventeen years old, Child would come over to her house and that there was “a big age gap” between the two of them. Id. at 123. The State presented ample evidence to establish that Child was under fourteen years of age when the sexual contact occurred.

[23] Powers also asserts that the evidence “of the alleged touching ․ is not substantial[.]” Appellant's Brief at 16. Among other things, he points out that Child “withheld details” from Father and that she did not report to Detective Joseph that Powers had touched her beneath her underwear or put his penis in her vagina.¹ Powers further suggests that the circumstances surrounding Child's allegations of intercourse – i.e., occurring as P.H. slept next to Child in a twin size bed – not only “call into question” the intercourse allegations but “also cast doubt on her story of being touched by Powers[.]” Id. at 16, 17. Powers's arguments are simply a request to reweigh the evidence and judge the credibility of the witnesses, which we will not do. See Sorgdrager, 208 N.E.3d at 650. Powers's Level 4 felony child molesting conviction is supported by sufficient evidence.

3. Sentencing

[24] App. R. 7(B) permits an appellate court to revise a sentence if it is inappropriate in light of the nature of the offense and the character of the offender. The principal role of App. R. 7(B) review is to attempt to leaven the outliers. Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014). App. R. 7(B) analysis is not to determine whether another sentence is more appropriate but rather whether the sentence imposed is inappropriate. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012).

[25] Whether a sentence is inappropriate turns on the culpability of the defendant, the severity of the crime, the damage done to others, and a myriad of other factors that come to light in a given case. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). More particularly, the defendant must show that his sentence is inappropriate with “compelling evidence portraying in a positive light the nature of the offense[s] (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The defendant has the burden of persuading us that his sentence is inappropriate. Sorgdrager, 208 N.E.3d at 654.

[26] When considering the nature of the offense, we first look to the advisory sentence for the crime. McHenry v. State, 152 N.E.3d 41, 46 (Ind. Ct. App. 2020). The sentencing range for a Level 4 felony is between two and twelve years, with an advisory sentence of six years. See Ind. Code § 35-50-2-5.5. Here, the trial court imposed a ten-year executed sentence.

[27] Our analysis of the nature of the offense requires us to look at the nature, extent, heinousness, and brutality of the offense. Pritcher v. State, 208 N.E.3d 656, 668 (Ind. Ct. App. 2023). Powers urges that there was no indication that he used violence, threats, or force and no evidence that Child sought medical treatment. He also effectively repackages his sufficiency arguments, arguing that P.H. did not witness any touching “besides one instance of [Child] sitting on Powers's lap” and that Child's allegations of touching and intercourse were “tenuous” and “highly improbable.” Appellant's Brief at 21-22. We are not persuaded that the nature of the offense renders Powers's sentence inappropriate. The record reflects that Child had an unstable home life and regularly spent time at Girlfriend's sister's home, where she was exposed to Powers. Child considered the home to be “warm and welcoming” and “[t]here was always enough food.” Transcript Vol. 3 at 203. Powers gained Child's trust and then sexually abused her multiple times over the course of around two years, with his actions escalating in severity. To make Child think that no one would believe her, and thereby gain her silence, Powers told her that it would be her word against his. The nature of the offense does not warrant sentence revision.

[28] Our analysis of the character of the offender involves a broad consideration of a defendant's qualities, including the defendant's age, criminal history, background, past rehabilitative efforts, and remorse. Pritcher, 208 N.E.3d at 668. In seeking sentence revision, Powers, age forty-two at the time of sentencing, asserts that he had his own heating and cooling business, was a hard worker, and paid child support. He also notes that he struggled with substance abuse and depression following his fiancé’s passing in 2021. While recognizing that the risk assessment system testing placed him at a high risk to reoffend, Powers argues that he is of an age when criminality generally declines and that the sex offender registry would take care of concerns about him being around children. We are unpersuaded by these arguments.

[29] Powers has a criminal history that began when he was a juvenile with an adjudication for child molesting, which the trial court found “highly concerning [ ] given where we are today.” Transcript Vol. 4 at 83. Powers has over two decades of adult convictions, including misdemeanor possession of marijuana, driving while suspended, and public intoxication and felony convictions for Class D felony possession of marijuana, Class C felony trafficking with an inmate, Class D felony habitual traffic violator, Class C felony operating a vehicle after suspension, Class D felony resisting law enforcement, Class D felony neglect of a dependent, and Level 6 felony intimidation. He had several revocations of probation. At the time of sentencing, Powers was facing several pending charges: Class A misdemeanor resisting law enforcement, Level 6 felony escape, and Class A misdemeanor conversion. In addition to his criminal history, the trial court addressed the gun gesture that Powers made with his fingers when the verdict was read, considering it to reflect “a lack of maturity, a selfishness, that quite frankly marks your character or what I've seen of it.” Id. at 84. Powers's character does not warrant App. R. 7(B) sentence revision.

[30] Judgment affirmed.

FOOTNOTES

1.   The intercourse allegations were first disclosed by Child during her deposition.

Altice, Chief Judge.

Judges Vaidik and Scheele concur. Vaidik, J. and Scheele, J., concur.