Joshua William Hansen, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Joshua William Hansen was convicted of eighteen felonies that arose from his sexual abuse of his two young daughters, and the trial court sentenced him to 169 years in the Indiana Department of Correction. Hansen raises three issues for our review, which we reorder and restate as:

1. Whether the trial court erred by denying Hansen's motion to sever three charges for acts that occurred in 2016-2017 from eighteen charges for acts that occurred in 2022-2023;

2. Whether the trial court imposed illegal sentences by sentencing Hansen to concurrent eight-year terms for his two Level 5 felony convictions of child solicitation; and

3. Whether Hansen's sentence is inappropriate given the nature of his offenses and his character.

Severance of the three earlier acts was not mandatory; nor did the trial court abuse its discretion in denying a discretionary severance. The statutory maximum sentence for a Level 5 felony is six years, and thus Hansen's sentence must be reduced to 167 years, which we do not find inappropriate for his offenses and character. Accordingly, we affirm in part, reverse in part, and remand for the trial court to enter a corrected sentencing order.

Facts and Procedural History

[2] Until 2023, Hansen was married to M.M., and their marriage produced three children, including two daughters who are the victims in this case. Victim One was born in 2011, and Victim Two was born in 2013. During the summer of 2016, at the house in Merrillville where the family lived, while M.M. was at work, Hansen molested Victim 1 by removing her clothing and touching her genitalia with his hand. Hansen asked Victim 1 to suck his penis, but she refused. About a year later, Hansen instructed Victim 2 to suck his penis, and she did for five or ten minutes until he ejaculated.

[3] In the summer of 2022, after Hansen and M.M. had separated, the children went to spend the night with Hansen. He did not have beds for the children, so eleven-year-old Victim One went to Hansen's bedroom to sleep on the bed. Hansen shut the bedroom door, climbed onto the bed, put his hands down Victim One's pants, instructed her to take off her pants and underwear, used a vibrator on her genitalia, and stroked his own penis until he ejaculated. Hansen instructed Victim One not to tell her mother.

[4] The children again stayed with Hansen at his trailer in Gary, Indiana, from Christmas Day 2022 to January 2, 2023. During this visit, Hansen committed multiple crimes against each of his daughters. Hansen played pornographic videos for all three of his children to watch, and showed the girls pictures of penises, breasts, and vaginas. He watched the girls shower and got naked to climb into the shower with them. Hansen made Victim One take off her shirt and bra, and he masturbated while looking at her breasts. He forced Victim Two to touch herself while he masturbated in front of her. Hansen photographed each girl's vagina. He put two fingers into Victim One's vagina to see if her hymen was broken. Hansen penetrated Victim One's vagina with a penis-shaped sex toy after forcing her to choose between the fake penis and his penis. Hansen penetrated Victim Two's anus with his penis and, even though she told him it hurt, he continued penetrating her until he ejaculated. Hansen asked each of the girls to have vaginal intercourse with him, telling Victim One that it would be fun for her and that he would cry if she refused.

[5] Victim 1 disclosed the abuse to her mother on January 6, 2023. M.M. contacted the police. Detective Stevie Simmons conducted a forensic interview with each victim. Law enforcement obtained a search warrant for Hansen's phone, which revealed the photographs of the victims’ genitalia taken in December 2022 and internet searches for pornographic content including “teen girls nude,” “average penis nude,” “small penis nude[,]” “horse penis nude[,]” and “Naked Wrestling” videos. (Tr. Vol. 6 at 126-28.) Sex toys matching the victims’ descriptions were seized from Hansen's residence, and DNA analysis revealed genetic material from Hansen and both victims.

[6] On July 5, 2023, the State filed twenty-three felony charges against Hansen: (1) Level 1 felony child molesting ¹ for an act involving Victim Two between March 13, 2017, and March 12, 2019; (2) Level 1 felony child molesting for an act involving Victim One between December 25, 2022, and January 1, 2023; (3) Level 1 felony child molesting for an act involving Victim 2 between December 25, 2022, and January 1, 2023; (4) Level 4 felony child molesting ² for an act involving Victim One between May 14, 2016, and May 13, 2017; (5) Level 4 felony child molesting for an act involving Victim One between June 1, 2022, and August 31, 2022; (6) Level 4 felony child molesting for an act involving Victim One between December 25, 2022, and January 23, 2023; (7) Level 4 felony child molesting for an act involving Victim Two between December 25, 2022, and January 23, 2023; (8) Level 4 felony incest ³ for an act involving Victim Two that occurred between March 13, 2017, and March 12, 2019; (9) Level 4 felony incest for an act involving Victim One that occurred between December 25, 2022, and January 1, 2023; (10) Level 4 felony incest for an act involving Victim Two that occurred between December 25, 2022, and January 1, 2023; (11) Level 4 felony vicarious sexual gratification ⁴ involving Victim Two between December 25, 2022, and January 1, 2023; (12) Level 4 felony child exploitation ⁵ involving Victim One on or about December 26, 2022; (13) Level 4 felony child exploitation involving Victim One on or about December 27, 2022; (14) Level 4 felony child exploitation involving Victim Two on or about December 27, 2022; (15) Level 5 felony child solicitation ⁶ involving Victim One between December 25, 2022, and January 1, 2023; (16) Level 5 felony child solicitation involving Victim Two between December 25, 2022, and January 1, 2023; (17) Level 5 felony possession of child pornography ⁷ around December 26, 2022; (18) Level 5 felony possession of child pornography around December 27, 2022; (19) Level 5 felony possession of child pornography around December 27, 2022; (20) Level 6 felony performing sexual conduct ⁸ in the presence of Victim One between December 25, 2022, and January 2, 2023; (21) Level 6 felony performing sexual conduct in the presence of Victim Two between December 25, 2022, and January 2, 2023; (22) Level 6 felony dissemination of matter harmful to minors ⁹ for showing pornography to Victim One between December 25, 2022, and January 1, 2023; and (23) Level 6 felony dissemination of matter harmful to minors for showing pornography to Victim Two between December 25, 2022, and January 1, 2023.

[7] Hansen filed a pre-trial motion to sever the twenty charges alleged to have occurred in 2022 or 2023 from the three charges alleged to have occurred in earlier years -- (1) Level 1 felony child molesting for an act involving Victim Two between March 13, 2017, and March 12, 2019; (4) Level 4 felony child molesting for an act involving Victim One between May 14, 2016, and May 13, 2017; and (8) Level 4 felony incest for an act involving Victim Two that occurred between March 13, 2017, and March 12, 2019. Hansen contended the counts were joined solely based on being of similar character and should be severed because they arose in different circumstances. Following a hearing, the trial court denied Hansen's severance motion.

[8] The trial court empaneled a jury. After the presentation of all evidence, Hansen moved for a directed verdict on five counts, and the trial court granted his motion on the two counts of Level 4 felony child exploitation involving Victim One. The jury found Hansen guilty of the remaining twenty-one charges – three counts of Level 1 felony child molesting, four counts of Level 4 felony child molesting, three counts of Level 4 felony incest, one count of Level 4 felony vicarious sexual gratification, one count of Level 4 felony child exploitation, two counts of Level 5 felony child solicitation, three counts of Level 5 felony possession of child pornography, two counts of Level 6 felony performing sexual conduct in the presence of a minor, and two counts of Level 6 felony dissemination of matter harmful to minors.

[9] To avoid any double jeopardy concerns, the trial court merged the three incest verdicts with the corresponding child molesting verdicts and convicted Hansen of eighteen counts. At sentencing, the trial court found a mitigator in Hansen “not hav[ing] much of a criminal history,” but found

that one instance of a mitigator, is completely and absolutely outweighed by all the aggravating factors that we have here, which include the age of the children, both; the fact that we have two children; the fact that you violated a position of trust as being their father; and, of course, the other is that you are their father. It doesn't get much worse than this.

(Tr. Vol. 7 at 222-23.) The trial court imposed 35 years for each of the 3 Level 1 felonies, 8 years for each of the 8 Level 4 felonies, 8 years for each of the 2 counts of Level 5 felony child solicitation, 4 years for each of the 3 counts of Level 5 felony possession of child pornography, and 2 years for each of the 4 Level 6 felonies. The trial court ordered many of the sentences served consecutively, and the resulting aggregate sentence was 169 years.

Discussion and Decision

1. Motion to Sever

[10] Hansen first argues the trial court erred in denying his motion to sever the three charges from 2016-2017 from the charges occurring in 2022-2023. Under Indiana law, offenses may be charged in the same information when they:

(1) are of the same or similar character, even if not part of a single scheme or plan; or

(2) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.

Ind. Code § 35-34-1-9(a). A defendant may, however, challenge that joinder:

Whenever two (2) or more offenses have been joined for trial in the same indictment or information solely on the ground that they are of the same or similar character, the defendant shall have a right to a severance of the offenses. In all other cases the court, upon motion of the defendant or the prosecutor, shall grant a severance of offenses whenever the court determines that severance is appropriate to promote a fair determination of the defendant's guilt or innocence of each offense considering:

(1) the number of offenses charged;

(2) the complexity of the evidence to be offered; and

(3) whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.

Ind. Code § 35-34-1-11(a).

[11] When a trial court denies a defendant's motion to sever under Section 11(a), our review of its decision depends on the reasons why the charges were joined:

Where the offenses have been joined solely because they are of the same or similar character, a defendant is entitled to severance as a matter of right. Ind. Code § 35-34-1-11(a) (2008). The trial court thus has no discretion to deny such a motion, and we will review its decision de novo. But where the offenses have been joined because the defendant's underlying acts are connected together, we review the trial court's decision for an abuse of discretion.

Pierce v. State, 29 N.E.3d 1258, 1264 (Ind. 2015) (internal case citations omitted) (emphasis in Pierce). Hansen argues that he was entitled to severance as a matter of right and, if that argument fails, that severance was necessary for a fair determination of his guilt or innocence.

1.1. Mandatory severance

[12] When a defendant asserts he was entitled to a mandatory severance, the determinative question is whether the charges were joined “solely” because they are of similar character. Id. (emphasis in Pierce). Hansen contends the 2016-2017 charges are “separate and distinct events from the rest of the charges” because they occurred while the family lived together in Merrillville, involved different specific acts (oral sex in Count 1, touching in Count 4, and incest in Count 8), and were separated by five to six years from the 2022-2023 incidents that occurred post-divorce at Hansen's trailer in Gary. (Appellant's Br. at 13.)

[13] Despite the temporal gap and change of living situation, the allegations from 2016-2017 involve additional acts of child molesting against the same two victims alleged in the 2022-2023 charges. Those additional acts were uncovered during the investigation of the 2022-2023 allegations, which created overlapping evidence and witnesses, and all involved Hansen taking advantage of his own daughters. Defendants are not entitled to severance “where the defendant committed the same crime, in substantially the same way, against similar victims.” Id. at 1267. Hansen was not entitled to mandatory severance under Indiana Code section 35-34-1-11(a). See, e.g., Vasquez v. State, 174 N.E.3d 623, 630 (Ind. Ct. App. 2021) (defendant not entitled to severance when defendant “exploited his position as a trusted member of [the] household to sexually abuse young female family members who stayed in the house, which actions resulted in overlapping investigations”), trans. denied.

1.2 Discretionary Severance

[14] Hansen argues in the alternative that the trial court abused its discretion by denying discretionary severance to assure a fair determination of his guilt or innocence. To exercise its discretion, a trial court should consider: “(1) the number of offenses charged; (2) the complexity of the evidence to be offered; and (3) whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.” Ind. Code § 35-34-1-11(a).

[15] Hansen contends the twenty-three original counts involving two victims created a complex case where “the jury likely struggled to keep each charge straight and separated from one another in substance, corresponding timeframe, location, and alleged victim.” (Appellant's Br. at 14.) He argues that adding the temporally distant charges “further muddied the issue” and “clearly prejudiced Hansen and led to the jury's inability to fairly determine his guilt or innocence.” (Id.) We disagree.

[16] The three additional charges did not make the evidence herein unduly complex. See, e.g., Grimes v. State, 84 N.E.3d 635, 642 (Ind. Ct. App. 2017) (no abuse of discretion in not severing any of forty charges where evidence was not complex), trans. denied. The primary evidence for all twenty-three charges against Hansen consisted of the victims’ forensic interviews, which were corroborated by photographs, DNA from sex toys, and a report about Hansen's phone searches. While Hansen speculates that the jury “likely struggled” to separate the evidence, the temporal separation of those three charges may have made them easier to consider than the twenty charges that involved acts that occurred in the last week of 2022. The trial court was in the best position to assess whether the evidence would be manageable for the jury, and Hansen has not demonstrated the court's assessment was an abuse of discretion. See Vasquez, 174 NE.3d at 631 (trial court did not abuse its discretion by denying motion for severance when the evidence was not complex and could be distinguished by jury).

2. Illegal Sentences

[17] Hansen argues two of his sentences are illegal, and the State agrees. “A sentence that is contrary to or violative of a penalty mandated by statute is illegal in the sense that it is without statutory authorization.” Reed v. State, 856 N.E.2d 1189, 1199 (Ind. 2006) (quoting Rhodes v. State, 698 N.E.2d 304, 307 (Ind. 1998)). Indiana's legislature authorized trial courts to impose “a fixed term of between one (1) and six (6) years, with the advisory sentence being three (3) years” for a Level 5 felony. Ind. Code § 35-50-2-6(b). For Hansen's two convictions of Level 5 felony child solicitation, the trial court imposed eight-year sentences. Accordingly, these two sentences are illegal and must be reduced to six years each. Because those two sentences were ordered to be served concurrently, Hansen's aggregate sentence should be 167 years, rather than 169 years. We therefore reverse and remand for the trial court to enter a corrected sentencing order.

3. Inappropriate Sentence

[18] Hansen next argues his aggregate sentence is inappropriate under Indiana Appellate Rule 7(B).¹⁰ Pursuant to Indiana Appellate Rule 7(B), we may revise a sentence “if, after due consideration of the trial court's decision, [we] find that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Because sentencing is a function of the trial court, its judgment “should receive ‘considerable deference.’ ” Oberhansley v. State, 208 N.E.3d 1261, 1267 (Ind. 2023) (quoting Cardwell v. State, 895 N.E.3d 1219, 1222 (Ind. 2008)). This deference can only be “ ‘overcome by compelling evidence portraying in a positive light the nature of the offense’ and ‘the defendant's character.’ ” Lane v. State, 232 N.E.3d 119, 122 (Ind. 2024) (quoting Oberhansley, 208 N.E.3d at 1267). Appellate review of a sentence is “to leaven outliers ․ but not to achieve the perceived ‘correct’ result in each case.” Nicholson v. State, 221 N.E.3d 680, 684 (Ind. Ct. App. 2023) (quoting Cardwell, 895 N.E.2d at 1225), trans. denied. The burden of proving a sentence is inappropriate falls to the defendant. Littlefield v. State, 215 N.E.3d 1081, 1089 (Ind. Ct. App. 2023), trans. denied.

[19] Our review is “holistic” and takes into consideration “the whole picture before us.” Lane, 232 N.E.3d at 127. Appellants need not prove their sentence is inappropriate for both their character and offense, but “to the extent the evidence on one prong militates against relief, a claim based on the other prong must be all the stronger to justify relief.” Id. Our determination “turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

[O]ur goal is to determine whether the appellant's sentence is inappropriate, not whether some other sentence would be more appropriate. We consider not only the aggravators and mitigators found by the trial court, but also any other factors appearing in the record.

George v. State, 141 N.E.3d 68, 73-74 (Ind. Ct. App. 2020) (internal citations omitted), trans. denied.

[20] Hansen's offenses are profoundly disturbing and egregious. See Vasquez, 174 N.E.3d at 634 (Vasquez's repeated molestation of his girlfriend's daughter between ages of eight and fourteen “shock the conscience and merit lengthy sentences”). Hansen exploited own daughters over multiple years, subjecting them to various forms of sexual abuse beginning when they were four and five years old. As the trial court noted at sentencing, “this is clearly one of the most horrendous child molesting incest cases[.]” (Tr. Vol. 7 at 222-23.) The repetitive nature of the abuse, occurring across two distinct time periods, demonstrates Hansen's persistent predatory behavior toward vulnerable children in his care. We cannot find Hansen's sentence inappropriate for his eighteen convictions.

[21] As for Hansen's character, he had minimal criminal history, but “[e]ven a minor criminal history is a poor reflection of a defendant's character.” Prince v. State, 148 N.E.3d 1171, 1174 (Ind. Ct. App. 2020). Moreover, as the trial court noted, this minor mitigating factor is completely outweighed the serious nature of Hansen's offenses against his own young daughters and the extended period over which he committed them. Hansen's character is significantly undermined by his exploitation of his daughters’ trust and his persistence in returning to abuse them years after the initial incidents. Although Hansen's 167-year sentence is substantial, it reflects the severity of his crimes against his own daughters and his abuse of his parental relationship. Although Hansen may have held a job and supported his family, these are tasks expected of all able adults, rather than “compelling evidence portraying in a positive light ․ the defendant's character (such as substantial virtuous traits or persistent examples of good character).” Oberhansley v. State, 208 N.E.3d 1261, 1271 (Ind. 2023) (quoting Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015)). We also do not find Hansen's sentence inappropriate for his character. See Vasquez, 174 N.E.3d at 635 (holding 288-year sentence was not in appropriate for nine counts of child molesting).

Conclusion

[22] The trial court properly denied Hansen's motion to sever because the charges were connected by common victims, exploitation of parental relationships, and interconnected investigations, which overcomes the temporal gap between the offense periods. Hansen's 169-year aggregate sentence must be reduced to 167 years because the trial court imposed illegal sentences for two of Hansen's Level 5 felony convictions, but 167 years is not inappropriate given the egregious nature of his offenses and the evidence about his character. We accordingly affirm Hansen's convictions and remand for the trial court to enter a corrected sentencing order.

[23] Affirmed in part, reversed in part, and remanded.

FOOTNOTES

1.   Ind. Code § 35-42-4-3(a) & (a)(1).

2.   Ind. Code § 35-42-4-3(b).

3.   Ind. Code § 35-46-1-3.

4.   Ind. Code § 35-42-4-5(a)(1).

5.   Ind. Code § 35-42-4-4(b)(1) & (c)(1).

6.   Ind. Code § 35-42-4-6(b).

7.   Ind. Code § 35-42-4-4(d)(1) & (e)(1).

8.   Ind. Code § 35-42-4-5(c)(3).

9.   Ind. Code § 35-49-3-3(a)(1).

10.   Hansen's argument addresses his 169-year sentence, but we consider the 167-year sentence that should have been imposed.

May, Judge.

Judges Tavitas and DeBoer concur. Tavitas, J., and DeBoer, J., concur.