BAKER v. STATE (2025)

MEMORANDUM DECISION

[1] Timothy A. Baker hosted his daughter's eighteenth birthday party at his house, purchased alcohol and marijuana for the teenagers who attended, and mixed drinks for them. When his daughter's fourteen-year-old best friend, K.B., became inebriated on marijuana and seven or eight alcoholic beverages, forty-one-year-old Baker took her to his bed, fondled her vagina, and had sexual intercourse with her – as demonstrated by DNA tests conducted on sperm found inside her underwear and on her shorts. A jury found Baker guilty of Level 4 felony sexual misconduct with a minor,¹ Level 5 felony sexual misconduct with a minor,² Class A misdemeanor contributing to the delinquency of a minor,³ and Class B misdemeanor furnishing alcohol to a minor.⁴ The trial court imposed an aggregate sentence of 13.5 years.

[2] On appeal, Baker claims the trial court abused its discretion by denying his motion for mistrial because testimony from K.B.’s father violated the trial court's pre-trial motion in limine and was prejudicial. Baker also argues his 13.5-year sentence is inappropriate for his offenses and character. In light of the DNA evidence from sperm found inside K.B.’s underwear, Baker has not demonstrated he was placed in grave peril by the trial court denial of his motion for mistrial. Nor has Baker demonstrated a 13.5-year sentence is inappropriate for his offenses and character. We accordingly affirm the trial court's judgment.

Facts and Procedural History

[3] On October 16, 2021, fourteen-year-old K.B. attended the eighteenth birthday party of her best friend, A.B., who is Baker's eldest daughter. The girls had known one another for about eight years and lived near one another. K.B. stayed at Baker's house for weeks at a time and on most weekends, and she “looked up to [Baker] like he was [her] father.” (Tr. Vol. 2 at 192.)

[4] When K.B. arrived at Baker's house for A.B.’s party, Baker, A.B., and A.B.’s other friends were “drinking alcoholic beverage and smoking marijuana” that Baker had purchased for the event. (Id.) K.B. consumed both alcohol and marijuana. She drank seven or eight alcoholic drinks, and Baker fixed at least three of them for her. When K.B. became intoxicated, Baker “guided” K.B. to his bedroom and put her in his bed. (Id. at 196.) Baker also got into the bed, and he began rubbing the area of K.B.’s vagina over her clothes. Baker told K.B. to slide her shorts down, which she did. Baker touched the lips of K.B.’s bare vagina with his hand, and then he put his penis in her vagina. At first, K.B. was unsure who was having intercourse with her, but then she felt Baker's beard on her chin and heard him saying her name, calling her “baby,” and telling her not to tell anyone. (Id. at 197.) After Baker ejaculated, K.B. pulled her pants up and went to the garage.

[5] A few days later, K.B. told her father what had happened. They found the unwashed clothes that K.B. had worn at the party and provided them to the police when K.B. reported the crime. After investigation, the State charged Baker with Level 4 felony sexual misconduct with a minor, Level 5 felony sexual misconduct with a minor, Class A misdemeanor contributing to the delinquency of a minor, and Class B misdemeanor furnishing alcohol to a minor. After trial, a jury found him guilty of all four charges. The trial court held a sentencing hearing and then imposed an aggregate sentence of 13.5 years – consecutive terms of 8 years for the Level 4 felony, 4 years for the Level 5 felony, 365 days for the Class A misdemeanor, and 180 days for the Class B misdemeanor.

Discussion and Decision

1. Denial of Mistrial

[6] Baker first argues the trial court should have granted his motion for mistrial during the testimony of K.B.’s father, E.B. We leave the decision whether to grant a request for a mistrial to “the sound discretion of the trial court.” Isom v. State, 31 N.E.3d 469, 480 (Ind. 2015). We accordingly review only for an abuse of that discretion. Id. “An abuse of discretion occurs if the decision is ‘clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.’ ” Owen v. State, 210 N.E.3d 256, 269 (Ind. 2023) (quoting Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007)).

[7] As Baker notes, the trial court granted his pre-trial motion in limine that prohibited the presentation of evidence of an “prior bad act” by Baker. (App. Vol. II at 90-91.) Then, when E.B. was testifying, the following exchange unfolded:

Q Okay. So when did you first learn that something had happened during that party?

A It was not the initial day afterwards. [K.]’s attitude had changed, and I remember we were arguing over something, and then she basically revealed to me that something happened to her over the weekend. I questioned her what it was, and she told me that she had been raped by Tim.

[DEFENSE]: Objection. Hearsay.

THE COURT: Sustained.

[DEFENSE]: Move to strike that comment, Judge, please.

THE COURT: I'll strike it from the record, yes.

Q What did you do in response to that?

A I questioned further, and I asked her why she had not said anything to me prior to that. And her response to that was that –

[DEFENSE]: Objection. Hearsay.

THE COURT: Sustained.

Q Without telling me what she said, what happened next?

A I got details from her about what had happened, what transpired at the party, as well as revealing information that had been going on over there for years while I thought she was going to a place I could trust and she was safe.

(Tr. Vol. 2 at 244.) Baker did not immediately object to E.B.’s statement that things “had been going on over there for years” and instead waited until the State finished its direct examination of E.B. to ask to approach the bench. At a sidebar, Baker argued E.B.’s statement violated the motion in limine's prohibition of discussing prior bad acts by Baker. The Court noted it would have been better if Baker had objected when the statement was made, “because now I have to draw their attention to it.” (Id. at 246.) The court excused the jury from the courtroom so the parties could argue the issue.⁵ Baker requested a mistrial, which the trial court denied as too extreme a remedy, and then Baker asked that E.B.’s testimony be struck. When the jury returned, the trial court gave the following instruction:

Well, ladies and gentlemen, I would instruct you to disregard the witness’ statement about details of stuff that had been happening over there for years. That was not responsive to the question, and it's stricken from the record, and you are instructed to disregard that.

(Tr. Vol. 3 at 2.)

[8] On appeal, Baker argues the trial court should have granted his request for a mistrial.⁶ However, as the trial court noted, a mistrial is “an extreme remedy” that should not be granted if other steps can be taken to remedy the situation. Isom, 31 N.E.3d at 481 (quoting Mickens v. State, 742 N.E.2d 927, 929 (Ind. 2001)). Any error in the admission of evidence is presumed to be cured with a timely admonishment for the jury to disregard that evidence, and we presume on appeal that the jury obeyed the trial court's instruction. Id. The trial court instructed the jury to disregard the statement at issue, because it was not responsive to the prosecutor's question, and to not consider it as evidence. In final instructions, the trial court again reminded the jury that it should not consider testimony that was ordered stricken from the record. (App. Vol. 2 at 147.) In addition, the DNA evidence demonstrated semen found in K.B.’s underpants and on her shorts belonged to Baker. In light of the steps taken by the trial court and the other evidence of Baker's guilt, we cannot say that E.B.’s vague statement placed Baker “in a position of grave peril to which he should not have been subjected[.]” Higgason v. State, 210 N.E.3d 868, 882 (Ind. Ct. App. 2023).

2. Inappropriateness of Sentence

[9] Baker next argues his aggregate 13.5-year sentence is inappropriate under Indiana Appellate Rule 7(B). Pursuant to Indiana Appellate Rule 7(B), we may revise a sentence “if, after due consideration of the trial court's decision, [this] Court finds 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.

[10] 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.

[11] Baker was convicted of four crimes – a Level 4 felony with an advisory sentence of 6 years and a maximum sentence of 12 years, Ind. Code § 35-50-2-5.5; a Level 5 felony with an advisory sentence of 4 years and a maximum sentence of 8 years, Ind. Code § 35-50-2-6; a Class A misdemeanor with a 365-day maximum sentence, Ind. Code § 35-50-3-2; and a Class B misdemeanor with a maximum sentence of 180 days, Ind. Code § 35-50-3-3. The trial court imposed 8 years for the Level 4 felony, which is closer to the advisory than the maximum; 4 years for the Level 5 felony, which is the advisory; 365 days for the Class A misdemeanor, which is the maximum; and 180 days for the Class B misdemeanor, which is the maximum. The trial court ordered all four sentences served consecutively.

[12] Baker argues that, although the offenses were “egregious[,]” his sentence is inappropriate for his offenses because his “sentence is unusually high and represents an outlier.” (Br. of Appellant at 16.) Baker also argues the fact that his crimes were committed on one occasion means the individual sentences should be ordered served concurrently. We find neither of Baker's arguments convincing. While the offenses occurred on one night, K.B. testified about grooming behavior that had occurred before the night of Baker's crimes. After spending innumerable weekends at Baker's house with his daughters over a span of years, K.B. thought of Baker as a second father. He was in a position of trust and violated that trust in multiple ways. We cannot say a 13.5-year sentence is inappropriate for his two felonies and two misdemeanors. See, e.g., Kocielko v. State, 938 N.E.2d 243, 255-56 (Ind. Ct. App. 2010) (affirming twenty-year sentence as not inappropriate for stepfather who violated his position of trust by getting his fourteen-year-old stepdaughter drunk and having anal intercourse with her), reh'g granted, 943 N.E.2d 1282 (Ind. Ct. App. 2011) (addressing erroneous attachment of habitual offender enhancement to two felony sentenced ordered to be served concurrently), trans. denied.

[13] Nor do we agree with Baker that his sentence is inappropriate for his character. Baker notes he has the support of his family and he took advantage of rehabilitation programs that were available to him prior to sentencing, but neither of these factors constitute such “substantial virtuous traits or persistent examples of good character” that we find his sentence inappropriate. Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). Baker purchased marijuana and alcohol for teenagers attending his daughter's eighteenth birthday party, he served drinks to the teenagers, including his daughter's fourteen-year-old friend, K.B. When K.B. was intoxicated, he took her to his bedroom, where he molested her and had sexual intercourse with her, leaving his sperm in her underwear and on her shorts. As the State notes on appeal, the presence of sperm on K.B.’s garments implies that Baker did not use a condom, which means he not only violated K.B, but also exposed her to the risk of sexually transmitted diseases and pregnancy. We see nothing in appropriate about a 13.5 year sentence for a 41-year-old man who would engage in such behavior.

Conclusion

[14] Baker has not demonstrated that he was prejudiced by the trial court's denial of his motion for a mistrial or that his sentence is inappropriate for his offenses or his character. We accordingly affirm the trial court's judgment.

[15] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-4-9(a).

2.   Ind. Code § 35-42-4-9(b)(1).

3.   Ind. Code § 35-46-1-8(a).

4.   Ind. Code § 7.1-5-7-8(a).

5.   During the discussion outside the presence of the jury, Baker's counsel asked E.B. what he was referencing when he said things had been going on over at Baker's house for years, and E.B. said: “Timothy was supplying the kids with alcohol.” (Tr. Vol. 2 at 250.)

6.   Baker asserts E.B.’s statement constituted an evidentiary harpoon; however, a “harpoon occurs when the State deliberately places inadmissible evidence before the jury to prejudice the jurors against the defendant.” Turner v. State, 216 N.E.3d 1179, 1184 (Ind. Ct. App. 2023). Testimony from a police officer can constitute an evidentiary harpoon because officers testify frequently and should understand the significance of “deliberately injected inadmissible evidence[.]” Id. Here, where E.B. was a private citizen whose statement was unresponsive to the prosecutor's question, the State was not responsible for placing the information before the jury.

May, Judge.

Mathias, J., and Bradford, J., concur.