ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
GREGORY BOWES STEVE CARTER
Indianapolis, Indiana Attorney General of Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
COURT OF APPEALS OF INDIANA
JOHN SLOAN, )
vs. ) No. 49A02-0301-CR-00014
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
CRIMINAL DIVISION, ROOM 3
The Honorable Cale J. Bradford, Judge
Cause No. 49G03-0206-FB-156863
September 4, 2003
OPINION - FOR PUBLICATION
Following a jury trial, Appellant John Sloan was convicted of Burglary, as a
Class B felony,
See footnote and Conducting a Performance Harmful to Minors, a Class D
felony.See footnote Upon appeal, Sloan presents three issues for our review, which we
I. Whether the trial court properly denied Sloans motion for mistrial;
II. Whether the trial court properly denied Sloans motion for a directed verdict; and
III. Whether the sentence imposed by the trial court is appropriate.
We affirm. I
The facts most favorable to the jurys verdict reveal that on December 9,
2001, Sloan broke into the home of Melissa Holt where eight-year-old A.R., the
daughter of Holts boyfriend, was sleeping on the couch. A.R. awoke when
she felt someone pull down her underwear. A.R. saw a man on
the couch exposing and manipulating his penis. The man then left the
room, and A.R. went to get her father, but the intruder was no
longer in the home. Ms. Holt noticed that a window had been
removed in the room where A.R. had been sleeping. Fingerprints taken from
this window matched Sloans fingerprints. On July 5, 2002, the State charged
Sloan with Burglary and Conducting a Performance Harmful to Minors.
Before trial, Sloan moved the trial court to dismiss the charges against him,
arguing that the acts he was alleged to have committed did not constitute
a performance as defined by statute. The trial court denied this motion.
After the State presented its case-in-chief, Sloan moved for a directed verdict
based upon the same grounds. This too was denied. Also at
trial, a police detective testified that Sloan had been arrested during another investigation.
Sloan objected and moved for a mistrial, which the trial court denied.
The jury found Sloan guilty as charged, but the trial court entered
a judgment of conviction only as to the burglary and sentenced Sloan to
twenty years incarceration.
Sloan claims that the trial court should have granted his motion for a
mistrial. Detective John Green of the Indianapolis Police Department testified for the
State. Green testified that he worked child abuse sex crimes.
Transcript at 115. During direct examination, Green testified that Sloan had not
been arrested immediately after the fingerprint evidence indicated that he was the one
who had broken into Ms. Holts home. The State then asked, When
did the Defendant eventually get arrested? Green replied, It was on another
investigation. Id. at 122. Sloan immediately objected and requested that the
jury be removed from the courtroom. Sloan then moved for a mistrial.
The trial court sustained the objection and instructed the jurors to disregard
the answer. The jurors were asked if they could disregard Greens answer,
and all indicated that they could. The trial court then allowed
the trial to proceed. The trial court formally denied the mistrial later
in the proceedings.
As this court stated in
Parks v. State:
The trial court is deemed to be in the best position to assess
the impact of a particular event upon the jury. Thus, the decision
of whether to grant or deny a motion for mistrial is committed to
the sound discretion of the trial court and will be reversed only upon
an abuse of that discretion. A mistrial is an extreme remedy and
should only be granted when no other remedy can cure the error.
734 N.E.2d 694, 697 (Ind. Ct. App. 2000) (citations omitted), trans. denied.
Sloan claims that because Green was a child abuse sex crimes detective and
because he indicated that Sloan was arrested on another investigation, it follows that
the jury would conclude that Sloan was arrested on another charge involving sexual
child abuse. We note, however, that the detective did not state that
he had arrested Sloan, but that Sloan was arrested on another investigation.
Given that the trial court admonished the jury to disregard Greens answer, and
that all the jurors indicated that they could do so, we cannot say
that the trial court abused its discretion in denying Sloans motion for a
Sloan argues that the trial court erred in denying his motion for a
directed verdict, also known as a judgment on the evidence.
Trial Rule 50. For a trial court to grant a motion for
a directed verdict, there must be a total lack of evidence regarding an
essential element of the crime, or the evidence must be without conflict and
susceptible only to an inference in favor of the defendants innocence. Barrett
v. State, 634 N.E.2d 835, 837 (Ind. Ct. App. 1994).
In Count I, Sloan was charged with Burglary, with intent to commit the
felony of dissemination of matter harmful to minors . . . that is:
with intent to knowingly or intentionally engage in or conduct a performance before
a minor that is harmful to the minor, that is: display his naked
penis. Appendix at 21. In Count II, it was alleged that
Sloan did knowingly or intentionally engage in or conduct a performance before [A.R.],
a minor[,] that is harmful to the minor, that is: displayed his naked
penis. Id. This tracks the language of I.C. § 35-49-3-3(a)(5), which
makes it a Class D felony to knowingly or intentionally . . .
engage in or conduct a performance before minors that is harmful to minors.
Because the trial court did not enter a judgment of conviction upon
Count II, the only issue before us is whether the evidence is sufficient
to sustain Sloans Burglary conviction. Cf. Carter v. State, 750 N.E.2d 778
(Ind. 2001) (distinguishing a guilty verdict from a judgment of conviction and holding
that a jury verdict upon which trial court does not enter judgment creates
no problem for purposes of double jeopardy).
Here, Sloan contends that there was a total lack of evidence that he
engaged in a performance. Though such would be required to sustain a
conviction for conducting a performance harmful to minors, no judgment of conviction was
entered upon that count. Nevertheless, the question of whether Sloan engaged in
a performance is relevant to the Burglary conviction in that conducting a performance
harmful to minors was the felony which Sloan allegedly intended to commit when
he broke and entered the Holt home. If Sloan did engage in
a performance once inside the home, a reasonable inference could be drawn that
this is what he intended to do when he broke and entered into
the home. Thus, the question before us is not precisely whether Sloan
actually engaged in a performance, but whether he intended to conduct such a
performance when he broke and entered into the Holt home.
A performance is statutorily defined as any play, motion picture, dance, or other
exhibition or presentation, whether pictured, animated, or live, performed before an audience of
one (1) or more persons. Ind. Code § 35-49-1-7 (Burns Code Ed.
Repl. 1998). Pursuant to Indiana Code § 35-49-1-1 (Burns Code Ed. Repl.
1998), this definition applies to all crimes in Title 35, Article 49.
This definition was expounded upon in
Riffel v. State, 549 N.E.2d 1084 (Ind.
Ct. App. 1990), trans. denied, and Low v. State, 580 N.E.2d 737 (Ind.
Ct. App. 1991).
In Riffel, the defendant and his friends engaged in various sexual acts in
front of the defendants five-year-old son. Riffel also instructed his son to
engage in sexual acts in front of Riffels friends. As a result,
Riffel was charged with engaging in an obscene performance. This crime is
defined by Indiana Code § 35-49-3-2 (Burns Code Ed. Repl. 1998):
A person who knowingly or intentionally engages in, participates in, manages, produces, sponsors,
presents, exhibits, photographs, films, or videotapes any obscene performance commits a Class A
misdemeanor. However, the offense is a Class D felony if the obscene
performance depicts or describes sexual conduct involving any person who is or appears
to be under sixteen (16) years of age.
Upon appeal, the Riffel court, construing the definition of performance found in I.C.
§ 35-49-1-7, held that:
the purpose of those statutes, and the legislative intent revealed by the language
used, is to prohibit obscene performances of a theatrical, show, or entertainment nature,
performed live, or on film or video, before an audience, and not to
ban an act in a private setting, no matter how disgusting, such as
the act charged against Riffel in Count IV. Riffels conduct may or
may not have constituted some other offense, a matter we need not decide.
The crucial issue is that it did not constitute a performance as
defined by Indiana statutes. We may not expand the statutory definition.
549 N.E.2d at 1088 (emphasis supplied).
The Riffel court distinguished the case before it from that present in Fultz
v. State, 473 N.E.2d 624 (Ind. Ct. App. 1985), wherein the defendant stood
before his bedroom window and masturbated while being observed by two individuals.
Fultz was charged with engaging in an obscene exhibition, which required proof of
an obscene performance. Id. at 629. The definition of performance in
Fultz was the same as that at issue here. The Fultz court
sustained the conviction against the defendants challenge that there was no audience and
therefore no performance. Id. The Riffel court stated that [t]he public nature
of the acts committed by Fultz clearly are [sic] different from the private
setting of the act charged against Riffel in Count VI [sic].
See footnote 549
N.E.2d at 1088-89 (emphasis supplied). III
Low, supra, the defendant was charged under I.C. § 35-49-3-2 after she
engaged in a sexually suggestive dance, exposed her breasts, and masturbated in front
of an undercover police officer while the two were in a hotel room.
Upon appeal, Low cited Riffel in support of her argument that she
did not engage in a performance as defined by I.C. § 35-49-1-7, in
that the conduct alleged occurred in a private setting. The Low court
rejected the States attempt to distinguish Riffel upon grounds that Low had engaged
in her conduct for money. 580 N.E.2d at 739-40. The Low
court reversed the conviction for obscene performance, noting if the statute is not
narrowly construed, conduct similar to the acts in this case occurring between consenting
married adults would fall within the purview of the statute. Id. at
740. The Low court also observed, To hold differently in the present
case might allow the extension of the proscriptive reach of the statute to
conduct which is constitutionally protected. Id.
Sloan contends that, like the conduct involved in Riffel and Low, what he
did was done in a private setting, and therefore may not be held
to constitute a performance. The State claims that the statute does not
require that the performance take place in public. The State bases its
argument upon I.C. § 35-49-3-3(a)(5), which prohibits knowingly or intentionally engaging or conducting
a performance that his harmful to minors in an area to which minors
have visual, auditory, or physical access, unless each minor is accompanied by the
minors parent or guardian. According to the State, all it needed to
prove in this respect was that A.R. had access to the area in
which Sloan exposed himself. First, we note that this was not the
language used to charge Sloan. More importantly, both section 3(a)(4), which contains
the language used to charge Sloan, and 3(a)(5) require that a performance be
engaged in or conducted.
See footnote The State does not otherwise address Sloans argument
that his conduct was not a performance.
If we were to read
Riffel and Low broadly, we might agree with
Sloan that what he did inside the Holt home, and what he intended
to do when he broke into the house, was not a performance within
the meaning of the statute because it did not take place in public.
However, we perceive a subtle yet substantial difference between the factual situations
present in Riffel and Low and the case at bar. In Riffel,
the defendants conduct was done in his own private residence. 549 N.E.2d
at 1086. In Low, although the conduct at issue did not occur
in a private residence, it did take place in a hotel room which
had been rented by the police. 580 N.E.2d at 738. In
both cases, the incidents took place in private areas in which the participants
had a right to be. This is not so in the present
Here, Sloan violated the privacy of Ms. Holt and her guests by breaking
into the home. The privacy interests with which the Riffel and Low
courts were so concerned are therefore not implicated by Sloans actions. A
defendant may not avail himself of the privacy of another by breaking and
entering into the others home. To accept Sloans argument would be to
allow him to benefit and seek refuge in the privacy of the home
which he had invaded. We will not do so. Here, the
evidence reveals that Sloan broke into the Holt home and pulled down A.R.s
underwear. Sloan then sat on the couch and exposed and manipulated his
penis. This was an exhibition or presentation performed before an audience of
one or more persons. See I.C. § 35-49-1-7. We do not
read Riffel and Low to hold that a performance must be done in
public, and to the extent that they suggest otherwise, we respectfully disagree.
So long as the conduct at issue was not done in private, we
hold that it may constitute a performance.
Of course, if something is done in private, it usually follows that it
was not done in public. Here, however, we are presented with a
perhaps unusual situation; although Sloans acts were not done in public, neither were
they done in the privacy of his own home or any place where
he had a right to be. We therefore hold that the actions Sloan
engaged in inside a home into which he broke and entered constituted a
performance, and from this the jury could reasonably infer that when Sloan broke
and entered the home, he intended to commit the felony of conducting a
performance harmful to minors. The evidence is sufficient to support Sloans conviction
for Burglary, and the trial court did not err in denying his motion
for a directed verdict.
The trial court sentenced Sloan to twenty years incarceration upon his Burglary conviction,
the statutory maximum sentence for a Class B felony. Ind. Code §
35-50-2-5 (Burns Code Ed. Repl. 1998). Sloan claims that the trial court
erred in ordering him to serve the maximum sentence. Sentencing decisions rest
within the sound discretion of the trial court and are reviewed only for
an abuse of that discretion. Kien v. State, 782 N.E.2d 398, 410-11
(Ind. Ct. App. 2003), trans. denied. Here, Sloan claims that his sentence
Indiana Appellate Rule 7(B) states that we may revise a sentence authorized by
statute if, after due consideration of the trial courts decision, we find that
the sentence is inappropriate in light of the nature of the offense and
the character of the offender. See Kien, 782 N.E.2d at 416.
The presumptive sentence is meant to be the starting point for any courts
consideration of the appropriate sentence for the crime committed. Meadows v. State,
785 N.E.2d 1112, 1128 (Ind. Ct. App. 2003), trans. denied. Courts may
then deviate from the presumptive sentence based upon a balancing of the aggravating
and mitigating factors which must be considered pursuant to Ind. Code § 35-38-1-7.1(b)
and (c), as well as the other factors left to the trial courts
discretion. Id. We must, however, refrain from merely substituting our opinions
for those of the trial court.
Bennett v. State, 787 N.E.2d 938,
949 (Ind. Ct. App. 2003).
The thrust of Sloans argument is that he is not the worst offender
and his was not the worst offense. It has been often stated
that the maximum sentence should generally be reserved for the worst offenders and
offenses. See e.g. Buchanan v. State, 767 N.E.2d 967, 973 (Ind. 2002).
This should not be taken as a guideline to determine whether a
worse offender could be imagined, as it will always be possible to identify
or hypothesize a significantly more despicable scenario. Id. Although maximum sentences
are ordinarily appropriate for the worst offenders, we refer generally to the class
of offenses and offenders that warrant the maximum punishment. However, this encompasses a
considerable variety of offenses and offenders. Here, Sloan had a prior criminal
history including convictions for criminal trespass, possession of marijuana, and public intoxication.
More importantly, he broke into an occupied home, pulled down the underwear of
an eight-year-old girl, exposed his penis, and apparently began masturbating in front of
See footnote Under these circumstances, we cannot say that Sloans twenty-year sentence is
The judgment of the trial court is affirmed.
BAKER, J., and DARDEN, J., concur.
Footnote: Ind. Code § 35-43-2-1 (Burns Code Ed. Supp. 2002).
Footnote: Ind. Code § 35-49-3-3 (Burns Code Ed. Supp. 2002).
Footnote: Greens answer appears to have violated a motion in limine prohibiting
the introduction of evidence regarding other crimes Sloan may have committed.
Tr. at 141-42.
We note that in his appellants brief, Sloan claims that the
trial court erred in denying his motion to dismiss. Sloan did move
to dismiss the charges against him prior to trial. At the close
of the States case-in-chief, Sloan moved for a directed verdict based upon the
same grounds. Upon appeal, Sloan refers to both motions as motions to
dismiss. However, the second motion, upon which Sloan bases his appellate argument,
was a motion for a directed verdict, and we address it as such.
Footnote: One may be convicted of Burglary regardless of whether one completes
the felony alleged to have been intended at the time of the breaking
Quire v. State, 449 N.E.2d 1083, 1084 (Ind. 1983).
The reference to Count VI is an obvious scriveners error
in that the charges against Riffel were comprised of but four counts.
Footnote: The States reference to
Lewis v. State, 726 N.E.2d 836 (Ind. Ct.
App. 2000), trans. denied, is unavailing; in that case, the question of whether
the defendant conducted or engaged in a performance was not at issue.
In this regard, we do not limit performance to commercial
or recognized entertainment media such as plays, motion pictures, concerts and the like.
Footnote: Sloan argues that the amendments to Appellate Rule 7(B), abandoning the
older manifestly unreasonable standards and adopting the inappropriate standard has effectively eliminated any
discretion by the trial court in sentencing matters. While we acknowledge that
the newer inappropriate standard is broader than the manifestly unreasonable standard, we do
not agree with Sloan that this has somehow eliminated our traditional deference to
the trial courts sentencing decision.
Footnote: Sloan also refers to circumstances which could be considered mitigating.
However, the trial court found no mitigating circumstances. A trial court is
neither required to find mitigating factors nor accept as mitigating the circumstances proffered
by the defendant.
Kien, 782 N.E.2d at 415. Sloan does not
argue that the circumstances to which he refers were overlooked by the trial