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A man’s convictions on five felony counts of child molesting will stand, the Court of Appeals of Indiana affirmed Thursday, but the court reversed a 102-year sentence and remanded for resentencing after finding the man’s previous acquittals on similar charges were given too much prominence in sentencing.
According to court records, in the spring and summer of 2020, when M.S. was 9 years old, her parents were renovating a house in Mulberry. M.S. always accompanied her parents when they went to Mulberry to work on the house.
When M.S.’s father needed help with some of the renovation work, he called on Jason Walden, who came to Mulberry on approximately 10 occasions between April and July 2020.
On July 29, 2020, M.S. told her mother that Walden had been touching her inappropriately, and together they told M.S.’s father.
The next day, M.S.’s parents alerted law enforcement, and on Aug. 3, 2020, M.S. was forensically interviewed at the Hartford House, where she reported that Walden had sexually molested her.
On Aug. 6, 2020, Walden was charged with three counts of Level 1 felony child molesting and two counts of Level 4 felony child molesting. His trial was held two years later in the Clinton Circuit Court.
At trial, the state filed a notice of its intention to admit evidence that Walden had been charged with child molesting in two prior cases, providing the cause numbers of the two prior cases. However, the state did not attempt to have that evidence admitted at trial.
Later, in response to a jury question about an answer M.S. gave regarding the alleged molestation, the trial court proposed to determine if there was a disagreement or an inability to remember the testimony among the jurors. If so, the court further proposed to allow the jurors to decide whether they wished to hear M.S.’s entire testimony, including cross-examination, or whether they preferred to proceed without rehearing the testimony.
Walden’s defense counsel objected, arguing that the appropriate procedure would be to instruct the jury “to consult their collective memory as to the testimony.”
The trial court overruled that objection, had the jury brought into the courtroom and explained its two proposed options for resolving the jury’s question. The jury retired, and the trial court went off the record.
When the trial court went back on the record, it observed that the jury was not present and that they were preparing to replay M.S.’s testimony.
Walden’s defense counsel raised a second unsuccessful objection, this time arguing that replaying M.S.’s testimony served “to unduly accentuate her testimony over the other witnesses in this trial.”
The entirety of M.S.’s testimony was then replayed for the jury. After continued deliberations, the jury found Walden guilty as charged on all counts.
Walden’s presentence investigation report indicated that he had a 2001 Class A misdemeanor battery conviction. It also showed that in 2016, Walden had been arrested in Marion County on three counts of Level 1 felony child molesting and two counts of Level 4 felony fondling but had been acquitted.
Then during sentencing, a deputy prosecutor informed the trial court that Walden had been previously charged and acquitted on a second set of child molesting charges in Marion County, in addition to the 2016 case.
In its oral sentencing statement, the trial court expressed amazement that Walden had been twice acquitted of child molesting but that, shortly after his second acquittal, had begun molesting M.S.
The trial court ultimately sentenced Walden to 30 years for each of his Level 1 felony child molesting convictions and to six years for both of his Level 4 felony child molesting convictions, all to be served consecutively, for an aggregate sentence of 102 years.
Walden appealed and argued that his convictions must be overturned because the trial court abused its discretion when it replayed M.S.’s entire testimony in response to the jury’s question and when it considered improper aggravating circumstances at sentencing.
The appellate court affirmed Walden’s convictions on the five child molesting charges, but found the trial court’s consideration of his prior acquittals was improper and reversed and remanded the case for resentencing.
Judge Patricia Riley wrote the opinion for the appellate court.
According to Riley, the appellate court disagreed with Walden’s argument regarding the replaying of M.S.’s testimony and did not find it unduly prejudicial.
Riley wrote that the jury received preliminary and final instructions that “[t]he quantity of evidence … need not control your determination of the truth.”
“Therefore, even if the jury somehow perceived the replay of M.S.’s testimony as doubling the evidence against him, we will not presume that it controlled their determination of his guilt. Accordingly, we do not disturb the jury’s verdicts,” she wrote.
However, the appellate court agreed with Walden that the trial court put information about his two prior child molesting cases to improper use.
Riley wrote that review of the trial court’s oral and written sentencing statements made it clear the lower court considered Walden’s two prior acquittals as a pattern of like behavior that culminated in his instant convictions.
The COA determined the trial court’s findings regarding Walden’s risk of reoffense were improper as a matter of law.
“Given the prominence of Walden’s prior acquittals in the trial court’s oral and written sentencing statements, we are not convinced that it would have ordered Walden to serve all his individual sentences consecutively if it had not considered this factor. Therefore, we remand for resentencing,” Riley wrote.
Judge Leanna Weissmann concurred.
Judge Cale Bradford concurred in part and dissented in part with a separate opinion.
Bradford agreed with the majority that the trial court did not abuse its discretion when it replayed the victim’s testimony in response to a jury question.
He also agreed that the trial court did abuse its discretion in considering Walden’s two prior acquittals for child molesting cases as bearing on the likelihood that he would reoffend.
However, Bradford said he was unconvinced that remanding the case for resentencing was necessary and instead opined that the trial court’s sentencing error was harmless.
“Based on the numerous proper aggravating factors that the trial court considered in imposing consecutive sentences, I am confident that the trial court would have imposed the same sentence, even without consideration of the improper aggravating factor,” he wrote.
The case is Jason Walden v. State of Indiana, 22A-CR-2363.
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