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The rape-related convictions that led to a man’s 650-year aggregate sentence will stand, as will the sentence itself, a split Court of Appeals of Indiana affirmed Monday in a ruling that included a dissent from one judge on the issue of double jeopardy.
The case dates back to August 1982, when a three-year rash of home invasions and sexual assaults began in Shelby County.
The crimes went unsolved for decades until the police reopened the investigation and arrested Steven Ray Hessler after matching his DNA to one of the crimes.
In August 2020, the state charged Hessler with 24 felonies related to seven home invasions.
Hessler filed a motion to dismiss the charges, and the Shelby Circuit Court dismissed several of the charges because they were outside the statute of limitations.
A jury trial was held on the remaining 19 charges, which included two counts of rape as Class A felonies; nine counts of criminal deviate conduct as Class A felonies; seven counts of burglary as Class A felonies; and one count of robbery as a Class A felony.
The jury found Hessler guilty as charged, and the trial court imposed an aggregate 650-year sentence.
Hessler appealed, first citing multiple instances of alleged prosecutorial misconduct during the state’s cross-examination of him and arguing that the prosecution’s closing argument denied him a fair trial.
Additionally, Hessler claimed four of his Class A felony burglary convictions violated Indiana’s common law prohibition on double jeopardy.
Finally, he argued that his sentence was inappropriate in light of the nature of the offenses and his character.
The appellate court disagreed and affirmed in full.
Judge Peter Foley wrote the opinion for the court.
According to Foley, out of all the alleged instances of misconduct that Hessler contended occurred during his trial, he only asked for an admonishment and mistrial after two occurrences. One involved a statement during closing argument, which Hessler asserted was demeaning to defense counsel. The second occurred when the state was commenting on the evidence that Hessler presented in his own defense.
In the first statement, the prosecutor compared his cross-examination of Hessler and defense counsel’s cross-examination of K.E., one of Hessler’s youngest victims, to remind the jurors that both Hessler and his victims were subjected to thorough cross-examination and difficult questions.
“We do not find that this challenged statement was misconduct, nor did it place Hessler in a position of grave peril to which he would not have been subjected otherwise,” Foley wrote.
In the second instance, when Hessler tried to explain why he had conducted multiple Google searches on some of the victims, he said it was at the request of his aunt, who was deceased at the time of trial and, therefore, could not testify to support his explanation. The prosecution brought up Hessler’s aunt in the rebuttal statement, saying she was “used” and had passed.
“This challenged statement that Hessler claims shifted the burden of proof was a comment on that lack of evidence. There was nothing improper about stating that the one person who could support Hessler’s version of events was now deceased,” Foley wrote.
“The State’s argument was also not an inappropriate response to defense counsel’s argument in closing that the State did not bring one of the victims back to testify in rebuttal to Hessler’s testimony,” Foley added. “In its argument, the State was merely pointing out that the information that defense counsel criticized the State for not presenting, could have been asked by defense counsel when he cross-examined the victim, and before she returned to her home out of state.
“Further, even if the statement was prejudicial, the trial court immediately admonished the jury as Hessler requested and minimized any prejudice by instructing the jury” that the state had the burden of proving the crime’s elements beyond a reasonable doubt and that the defendant was presumed innocent, the COA noted.
“… (L)ooking at the alleged instances of misconduct that were not preserved as prosecutorial misconduct and that occurred in the presence of the jury in light of the evidence presented at trial, we do not conclude that the alleged misconduct had an undeniable and substantial effect on the jury’s decision such that a fair trial was not possible,” Foley wrote. “… Thus, the alleged misconduct did not rise to the level of fundamental error.”
Turning to the double jeopardy challenge, the COA found that Hessler was correct that, at the time he committed his crimes, Indiana’s double jeopardy clause prohibited the enhancement of an offense based on the same injury that established another offense for which the defendant had already been punished.
But the Indiana Supreme Court significantly altered the test for double jeopardy in Wadle v. State, 151 N.E.3d 227 (Ind. 2020), and Powell v. State, 151 N.E.3d 256 (Ind. 2020), Foley wrote. Wadle, in particular, replaced the common law double jeopardy rules, including the common law rule upon which Hessler relied.
“Because we conclude that Wadle replaced the common-law double jeopardy rules, and that it applies retroactively, we cannot consider Hessler’s reliance on the common law rule that an offense cannot be enhanced based on the same injury that established another offense for which the defendant had already been punished,” Foley wrote. “Further, because Hessler raises no argument that his convictions constitute double jeopardy under Wadle, we cannot say that his double jeopardy rights were violated.”
Judge Nancy Vaidik dissented on that point, writing separately that the state didn’t charge Hessler until more than 30 years after his crimes — the same day the Supreme Court decided Wadle. She said she was “firmly convinced” that Hessler is entitled to the benefit of the double jeopardy law that was in effect at the time of his crimes.
“Bottom line, I believe Hessler has a due process right to the benefit of the enhancement rule that existed at the time he committed his crimes, notwithstanding the fact that our Supreme Court did away with that rule decades later. The four Class A felony burglary convictions he challenges should be reduced to Class B felonies, and he should be re-sentenced accordingly,” Vaidik wrote. She otherwise concurred.
Finally, the appellate court rejected Hessler’s argument that his 650-year sentence was inappropriate, noting Hessler inflicted severe psychological trauma on the victims by breaking into their homes, terrorizing them over the course of hours and injuring them.
He also did not acknowledge his own criminal history, the opinion states, which included a 1990 conviction for Class B felony attempted rape, for which he was sentenced to 20 years executed.
Judge Elizabeth Tavitas joined Foley in the majority in Steven Ray Hessler v. State of Indiana, 22A-CR-989.
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