ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARCE GONZALEZ, JR. JEFFREY A. MODISETT
Merrillville, Indiana Attorney General of Indiana
LARRY W. ROGERS TERESA DASHIELL GILLER
Valparaiso, Indiana Deputy Attorney General
SUPREME COURT OF INDIANA
TIMOTHY MCCARTHY, JR., )
) Supreme Court Cause Number
Appellant-Defendant, ) 37S04-0006-CR-359
v. ) )
STATE OF INDIANA, ) Court of Appeals Cause Number
APPEAL FROM THE JASPER SUPERIOR COURT
The Honorable J. Philip McGraw, Judge
Cause No. 37D01-9711-CF-389
On Petition to Transfer
June 28, 2001
A jury convicted Timothy McCarthy of one count of sexual misconduct with a
minor as a Class B felony and one count of sexual misconduct with
a minor as a Class C felony. On initial review McCarthy raised
several issues. Finding one issue dispositive, the Court of Appeals reversed the
convictions and remanded the cause for a new trial. More specifically, the
Court of Appeals determined that the trial court erred in limiting McCarthys right
to cross-examine a witness on the question of bias and that the error
was per se reversible. McCarthy v. State, 726 N.E.2d 789 (Ind. Ct.
App. 2000). We agree the trial court erred. However, we conclude
the error was harmless. We grant transfer on this point and also
address the remaining issues which we restate as follows: (1) did the
trial court erroneously admit evidence of McCarthys prior bad acts; (2) did the
trial court err in denying McCarthys motion for a change of venue; (3)
was the evidence sufficient to support the convictions; and (4) did the trial
court err in imposing enhanced and consecutive sentences. We affirm the trial
The facts most favorable to the verdict show that in the fall of
1997, McCarthy was employed as a music teacher and band director at Kankakee
Valley High School. K.G. and M.T. attended the school as fifteen-year-old sophomore
students. Both participated in the school band and served as McCarthys student
assistants. On November 4, 1997, McCarthy told M.T. that he needed to
speak with her and arranged for her to meet him in the faculty
bathroom. Once inside, McCarthy locked the door, kissed M.T., exposed and touched
her breasts, exposed himself, and encouraged M.T. to touch his penis. M.T.
refused, and the encounter ended when McCarthy unlocked the door and M.T. left
Later that same day, traveling isolated roads, McCarthy drove K.G. home from school.
While en route they played a game the parties referred to either
as perdiddle or strip perdiddle, which required participants to remove articles of clothing.
After both McCarthy and K.G. were nude, McCarthy pulled to the side
of the road where K.G. stroked his penis, and he touched her breasts
and placed his finger in her vagina. McCarthy also attempted to engage
K.G. in sexual intercourse but was not successful. When a car approached,
both scrambled to get dressed. McCarthy then proceeded to take K.G. home.
That evening K.G. and M.T. talked with each other over the telephone and
discussed the days events. A couple of days later, the two students
confronted McCarthy and told him they regretted what they had done and that
it never should have happened. McCarthy became angry and told the students
not to pretend they were victims and that they had voluntarily engaged in
the encounters. Shortly thereafter, the students reported McCarthys conduct to school officials.
On November 14, 1997, McCarthy was charged with two counts of sexual misconduct
with a minor: Count I as a Class B felony concerning his
conduct with K.G. and Count II as a Class C felony concerning his
conduct with M.T. A trial conducted in June 1998 ended in a
hung jury, and the trial court declared a mistrial. The second trial
began in November 1998. In its case-in-chief upon retrial, the State called
M.T.s mother to the stand. On cross-examination, the following exchange occurred:
Q. Mrs. Cooper, you have a lot of animosity towards Mr. McCarthy, and rightfully
For him molesting my daughter? Yes, I do.
Q. Uh, how much money are you going to make, or do you seek
to get because of that?
R. at 1402-03. At this juncture, the State objected, and the trial
court sustained the objection. Outside the presence of the jury, McCarthy made the
following offer of proof:
Your Honor, I believe if this witness were allowed to  answer this
question, she would indicate that a Notice of Tort Claim has been filed
against  the Kankakee Valley School Corporation  seeking damages from the school
corporation and  perhaps Mr. McCarthy personally, and I believe that that goes
to the bias and/or prejudice of the witness, and is an appropriate subject
R. at 1403. The trial court reaffirmed its ruling, prohibited McCarthy from
pursuing this line of inquiry, and admonished the jury to disregard counsels question.
Ultimately the jury returned a verdict of guilty as charged. The
trial court sentenced McCarthy to enhanced and consecutive terms of thirteen years for
the Class B felony and five years for the Class C felony.
On direct appeal, the Court of Appeals concluded that the trial court erred
in denying McCarthy the opportunity to cross-examine Mrs. Cooper on the question of
her potential bias due to her financial interest in the outcome of this
case. Applying a per se error standard, the Court of Appeals reversed
the conviction and remanded the cause for a new trial. The State
seeks transfer. We affirm the trial courts judgment.
The right to cross-examine witnesses is guaranteed by the Sixth Amendment to the
United States Constitution as well as Article 1, Section 13 of the Indiana
Constitution. It is one of the fundamental rights of our criminal justice
system. Pigg v. State, 603 N.E.2d 154, 155 (Ind. 1992). It
is true this right is subject to reasonable limitations placed at the discretion
of the trial judge. McQuay v. State, 566 N.E.2d 542, 543 (Ind.
1991). However, the trial courts exercise of discretion in determining the permissible
scope of cross-examination to test the credibility of a witness must be consistent
with due process. Timberlake v. State, 690 N.E.2d 243, 255 (Ind. 1997).
If a witness in a criminal trial has a financial motive for
testifying in a certain fashion, then the jury should hear about those matters
because they are relevant to the question of the witness credibility. Domangue
v. State, 654 N.E.2d 1, 3 (Ind. Ct. App. 1995); see also Bryant
v. State, 233 Ind. 274, 118 N.E.2d 894, 896 (1954) (declaring that cross-examination
of a witness who is motivated by financial concerns is properly considered as
it affects the credibility of that witness testimony). In this case, denying
McCarthy the opportunity to cross-examine Mrs. Cooper about an event that the jury
may have determined furnished her with a motive for favoring the prosecution violated
the Confrontation Clause and thus was error. The question however is whether
the error automatically requires reversal.
There is authority for the proposition that a court of review has at
its disposal two alternative courses of action when evaluating claims concerning the denial
of the right to cross-examine witnesses. According to Haeger v. State, 181
Ind. App. 5, 390 N.E.2d 239 (1979), where the trial court permits some
cross-examination on the question of witness bias, a court of review should evaluate
the error by the application of the harmless constitutional error test. Haeger,
390 N.E.2d at 241. On the other hand, where the record reflects
a curtailment of cross-examination on the question of witness bias, then a court
of review should assess such error by a per se error standard.
Id. (quoting Springer v. United States, 388 A.2d 846, 856 (D.C. 1978)); accord
Tucker v. State, 728 N.E.2d 261, 262 (Ind. Ct. App. 2000), trans. denied;
Kleinrichert v. State, 530 N.E.2d 321, 322 (Ind. Ct. App. 1988); Higginbotham v.
State, 427 N.E.2d 896, 901 (Ind. Ct. App. 1981), overruled on other grounds
by Micinski v. State, 487 N.E.2d 150 (Ind. 1986); Pfefferkorn v. State, 413
N.E.2d 1088, 1090 (Ind. Ct. App. 1980). In sum, under Haeger and
its progeny, where a defendant has been denied any opportunity to cross-examine a
witness on the question of bias, then the error is reversible per se.
It is this authority upon which McCarthy relied in advancing his argument
that because the trial courts ruling resulted in a curtailment of his right
to cross-examine Mrs. Cooper, his conviction must be reversed. Since Haeger, the United
States Supreme Court has addressed the question of the appropriate standard for reviewing
a defendants claim alleging the denial of his Sixth Amendment right to cross-examine
[T]he constitutionally improper denial of the defendants opportunity to impeach a witness for
bias, like other Confrontation Clause errors, is subject to Chapman [Chapman v. California,
386 U.S. 18, 24 (1967)] harmless-error analysis. The correct inquiry is whether,
assuming that the damaging potential of the cross-examination were fully realized, a reviewing
court might nonetheless say that the error was harmless beyond a reasonable doubt.
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)
See footnote (ruling that the trial
court violated defendants rights secured by the Confrontation Clause by prohibiting all inquiry
into the possibility that a prosecution witness would be biased as a result
of the States dismissal of his pending public drunkenness charge). In two
fairly recent decisions, this Court has followed
Chapman and Van Arsdall. See
Smith v. State, 721 N.E.2d 213, 219 (Ind. 1999) ([V]iolations of the right
to cross-examine are subject to harmless-error analysis.); Standifer v. State, 718 N.E.2d 1107,
1110 (Ind. 1999) (ruling that even though the defendant was denied the opportunity
to fully cross-examine two States witnesses concerning their bias in favor of the
State, his convictions will not be reversed if the State can demonstrate beyond
a reasonable doubt that the error complained of did not contribute to the
verdict obtained. (quotation omitted)). Because prevailing case authority dictates a harmless error
analysis, we disapprove of language in those cases suggesting that violations of a
defendants right to cross-examine witnesses is subject to a per se error standard
In his Brief in Opposition to Transfer, McCarthy acknowledges Standifer and Smith.
He argues, however, that even under a harmless error standard of review, his
conviction should be reversed and this cause remanded for a new trial.
According to McCarthy, this case represents a credibility contest between him and the
two students and that Mrs. Coopers testimony was critical to the States case
because it served to bolster the students credibility.
Whether the trial courts error is harmless depends on several factors including:
[T]he importance of the witness testimony in the prosecutions case, whether the testimony
was cumulative, the presence or absence of evidence corroborating or contradicting the testimony
of the witness on material points, the extent of cross-examination otherwise permitted, and,
of course, the overall strength of the prosecutions case.
Van Arsdall, 475 U.S. at 684; accord Munn v. State, 505 N.E.2d 782,
786 (Ind. 1987). As with most cases involving claims of child molestation,
here the credibility of witnesses was a key issue at trial. Indeed,
McCarthy testified on his own behalf and essentially denied that he ever inappropriately
touched any student including M.T. or K.G. He also denied playing a
game known as strip perdiddle. R. at 2044. Further, he portrayed
himself as a professional and a strict disciplinarian. R. at 1967.
By contrast, both K.G. and M.T. testified that McCarthy molested them. In
addition, contrary to McCarthys assertion, two other former students of Kankakee Valley High
School, C.G. and J.K., testified that they played the game strip perdiddle while
on a trip to Michigan with McCarthy prior to November 4, 1997.
R. at 1625, 1734. Several students also testified about McCarthys frequent and
pointed sexual comments concerning the bodies of female students. R. at 1457-58,
1482-83, 1538, 1622-23, 1674, 1767, 2145-46. Thus, from the standpoint of credibility,
the States case was relatively strong. As for Mrs. Coopers testimony, although
it may have been important to the States case, we disagree with McCarthys
assertion that her testimony was critical. She was not an occurrence witness,
and the material point of her testimony, as McCarthy points out, was to
describe her daughters demeanor before and after the alleged incident with McCarthy.
Br. in Opposition to Transfer at 6 (citing R. at 1386-1401). Among
other things, Mrs. Cooper testified that before this incident, her daughter was outgoing,
happy, had a good sense of humor, and was fun to be around.
R. at 1368. She testified that after this incident, M.T. was
very depressed[,] . . . cried a lot[,]. . . [and] was 
very distraught. R. at 1399. Another witness corroborated Mrs. Coopers testimony.
R. at 1677. Also, the record shows that other than the
trial court limiting the questioning concerning the Tort Claims Notice, McCarthys cross-examination of
Mrs. Cooper was thorough and unlimited. R. at 1406-21. Among other
things, McCarthy confronted Mrs. Cooper with discrepancies concerning details of her account of
events versus those about which M.T. testified, and he questioned Mrs. Cooper on
whether she helped her daughter prepare for her trial testimony. The effect
of this line of questioning was to demonstrate Mrs. Coopers bias and to
imply that M.T. fabricated her charge.
In sum, although the trial court erred in limiting McCarthys cross-examination, the error
was harmless. We are satisfied that the State has demonstrated beyond a
reasonable doubt that the exclusion of evidence that Mrs. Cooper may have had
a financial motive in testifying at trial did not contribute to the jurys
verdict. Accordingly, McCarthy is not entitled to reversal of his convictions.
McCarthy also complains that the trial court erred in admitting into evidence what
he characterizes as alleged uncharged sexual misconduct and bad acts by the defendant.
Br. of Appellant at 16. This complaint centers on testimony concerning
the trip to Michigan where the parties played the strip perdiddle game and
testimony that McCarthy allegedly expressed amorous interests in Mrs. Cooper.
A claim of error in the exclusion or admission of evidence will not
prevail on appeal unless the error affects the substantial rights of the moving
party. Gant v. State, 694 N.E.2d 1125, 1129 (Ind. 1998) (citing Ind.
Evidence Rule 103(a)). When reviewing such claims, an appellate court determines whether
the trial court abused its discretion when it ruled upon the evidence.
Prior to trial, the State gave notice that it intended to introduce testimony
regarding the strip perdiddle incident. McCarthy filed a motion in limine seeking
to prohibit introduction of the evidence, and the trial court denied the motion.
Over McCarthys objection, testimony concerning strip perdiddle and the Michigan trip were
introduced at trial. On appeal, McCarthy complains that this evidence portrayed him
as a sexual predator and was inadmissible under Indiana Rule of Evidence 404(b)
and our decision in Lannan v. State, 600 N.E.2d 1334, 1339 (Ind. 1992)
(abandoning the depraved sexual instinct exception to the general rule prohibiting evidence of
prior bad acts).
McCarthy paints with too broad a brush. The Rule provides [e]vidence of
other crimes, wrongs, or acts is not admissible to prove the character of
a person in order to show
action in conformity therewith. It may, however, be admissible for other purposes,
such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident . . . . Evid.R. 404(b). The Rule
is designed to prevent the jury from making the forbidden inference that prior
bad conduct suggests guilt in the present action. Barker v. State, 695
N.E.2d 925, 930 (Ind. 1998). First, it is not at all clear
to us that the strip perdiddle activity represents other crimes, wrongs, or acts
within the meaning of 404(b). In any event, we disagree that the
evidence was introduced for the forbidden inference. Rather, it was introduced to
show that McCarthy had knowledge of the existence of perdiddle or strip perdiddle
- something he consistently denied. The evidence was relevant because it was
after engaging in this activity that K.G. testified McCarthy molested her. Its
probative value outweighed any prejudicial impact because if, as McCarthy maintained, he had
never heard of the game and had certainly never played it, then it
would appear that K.G.s testimony was made of whole cloth. Evidence that
McCarthy apparently played this game with students on an earlier occasion certainly went
to the heart of McCarthys defense. However, it was not rendered inadmissible
by Evidence Rule 404(b).
As for evidence indicating that McCarthy may have had an amorous interest in
Mrs. Cooper, it is again unclear to us how such evidence represents other
crimes, wrongs, or acts within the meaning of 404(b). Be that as
it may, the record shows that although McCarthy filed a motion in limine
seeking to exclude such evidence, R. at 692-93, which the trial court denied,
McCarthy did not object when the evidence was introduced at trial. A
ruling on a motion in limine does not determine the ultimate admissibility of
the evidence. Cook v. State, 734 N.E.2d 563, 568 n.2 (Ind. 2000).
Rather, the trial court in the context of the trial itself makes
the determination. Id. This Court has consistently held that a party
may not assert on appeal a claim of trial court error in the
overruling of a motion in limine seeking the exclusion of evidence unless the
party objected to the evidence at the time it was offered. Sisk
v. State, 736 N.E.2d 250, 251 (Ind. 2000); White v. State, 687 N.E.2d
178, 179 (Ind. 1997); Clausen v. State, 622 N.E.2d 925, 927 (Ind. 1993);
Conner v. State, 580 N.E.2d 214, 220 (Ind. 1991). This issue is
waived for review.
McCarthy next complains the trial court erred in denying his motion for a
change of venue. At a hearing on the motion, McCarthy introduced a
survey conducted of Jasper County citizens indicating there was significant bias against him
among potential jurors. McCarthy also introduced numerous newspaper articles that reported on
his first trial and testimony that McCarthy required police protection during and immediately
after his first trial.
A defendant is entitled to a change of venue upon showing the existence
of prejudicial publicity and that jurors will be unable to disregard preconceived notions
of guilt and render a verdict based upon the evidence. Wethington v.
State, 560 N.E.2d 496, 504 (Ind. 1990). A trial courts denial of
a motion for a change of venue will be reversed only for an
abuse of discretion. Barnes v. State, 693 N.E.2d 520, 523-24 (Ind. 1998).
Showing potential juror exposure to press coverage is not enough. Elsten
v. State, 698 N.E.2d 292, 294 (Ind. 1998).
The defendant must demonstrate that the jurors were unable to disregard preconceived notions
of guilt to render a verdict based upon the evidence. Id.
The record here shows that each juror that was ultimately selected to serve
indicated that he or she could render a verdict based upon the evidence
presented at trial. R. at 514-690. Those potential jurors who indicated
they could not render a verdict based upon the evidence were excused for
cause. R. at 515-16, 518, 519-20, 521-22, 530, 531, 536, 552, 554-55,
561, 562, 573, 596-97, 607, 609, 629, 637-38, 650-52. The trial court
does not abuse its discretion in denying a motion for change of venue
where there is no showing that jurors are unable to set aside preconceived
notions of guilt and render a verdict based upon the evidence. See
Specht v. State, 734 N.E.2d 239, 241 (Ind. 2000). There was no
abuse of discretion here.
McCarthy also complains that his convictions are not supported by sufficient evidence.
When reviewing a claim of insufficient evidence, we do not reweigh the evidence
or assess the credibility of the witnesses. Albrecht v. State, 737 N.E.2d
719, 731 (Ind. 2000), rehg denied. Rather, we look to the evidence
and the reasonable inferences drawn therefrom that support the verdict and will affirm
the conviction if there is probative evidence from which a reasonable jury could
have found the defendant guilty beyond a reasonable doubt. Id.
McCarthys contention on this issue centers on the testimony of K.G and M.T.,
which he characterizes as [inherently] incredible given the totality of the circumstances. .
. . Br. of Appellant at 33. McCarthy seeks to invoke
the incredible dubiosity rule under which this Court will impinge upon the jurys
responsibility to judge witness credibility only when confronted with inherently improbable testimony or
coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity. Tillman v. State, 642
N.E.2d 221, 223 (Ind. 1994); Gaddis v. State, 253 Ind. 73, 251 N.E.2d
658, 661-62 (1969). Application of this rule is limited to cases, such
as Gaddis, where a sole witness presents inherently contradictory testimony which is equivocal
or the result of coercion and there is a complete lack of circumstantial
evidence of the appellants guilt. Tillman, 642 N.E.2d at 223.
Reciting the victims testimony, McCarthy essentially complains the events could not have happened
the way the victims described them. He does not argue their testimony
was the result of coercion, and the record shows neither witness was equivocal
nor did they give inherently contradictory testimony. Rather, the record shows that
even though McCarthy thoroughly cross-examined both witnesses, they nonetheless did not waiver in
their account of events. R. at 852-961, 980-95, 1273-1339. The incredible
dubiosity rule is simply not applicable here. See, e.g., Berry v. State,
703 N.E.2d 154, 160 (Ind. 1998) (declining to apply the rule even though
there were inconsistencies in the testimony among witnesses but no one witness contradicted
A conviction may be supported by the uncorroborated testimony of one witness or
by circumstantial evidence alone. Frederick v. State, 658 N.E.2d 941, 944 (Ind.
Ct. App. 1995). It is for the trier of fact to resolve conflicts
in the evidence and to decide which witnesses to believe or disbelieve.
Marshall v. State, 621 N.E.2d 308, 320 (Ind. 1993). If the testimony
believed by the trier of fact is enough to support the verdict, then
the reviewing court should not disturb it. In this case, the jury
heard the testimony of K.G. and M.T. as well as the testimony of
McCarthy. The jury apparently believed the two students. As set forth
in the facts section of this opinion, their testimony was sufficient to support
guilty verdicts for one count of child molesting as a Class B felony
and one count of child molesting as a Class C felony.
The trial court sentenced McCarthy to thirteen years imprisonment for the Class B
felony conviction, which is three years beyond the presumptive term, and five years
for the Class C felony, which is one year beyond the presumptive term.
In so doing the trial court identified four aggravating factors: (1)
the age of the victims; (2) the effect of the crime on the
lives of the victims and their families; (3) McCarthys position of trust with
the victims; and (4) the likelihood that McCarthy would repeat his conduct.
The trial court also listed three mitigating factors: (1) the lack of
any criminal history; (2) an extended sentence would result in personal hardship to
McCarthys family; and (3) an extended sentence would result in financial hardship to
McCarthy mounts a multi-prong attack challenging his sentence. First, he contends the
age of the victims in this case is not a valid aggravator and,
according to McCarthy, there is insufficient evidence in the record to support the
trial courts finding that McCarthy is likely to engage in this conduct again.
Having eliminated two aggravators, McCarthy reasons, there are now only two valid
aggravating factors weighed against three mitigating factors. According to McCarthy, one of
the mitigators, lack of criminal history, should be given substantial mitigating weight.
Reply Br. of Appellant at 16 (quoting Loveless v. State, 642 N.E.2d 974,
976, (Ind. 1994)). Second, McCarthy complains that the trial court was obligated
to explain which specific aggravating factor provided the basis for the enhanced sentence
and why consecutive sentences are appropriate. Because the court provided no such
explanation, McCarthy argues the trial court apparently relied on matters outside the record
which, according to McCarthy, was the basis for the trial courts comment at
sentencing that he needs something to hang my hat [on]. R. at
2366. Finally, as a part of his attack, McCarthy contends that his
sentence is manifestly unreasonable and urges us to revise his sentence to the
presumptive term to be served concurrently.
The decision to enhance a presumptive sentence or to impose consecutive sentences for
multiple offenses is generally within the trial courts discretion. Brown v. State,
698 N.E.2d 779, 781 (Ind. 1998). A single aggravating factor may be
sufficient to support an enhanced sentence. Garrett v. State, 714 N.E.2d 618,
623 (Ind. 1999). And the same factors may be used both to
enhance a presumptive sentence and to justify consecutive sentences. Miller v. State,
716 N.E.2d 367, 371 (Ind. 1999). Thus, contrary to McCarthys assertion, the
trial court was not obligated to identify the factors that support the sentence
enhancements separately from the factors that support consecutive sentences; nor was the trial
court required to identify separate factors to support each sentence enhancement. See
Blanche v. State, 690 N.E.2d 709, 715 (Ind. 1998) (finding two aggravating factors
sufficient to support enhanced sentences for attempted murder, carrying a handgun without a
license, and resisting law enforcement); Williams v. State, 690 N.E.2d 162, 172 (Ind.
1997) (finding same three aggravating factors justified enhanced sentences for murder and conspiracy
to commit murder).
When the age of a victim constitutes a material element of the crime,
then the victims age may not also constitute an aggravating circumstance to support
an enhanced sentence. Stewart v. State, 531 N.E.2d 1146, 1150 (Ind. 1988).
However, the trial court may properly consider the particularized circumstances of the factual
elements as aggravating factors. Id. In this case, the age of
the victims, both under sixteen, was a material element of both the Class
C and Class B felony offenses. However, the trial court did not
set forth any particularized circumstance that would justify relying on the victims ages
as aggravating circumstances. We agree with McCarthy that this aggravator is inappropriate.
McCarthy is wrong, however, in his assessment that there is no evidence
to support the trial courts finding that he is likely to re-offend.
To the contrary, at the sentencing hearing the State called to the stand
another of McCarthys former female students. The witness testified that she and
McCarthy were engaged in a sexual relationship that first began when she was
a sixteen-year-old high school junior, two years before the molestations in this case,
and continued until her freshman year at college. R. at 2292-2319.
Thus, contrary to McCarthys assertion, there are three valid aggravators and three valid
mitigators. And even accepting as true McCarthys observation that this Court has
held the lack of criminal history should be given substantial mitigating weight, see
Loveless, 642 N.E.2d at 976, that does not mean lack of criminal history
automatically outweighs any valid aggravating circumstance. Rather, it is a balancing test.
The trial courts finding that McCarthys position of trust with the victims
and the likelihood he would re-offend are two aggravating factors that should be
given substantial aggravating weight. Indeed in this case, the trial court very
well could conclude that the aggravating factors outweighed the mitigating factors in spite
of the fact that one of the aggravators was invalid. See, e.g.,
Walter v. State, 727 N.E.2d 443, 447 (Ind. 2000) (Even when a trial
court improperly applies an aggravator, a sentence enhancement may be upheld if other
valid aggravators exist.).
Finally, we reject McCarthys invitation to revise his sentence. Although this Court
is empowered to review and revise criminal sentences, we will not do so
unless the sentence is manifestly unreasonable in light of the nature of the
offense and the character of the offender. Prowell v. State, 687 N.E.2d
563, 568 (Ind. 1997). An eighteen-year sentence, imposed for molesting two young
students over whom McCarthy held a position of trust, is not manifestly unreasonable.
We affirm the judgment of the trial court.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
Bassil v. United States, 517 A.2d 714, 717 n.5 (D.C.
1986), the court acknowledged that Van Arsdall effectively overruled its decision in Springer.
It was the Springer decision upon which Haeger relied.
Pointing out that the State raised the question of harmless error
for the first time in its Petition to Transfer, McCarthy complains that the
issue should be deemed waived because the State failed to raise it either
in its Brief of Appellee or at oral argument before the Court of
Appeals. The waiver rule does not apply in this context. Transfer
is an administrative term this Court has attached to the process of retaining
control over this Courts declaration of law function. Ind. Appellate Rule 58
(formerly App.R. 11);
Tyson v. State, 593 N.E.2d 175, 180 (Ind. 1992).
A part of that function includes addressing a petitioners allegation that an opinion
or memorandum decision of the Court of Appeals contravenes a ruling precedent of
the Supreme Court . . . . App.R. 11(B)(2)(a) (now App.R. 57(H)(2)).
Although the better practice may have been for the State to have
raised this issue before the Court of Appeals, nothing in the rules prohibits
this Court from addressing the States claim.
Also, we deny McCarthys request to submit additional briefing on the question of
harmless error. His Brief in Opposition to the States Petition to Transfer
fully explores this issue and no additional briefing is necessary.