A two-hour court hearing in Starke Circuit Court Thursday morning concluded in the sentence of 43-year-old Elven McCarty.
McCarty’s Defense Attorney John Thompkins of Indianapolis filed a motion for Starke Circuit Court Judge Kim Hall to declare a mistrial. The motion included a statement from a witness who, according to the defense, would have substance to impeach the alleged prior inconsistent statement of the victim. The evidence was reviewed in court with the evaluation of case law to which Judge Hall determined would be speculation and wouldn’t change the outcome of the trial. Therefore, he denied the motion for mistrial.
Judge Hall went on to explain the procedure of sentencing in this matter and that he may need a short recess to review notes and arguments to determine a sentence, when a person from the gallery asked for a short recess, stood up and got emotional. He embraced McCarty which was softly broken by court security. Judge Hall then called for a recess. The young man was escorted out of the courtroom and calmed by supporters.
When the proceedings reconened, Judge Hall reviewed the charges for which McCarty was found guilty at trial. The three-day trial was held in December 2018. Those charges included two counts of child molestation as a Class A Felony, a count of child molestation as a Class B Felony, two counts of incest as a Class B Felony, child molesting as a Class C Felony, incest as a Level 4 Felony and sexual battery as a Level 6 Felony. He was found not guilty of sexual misconduct with a minor and incest.
Two counts of child molestation and one count of incest were vacated due to the Double Jeopardy law which left five counts for sentencing.
A one factor in the Pre-Sentence Investigation report was addressed concerning a potential risk to re-offend. Due to policy and the level of crimes for which he was found guilty, McCarty was found to be a high risk. The defense attorney objected to that as it further states that he would actually be a low risk to re-offend based on a lack of criminal history. The judge agreed and allowed that portion to say that he was at a low risk to re-offend.
The victim was then allowed to make a statement. She told Judge Kim Hall that she’s lost all of her family members since the trial and has not had a stable home life. She had to change schools and move away due to family tension. She also mentioned that she’s seen two therapists whose treatments have not had any impact on her.
In closing arguments, the State, represented by Special Prosecutor Mary Ryan, argued that the fact that McCarty was supposed to be a trusting factor in the victim’s life when these acst occurred was an aggravating factor and should be considered as an enhancement on one of the counts. Ryan asked for a 90 year prison sentence.
Defense Attorney John Thompkins objected to the enhancement. He argued that McCarty has responded well during incarceration and would be a law abiding citizen if given Thompkins’ recommended sentence of 20 years.
McCarty was allowed to make a statement. He maintained his innocence and said he loves his daughter despite the fact that “she wasn’t telling the truth.” He asked for leniency in sentencing.
Judge Hall then weighed the criteria for sentencing. He found that because McCarty was the parent of the victim, who sustained many years of abuse, was an aggravated factor. As mitigating factors, Judge Hall found that McCarty’s law-abiding life before the crime worked in his favor as well as the love and support of his family who have been to the many court hearings concerning these matters.
In the end, Judge Hall ruled on the presumptive sentences on the counts with a longer sentence on the last charge. McCarty was sentenced to 30 years each on the two counts of child molestation as Class A Felony, 10 years on the count of incest as a Class B Felony, 6 years on the charge of incest as a Level 4 Felony, and 18 months on the count of sexual battery. The sentences on each count shall be served consecutively, or one after the other, for a total 77.5 years in the Department of Corrections with no part of the sentence suspended.
McCarty was also ordered to undergo HIV testing with the results to be shared with the victim.
As part of the order, McCarty will have no contact with the victim throughout his sentence.
All credit time will be applied in this case.
McCarty told Judge Hall that he plans to appeal the sentence. Judge Hall will appoint an appellate counsel after finding McCarty was indigent and cannot afford an attorney.