The Indiana Court of Appeals recently reviewed an appeal filed by Elven McCarty of Knox who was convicted of child molesting, incest and sexual battery and given a 77-year prison sentence following a trial on the matter in October of 2018 in Starke Circuit Court. He argued that the evidence was insufficient to support his convictions and that his sentence was inappropriate.
The court reviewed the victim’s allegations in the transcript of the trial proceedings and the sentence in the case.
In his appeal, McCarty states that the victim’s testimony was dubious and the brief filed did not include a citation to the nearly 500-page trial transcript nor the victim’s testimony. He argued that with several people living in the house, nobody saw or heard any encounter and she failed to tell anyone about it. The Appellate Court stated that it is common behavior of an abuse victim to wait to disclose the acts which does not make the victim’s testimony dubious.
As for his argument of an inappropriate sentence, he asked the Court of Appeals to reduce his sentence in accordance with a rule that allows the court to do so if the court finds that the sentence is “inappropriate in light of the nature of the offense and the character of the offender”. He cited that his 77-year sentence is in essence a life sentence as he would be the age of 84 when released from prison with good time behavior. He also cited that he did not commit the worst of offenses, but does not but did not cite any authority supporting his claim that every sentence is the maximum sentence. In the decision, it states that Starke Circuit Court Judge Kim Hall did not sentence McCarty on the maximum sentence in each charge. It was the advisory sentence on each count.
The Indiana Court of Appeals also found that McCarty’s behavior in the crimes for which he was convicted showed that this sustained abuse reflects poorly on his character.
The Court found that McCarty failed to show the imposition of the advisory sentences and the judges affirmed the sentencing order.
