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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: JOHN PINNOW Greenwood, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana NICOLE M. SCHUSTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
RACHAEL GARDNER, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A04-0602-CR-81

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Jane Magnus-Stinson, Judge Cause No. 49G06-0405-FD-79858

December 28, 2006

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Rachael Gardner ("Rachael") appeals from her convictions for two counts of Child Molesting, as Class A felonies; Child Molesting, as a Class C felony; and Child Exploitation, as a Class C felony. She also appeals her sentence on the convictions and the restitution order. We address three issues on review, namely: 1. Whether the evidence is sufficient to support her convictions for aiding in child molesting and aiding in child exploitation. Whether the trial court abused its discretion when it imposed consecutive sentences. Whether the trial court abused its discretion when it ordered her to pay $7800 in restitution.

2.

3.

We affirm in part, reverse in part, and remand with instructions. FACTS AND PROCEDURAL HISTORY In 2000, Rachael married Gary Gardner ("Gary") in Kansas, where the couple resided. Before the marriage, Rachael had a daughter, D.R., from another relationship and a daughter, M.G., with Gary. Thereafter, the family relocated to Indiana, where Rachael gave birth to their son. 1 At some point, Rachael and Gary took photographs of themselves naked on a bed with D.R. and M.G. Rachael worked outside the home, and Gary was a college student. The two alternated caring for the children, and Gary was often left alone with the children. Rachael's colleague, Cynthia Wittwer ("Wittwer"), occasionally watched Rachael and Gary's children, and in return Gary watched Wittwer's daughter, A.C.

1

The son was not alleged to be a victim of the abuse at issue in this case and has since died.

2

In August 2003, Rachael found on a laptop computer photographs taken by Gary in which the children were naked and provocatively posed. Gary told Rachael that he had molested D.R., and, at Rachael's request, Gary made a list of the acts he had committed. Also, at Rachael's request, Gary promised not to molest D.R. again, and Rachael asked D.R. to inform her if Gary molested the child again. At that time, Gary and D.R. denied that Gary was still molesting D.R. D.R. later told Rachael that the molestation by Gary continued, but Rachael took no steps to stop the molestations or avoid leaving the children alone with Gary. The molestation of D.R. included Gary performing oral sex on D.R., D.R. performing oral sex on Gary, and D.R. fondling Gary's penis. Gary was molesting D.R. approximately three times per month by Christmas 2003. Gary also took photographs of D.R., M.G., and/or A.C. in provocative poses. Rachael was not present when Gary committed such acts. In May 2004, a photograph development laboratory in Illinois notified the Illinois State Police that the lab had received from a Greenwood, Indiana, Meijer store a roll of film containing obscene pictures of girls. The Illinois State Police contacted the

Greenwood Police Department, who traced the photographs to D.R. through her school. Detective Mark Henninger of the Marion County Sheriff's Department interviewed Rachael, who initially denied knowing anything about Gary photographing or molesting D.R. She cried and appeared shocked at the news. After the interview, Detective Henninger became aware that Gary had previously admitted to molesting D.R. and that he had told Rachael about such acts in August 2003. Detective Henninger subsequently interviewed Rachael again, at which time she admitted
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that Gary had previously told her that he had molested D.R. and had written out of list of the acts performed. In that interview, Rachael stated that she had not called the police because she "needed a babysitter." Transcript at 105, 108. She also expressed concern that the children might be taken from her and then be molested or killed in foster care. The State charged Gary with four counts of child molesting, as Class A felonies; two counts of child molesting, as Class C felonies; one count of child exploitation, as a Class C felony; one count of possession of child pornography, as a Class D felony; and two counts of neglect of a dependent, as a Class D felony. The State later amended that information to charge Rachael with two counts of neglect of a dependent, as Class D felonies; four counts of aiding in child molesting, as Class A felonies; two counts of aiding in child molesting, as Class C felonies; one count of aiding in child exploitation, as a Class C felony; and three counts of neglect of a dependent, as Class C felonies. Gary pleaded guilty to multiple counts of child molesting and child exploitation and was sentenced to ninety years. After a bench trial, the trial court found Rachael guilty of one count of neglect of a dependent, M.G., as a Class D felony; two counts of aiding in child molesting, as Class A felonies; one count of aiding in child molesting, as a Class C felony; and one count of aiding in child exploitation, as a Class C felony. 2 The trial court entered a judgment of conviction accordingly and sentenced Rachael to one and one-half years for neglect of M.G.; thirty years for one count of child molesting, as a Class A felony, to be served consecutive to the sentence for neglect; thirty years for the second
The trial court determined that the State had proved count 8, alleging neglect of D.R., as a Class D felony, and count 18, alleging neglect of D.R., as a Class C felony. But the trial court also determined that double jeopardy barred convictions for both neglect of D.R. and child molesting of D.R. Thus, the trial court did not enter judgment of conviction on counts 8 and 18.
2

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count of child molesting, as a Class A felony; four years for child molesting, as a Class C felony, to be served consecutive to the sentence on the first count of child molesting; and four years for child exploitation, also to be served consecutive to the sentence on the first count of child molesting. Rachael's aggregate sentence is thirty-nine and one-half years executed. This appeal ensued. DISCUSSION AND DECISION Issue One: Sufficiency of Evidence Rachael argues that the evidence is insufficient to support her convictions for aiding in child molesting and aiding in child exploitation. When reviewing a sufficiency of the evidence claim, we neither reweigh the evidence nor judge the credibility of witnesses. Grim v. State, 797 N.E.2d 825, 830 (Ind. Ct. App. 2003). Rather, we consider only the evidence that is favorable to the judgment along with the reasonable inferences to be drawn therefrom to determine whether there was sufficient evidence of probative value to support a conviction. Id. We will affirm the conviction if there is substantial evidence of probative value from which a reasonable trier of fact could have drawn the conclusion that the defendant was guilty of the crime charged beyond a reasonable doubt. Id. Rachael does not argue that Gary did not commit the crimes, only that she did not aid in the commission of those crimes. To convict Rachael of child molesting, the State must prove that she aided, induced, or caused Gary to perform or submit to sexual intercourse or deviate sexual conduct with a child under fourteen years of age. See Ind. Code

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