Timothy L. Gransbury v. State of Indiana

Gransbury married Kellie in 2008. Kellie and Gransbury have two daughters:

M.G., born September 21, 2008, and S.G., born September 25, 2010

(collectively, “Children”). Before marrying Kellie, Gransbury served in the

Navy for twenty years, was married twice, and has two adult sons from his

second marriage. During his marriage to Kellie, Gransbury worked as a semi

truck-driver, which required him to be gone many days of the week. Kellie did

not work and stayed home with the Children.

[3] Gransbury and Kellie had an acrimonious relationship. Early in the marriage,

Gransbury told Kellie he was “sexting” fourteen-year old girls. (Tr. Vol. 4 at

81.) After this incident, Kellie moved out with the Children, and Kellie and

Gransbury were legally separated for a period in 2009. Eventually, the two



1 Ind. Code § 35-42-4-3(a)(1) (2007). 2 Ind. Code § 35-49-3-3(a) (2006).

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attempted to reconcile, and Kellie and the Children moved back in with

Gransbury.

[4] Gransbury and Kellie failed in their attempt to reconcile. In early December

2012, Kellie and the Children moved out of the marital home and moved in

with Kellie’s parents. On December 5, 2012, Gransbury filed a petition for

divorce from Kellie.3 Gransbury remained in the marital home. In mid

December 2012, Kellie called the Department of Child Services (“DCS”) to

report she had found “daddy/daughter pornography” on Gransbury’s phone,

(id. at 88-89), and Gransbury had been physically abusive toward M.G. on one

occasion. Kellie testified she reported the incidents to DCS in hopes the court

would require Gransbury’s parenting time be supervised. DCS investigated the

matter but did not open a Child in Need of Services (“CHINS”) case based on

this allegation.

[5] On December 17, 2012, the court held an initial hearing on Gransbury’s

divorce petition. Kellie requested Gransbury’s parenting time be supervised,

citing Gransbury’s alleged sexting and incident of physical abuse of M.G. The

court denied Kellie’s request. At the time of the hearing, Gransbury’s job as a

semi-truck driver required him to be out of town most days of the week. The

court granted Gransbury and Kellie temporary joint legal custody, but because

of Gransbury’s schedule, the court granted Kellie primary physical custody of



3The court finalized Gransbury and Kellie’s divorce on April 7, 2016.

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the Children and provided Gransbury weekly parenting time from Saturday

mornings at 10 a.m. to Sunday evenings at 6 p.m.

[6] After Gransbury started exercising parenting time in 2013, Kellie began

noticing changes in M.G.’s behavior. Specifically, Kellie observed M.G. was

“tired all the time,” (id. at 39), had trouble waking up in the mornings,

expressed daily “complaints of stomach pain,” (id.), and had “frequent potty

accidents.” (Id.) Kellie further observed M.G. biting her fingernails

“constantly,” (id.), “pick[ing] at her lip and chin until they were raw and sore,”

(id.), “refusing to drink white milk,” (id.), and having nightmares.

[7] Due to health issues, Gransbury stopped working as a semi-truck driver in the

summer of 2013, which allowed him to be home more. On August 20, 2013,

Gransbury filed a petition for the court to increase his parenting time. The

court scheduled a mediation and hearing on Gransbury’s petition, but the

hearing was continued until February 2014. The court ultimately never

modified Gransbury’s parenting time.

[8] Between October 1, 2013, and December 25, 2013, Gransbury molested M.G.

on numerous occasions. Gransbury performed oral sex on M.G. and, at

Gransbury’s request, M.G. performed oral sex on Gransbury on at least three

different occasions. Additionally, Gransbury showed M.G. pornographic

videos, including videos of Kellie and Gransbury engaging in oral sex and

sexual intercourse.

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[9] On the evening of January 28, 2014, Kellie put the Children to bed before she

left for a night shift at the nursing home where she worked. At the time, Kellie

and the Children were still living with Kellie’s parents. As Kellie was tucking

the Children into bed, M.G. told Kellie she had a “secret” with her father.

(App. Vol. III at 14.) When Kellie asked about the secret, M.G. revealed

Gransbury made M.G. perform oral sex on him. Kellie told her parents what

M.G. told her, and then left for her shift and worked from 11 p.m. to 7 a.m. the

next morning. Around 10 a.m. on January 29, 2014, Kellie called DCS and the

New Whiteland Police Department (“NWPD”).

[10] On January 30, 2014, DCS Family Case Manager (“FCM”) Michelle Fritz

conducted a forensic interview with M.G. NWPD Detective David Glaze was

also present for the interview. Detective Glaze was not in the interview room,

but listened from another room. During the interview, FCM Fritz asked M.G.

to identify different parts of anatomical diagrams of a girl and boy. M.G.

indicated she understood there were certain body parts that no one should

touch, but Gransbury would touch M.G. on those body parts and would “lick

her bottom.”4 (Id. at 13.) M.G. also stated Gransbury would have her “lick his

bottom,” which he referred to as “George.” (Id.) M.G. pointed to the penis on

the male diagram when she was showing FCM Fritz “George.” M.G.

indicated to FCM Fritz she had to do this at least three times, and one of the



4 At the interview, M.G. pointed to the vaginal area on the female diagram, indicating she referred to the vagina as a “bottom.” (App. Vol. III at 13.)

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times Gransbury asked her to “drink the milk” that came out of George. (Id. at

14.) M.G. told FCM Fritz that Gransbury used a black computer in his

bedroom to show her videos of “daddy and mommy” performing sexual acts.

(Id.)

[11] The NWPD obtained and executed a search warrant in Gransbury’s home that

same day. Detective Glaze testified when he arrived to serve the warrant,

Gransbury opened the door and told him “he’d expected [the police] to come.”

(Tr. Vol. 4 at 149.) The NWPD seized two laptop computers: a Toshiba and a

Dell. Glaze gave the laptops to Sergeant Jennifer Barnes of the Indiana State

Police Cyber Crime Unit to conduct a forensic review of the hard drives.

Sergeant Barnes found no pornography videos, but found numerous web sites

offering porn videos in the internet activity of the Toshiba. In addition,

Sergeant Barnes found a “window washing” program on the Toshiba, which

allows a user to completely erase all files from the hard drive. (Tr. Vol. 5 at 13

14.) Kellie knew Gransbury had videos of Kellie and Gransbury engaging in

oral sex and sexual intercourse because he had shown her the videos.

[12] On February 3, 2014, the State charged Gransbury with Class A felony child

molesting, and Class D felony dissemination of matter harmful to minors for

the acts he committed against M.G. The court issued a no-contact order

requiring Gransbury to have no contact with the Children.

[13] On April 19-21, 2016, the court held a jury trial. Gransbury maintained his

innocence. The jury heard testimony from M.G., Kellie, FCM Fritz, Detective

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Glaze, and Sergeant Barnes. After hearing the evidence, the jury found

Gransbury guilty on both charges.

[14] At sentencing, the court found as mitigators Gransbury’s lack of criminal

history and Gransbury’s “difficult childhood.” (Id. at 114-15.) The court

further found Gransbury’s former military service in the Navy as a mitigator.

The court found as aggravators the fact that M.G. was five years old, that

Gransbury was in a position of trust, and that Gransbury molested not just any

five-year-old, but his own daughter. (Id. at 115.) The court concluded the

“aggravators far outweigh[ed] the mitigators[,]” (id.), and “an aggravated

sentence [was] appropriate.” (Id.) The court sentenced Gransbury to fifty years

in the Department of Correction with five years suspended to probation for

Class A felony child molesting and three years, with six months suspended to

probation, for Class D felony dissemination of matter harmful to a minor. The

court ordered the sentences be served concurrently, with 358 days of credit for

time already served.

Discussion and Decision

I. Sufficiency of Evidence

[15] When reviewing sufficiency of the evidence to support a conviction, we will

consider only probative evidence in the light most favorable to the trial court’s

judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 1995), reh’g denied. The

decision comes before us with a presumption of legitimacy, and we will not

substitute our judgment for that of the fact-finder. Id. We do not assess the

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credibility of the witnesses or reweigh the evidence in determining whether the

evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal

is appropriate only when no reasonable fact-finder could find the elements of

the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not

required to overcome every reasonable hypothesis of innocence and is sufficient

if an inference reasonably may be drawn from it to support the verdict. Id. at

147.

[16] To prove Gransbury committed Class A felony child molesting, the State had to

show Gransbury, a person at least twenty-one years old, knowingly performed

deviate sexual conduct with M.G., a child under the age of fourteen. Ind. Code

§ 35-42-4-3(a)(1) (2007). Deviate sexual conduct means an act involving (1) a

sex organ of one person and the mouth or anus of another person, or (2) the

penetration of the sex organ or anus of a person by an object. Ind. Code § 35

31.5-2-94 (2012). To prove Gransbury committed Class D felony dissemination

of matter harmful to minors, the State had to prove Gransbury knowingly or

intentionally disseminated matter to M.G., a minor, that was harmful to her.

Ind. Code § 35-49-3-3(a)(1) (2006).

[17] In challenging the sufficiency of the evidence as to both crimes, Gransbury

argues “[t]he only evidence introduced by the State was the testimony of Kellie,

[M.G.], and [FCM Fritz] to support the allegations made by [M.G.],”

(Appellant’s Br. at 22), and there is no physical evidence of child molesting or

dissemination of matter harmful to minors. Gransbury states the NWPD

“failed to collect any of the child’s clothing” or other garments when officers

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executed the search warrant, (id. at 16), and the forensic exam of Gransbury’s

laptop returned no evidence of homemade pornographic videos.

[18] M.G.’s testimony alone is sufficient to sustain Gransbury’s convictions. See

Carter v. State, 754 N.E.2d 877, 880 (Ind. 2001) (a molested child’s

uncorroborated testimony is sufficient to sustain a conviction), reh’g denied.

M.G. testified Gransbury touched her on her “bottom,” (Tr. Vol. 4 at 234), and

when asked how, M.G. testified “[h]e licked it.” (Id.) When asked “what [she]

would do to George,” M.G. testified, “Lick it because he told me to.” (Id.)

When asked why she called it “George,” M.G. responded “[b]ecause my dad

told me to call him, it George.” (Id. at 232.) M.G. further testified “sometimes

he would have me watch videos of other people doing it that I didn’t even

know[,]” (id. at 236), and “once he had me watch one of my mommy and dad

doing it.” (Id.)

[19] M.G. told the same story to Kellie on the night of January 28, 2014, to Fritz

during the forensic interview, and at trial. Moreover, the jury was free to

believe or disbelieve M.G.’s testimony. See Thompson v. State, 804 N.E.2d 1146,

1149 (Ind. 2004) (a trier of fact is not required to believe a witness’s testimony

even when it is uncontradicted). In light of M.G.’s testimony, the evidence is

sufficient to sustain both of Gransbury’s convictions, and Gransbury’s

argument regarding the lack of any physical evidence is not a basis for reversal.

See Carter, 754 N.E.2d at 880 (child molestation often occurs without witnesses

or physical evidence, and the fact that the only evidence is the child victim’s

statement does not require reversal of a molestation conviction).

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[20] To the extent Gransbury maintains the theory, as he did at trial, that Kellie

convinced M.G. to lie about the molestation because she was “desperate” to

stop Gransbury from receiving parenting time in their divorce proceedings,

(Appellant’s Br. at 22), this argument is a request for us to reweigh evidence

and judge the credibility of the witnesses, which we cannot do. See Drane, 867

N.E.2d at 146 (we do not assess witness credibility or reweigh evidence in

determining whether the evidence is sufficient). The State presented sufficient

evidence to support the two convictions.

II. Inappropriateness of Sentence

[21] Gransbury also argues the fifty-year sentence he received for his Class A felony

child molesting conviction is inappropriate. Under Indiana Appellate Rule

7(B), we may revise a sentence if, after due consideration of the trial court’s

decision, we find the sentence is inappropriate in light of the nature of the

offense and the character of the offender. Williams v. State, 891 N.E.2d 621, 633

(Ind. Ct. App. 2008). Our review is deferential to the trial court’s decision, and

our goal is to determine whether the defendant’s sentence is inappropriate, not

whether some other sentence would be more appropriate. Conley v. State, 972

N.E.2d 864, 876 (Ind. 2012), reh’g denied. The appellant bears the burden of

demonstrating his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073,

1080 (Ind. 2006). Revision of a sentence under Rule 7(B) requires the appellant

demonstrate his sentence is “inappropriate in light of both the nature of the

offenses and his character.” Williams, 891 N.E.2d at 633 (emphasis in original).

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[22] Here, Gransbury failed to present any argument regarding the nature of his

offense and, thus, has waived our review of the inappropriateness of his

sentence. See Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017) (holding

issue waived where appellant failed to present any authority or analysis on the

nature of his offense). Waiver notwithstanding, Gransbury has failed to

persuade us his fifty-year sentence is inappropriate.

[23] When considering the nature of the offense, the advisory sentence is the starting

point for determining the appropriateness of a sentence. Anglemyer v. State, 868

N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (2007). The

statutory range for a Class A felony is twenty to fifty years, with the advisory

sentence being thirty years. Ind. Code § 35-50-2-4 (2012). One factor we

consider when determining the appropriateness of a deviation from the advisory

sentence is whether there is anything more or less egregious about the offense

committed by the defendant that makes it different from the “typical” offense

accounted for by the legislature when it set the advisory sentence. Rich v. State,

890 N.E.2d 44, 54 (Ind. Ct. App. 2008), trans. denied. Here, Gransbury

molested M.G. on multiple instances over a protracted length of time, and told

her to keep it a secret. As a result of the repeated molestations, M.G. exhibited

behavioral symptoms such as wetting the bed, nightmares, and lethargy.

[24] Gransbury argues, in imposing the maximum fifty-year sentence, the court

failed to give proper weight to the fact Gransbury was fifty-six years old at the

time of sentencing, had no criminal record at the time of the offense, had an

honorable career of twenty years in the Navy, and had been a victim of physical

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and sexual abuse as a child. He also argues the court put improper weight on

M.G.’s age.5

[25] We disagree. “[T]he trial court determines the weight assigned to mitigating

circumstances and a lack of criminal history does not automatically outweigh

any valid aggravating circumstances.” Mastin v. State, 966 N.E.2d 197, 203

(Ind. Ct. App. 2012). As M.G.’s father, Gransbury was in a position of trust.

He violated this position of trust each time he perpetrated the crimes. As the

trial court noted, Gransbury molested a child who was five years old, and “not

just somebody [he] was in a position over, but [his] own daughter.” (Tr. Vol. 5

at 115.) The court noted, by molesting his own daughter, Gransbury

committed acts against the “person who most in the world [he] should have

been willing to stand in front of and protect [] with [his] very life.” (Id.)

Moreover, the court noted Gransbury molested M.G. not once, but “again, and

again, and again.” (Id. at 116.) In addition, the court stated Gransbury’s use of

pornographic videos of M.G.’s own mother to persuade M.G. to allow



5 To this point, Gransbury argues “child molesting is a Class A felony due to the moral revulsion of the crime,” and therefore the court erred in considering M.G.’s age as an additional aggravator. (Appellant’s Br. at 29.) Gransbury cites Serino v. State, 798 N.E.2d 852 (Ind. 2003), for the proposition that “circumstances must be balanced in view of the fact that the legislature has already built into its sentencing range the consequences to victims, moral revulsion, and other factors inherent in the crime.” (Appellant’s Br. at 29.) First, we note this quote in fact comes from Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008), not Serino. Next, in deciding whether to impose more than the advisory sentence, the court has discretion to consider whether the victim was less than twelve years old as an aggravating circumstance, and here, the court did not abuse that discretion. See Ind. Code § 35-38-1-7.1(3); see also Reyes v. State, 909 N.E.2d 1124, 1128 (Ind. Ct. App. 2009) (trial court’s consideration of child victim’s age as aggravating factor in sentencing for child molesting was not an abuse of discretion).

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Gransbury to molest her made his crimes “even more despicable,” and found

that as a substantial aggravator. (Id.)

[26] We agree with the trial court. Even if we presume from Gransbury’s Navy

service that he had good character in the past, it cannot prompt us to look past

the poor character reflected by the egregiousness of Gransbury molesting his

own child. As the trial court stated, Gransbury “performed good military

service to this country,” (id. at 115), however, “as a member of the United

States Armed Forces, it [is] [his] responsibility to defend the citizens of this

country, not to molest its children.” (Id.) Given Gransbury’s violation of his

position of trust, M.G.’s age, and the multiple acts Gransbury committed

against M.G., his own daughter, we find nothing inappropriate about

Gransbury’s fifty-year sentence based on his character or his offense. See

Sullivan v. State, 836 N.E.2d 1031, 1037 (Ind. Ct. App. 2005) (imposition of

maximum fifty-year sentence was supported by aggravating factors of child’s

age, status as the defendant’s daughter, and repeated molestations).