Court of Appeals of Indiana | Memorandum Decision 26A01-1711-CR-2815 | August 30, 2018 Page 1 of 14

MEMORANDUM DECISION

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

Ivan A. Arnaez

Arnaez Law Office

Evansville, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Lee M. Stoy, Jr.

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Timothy M. Schieve,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

August 30, 2018

Court of Appeals Case No.

26A01-1711-CR-2815

Appeal from the Gibson Circuit 

Court

The Honorable Jeffrey F. Meade, 

Judge

Trial Court Cause Nos. 

26C01-1609-FA-928 

26C01-1609-F1-929

Pyle, Judge.
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Statement of the Case

[1] Timothy Schieve (“Schieve”) appeals his convictions following a jury trial for 

Class A felony child molesting1 and Level 1 felony child molesting2 as well as 

the thirty-six-year concurrent sentences imposed for each conviction. Schieve 

specifically argues that: (1) the trial court improperly coerced the jury by 

inquiring into the status of its deliberations; (2) the trial court abused its 

discretion in sentencing him; and (3) his sentence is inappropriate in light of his 

character and the nature of his offenses. Concluding that the trial court did not 

improperly coerce the jury or abuse its discretion in sentencing Schieve, and 

that Schieve’s sentence is not inappropriate, we affirm his convictions and 

sentences.

[2] We affirm. 

Issues

1. Whether the trial court improperly coerced the jury when 

it asked about the status of the jury’s deliberations.

2. Whether the trial court abused its discretion in sentencing 

Schieve.

3. Whether Schieve’s sentence is inappropriate in light of the 

nature of his offense and his character.

 

1

IND. CODE § 35-42-4-3.

2

I. C. § 35-42-4-3.
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Facts

[3] M.S. (“Mother”) and Schieve are the parents of M.S. (“M.S.”), who was born 

in December 2004. The couple separated when M.S. was still an infant, and 

M.S. typically visited Schieve every other weekend. In 2016, when M.S. was 

eleven years old, she told Mother that Schieve had touched her inappropriately. 

Following a forensic interview with M.S., the State charged Schieve with Class 

A felony child molesting, Class B felony incest, Level 1 felony child molesting, 

and Level 4 felony incest. 

[4] At an October 2017 jury trial, M.S. testified that Schieve had inappropriately 

touched her on three separate occasions. According to M.S., the first incident 

occurred in the bathroom of Schieve’s home while M.S. was changing into her 

swimsuit. M.S. specifically testified that Schieve entered the bathroom, asked 

M.S. to sit on the sink, and “put his hand on [her] swimsuit bottoms and started 

moving his hand.” (Tr. Vol. 2 at 247). M.S. further testified that the second 

incident occurred in the living room of Schieve’s home. According to M.S., 

while Schieve and M.S. were watching television, Schieve, who was wearing 

his boxers, “had [M.S.] take off [her] shorts to where [she] was just in [her] 

underwear, and he had [her] sit on his lap while [they] watched TV.” (Tr. Vol. 

2 at 150). 

[5] In addition, M.S. testified that the third incident occurred in Schieve’s bedroom 

when he instructed M.S. to touch his penis with her hands and mouth. 
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According to M.S., Schieve had told her that she “would do it as good as [her] 

mother would.” (Tr. Vol. 3 at 5). M.S. explained that she knew what to do 

with her hands and her mouth because of the pornographic videos that she and 

Schieve had watched together. M.S. further testified that when Schieve 

ejaculated, he asked M.S. to “drink the white stuff” because her mother did. 

(Tr. Vol. 3 at 5). 

[6] Lastly, M.S. testified that she now called Schieve by his first name, Wayne, 

rather than Dad. M.S. specifically explained as follows: “[b]ecause after, like, 

learning more, it got me to understand that somebody that loved you wouldn’t 

hurt you, and “Dad” and “Father” is supposed to be a loving word.” (Tr. Vol. 

2 at 32).

[7] Mother testified that she and Schieve had been involved in a six-year 

relationship and that oral sex was something that Schieve particularly enjoyed. 

Mother also testified that when she and Schieve were together, there was 

pornography in the home. 

[8] In addition, Brandon Willis (“Willis”), Schieve’s cellmate in the Gibson 

County Jail, testified that after Schieve learned that Willis had previously been 

convicted of incest, Schieve told him that he had watched pornographic DVDs

with his daughter. Willis also testified that Schieve had told him that he had 

fondled his daughter and made his daughter fondle him. 

[9] After closing arguments and final instructions, the trial court sent the jury to 

deliberate at about 1:30 pm. Four hours later, at approximately 5:30 p.m., the 
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trial court brought the jury back into the courtroom to check on the status of 

deliberations. At that time, the following colloquy between the trial court and 

the jury foreperson took place:

[10] THE COURT: We show the jury comes back in at the request of the 

Court just for status. . . . All right. I just want to touch bases with you. 

And I – when I brought you out here, this is no way meant to encourage 

you to vote one way or the other. Okay. But I want to just remind you 

that the evidence has been closed, and I can’t really reopen it for any 

other testimony or transcripts or so forth because I believe that was one 

of the jury questions was do we have transcripts available of certain 

testimony. We don’t have that. They have that stuff on TV. We don’t 

have that in real life. I guess my question for the jury is a couple. One, 

do you believe – and who is the foreman? I don’t know who the foreman 

is. Okay. Do you believe a unanimous opinion can be reached if given 

more time?

FOREPERSON: Possibly. We had a unanimous decision, but then 

somebody changed a vote, so we kind of went back to discussing it.

THE COURT: Okay. So that’s kind of where you’re at now? That’s 

fair. Because I just wanted to get a feel for where you guys were. The 

other question I had, you did go to lunch early. It’s about 5:30 now. Are 

you guys getting hungry.

FOREPERSON: Yeah. Everybody is getting pretty hungry.

THE COURT: Okay. Let’s do this. Since – I can read all the jury 

instructions to you again, but you can read them yourself. I don’t think 

you really want to hear me read it. That’s really all I can do. So you 

have the evidence, you have the instructions. Let’s do this. Let me order 

some pizzas maybe from across the street if that’s okay and then let you 

go back and see if you guys can get that unanimous verdict that the 

statute requires.

FOREPERSON: Okay.

THE COURT: Okay. You guys got – anybody got any requests for 

certain types of pizza?

FOREPERSON: Do they have chocolate pizza?
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THE COURT: I will let you work that out with the bailiff. I better stay 

out of this or I’ll get myself in lots of trouble. I’ll let you work that out 

with the bailiff. All right. I’ll let you guys go back. Yeah. They want to 

make sure because it is getting – I can see you guys are probably getting 

hungry. Okay. All right.

(Tr. Vol. 3 at 159-60). After the jury exited the courtroom, the trial court asked, 

“Any other motions?” (Tr. Vol. 2 at 160). Neither side made any objections or 

motions. Approximately ninety minutes later, the jury returned with their 

verdicts finding Schieve guilty on all counts.

[11] During the preparation of his Pre-Sentence Investigation Report, Schieve told 

the probation officer that “his hope [was] one day, when his daughter [was] 

older, she [would] realize how selfish she was for making up lies about him.” 

(App. Vol. 10 at 7). At the November 2017 sentencing hearing, Schieve’s father 

testified that Schieve was “a loving father and a loving son” and had “helped in 

the community.” (Tr. Vol. 3 at 170). Schieve’s father also testified that the 

witness testimony at trial “was full of untruths and fabrications.” (Tr. Vol. 3 at 

171). Schieve told the trial court that he did not “feel like [he] had 

representation that [he] should have had.” (Tr. Vol. 3 at 173). 

[12] M.S. submitted an impact letter wherein she described the emotional impact 

that Schieve’s crimes had had on her. Specifically, she explained that she: (1) 

cried herself to sleep on many occasions; (2) had nightmares that led her to 

“sleep in mommy’s room;” and (3) wondered why a father would abuse his 

own daughter. (State’s App. at 2). In the letter, M.S. explained that she “no 

longer g[o]t attached easily” and that it was hard to trust anyone. (State’s App. 

at 3). Mother also wrote an impact letter where she explained that M.S. no 
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longer felt safe in her own home and that she had lost family and her innocence 

as a result of Schieve’s offenses. 

[13] The evidence presented at the sentencing hearing revealed that Schieve has an 

extensive misdemeanor criminal history. Specifically, Schieve has multiple 

prior convictions for driving while suspended, criminal mischief, and battery. 

In addition, he has a prior conviction for neglect of a dependent, which 

involved a child.

[14] Following the presentation of evidence, the trial court found the following 

aggravating circumstances: (1) Schieve abused his position of trust with M.S.; 

and (2) M.S. suffered emotional and psychological harm. The trial court also 

found that Schieve’s lack of remorse was a modest aggravating factor. The trial 

court merged each incest conviction with the respective child molesting 

conviction and sentenced Schieve to concurrent terms of thirty-six (36) years in 

the Department of Correction for each child molesting conviction. 

Decision

[15] Schieve argues that: (1) the trial court improperly coerced the jury by inquiring

into the status of its deliberations; (2) the trial court abused its discretion in 

determining aggravating factors for sentencing him; and (3) his sentence is 

inappropriate in light of his character and the nature of his offenses. We 

address each of his arguments in turn.

1. Jury Inquiry
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[16] Schieve first argues that he was deprived of a fair trial because the trial court’s 

statement during its colloquy with the jury foreperson “improperly coerced the 

jury through numerical inquiry. . . .” (Schieve’s Br. at 21). At the outset, we 

note that Schieve did not object at trial to the trial court’s colloquy with the jury 

foreperson. He has therefore waived appellate review of this issue. See Palilonis 

v. State, 970 N.E.2d 713, 730 (Ind. Ct. App. 2012) (holding that failure to make 

a contemporaneous objection when the evidence is introduced at trial results in 

waiver of the issue on appeal), trans. denied. Because Schieve has waived 

appellate review of this argument, he must establish fundamental error, which is 

only available in egregious circumstances. See Absher v. State, 866 N.E.2d 350, 

354 (Ind. Ct. App. 2007). To qualify as fundamental error, the “‘error must be 

so prejudicial to the rights of the defendant as to make a fair trial impossible’” 

and must “‘constitute a blatant violation of basic principles, the harm or 

potential for harm must be substantial, and the resulting error must deny the 

defendant fundamental due process.’” Id. (citing Benson v. State, 762 N.E.2d 

748, 755 (Ind. 2002)).

[17] Here, our review of the trial court’s statement to the jury during the colloquy

between the trial court and the jury foreperson reveals that the State is correct

that the “trial court did not make a specific [numeric] inquiry into the jury’s 

divisions on the verdict . . . .” (State’s Br. at 14). Rather, although the jury 

foreperson volunteered the jury’s numerical division, the trial court’s question 

neither elicited nor required such detail. Specifically, the trial court sought only 

to assess whether, if given more time, the foreman believed that the jury could 
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reach a unanimous verdict and whether the jurors were ready for dinner since 

they had had an early lunch. We find no error here, fundamental or otherwise.3

2. Abuse of Discretion in Sentencing

[18] Schieve next argues that the trial court abused its discretion in sentencing him. 

Sentencing decisions rest within the sound discretion of the trial court. 

Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). So long as the sentence is 

in the statutory range, it is subject to review only for an abuse of discretion. Id. 

An abuse of discretion occurs if the decision is clearly against the logic and 

effect of the facts and circumstances before the court or the reasonable, 

probable, and actual deductions to be drawn therefrom. Id. at 491. A trial 

court may abuse its discretion in a number of ways, including: (1) failing to 

enter a sentencing statement at all; (2) entering a sentencing statement that 

includes aggravating and mitigating factors that are unsupported by the record; 

(3) entering a sentencing statement that omits reasons that are clearly supported 

by the record; or (4) entering a sentencing statement that includes reasons that 

are improper as a matter of law. Id. at 490-91. 

 

3

Schieve also argues that the trial court’s statement to the jury during the colloquy between the trial court 

and the jury foreperson amounted to an impermissible Allen charge. An Allen charge is an instruction given 

to urge an apparently deadlocked jury to reach a verdict. Hero v. State, 765 N.E.2d 599, 604 (Ind. Ct. App. 

2002). Such additional instructions are closely scrutinized to ensure that the trial court does not coerce the 

jury into reaching a verdict that is not truly unanimous. Id. Here, however, the trial court neither believed 

that the jury was deadlocked nor gave any additional instructions. Schieve’s Allen charge argument therefore 

fails.
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[19] Here, Schieve contends that the trial court abused its discretion by including

improper aggravating factors that were unsupported by the record. Our review 

of the evidence reveals otherwise. 

[20] The trial court’s first aggravating factor was that Schieve violated a position of 

trust with M.S. Schieve specifically argues that “trust between parent and child 

is already written into the element of Incest as and applied to Child Molestation 

under these facts . . . .” (Schieve’s’ Br. at 40). He is mistaken. First, one does 

not have to be a parent or have a position of trust to commit the offense of child 

molesting. See IND. CODE § 35-42-4-3. In addition, this Court has previously 

explained that the “position of trust aggravator is frequently cited by sentencing 

courts where an adult has committed an offense against a minor and there is at 

least an inference of the adult’s authority over this minor.” Rodriguez v. State, 

868 N.E.2d 551, 555 (Ind. Ct. App. 2007). We further explained that this 

aggravator applies in cases where the defendant has a more than casual 

relationship with the victim and has abused the trust resulting from the 

relationship. Id. This is usually the case where the defendant is the victim’s 

parent or stepparent. Id. Here, Schieve is M.S.’s father. The record supports 

this aggravating factor, and trial court did not abuse its discretion in including 

it.

[21] The second challenged aggravating factor was the emotional and psychological 

harm inflicted on M.S. The trial court may properly consider this harm as an 

aggravating factor where the harm or trauma is more than that which is 

normally associated with the crime. Thompson v. State, 793 N.E.2d 1046, 1052 
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(Ind. Ct. App. 2003). Here, the emotional and psychological harm inflicted on 

M.S. was exacerbated because Schieve is her biological father. See Ludack v. 

State, 967 N.E.2d 41, 48 (Ind. Ct. App. 2012) (explaining that “the acts of 

sexual molestation pose a greater threat of severe, long-lasting emotional harm” 

when the perpetrator is someone close to the victim). In addition, M.S. wrote 

an impact letter describing her ongoing emotional turmoil since being molested. 

The trial court did not abuse its discretion in finding the emotional and 

psychological harm inflicted on M.S. to be an aggravating factor.

[22] The trial court’s third aggravating factor was Schieve’s lack of remorse. A trial 

court may consider a defendant’s lack of remorse as an aggravating 

circumstance. Georgopulos v. State, 735 N.E.2d 1138, 1145 (Ind. 2000). It is not 

error for a trial court to consider lack of remorse as an aggravating factor even if 

the defendant claims that he is innocent. Id. “A lack of remorse is displayed by 

a defendant when he displays disdain or recalcitrance, the equivalent of “I don’t 

care.’” Cox v. State, 780 N.E.2d 1150, 1158 (Ind. Ct. App. 2002). “This is 

distinguished from the right to maintain one’s innocence, i.e., ‘I didn’t do it.’” 

Id. Here, Schieve stated that “his hope [was] one day, when his daughter [was] 

older, she [would] realize how selfish she [was] for making up lies about him.” 

(App. Vol. 10 at 7). Based on this evidence, the trial court acted well within its 
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discretion in finding Schieve’s lack of remorse to be a modest aggravating 

factor.

4

3. Inappropriate Sentence

[23] Lastly, Schieve argues that his sentence is inappropriate. Indiana Appellate 

Rule 7(B) provides that we may revise a sentence authorized by statute if, after 

due consideration of the trial court’s decision, we find that the sentence is 

inappropriate in light of the nature of the offense and the character of the 

offender. The defendant bears the burden of persuading this Court that his

sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). 

Whether we regard a sentence as inappropriate turns on the “culpability of the 

defendant, the severity of the crime, the damage done to others, and myriad 

other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d 

1219, 1224 (Ind. 2008).

[24] The Indiana Supreme Court has further explained that “[s]entencing is 

principally a discretionary function in which the trial court’s judgment should 

receive considerable deference.” Id. at 1222. “Such deference should prevail 

unless overcome by compelling evidence portraying in a positive light the 

 

44

Schieve also argues that the trial court abused its discretion in finding the victim’s age and Schieve’s 

criminal history to be aggravating factors. However, our review of the transcript reveals that the trial court 

considered neither M.S.’s age nor Schieve’s criminal history to be aggravating factors. We further note that 

even if the trial court had erred in finding these to be aggravating factors, a single aggravating factor can 

support an enhanced sentence. Willey v. State, 712 N.E.2d 434, 446 (Ind. 1999). Here, we have found three 

valid aggravating factors.
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nature of the offense (such as accompanied by restraint, regard, and lack of 

brutality) and the defendant’s character (such as substantial virtuous traits or 

persistent examples of good character).” Stephenson v. State, 29 N.E.3d 111, 122 

(Ind. 2015).

[25] When determining whether a sentence is inappropriate, the advisory sentence is 

the starting point the legislature has selected as an appropriate sentence for the 

crime committed. Childress, 848 N.E.2d at 1081. The sentencing range for 

Level 1 felony is twenty (20) to fifty (50) years, and the range for a Class A 

felony is twenty (20) to forty (40) years. IND. CODE § 35-50-2-4(a)-(b). Both 

have an advisory sentence of 30 years. Id. Here, Schieve was sentenced to 

concurrent terms of thirty-six (36) years for his Class A and Level 1 felonies. 

These sentences are each less than the maximum sentence and just six years 

more than the advisory sentence. 

[26] Regarding the nature of the offenses, Schieve molested his daughter while she 

visited him on weekends. He groomed her to perform sex acts by watching 

pornography with her and gradually building his sexual contact with her. 

Ultimately, Schieve forced M.S. to fondle his penis and perform oral sex on 

him. 

[27] Turning to Schieve’s character, we note that this was not Schieve’s first contact 

with the criminal justice system. Schieve has prior misdemeanor convictions 

for criminal mischief, battery, and driving while suspended. In addition, 

Schieve has a prior conviction for neglect of a dependent, which involved a 
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child. These multiple convictions reflect poorly on his character. See Moss, 13 

N.E.3d at 448 (holding that “even a minor criminal history is a poor reflection 

of a defendant’s character”). Schieve’s violation of his position of trust with his 

daughter also reflects very poorly on his character.

[28] Schieve has failed to meet his burden to persuade this Court that his aggregate 

thirty-six year sentence for one Level 1 felony conviction and one Level A 

felony conviction is inappropriate.

[29] Affirmed.

Vaidik, C.J., and Barnes, Sr.J., concur.