FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

JOHN T. WILSON GREGORY F. ZOELLER

Anderson, Indiana Attorney General of Indiana 

GEORGE P. SHERMAN

Deputy Attorney General 

Indianapolis, Indiana 

IN THE

COURT OF APPEALS OF INDIANA

WILLIAM REMY, )

)

Appellant-Defendant, )

)

vs. ) No. 48A02-1310-CR-857

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MADISON CIRCUIT COURT

The Honorable Thomas Newman Jr., Judge

Cause No. 48C03-1110-FA-1844

September 30, 2014

OPINION - FOR PUBLICATION

ROBB, Judge
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Case Summary and Issues

Following a jury trial, William Remy was convicted of three counts of child 

molesting, all Class A felonies; one count of child molesting as a Class C felony; and 

performing sexual conduct in the presence of a minor, a Class D felony. He received an 

aggregate sentence of ninety-five and one-half years imprisonment. Remy appeals his 

convictions and sentence, raising the following issues for our review: (1) whether the 

trial court abused its discretion by allowing certain pornographic materials to be admitted 

at Remy’s trial; and (2) whether Remy’s sentence is inappropriate in light of the nature of 

his offenses and his character. Concluding the admission of pornographic images at 

Remy’s trial was erroneous but amounts to harmless error and that Remy’s sentence is 

not inappropriate, we affirm.

Facts and Procedural History

In 2009, H.B., who was eleven years old, moved to Madison County to live with

his mother and her boyfriend, Remy. In July of 2009, Remy began asking H.B. to 

shower with him. While in the shower, Remy would ejaculate on H.B.’s back. On some 

of those occasions, Remy inserted a butt plug into H.B.’s anus. On one occasion, Remy 

wrapped H.B.’s naked body in saran wrap, cutting holes for his eyes, mouth, nose, and 

penis, and Remy then performed oral sex on H.B. H.B. recalled another occasion when 

Remy forced H.B. to wear nothing but a dog collar and made him get on all fours and act 

like a dog.

Remy, H.B., and H.B.’s mother subsequently moved to another residence in 

Madison County. It was there that Remy first had anal sex with H.B. Once this began, 
3

incidents of molestation occurred on a weekly basis. Remy would instruct H.B. to clean 

out his anus with a black hose connected to the shower prior to Remy having anal sex 

with him. Remy often used dildos and vibrators on H.B., and Remy had H.B. use them 

on him as well. Sometime in the two years during which Remy repeatedly molested 

H.B., Remy showed H.B. numerous pornographic images and videos that Remy had on 

his computer. 

Remy’s molestations of H.B. stopped in July 2011 when Remy’s relationship with 

H.B.’s mother ended. H.B. and his mother moved to West Virginia in November 2011. 

After H.B. was no longer living with Remy, H.B. informed his biological father about 

what had occurred between himself and Remy, and H.B.’s father contacted the police. 

H.B. underwent a sexual assault examination performed by a nurse with the Madison 

County Sexual Assault Treatment Center, and the examination revealed signs that H.B. 

had experienced anal penetration. Police conducted a search of Remy’s residence and 

found a butt plug, dog collar, anal lube, plastic wrap, numerous sex toys (including 

vibrators and dildos), a black tube connected to the shower line, and pornography stored 

in Remy’s computer. 

On October 10, 2011, the State charged Remy with Count 1, child molesting, a 

Class A felony (oral sex); Count 2, child molesting, a Class A felony (anal penetration); 

Count 3, child molesting, a Class A felony (anal penetration); Count 4, child molesting, a 

Class C felony; and Count 5, performing sexual conduct in the presence of a minor, a 

Class D felony. A jury trial was held over the course of several days in August 2013, at 

the end of which the jury found Remy guilty of all five counts. The trial court imposed 
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the advisory sentence for each count but ordered that the sentences would run 

consecutively, resulting in an aggregate sentence of ninety-five and one-half years. This 

appeal followed. 

Discussion and Decision

I. Evidence of Pornography 

Remy contends that admission of evidence of pornographic materials found inside 

his home was improper character evidence prohibited by Indiana Evidence Rule 404(b). 

A trial court’s decision to admit or exclude evidence is reviewed for an abuse of 

discretion. Young v. State, 980 N.E.2d 412, 417 (Ind. Ct. App. 2012). A trial court 

abuses its discretion when its decision is clearly against the logic and effect of the facts 

and circumstances or when the trial court has misinterpreted the law. Id. 

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character 

of a person in order to show action in conformity therewith.” Ind. Evidence Rule 404(b) 

(2013). However, such evidence may be admitted to prove “motive, intent, preparation, 

plan, knowledge, identity, or absence of mistake or accident . . . .” Id. The rule is 

“designed to prevent the jury from assessing a defendant’s present guilt on the basis of 

his past propensities, the so called ‘forbidden inference.’” Hicks v. State, 690 N.E.2d 

215, 218-19 (Ind. 1997). A court faced with a challenge to evidence under Rule 404(b) 

must: (1) decide if the evidence of other crimes, wrongs, or acts is relevant to a matter at 

issue other than the defendant’s propensity to commit the charged act; and (2) balance the 

probative value of the evidence against its prejudicial effect pursuant to Rule 403. Id. at 

221.
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Remy argues a number of pornographic images and magazine articles found in his 

home—State’s Exhibits 39-48 and 62-68—were irrelevant, highly prejudicial, and 

inadmissible under Rule 404(b). Remy’s brief accurately summarizes the challenged 

exhibits as follows: men bound and in leather masturbating; a man ejaculating in a 

person’s mouth; two people having sexual intercourse; a man tied up with a ball gag in 

his mouth; a penis tied up with string; a man putting his fists in two other men’s anuses; a 

man in leather on his hands and knees; a man hanging upside down while having oral sex 

with another man; a man wearing a dog mask; a young boy looking at an erect penis; a 

man wrapped in saran wrap and engaging in oral sex with another man; several pictures 

of penises; and an article about a sexual fantasy involving a man dressing and acting like 

a dog. See Brief of Appellant at 11. The State responds that these pornographic images 

were properly admitted to prove Remy’s plan to commit the charged crimes and that 

Remy was “clearly grooming” H.B. Brief of Appellee at 8.

Prior to the promulgation of the Indiana Rules of Evidence, our supreme court 

adopted Federal Evidence Rule 404(b) in Lannan v. State, 600 N.E.2d 1334, 1335 (Ind. 

1992). In doing so, the court abolished the “depraved sexual instinct” exception that 

allowed character evidence in sexual assault cases to be admitted to bolster victim 

credibility and prove action in conformity with a defendant’s sexual desires or past acts. 

Id. Commenting on Lannan, the adoption of Indiana’s own Evidence Rule 404(b), and 

the dismissal of the common law “common scheme or plan” rule in favor of Rule 

404(b)’s “plan” exception, Chief Justice Shepard clarified that Rule 404(b) offered “a 

narrower exception than our old rule, which tended to degenerate into an all-purpose 
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excuse for admitting pretty much any old prior misconduct.” Lay v. State, 659 N.E.2d 

1005, 1015 (Ind. 1995) (Shepard, C.J., dissenting).1 This is the backdrop against which 

our decision in this case is made. We believe this case presents an example of how a real 

danger exists that rationales such as “plan” and “grooming” are becoming all-purpose 

excuses to admit prejudicial evidence in child molestation cases. We must take care to 

ensure that Rule 404(b)’s exceptions do not swallow the rule. 

H.B. testified that Remy showed each of the images to H.B., and the State argues

that some of the images are “similar in nature to several of the scenarios that Remy 

played out with H.B.” Br. of Appellee at 8. When the State admitted these challenged 

exhibits at trial, the only image the State noted was similar to a charged act was the image

involving saran wrap and oral sex (State’s Exhibit 68). In the State’s brief, the State 

identifies six additional images that it believes are similar to activities that H.B. testified

Remy subjected him to. However, three of those images relate to the incident where H.B. 

was made to put on a dog collar, which is not among the crimes charged, and two depict 

oral sex, making them cumulative of and less relevant than the saran wrap photo. 

Therefore, the relevance of those images seems to be negligible. Even assuming all of

the images identified by the State on appeal are at least marginally relevant, this leaves 

ten pornographic images admitted against Remy for no perceivable reason other than to 

inflame the jury and encourage the “forbidden inference.”

 

1

 Although said in dissent, Chief Justice Shepard’s opinion on that issue of law was shared by a majority of 

the court. See Lay, 659 N.E.2d at 1015 (DeBruler, J., concurring); id. (Shepard, C.J., dissenting, joined by 

Dickson, J.)
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As to the State’s “grooming” rationale, this court has previously held this is a valid 

basis for admitting past acts under Rule 404(b). See Piercefield v. State, 877 N.E.2d 

1213, 1216 (Ind. Ct. App. 2007), trans. denied. In Piercefield, the court defined 

“grooming” as “the process of cultivating trust with a victim and gradually introducing 

sexual behaviors until reaching the point where it is possible to perpetrate a sex crime 

against the victim.” Id. at 1216 n.1 (citation and quotation marks omitted). This court 

held that evidence of the victim’s past massages of the defendant was relevant to show 

preparation, plan, and grooming, because the massages were demanded by the defendant 

and used to familiarize the victim with touching and having a more physical relationship 

with the defendant. Id. at 1216. The court emphasized, however, that this evidence was 

far less prejudicial than evidence of past sexual activity because the “massage 

contacts . . . were not criminal by themselves and were not overtly sexual.” Id.

On the spectrum of prejudice, we find this case falls somewhere between 

Piercefield and cases like Greenboam v. State, 766 N.E.2d 1247 (Ind. Ct. App. 2002), 

trans. denied, which involved evidence of past molestations. There is no question that the 

pornographic images admitted by the State in this case are “overtly sexual.” Cf.

Piercefield, 877 N.E.2d at 1216 (implying that evidence of acts that were “overtly sexual”

would be far more prejudicial than the massages at issue in Piercefield). Additionally, we 

note that admission of evidence related to these images may be been evidence of other 

uncharged criminal conduct: Remy’s possession of at least one of the photos—an image 

of what appears to be an adolescent boy preparing to perform oral sex (State’s Exhibit 

67)—is potentially criminal by itself to the extent it may be evidence of possession of 
8

child pornography in violation of Indiana Code section 35-42-4-4(c), and Remy’s acts of 

showing these pornographic images to H.B. may also have been criminal dissemination 

of matter harmful to minors under Indiana Code section 35-49-3-3. Cf. Piercefield, 877 

N.E.2d at 1216 (implying that evidence of acts that were “criminal by themselves” would 

be far more prejudicial than the massages at issue in Piercefield). Because the challenged 

evidence is overtly sexual and is potentially evidence of uncharged criminal conduct, we 

find evidence of these images carries a significant danger of unfair prejudice. 

As to the relevance of the pornography as evidence of grooming, we note that the 

record is unclear as to precisely when these images were shown to H.B. Thus, their 

probative value is further diminished by the fact that we cannot say with any certainty 

that the pornography was used to groom H.B. in preparation for a sex act yet to be 

committed. 

Because the danger of unfair prejudice accompanying the admission of these 

pornographic images substantially outweighs their probative value, we conclude the trial 

court erred by admitting the vast majority of these images. Given our standard of review, 

the fact that Remy showed the image involving saran wrap and oral sex to H.B., and the 

image’s strong parallel to one of the charged acts, we would conclude the trial court did 

not abuse its discretion by admitting State’s Exhibit 68. However, the remainder of the 

challenged images should not have been admitted at trial.

Despite our finding error in the trial court’s admission of this evidence, we hold

that the admission was harmless error. Errors in the admission of evidence are ordinarily

disregarded as harmless error unless they affect the substantial rights of a party. Hoglund 
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v. State, 962 N.E.2d 1230, 1238 (Ind. 2012). In determining whether a party’s substantial 

rights have been affected, we consider the evidence’s probable impact on the fact finder. 

Id. Improper admission of evidence is harmless error “if the conviction is supported by 

substantial independent evidence of guilt satisfying the reviewing court there is no 

substantial likelihood the challenged evidence contributed to the conviction.” Id. Here, 

substantial independent evidence of Remy’s guilt was presented at trial. Most 

importantly, H.B. testified to a number of sex acts Remy performed with him, and H.B.’s 

testimony was substantially corroborated by evidence found in Remy’s home, including 

sex toys described by H.B., anal lube, a butt plug, and a black hose attached to Remy’s 

shower line. Although a danger of prejudice and the possibility of the forbidden 

inference existed after the admission of pornographic images, we do not believe that the 

erroneous admission of that evidence requires a new trial here. In this particular case, the 

evidence corroborating H.B.’s testimony shifts the balance toward harmless error, and we 

cannot say that the challenged evidence here matches the extreme prejudice that comes 

with evidence of past acts of molestation. Cf. Greenboam, 766 N.E.2d at 1256-57 

(finding reversible error in the admission of testimony in violation of Indiana Evidence 

Rule 404(b) regarding the defendant’s past acts of molestation). Therefore, the trial 

court’s error in this case was harmless error.

II. Sentence

Next, Remy argues his sentence is inappropriate. Indiana Appellate Rule 7(B) 

gives appellate courts the authority to revise a defendant’s sentence if, “after due 

consideration of the trial court’s decision, the Court finds that the sentence is 
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inappropriate in light of the nature of the offense and the character of the offender.” Our 

inquiry focuses on the defendant’s aggregate sentence, rather than the number of counts, 

length of the sentence on any individual count, or whether any sentences are concurrent 

or consecutive. Brown v. State, 10 N.E.3d 1, 8 (Ind. 2014). It is the defendant’s burden 

to persuade the reviewing court that the sentence is inappropriate. Childress v. State, 848 

N.E.2d 1073, 1080 (Ind. 2006).

Remy believes his ninety-five and one-half year sentence is inappropriate in light 

of the nature of his offenses and his character. Specifically, Remy argues there is no 

evidence of physical or emotional injury to H.B. and that there was no evidence of 

significant force used by Remy to molest H.B. Remy also points out that he has no 

criminal history. In support of his request for a reduced sentence, Remy points to our 

supreme court’s decision in Harris v. State, 897 N.E.2d 927 (Ind. 2008). In Harris, the 

defendant was convicted of two counts of child molesting, Class A felonies, and was 

sentenced to consecutive terms of fifty years on each count. Three aggravators were 

present in Harris: (1) the defendant was in a position of trust; (2) the defendant 

committed multiple acts of sexual misconduct other than the crimes charged; and (3) the 

defendant’s criminal history. Our supreme court found “the ongoing nature of Harris’s 

crimes coupled with his position of trust sufficiently aggravating to justify enhanced 

sentences.” Id. at 930. However, the court also observed that the two counts of child 

molestation were identical and involved the same child. Id. And although the defendant 

had a criminal history, the court found that history sufficiently different in nature and 

gravity such that it was not a significant aggravator. Id. In the end, our supreme court 
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held the aggravating circumstances were sufficient to warrant enhanced sentences but not 

consecutive ones, and the court revised the defendant’s sentence to fifty years on each 

count to be served concurrently. Id.

We believe this case is distinguishable from Harris.

2

 That case involved a 

sentence that gave the maximum on each count and ordered the counts consecutive, while 

the consecutive sentences in this case were for the advisory terms. Moreover, unlike the 

two counts in Harris, the five counts in this case are not identical. Although they involve 

the same victim, the charged acts spanned two years and were based on a variety of 

appalling and degrading sex acts. Among the aggravators found by the trial court was the 

“heinous” nature of the activities Remy subjected H.B. to in the commission of his 

crimes. Transcript at 806. Remy makes no argument that this aggravator is unsupported 

by the trial evidence, and we recognize that such an aggravator was not present in Harris. 

The trial court identified five aggravators here: (1) Remy abused a position of 

trust with the victim; (2) the number of times the activities occurred; (3) the opportunistic 

way in which Remy perpetrated the crimes; (4) the many locations in which the crimes 

occurred; and (5) the heinous nature of the activities to which Remy subjected H.B.3 

Remy’s lack of criminal history was the only mitigator. As the States points out, our case 

 

2

 Remy also relies on Monroe v. State, 886 N.E.2d 578, 581 (Ind. 2008), where our supreme court held the 

aggravating circumstances were sufficient to warrant imposing enhanced sentences for child molesting, but the 

record did not support the trial court’s imposition of consecutive sentences. In that case, the court specifically took 

issue with the fact that the trial court ordered consecutive sentences despite imposing sentences on each individual 

count below the presumptive sentence, indicating that the trial court believed the mitigators outweighed the 

aggravators but nonetheless gave consecutive sentences. Id. at 580. Here, the trial court’s decision to impose 

consecutive advisory sentences does not contain a similar internal inconsistency.

 

3

 On appeal, the State contends that psychological or emotional harm suffered by H.B. weighs against 

Remy, and the State asserts there is a possibility that H.B. has contracted human papillomavirus. While the State’s 

allegations on these points may be true, the State cites to no evidence in the record supporting them. 
12

law recognizes several of these as valid aggravating factors in child molest cases. See

Hart v. State, 829 N.E.2d 541, 544 (Ind. Ct. App. 2005) (stating that “being in a position 

of trust with the victim is a valid aggravating circumstance”); Newsome v. State, 797 

N.E.2d 293, 300 (Ind. Ct. App. 2003) (stating “[r]epeated molestations occurring over a 

period of time can be an aggravating factor supporting the maximum enhancement.”), 

trans. denied. Remy has not convinced us that his sentence is inappropriate in light of the 

nature of his offenses and his character. 

Conclusion

We conclude the trial court abused its discretion in admitting all but one of the 

pornographic images at Remy’s trial, but we find that this violation of Rule 404(b) was 

harmless error. Further, we conclude Remy’s sentence is not inappropriate in light of the 

nature of his offenses and his character. Accordingly, we affirm his convictions and 

sentence. 

Affirmed.

BAKER, J., and KIRSCH, J., concur.