Court of Appeals of Indiana | Memorandum Decision 18A-CR-3012 | September 4, 2019 Page 1 of 7

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

P. Jeffrey Schlesinger

Crown Point, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Angela N. Sanchez

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Scott Anthony Smolen,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

September 4, 2019

Court of Appeals Case No.

18A-CR-3012

Appeal from the Lake Superior 

Court

The Honorable Salvador Vasquez, 

Judge

Trial Court Cause No.

45G01-1512-F1-9

May, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3012 | September 4, 2019 Page 2 of 7

[1] Scott Anthony Smolen appeals his convictions of Level 1 felony child 

molesting1 and Level 4 felony child molesting.2

 Smolen argues the court’s 

allegedly improper jury instruction violated his right against self-incrimination

and the trial court abused its discretion by ordering Smolen to serve his 

sentences consecutively. We affirm. 

Facts and Procedural History

[2] In April 2015, Smolen was dating T.B.’s mother. T.B. thought of Smolen as a 

father figure and referred to him as “dad” or “daddy.” (Tr. Vol. II at 115.) 

Smolen lived with T.B., her mother, her grandmother, and her three sisters. At 

the time, T.B. was thirteen and Smolen was twenty-three. That same month, 

Smolen and T.B. had sex for the first time. Smolen and T.B. engaged in some 

sort of sexual activity every day for several months. 

[3] T.B. and Smolen would write letters and notes back and forth. In December 

2015, T.B. accidently left multiple of their notes in the back of a library book. 

A librarian discovered these notes and became concerned over the sexually 

explicit matter in the notes. The librarian contacted the police. Two days later, 

police interviewed Smolen. Smolen admitted it was his handwriting on the 

notes but accused T.B. of trying to touch him. Later, Smolen admitted having 

 

1 Ind. Code § 35-42-4-3(b) (2015).

2 Ind. Code § 35-42-4-3(a)(1) 2015).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3012 | September 4, 2019 Page 3 of 7

sex with T.B., but he claimed it only happened once. Smolen also admitted 

T.B. had touched his penis approximately twenty-five times. 

[4] On December 18, 2015, the State charged Smolen with one count of Level 1 

felony child molesting and one count of Level 4 felony child molesting. A jury 

found Smolen guilty of both counts. The trial court sentenced Smolen to

consecutive terms of thirty years for Level 1 felony child molesting and four

years for Level 4 felony child molesting, for an aggregate sentence of thirty-four 

years. 

Discussion and Decision

Jury Instruction

[5] Smolen first argues the trial court improperly instructed the jury. 

Upon review of a trial court’s decision to give or refuse a jury 

instruction, we apply an abuse of discretion standard. Treadway 

v. State, 924 N.E.2d 621, 636 (Ind. 2010) (internal citation 

omitted). “[T]his Court considers: (1) whether the instruction 

correctly states the law; (2) whether there is evidence in the 

record to support the giving of the instruction; and (3) whether 

the substance of the tendered instruction is covered by other 

instructions which are given.” Guyton v. State, 771 N.E.2d 1141, 

1144 (Ind. 2002) (internal citation omitted). Reversal arises 

“only if the appellant demonstrates that the instruction error 

prejudices his substantial rights.” Treadway, 924 N.E.2d at 636 

(internal citation omitted).
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Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015). For prejudice to arise, “the 

instructions taken as a whole must misstate the law or otherwise mislead the 

jury.” Brooks v. State, 895 N.E.2d 130, 132 (Ind. Ct. App. 2008).

[6] Jury instruction 5 originally stated: 

A determination of the Defendant’s intent may be arrived at by 

the jury from a consideration of the Defendant’s conduct and the 

natural and usual consequences to which such conduct logically 

and reasonably points.

(App. Vol. II at 47.) Smolen objected at trial, arguing the instruction unduly 

prejudiced him because “even though there’s an instruction that says he doesn’t 

have to testify, this instruction implies . . . if he didn’t testify, then you can infer 

what you want from that.” (Tr. Vol. II at 174.) As a result of Smolen’s 

argument, the trial court revised jury instruction 5 to state: 

A determination of the Defendant’s intent to arouse may be 

inferred by the jury from a consideration of the Defendant’s 

conduct and the natural and usual consequences to which such 

conduct logically and reasonably points.

(App. Vol. II at 68) (emphasis added). 

[7] On appeal, Smolen argues this instruction violated his right to be free from selfincrimination because it permitted the jury to find the intent element based on 

Smolen’s conduct at trial. (Appellant’s Br. at 8.) We disagree, because “the 

Defendant’s intent” and “the Defendant’s conduct” at issue are Smolen’s intent 

and conduct at the time the crimes were alleged to have occurred. (App. Vol. II 
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at 68.) This should have been obvious to the jury as “intent to arouse” was an 

element of the crime allegedly committed and the jury received instructions as 

to the elements of each crime. (See id. at 51) (jury instruction listing elements of 

Level 4 felony child molesting). Smolen has failed to demonstrate any juror 

would have made the inference he asserts as error. See Davis-Martin v. State, 116 

N.E.3d 1178, 1192 (Ind. Ct. App. 2019) (defendant failed to establish how jury 

instruction would create irreversible error). 

[8] Furthermore, “[w]e consider the jury instructions as a whole, and in reference 

to each other.” Isom v. State, 651 N.E.2d 1151, 1152 (Ind. 1995). Jury 

instruction 14 states: 

No defendant may be compelled to testify. A defendant has no 

obligation to testify. The defendant in this case did not testify 

and you must not consider this in any way.

(App. Vol. II at 77.) This instruction tells the jury Smolen was not required to 

testify and they may not consider his decision whether to testify as evidence of 

his guilt or innocence. This instruction, when considered with jury instruction 

5, directs the jury to determine Smolen’s intent from the evidence presented at 

trial and not from Smolen’s action at trial. See Aldana v. School City of East 

Chicago, 769 N.E.2d 1201, 1211 (Ind. 2002) (given jury instruction, when 

considered as a whole with all instructions, removed any unduly prejudicial 

impact), trans. denied. Smolen has not demonstrated the trial court abused its 

discretion in instructing his jury. 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3012 | September 4, 2019 Page 6 of 7

Consecutive Sentences

[9] Smolen asserts the trial court abused its discretion when ordering his sentences 

served consecutively. Whether to impose consecutive or concurrent sentences 

is within the trial courts sound discretion and is reviewed only for an abuse of 

discretion. Gellenbeck v. State, 918 N.E.2d 706, 712 (Ind. Ct. App. 2009). The 

trial court abuses its discretion if its decision is clearly against the logic and 

effect of the facts and circumstances. Id.

[10] “[T]he court shall determine whether terms of imprisonment shall be served 

concurrently or consecutively. The court may consider the: (1) aggravating 

circumstances . . . and (2) mitigating circumstances . . . in making a

determination under this subsection[.]” Ind. Code § 35-50-l-2(c). “To impose 

consecutive sentences, the trial court must find at least one aggravating 

circumstance.” Jones v. State, 705 N.E.2d 452, 455 (Ind. 1999).

[11] The trial court specifically noted the seriousness of the crimes, Smolen’s 

position of trust, and the impact of the abuse on T.B.’s life. The trial court also 

found the multiple instances of abuse to be an aggravating circumstance. Thus, 

the trial court did not abuse its discretion by ordering Smolen to serve his 

sentences consecutively. See O’Connell v. State, 742 N.E.2d 943, 952 (Ind. 2001) 

(multiple victims or multiple crimes justifies imposing consecutive sentences). 

Conclusion
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3012 | September 4, 2019 Page 7 of 7

[12] Smolen’s jury instructions did not violate his right against self-incrimination, 

and the trial court did not abuse its discretion by sentencing Smolen to 

consecutive sentences because it found as an aggravating circumstance that 

Smolen abused T.B. multiple times. Accordingly, we affirm.

[13] Affirmed.

Mathias, J., and Brown, J., concur.