MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 28 2016, 6:11 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Steven E. Ripstra Gregory F. Zoeller Ripstra Law Office Attorney General of Indiana Jasper, Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brent Kraay, September 28, 2016 Appellant-Defendant, Court of Appeals Case No. 19A05-1601-CR-125 v. Appeal from the Dubois Circuit Court State of Indiana, The Honorable Mark R. Appellee-Plaintiff. McConnell, Judge Trial Court Cause No. 19C01-1505-FA-317
Mathias, Judge.
[1] Brent Kraay (“Kraay”) was convicted in Dubois Circuit Court of two counts of
Class A felony child molesting, two counts of Class C felony child molesting,
Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016 Page 1 of 19 and one count of Class D felony conducting a performance harmful to minors.
The trial court sentenced Kraay to an aggregate term of thirty years of
incarceration. Kraay appeals and presents three issues, which we renumber and
restate as the following four issues:
I. Whether the State presented evidence sufficient to support Kraay’s convictions;
II. Whether the statute defining the crime of Class A felony child molesting is unconstitutionally vague;
III. Whether the trial court erred by denying Kraay’s motion to sever the charges involving Kraay’s two daughters; and
IV. Whether Kraay’s thirty-year sentence is inappropriate.
[2] We affirm.
Facts and Procedural History
[3] Kraay married M.R. in 1999, and the marriage produced three daughters: N.K.,
born in September 1999; M.K., born in 2001; and J.K., born in 2005. Kraay and
M.R. were divorced in 2005, after which M.R. and the children moved to
Noblesville, and Kraay remained in the former marital residence in Dubois
County.
[4] M.R. later remarried but divorced her second husband when it was discovered
that he had sexually molested N.K. Kraay later married V.J., who had two
children from a previous relationship. After the divorce, Kraay’s children would
visit him once every two to three months.
Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016 Page 2 of 19 [5] During one of these visitations with Kraay, N.K. mentioned to him and V.J.
that she had been having dreams of a sexual nature.1 Allegedly concerned that
his daughter might be sexually active, Kraay decided to perform a physical
check of N.K. to determine if she was still a virgin. Kraay had N.K. lie down on
a bed and remove her pants and underwear. He then manipulated N.K.’s
genitalia, held open her labia and checked to see if her hymen was still intact.
As he did so, he placed his finger in N.K.’s vagina and touched her hymen.
[6] On another occasion, Kraay decided to talk to N.K. and M.K. about sex. He
took the girls into his bedroom and exposed his penis to the girls, explaining
that he wanted to tell them about “the boys’ parts.” Tr. p. 67. He instructed the
girls to touch his penis, which they did. Kraay then touched his penis and
ejaculated in the girls’ presence. He told them that the ejaculate was “sperm”
and was used to make a baby. Tr. p. 74. He also had the girls expose their
genital area so he could talk about their “parts” too. Tr. p. 67. N.K. testified
that Kraay looked at her genitals and “showed how a baby was born.” Id. N.K.
explained that Kraay saw that N.K. “had too much white stuff,”2 and wiped her
vagina with a towel. Id. She also testified that Kraay “used his pointer finger . . .
and took some of our white stuff out.” Id. at 91. M.K. too testified that her
father reached inside her, although she was unsure as to whether her pants were
1 Initially, N.K. told her stepmother that she was “having sex with little boys.” Tr. p. 114. It was later determined that N.K. was referring to dreams she had been having, not actual sexual intercourse. Id. at 115. 2 It is unclear precisely what this “white stuff” refers to. However, as explained infra, M.K. was later treated for a yeast infection.
Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016 Page 3 of 19 down at the time. Tr. pp. 100-01. Kraay also demonstrated how men and
women have sex, using N.K., but both had their pants up at this time. After he
was done, Kraay instructed the girls not to tell their mother what he had done.
[7] During another incident, M.K. complained to her stepmother V.J. that her
private area was itching and burning. V.J. told Kraay about this and suggested
that they go to the hospital. Kraay gave several reasons why they should not go
to the hospital and insisted on looking at M.K. himself. Kraay, V.J., and M.K.
went into the bedroom, where Kraay instructed M.K. to remove her pants. He
then held open M.K.’s labia and asked V.J. to look inside. V.J. stated that it
looked like M.K. had a yeast infection and gave her some medicine.
[8] The girls’ mother, M.R., at first had no reason to suspect any inappropriate
behavior. Though M.K. did tell her mother at one point that she had seen her
father’s penis, M.R. assumed she had accidentally seen her father in the
bathroom. However, during the 2012-13 Christmas break, Kraay informed his
ex-wife that he had checked N.K. to see if she was still a virgin. N.K. was in
therapy due to the previous molestation by her former stepfather, and in
February of 2013, N.K. told her therapist what Kraay had done.
[9] During the subsequent investigation by Indiana Department of Child Services
(“DCS”) investigator Jessica Hernandez, Hernandez spoke with Kraay, his wife
V.J., and his ex-wife, M.R. During a telephone interview, Kraay admitted that
he and V.J. were “educating” his daughters about sex and that he wanted to
make sure that their hymens were intact. Tr. p. 37. Kraay stated that he used a
Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016 Page 4 of 19 wash cloth to wash off the vaginal area of one of his daughters and that some
mucus may have transferred to his finger. Kraay also admitted that he showed
his daughters his penis and that he had looked at M.K.’s breasts to see if she
wore the right size bra. During a subsequent face-to-face interview, Kraay told
Hernandez that he had inserted his finger into his daughters’ vaginas but again
claimed that he did so for educational purposes and did not know that this was
wrong. This time, he further admitted that he had shown his penis to the girls.
[10] The matter was then referred to the police. During a police interrogation, Kraay
again admitted that he had checked N.K. to see if her hymen was still intact.
Although he denied sticking his finger inside N.K., he admitted that he pointed
at her hymen and may have touched it. He also admitted that N.K. was “not
lying.” Ex. Vol., State’s Ex. 4. He also admitted that he had checked M.K. to
see if she had a yeast infection, that he had shown both girls his penis, and that
pre-seminal fluid may have come out of his penis. He claimed that he exposed
himself for “educational” purposes and to “kill the curiosity.” Id.
[11] On May 4, 2015, the State charged Kraay with two counts of Class A felony
child molesting, two counts of Class C felony child molesting, and Class D
felony conducting a performance harmful to minors. On July 17, 2015, Kraay
filed a motion to dismiss, based in part on the alleged vagueness of the statutes
under which he was charged. The trial court denied this motion on July 31,
2015. On August 6, 2015, the State amended the charging information to add
two more counts of Class C felony child molesting. A jury trial was held on
November 17 and 19, 2015. After the State had presented its case-in-chief,
Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016 Page 5 of 19 Kraay moved for a directed verdict based again, in part, on the alleged
vagueness of the child molesting statute. The trial court denied this motion. At
the conclusion of the trial, the jury found Kraay guilty of two counts of Class A
felony child molesting, two counts of Class C felony child molesting, and one
count of Class D felony conducting a performance harmful to minors. On
December 21, 2015, the trial court sentenced Kraay to thirty years on both
Class A felony convictions, four years on both Class C felony convictions, and
one and one-half years on the Class D felony conviction. The trial court ordered
all sentences to be served concurrently, for an aggregate term of thirty years.
Kraay now appeals.
I. Sufficiency of the Evidence
[12] Kraay first claims that the State failed to present sufficient evidence to support
his convictions. Our standard of review in reviewing claims of insufficient
evidence is well settled: we neither reweigh the evidence nor judge the
credibility of the witnesses, and we consider only the evidence most favorable to
the verdict and the reasonable inferences that can be drawn from this evidence.
Knight v. State, 42 N.E.3d 990, 993 (Ind. Ct. App. 2015). We will not disturb the
jury’s verdict if there is substantial evidence of probative value to support it. Id.
As an appellate court, we respect the jury’s exclusive province to weigh
conflicting evidence. Id.
[13] It is also well settled that a conviction for child molesting may stand on the
uncorroborated testimony of a minor witness. Smith v. State, 779 N.E.2d 111,
115 (Ind. Ct. App. 2002). The unfamiliarity of a young victim with anatomical Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016 Page 6 of 19 terms does not make her incompetent to testify when the facts are explained in
simple or childlike language which the judge and jury can understand. Id.
[14] Kraay argues that his two convictions for Class A felony child molesting were
not supported by sufficient evidence. The information charging Kraay alleged
that he “did knowingly or intentionally perform deviate sexual conduct with a
child under the age of fourteen years, to-wit, by penetrating the female sex
organ of [M.K. and N.K.] with his finger.” Appellant’s App. pp. 34-35. This
tracks the relevant statute, which defines Class A felony child molesting as “a
person at least twenty-one years of age” who, with a child under fourteen years
of age, “performs or submits to sexual intercourse or deviate sexual conduct.”
Ind. Code § 35-42-4-3(a)(1).3
[15] Kraay briefly argues that there was no proof of intercourse. This is beside the
point, as Kraay was not charged with committing child molesting by having
sexual intercourse. Instead, the State alleged that he performed deviate sexual
conduct on N.K. and M.K. At the time relevant to this appeal, “deviate sexual
conduct” was defined as “an act involving . . . the penetration of the sex organ
or anus of a person by an object.” See Ind. Code § 35-31.5-2-94(2) (2013).4
3 We refer to the versions of the statutes in effect at the time Kraay committed his crimes: 2012 and 2013. See Appellant’s App. pp. 34-35 (alleging that Kraay committed his crimes between January 1, 2012 and February 18, 2013). 4 Effective July 1, 2014, our General Assembly repealed the statute defining deviate sexual conduct and replaced it with Indiana Code section 35-31.5-2-221.5, which similarly defines “other sexual conduct” as “an act involving . . . the penetration of the sex organ or anus of a person by an object.”
Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016 Page 7 of 19 [16] Kraay argues that there was no proof that he committed deviate sexual conduct
because the evidence that he penetrated his daughters’ sex organs was
insufficient. We disagree. First, for purposes of defining deviate sexual conduct,
a finger is an “object.” Simmons v. State, 746 N.E.2d 81, 86 (Ind. Ct. App. 2001).
Moreover, with regard to the element of penetration, a detailed anatomical
description of penetration is unnecessary. Smith, 779 N.E.2d at 115. Instead,
proof of the slightest penetration is sufficient to sustain convictions for child
molesting, as the statute does not require that the vagina be penetrated, only
that the female sex organ, which includes the external genitalia, be penetrated.
Id. Thus, a conviction for child molesting will be sustained when it is apparent
from the circumstances and the victim’s limited vocabulary that the victim
described an act which involved penetration of the sex organ. Id.
[17] Here, N.K. testified that Kraay penetrated her sex organ with his finger.
Specifically, she testified that Kraay placed his finger “inside” her when he was
checking to see if she was still a virgin. Tr. p. 66. The DCS investigator testified
that Kraay admitted to her that he placed his finger in N.K.’s vagina. Kraay
also admitted during police interrogation that he touched his daughter’s hymen
when he was performing his alleged virginity check.5 From this evidence, the
jury could readily conclude that Kraay penetrated N.K.’s sex organ with his
finger. Thus, the State adequately established that Kraay performed deviate
5 See Ex. Vol., State’s Ex. 4 at 23:21 – 23:24 (video recording of police interview of Kraay, with Kraay stating, “I think I actually did touch it [N.K.’s hymen].”).
Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016 Page 8 of 19 sexual conduct on N.K. sufficient to support his conviction for Class A felony
child molesting.
[18] The same is true with regard to M.K., who testified that Kraay touched her
genitalia. M.K. testified that Kraay touched her private part with his finger and
took some “white stuff” out. When later asked to clarify whether Kraay
“reach[ed] inside, did he do that?” M.K. responded, “To me, oh, yeah.” Tr. p.
100. Again, this is sufficient to prove that Kraay’s finger penetrated M.K.’s sex
organ. Thus, there was evidence from which the jury could reasonable infer that
Kraay committed Class A felony child molesting by penetrating M.K.’s sex
organ with his finger.
[19] Kraay also claims that there was no evidence of any sexual intent on his part
when he touched N.K. and M.K. However, with regard to the two counts of
Class A felony child molesting, the State was not required to prove any sexual
intent. Our supreme court has held: “the elements of the crime of child
molesting under Ind. Code § 35-42-4-3(a) do not include the intent to arouse or
satisfy sexual desires.” D’Paffo v. State, 778 N.E.2d 798, 801 (Ind. 2002).
[20] The D’Paffo court explained its holding as follows:
We believe that the structure of Ind. Code § 35-42-4-3 and of the other crimes in the sex crimes chapter of the criminal code are best understood to include the “intent to arouse or satisfy sexual desires” element only where it is expressly set forth. What is at stake here is whether the Legislature meant to criminalize all sexual intercourse and deviate sexual conduct with children or only that performed with intent to arouse or satisfy sexual
Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016 Page 9 of 19 desires. We think it more likely that the Legislature meant to criminalize such conduct performed, for example, to perpetrate revenge or to coerce a parent to take some type of action, in addition to conduct performed to arouse or satisfy sexual desires.
Id.
[21] Acknowledging that its holding appeared to criminalize medical and personal
hygiene procedures involving penetration, the D’Paffo court set forth an
important limitation on the scope of criminal liability under the child molesting
statute:
It is well established that conviction of child molesting requires the State to prove beyond a reasonable doubt criminal intent on the part of the defendant. Where the evidence warrants an inference that an alleged penetration of the sex organ or anus of a person by an object was in furtherance of a bona fide medical or personal hygiene-related examination or procedure, we believe that [a] defendant would be entitled to an appropriate instruction as to criminal intent.
Id. at 802 (emphases added).
[22] Here, the jury was instructed regarding the requirement of intent on the part of
Kraay and that it was a defense to the crime “if you believe that the penetration
by an object was in furtherance of a bona fide medical or person hygiene-related
examination or procedure.” Appellant’s App. p. 130. The jury obviously
rejected this claim, and with good reason. The jury also heard evidence that
Kraay made his daughters touch his penis and ejaculated in front of them. This
Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016 Page 10 of 19 severely undermines his claim that he was merely checking his daughters’
genitalia for appropriate medical or personal hygiene reasons.
[23] We similarly reject Kraay’s claim that the evidence was insufficient to support
his two convictions for Class C felony child molesting, both of which were
based on Kraay having M.K. and N.K. touch his penis. See Appellant’s App. p.
41. Unlike a conviction for child molesting based on deviate sexual conduct, a
conviction for Class C felony child molesting based on fondling or touching
does require that the State prove that the defendant acted with the intent to
arouse or gratify the sexual desires of either the defendant or the child. See I.C. §
35-42-4-3(b) (“[a] person who, with a child under fourteen (14) years of age,
performs or submits to any fondling or touching, of either the child or the older
person, with intent to arouse or to satisfy the sexual desires of either the child or
the older person, commits child molesting, a Class C felony.”); see also D’Paffo,
778 N.E.2d at 800-01 (noting the sexual desire intent requirement in subsection
(b) of the child molesting statute).
[24] Here, Kraay told his daughters to touch his penis, and Kraay subsequently
masturbated and ejaculated in their presence. This adequately establishes that
he acted with the intent to arouse or satisfy his own sexual desires. In short, the
State presented evidence sufficient to support all of Kraay’s convictions.6
6 Kraay presents no cogent argument regarding the sufficiency of the evidence supporting his conviction for Class D felony conducting a performance harmful to minors.
Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016 Page 11 of 19 II. Vagueness
[25] Kraay also claims that subsection 3(a) of the child molesting statute, because it
requires no sexual intent on the part of a defendant, is unconstitutionally
vague.7 When a statute is challenged as unconstitutional, we start with a
presumption that the statute is constitutional. Baumgartner v. State, 891 N.E.2d
1131, 1136 (Ind. Ct. App. 2008). The burden is on the defendant to rebut this
presumption. Id. When addressing a claim that a statute is impermissibly vague,
we must resolve all reasonable doubts in favor of the statute’s constitutionality.
Id. We will not conclude that a statute is unconstitutionally vague so long as
individuals of ordinary intelligence would comprehend it adequately to inform
them of the proscribed conduct. Id. “The statute need only inform the
individual of the generally proscribed conduct; it need not list with exactitude
each item of prohibited conduct.” Id.
[26] A statute may also be impermissibly vague if its terms invite arbitrary or
discriminatory enforcement. Id. There must be something in the criminal statute
in question to indicate where the line is to be drawn between trivial and
substantial things, so that erratic arrests and convictions for trivial acts and
omissions will not occur. Id. However, a statute is void for vagueness only if it
is vague as applied to the precise circumstances of the present case; the
7 Because Kraay filed a pre-trial motion to dismiss on grounds of vagueness, he has preserved this issue for appeal. See Slone v. State, 912 N.E.2d 875, 878 (Ind. Ct. App. 2009) (noting that the failure to file a proper motion to dismiss raising a constitutional challenge to a criminal statute generally waives the issue on appeal), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016 Page 12 of 19 defendant is not at liberty to devise hypothetical situations which might
demonstrate vagueness. Id.
[27] Kraay claims that the child molesting statute is vague because it is unclear as to
what acts are criminalized and what acts are not. We disagree. The statutory
language itself is straightforward and unambiguous: “a person who, with a
child under fourteen (14) years of age, performs or submits to . . . deviate sexual
conduct commits child molesting.” I.C. § 35-42-4-3(a). And deviate sexual
conduct is clearly defined as “an act involving . . . the penetration of the sex
organ or anus of a person by an object.” Ind. Code § 35-31.5-2-94(2) (2013).
Thus, anyone who penetrates the sex organ or anus of a child under the age of
fourteen with an object commits child molesting. See D’Paffo, 778 N.E.2d at
801-02. We do not find this to be vague.
[28] Kraay attempts to introduce vagueness into the statute by arguing that it is
uncertain to whom the “bona fide medical or personal hygiene-related
examination or procedure” exception or defense set forth in D’Paffo is available.
See Appellant’s Br. p. 18 (“Do Kraay’s actions fit within the medical/personal
hygiene exceptions? If they do, are some or all other family members excluded
from the exceptions? Are the defenses available only to doctors? Nurses?
Physician assistants? Therapists? Emergency personnel? Teachers?”). We need
not decide these hypotheticals. See Baumgartner, 891 N.E.2d at 1136. The proper
question is whether the statute is vague as applied to the precise circumstances
of the present case. Id. We think not.
Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016 Page 13 of 19 [29] The “bona fide medical or personal hygiene” defense was considered and
rejected by the jury in the present case. Kraay had no bona fide reason to place
his fingers in his daughters’ sex organs. The fact that the jury rejected his
defense does not render the statute unconstitutionally vague.
III. Severance
[30] Kraay next argues that the trial court erred in denying his motion to sever the
charges against him. Specifically, he claims that the charges involving N.K.
should have been severed from the charges involving M.K.
[31] Under the controlling statute:
Two (2) or more offenses may be joined in the same indictment or information, with each offense stated in a separate count, when the offenses: (1) are of the same or similar character, even if not part of a single scheme or plan; or
(2) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.
Ind. Code § 35-34-1-9(a).
[32] Furthermore, if “two (2) or more offenses have been joined for trial in the same
indictment or information solely on the ground that they are of the same or
similar character, the defendant shall have a right to a severance of the
offenses.” Ind. Code § 35-34-1-11(a) (emphases added).
Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016 Page 14 of 19 [33] Thus, if two or more offenses have been joined solely under subsection 9(a)(1),
then the defendant has the right to severance, but if the offenses were joined
under subsection 9(a)(2), the defendant is not entitled to severance. See Pierce v.
State, 29 N.E.3d 1258, 1265 (Ind. 2015). Subsection 9(a)(1) refers to the nature
of the charged offenses, whereas subsection 9(a)(2) refers to the operative facts
underlying those charges. Id.
[34] In some instances, crimes that are of the same or similar character may also be
based a series of connected acts. Id. To determine whether offenses warrant
joinder under subsection (9)(a)(2), courts should ask whether the operative facts
establish a pattern of activity beyond mere satisfaction of the statutory elements.
Id. It is well-settled that a common modus operandi and motive can sufficiently
link crimes committed on different victims. Id. But establishing the defendant’s
unique method of committing the crimes is not the exclusive way of showing
his acts are connected together. Id. Offenses can also be linked by a defendant's
efforts to take advantage of his special relationship with the victims. Id. A
common relationship between the defendant and the victims may even result in
an interconnected police investigation into the crimes, producing overlapping
evidence. Id.
[35] In the present case, Kraay argues that the charges against him were joined
solely on the ground that they were of the same or similar character and that he
was therefore entitled to severance of the charges as a matter of right. The State
claims that Kraay’s charges were joined because they were “based on the same
conduct or on a series of acts connected together or constituting parts of a single
Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016 Page 15 of 19 scheme or plan” under subsection 9(a)(2) and that Kraay is not entitled to
severance. We agree with the State.
[36] Kraay’s claim that the charges against him were of the same or similar
character has some merit. However, we cannot say that the offenses were joined
solely on that ground, which would require severance. As in Pierce, “the
incidents here share much more than their criminal category.” 29 N.E.3d at
1266. Indeed, as in Pierce, Kraay was not charged with unrelated child
molestations; they were connected by his victims, his method, and his motive.
See id. Kraay exploited his position as a caregiving father by molesting his own
daughters. See id. (noting that defendant exploited his position of a trusted
grandfather or great uncle by molesting young female family members in his
care). N.K.’s allegations against her father initiated the investigation which
uncovered the molestation against both girls. See id. (noting that allegations
made by one victim led police to identify other victims). As in Pierce, much of
the evidence overlapped, as at least one of the incidents occurred when both
girls were present. See id. Kraay’s method was also fairly consistent: he framed
his molestation as “educational” or health-related. See id. His motive was also
apparent: to fulfill his deviant sexual desires. To quote the court in Pierce, “[w]e
decline to require separate trials as of right where the defendant committed the
same crime, in substantially the same way, against similar victims.” Id.
[37] Thus, the charges against Kraay were not joined solely because they were of a
same or similar character. They were also joined because they were based on the
same conduct or on a series of acts connected together or constituting parts of a
Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016 Page 16 of 19 single scheme or plan. Accordingly, Kraay did not have a right to severance, and
the trial court did not err in denying his motion to sever the offenses.
IV. Sentencing
[38] Lastly, Kraay claims that his thirty-year aggregate sentence is inappropriate.
Even if a trial court acts within its lawful discretion in imposing a sentence,
Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent
appellate review and revision of that sentence. Trainor v. State, 950 N.E.2d 352,
355-56 (Ind. Ct. App. 2011). This authority is implemented via Indiana
Appellate Rule 7(B), which provides that an appellate court “may revise a
sentence authorized by statute if, after due consideration of the trial court’s
decision, the Court finds that the sentence is inappropriate in light of the nature
of the offense and the character of the offender.” However, “we must and
should exercise deference to a trial court's sentencing decision, both because
Rule 7(B) requires us to give ‘due consideration’ to that decision and because
we understand and recognize the unique perspective a trial court brings to its
sentencing decisions.” Id. at 355-56.
[39] Although we have the power to review and revise sentences, “[the principal role
of appellate review should be to attempt to leaven the outliers, and identify
some guiding principles for trial courts and those charged with improvement of
the sentencing statutes, but not to achieve a perceived ‘correct’ result in each
case.” Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011) (citing
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)). The burden is on the
Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016 Page 17 of 19 defendant to persuade us that his sentence is inappropriate. Trainor, 950 N.E.2d
at 356 (citing Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007)).
[40] Kraay was convicted of two counts of Class A felony child molesting. The
sentencing range for a Class A felony is twenty to fifty years, with the advisory
sentence being thirty years. Ind. Code § 35-50-2-4. The trial court sentenced
Kraay to the thirty-year advisory sentence on both Class A felony convictions
and ordered all sentences to be served concurrently, for an aggregate term of
thirty years. Because the advisory sentence is the starting point our General
Assembly has selected as an appropriate sentence for the crime committed, the
defendant bears a particularly heavy burden in persuading us that his sentence
is inappropriate when the trial court imposes the advisory sentence. Trainor, 950
N.E.2d at 356.
[41] The nature of Kraay’s offenses support the trial court’s decision to impose the
advisory sentence of thirty years. Kraay inserted his finger into two of his
daughters’ sex organs under the pretense of “education” or medical examination.
He not only exposed his penis to the girls, but he told them to touch it and
ejaculated while they were watching, telling them that this “sperm” was used to
make babies. He then demonstrated how to have sex with N.K. That there was
no apparent physical harm to his daughters does not lessen that Kraay betrayed
the trust of his daughters and abused his position of authority over them.
[42] Kraay’s character also does nothing to persuade us that his advisory sentence is
inappropriate. Although Kraay does not have an extensive criminal history, the
Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016 Page 18 of 19 facts surrounding his prior conviction for criminal trespass, as revealed by the
testimony of the victim of the trespass at the sentencing hearing, demonstrate
Kraay’s deviant character. The victim of Kraay’s prior trespass conviction
explained that Kraay had sexually harassed her and even grabbed her breasts
and buttocks. Despite being told that she was not interested in Kraay’s
advances, Kraay went into the victim’s home and rummaged through the
drawers containing her underwear.
[43] Giving due deference to the trial court’s sentencing decision, and considering the
nature of Kraay’s offenses and his character, we conclude that Kraay has not met
his burden of showing that his thirty-year aggregate sentence is inappropriate.
Conclusion
[44] The State presented sufficient evidence to support Kraay’s convictions, and the
child molesting statute is not unconstitutionally vague as applied to the facts of
this case. Because the charges against Kraay were not joined solely on the
grounds that they were of the same or similar character, Kraay was not entitled
to severance of the charges. Also, Kraay’s thirty-year aggregate sentence is not
inappropriate in light of the nature of the offense and the character of the
offender.
[45] Affirmed.
Vaidik, C.J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016 Page 19 of 19