MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 09 2017, 9:15 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Gregory L. Fumarolo Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Contrell Hambright, June 9, 2017 Appellant-Defendant, Court of Appeals Case No. 02A03-1612-CR-2947 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff. Judge Trial Court Cause No. 02D04-1606-F4-47
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2947 | June 9, 2017 Page 1 of 7 Case Summary and Issue [1] Following a bench trial, Contrell Hambright was convicted of child molesting, a
Level 4 felony, and the trial court sentenced him to twelve years in the Indiana
Department of Correction. Hambright raises one issue on appeal: whether his
sentence is inappropriate in light of the nature of the offense and his character.
Concluding his sentence is not inappropriate, we affirm.
Facts and Procedural History [2] On January 14, 2016, Hambright visited Kristina Russell’s home. Russell lived
with her two daughters, K.H. and P.R. Hambright is the father of K.H. but not
P.R. Hambright spent the evening with Russell, K.H., and P.R. Russell
mentioned she was donating plasma in the morning and Hambright asked if he
could spend the night and watch the children while Russell was gone. Russell
agreed. Russell, K.H., and P.R. had separate bedrooms. When they withdrew
to their rooms for the night, Hambright fell asleep on the living room couch.
[3] Russell left early the next morning to donate plasma. After Russell left,
Hambright entered K.H.’s room, where K.H. was laying on her bed on her
stomach. Hambright began massaging K.H.’s buttocks over her pajama pants.
Hambright then pulled down K.H.’s pajama pants and underwear and
continued massaging her buttocks. Soon after, Hambright placed his leg over
K.H.’s leg such that his “private area” touched her buttocks. Transcript,
Volume 2 at 19. Hambright tried to “go down farther, closer to [K.H.’s] private
Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2947 | June 9, 2017 Page 2 of 7 area, but [K.H.] kept [her] legs tightly shut.” Id. K.H. screamed out for P.R.
When P.R. did not respond, K.H. started crying. Hambright asked K.H. what
was wrong and K.H. did not respond. Hambright continued pushing toward
K.H.’s private area for another five minutes before leaving the room.
[4] K.H. immediately texted Russell to ask when she was coming home. Russell
responded she was on her way. K.H. locked herself in the bathroom and called
Russell to ask if she and P.R. could go outside. Russell approved. K.H. and
P.R. waited outside until Russell arrived, at which point K.H. told Russell she
wanted Hambright to leave and not visit anymore. Russell asked what was
wrong and K.H. informed Russell that Hambright touched her inappropriately.
Russell took K.H. to the hospital and Child Advocacy Center, where a sexual
assault examination was performed. Perineum and external genital swabs
taken from K.H. and samples from K.H.’s underwear tested positive for
seminal fluid matching Hambright’s DNA profile.
[5] The State charged Hambright with child molesting, a Level 4 felony. At trial,
Hambright claimed he had no memory of the events because he blacked out
from smoking marijuana and spice, and ingested Xanax and OxyContin hours
before entering K.H.’s room. He also reported being diagnosed with a learning
disability in 1989 and bipolar disorder in 2013. The trial court found
Hambright guilty as charged.
[6] At the sentencing hearing, the trial court rejected Hambright’s proffered
mitigating factors of diminished mental capacity and voluntary intoxication.
Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2947 | June 9, 2017 Page 3 of 7 The trial court stated there was “no credible evidence in the record that support
either of those as being a mitigator or causing the offense.” Tr., Vol. 2 at 91.
As aggravating factors, the trial court noted the following: Hambright’s criminal
history, including one juvenile adjudication, eight misdemeanors, and five prior
felony convictions; Hambright’s failed rehabilitation efforts, including having
suspended sentences revoked twice and probation revoked three times;
Hambright committed the present offense while serving a sentence on home
detention; and Hambright held a position of trust since the victim was his
daughter. The trial court also noted Hambright has eight children with seven
different women and owed $10,000 in child support arrearage. The trial court
sentenced Hambright to twelve years in the Department of Correction. This
appeal ensued.
Discussion and Decision I. Standard of Review [7] Indiana Appellate Rule 7(B) provides, “The 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.” Whether we regard a sentence as
inappropriate turns on “our sense of 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.
Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2947 | June 9, 2017 Page 4 of 7 2008). It is the defendant’s burden to persuade this court that his or her
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
II. Hambright’s Sentence [8] The trial court found Hambright guilty of child molesting, a Level 4 felony.
The sentencing range for a Level 4 felony is two to twelve years, with an
advisory sentence of six years. Ind. Code § 35-50-2-5.5. Hambright contends
his twelve-year sentence is inappropriate because he is not the “worst of the
worst” offenders. Brief of Appellant at 13.
[9] Our supreme court has observed that “maximum possible sentences are
generally most appropriate for the worst offenders.” Buchanan v. State, 767
N.E.2d 967, 973 (Ind. 2002) (citation omitted). However, “[d]espite the nature
of any particular offense and offender, it will always be possible to identify or
hypothesize a significantly more despicable scenario.” Id. Therefore, when
evaluating the appropriateness of the sentence, we should “concentrate less on
comparing the facts of this case to others, whether real or hypothetical, and
more on focusing on the nature, extent, and depravity of the offense for which
the defendant is being sentenced, and what it reveals about the defendant’s
character.” Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans.
denied.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 09 2017, 9:15 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Gregory L. Fumarolo Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Contrell Hambright, June 9, 2017 Appellant-Defendant, Court of Appeals Case No. 02A03-1612-CR-2947 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff. Judge Trial Court Cause No. 02D04-1606-F4-47
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2947 | June 9, 2017 Page 1 of 7 Case Summary and Issue [1] Following a bench trial, Contrell Hambright was convicted of child molesting, a
Level 4 felony, and the trial court sentenced him to twelve years in the Indiana
Department of Correction. Hambright raises one issue on appeal: whether his
sentence is inappropriate in light of the nature of the offense and his character.
Concluding his sentence is not inappropriate, we affirm.
Facts and Procedural History [2] On January 14, 2016, Hambright visited Kristina Russell’s home. Russell lived
with her two daughters, K.H. and P.R. Hambright is the father of K.H. but not
P.R. Hambright spent the evening with Russell, K.H., and P.R. Russell
mentioned she was donating plasma in the morning and Hambright asked if he
could spend the night and watch the children while Russell was gone. Russell
agreed. Russell, K.H., and P.R. had separate bedrooms. When they withdrew
to their rooms for the night, Hambright fell asleep on the living room couch.
[3] Russell left early the next morning to donate plasma. After Russell left,
Hambright entered K.H.’s room, where K.H. was laying on her bed on her
stomach. Hambright began massaging K.H.’s buttocks over her pajama pants.
Hambright then pulled down K.H.’s pajama pants and underwear and
continued massaging her buttocks. Soon after, Hambright placed his leg over
K.H.’s leg such that his “private area” touched her buttocks. Transcript,
Volume 2 at 19. Hambright tried to “go down farther, closer to [K.H.’s] private
Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2947 | June 9, 2017 Page 2 of 7 area, but [K.H.] kept [her] legs tightly shut.” Id. K.H. screamed out for P.R.
When P.R. did not respond, K.H. started crying. Hambright asked K.H. what
was wrong and K.H. did not respond. Hambright continued pushing toward
K.H.’s private area for another five minutes before leaving the room.
[4] K.H. immediately texted Russell to ask when she was coming home. Russell
responded she was on her way. K.H. locked herself in the bathroom and called
Russell to ask if she and P.R. could go outside. Russell approved. K.H. and
P.R. waited outside until Russell arrived, at which point K.H. told Russell she
wanted Hambright to leave and not visit anymore. Russell asked what was
wrong and K.H. informed Russell that Hambright touched her inappropriately.
Russell took K.H. to the hospital and Child Advocacy Center, where a sexual
assault examination was performed. Perineum and external genital swabs
taken from K.H. and samples from K.H.’s underwear tested positive for
seminal fluid matching Hambright’s DNA profile.
[5] The State charged Hambright with child molesting, a Level 4 felony. At trial,
Hambright claimed he had no memory of the events because he blacked out
from smoking marijuana and spice, and ingested Xanax and OxyContin hours
before entering K.H.’s room. He also reported being diagnosed with a learning
disability in 1989 and bipolar disorder in 2013. The trial court found
Hambright guilty as charged.
[6] At the sentencing hearing, the trial court rejected Hambright’s proffered
mitigating factors of diminished mental capacity and voluntary intoxication.
Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2947 | June 9, 2017 Page 3 of 7 The trial court stated there was “no credible evidence in the record that support
either of those as being a mitigator or causing the offense.” Tr., Vol. 2 at 91.
As aggravating factors, the trial court noted the following: Hambright’s criminal
history, including one juvenile adjudication, eight misdemeanors, and five prior
felony convictions; Hambright’s failed rehabilitation efforts, including having
suspended sentences revoked twice and probation revoked three times;
Hambright committed the present offense while serving a sentence on home
detention; and Hambright held a position of trust since the victim was his
daughter. The trial court also noted Hambright has eight children with seven
different women and owed $10,000 in child support arrearage. The trial court
sentenced Hambright to twelve years in the Department of Correction. This
appeal ensued.
Discussion and Decision I. Standard of Review [7] Indiana Appellate Rule 7(B) provides, “The 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.” Whether we regard a sentence as
inappropriate turns on “our sense of 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.
Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2947 | June 9, 2017 Page 4 of 7 2008). It is the defendant’s burden to persuade this court that his or her
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
II. Hambright’s Sentence [8] The trial court found Hambright guilty of child molesting, a Level 4 felony.
The sentencing range for a Level 4 felony is two to twelve years, with an
advisory sentence of six years. Ind. Code § 35-50-2-5.5. Hambright contends
his twelve-year sentence is inappropriate because he is not the “worst of the
worst” offenders. Brief of Appellant at 13.
[9] Our supreme court has observed that “maximum possible sentences are
generally most appropriate for the worst offenders.” Buchanan v. State, 767
N.E.2d 967, 973 (Ind. 2002) (citation omitted). However, “[d]espite the nature
of any particular offense and offender, it will always be possible to identify or
hypothesize a significantly more despicable scenario.” Id. Therefore, when
evaluating the appropriateness of the sentence, we should “concentrate less on
comparing the facts of this case to others, whether real or hypothetical, and
more on focusing on the nature, extent, and depravity of the offense for which
the defendant is being sentenced, and what it reveals about the defendant’s
character.” Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans.
denied.
[10] As to the nature of the offense, Hambright admits “the fondling of one’s own
child is a ‘horrendous’ offense,” but points to his voluntary intoxication to
explain how he could commit such an offense. Br. of Appellant at 17.
Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2947 | June 9, 2017 Page 5 of 7 However, as the trial court noted, Hambright provided no credible evidence in
regard to his intoxication. Hambright molested his own daughter, and
continued to do so for five minutes after she screamed for her sister and began
crying. With these facts in mind, we cannot say Hambright’s sentence is
inappropriate in light of the nature of his offense.
[11] As to the character of the offender, Hambright argues his criminal history,
while extensive, mostly consists of driving and substance abuse offenses.
Hambright also contends his mental health and history of substance abuse
should be considered.
[12] “The significance of a defendant’s criminal history varies based on the gravity,
nature and number of prior offenses as they relate to the current offense.”
Harris v. State, 897 N.E.2d 927, 930 (Ind. 2008). At age thirty-two, Hambright’s
criminal history is lengthy, including a juvenile adjudication for marijuana
possession in 2001, three misdemeanor driving convictions for driving without
a license from 2003 to 2004, a misdemeanor conviction for criminal trespass in
2004, a felony conviction for being an habitual traffic violator in 2006, a
misdemeanor conviction for carrying a handgun without a license in 2010, a
misdemeanor conviction for resisting law enforcement in 2011, a felony
conviction for possession of a controlled substance in 2012, a felony conviction
for domestic battery committed in the presence of a child in 2013, a felony
conviction for operating a motor vehicle after the forfeiture of his license for life
and a misdemeanor conviction for possession of marijuana in 2015, and a
felony conviction for failure to return to lawful detention in 2016. Although
Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2947 | June 9, 2017 Page 6 of 7 Hambright’s criminal history includes no sex offenses, his criminal behavior has
increased in depravity from driving offenses to domestic battery to the current
offense of child molesting.
[13] Further, Hambright owes $10,000 in child support arrearage despite only being
ordered to pay child support for four of his eight children, all of whom live with
their mothers. Hambright held a position of trust as K.H.’s father and violated
that trust by touching her inappropriately. Hambright’s failure to act as a father
and appropriately care for his children reflects poorly on his character. In sum,
Hambright’s sentence is not inappropriate in light of the nature of the offense
and his character.
Conclusion [14] We conclude Hambright’s sentence is not inappropriate and we therefore affirm
his sentence.
[15] Affirmed.
Vaidik, C.J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2947 | June 9, 2017 Page 7 of 7