Cory Alan Neal v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 21, 2015
• Docket: 85A02-1412-CR-839
• Status: Published

Opinion

MEMORANDUM DECISION Jul 21 2015, 10:01 am

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 ATTORNEYS FOR APPELLEE Jerry T. Drook Gregory F. Zoeller Marion, Indiana Attorney General of Indiana

Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Cory Alan Neal, July 21, 2015

Appellant-Defendant, Court of Appeals Cause No. 85A02-1412-CR-839 v. Appeal from the Wabash Circuit Court Cause No. 85C01-1310-FA-889 State of Indiana, Appellee-Plaintiff. The Honorable Robert R. McCallen, III, Judge

Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 85A02-1412-CR-839 | July 21, 2015 Page 1 of 5 Case Summary [1] Cory Neal appeals his forty-year sentence for Class A felony child molesting.

We affirm.

Issue [2] Neal raises one issue, which we restate as whether his sentence is inappropriate.

Facts [3] Neal is the father of A.N., who was born in July 2005. In 2013, A.N. reported

that Neal had touched her inappropriately. During the course of the

investigation, Neal admitted that he put his penis in A.N.’s mouth on two

occasions, that she touched his penis with her hands, and that he watched

pornography with her. He stated that he first put his penis in A.N.’s mouth

when she was three or four years old.

[4] On October 31, 2013, the State charged Neal with Class A felony child

molesting and Class B felony incest. At trial, then nine-year-old A.N. described

extensive sexual conduct on several occasions between Neal and her, including

vaginal intercourse, anal sex, and oral sex. A jury found Neal guilty as

charged. Because of double jeopardy concerns, Neal was only convicted of

Class A felony child molesting.

[5] In sentencing Neal, the trial court considered as aggravating that Neal failed to

accept responsibility or show remorse despite admitting to the conduct, that he

has a minor criminal history, that he unsuccessfully completed probation in the

Court of Appeals of Indiana | Memorandum Decision 85A02-1412-CR-839 | July 21, 2015 Page 2 of 5 past, that a reduced or suspended sentence would depreciate the seriousness of

the offense, and that A.N. was his daughter. The trial court found no

mitigators, and sentenced Neal to forty years executed. Neal now appeals.

Analysis [6] Neal argues that his forty-year executed sentence is inappropriate and that it

should be reduced and/or include a term of probation. Indiana Appellate Rule

7(B) permits us to 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. Although Appellate Rule 7(B) does not require us to be “extremely”

deferential to a trial court’s sentencing decision, we still must give due

consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.

App. 2007). We also understand and recognize the unique perspective a trial

court brings to its sentencing decisions. Id. “Additionally, a defendant bears

the burden of persuading the appellate court that his or her sentence is

inappropriate.” Id.

[7] The principal role of Appellate Rule 7(B) 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.” Cardwell v. State, 895 N.E.2d 1219, 1225

(Ind. 2008). We “should focus on the forest—the aggregate sentence—rather

than the trees—consecutive or concurrent, number of counts, or length of the

Court of Appeals of Indiana | Memorandum Decision 85A02-1412-CR-839 | July 21, 2015 Page 3 of 5 sentence on any individual count.” Id. Whether a sentence is inappropriate

ultimately 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. Id. at 1224. When reviewing the appropriateness of a sentence

under Appellate Rule 7(B), we may consider all aspects of the penal

consequences imposed by the trial court in sentencing the defendant, including

whether a portion of the sentence was suspended. Davidson v. State, 926 N.E.2d

1023, 1025 (Ind. 2010).

[8] Regarding the nature of the offense, Neal acknowledges that A.N. was his very

young daughter with whom he held a position of trust. Nevertheless, he

contends that he did not force or threaten physical harm to A.N. and that the

medical examination supported his theory that no sexual intercourse occurred.

We simply are not persuaded that the nature of the offense, even if limited to

oral sex, warrants a reduction of his forty-year sentence when, by Neal’s own

admission, he engaged in oral sex with his daughter when she was three or four

and again when she was older.

[9] Regarding the character of the offender, Neal argues that he was thirty-one

when he was charged with the current offense and before that had only been

convicted of misdemeanor possession of marijuana and alcohol in 2001 and

misdemeanor check deception in 2006. Although Neal’s criminal history is not

significant, it is not non-existent. Further, the presentence investigation report

shows that Neal had used marijuana daily since he was eighteen and had used

methamphetamine multiple times a week since he was twenty-seven. Neal also

Court of Appeals of Indiana | Memorandum Decision 85A02-1412-CR-839 | July 21, 2015 Page 4 of 5 used opiates two to three times a week. This ongoing drug abuse taken with his

criminal history indicates a pattern of disregard for the law.

[10] Moreover, although Neal admitted to engaging in oral sex with A.N., he

insisted in taking his case to trial whereby nine-year-old A.N. had to testify

against her father in graphic detail. This shows Neal’s lack of remorse and

failure to accept responsibility for his crime. The presentence investigation

report indicated that, because of Neal’s failure to accept responsibility, he is not

an appropriate candidate for a community-based sex offender treatment

program, which would be a requirement of probation. Based on the nature of

the offense and character of the offender, we are not convinced that Neal’s

sentence is inappropriate or that a portion of his sentence should be suspended

to probation.

Conclusion [11] Neal has not established that his forty-year executed sentence is inappropriate.

[12] Affirmed.

Riley, J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 85A02-1412-CR-839 | July 21, 2015 Page 5 of 5