MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 09 2020, 9:28 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 Bruce W. Graham Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana Benjamin J. Shoptaw Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
David Alan Love, March 9, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1844 v. Appeal from the Tippecanoe Circuit Court State of Indiana, The Honorable Sean M. Persin, Appellee-Plaintiff. Judge Trial Court Cause No. 79C01-1804-F1-3
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020 Page 1 of 21 STATEMENT OF THE CASE [1] Appellant-Defendant, David Love (Love), appeals his convictions and sentence
for two Counts of child molesting by sexual intercourse, Level 1 felonies, Ind.
Code § 35-42-4-3(a)(1); and one Count of child molesting by other sexual
conduct, a Level 1 felony, I.C. § 35-42-4-3(a)(1).
[2] We affirm.
ISSUES [3] Love presents three issues on appeal which we restate as:
(1) Whether the prosecutor committed misconduct amounting to fundamental error when she argued to the jury that Love could be convicted based solely on the victims’ testimony;
(2) Whether the trial court erred in tendering certain final instructions; and
(3) Whether Love’s sentence is inappropriate in light of the nature of his offenses and his character.
FACTS AND PROCEDURAL HISTORY [4] Amanda Love (Amanda) is the mother of two daughters, M.B. and D.B., and a
son, N.B. (collectively, the Children). Amanda divorced the Children’s father
in 2009. Amanda met Love online in 2012. In March 2013, Amanda moved
into Love’s mobile home in West Lafayette, Indiana. The Children moved in
with Amanda and Love in May 2013, when M.B. was seven years old, N.B.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020 Page 2 of 21 was six years old, and D.B. was four years old. The Children came to call Love
their dad. Love would care for the Children when Amanda was not at home.
Amanda has been diagnosed with a learning disability. All three of the
Children are learning delayed and perform below grade level. The Children
often do not understand what is being told to them and require multiple
explanations before comprehending.
[5] Starting approximately one year after the Children had moved into Love’s
home, Love began molesting M.B. Love inserted his penis into M.B.’s vagina,
anus, and mouth. Love subjected M.B. to sexual intercourse multiple times,
and he had anal intercourse with her on more than one occasion. Love also
inserted his fingers inside M.B.’s vagina, and he directed M.B. to masturbate
him. At bedtime, Love would often come into the bedroom that M.B. shared
with D.B., climb into M.B.’s top bunk, and touch M.B.’s chest and genitals.
These offenses were an everyday occurrence for M.B., and they often happened
when Amanda was at work. M.B. did not tell anyone about the offenses
because she was afraid that she would be in trouble and that Amanda would be
angry at her. Love would take M.B. for meals alone, tell M.B. that she was
beautiful, and called her “my love.” (Transcript Vol. IV, p. 24). Love last
performed sexual intercourse on M.B. when she was twelve years old.
[6] Starting when N.B. was eight years old, Love subjected N.B. to anal
intercourse. Although N.B. was unsure how many times it had happened, he
was sure that it had happened more than once. This would often occur at night
when N.B. was trying to sleep, and it hurt “really bad.” (Tr. Vol. II, p. 246).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020 Page 3 of 21 Love had N.B. fellate him, and Love fellated N.B. Love also had N.B.
masturbate him to ejaculation. N.B. did not report the offenses because he was
afraid of Love, and Love had told him not to tell. N.B. was eleven years old the
last time Love molested him.
[7] Starting when D.B. was around the age of eight, Love began subjecting D.B. to
vaginal and anal intercourse. This would occur in Love’s bedroom and in
D.B.’s bedroom when Amanda was not at home. Love also fondled D.B.’s
chest and buttocks. Love also showed the Children pornography that he
accessed on his cell phone.
[8] In March of 2018 when the Children were on spring break, Amanda asked
M.B. if anyone had ever touched her inappropriately. M.B. became hysterical
and reported what Love had done. When asked the same question, D.B. also
disclosed being molested. N.B. initially denied that anything had happened to
him because he continued to be afraid of Love, but he later reported that Love
had molested him. Amanda alerted law enforcement after M.B. and D.B. first
reported. Amanda and the Children did not return to Love’s home. When
interviewed by law enforcement, Love said that he would cuddle with M.B. in
her bed and talk to her about sexual matters, among other things. Love also
related that once in 2016 when he was sleeping with M.B. in her bed, he awoke
and found M.B. holding his erect penis. According to Love, after this incident,
he stopped spending time with M.B. in her bed, but later started again at her
insistence.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020 Page 4 of 21 [9] On April 4, 2018, the State filed an Information, charging Love with offenses
against M.B. and D.B.—two Counts of Level 1 felony child molesting, two
Counts of Level 4 felony child molesting, and two Counts of Level 6 felony
performing sexual conduct in the presence of a minor. After N.B. reported and
plea negotiations lapsed, on September 6, 2018, the State filed an amended
Information, charging Love with three additional Counts of Level 1 felony
child molesting of M.B., one Count of Class A felony child molesting of M.B.,
three additional Counts of Level 1 felony child molesting of D.B., three Counts
of Level 1 felony child molesting of N.B., and one Count of Level 4 felony child
molesting of N.B. Prior to trial, the trial court granted the State’s motion to
dismiss two of the Level 1 felony charges of molesting M.B.
[10] On May 14, 2019, the trial court convened Love’s three-day jury trial. The
Children testified regarding the offenses. M.B. testified that she had witnessed
Love touch D.B.’s genitals. D.B. testified that she had witnessed Love subject
M.B. to sexual intercourse. N.B. related that on one occasion, Love called
N.B. into M.B.’s bedroom to watch Love subject M.B. to anal intercourse.
N.B. had also witnessed M.B. resist, attempt to push Love away, and scream in
pain on another occasion that Love subjected M.B. to sexual intercourse.
[11] Love’s biological son, C.L., who would visit at Love’s home, related that he
had observed Love kissing M.B. and D.B. using his tongue, which made C.L.
uncomfortable. C.L. had also seen M.B. rubbing her foot against Love’s
testicles, which Love did not always stop her from doing. C.L. observed Love
playing a game with M.B. and D.B. which involved grabbing the girls’ chest, a
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020 Page 5 of 21 game that he did not play with C.L. or N.B. Text messages between M.B. and
Love were admitted into evidence in which the two argued about who loved
whom more, Love told M.B. “I Will Always Love You,” and, after M.B. sent
him a selfie, Love responded, “There’s my pretty girl,” and “Wow . . . Tell me
how you really feel about me[.]” (Exh. 60, Exh. Vol. I, pp. 168-69).
[12] The State proffered the two following final instructions:
Proof of “penetration” is sufficient where the slightest penetration occurred to the external genitalia of the female sexual organ, vagina, or anus.
When other sexual conduct is charged alleging the penetration of the sex organ or anus of a person by an object, the law holds that a finger is an “object.”
(Appellant’s App. Vol. II, pp. 120, 121). Love’s counsel reviewed the proposed
instructions, and, when asked by the trial court if Love had any objection to the
State’s proposed instruction, Love’s counsel responded, “No.” (Tr. Vol. IV, p.
85).
[13] During her closing argument, the prosecutor remarked twice to the jury that,
according to Indiana law, it could convict Love based solely on the testimony
of the victims. The prosecutor also once argued that the jury could convict
based on the testimony of the victims alone, without referring to the state of the
law in Indiana. Love’s counsel did not object to this argument or move for a
mistrial. Love’s counsel argued in his own closing remarks that, when it had no
physical evidence corroborating the crimes, the State always emphasized that a
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020 Page 6 of 21 defendant could be convicted solely on a victim’s testimony. Among the trial
court’s final instructions to the jury were the “proof of penetration” and “finger
as object” instructions.
[14] The jury found Love not guilty of the Class A felony child molesting charge as
to M.B. and not guilty of one of the Level 1 felony child molesting charges as to
D.B. The jury found Love guilty of the remaining nine Level 1 felonies, two
Level 4 felonies, and two Level 6 felonies.
[15] The presentence investigation report filed with the trial court revealed that Love
had one prior conviction in 2008 for Class A misdemeanor domestic battery. A
risk assessment done by the probation department placed Love in the low risk
category to reoffend. Love had graduated from high school and attended some
college. Love had been employed for seventeen years at the same business, and
his employer provided a character reference. Love reported previously raising
six other children without incident, and he reported having no issues with
substance or alcohol abuse.
[16] In her letter to the trial court submitted for sentencing, Amanda related that, as
a result of Love’s offenses, the Children experienced difficulty sleeping, had
nightmares, and exhibited anger and behavioral issues. Amanda no longer
trusted anyone with the Children. The whole family was in counseling. M.B.,
N.B., and D.B. wrote the trial court that they hoped that Love would never be
free again. M.B. and N.B. felt that Love had ruined their lives, and D.B.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020 Page 7 of 21 wanted Love to “stay in jail forever so he doesn’t do it to anyone else.”
(Appellant’s Conf. App. Vol. III, p. 62).
[17] On July 19, 2019, the trial court conducted Love’s sentencing hearing. Citing
double jeopardy concerns, the trial court declined to enter judgment of
conviction on all the jury’s verdicts apart from one Level 1 felony conviction for
Love having sexual intercourse with M.B., one Level 1 felony conviction for
Love having sexual intercourse with D.B., and one Level 1 felony conviction
for Love engaging in other sexual conduct with N.B. involving Love’s penis
and N.B.’s anus. The trial court found as a significant aggravating
circumstance that Love had care, custody, and control of the Children during
the offenses. The trial court also found that the harm to the Children was
greater than that necessary to accomplish the offenses. The trial court found no
mitigating circumstances. It specifically rejected Love’s proffered mitigator of
lack of a criminal history, finding that Love had a criminal conviction and that
he had not led a law-abiding life due to molesting the Children over an
extended period of time. The trial court sentenced Love to thirty-three years for
each of his three convictions, to be served consecutively.
[18] Love now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION I. Prosecutor’s Closing Argument
[19] Love’s first contention is that “the prosecutor committed fundamental error by
advising the jury in final argument, on at least three occasions, that the
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020 Page 8 of 21 uncorroborated testimony of a victim alone is sufficient to convict.”
(Appellant’s Br. p. 19). As a general matter, “‘[i]n reviewing a properly
preserved claim of prosecutorial misconduct, we determine (1) whether the
prosecutor engaged in misconduct, and if so, (2) whether the misconduct, under
all of the circumstances, placed the defendant in a position of grave peril to
which he or she would not have been subjected.’” Jones v. State, 101 N.E.3d
249, 257 (Ind. Ct. App. 2018) (quoting Cooper v. State, 854 N.E.2d 831, 835
(Ind. 2006)), trans. denied. Whether a prosecutor’s closing argument amounts to
misconduct is determined by reference to case law and the Rules of Professional
Conduct. Id. The gravity of peril resulting from the challenged argument is
measured by the probable persuasive effect of the misconduct on the jury’s
decision rather than the degree of the impropriety of the conduct involved. Id.
[20] To properly preserve a claim of prosecutorial misconduct, a defendant must, at
the time of the alleged misconduct, request an admonishment or move for a
mistrial. Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014). Love did neither, so his
claim is procedurally defaulted. Id. Our standard of review for waived claims
dictates that “the defendant must establish not only the grounds for
prosecutorial misconduct but must also establish that the prosecutorial
misconduct constituted fundamental error.” Id. at 667-68. Fundamental error
is an extremely narrow exception to waiver, and a defendant faces the heavy
burden of demonstrating that the alleged error is so prejudicial to his rights that
it rendered a fair trial impossible. Id. at 668.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020 Page 9 of 21 [21] Love argues that the prosecutor improperly argued that the jury could convict
him based solely on the testimony of his victims. In support of his claim, Love
relies on our supreme court’s decision in Ludy v. State, 784 N.E.2d 459, 462
(Ind. 2003), in which the court held that it was error for a trial court to instruct
the jury that a conviction could be based solely on the uncorroborated
testimony of the victim. Love contends that Ludy is applicable to his case
because the prosecutor’s argument had the same impact on the jury as would a
jury instruction.
[22] However, the trial court gave no such instruction in this case, and our supreme
court has never held that a prosecutor, whose job it is to focus the jury’s
attention on the facts and evidence it considers favorable to the State’s case,
may not argue its interpretation of the law surrounding victim testimony. The
prosecutor’s statement of the law was correct. See Garner v. State, 777 N.E.2d
721, 725 (Ind. 2002); Carter v. State, 31 N.E.3d 17, 30 (Ind. Ct. App. 2015),
trans. denied. In addition, this court has already rejected the very claims that
Love makes here. See Deaton v. State, 999 N.E. 452, 456 (Ind. Ct. App. 2013)
(holding that prosecutor’s closing argument that “according to the Indiana
Supreme Court and the Indiana Court of Appeals” the child molesting victim’s
uncorroborated testimony was sufficient to convict did not constitute
misconduct), trans. denied; see also Weis v. State, 825 N.E.2d 896, 904 (Ind. Ct.
App. 2005) (rejecting Weis’ argument that a prosecutor’s argument about a
child molesting victim’s testimony had the same impact as a jury instruction
and noting that the “mere fact that a jury may not be instructed on a certain
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020 Page 10 of 21 point of law does not lead to the conclusion that argument concerning that
point of law is also improper.”). Love does not address this legal authority that
is contrary to his claim. Accordingly, we conclude that Love has failed to
establish that the prosecutor committed any misconduct, let alone misconduct
amounting to fundamental error. See Ryan, 9 N.E.3d at 667-68.
II. Jury Instructions
[23] Next, Love argues that the trial court “committed fundamental error by reading
two erroneous final instructions”—i.e., one on what constituted sufficient proof
of penetration and one providing that a finger is an object for purposes of
determining whether other sexual conduct occurred. (Appellant’s Br. p. 23).
Jury instruction is a matter within the discretion of the trial court, and we will
reverse a trial court’s instructional decision only upon an abuse of that
discretion. Cardosi v. State, 128 N.E.3d 1277, 1284 (Ind. 2019). The purpose of
jury instructions is to inform the jury of the law applicable to the facts without
misleading the jury and to enable the jury to comprehend the case clearly so
that it may arrive at a just, fair, and correct verdict. Isom v. State, 31 N.E.3d
469, 484 (Ind. 2015). In reviewing a challenge to a jury instruction, we
consider: (1) whether the instruction is a correct statement of the law; (2)
whether there was evidence supporting the instruction; and (3) whether the
substance of the instruction was covered by other instructions given by the trial
court. Thomas v. State, 61 N.E.3d 1198, 1201 (Ind. Ct. App. 2016), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020 Page 11 of 21 A. Availability of Love’s Instructional Claims
[24] Before proceeding to the merits of Love’s claim of instructional error, we pause
to address the extent to which his claims are available for our review. Love
argues that the trial court erred in giving an instruction that a finger is an object
for purposes of an allegation of other sexual conduct involving penetration of
the sex organ of a person by an object. However, the trial court did not enter
judgment of conviction on any Count of other sexual conduct involving that
type of penetration. The trial court entered judgment of conviction on two
Counts of Level 1 felony child molesting by sexual intercourse as to M.B. and
D.B. The third conviction upon which the trial court entered judgment was for
Level 1 felony child molesting by other sexual conduct involving Love’s penis
and N.B.’s anus.
[25] “Mootness arises when the primary issue within the case has been ended or
settled or in some manner disposed of, so as to render it unnecessary to decide
the question involved.” C.J. v. State, 74 N.E.3d 572, 575 (Ind. Ct. App. 2017)
(quotation omitted), trans. denied. Put another way, when a court is not able to
render effective relief to a party, the case is deemed moot and subject to
dismissal. Id. Here, the trial court did not enter judgment of conviction on any
Count that would implicate this specific claim by Love, and, therefore, there is
nothing upon which we may render relief. We conclude that Love’s claim
based on the “finger as object” instruction is moot, and we decline to address it.
[26] In addition, the State argues that both of Love’s instructional claims are
unavailable for our review because he invited the error he now challenges. In
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020 Page 12 of 21 Batchelor v. State, 119 N.E.3d 550, 556 (Ind. 2019), our supreme court recently
clarified the difference between the doctrine of invited error, which typically
forecloses our review of a claim, and waiver, which leaves a claim open to
review for fundamental error. In Batchelor, the trial court summarized the final
instructions and then asked the parties, “We good?” to which defense counsel
replied, “Yeah.” Id. at 554. Batchelor raised an appellate claim of instructional
error, and the State argued that his claim was foreclosed because he had invited
any error. Id. at 556. The court held that to establish that a defendant invited
error, there must be some evidence that the appellant’s affirmative actions, as
part of a deliberate trial strategy, produced the claimed error. Id. at 558. “A
passive lack of objection, standing alone, is simply not enough.” Id. (quotation
omitted). The court observed that Batchelor’s counsel had not made a request
for the challenged instruction and held that defense counsel’s mere act of
replying “Yeah” to the trial court’s query “We good?” was insufficient to show
any deliberate trial strategy on his part. Id. at 558-59. Declining to find invited
error, the court reviewed Batchelor’s claim for fundamental error. Id. at 559.
[27] Here, it was the State that proposed and relied upon the challenged instructions,
not Love. In addition, Love’s counsel merely stated that he had no objection to
the State’s proposed instructions, which we find is the same type of passive lack
of objection that our supreme court held was insufficient to show invited error
in Batchelor. Accordingly, we conclude that Love did not invite the error he
now challenges and that his remaining instructional error claim is subject to
review for fundamental error, meaning error that “clearly and blatantly violated
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020 Page 13 of 21 basic principles of due process resulting in undeniable and substantial potential
for harm” and that made a fair trial impossible. Id. at 559 (quotation omitted).
B. Instruction on Proof of Penetration
[28] The trial court instructed the jury that
Proof of “penetration” is sufficient where the slightest penetration occurred to the external genitalia of the female sexual organ, vagina, or anus.
(Appellant’s App. Vol. II, p. 172). This is a correct statement of the law, and
Love does not argue otherwise. See Boggs v. State, 104 N.E.3d 1287, 1289 (Ind.
2018); Short v. State, 564 N.E.2d 553, 559 (Ind. Ct. App. 1991). The giving of
the instruction was supported by M.B.’s testimony that she called her genitals
her “private area,” Love would put Vaseline on his “dick” when he shoved it
inside her private area, and that it hurt “[w]henever he shoved it inside of [her]”
(Tr. Vol. II, pp. 109, 129-30); by D.B.’s testimony that she called her genitals
her “crotch” and that Love put his “dick” inside her crotch (Tr. Vol. II, pp. 184,
186-87, 205); and by N.B.’s testimony that he called a penis a “wiener,” Love
would “shove [his wiener] inside of me,” Love shoved his penis inside N.B.’s
“butt,” and that a butt’s function is you “poop out of it.” (Tr. Vol. II, pp. 226,
237). Love does not contend on appeal that the challenged instruction was
covered by another instruction. Thus, we find no error in the trial court’s
provision of this instruction to the jury. See Thomas, 61 N.E.3d at 1201.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020 Page 14 of 21 [29] Nevertheless, Love argues that the trial court’s instruction improperly
emphasized “one particular evidentiary fact, witness or phase of the case”
without explaining what precisely was being unduly emphasized. (Appellant’s
Br. p. 24). “Penetration” is part of the definition of sexual intercourse and other
sexual conduct. See I.C. §§ 35-31.5-2-302; -221.5. The challenged instruction
did not emphasize any particular fact, witness, or trial phase; rather, it informed
the jury what type of evidence it could consider in determining whether
penetration had occurred.
[30] Love also argues that the instruction was improper because it is derived from
appellate case law regarding the sufficiency of the evidence to sustain a
conviction. Citing Drollinger v. State, 408 N.E.2d 1228, 1241 (Ind. 1980), Love
contends that “[t]he mere fact that certain language or expressions may be used
in a Court of Appeals decision to analyze sufficiency of the evidence issues,
does not make the language proper as an instruction to the jury.” (Appellant’s
Br. p. 25). However, it is also true that “[t]here is no blanket prohibition against
the use of appellate decision language in jury instructions.” Munford v. State,
923 N.E.2d 11, 15 (Ind. Ct. App. 2010). There is no statutory definition of
penetration. In addition, although the preferred practice is to use pattern jury
instructions, see Lacy v. State, 58 N.E.3d 944, 947 (Ind. Ct. App. 2016), there is
no pattern instruction on penetration. The instruction given by the trial court
assisted the jury in comprehending the offenses clearly, whether it came from
appellate decisions or not. See Isom, 31 N.E.3d at 484.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020 Page 15 of 21 [31] Love’s last challenge to this instruction is that it was confusing to the jury and
was unsupported by evidence because there was no expert testimony explaining
the anatomy of the female sex organ or the anus. Love presents us with no
legal authority requiring an expert to testify regarding the female anatomy or
the anus in order to support such an instruction. Indeed, we find little
likelihood a juror would be confused regarding the anatomy of the anus because
every human being has personal experience with that part of the body. In
addition, N.B. testified that the part of his anatomy where Love inserted his
penis was where you “poop out of[.]” (Tr. Vol. II, p. 237).
[32] Regarding the female sex organ, at trial, M.B. and D.B. pointed to drawings of
a girl to identify their own genitals, provided their terms for that area, and
specifically stated that Love had placed his penis inside that area. In addition,
the nurse who conducted the girls’ sexual assault exams differentiated between
the external exam of their genitalia, which were “the parts that you would see
without touching them at all,” the internal exam of the areas where she would
“tell the kiddos I am going to use my hands now and I’m just going to open you
up a little bit,” and the “vaginal cavity.” (Tr. Vol. III, pp. 133-34). A diagram
of the female sex organ was also admitted during the nurses’ testimony. (Exh.
57, Conf. Exh. Vol. I, p. 147). This was additional evidence that supported the
giving of the instruction and aided the jury’s understanding. In short, we find
no error in the giving of this instruction, let alone the fundamental error that
Love was required to demonstrate to overcome the effect of his waiver of the
issue.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020 Page 16 of 21 III. Appropriateness of Sentence
[33] Love also contends that his sentence is inappropriate given the nature of his
offenses and his character. “Even when a trial court imposes a sentence within
its discretion, the Indiana Constitution authorizes independent appellate review
and revision of this sentencing decision.” Hoak v. State, 113 N.E.3d 1209, 1209
(Ind. 2019). Thus, we may revise a sentence 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. Id. The principal role of
such review is to attempt to leaven the outliers. Cardwell v. State, 895 N.E.2d
1219, 1225 (Ind. 2008). The defendant bears the burden to persuade the
reviewing court that the sentence imposed is inappropriate. Robinson v. State, 91
N.E.3d 574, 577 (Ind. 2018).
A. Nature of the Offenses
[34] When assessing the nature of an offense, the advisory sentence is the starting
point that the legislature selected as an appropriate sentence for the particular
crime committed. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). The trial
court entered judgment of conviction on three Level 1 felonies for child
molesting. The sentencing range for a Level 1 felony is between twenty and
forty years, with the advisory sentence being thirty years. I.C. § 35-50-2-4(b).
The trial court sentenced Love to a slightly enhanced, thirty-three-year sentence
for each of the Level 1 felonies, to be served consecutively.
[35] Love argues that his slightly-enhanced, consecutive sentences are inappropriate
given the nature of his offenses. When reviewing the nature of an offense, we
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020 Page 17 of 21 look to the “the details and circumstances of the commission of the offense and
the defendant’s participation.” Perry, 78 N.E.3d at 13. Love was the person
who the Children called their dad, and he committed the offenses when Mother
was not at home and the Children were in his exclusive care. Love betrayed his
position of trust with the Children in a grievous manner. We have long held
that “[a]busing a position of trust is, by itself, a valid aggravator which supports
the maximum enhancement for a sentence for child molesting.” See Hart v.
State, 829 N.E.2d 541, 544 (Ind. Ct. App. 2005). We find that this factor alone,
which Love does not argue on appeal was invalid, renders Love’s individual
sentences, which were three years above the advisory sentence, appropriate. See
Baumholser v. State, 62 N.E.3d 411, 418 (Ind. Ct. App. 2016) (finding
defendant’s thirty-two year concurrent sentences for one Level 1 felony and two
Class C felony child molesting convictions to be appropriate where he abused
his position of trust with his stepdaughter to molest her on multiple occasions),
trans. denied.
[36] Other evidence in the record bolsters our conclusion that the nature of Love’s
offenses merits the individual sentences imposed. All the Children are
developmentally delayed, which made them more vulnerable than other
children. Love began abusing the Children when each was eight years old,
which was considerably younger than the age of fourteen years old necessary to
prove the offense. See I.C. § 35-42-4-3(a)(1). Love emotionally manipulated
M.B. by fostering the perception that they had a romantic relationship. Love
molested the Children in front of each other, in one instance calling N.B. into
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020 Page 18 of 21 the room so that N.B. could watch Love anally penetrating M.B. As a result of
the offenses, the Children have experienced difficulty sleeping, nightmares,
anger, and behavioral issues. The entire family is in counseling. In sum, we
find nothing inappropriate about the individual sentences imposed given the
nature of the offenses.
[37] We also conclude that consecutive sentences are not inappropriate given that
there were three victims involved. Consecutive sentences “vindicate the fact
that there were separate harms and separate acts against more than one
person.” Serino v. State, 798 N.E.2d 852, 857 (Ind. 2003); see also Upton v. State,
904 N.E.2d 700, 704 (Ind. Ct. App. 2009) (finding consecutive sentences for
child molesting offenses appropriate where Upton molested multiple victims),
trans. denied. Love draws our attention several times to the fact the sentence
imposed is effectively a “life sentence” for him. (Appellant’s Br. pp. 2, 5, 28,
30). However, a sentence is not inappropriate merely because it may result in
the defendant never being free in society again. See, e.g., Wright v. State, 108
N.E.3d 307, 320-21 (Ind. 2018) (finding Wright’s sixty-year sentence for
molesting two victims appropriate, even though it “essentially amount[ed] to a
life-sentence for this thirty-three-year-old credit restricted felon.”).
[38] Love was forty-three years old when he began molesting M.B., and he was
forty-nine years old when the trial court imposed its sentence. We note that
even if the trial court had imposed the minimum sentence of twenty years for
each of the offenses and ordered them to be served consecutively in recognition
of the three victims, it would have still resulted in life-long incarceration for
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020 Page 19 of 21 Love. We are unwilling to discount the suffering of one or more of Love’s
victims simply because Love did not locate his targets earlier.
B. Character of the Offender
[39] In addition, upon reviewing a sentence for inappropriateness, we look to a
defendant’s life and conduct as illustrative of her character. Morris v. State, 114
N.E.3d 531, 539 (Ind. Ct. App. 2018), trans. denied. Love directs our attention
to his relative lack of criminal history, his employment record, previous efforts
at education, lack of alcohol and substance abuse, his contribution to raising
other children, and the fact that the probation department assessed him as being
in the low category to re-offend. However, we conclude that Love has failed to
meet his burden of persuasion on appeal because these factors do not override
other evidence of Love’s poor character present in the record. Love molested
the Children over a period of approximately four years, which indicates to us
that Love did not live a law-abiding life despite the fact that he only had one
previous conviction for domestic battery. Love essentially used the Children as
his sexual playthings over a period of years, molesting them at will after each
turned eight. In addition, many citizens work, complete some college, and
refrain from the abuse of drugs and alcohol, so we do not find that these factors
overwhelmingly militate for a reduced sentence. Love’s risk assessment was
largely based on criminal history, education, and work history, which are
factors which we have determined do not merit a reduced sentence.
Accordingly, we decline to revise Love’s sentence due to his character.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020 Page 20 of 21 CONCLUSION [40] Based on the foregoing, we conclude that the prosecutor did not commit
fundamental error in her closing argument, the trial court did not err when
instructing the jury, and Love’s sentence is not inappropriate given the nature of
his offenses and his character.
[41] Affirmed.
[42] Baker, J. and Brown, J. concur
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020 Page 21 of 21