Derrick E. Hampsch v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 9, 2016
• Docket: 42A01-1510-CR-1682
• Status: Published

Opinion

MEMORANDUM DECISION FILED May 09 2016, 8:32 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as CLERK Indiana Supreme Court precedent or cited before any court except for the Court of Appeals and Tax Court purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark A. Foster Gregory F. Zoeller Foster, O’Daniel, Hambidge & Lynch, Attorney General of Indiana LLP Larry D. Allen Evansville, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Derrick E. Hampsch, May 9, 2016

Appellant-Defendant, Court of Appeals Case No. 42A01-1510-CR-1682 v. Appeal from the Knox Superior Court. The Honorable Jeffrey L. State of Indiana, Biesterveld, Special Judge. Appellee-Plaintiff. Cause No. 42D01-1410-FC-29

Friedlander, Senior Judge

[1] Derrick E. Hampsch appeals the sentence the trial court imposed on his

conviction of sexual misconduct with a minor, a Class C felony. We affirm in

part, reverse in part, and remand.

Court of Appeals of Indiana | Memorandum Decision 42A01-1510-CR-1682 | May 9, 2016 Page 1 of 10 [2] Hampsch worked as a youth minister at a church in Vincennes, Indiana. He

was married with three children. In 2009, when he was twenty-six, thirteen-

year-old G.D. was a member of his youth group. Her parents met privately

with Hampsch to inform him G.D. had a crush on him, expecting he would

deal with it appropriately.

[3] Instead, Hampsch had sexually-oriented conversations with G.D. via Facebook

over a period of several months. Hampsch and his wife had a joint Facebook

account, but Hampsch secretly created a separate account to exchange sexually

explicit messages with G.D. using that account’s private messaging function.

He also exchanged sexually explicit text messages with her. In addition,

Hampsch had lunch with his youth group members at their schools. During

lunch visits to G.D.’s school, he frequently sat next to her and rubbed her leg.

[4] In the fall of 2009, Hampsch took G.D. into a storage room at the church and

fondled her breasts. In April 2010, Hampsch took his youth group to a church

conference in Madison County, Indiana. He arranged for G.D., who had by

then turned fourteen, to meet him in a private room after everyone had gone to

sleep. Hampsch inserted his finger into G.D.’s vagina while he made her fondle

his penis.

[5] On April 30, 2010, Hampsch and G.D. were at their church in Vincennes.

Hampsch had G.D. come into his office and locked the door. He then made

G.D. fondle his penis.

Court of Appeals of Indiana | Memorandum Decision 42A01-1510-CR-1682 | May 9, 2016 Page 2 of 10 [6] In June 2010, Hampsch and other adults from the church took the youth group

to an event in Illinois. After all of the children had gone to sleep, Hampsch and

G.D. met in secret, where he digitally penetrated her vagina and required her to

fondle his penis.

[7] The record demonstrates Hampsch had inappropriate discussions with another

youth group member. A church member discovered that Hampsch had sent her

daughter flirty texts that made her daughter “feel violated, confused, dirty,

ashamed, and very broken hearted.” Id. at 70.

[8] After several years, G.D. disclosed Hampsch’s sexual abuse to her mother, who

contacted the authorities. The State began this case by charging Hampsch with

sexual misconduct with a minor, a Class C felony, in relation to the April 30,

2010 incident where he made G.D. fondle his penis in his office.

[9] The State opened a separate criminal case against Hampsch in Madison

County, charging him with sexual misconduct with a minor as a Class B felony

for his acts against G.D. at the April 2010 church conference. He pleaded

guilty as charged in that case, without any concessions from the State, and

received a twenty-year sentence. The Court affirmed his sentence in that case.

Hampsch v. State, Case No. 48A05-1507-CR-979 (Ind. Ct. App. Feb. 26, 2016),

trans. pending.

[10] Meanwhile, in this case Hampsch also pleaded guilty as charged, again without

any concessions from the State. The trial court accepted the guilty plea. Prior

Court of Appeals of Indiana | Memorandum Decision 42A01-1510-CR-1682 | May 9, 2016 Page 3 of 10 to his misconduct with G.D., Hampsch had no criminal record. At sentencing,

the trial court identified aggravating and mitigating factors as follows:

The Court having entered Judgment of Conviction in this cause, having considered the Pre-Sentence Investigation and the arguments and evidence of counsel, now makes the following findings: In way of aggravating factors, the Court determines that the Defendant was in a position having care, custody, control of the victim. Being a clergy member creates a special trust. The family in this case trusted you. The victim trusted you. You took this duty upon yourself and you became a clergy member. The Court also finds that the harm, injury, loss or damage suffered by the victim of this offense was significant and greater than the elements necessary to prove the commission of the offense. The Court’s experience and the victim’s letter tell me that the victim will carry this stigma of the offense for the rest of her life and that her relationships with men, with her church, with her family will be affected forever, far beyond these Courthouse doors. By way of mitigating factors, the Court does find that the Defendant pled guilty, accepted responsibility for his actions. He saved the victim from going through a trial and saved the Court’s time and resources. The Court also notes that by way of mitigating factors, that prior to this, this Defendant has no history of delinquency or criminal activity, prior to this offense and the offense previously stated in the other county. In way of consecutivity [sic], the Court finds that this is not the part of a single episode of criminal conduct as argued, that these are two separate instances, separate and distinct although the conduct is similar, but the time, the place, the location, the distance make these separate and distinct instances. The Court finds that in way of mitigating factors, that this is a hardship created by the Defendant’s actions. It’s a substantial hardship, but it’s not an undue hardship.

Court of Appeals of Indiana | Memorandum Decision 42A01-1510-CR-1682 | May 9, 2016 Page 4 of 10 Tr. pp. 29-30. The court sentenced Hampsch to six years, to be served

consecutively to his twenty-year sentence from Madison County. This appeal

followed.

[11] Hampsch raises two categories of sentencing challenges. He claims: (1) the

trial court abused its discretion in the course of identifying aggravating and

mitigating factors; and (2) his sentence is inappropriate in light of the nature of

the offense and the character of the offender. We conclude the trial court did

not abuse its sentencing discretion, and Hampsch’s six-year sentence is not

inappropriate, but it is inappropriate in light of the nature of the offense and the

character of the offender for Hampsch to serve this sentence consecutively with

the twenty-year sentence from Madison County.

1. [12] In general, sentencing decisions are left to the sound discretion of the trial court,

and we review the trial court’s decision only for an abuse of discretion. Singh v.

State, 40 N.E.3d 981 (Ind. Ct. App. 2015), trans. denied. An abuse of discretion

will be found where the decision is clearly against the logic and effect of the

facts and circumstances before the court or the reasonable, probable, and actual

deductions to be drawn therefrom. Bisard v. State, 26 N.E.3d 1060 (Ind. Ct.

App. 2015), trans. denied. A trial court may abuse its discretion in a number of

ways, including: (1) failing to enter a sentencing statement at all; (2) entering a

sentencing statement that includes aggravating and mitigating factors that are

unsupported by the record; (3) entering a sentencing statement that omits

Court of Appeals of Indiana | Memorandum Decision 42A01-1510-CR-1682 | May 9, 2016 Page 5 of 10 reasons that are clearly supported by the record; or (4) entering a sentencing

statement that includes reasons that are improper as a matter of law. Id.

[13] Hampsch argues the trial court gave insufficient weight to the mitigating

factors, specifically, his lack of a criminal history, his guilty plea, and the

hardship that his family will experience during his incarceration. A trial court

does not have an obligation to explicitly weigh aggravating and mitigating

factors when imposing a sentence. Id. As a result, the relative weight a trial

court assigns to aggravating and mitigating circumstances is not subject to

appellate review. J.S. v. State, 928 N.E.2d 576 (Ind. 2010).

[14] Next, Hampsch claims the trial court overlooked mitigating factors. A trial

court must consider the mitigating factors presented by a defendant, but a

finding of mitigating circumstances is discretionary, not mandatory. Harlan v.

State, 971 N.E.2d 163 (Ind. Ct. App. 2012). The trial court is not obligated to

credit the facts in the way the defendant suggests they should be credited. Id.

[15] Hampsch argues he demonstrated his crime was the result of circumstances

unlikely to recur, which is a statutory mitigating circumstance. See Ind. Code §

35-38-1-7.1(b)(2) (West, Westlaw 2008). In support of his argument, he points

to a report from an expert who examined him and concluded he is not a

pedophile. Other evidence in the record weighs against a conclusion that his

crime is unlikely to recur. Hampsch groomed G.D. over several months and

molested her several times over several more months. He had ample

opportunity to stop, but he continued his misconduct. Further, the record

Court of Appeals of Indiana | Memorandum Decision 42A01-1510-CR-1682 | May 9, 2016 Page 6 of 10 reflects inappropriate text messages with another girl. We cannot conclude

Hampsch’s proposed mitigating factor is clearly supported by the record. See

Harlan, 971 N.E.2d 163 (trial court did not err by rejecting claim crime was

unlikely to recur; defendant repeatedly molested victim over a period of time

without stopping).

[16] Hampsch next contends the trial court overlooked another statutory

circumstance: he is likely to respond affirmatively to probation or short-term

imprisonment. Ind. Code § 35-38-1-7.1(b)(7). He again points to the report by

his expert witness, asserting a lengthy sentence is unnecessary to reform his

conduct. In contrast to the expert witness’s report, the record demonstrates

Hampsch molested G.D. over a number of months, ending his conduct only

when G.D. left the state, and then hid his misconduct for a number of years.

He also engaged in inappropriate conduct with other another girl in his youth

group, sending flirty texts to her. Under these circumstances, his claimed

mitigator is not clearly supported by the record.

[17] Finally, Hampsch argues the court should have found as a mitigating factor that

his character and attitude indicate he is unlikely to commit another crime. Ind.

Code § 35-38-1-7.1(b)(8). We disagree. He did not admit to his crime against

G.D. until he was confronted with it years later. Further, although Hampsch

presented himself as remorseful and reformed at sentencing, numerous letters

submitted in support of G.D. indicated Hampsch has a deceptive personality

and excels at manipulating others. We cannot conclude this mitigator is clearly

Court of Appeals of Indiana | Memorandum Decision 42A01-1510-CR-1682 | May 9, 2016 Page 7 of 10 supported by the record. For these reasons, the trial court did not abuse its

discretion in sentencing Hampsch.

2. [18] Hampsch asserts his sentence is too long and should not be served

consecutively to his twenty-year sentence from Madison County. Pursuant to

Indiana Appellate Rule 7(B), we may revise a sentence otherwise 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.” The principal purpose of this review is to leaven the

outliers rather than to achieve a “correct” result in each case. Hunt v. State, 43

N.E.3d 588, 590 (Ind. Ct. App. 2015), trans. denied.

[19] 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. Corbally v. State, 5 N.E.3d 463

(Ind. Ct. App. 2014). The defendant bears the burden of persuading the

appellate court that his or her sentence is inappropriate. Id.

[20] At the time Hampsch committed his offense, a Class C felony was punishable

by a maximum sentence of eight years and a minimum sentence of two years,

with an advisory sentence of four years. Ind. Code § 35-50-2-6 (West, Westlaw

2005). The trial court sentenced Hampsch to an enhanced sentence of six years,

to be served consecutively to his twenty-year sentence from Madison County.

Court of Appeals of Indiana | Memorandum Decision 42A01-1510-CR-1682 | May 9, 2016 Page 8 of 10 [21] The nature of the offense justifies the enhanced six-year sentence. Hampsch

groomed G.D. for sexual conduct over a period of months, sending her sexually

explicit messages and secretly touching her during lunchtime visits to her

school. G.D.’s parents informed Hampsch that she had a crush on him, and he

used that information to take advantage of her. In addition, Hampsch was in a

position of authority over G.D. as a religious leader and the supervisor of her

youth group. Hampsch’s misconduct had a profoundly negative impact upon

G.D.

[22] Although the nature of the offense supports an enhanced sentence, we cannot

conclude that the nature of the offense requires Hampsch to serve his sentence

for this offense consecutively to his sentence from Madison County for B felony

sexual misconduct with a minor. Hampsch committed both offenses in similar

circumstances, less than a month apart, and both involved the same victim.

Both offenses equally involved an abuse of Hampsch’s position of authority

over G.D., and both contributed to the trauma she experienced. But for the

crimes occurring in different counties, the trial court may well have ordered the

sentences to be served concurrently.

[23] The character of the offender also supports a conclusion that Hampsch should

serve his sentences concurrently. He has no prior criminal record and pleaded

guilty as charged without any concessions from the State, sparing G.D. the

additional trauma of testifying in front of a jury.

Court of Appeals of Indiana | Memorandum Decision 42A01-1510-CR-1682 | May 9, 2016 Page 9 of 10 [24] Based on our consideration of the record, Hampsch’s six-year sentence is not

inappropriate in light of the nature of the offense and the character of the

offender, but considering all factors, serving this sentence consecutively with

the Madison County sentence is outside the range of appropriate results. See

Carter v. State, 31 N.E.3d 17 (Ind. Ct. App. 2015) (finding consecutive sentences

inappropriate and directing that two of the three sentences be served

concurrently), trans. denied.

[25] For the foregoing reasons, we affirm the trial court’s judgment in part, reverse

in part, and remand with instructions to issue a revised sentencing order

directing that Hampsch’s sentence in this case will be served concurrently with

the sentence from Madison County in Lower Cause Number 48C03-1410-FB-

1943.

[26] Judgment affirmed in part, reversed in part, and remanded with instructions.

Kirsch, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 42A01-1510-CR-1682 | May 9, 2016 Page 10 of 10