MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Feb 26 2016, 8:54 am 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 Lawrence M. Hansen Gregory F. Zoeller Hansen Law Firm, LLC Attorney General of Indiana Noblesville, Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Derrick Hampsch, February 26, 2016
Appellant-Defendant, Court of Appeals Case No. 48A05-1507-CR-979 v. Appeal from the Madison Circuit Court. The Honorable Thomas Newman, State of Indiana, Jr., Judge. Appellee-Plaintiff. Cause No. 48C03-1410-FB-1943
Friedlander, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 48A05-1507-CR-979 | February 26, 2016 Page 1 of 14 [1] Derrick Hampsch appeals the twenty-year sentence the trial court imposed for 1 Hampsch’s conviction of sexual misconduct with a minor, a Class B felony.
We affirm.
[2] Hampsch worked for a church in Knox County. He was a youth minister, and
G.D., a thirteen-year-old, was a member of his youth group. G.D.’s parents
informed Hampsch that G.D. had a crush on him, expecting that he would
address the matter appropriately. Hampsch began paying “special attention” to
G.D. Tr. p. 37. When he came to school to have lunch with members of his
youth group, he sat next to G.D. and put his knee against her leg. On other
occasions, he hugged her and squeezed her shoulders in a way “that might not
have seemed out of place to other people but they were personal to [G.D.].” Id.
at 39. In addition, Hampsch communicated daily with G.D. via Facebook’s
private messaging application. He had a joint Facebook account with his wife,
but he created a secret account to communicate with G.D.
[3] Hampsch also gave G.D. special treatment. He encouraged her to sing with the
church band and praised her for leading a youth group program in which the
group’s members called elderly people to talk with them.
1 Ind. Code section 35-42-4-9 (West, Westlaw 2007). The version of the governing statute, i.e., Ind. Code § 35-42-4-9, in effect at the time this offense was committed classified it as a Class B felony. This statute has since been revised and in its current form reclassifies the offense as a Level 4 felony. See Ind. Code § 35-42-4- 9 (West, Westlaw current with all 2015 First Regular Session of the 119th General Assembly legislation effective through June 28, 2015). The new classification, however, applies only to offenses committed on or after July 1, 2014. See id. Because this offense was committed prior to that date, it retains the former classification.
Court of Appeals of Indiana | Memorandum Decision 48A05-1507-CR-979 | February 26, 2016 Page 2 of 14 [4] Hampsch’s conduct made G.D. feel “loved and desirable” and “more special
than all of the other kids in the youth group.” Id. at 42. As a result, G.D. felt
as though she fell in love with Hampsch.
[5] In April 2010, Hampsch and his youth group traveled to a church in Madison
County, Indiana to attend a conference. G.D., who had turned fourteen, was
part of the group. After everyone else had gone to sleep, Hampsch and G.D.
met in a large closet. Hampsch inserted his finger into G.D.’s vagina and made
her fondle his penis.
[6] Hampsch continued to have sexual contact with G.D. after they returned to
Knox County. On one occasion, Hampsch and G.D. were at a church camp.
He arranged for them to meet in the offices of another church, where they
fondled each other. On yet another occasion, Hampsch interrupted G.D. while
she was making calls to the elderly from church, led her into a pantry, and 2 removed her shirt and bra.
[7] Hampsch’s sexual activities with G.D. caused her to feel shame and anxiety.
She felt like she “let it happen” and that it was her fault. Id. at 42. She
experienced nightmares and had trouble eating. Later, she realized Hampsch
had used his position of authority to manipulate her when she was “at an
2 Hampsch has a pending appeal arising from an act of sexual misconduct with G.D. in Knox County. Hampsch v. State, 42A01-1510-CR-1682.
Court of Appeals of Indiana | Memorandum Decision 48A05-1507-CR-979 | February 26, 2016 Page 3 of 14 incredible [sic] fragile time in [her] life” and she was looking for her “place in
the world.” Id. at 45.
[8] At the time of Hampsch’s sentencing hearing, five years after his criminal act,
G.D. still felt “violated and uncomfortable” when an older man touched her.
Id. at 46. For several years, she had difficulty allowing her father to hug her. In
addition, G.D. took steps to ensure that she was never alone with an older man.
She stated that she no longer had confidence in church employees because she
found herself wondering “if they are truly who they say they are.” Id. She
sought counseling to deal with ongoing feelings of shame and believed the
emotional trauma Hampsch caused would always be with her.
[9] The current case began when G.D. learned from others that Hampsch was
under investigation “for having inappropriate relationships with girls from
youth [group]” and spoke with the police. Id. at 45. G.D. was aware Hampsch
had communicated with another teenage girl and had told the girl to delete his
messages to her.
[10] The State charged Hampsch with one count of B felony sexual misconduct with
a minor for his acts involving G.D. at the church conference in Madison
County. Hampsch and the State executed a plea agreement. Hampsch agreed
to plead guilty as charged, and the sentence would be left to the trial court’s
discretion. The court accepted the plea agreement and scheduled a sentencing
hearing.
Court of Appeals of Indiana | Memorandum Decision 48A05-1507-CR-979 | February 26, 2016 Page 4 of 14 [11] At sentencing, the trial court identified the following mitigating factors: (1)
Hampsch’s lack of a criminal record; (2) Hampsch’s remorse; (3) Hampsch’s
guilty plea; (4) hardship to Hampsch’s three children; and (5) Hampsch’s intent
to serve others in the future by opening an orphanage in Honduras. The court
identified the following aggravating factors: (1) Hampsch’s explanation that he
seduced G.D. because he was upset that his wife was having an affair; (2)
Hampsch’s “repeated conduct with the victim,” Id. at 61; and (3) Hampsch’s
abuse of his position of trust as a youth minister, which damaged G.D.
“probably for the rest of their [sic] life.” Id. Concluding that “the aggravating
circumstances greatly out weight [sic] the mitigating circumstances,” the court
sentenced Hampsch to twenty years. Id. This appeal followed.
[12] Hampsch raises two categories of sentencing challenges. He claims: (1) the
trial court abused its discretion in the course of identifying aggravating and
mitigating circumstances; and (2) his sentence is inappropriate in light of the
nature of the offense and the character of the offender.
1. [13] Hampsch argues that the trial court overlooked numerous mitigating factors
during sentencing. Sentencing decisions rest within the sound discretion of the
trial court and are reviewed on appeal only for an abuse of discretion. Barnhart
v. State, 15 N.E.3d 138 (Ind. Ct. App. 2014). An abuse of discretion occurs if
the decision is clearly against the logic and effect of the fact and circumstances
before the court, or the reasonable, probable and actual deductions to be drawn
Court of Appeals of Indiana | Memorandum Decision 48A05-1507-CR-979 | February 26, 2016 Page 5 of 14 therefrom. Westlake v. State, 987 N.E.2d 170 (Ind. Ct. App. 2013). A trial court
may abuse its discretion by failing to enter a sentencing statement, entering a
sentencing statement that explains reasons for imposing a sentence which the
record does not support, omitting reasons that are clearly supported by the
record and advanced for consideration, or giving reasons that are improper as a
matter of law. Id.
[14] An allegation that the trial court failed to identify or find a mitigating factor
requires the defendant to establish that the mitigating evidence is both
significant and clearly supported by the record. Id. A trial court is not
obligated to accept the defendant’s argument as to what constitutes a mitigating
factor. Rogers v. State, 958 N.E.2d 4 (2011).
[15] Hampsch claims the trial court overlooked his lack of a criminal record, the
hardship to his dependents that will result from his incarceration, and his guilty
plea. We disagree. The trial court identified those factors as mitigating
circumstances. To the extent Hampsch asserts that the trial court should have
given greater weight to those factors, we note that trial courts have no
obligation to explicitly weigh aggravating and mitigating factors. Williams v.
State, 997 N.E.2d 1154 (Ind. Ct. App. 2013). Consequently, the weight a trial
court assigns to each factor is not reviewable for abuse of discretion. Id.
[16] Next, Hampsch claims he accepted responsibility for his crime and the court
should have found his acceptance to be a mitigating factor. The record
demonstrates otherwise. Although Hampsch pleaded guilty, which often
Court of Appeals of Indiana | Memorandum Decision 48A05-1507-CR-979 | February 26, 2016 Page 6 of 14 demonstrates acceptance of responsibility, he also attempted to blame his
criminal conduct on emotional turmoil resulting from his wife’s affair.
Furthermore, as Hampsch told the court, he “misinterpreted a girl’s crush on
me.” Tr. p. 49. The record does not clearly support his claim that he accepted
responsibility, and the trial court did not abuse its discretion in rejecting this
mitigating factor.
[17] Hampsch further argues that the trial court should have considered that he is
likely to respond positively to probation or short-term imprisonment. The
record reflects that Hampsch groomed G.D. over a period of months, engaged
in sexual misconduct with her on several occasions, and after their relationship
ended, concealed his crimes for four years. The record further indicates that on
one occasion, when the parents of an eighteen-year-old asked Hampsch to
counsel her in private about sexual morality, he asked her “if she liked giving
blowjobs.” Appellant’s Confidential App. p. 39. He told her, “I love them!”
Id. In addition, Hampsch told another church member that he had influence
over the member’s granddaughter and could “turn her against [the member].”
Id. at 48. G.D. told the court that she knew Hampsch had sent messages to
another girl and had told the girl to delete the messages. Finally, a girl in the
youth group received inappropriate texts from Hampsch that left her feeling
“violated, confused, dirty, ashamed, and very broken hearted.” Id. at 45.
Based on this record, the court was within its discretion to determine that a
lengthy sentence was necessary for Hampsch to change his criminal conduct
and refrain from illegal activities with teenage girls.
Court of Appeals of Indiana | Memorandum Decision 48A05-1507-CR-979 | February 26, 2016 Page 7 of 14 [18] Hampsch also claims the court ignored the following factors: (1) the crime was
the result of circumstances unlikely to recur; and (2) Hampsch’s character and
attitude indicate that he is unlikely to commit another crime. Hampsch did not
present these mitigating factors to the trial court. Failure to present mitigating
factors to the trial court waives consideration of the factors on appeal. Bryant v.
State, 984 N.E.2d 240 (Ind. Ct. App. 2013), trans. denied.
[19] Hampsch has failed to demonstrate that the trial court abused its discretion in
identifying aggravating and mitigating circumstances.
2. [20] Hampsch argues that his twenty-year sentence is inappropriate because he is not
the “worst of the worst.” Appellant’s Br. p. 22. Article VII, section four of the
Indiana Constitution authorizes Indiana’s appellate courts to review and revise
sentences. That authority is carried out through Indiana Appellate Rule 7(B),
which allows an appellate court to revise a sentence that is 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.”
[21] The principal role of appellate review under Rule 7(B) is to attempt to leaven
the outliers, not to achieve a perceived “correct” result in each case. Garner v.
State, 7 N.E.3d 1012, 1015 (Ind. Ct. App. 2014). Thus, the key question is not
whether another sentence is more appropriate, but whether the sentence
imposed in the instant case is inappropriate. Williams, 997 N.E.2d 1154.
Court of Appeals of Indiana | Memorandum Decision 48A05-1507-CR-979 | February 26, 2016 Page 8 of 14 [22] It is the defendant’s burden to persuade us that the sentence is inappropriate.
Id. Whether a sentence is inappropriate depends upon the culpability of the
defendant, the severity of the crime, the damage done to others, and many
other circumstances that are present in a given case. Harman v. State, 4 N.E.3d
209 (Ind. Ct. App. 2014), trans. denied. Thus, when assessing the nature of the
offense and the character of the offender, we may look to any factors appearing
in the record. Thompson v. State, 5 N.E.3d 383 (Ind. Ct. App. 2014).
[23] “When considering the nature of the offense, the advisory sentence is the
starting point to determine the appropriateness of a sentence.” Johnson v. State,
986 N.E.2d 852, 856 (Ind. Ct. App. 2013). At the time Hampsch committed his
crime, the advisory sentence for a Class B felony was ten years, with a
maximum sentence of twenty years and a minimum sentence of six years. Ind.
Code § 35-50-2-5 (West, Westlaw 2005). The trial court imposed the maximum
sentence of twenty years.
[24] Turning to the nature of the offense, Hampsch began grooming a thirteen-year-
old for sexual intimacy. G.D. was at a fragile point in her life and looked to
Hampsch, her church’s youth group leader, for guidance as she navigated
through adolescence. G.D.’s parents advised Hampsch that she had a crush on
him, hoping that he would address her feelings in an appropriate manner.
[25] Instead, Hampsch singled G.D. out for special treatment and communicated
with her through a private messaging system that he hid from his wife. He
hugged and touched her in ways that made her feel desired and special.
Court of Appeals of Indiana | Memorandum Decision 48A05-1507-CR-979 | February 26, 2016 Page 9 of 14 Hampsch also manipulated G.D. through her youth and her religious faith to
make her feel as though she was in love with him. Ultimately, during a church
trip where fourteen-year-old G.D. was separated from her family, Hampsch
arranged for G.D. to meet him in a closet after everyone else had fallen asleep.
He inserted his finger in her vagina and made her fondle his penis. She told the
police that she was “caught by surprise” by his actions because she was
unaware that there was sexual conduct other than “kissing and sex.”
Appellant’s Confidential App. p. 19.
[26] Hampsch violated his position of trust as a supervisory adult and a religious
leader with respect to G.D. In addition, his crime had severe deleterious effects
upon G.D. above and beyond what might be expected of a minor who was
sexually and emotionally abused. While their relationship was ongoing, she felt
shame and anxiety and had trouble eating and sleeping. G.D. was still in
counseling five years later and reported that she did not trust older men and
avoided being alone with them. She expects to carry the trauma with her
throughout her life.
[27] Hampsch claims that his sentence will place an undue hardship on his family.
Many persons convicted of serious crimes have one or more children, and
absent special circumstances, trial courts are not required to find that
imprisonment will result in undue hardship. Reese v. State, 939 N.E.2d 695 (Ind.
Ct. App. 2011), trans. denied. Although Hampsch’s wife will have to go back to
work to support the family, the record is devoid of special circumstances that
Court of Appeals of Indiana | Memorandum Decision 48A05-1507-CR-979 | February 26, 2016 Page 10 of 14 would pose an unusually severe hardship to their children and render his
sentence inappropriate.
[28] Turning to the character of the offender, Hampsch was a married thirty-four-
year-old father of three at the time of sentencing. He correctly notes that he has
no criminal record, but his lack of a formal record is more than offset by his
grooming of, and repeated sexual contact with, G.D. In addition, the record
reflects that Hampsch had inappropriate, private communications with other
teenage girls in his care. Under these circumstances, it is difficult to dismiss his
misconduct with G.D. as an isolated incident unlikely to recur.
[29] Hampsch expressed remorse at his sentencing hearing, but he had kept silent
about his crime for four years, leaving G.D. to suffer in silence under the effects
of his misconduct. Furthermore, although Hampsch accepted responsibility for
his crime to a certain extent by pleading guilty, he also tried to blame his wife’s
affair for his misconduct.
[30] Hampsch has failed to demonstrate that his twenty-year sentence is
inappropriate in light of the nature of the offense and his character.
[31] For the reasons stated above, we affirm the judgment of the trial court.
[32] Judgment affirmed.
Kirsch, J., concurs.
Brown, J., dissents with separate opinion.
Court of Appeals of Indiana | Memorandum Decision 48A05-1507-CR-979 | February 26, 2016 Page 11 of 14 IN THE COURT OF APPEALS OF INDIANA
Derrick Hampsch, Court of Appeals Case No. 48A05-1507-CR-979 Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.
Brown, Judge, dissenting.
[33] I respectfully dissent from the majority opinion that Hampsch’s sentence is not
inappropriate in light of the nature of the offense and his character. Hampsch
was convicted of a class B felony and was sentenced to twenty years executed in
the Department of Correction, which was the maximum sentence the trial court
was able to impose. Hampsch argues that he is not the “worst of the worst” of
offenders. Amended Appellant’s Brief at 22. The Indiana Supreme Court has
determined that the maximum possible sentence should be reserved for the
worst offenders and offenses. See Buchanan v. State, 767 N.E.2d 967, 974 (Ind.
2002). This court has stated that, in determining whether a case is among the
very worst of offenses and a defendant among the very worst offenders, “[w]e
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
Court of Appeals of Indiana | Memorandum Decision 48A05-1507-CR-979 | February 26, 2016 Page 12 of 14 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).
[34] While Hampsch violated his position of trust to commit the offense and the
victim suffers from emotional trauma, the offense did not involve the use of
violence and did not result in any physical injuries. Moreover, Hampsch pled
guilty in this cause pursuant to a plea agreement which left sentencing open to
the court, and the presentence investigation report (“PSI”) shows that, other
than the pending case in Knox County, Hampsch had no prior criminal history.
The PSI further provides that then thirty-four year old Hampsch, is the father of
three children, then ages five, eight, and nine years old, and that he is at a low
risk to reoffend under the Indiana Risk Assessment System Community
Supervision Tool.
[35] For the foregoing reasons, I would find Hampsch’s sentence is inappropriate
and reduce his sentence to the advisory term of ten years. See Francis v. State,
817 N.E.2d 235, 238-239 (Ind. 2004) (concluding with respect to the
defendant’s conviction for child molesting as a class A felony that a sentence of
thirty years, rather than the maximum fifty-year sentence imposed by the trial
court, was the appropriate sentence in light of the nature of the offense and the
character of the offender where the defendant’s criminal history was minimal,
the age of the victim had been taken into account to an extent by the class of the
felony, and the defendant pled guilty); Asher v. State, 790 N.E.2d 567, 572 (Ind.
Ct. App. 2003) (holding that the defendant was not “the very worst offender”
Court of Appeals of Indiana | Memorandum Decision 48A05-1507-CR-979 | February 26, 2016 Page 13 of 14 because of his lack of criminal history and reducing the defendant’s maximum
sentence of three years for child seduction as a class D felony to a term of one
year); cf. Kocielko v. State, 938 N.E.2d 243, 255-256 (Ind. Ct. App. 2010)
(holding that the defendant’s maximum sentence of twenty years for sexual
battery as a class B felony was not inappropriate where the defendant
sodomized the victim and, after several days of pain, the victim was required to
seek medical treatment for an anal fissure; the defendant had an extensive
criminal history, had violated probation on numerous occasions, and was on
probation at the time of the offense; and, once incarcerated, the defendant
threatened to kill the victim and her mother), reh’g granted on other grounds, 943
N.E.2d 1282 (Ind. Ct. App. 2011), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 48A05-1507-CR-979 | February 26, 2016 Page 14 of 14