Pursuant to Ind.Appellate Rule 65(D), Nov 06 2013, 5:38 am 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:
HUGH N. TAYLOR GREGORY F. ZOELLER Hugh N. Taylor, P.C. Attorney General of Indiana Auburn, Indiana CHANDRA K. HEIN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
DEXTER STACY, SR., ) ) Appellant-Defendant, ) ) vs. ) No. 76A04-1303-CR-113 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE STEUBEN SUPERIOR COURT The Honorable William C. Fee, Judge Cause No. 76D01-1201-FA-34
November 6, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge Case Summary
Dexter Stacy, Sr. (“Stacy”) challenges his seventy-five-year aggregate sentence for
two counts of Child Molesting, as Class A felonies.1 We affirm.
Issues
Stacy presents for our review two issues, which we revise and restate as:
I. Whether the trial court abused its sentencing discretion; and
II. Whether Stacy’s sentence is inappropriate.2
Facts and Procedural History
On December 16, 2011, Fort Wayne Police Officer Michael Bell responded to a report
of child molestation. During the ensuing investigation, it was alleged that Stacy had
molested R.W., his eight-year-old biological daughter, and S.P., his seven-year-old
stepdaughter. (Tr. at 156-59.) Stacy was charged with two counts of Child Molesting, as
Class A felonies.
A jury trial was conducted on February 13 and 14, 2013. R.W. testified that several
times Stacy had engaged in sexual intercourse with her, and had placed his mouth on her
genitals. (Tr. at 138-42.) She further testified that S.P. was in the room with them when this
occurred. (Tr. at 142.) S.P. testified that several times Stacy had touched her
inappropriately, and had engaged in sexual intercourse with her. (Tr. at 148-51.) She further
1 Ind. Code § 35-42-4-3(a)(1).
2 Stacy intermingles claims that the trial court abused its sentencing discretion with claims that his sentence is inappropriate. However, “[a]s our Supreme Court has made clear, inappropriate sentence and abuse of discretion claims are to be analyzed separately.” King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008) (citing Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007)). Therefore, we address each claim of error in turn.
2 testified that R.W. was in the room with them when this occurred. (Tr. at 148-49.) R.W. and
S.P. both tested positive for chlamydia. (Tr. at 155, 159.) At the conclusion of the trial, the
jury found Stacy guilty of both counts.
On March 1, 2013, the trial court entered judgments of conviction and sentenced Stacy
to forty years imprisonment for one count, and forty years imprisonment with five years
suspended to probation for the other count. The terms of imprisonment were to be run
consecutively, yielding an aggregate sentence of seventy-five years.
Stacy now appeals.
Discussion and Decision
Abuse of Discretion
A Class A felony carries a sentencing range between twenty and fifty years with an
advisory sentence of thirty years. I.C. § 35-50-2-4. Stacy received sentences of forty years
for Count I and thirty-five years executed for Count II, with the terms to be run
consecutively. In imposing this sentence, the trial court found that there were no mitigating
circumstances, observing that Stacy showed no sympathy, emotion, or remorse for the
victims. (Tr. at 230.) The court found as aggravating circumstances that Stacy had a
criminal record, that he had violated conditions of probation in the past, that the victims were
both less than twelve years old, and that he had care, custody, and control over the victims.
(Tr. at 230-31.) Stacy contends that the trial court abused its discretion in finding
aggravating circumstances.
“So long as [a] sentence is within the statutory range, it is subject to review only for
3 abuse of discretion.” Anglemyer, 868 N.E.2d at 490. A trial court abuses its discretion if the
reasons and circumstances for imposing a particular sentence are 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. Hollin v. State, 877 N.E.2d 462, 464 (Ind. 2007). A
defendant may challenge findings of aggravating circumstances only to the extent that they
are not supported by the record or are improper as a matter of law. Anglemyer, 868 N.E.2d
at 490-91. A trial court’s sentencing order may not be challenged as reflecting an improper
weighing of sentencing factors. Id. at 491.
Stacy first argues that the trial court improperly found his lack of sympathy, emotion,
or remorse as an aggravating circumstance. However, the record reveals that the trial court
treated Stacy’s lack of sympathy, emotion, or remorse as supporting a finding of a lack of
mitigating circumstances, rather than as an aggravating circumstance. (Tr. at 230.)
Stacy next challenges the trial court’s finding of his criminal history as an aggravating
circumstance. The significance of a defendant’s criminal history as an aggravating
circumstance will vary based on the gravity, nature, and number of prior offenses, and their
relation to the current offense. Prickett v. State, 856 N.E.2d 1203, 1209 (Ind. 2006). Yet, a
trial court properly may consider a defendant’s prior criminal history as an aggravating
circumstance. I.C. § 35-38-1-7.1(a)(2); Prickett, 856 N.E.2d at 1208-09. And to the extent
Stacy argues that the trial court gave improper weight to his criminal history, this is an
invitation for us to reweigh aggravating circumstances, which we cannot do. Anglemyer, 868
N.E.2d at 491.
4 Stacy contends that the trial court improperly found a material element of the crimes,
the age of the victims, as an aggravating circumstance. However, trial courts are not
prohibited from considering material elements of an offense in finding aggravating
circumstances for sentencing. Pedraza v. State, 887 N.E.2d 77, 80 (Ind. 2008).
Finally, Stacy asserts that the trial court improperly found his abuse of a position of
trust as an aggravating circumstance. But, a defendant’s abuse of a position of trust properly
may be found as an aggravating circumstance for sentencing. I.C. § 35-38-1-7.1(a)(8); see
also Amalfitano v. State, 956 N.E.2d 208, 211 (Ind. Ct. App. 2011), trans. denied. And to the
extent Stacy attempts to argue that abuse of a position of trust is an element of the crime of
child molesting, and thus may not be used as an aggravating circumstance, we have already
rejected this argument, supra. See Pedraza, 887 N.E.2d at 80.
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Pursuant to Ind.Appellate Rule 65(D), Nov 06 2013, 5:38 am 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:
HUGH N. TAYLOR GREGORY F. ZOELLER Hugh N. Taylor, P.C. Attorney General of Indiana Auburn, Indiana CHANDRA K. HEIN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
DEXTER STACY, SR., ) ) Appellant-Defendant, ) ) vs. ) No. 76A04-1303-CR-113 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE STEUBEN SUPERIOR COURT The Honorable William C. Fee, Judge Cause No. 76D01-1201-FA-34
November 6, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge Case Summary
Dexter Stacy, Sr. (“Stacy”) challenges his seventy-five-year aggregate sentence for
two counts of Child Molesting, as Class A felonies.1 We affirm.
Issues
Stacy presents for our review two issues, which we revise and restate as:
I. Whether the trial court abused its sentencing discretion; and
II. Whether Stacy’s sentence is inappropriate.2
Facts and Procedural History
On December 16, 2011, Fort Wayne Police Officer Michael Bell responded to a report
of child molestation. During the ensuing investigation, it was alleged that Stacy had
molested R.W., his eight-year-old biological daughter, and S.P., his seven-year-old
stepdaughter. (Tr. at 156-59.) Stacy was charged with two counts of Child Molesting, as
Class A felonies.
A jury trial was conducted on February 13 and 14, 2013. R.W. testified that several
times Stacy had engaged in sexual intercourse with her, and had placed his mouth on her
genitals. (Tr. at 138-42.) She further testified that S.P. was in the room with them when this
occurred. (Tr. at 142.) S.P. testified that several times Stacy had touched her
inappropriately, and had engaged in sexual intercourse with her. (Tr. at 148-51.) She further
1 Ind. Code § 35-42-4-3(a)(1).
2 Stacy intermingles claims that the trial court abused its sentencing discretion with claims that his sentence is inappropriate. However, “[a]s our Supreme Court has made clear, inappropriate sentence and abuse of discretion claims are to be analyzed separately.” King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008) (citing Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007)). Therefore, we address each claim of error in turn.
2 testified that R.W. was in the room with them when this occurred. (Tr. at 148-49.) R.W. and
S.P. both tested positive for chlamydia. (Tr. at 155, 159.) At the conclusion of the trial, the
jury found Stacy guilty of both counts.
On March 1, 2013, the trial court entered judgments of conviction and sentenced Stacy
to forty years imprisonment for one count, and forty years imprisonment with five years
suspended to probation for the other count. The terms of imprisonment were to be run
consecutively, yielding an aggregate sentence of seventy-five years.
Stacy now appeals.
Discussion and Decision
Abuse of Discretion
A Class A felony carries a sentencing range between twenty and fifty years with an
advisory sentence of thirty years. I.C. § 35-50-2-4. Stacy received sentences of forty years
for Count I and thirty-five years executed for Count II, with the terms to be run
consecutively. In imposing this sentence, the trial court found that there were no mitigating
circumstances, observing that Stacy showed no sympathy, emotion, or remorse for the
victims. (Tr. at 230.) The court found as aggravating circumstances that Stacy had a
criminal record, that he had violated conditions of probation in the past, that the victims were
both less than twelve years old, and that he had care, custody, and control over the victims.
(Tr. at 230-31.) Stacy contends that the trial court abused its discretion in finding
aggravating circumstances.
“So long as [a] sentence is within the statutory range, it is subject to review only for
3 abuse of discretion.” Anglemyer, 868 N.E.2d at 490. A trial court abuses its discretion if the
reasons and circumstances for imposing a particular sentence are 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. Hollin v. State, 877 N.E.2d 462, 464 (Ind. 2007). A
defendant may challenge findings of aggravating circumstances only to the extent that they
are not supported by the record or are improper as a matter of law. Anglemyer, 868 N.E.2d
at 490-91. A trial court’s sentencing order may not be challenged as reflecting an improper
weighing of sentencing factors. Id. at 491.
Stacy first argues that the trial court improperly found his lack of sympathy, emotion,
or remorse as an aggravating circumstance. However, the record reveals that the trial court
treated Stacy’s lack of sympathy, emotion, or remorse as supporting a finding of a lack of
mitigating circumstances, rather than as an aggravating circumstance. (Tr. at 230.)
Stacy next challenges the trial court’s finding of his criminal history as an aggravating
circumstance. The significance of a defendant’s criminal history as an aggravating
circumstance will vary based on the gravity, nature, and number of prior offenses, and their
relation to the current offense. Prickett v. State, 856 N.E.2d 1203, 1209 (Ind. 2006). Yet, a
trial court properly may consider a defendant’s prior criminal history as an aggravating
circumstance. I.C. § 35-38-1-7.1(a)(2); Prickett, 856 N.E.2d at 1208-09. And to the extent
Stacy argues that the trial court gave improper weight to his criminal history, this is an
invitation for us to reweigh aggravating circumstances, which we cannot do. Anglemyer, 868
N.E.2d at 491.
4 Stacy contends that the trial court improperly found a material element of the crimes,
the age of the victims, as an aggravating circumstance. However, trial courts are not
prohibited from considering material elements of an offense in finding aggravating
circumstances for sentencing. Pedraza v. State, 887 N.E.2d 77, 80 (Ind. 2008).
Finally, Stacy asserts that the trial court improperly found his abuse of a position of
trust as an aggravating circumstance. But, a defendant’s abuse of a position of trust properly
may be found as an aggravating circumstance for sentencing. I.C. § 35-38-1-7.1(a)(8); see
also Amalfitano v. State, 956 N.E.2d 208, 211 (Ind. Ct. App. 2011), trans. denied. And to the
extent Stacy attempts to argue that abuse of a position of trust is an element of the crime of
child molesting, and thus may not be used as an aggravating circumstance, we have already
rejected this argument, supra. See Pedraza, 887 N.E.2d at 80.
We thus conclude that the trial court did not abuse its discretion in finding aggravating
circumstances.
Inappropriate Sentence
We turn now to Stacy’s claim that his sentence is inappropriate. The authority granted
to this Court by Article 7, § 6 of the Indiana Constitution permitting appellate review and
revision of criminal sentences is implemented through Appellate Rule 7(B), which 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.” Under this rule, and as interpreted by case law,
appellate courts may revise sentences after due consideration of the trial court’s decision, if
5 the sentence is found to be inappropriate in light of the nature of the offense and the character
of the offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008); Serino v. State,
798 N.E.2d 852, 856-57 (Ind. 2003). The principal role of such review is to attempt to
leaven the outliers. Cardwell, 895 N.E.2d at 1225.
We turn first to the nature of the offenses. Stacy, in his thirties, engaged in sexual
intercourse with R.W., his eight-year-old biological daughter, and S.P., his seven-year-old
stepdaughter. This was sufficient to complete two acts of Child Molesting, as Class A
felonies. However, Stacy committed these acts multiple times; in addition, he placed his
mouth on R.W.’s genitals and inappropriately touched S.P. Following this, the two girls
tested positive for chlamydia. Stacy’s actions went beyond the two acts of Child Molesting
for which he was convicted.
We turn next to the character of the offender. Stacy, in his thirties, several times
engaged in sexual intercourse with R.W., his eight-year-old biological daughter, and S.P., his
seven-year-old stepdaughter, after which both girls tested positive for chlamydia. Stacy has
six prior criminal convictions, including one felony. And on several occasions he has
violated probation, failed to appear in court, or failed to follow court orders. Stacy’s
behavior indicates that he harbors a general disregard for the law, an unwillingness to
conform his behavior to acceptable standards, and an unwillingness to rehabilitate himself.
Therefore, having reviewed the matter, we conclude that the trial court did not impose
an inappropriate sentence under Appellate Rule 7(B), and the sentence does not warrant
appellate revision. Accordingly, we decline to disturb the sentence imposed by the trial
6 court.
Conclusion
The trial court did not abuse its sentencing discretion, and Stacy’s sentence is not
inappropriate.
Affirmed.
MAY, J., and BRADFORD, J., concur.