Dustin E. McGuire v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 4, 2015
• Docket: 48A02-1501-CR-23
• Status: Published

Opinion

MEMORANDUM DECISION Aug 04 2015, 9:27 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 Richard Walker Gregory F. Zoeller Anderson, Indiana Attorney General of Indiana

Richard C. Webster Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Dustin E. McGuire, August 4, 2015

Appellant-Defendant, Court of Appeals Cause No. 48A02-1501-CR-23 v. Appeal from the Madison Circuit Court Cause No. 48C06-1312-FA-2416 State of Indiana, Appellee-Plaintiff. The Honorable Dennis D. Carroll, Judge

Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 48A02-1501-CR-23 | August 4, 2015 Page 1 of 6 Case Summary [1] Dustin McGuire appeals his eighty-year sentence for three counts of Class A

felony child molesting and one count of Class C felony child molesting. We

affirm.

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

inappropriate.

Facts [3] McGuire is the father of D.M. and began molesting D.M. in 2012, when D.M.

was five or six years old. The molestation continued until 2013 when D.M.

reported the abuse to a teacher. D.M. described McGuire performing anal and

oral sex on D.M., D.M. performing oral sex on McGuire, and D.M. fondling

McGuire for McGuire’s sexual gratification. D.M. indicated that the

molestation was ongoing and had occurred at least ten times.

[4] On December 19, 2013, the State charged McGuire with three counts of Class

A felony child molesting and one count of Class C felony child molesting.

McGuire proceeded to trial, and after a jury was selected and D.M. and his

sister testified, McGuire pled guilty as charged without the benefit of a plea

agreement. The trial court sentenced McGuire to forty years on each of the

Class A felony convictions and to six years on the Class C felony conviction.

The trial court ordered two of the Class A felony convictions to be served

consecutively and the remaining Class A felony and Class C felony convictions Court of Appeals of Indiana | Memorandum Decision 48A02-1501-CR-23 | August 4, 2015 Page 2 of 6 to be served concurrently for a total sentence of eighty years. McGuire now

appeals.

Analysis [5] McGuire argues that his eighty-year sentence is inappropriate. 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.

[6] 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

sentence on any individual count.” Id. Whether a sentence is inappropriate

ultimately turns on the culpability of the defendant, the severity of the crime,

Court of Appeals of Indiana | Memorandum Decision 48A02-1501-CR-23 | August 4, 2015 Page 3 of 6 the damage done to others, and myriad other factors that come to light in a

given case. Id. at 1224.

[7] McGuire argues that the nature of the offenses does not require such a lengthy

sentence because he did not beat or severely brutalize D.M. and did not use

excessive force or injure D.M. Be that as it may, McGuire engaged in anal and

oral intercourse with his dependent son and required D.M. to fondle him.

D.M. was five or six years old when the abuse began, and it occurred at least

ten times and continued for at least a year. D.M. described the anal intercourse

as painful and having diarrhea afterward. D.M. also described his younger

sister interrupting the abuse on one occasion and McGuire threatening to whip

D.M. if he told anyone about the abuse. Despite the lack of excessive force, we

are not convinced the nature of the offense warrants a reduction of McGuire’s

sentence.

[8] Regarding McGuire’s character, we acknowledge that he pled guilty and

apologized for his actions. He did so, however, only after the State prepared for

trial, a jury was empaneled, and D.M. and his sister testified against their father

in open court. Under these circumstances, McGuire’s guilty plea sheds little

positive light on his character.

[9] As for McGuire’s claim of poor mental health based on his anxiety, depression,

and a seizure disorder, he offers no insight as to how his mental health

impacted his ability to appreciate the wrongfulness of his actions. In fact, the

record indicates that McGuire completed high school and that his medication

Court of Appeals of Indiana | Memorandum Decision 48A02-1501-CR-23 | August 4, 2015 Page 4 of 6 did not affect his ability to think clearly at the time of his guilty plea. Further,

the trial court found nothing about McGuire’s mental health issues “that

interferes with his ability to comprehend these proceedings, be responsible for

his own behavior and his responsibility to perform that’s consistent with what’s

expected of people.” Tr. p. 48. McGuire’s mental health issues do not render

his sentence inappropriate.

[10] Regarding his criminal history, McGuire describes it as “minimal” because it

consists of a single Class A misdemeanor conviction from 2011. Appellant’s

Br. p. 10. A more thorough investigation, however, reveals that McGuire was

charged with Class D felony battery resulting in bodily injury and Class D

felony strangulation in an incident also involving D.M. McGuire pled guilty to

the strangulation allegation and was granted alternative misdemeanor

sentencing, reducing the offense to a Class A misdemeanor. Although

McGuire’s criminal history is not extensive, it does not reflect positively on his

character as it relates to the current offenses against D.M. and previous leniency

in sentencing.

[11] Finally, McGuire compares his case to Carter v. State, 31 N.E.3d 17, 25 (Ind. Ct.

App. 2015), in which Carter was accused of molesting his young stepson and

convicted of three counts of Class A felony child molesting and two counts of

Class C felony child molesting and sentenced to ninety-eight years. After

analyzing the nature of the offense and the character of the offender, a panel of

this court concluded that Carter’s sentence was inappropriate and revised his

sentence to sixty-eight years. Carter, 31 N.E.3d at 33. The Carter analysis,

Court of Appeals of Indiana | Memorandum Decision 48A02-1501-CR-23 | August 4, 2015 Page 5 of 6 however, does not compel a reduction of McGuire’s sentence where McGuire

was D.M.’s father, not his step-father, D.M. was slightly younger than the

victim in Carter, and McGuire’s criminal history includes a prior victimization

of D.M. Further, the sentence we revised in Carter was eighteen years longer

than the sentence McGuire received. For these reasons, we find Carter

distinguishable. When considering the nature of the offenses and the character

of the offender, McGuire has not established that his sentence is inappropriate.

Conclusion [12] McGuire has not established that his eighty-year sentence is inappropriate. We

[13] Affirmed.

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

Court of Appeals of Indiana | Memorandum Decision 48A02-1501-CR-23 | August 4, 2015 Page 6 of 6