MEMORANDUM DECISION FILED Apr 28 2016, 5:52 am
Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals and Tax Court 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 Andrew J. Sickmann Gregory F. Zoeller Boston Bever Klinge Cross & Chidester Attorney General of Indiana Richmond, Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Earl D. Napier, April 28, 2016 Appellant-Defendant, Court of Appeals Case No. 89A04-1510-CR-1654 v. Appeal from the Wayne Superior Court State of Indiana, The Honorable Gregory A. Horn, Appellee-Plaintiff. Judge Trial Court Cause No. 89D02-1403-FA-8
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 89A04-1510-CR-1654 | April 28, 2016 Page 1 of 8 Statement of the Case
[1] Earl Napier appeals his sentence following his convictions for four counts of
child molesting, two as Class A felonies and two as Class C felonies. Napier
raises two issues for our review:
1. Whether the trial court abused its discretion when it sentenced him.
2. Whether the trial court erred when it imposed consecutive sentences.
We affirm.
Facts and Procedural History
[2] Between February of 2013 and February of 2014, sisters A.T. and S.T.—aged
six and nine at that time, respectively—would often stay the night at their
grandmother’s, Shondia Napier’s (“Shondia”), house. Napier was Shondia’s
husband, and a step-grandfather to both A.T. and S.T. Since Shondia would
often work the night shift, it was not unusual for A.T. and S.T. to stay alone
with Napier.
[3] On those occasions, Napier repeatedly molested both A.T. and S.T. Napier put
his finger in A.T.’s and S.T.’s vaginas and touched their buttock. Napier also
touched and bit S.T.’s breasts. These incidents normally occurred at night
when Napier slept in bed between A.T. and S.T., and when they were sitting in
a rocking chair. Both A.T. and S.T. asked Napier to stop. Napier said he
Court of Appeals of Indiana | Memorandum Decision 89A04-1510-CR-1654 | April 28, 2016 Page 2 of 8 would “try to remember,” but he never did stop. Tr. at 259. During this time
period, A.T. and S.T.’s mother, Annie Ashwell, noticed that A.T. suffered from
“a lot of nightmares, bed wetting, . . . [and] temper tantrums,” while S.T.
became “[m]ore emotional . . . [and] stayed to herself a lot more.” Id. at 192.
[4] On February 8, 2014, A.T. and S.T. told Ashwell about the sexual abuse. S.T.
finally told her mother about the abuse because S.T. believed she would “go to
hell” if she did not tell the truth. Id. at 259-60. Ashwell confronted Napier
about these allegations, but he denied them. Ashwell reported the incidents to
the police.
[5] On February 10, both A.T. and S.T. went to the Justice and Advocacy Center
for Youth House for forensic interviews, where they both disclosed that Napier
had repeatedly molested them. On February 12, Detective Thomas Legear of
the Richmond Police Department questioned Napier. Napier did not admit to
any wrongdoing.
[6] On March 12, the State charged Napier with the following: count I, child
molesting, as a Class A felony; count II, child molesting, as a Class C felony;
count III, child molesting, as a Class A felony; and count IV, child molesting,
as a Class C felony. A jury found Napier guilty as charged, and the trial court
entered judgment accordingly. At a sentencing hearing on September 8, 2015,
the trial court found the following aggravating circumstances:
(1) there were multiple acts of child molesting against two victims; (2) the young age of the victims; (3) the multiple acts of child molestation were crimes of violence; (4) Napier, as Court of Appeals of Indiana | Memorandum Decision 89A04-1510-CR-1654 | April 28, 2016 Page 3 of 8 grandfather of the victims, was in a position of trust, custody and control over the victims; and (5) the crimes against each victim were committed in the presence of the other victim.
The trial court also found the following mitigating circumstances: (1) Napier
was sixty-two years old with no prior criminal history; (2) Napier had
significant health concerns; and (3) imprisonment would result in financial
hardship to Napier and his family.
[7] The court sentenced Napier to thirty years for count I, four years for count II,
thirty years for count III, and four years for count IV, with counts I and II
running concurrently, and counts III and IV running concurrently. The court
ordered that count I was to be served consecutive with count III, for an
aggregate sentence of sixty years, for “same reasons that the Court has found
certain aggravating circumstances.” Tr. at 428. The trial court stated: “In
particular, we’re dealing with a crime of violence. These were multiple acts that
took place[,] the jury found[,] over a period of a year and we’re talking about
separate children.” Id. This appeal ensued.
Discussion and Decision
[8] Napier contends that the trial court decision was inappropriate for failing to
consider mitigating factors and by imposing consecutive sentences. Article VII,
Sections 4 and 6 of the Indiana Constitution authorize independent appellate
review and revision of a sentence through Indiana Appellate Rule 7(B), which
provides that a court “may revise a sentence authorized by statute if, after due
Court of Appeals of Indiana | Memorandum Decision 89A04-1510-CR-1654 | April 28, 2016 Page 4 of 8 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.” Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007) (citing Anglemyer v.
State, 868 N.E.2d 482, 491 (Ind. 2007)). Here, however, Napier’s argument is
focused entirely on whether the trial court abused its discretion in sentencing
him. This Court has made clear that there is a separate argument and analysis
for an inappropriate sentence and abuse of discretion claim. See King v. State,
894 N.E.2d 265, 267 (Ind. Ct. App. 2008) (“[A]n inappropriate sentence
analysis does not involve an argument that the trial court abused its discretion
in sentencing the defendant.”). Napier alludes to an Indiana Appellate Rule
7(B) argument using relevant wording such as “inappropriate” and “character”
at points in his brief but makes no cogent argument in support of revision of his
sentence under the standards of Appellate Rule 7(B). Without a valid Appellate
Rule 7(B) argument, the inappropriateness standard does not apply here.
[9] Our standard of review is well settled. Sentencing decisions rest within the
sound discretion of the trial court. Anglemyer, 868 N.E.2d at 490. So long as
the sentence is within the statutory range, it is subject to review only for an
abuse of discretion. Id. 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.
Id.
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MEMORANDUM DECISION FILED Apr 28 2016, 5:52 am
Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals and Tax Court 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 Andrew J. Sickmann Gregory F. Zoeller Boston Bever Klinge Cross & Chidester Attorney General of Indiana Richmond, Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Earl D. Napier, April 28, 2016 Appellant-Defendant, Court of Appeals Case No. 89A04-1510-CR-1654 v. Appeal from the Wayne Superior Court State of Indiana, The Honorable Gregory A. Horn, Appellee-Plaintiff. Judge Trial Court Cause No. 89D02-1403-FA-8
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 89A04-1510-CR-1654 | April 28, 2016 Page 1 of 8 Statement of the Case
[1] Earl Napier appeals his sentence following his convictions for four counts of
child molesting, two as Class A felonies and two as Class C felonies. Napier
raises two issues for our review:
1. Whether the trial court abused its discretion when it sentenced him.
2. Whether the trial court erred when it imposed consecutive sentences.
We affirm.
Facts and Procedural History
[2] Between February of 2013 and February of 2014, sisters A.T. and S.T.—aged
six and nine at that time, respectively—would often stay the night at their
grandmother’s, Shondia Napier’s (“Shondia”), house. Napier was Shondia’s
husband, and a step-grandfather to both A.T. and S.T. Since Shondia would
often work the night shift, it was not unusual for A.T. and S.T. to stay alone
with Napier.
[3] On those occasions, Napier repeatedly molested both A.T. and S.T. Napier put
his finger in A.T.’s and S.T.’s vaginas and touched their buttock. Napier also
touched and bit S.T.’s breasts. These incidents normally occurred at night
when Napier slept in bed between A.T. and S.T., and when they were sitting in
a rocking chair. Both A.T. and S.T. asked Napier to stop. Napier said he
Court of Appeals of Indiana | Memorandum Decision 89A04-1510-CR-1654 | April 28, 2016 Page 2 of 8 would “try to remember,” but he never did stop. Tr. at 259. During this time
period, A.T. and S.T.’s mother, Annie Ashwell, noticed that A.T. suffered from
“a lot of nightmares, bed wetting, . . . [and] temper tantrums,” while S.T.
became “[m]ore emotional . . . [and] stayed to herself a lot more.” Id. at 192.
[4] On February 8, 2014, A.T. and S.T. told Ashwell about the sexual abuse. S.T.
finally told her mother about the abuse because S.T. believed she would “go to
hell” if she did not tell the truth. Id. at 259-60. Ashwell confronted Napier
about these allegations, but he denied them. Ashwell reported the incidents to
the police.
[5] On February 10, both A.T. and S.T. went to the Justice and Advocacy Center
for Youth House for forensic interviews, where they both disclosed that Napier
had repeatedly molested them. On February 12, Detective Thomas Legear of
the Richmond Police Department questioned Napier. Napier did not admit to
any wrongdoing.
[6] On March 12, the State charged Napier with the following: count I, child
molesting, as a Class A felony; count II, child molesting, as a Class C felony;
count III, child molesting, as a Class A felony; and count IV, child molesting,
as a Class C felony. A jury found Napier guilty as charged, and the trial court
entered judgment accordingly. At a sentencing hearing on September 8, 2015,
the trial court found the following aggravating circumstances:
(1) there were multiple acts of child molesting against two victims; (2) the young age of the victims; (3) the multiple acts of child molestation were crimes of violence; (4) Napier, as Court of Appeals of Indiana | Memorandum Decision 89A04-1510-CR-1654 | April 28, 2016 Page 3 of 8 grandfather of the victims, was in a position of trust, custody and control over the victims; and (5) the crimes against each victim were committed in the presence of the other victim.
The trial court also found the following mitigating circumstances: (1) Napier
was sixty-two years old with no prior criminal history; (2) Napier had
significant health concerns; and (3) imprisonment would result in financial
hardship to Napier and his family.
[7] The court sentenced Napier to thirty years for count I, four years for count II,
thirty years for count III, and four years for count IV, with counts I and II
running concurrently, and counts III and IV running concurrently. The court
ordered that count I was to be served consecutive with count III, for an
aggregate sentence of sixty years, for “same reasons that the Court has found
certain aggravating circumstances.” Tr. at 428. The trial court stated: “In
particular, we’re dealing with a crime of violence. These were multiple acts that
took place[,] the jury found[,] over a period of a year and we’re talking about
separate children.” Id. This appeal ensued.
Discussion and Decision
[8] Napier contends that the trial court decision was inappropriate for failing to
consider mitigating factors and by imposing consecutive sentences. Article VII,
Sections 4 and 6 of the Indiana Constitution authorize independent appellate
review and revision of a sentence through Indiana Appellate Rule 7(B), which
provides that a court “may revise a sentence authorized by statute if, after due
Court of Appeals of Indiana | Memorandum Decision 89A04-1510-CR-1654 | April 28, 2016 Page 4 of 8 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.” Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007) (citing Anglemyer v.
State, 868 N.E.2d 482, 491 (Ind. 2007)). Here, however, Napier’s argument is
focused entirely on whether the trial court abused its discretion in sentencing
him. This Court has made clear that there is a separate argument and analysis
for an inappropriate sentence and abuse of discretion claim. See King v. State,
894 N.E.2d 265, 267 (Ind. Ct. App. 2008) (“[A]n inappropriate sentence
analysis does not involve an argument that the trial court abused its discretion
in sentencing the defendant.”). Napier alludes to an Indiana Appellate Rule
7(B) argument using relevant wording such as “inappropriate” and “character”
at points in his brief but makes no cogent argument in support of revision of his
sentence under the standards of Appellate Rule 7(B). Without a valid Appellate
Rule 7(B) argument, the inappropriateness standard does not apply here.
[9] Our standard of review is well settled. Sentencing decisions rest within the
sound discretion of the trial court. Anglemyer, 868 N.E.2d at 490. So long as
the sentence is within the statutory range, it is subject to review only for an
abuse of discretion. Id. 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.
Id.
[10] 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
Court of Appeals of Indiana | Memorandum Decision 89A04-1510-CR-1654 | April 28, 2016 Page 5 of 8 includes aggravating and mitigating factors that are unsupported by the record;
(3) entering a sentencing statement that omits 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. at 490-91. Because the trial court no longer
has any obligation to weigh aggravating and mitigating factors against each
other when imposing a sentence, a trial court cannot now be said to have
abused its discretion in failing to properly weigh such factors. Id. at 491.
[11] Napier first contends that the trial court abused its discretion when it did not
identify certain mitigating factors. When an allegation is made that the trial
court failed to find a mitigating factor, the defendant is required to establish that
the mitigating evidence is both significant and clearly supported by the record.
Id. at 493. However, a trial court is not obligated to accept a defendant’s claim
as to what constitutes a mitigating circumstance. Rascoe v. State, 736 N.E.2d
246, 249 (Ind. 2000). “If the trial court does not find the existence of a
mitigating factor after it has been argued by counsel, the trial court is not
obligated to explain why it has found that the factor does not exist.” Anglemyer,
868 N.E.2d at 493 (citation omitted).
[12] Napier contends that the trial court failed to account for the mitigating evidence
of his age or testimony from his family and friends regarding his good
character. Concerning Napier’s age, he contends that, in effect, he has been
given a life sentence since he would not complete his sixty-year sentence until
he is 120 years old. As such, Napier contends that his current age should be
taken into account as a non-statutory mitigating factor. However, the trial
Court of Appeals of Indiana | Memorandum Decision 89A04-1510-CR-1654 | April 28, 2016 Page 6 of 8 court considered Napier’s age and declined to find it to be a mitigating factor.
Specifically, the trial court stated, “[c]ertainly one who is sixty plus years of age
would have the background and experience to know that this is absolutely a
horrendous crime.” Tr. at 427. The trial court did not abuse its discretion
when it rejected Napier’s age as a mitigating factor.
[13] Concerning the positive testimony pertaining to Napier’s character, he contends
that the trial court overlooked this testimony when determining his sentence.
Those witnesses testified that they did not believe Napier sexually molested
A.T. and S.T. But, again, a trial court is not obligated to explain why it has
rejected a proffered mitigator. See Anglemyer, 868 N.E.2d at 493. The trial
court had ample evidence of Napier’s bad character in addition to the positive
character evidence. The trial court did not abuse its discretion in declining to
consider the positive testimony from Napier’s family and friends as a mitigating
factor.
[14] Finally, Napier contends that the trial court abused its discretion when it did
not identify an aggravator to support the imposition of consecutive sentences.
In order to impose consecutive sentences, the trial court must find at least one
aggravating circumstance. Marcum v. State, 725 N.E.2d 852, 864 (Ind. 2002).
The trial court may find aggravating factors for purposes of the length of a
sentence and then find an additional, free-standing aggravator justifying the
imposition of consecutive sentences, e.g., Lopez v. State, 869 N.E.2d 1254, 1258
(Ind. Ct. App. 2007), trans. denied, or find that one of the same aggravators used
in determining the length of the sentence justifies imposing consecutive
Court of Appeals of Indiana | Memorandum Decision 89A04-1510-CR-1654 | April 28, 2016 Page 7 of 8 sentences, Frentz v. State, 875 N.E.2d 453, 472 (Ind. Ct. App. 2007), trans.
denied. When imposing a consecutive sentence, the trial court must provide a
“reasonably detailed recitation of the trial court’s reasons for imposing a
particular sentence.” Anglemyer, 868 N.E.2d at 490.
[15] Here, the trial court based its rationale for imposing consecutive sentences for
counts I and III on the “same reasons that the Court has found certain
aggravating circumstances,” Tr. at 428, for purposes of the length of the
sentence. This is permissible. Frentz, 875 N.E.2d at 472. Additionally, our
supreme court has held that consecutive sentences are proper when a defendant
commits multiple crimes against multiple victims. See Serino v. State, 798
N.E.2d 852, 857 (Ind. 2003) (“[W]hen the perpetrator commits the same
offense against two victims, enhanced and consecutive sentences seem
necessary to vindicate the fact that there were separate harms and separate acts
against more than one person.”). As the trial court explained in the instant
case, “[t]hese were multiple acts that took place . . . over a period of a year and
we’re talking about separate children.” Tr. at 428. Thus, Napier has failed to
demonstrate that the trial court abused its discretion in his sentencing.
[16] Affirmed.
Riley, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 89A04-1510-CR-1654 | April 28, 2016 Page 8 of 8