Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 31 2012, 11:28 am court except for the purpose of establishing the defense of res judicata, CLERK of the supreme court, collateral estoppel, or the law of the case. court of appeals and tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
J. CLAYTON MILLER GREGORY F. ZOELLER Jordan Law, LLC Attorney General of Indiana Richmond, Indiana JAMES B. MARTIN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
JOSEPH WARD, ) ) Appellant-Defendant, ) ) vs. ) No. 89A01-1206-CR-277 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE WAYNE SUPERIOR COURT The Honorable Gregory A. Horn, Judge Cause No. 89D02-1103-FA-5
December 31, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Senior Judge STATEMENT OF THE CASE
Joseph Ward appeals his aggregate sentence of thirty-four years for Class A felony
child molesting and Class C felony child exploitation. We affirm.
ISSUE
Ward raises one issue for our review: whether his sentence is inappropriate.
FACTS AND PROCEDURAL HISTORY
Ward lived in Wayne County with his girlfriend Melissa Dixon and her two
children for six years. In March 2011, Dixon was looking through Ward’s cell phone
when she found a video of her daughter J.D. performing oral sex on Ward. At the time
Dixon discovered the video, Ward was twenty-eight years old, and J.D. was ten years old.
When Dixon showed J.D. the video, J.D. broke down crying and told her that
Ward had been forcing her to perform oral sex on him since she was seven.
Dixon confronted Ward at the American Legion, where he was playing cards.
Ward initially denied it was him in the video but then blamed J.D. He claimed that,
several years before, J.D. woke him up and started touching him, and when he told her to
stop or he would tell Dixon, J.D. threatened to tell Dixon that Ward had molested her.
In an interview, J.D. stated that Ward had forced her to perform oral sex on him
twenty to thirty times over the prior three years, with the most recent incident occurring
two weeks before the interview. When she would tell Ward that she did not want to, he
would yell at her to do it. The incidents usually occurred on the weekends when Dixon
was working and Ward was babysitting.
2 The State charged Ward with Class A felony child molesting and Class C felony
child exploitation. In May 2012, ten days before trial, Ward pleaded guilty to both
offenses, and the trial court entered judgments of conviction. The court later imposed
consecutive advisory terms of thirty years on the molesting conviction and four years on
the exploitation conviction, for an aggregate sentence of thirty-four years. Ward now
appeals.
DISCUSSION AND DECISION
Ward contends that his sentence is inappropriate. Although the trial court may
have acted within its lawful discretion in imposing a sentence, Article 7, Sections 4 and 6
of the Indiana Constitution authorize independent appellate review and revision of
sentences through Indiana Appellate Rule 7(B), which provides that we “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.” Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007) (citing
Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218
(2007)). The defendant has the burden of persuading us that his sentence is
inappropriate. Id. (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)).
We first look to the statutory sentencing ranges established for the classes of the
charged offenses. Ward pleaded guilty to a Class A felony and a Class C felony. The
statutory sentencing range for a Class A felony is between twenty and fifty years, with
the advisory sentence being thirty years. Ind. Code § 35-50-2-4 (2005). The statutory
sentencing range for a Class C felony is between two and eight years, with the advisory
3 sentence being four years. Ind. Code § 35-50-2-6(a) (2005). Ward was given advisory
terms, to be served consecutively, for an aggregate sentence of thirty-four years.
We next look to the nature of the offenses and Ward’s character. As to the nature
of the offenses, the evidence reveals that Ward forced J.D. to perform oral sex on him
commencing when she was just seven years old and forced her to do so twenty to thirty
times before he was caught three years later. When J.D. indicated she did not want to,
Ward would yell at her. The incidents usually occurred on the weekends when Dixon left
J.D. in Ward’s care, custody, and control to go to work. Ward also recorded a video of
J.D. performing oral sex on him. As a result of Ward’s abuse, J.D. has trust, self-esteem,
and anger issues and attends weekly therapeutic counseling sessions for treatment.
As to Ward’s character, we acknowledge that he may have had a difficult
childhood and that he has no prior convictions. We also recognize that his guilty plea,
though coming shortly before trial and in the face of substantial evidence against him,
saved J.D. from the embarrassment and ordeal of having to testify at trial. However,
Ward’s character and extended abuse of J.D. cannot be ignored. Over the course of three
years, Ward repeatedly violated a position of trust to satisfy his own perversions, and,
when finally confronted, he claimed that ten-year-old J.D. was to blame. Moreover, the
record reveals that there were other allegations of child molestation against him,
including the molestation of his youngest sister from the time she was seven until she was
fourteen. According to his presentence investigation report, he is at high risk to reoffend.
Further, as to his character, Ward has been unable to hold a steady job and had not
worked for five or six months prior to his arrest. He is delinquent in the support of his
4 own two children and was cited for contempt in 2009 for failure to pay support. Dixon
sometimes bought gifts for Ward’s children when he was not working; and, on the few
occasions when he did buy them gifts, he would later return the gifts for money to play
cards.
Ward’s sole argument is that he should be treated similarly to the defendant in
Granger v. State, 946 N.E.2d 1209 (Ind. Ct. App. 2011), whose aggregate sentence for
sex offenses involving two children was reduced from sixty years to fifty years with ten
years suspended. On this basis, he asks us to revise his aggregate sentence to the
minimum of twenty years.
In Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied, this
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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 31 2012, 11:28 am court except for the purpose of establishing the defense of res judicata, CLERK of the supreme court, collateral estoppel, or the law of the case. court of appeals and tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
J. CLAYTON MILLER GREGORY F. ZOELLER Jordan Law, LLC Attorney General of Indiana Richmond, Indiana JAMES B. MARTIN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
JOSEPH WARD, ) ) Appellant-Defendant, ) ) vs. ) No. 89A01-1206-CR-277 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE WAYNE SUPERIOR COURT The Honorable Gregory A. Horn, Judge Cause No. 89D02-1103-FA-5
December 31, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Senior Judge STATEMENT OF THE CASE
Joseph Ward appeals his aggregate sentence of thirty-four years for Class A felony
child molesting and Class C felony child exploitation. We affirm.
ISSUE
Ward raises one issue for our review: whether his sentence is inappropriate.
FACTS AND PROCEDURAL HISTORY
Ward lived in Wayne County with his girlfriend Melissa Dixon and her two
children for six years. In March 2011, Dixon was looking through Ward’s cell phone
when she found a video of her daughter J.D. performing oral sex on Ward. At the time
Dixon discovered the video, Ward was twenty-eight years old, and J.D. was ten years old.
When Dixon showed J.D. the video, J.D. broke down crying and told her that
Ward had been forcing her to perform oral sex on him since she was seven.
Dixon confronted Ward at the American Legion, where he was playing cards.
Ward initially denied it was him in the video but then blamed J.D. He claimed that,
several years before, J.D. woke him up and started touching him, and when he told her to
stop or he would tell Dixon, J.D. threatened to tell Dixon that Ward had molested her.
In an interview, J.D. stated that Ward had forced her to perform oral sex on him
twenty to thirty times over the prior three years, with the most recent incident occurring
two weeks before the interview. When she would tell Ward that she did not want to, he
would yell at her to do it. The incidents usually occurred on the weekends when Dixon
was working and Ward was babysitting.
2 The State charged Ward with Class A felony child molesting and Class C felony
child exploitation. In May 2012, ten days before trial, Ward pleaded guilty to both
offenses, and the trial court entered judgments of conviction. The court later imposed
consecutive advisory terms of thirty years on the molesting conviction and four years on
the exploitation conviction, for an aggregate sentence of thirty-four years. Ward now
appeals.
DISCUSSION AND DECISION
Ward contends that his sentence is inappropriate. Although the trial court may
have acted within its lawful discretion in imposing a sentence, Article 7, Sections 4 and 6
of the Indiana Constitution authorize independent appellate review and revision of
sentences through Indiana Appellate Rule 7(B), which provides that we “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.” Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007) (citing
Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218
(2007)). The defendant has the burden of persuading us that his sentence is
inappropriate. Id. (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)).
We first look to the statutory sentencing ranges established for the classes of the
charged offenses. Ward pleaded guilty to a Class A felony and a Class C felony. The
statutory sentencing range for a Class A felony is between twenty and fifty years, with
the advisory sentence being thirty years. Ind. Code § 35-50-2-4 (2005). The statutory
sentencing range for a Class C felony is between two and eight years, with the advisory
3 sentence being four years. Ind. Code § 35-50-2-6(a) (2005). Ward was given advisory
terms, to be served consecutively, for an aggregate sentence of thirty-four years.
We next look to the nature of the offenses and Ward’s character. As to the nature
of the offenses, the evidence reveals that Ward forced J.D. to perform oral sex on him
commencing when she was just seven years old and forced her to do so twenty to thirty
times before he was caught three years later. When J.D. indicated she did not want to,
Ward would yell at her. The incidents usually occurred on the weekends when Dixon left
J.D. in Ward’s care, custody, and control to go to work. Ward also recorded a video of
J.D. performing oral sex on him. As a result of Ward’s abuse, J.D. has trust, self-esteem,
and anger issues and attends weekly therapeutic counseling sessions for treatment.
As to Ward’s character, we acknowledge that he may have had a difficult
childhood and that he has no prior convictions. We also recognize that his guilty plea,
though coming shortly before trial and in the face of substantial evidence against him,
saved J.D. from the embarrassment and ordeal of having to testify at trial. However,
Ward’s character and extended abuse of J.D. cannot be ignored. Over the course of three
years, Ward repeatedly violated a position of trust to satisfy his own perversions, and,
when finally confronted, he claimed that ten-year-old J.D. was to blame. Moreover, the
record reveals that there were other allegations of child molestation against him,
including the molestation of his youngest sister from the time she was seven until she was
fourteen. According to his presentence investigation report, he is at high risk to reoffend.
Further, as to his character, Ward has been unable to hold a steady job and had not
worked for five or six months prior to his arrest. He is delinquent in the support of his
4 own two children and was cited for contempt in 2009 for failure to pay support. Dixon
sometimes bought gifts for Ward’s children when he was not working; and, on the few
occasions when he did buy them gifts, he would later return the gifts for money to play
cards.
Ward’s sole argument is that he should be treated similarly to the defendant in
Granger v. State, 946 N.E.2d 1209 (Ind. Ct. App. 2011), whose aggregate sentence for
sex offenses involving two children was reduced from sixty years to fifty years with ten
years suspended. On this basis, he asks us to revise his aggregate sentence to the
minimum of twenty years.
In Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied, this
Court, in commenting upon the argument that maximum sentences should be reserved for
the worst offenses and offenders, concluded: “We 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 of the offense for which the defendant is being sentenced,
and what it reveals about the defendant’s character.” The same approach applies here.
Whether we conclude that a sentence is inappropriate “turns on our sense of 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.” Cardwell v. State, 895 N.E.2d
1219, 1224 (Ind. 2008).
For three years, commencing when J.D. was seven years old, Ward repeatedly
molested her in their home while the child was left in his care and custody. He recorded
at least one of the molestations on his cell phone. For these offenses and his character,
5 the court imposed consecutive advisory terms for an aggregate sentence of thirty-four
years. This is far from inappropriate.
CONCLUSION
For the reasons stated, we affirm Ward’s sentence.
Affirmed.
MATHIAS, J., and PYLE, J., concur.