Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the Sep 29 2014, 9:53 am purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ERIC K. KOSELKE GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
LARRY WARREN, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1402-CR-89 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Anne M. Flannelly, Judge Pro Tempore Cause No. 49F25-1001-FA-1153
September 29, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge Larry Warren appeals his sentence for three counts of child molesting as class A
felonies and two counts of child solicitation as class D felonies. Warren raises two issues
which we revise and restate as:
I. Whether the trial court abused its discretion in sentencing him; and
II. Whether his sentence is inappropriate in light of the nature of the offense and the character of the offender.
We affirm.
FACTS AND PROCEDURAL HISTORY
The relevant facts as discussed in Warren’s appeal from his initial sentence
follow:
In approximately 1998, Warren met and became business partners with D.R., the mother of two minor daughters, J.R. and H.R. J.R. was nine years old when she met Warren, who was then approximately thirty-three years old. Soon Warren and D.R. began dating, and Warren began spending more time at D.R.’s house. Warren became a companion to J.R., driving her to skating lessons, taking her to movies, and taking her out to eat. At some point while J.R. was still nine years old, Warren began engaging in frequent sexual activity with her. For the first few years, the sexual activity included activities like oral sex but excluded intercourse. Then, when J.R. was thirteen years old, she and Warren began engaging in intercourse. Warren would often videotape sexual encounters with J.R., and he took inappropriate photographs of her. When J.R. was approximately fourteen and a half years old, Warren moved out of state for work.
When J.R. was eighteen or nineteen years old, she began a relationship with Warren, and he paid her rent on an apartment for one year. When Warren informed J.R. that he would not be renewing her lease, J.R. contacted police to report the incidents of child molesting Warren had committed during her childhood. J.R. had recovered a videotape recording depicting Warren and then-fourteen-year-old J.R. engaging in sexual activity, and she turned that videotape over to the police. J.R. also gave police inappropriate photographs Warren had taken of her when she was a minor.
2 Warren v. State, No. 49A04-1301-CR-25, slip op. at 2-3 (Ind. Ct. App. October 8, 2013).
The State charged Warren with five counts of child molesting as class A felonies
and five counts of sexual misconduct with a minor as class B felonies. The trial court
subsequently dismissed the sexual misconduct counts because the statute of limitations
had run, and the State moved to amend the information to add two counts of child
solicitation as class D felonies. Id. at 3. The court granted the State’s motion to amend.
Id. A jury found Warren guilty of three counts of child molesting as class A felonies, and
the two child solicitation counts, but acquitted Warren on two of the child molesting
counts. Id.
The court sentenced Warren to forty years for each child molesting conviction and
three years for each child solicitation conviction. Id. The court ordered that the
sentences run concurrently, except that one of the sentences for child molesting would
run consecutive to the others, for an aggregate term of eighty years. Id.
Warren appealed and argued that the trial court sentenced him in violation of his
rights under Blakely v. Washington, 542 U.S. 296 (2004). Id. at 3. On appeal, we
observed that Warren committed the offenses prior to the amendments to Indiana’s
sentencing scheme in April 2005; therefore, he was entitled to be sentenced under the
former presumptive sentencing scheme to which Blakely applied. Id. at 3-4. We held
that Warren’s testimony was sufficient to establish that he was in a position of trust with
J.R. and that this aggravator did not violate Blakely. Id. at 5. We also held that two of
the trial court’s other aggravators violated Blakely. Id. at 6. We remanded with
instructions to afford the State an election to prove to a jury those aggravating
3 circumstances initially presented to, and found by, the trial court. Id. We also held that
should the State forgo this election, the trial court should reconsider the appropriate
sentence based on the violation of a position of trust aggravator. Id.
On remand, the trial court held a hearing on January 16, 2014. The prosecutor
indicated that the State would not have a jury trial to present evidence regarding the
aggravators and that it would go forward on the aggravator of position of trust. Warren
testified regarding his accomplishments since being incarcerated and that he had no
conduct reports during that time. Specifically, he completed a ten-week course titled
“Criminal Thinking” and an anger management course, participated in Bible studies and
a veterans’ group therapy course, almost completed an addiction course, was employed
by PEN Products, was enrolled in an apprenticeship program, served as an executive
officer with the American Legion, attended church every Saturday, and played softball
and assisted in coaching. Defendant’s Exhibit 1. He also testified that he served in the
United States Army from 1984 to 1987 with the 82nd Airborne, that he began as an E1
private and left as an E5 sergeant, and then completed three years with the Virginia
National Guard. He testified that he had been diagnosed with post-traumatic stress
disorder (“PTSD”) in 1987 and was still being treated for PTSD.
Warren stated:
I have allowed myself to be put in situations that I should not have. And I’ve had to live with that every day. And I do apologize for my actions. I apologize for putting the Courts through this as well as the prosecutors, as well as my family and my attorneys. I just ask, Your Honor, to please have mercy on me. I deeply regret what I’ve done. And these things will never . . . I will never allow these things to happen or be put in that position ever again, Your Honor. And I just would like to have mercy and ask mercy
4 from the Courts and so that I can . . . so I can go home and be with my family and take care of my father, Your Honor. And be with my mom.
January 16, 2014 Transcript at 11.
The court found Warren’s lack of a prior criminal record as a mitigator. The court
stated: “with respect to the proposed mitigator that you’re likely to respond well to short
term imprisonment and your low risk to re-offend, the Court finds there is insufficient
evidence to justify that mitigator and rejects that mitigator looking at the nature and
circumstances of the offense and convictions.” Id. at 18. The court rejected Warren’s
proposed mitigator of his PTSD. The court also rejected Warren’s proposed mitigator
that he was molested as a child and stated: “If you were molested as a child, if that’s true,
then you understand the pain and the trauma that has resulted by being a victim of
molest.” Id. The court rejected Warren’s proposed mitigator that he was on GPS
monitoring for two years and did not re-offend. The court found the position of trust
Warren had with J.R. as an aggravator and that the aggravator outweighed the mitigator.
The court sentenced Warren to thirty-five years for each of his convictions for child
molesting as class A felonies. The court sentenced Warren to three years for each of the
convictions of child solicitation as class D felonies. The court ordered one of the counts
of child molesting to be served consecutive to one of the other counts of child molesting
and ordered that the remaining sentences be served concurrent with each other. Thus, the
court sentenced Warren to an aggregate sentence of seventy years.
5 DISCUSSION
I.
The first issue is whether the trial court abused its discretion in sentencing Warren.
Under the pre-April 25, 2005 sentencing statutes, sentencing decisions rest within the
discretion of the trial court and are reviewed on appeal only for an abuse of discretion.
Smallwood v. State, 773 N.E.2d 259, 263 (Ind. 2002). An abuse of discretion occurs if
“the decision is clearly against the logic and effect of the facts and circumstances” before
the court. Pierce v. State, 705 N.E.2d 173, 175 (Ind. 1998). In order for a trial court to
impose an enhanced sentence, it must: (1) identify the significant aggravating factors and
mitigating factors; (2) relate the specific facts and reasons that the court found to those
aggravators and mitigators; and (3) demonstrate that the court has balanced the
aggravators with the mitigators. Veal v. State, 784 N.E.2d 490, 494 (Ind. 2003).
Warren argues that the trial court failed to identify his military service as a
mitigator. He alleges that his military career was exemplary and lengthy. He also points
out that he developed PTSD while he was serving and that he was still being treated for
his PTSD at the time of resentencing. He further asserts that his “prison conduct
adjustment” should have been considered as a mitigating circumstance. Appellant’s Brief
at 6. With respect to his prison adjustment, Warren argues that he served eleven months
in the Department of Correction, had no write-ups, completed a ten-week anger
management program, a criminal thinking course, and had almost completed a twelve-
week addiction course. He contends that he enrolled in a veterans’ group therapy course,
held a job as a sewing machine operator, served as an executive officer with the
6 American Legion, attended church regularly, participated in a play, and coached softball
while incarcerated. Lastly, he argues that his low risk to re-offend and likelihood to
respond to short term imprisonment constituted mitigating circumstances.
The State argues that Warren did not specifically advance his military service as a
mitigating circumstance and waived this argument. The State also argues that, even if
Warren did not waive his argument, the alleged mitigating circumstance did not
constitute a substantial mitigating factor. It contends that Warren did not present any
documentation regarding his military service or PTSD and that he did not provide
evidence of any nexus between his alleged PTSD and molesting J.R. It asserts that
“molesting a nine-year-old girl and continuing to molest her as she grew up is certainly
something that is not encompassed within the honor and integrity of military service.”
Appellee’s Brief at 10. It argues that Warren’s positive prison adjustment is to be
commended but shows only his behavior when confronted with a tightly disciplined
environment. The State also contends that the court did not abuse its discretion in failing
to find that Warren had a low risk to re-offend given that he committed multiple acts of
sexual abuse against J.R. over many years.
“The finding of mitigating factors is not mandatory and rests within the discretion
of the trial court.” Ellis v. State, 736 N.E.2d 731, 736 (Ind. 2000). The trial court is not
obligated to accept the defendant’s arguments as to what constitutes a mitigating factor.
Gross v. State, 769 N.E.2d 1136, 1140 (Ind. 2002). “Nor is the court required to give the
same weight to proffered mitigating factors as the defendant does.” Id. Further, the trial
court is not obligated to explain why it did not find a factor to be significantly mitigating.
7 Sherwood v. State, 749 N.E.2d 36, 38 (Ind. 2001). However, the trial court may “not
ignore facts in the record that would mitigate an offense, and a failure to find mitigating
circumstances that are clearly supported by the record may imply that the trial court
failed to properly consider them.” Id. 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. Carter v. State, 711 N.E.2d 835,
838 (Ind. 1999).
With respect to Warren’s military service, Warren’s trial counsel did not argue
that his military service constituted a mitigator. “If the defendant does not advance a
factor to be mitigating at sentencing, this Court will presume that the factor is not
significant and the defendant is precluded from advancing it as a mitigating circumstance
for the first time on appeal.” Henley v. State, 881 N.E.2d 639, 651 (Ind. 2008) (quoting
Spears v. State, 735 N.E.2d 1161, 1167 (Ind. 2000), reh’g denied). Waiver
notwithstanding, we observe that service to our country is a commendable act, but
military service is not necessarily a mitigating circumstance. See Harman v. State, 4
N.E.3d 209, 218 (Ind. Ct. App. 2014), trans. denied. Warren does not point to any
documentation related to his military service and points only to his testimony at the
sentencing hearing. We cannot say that Warren established that the mitigating evidence
was both significant and clearly supported by the record. See id. (observing that the State
pointed out during the sentencing hearing that the defendant’s actions were the actions
“of a monster and not of a Marine,” and holding that the trial court did not abuse its
8 discretion by not finding the defendant’s military service to be a mitigating
circumstance).
As to Warren’s PTSD, we observe that the Indiana Supreme Court has stated that
there is a need “for a high level of discernment when assessing a claim that mental illness
warrants mitigating weight.” Covington v. State, 842 N.E.2d 345, 349 (Ind. 2006).
Factors to consider in weighing the mitigating force of a mental health issue include the
extent of the inability to control behavior, the overall limit on function, the duration of
the illness, and the nexus between the illness and the crime. Id. Warren claimed to have
been suffering from PTSD, but failed to provide the trial court with any expert testimony,
medical records, or other evidence regarding this condition, its extent, any limits on his
function, or how it relates to the crime. We cannot say that the trial court abused its
discretion in not considering Warren’s PTSD as a mitigating circumstance.
As for Warren’s conduct in prison, while Warren asserts that the trial court made
no mention of any evidence of his good prison adjustment when pronouncing the
sentence, we observe that the court stated: “And with respect to the classes and the
programs that you’ve completed in the Indiana Department of Correction, you will
receive credit as appropriate through the Department of Correction for any education or
skills programs that you complete that comply with the statute for credit time.” January
16, 2014 Transcript at 19-20. The trial court is in the best position to judge whether
activities undertaken while incarcerated have had a positive effect on a defendant.
Patterson v. State, 846 N.E.2d 723, 730 (Ind. Ct. App. 2006). We cannot say that the
court abused its discretion with respect to this alleged mitigator. See id. (rejecting the
9 defendant’s argument that the trial court abused its discretion in refusing to assign
significant mitigating weight to the defendant’s achievements while incarcerated where
the defendant pointed to a parenting certificate and attendance at drug and alcohol classes
and church while incarcerated, but he failed to explain why those facts were entitled to
significant mitigating weight or suggest that he was not simply going through the motions
in an effort to receive a reduced sentence).
To the extent that Warren alleges that the court failed to identify that he was a low
risk to re-offend and was likely to respond to short term imprisonment as mitigating
circumstances, the court stated: “with respect to the proposed mitigator that you’re likely
to respond well to short term imprisonment and your low risk to re-offend, the Court
finds there is insufficient evidence to justify that mitigator and rejects that mitigator
looking at the nature and circumstances of the offense and convictions.” January 16,
2014 Transcript at 18. We cannot say that the court abused its discretion. See Harlan v.
State, 971 N.E.2d 163, 171 (Ind. Ct. App. 2012) (rejecting the defendant’s claim that the
trial court should have found that he was unlikely to commit another crime and
observing, in part, that the defendant molested the victim repeatedly over a span of years
despite having ample opportunity to end his abusive behavior).
II.
The next issue is whether Warren’s sentence is inappropriate in light of the nature
of the offense and the character of the offender. Ind. Appellate Rule 7(B) provides that
we “may 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
10 offense and the character of the offender.” Under this rule, the burden is on the defendant
to persuade the appellate court that his or her sentence is inappropriate. Childress v.
State, 848 N.E.2d 1073, 1080 (Ind. 2006).
Warren points to his lack of criminal history, his military service, his conduct in
prison, the fact that he had been a victim of molestation, and the fact that he is in poor
health. He requests that this court revise the executed portion of his sentence to an
aggregate sentence of thirty years. The State argues that the nature of the offense in this
case is heinous and that Warren “effectively groomed and bribed his young victim into
providing him with sex and not telling about it by taking her places she wanted to go and
buying her things that she wanted.” Appellee’s Brief at 15. With respect to Warren’s
character, the State argues that Warren has not led a law-abiding life, experimented with
and used illegal substances, and did not have remorse for his sexual acts against J.R.
Our review of the nature of the offense reveals that Warren began dating D.R.,
became a companion to D.R.’s daughter, J.R., was in a position of trust with J.R., and
began engaging in frequent sexual activity with J.R. when she was nine years old. For
the first few years, the sexual activity included oral sex but excluded intercourse. When
J.R. was thirteen years old, she and Warren began engaging in intercourse. Warren
would often videotape sexual encounters with J.R., and he took inappropriate
photographs of her.
Our review of the character of the offender reveals that Warren has no other
criminal history. According to the presentence investigation report (“PSI”), Warren
stated that he tried marijuana when he was seventeen or eighteen years old, last used it in
11 1983, and used it a total of two times. He stated that he first tried cocaine when he was
between thirty and thirty-five years old and last used it in 2005. On the form titled
“Defendant’s Version of the Instant Offense,” Warren wrote: “I apologize for any
inconveinance’s [sic] that I may have caused all involved.” PSI at 15. In 1993, the State
charged Warren with battery resulting in bodily injury as a class A misdemeanor, but the
charge was dismissed, and the PSI states “Essential Civilian Witness Not Present.” Id. at
4.
We observe that the trial court enhanced Warren’s sentences on the class A
felonies by five years above the presumptive sentence of thirty years and ordered only
two of the three sentences on the class A felonies to be served consecutively. The court
also ordered that the sentences for the two class D felonies be served concurrently. After
due consideration of the trial court’s decision and in light of the position of trust Warren
held with J.R., we conclude that the sentence imposed by the trial court is not
inappropriate in light of the nature of the offense and the character of the offender.
CONCLUSION
For the foregoing reasons, we affirm Warren’s sentence.
Affirmed.
BARNES, J., and BRADFORD, J., concur.