MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 20 2017, 6:20 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark A. Bates Curtis T. Hill, Jr. Crown Point, Indiana Attorney General of Indiana
Laura R. Anderson Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Reginald Anthony Tate, September 20, 2017 Appellant-Defendant, Court of Appeals Case No. 45A04-1705-CR-998 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Salvador Vasquez, Appellee-Plaintiff Judge Trial Court Cause No. 45G01-1608-F1-6
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 45A04-1705-CR-998 | September 20, 2017 Page 1 of 9 [1] Reginald Anthony Tate appeals the thirty-year sentence imposed following his
plea of guilty to child molesting as a Level 1 felony. Tate raises the following
issues for our review:
1. Did the trial court abuse its discretion in admitting evidence at the sentencing hearing of allegations that Tate had sexually abused other children years before the offense in this case?
2. Did the trial court abuse its discretion by considering improper aggravating circumstances and overlooking significant mitigating circumstances?
3. Is Tate’s thirty-year advisory sentence inappropriate in light of the nature of the offense and his character?
[2] We affirm.
Facts & Procedural History
[3] Tate dated N.D. for nine years and was considered part of her family. Tate
sometimes babysat for N.D.’s younger siblings, including twelve-year-old S.C.
On August 11, 2016, while entrusted with S.C.’s care, Tate engaged S.C. in
sexual intercourse, penetrating her vagina with his finger and his penis. S.C.
told her mother what Tate had done to her, and the police were contacted. S.C.
underwent a rape kit examination, and Tate’s DNA was located on an anal
swab, an external genital swab, and a speculum swab.
[4] On August 12, 2016, the State charged Tate under cause number 45G01-1608-
F1-6 (Cause No. F1-6) with Level 1 felony child molesting and Level 4 felony
Court of Appeals of Indiana | Memorandum Decision 45A04-1705-CR-998 | September 20, 2017 Page 2 of 9 child molesting. Tate was subsequently charged under cause number 45G01-
1609-F4-33 (Cause No. F4-33) with Level 4 felony child molesting, two counts
of Level 5 felony criminal confinement, Level 5 felony battery, Level 6 felony
strangulation, Level 6 felony battery, and Class A misdemeanor battery. The
charges in Cause No. F4-33 all related to prior incidents between Tate and S.C.
[5] On March 1, 2017, Tate entered into a plea agreement whereby he pled guilty
to Level 1 felony child molesting under Cause No. F1-6. In return, the State
agreed to dismiss the Level 4 felony child molesting count charged under Cause
No. F1-6 and to dismiss Cause No. F4-33 in its entirety. The State also agreed
that Tate’s sentence would be capped at the thirty-year advisory sentence for a
Level 1 felony.
[6] A sentencing hearing was held on April 5, 2017, at which the State offered
evidence over Tate’s objection that Tate had allegedly sexually abused other
children years earlier. Specifically, the State introduced police reports and a
written statement from C.D.W., one of the alleged victims, who stated that
Tate had used threats and physical violence to force him and two other juvenile
males to perform oral sex on one another on multiple occasions. No charges
had been filed relating to these allegations. The trial court ultimately sentenced
Tate to thirty years executed in the Department of Correction. In pronouncing
Tate’s sentence, the trial court made it clear that it attributed “no weight
whatsoever” to the allegations involving C.D.W. Sentencing Transcript at 44.
Tate now appeals.
Court of Appeals of Indiana | Memorandum Decision 45A04-1705-CR-998 | September 20, 2017 Page 3 of 9 Discussion & Decision
1. Admission of Evidence at Sentencing
[7] Tate first argues that the trial court abused its discretion in admitting evidence
of the allegations involving C.D.W. On appeal, Tate argues that the evidence
was irrelevant and unduly prejudicial. We disagree. The admission of evidence
at a sentencing hearing is at the discretion of the trial court. Couch v. State, 977
N.E.2d 1013, 1016 (Ind. Ct. App. 2012), trans. denied. Ind. Evidence Rule
101(d)(2) specifically provides that the Rules of Evidence, other than those
regarding privileges, do not apply in sentencing hearings.
The rationale for the relaxation of evidentiary rules at sentencing is that in a trial the issue is whether a defendant is guilty of having engaged in certain criminal conduct. Rules of evidence narrowly confine the trial contest to evidence that is strictly relevant to the crime charged. At sentencing, however, the evidence is not confined to the narrow issue of guilt. The task is to determine the type and extent of punishment. This individualized sentencing process requires possession of the fullest information possible concerning the defendant’s life and characteristics.
Thomas v. State, 562 N.E.2d 43, 47-48 (Ind. Ct. App. 1998). Our Supreme
Court has held that uncharged crimes may properly be considered at a
sentencing hearing. Carter v. State, 711 N.E.2d 835, 841 (Ind. 1999) (finding no
abuse of discretion in the trial court’s consideration at the sentencing hearing of
evidence that the defendant had attempted to molest his three-year-old sister a
few weeks before murdering another child).
Court of Appeals of Indiana | Memorandum Decision 45A04-1705-CR-998 | September 20, 2017 Page 4 of 9 [8] For these reasons, we cannot conclude that the trial court’s admission of
evidence of the other allegations against Tate was an abuse of discretion. In
any event, even if the trial court had abused its discretion in this regard, we
would deem the error harmless. The trial court clearly stated that it attributed
“no weight whatsoever” to the allegations concerning C.D.W. Sentencing
Transcript at 44. In light of the trial court’s statement, we are unpersuaded by
Tate’s bald assertion that the trial court “had to have been influenced by this
evidence[.]” Appellant’s Brief at 8.
2. Aggravating and Mitigating Circumstances
[9] Tate next argues that the trial court abused its discretion in finding aggravating
and mitigating circumstances. Sentencing decisions rest within the sound
discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),
clarified on reh’g, 875 N.E.2d 218. So long as the sentence is within the statutory
range, it is subject to review only for an abuse of discretion. Id. A trial court
may abuse its sentencing discretion in a number of ways, including entering a
sentencing statement that includes aggravating factors that are unsupported by
the record or by omitting mitigating factors that are both significant and clearly
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 20 2017, 6:20 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark A. Bates Curtis T. Hill, Jr. Crown Point, Indiana Attorney General of Indiana
Laura R. Anderson Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Reginald Anthony Tate, September 20, 2017 Appellant-Defendant, Court of Appeals Case No. 45A04-1705-CR-998 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Salvador Vasquez, Appellee-Plaintiff Judge Trial Court Cause No. 45G01-1608-F1-6
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 45A04-1705-CR-998 | September 20, 2017 Page 1 of 9 [1] Reginald Anthony Tate appeals the thirty-year sentence imposed following his
plea of guilty to child molesting as a Level 1 felony. Tate raises the following
issues for our review:
1. Did the trial court abuse its discretion in admitting evidence at the sentencing hearing of allegations that Tate had sexually abused other children years before the offense in this case?
2. Did the trial court abuse its discretion by considering improper aggravating circumstances and overlooking significant mitigating circumstances?
3. Is Tate’s thirty-year advisory sentence inappropriate in light of the nature of the offense and his character?
[2] We affirm.
Facts & Procedural History
[3] Tate dated N.D. for nine years and was considered part of her family. Tate
sometimes babysat for N.D.’s younger siblings, including twelve-year-old S.C.
On August 11, 2016, while entrusted with S.C.’s care, Tate engaged S.C. in
sexual intercourse, penetrating her vagina with his finger and his penis. S.C.
told her mother what Tate had done to her, and the police were contacted. S.C.
underwent a rape kit examination, and Tate’s DNA was located on an anal
swab, an external genital swab, and a speculum swab.
[4] On August 12, 2016, the State charged Tate under cause number 45G01-1608-
F1-6 (Cause No. F1-6) with Level 1 felony child molesting and Level 4 felony
Court of Appeals of Indiana | Memorandum Decision 45A04-1705-CR-998 | September 20, 2017 Page 2 of 9 child molesting. Tate was subsequently charged under cause number 45G01-
1609-F4-33 (Cause No. F4-33) with Level 4 felony child molesting, two counts
of Level 5 felony criminal confinement, Level 5 felony battery, Level 6 felony
strangulation, Level 6 felony battery, and Class A misdemeanor battery. The
charges in Cause No. F4-33 all related to prior incidents between Tate and S.C.
[5] On March 1, 2017, Tate entered into a plea agreement whereby he pled guilty
to Level 1 felony child molesting under Cause No. F1-6. In return, the State
agreed to dismiss the Level 4 felony child molesting count charged under Cause
No. F1-6 and to dismiss Cause No. F4-33 in its entirety. The State also agreed
that Tate’s sentence would be capped at the thirty-year advisory sentence for a
Level 1 felony.
[6] A sentencing hearing was held on April 5, 2017, at which the State offered
evidence over Tate’s objection that Tate had allegedly sexually abused other
children years earlier. Specifically, the State introduced police reports and a
written statement from C.D.W., one of the alleged victims, who stated that
Tate had used threats and physical violence to force him and two other juvenile
males to perform oral sex on one another on multiple occasions. No charges
had been filed relating to these allegations. The trial court ultimately sentenced
Tate to thirty years executed in the Department of Correction. In pronouncing
Tate’s sentence, the trial court made it clear that it attributed “no weight
whatsoever” to the allegations involving C.D.W. Sentencing Transcript at 44.
Tate now appeals.
Court of Appeals of Indiana | Memorandum Decision 45A04-1705-CR-998 | September 20, 2017 Page 3 of 9 Discussion & Decision
1. Admission of Evidence at Sentencing
[7] Tate first argues that the trial court abused its discretion in admitting evidence
of the allegations involving C.D.W. On appeal, Tate argues that the evidence
was irrelevant and unduly prejudicial. We disagree. The admission of evidence
at a sentencing hearing is at the discretion of the trial court. Couch v. State, 977
N.E.2d 1013, 1016 (Ind. Ct. App. 2012), trans. denied. Ind. Evidence Rule
101(d)(2) specifically provides that the Rules of Evidence, other than those
regarding privileges, do not apply in sentencing hearings.
The rationale for the relaxation of evidentiary rules at sentencing is that in a trial the issue is whether a defendant is guilty of having engaged in certain criminal conduct. Rules of evidence narrowly confine the trial contest to evidence that is strictly relevant to the crime charged. At sentencing, however, the evidence is not confined to the narrow issue of guilt. The task is to determine the type and extent of punishment. This individualized sentencing process requires possession of the fullest information possible concerning the defendant’s life and characteristics.
Thomas v. State, 562 N.E.2d 43, 47-48 (Ind. Ct. App. 1998). Our Supreme
Court has held that uncharged crimes may properly be considered at a
sentencing hearing. Carter v. State, 711 N.E.2d 835, 841 (Ind. 1999) (finding no
abuse of discretion in the trial court’s consideration at the sentencing hearing of
evidence that the defendant had attempted to molest his three-year-old sister a
few weeks before murdering another child).
Court of Appeals of Indiana | Memorandum Decision 45A04-1705-CR-998 | September 20, 2017 Page 4 of 9 [8] For these reasons, we cannot conclude that the trial court’s admission of
evidence of the other allegations against Tate was an abuse of discretion. In
any event, even if the trial court had abused its discretion in this regard, we
would deem the error harmless. The trial court clearly stated that it attributed
“no weight whatsoever” to the allegations concerning C.D.W. Sentencing
Transcript at 44. In light of the trial court’s statement, we are unpersuaded by
Tate’s bald assertion that the trial court “had to have been influenced by this
evidence[.]” Appellant’s Brief at 8.
2. Aggravating and Mitigating Circumstances
[9] Tate next argues that the trial court abused its discretion in finding aggravating
and mitigating circumstances. Sentencing decisions rest within the sound
discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),
clarified on reh’g, 875 N.E.2d 218. So long as the sentence is within the statutory
range, it is subject to review only for an abuse of discretion. Id. A trial court
may abuse its sentencing discretion in a number of ways, including entering a
sentencing statement that includes aggravating factors that are unsupported by
the record or by omitting mitigating factors that are both significant and clearly
supported by the record. Id. at 490-91, 493. Even if the trial court is found to
have abused its discretion in sentencing the defendant, “the sentence will be
upheld if it is appropriate in accordance with Indiana Appellate Rule 7(B).”
Felder v. State, 870 N.E.2d 554, 558 (Ind. Ct. App. 2007) (citing Windhorst v.
State, 868 N.E.2d 504, 507 (Ind. 2007)).
Court of Appeals of Indiana | Memorandum Decision 45A04-1705-CR-998 | September 20, 2017 Page 5 of 9 [10] Tate first argues that the trial court abused its discretion by considering his
criminal history to be an aggravating circumstance. This argument is meritless.
A defendant’s history of criminal or delinquent behavior is a statutory
aggravating factor. See Ind. Code § 35-38-1-7.1(a)(2). Tate’s real argument is
that the trial court attributed too much weight to his criminal history. It is well
settled, however, that the relative weight assigned to properly found aggravating
and mitigating factors is not subject to review for an abuse of discretion.
Anglemyer, 868 N.E.2d at 491.
[11] Tate also argues that the trial court abused its discretion by failing to find his
remorse to be a significant mitigating factor. Although Tate claimed to be
remorseful, the trial court was in no way obligated to accept Tate’s statements
as sincere. See Hape v. State, 903 N.E.2d 977, 1002-03 (Ind. Ct. App. 2009)
(explaining that “our review of a trial court’s determination of a defendant’s
remorse is similar to our review of credibility judgments: without evidence of
some impermissible consideration by the trial court, we accept its
determination”), trans. denied. The trial court did not abuse its discretion in this
regard. In any event, even if the trial court had abused its discretion in
identifying mitigating and aggravating circumstances, reversal would not be
warranted because, as we explain below, his thirty-year advisory sentence is not
inappropriate.
3. Inappropriate Sentence
Court of Appeals of Indiana | Memorandum Decision 45A04-1705-CR-998 | September 20, 2017 Page 6 of 9 [12] Finally, Tate argues that his thirty-year advisory sentence was inappropriate in
light of the nature of his offense and his character. Article 7, section 4 of the
Indiana Constitution grants our Supreme Court the power to review and revise
criminal sentences. See Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014), cert.
denied, 135 S.Ct. 978 (2015). Pursuant to Ind. Appellate Rule 7, the Supreme
Court authorized this court to perform the same task. Cardwell v. State, 895
N.E.2d 1219, 1224 (Ind. 2008). Per App. R. 7(B), we may revise a sentence “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.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R.
7). “Sentencing review under Appellate Rule 7(B) is very deferential to the trial
court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “Such deference
should prevail unless overcome by compelling evidence portraying in a positive
light the nature of the offense (such as accompanied by restraint, regard, and
lack of brutality) and the defendant’s character (such as substantial virtuous
traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d
111, 122 (Ind. 2015).
[13] The determination of whether we regard a sentence as 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.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell, 895
N.E.2d at 1224). Moreover, “[t]he principal role of such review is to attempt to
leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). It is
Court of Appeals of Indiana | Memorandum Decision 45A04-1705-CR-998 | September 20, 2017 Page 7 of 9 not our goal in this endeavor to achieve the perceived “correct” sentence in
each case. Knapp, 9 N.E.3d at 1292. Accordingly, “the question under
Appellate Rule 7(B) is not whether another sentence is more appropriate; rather,
the question is whether the sentence imposed is inappropriate.” King v. State,
894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in original).
[14] In order to assess the appropriateness of a sentence, we first look to the
statutory range established for the classification of the relevant offense. Tate
was convicted of child molesting as a Level 1 felony, the sentencing range for
which is twenty to forty years, with an advisory sentence of thirty years. Tate
received the thirty-year advisory sentence. When a defendant has received the
advisory sentence, he faces a “particularly heavy burden” in persuading this
court that the sentence is inappropriate.1 Fernbach v. State, 954 N.E.2d 1080,
1089 (Ind. Ct. App. 2011), trans. denied.
[15] The nature of the offense in this case does not support appellate sentence
revision. Tate argues that “there was nothing especially egregious” about his
offense. Appellant’s Brief at 12. We strongly disagree. Tate had dated S.C.’s
older sister for nine years and was considered a part of the family. Tate had
known S.C. since she was in diapers. Thus, Tate violated a significant position
of trust when he molested S.C. Moreover, there was evidence presented that
1 Although Tate received the advisory sentence, he asks us to analyze his appropriateness argument as if he had received the maximum sentence because he received the maximum allowed under the plea agreement. We decline to do so. Tate’s plea agreement does nothing to change the fact that he ultimately received the advisory sentence for the offense of which he was convicted.
Court of Appeals of Indiana | Memorandum Decision 45A04-1705-CR-998 | September 20, 2017 Page 8 of 9 Tate had repeatedly molested S.C. and physically abused her. In her victim
impact statement, S.C. related an incident in which Tate choked her to keep her
quiet, and when she expressed suicidal thoughts, he handed her a knife and told
her to do it. Unsurprisingly, S.C. has been seriously traumatized. She
indicated that she never feels safe, even in her own home, and she is no longer
able to trust others. Tate’s offense was nothing short of heinous.
[16] Nor does Tate’s character warrant a lesser sentence. Tate has a significant and
violent criminal history. In 1999, when he was seventeen years old, Tate was
charged with attempted murder and aggravated battery and waived into adult
court. He ultimately pled guilty but mentally ill to aggravated battery and was
sentenced to five years. Although this was his only felony conviction prior to
the current offense, Tate amassed several misdemeanor convictions over the
next sixteen years, including multiple battery convictions. Moreover, Tate’s
abuse of S.C. reflects extremely negatively on his character. In sum, Tate has
fallen far short of convincing us that his advisory sentence is inappropriate.
[17] Judgment affirmed.
[18] Baker, J. and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 45A04-1705-CR-998 | September 20, 2017 Page 9 of 9