MEMORANDUM DECISION May 13 2015, 10:43 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 Chad A. Montgomery Gregory F. Zoeller Lafayette, Indiana Attorney General of Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Richard A. Gill, May 13, 2015
Appellant-Defendant, Court of Appeals Case No. 79A02-1408-CR-594 v. Appeal from the Tippecanoe Superior Court. State of Indiana, The Honorable Randy J. Williams, Judge. Appellee-Plaintiff Cause No. 79D01-1311-FA-16
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision | 79A02-1408-CR-594 | May 13, 2015 Page 1 of 20 STATEMENT OF THE CASE
[1] Appellant-Defendant, Richard A. Gill (Gill), appeals his conviction of three
Counts of child molesting, Class A felonies, Ind. Code § 35-42-4-3(a)(1) (2012);
one Count of sexual misconduct with a minor, a Class B felony, I.C. § 35-42-4-
9(a)(1) (2012); one Count of sexual misconduct with a minor, a Class C felony,
I.C. § 35-42-4-9(b)(1) (2012); and five Counts of child molesting, Class C
felonies, I.C. § 35-42-4-3(b) (2012).
[2] We affirm.
ISSUES
[3] Gill raises three issues on appeal, which we restate as follows:
(1) Whether the State presented evidence beyond a reasonable doubt to support
Gill’s conviction;
(2) Whether the trial court abused its sentencing discretion; and
(3) Whether Gill’s sentence is inappropriate in light of the nature of the offense
and his character.
FACTS AND PROCEDURAL HISTORY
[4] In approximately 2002, Gill began dating Misty Ramirez (Ramirez). Soon
thereafter, Ramirez and her three young children—sons, B.B., born June 26,
1997, and A.R., born July 10, 2001; and daughter, V.B., born November 20,
1998—moved into Gill’s house. At some point, they relocated to a larger
home, located at 1718 Rainey Street in Lafayette, Tippecanoe County, Indiana.
On January 4, 2005, Ramirez gave birth to her third son, L.G.—her only child
Court of Appeals of Indiana | Memorandum Decision | 79A02-1408-CR-594 | May 13, 2015 Page 2 of 20 with Gill. As neither Gill nor Ramirez were legally divorced from their first
spouses, they never got married. However, they lived together for over eleven
years, and during that time, Ramirez’ children considered Gill to be their
stepfather. For the majority of their relationship, Gill was unemployed, so he
primarily stayed home with the children while Ramirez worked.
[5] When V.B. was about seven or eight years old, Gill asked her to come into his
bedroom one morning when Ramirez was not at home and while her brothers
were still asleep. Gill asked V.B. to rub and scratch his back, and V.B.
complied. At Gill’s request, V.B. moved her hands lower so that she was
rubbing Gill’s hips. Gill then instructed V.B. to lay in front of him so that he
could scratch her back. Gill began rubbing V.B.’s back but then moved down to
her hips and eventually reached over to rub “the front part of [her] vagina” over
the top of her pajamas. (Tr. p. 131). V.B. indicated that she could feel Gill’s
erect penis—i.e., “a bump”—pressed against her butt. (Tr. p. 132). As an
excuse to “get away” from Gill, V.B. stated that she needed to use the restroom.
(Tr. p. 132). V.B. did not report the incident to Ramirez or anyone else.
[6] In January of 2008, just after his third birthday, L.G. became very ill. After he
was diagnosed with viral meningitis, L.G. was transported to Riley Hospital for
Children in Indianapolis, Indiana, where he remained hospitalized for nearly
three months. Throughout L.G.’s hospitalization, Gill stayed with him during
the week and Ramirez remained in Lafayette to work and to care for the other
children. Then, on the weekends, Ramirez stayed with L.G. in Indianapolis
while Gill returned to Lafayette to care for B.B., V.B., and A.R. On those
Court of Appeals of Indiana | Memorandum Decision | 79A02-1408-CR-594 | May 13, 2015 Page 3 of 20 weekends that Gill was home with the children, he would ask V.B. to come into
his bedroom in order to scratch his back and would end up “just rubbing [and]
touching [her] vagina.” (Tr. p. 136). At least once, A.R. came downstairs and
saw V.B. on Gill’s bed with his hand “[i]n her private part.” (Tr. p. 193).
When A.R. questioned V.B. about what he saw, V.B. refused to discuss it.
Similarly, B.B. once walked past Gill’s bedroom and saw V.B. sitting on the
floor with Gill’s hand down the front of her skirt. When Gill saw that B.B. was
watching, he removed his hand without saying anything.
[7] On March 30, 2008, L.G. was released from the hospital. On some night
thereafter, V.B. was asleep in her bed when she awoke to “a bad sharp pain in
[her] butt.” (Tr. p. 133). She turned her head and saw Gill standing over her
with his pants down, and she realized that her own pajama pants had also been
pulled down. The next day, V.B. complained to Ramirez that her butt was sore
and bleeding. Believing that her skin was “probably just dry[,]” Ramirez
suggested that V.B. apply lotion to her butt. (Tr. p. 135).
[8] For a few years, Gill did not commit any further acts of molestation against
V.B. However, when V.B. turned twelve, Gill started fondling her again. He
regularly asked V.B. for hugs, during which he would place his hands inside her
pants and “rub on the front part of [her] vagina.” (Tr. p. 138). Gill would also
ask V.B. to grab his penis. Gill explained to V.B. that “it was normal to mess
around because [she] was young and [she] would be experienced when [she]
was older.” (Tr. p. 150). V.B. told her two best friends that Gill was touching
Court of Appeals of Indiana | Memorandum Decision | 79A02-1408-CR-594 | May 13, 2015 Page 4 of 20 her, but when they insisted on reporting the matter to the school counselor,
V.B. said that she had lied and stopped speaking to her friends.
[9] Between the ages of twelve and fourteen, Gill frequently touched V.B. with his
penis. “He would spit on his hand and . . . rub it on his thing and he would spit
on his hand and rub it on the inner of [her] vagina.” (Tr. p. 147). At times, Gill
attempted to kiss V.B., but she would only allow him to kiss her on the cheek.
Gill would also kiss V.B.’s neck, and he would tell her to squeeze her breasts
together while he fondled and licked them. B.B. often would see Gill hugging
V.B. with his hands placed on her butt, and one evening after he had been in a
fight with Gill, B.B. told Ramirez that Gill was touching and hurting V.B. B.B.
said that Ramirez “yelled at [V.B.] and said . . . if you’re telling the truth I don’t
want you in this house.” (Tr. p. 214). According to Ramirez, when B.B.
mentioned the sexual abuse, she questioned V.B., but V.B. denied it.
[10] Gill had vaginal intercourse with V.B. for the first time when she was thirteen
years old. He took her down to the basement, pulled her pants halfway down,
and started rubbing her vagina and touching and licking her breasts while she
touched his penis. He then told V.B. to lay down on the futon, and he removed
her pants, held her legs up, and inserted his penis into her vagina. She asked
him to stop because it was painful, and Gill explained that it was going to hurt
because it was her first time. When V.B. continued to complain about the pain,
Gill suggested that they “try it from the butt” instead. (Tr. p. 139). Gill
inserted his penis into V.B.’s anus, which “hurt worse than it did on the front
side.” (Tr. p. 139). She asked Gill to stop, and she observed that semen came
Court of Appeals of Indiana | Memorandum Decision | 79A02-1408-CR-594 | May 13, 2015 Page 5 of 20 out of his penis “when he pulled it out.” (Tr. p. 140). V.B. stated that her butt
“started bleeding again after that.” (Tr. p. 139). On another occasion when
V.B. was thirteen years old, Gill and V.B. were standing in the basement
doorway, and he directed V.B. to pull her pants down and proceeded to rub his
penis on V.B.’s vagina. He then put a condom on his penis and inserted it in
her vagina, causing V.B. pain. However, a noise on the staircase prompted Gill
to stop, so V.B. pulled up her pants and ran to the restroom.
[11] In December of 2012, a month after V.B.’s fourteenth birthday, Gill again
initiated sexual intercourse with V.B. Because V.B. was experiencing her first
menstrual cycle, the penetration caused her to get blood on the carpet, so Gill
stopped in order for V.B. to clean up the blood. For the next few months, V.B.
did not menstruate, and she became concerned that she was pregnant. V.B.
shared this information with Gill, who advised her to punch herself in the
stomach. In February of 2013, V.B. stole a pregnancy test from a CVS, which
confirmed that she was not pregnant. Gill told V.B. that if she ever told
anyone, she and her siblings would be sent to different foster homes.
[12] On March 11, 2013, allegations of physical and sexual abuse concerning V.B.
were reported to the Indiana Department of Child Services (DCS). DCS
arranged for V.B. to be picked up from school and transported to the Hartford
House—a neutral, child-friendly environment—for a forensic interview. V.B.
explicitly informed the investigator that she had never been sexually abused.
The following day, a DCS assessment worker interviewed Gill, Ramirez, B.B.,
and A.R. at the family’s home. Gill and Ramirez sat in the room during A.R.’s
Court of Appeals of Indiana | Memorandum Decision | 79A02-1408-CR-594 | May 13, 2015 Page 6 of 20 interview, and A.R. indicated that he was not aware of any sexual abuse. B.B.,
who was interviewed separately, also denied having any knowledge about
sexual abuse involving V.B. Gill informed DCS “[t]hat he would never touch
[V.B.]. He loved her like they were his children and he would never do that to
her.” (Tr. p. 54). DCS concluded that the allegations were unsubstantiated.
[13] In early 2013, V.B. began dating a schoolmate, E.R. During their spring break,
E.R. stayed at V.B.’s house. On March 28, 2013, while Ramirez was out of the
house, V.B. and E.R. were upstairs watching television. When V.B. excused
herself to use the restroom downstairs, Gill intercepted her and proceeded to
fondle her. Gill pulled V.B.’s pants halfway down and was rubbing his penis
against her vagina when they heard a creek on the staircase and realized that
E.R. had witnessed their interaction. E.R. confronted Gill about what he saw,
but Gill tried to convince E.R. that nothing had happened. The next night,
E.R. wrote a letter to V.B. stating that he needed to take a break from their
relationship as he could not deal with the fact that Gill was “touching” her.
(State’s Exh. 24).
[14] At the beginning of April 2013, Ramirez contacted her sister, Melissa Duarte
(Duarte), via Facebook and stated that she needed to get herself and the
children out of the house immediately. Duarte, who lives in Houston, Texas,
drove through the night. When she reached Lafayette on April 9, 2013, Duarte
was concerned about Gill’s reaction to removing the children from the home, so
she contacted the Lafayette Police Department for assistance. As Duarte was
driving Ramirez and all four children out of town, Ramirez indicated that Gill
Court of Appeals of Indiana | Memorandum Decision | 79A02-1408-CR-594 | May 13, 2015 Page 7 of 20 had been sexually molesting V.B., at which point V.B. broke down crying.
Duarte dropped Ramirez off in Kentucky to meet a boyfriend and then
continued on to Texas with the children. Along the way, the children opened
up to Duarte about what had been going on in their home. On April 10, 2013,
Duarte took V.B. to Texas Children’s Hospital for a sexual assault examination
because V.B. “was complaining of dysuria, which is pain with urination,
vaginal discharge and then rectal pain.” (Tr. p. 300). The Texas Department of
Family and Protective Services subsequently interviewed V.B., B.B. and A.R.,
all of whom confirmed that Gill had been molesting V.B. The three children
also explained that they had initially denied the allegations because they were
afraid they would be punished and that their family would be split up. Texas
authorities relayed the results of their investigation to the Indiana authorities.
[15] On November 13, 2013, the State filed an Information, charging Gill with
Counts I, II, IV, and V, child molesting as Class A felonies; and Count III,
attempted child molesting, a Class A felony. On March 11, 2014, the State filed
an amended Information, adding Counts VI, VII, IX, X and XI, child molesting
as Class C felonies; and Counts VIII and XII, sexual misconduct with a minor
as Class C felonies. On July 15-17, 2014, a jury trial was conducted. When the
State rested its case-in-chief, it moved to amend Count V of the Information
from a Class A felony child molesting to a Class B felony sexual misconduct
with a minor. With no objection from Gill, the trial court granted the State’s
motion. At the close of the evidence, the jury returned a guilty verdict on
Court of Appeals of Indiana | Memorandum Decision | 79A02-1408-CR-594 | May 13, 2015 Page 8 of 20 Counts I, II, IV, V, VI, VII, VIII, IX, X, and XI, and the trial court entered a
judgment of conviction on the same. Gill was acquitted of Counts III and XII.
[16] On August 14, 2014, the trial court conducted a sentencing hearing and
imposed terms of forty years on Count I, thirty years each on Counts II and IV,
ten years on Count V, eight years each on Counts VI and VII, and four years
each on Counts VIII, IX, X, and XI. The trial court ordered the sentences for
Counts I, VI, and VII to run concurrently, the sentences on Counts II, IV, IX,
X, and XI to run concurrently, and the sentences on Counts V and VIII to run
concurrently. The trial court further ordered that the three concurrent
sentencing groups should run consecutively, resulting in an aggregate sentence
of eighty years, fully executed in the Indiana Department of Correction.
[17] Gill now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Sufficiency of the Evidence
[18] Gill claims that there is insufficient evidence to support his conviction as to
Counts I, II, and IV, child molesting as Class A felonies; and Count V, sexual
misconduct with a minor as a Class B felony. Our standard of review for
sufficiency of the evidence claims is well established. On appeal, this court will
not reweigh the evidence or assess the credibility of witnesses, and “[w]e
consider only the probative evidence and reasonable inferences supporting the
verdict and consider conflicting evidence most favorable to the verdict.” Stetler
v. State, 972 N.E.2d 404, 406 (Ind. Ct. App. 2012), trans. denied. We will uphold
Court of Appeals of Indiana | Memorandum Decision | 79A02-1408-CR-594 | May 13, 2015 Page 9 of 20 the conviction “unless no reasonable fact-finder could find the elements of the
crime proven beyond a reasonable doubt.” Id. Thus, it is “not necessary that
the evidence overcome every reasonable hypothesis of innocence.” Feyka v.
State, 972 N.E.2d 387, 392 (Ind. Ct. App. 2012), review denied. Rather, we will
find sufficient evidence so long as an inference may reasonably be drawn
therefrom to support the verdict. Id. We now address each Count in turn.1
A. Count I
[19] Count I of the Information charged Gill with child molesting as a Class A
felony. In order to uphold his conviction, the State was required to prove
beyond a reasonable doubt that Gill, being at least twenty-one years of age,
“perform[ed] or submit[ted] to sexual intercourse or deviate sexual conduct”
with V.B. when she was less than fourteen years old. I.C. § 35-42-4-3(a)(1)
(2012). Pursuant to Indiana Code section 35-31.5-2-302, “‘[s]exual intercourse’
means an act that includes any penetration of the female sex organ by the male
sex organ.” On the other hand, “[d]eviate sexual conduct” is defined, in part,
as “an act involving . . . a sex organ of one (1) person and the mouth or anus of
another person.” I.C. § 35-31.5-2-94(1) (2012).
[20] In this case, the Information refers to “an act involving the penis of [Gill] and
the anus of V.B.” (Appellant’s App. p. 23). As the State clarified at trial, this
charge pertains to the instance in which V.B. was awakened by a sharp pain in
1 Gill does not challenge the sufficiency of the evidence supporting his conviction of Counts VI through XI.
Court of Appeals of Indiana | Memorandum Decision | 79A02-1408-CR-594 | May 13, 2015 Page 10 of 20 her anus when she was approximately nine years old. Gill now contends that
no inference can be drawn from the evidence to establish that he “placed his
penis in [V.B.’s] anus.” (Appellant’s Br. p. 10). Specifically, Gill argues that
the evidence is insufficient because V.B. did not testify that she actually
observed Gill’s penis or the penetration of her anus therewith; the hospital
records do not specify that her anus was evaluated; and there were no eye
witnesses to the event. (Appellant’s Br. p. 10). We disagree.
[21] It is well established that “[t]he uncorroborated testimony of the victim, even if
the victim is a minor, is sufficient to sustain a conviction of child molesting.”
Feyka, 972 N.E.2d at 393. “This is true even if there are inconsistencies in the
child victim’s own testimony.” Id. In the present case, V.B. testified that she
felt a sharp pain in her butt and saw that Gill was standing over her with his
pants pulled down. The next day, she was sore and informed Ramirez that her
butt was bleeding. During the trial, the State asked V.B. whether she had felt
Gill’s penis inside her anus or just “between [her] buttocks,” and V.B.
unambiguously stated that Gill had penetrated her anus. (Tr. p. 134).
[22] Our court has previously held that “contact with the anus” is all that is required
to constitute sexual deviate conduct. Riehle v. State, 823 N.E.2d 287, 293 (Ind.
Ct. App. 2005) (emphasis added), trans. denied. Here, V.B.’s testimony clearly
establishes that Gill made contact with her anus, and based on the fact that
Gill’s pants had been pulled down, the jury could reasonably infer that he used
his penis to do so. See Mastin v. State, 966 N.E.2d 197, 202 (Ind. Ct. App. 2012)
(“Penetration can be inferred from circumstantial evidence.”), trans. denied.
Court of Appeals of Indiana | Memorandum Decision | 79A02-1408-CR-594 | May 13, 2015 Page 11 of 20 Because it was within the province of the jury to find V.B.’s testimony credible,
we find that there is sufficient evidence to affirm Gill’s conviction as to Count I,
Class A felony child molesting. See Feyka, 972 N.E.2d at 393.
B. Count II
[23] Count II of the Information also charged Gill with child molesting as a Class A
felony, stating that “on a different occasion than Count I,” Gill performed or
submitted to an act involving his penis and V.B.’s anus. (Appellant’s App. p.
24). Gill contends that “[t]he record does not reflect any testimony that could
reasonably be inferred that [he] performed or submitted to . . . deviate sexual
conduct involving his penis and V.B.’s anus” distinct from the evidence relied
upon in Count I. (Appellant’s Br. p. 11). Again, we disagree.
[24] V.B. testified that when she was thirteen years old, Gill took her down to the
basement and engaged in sexual intercourse with her. However, when V.B.
indicated that it was too painful to continue, Gill suggested that they “try it
from the butt.” (Tr. p. 139). According to V.B., Gill’s penis went inside her
anus, causing her to bleed. Again, as “[t]he uncorroborated testimony of a
child victim is sufficient to support a conviction for child molesting[,]” we find
that there is sufficient evidence to support Gill’s conviction as to Count II, Class
A felony child molesting. Kindred v. State, 973 N.E.2d 1245, 1259 (Ind. Ct.
App. 2012), trans. denied.
Court of Appeals of Indiana | Memorandum Decision | 79A02-1408-CR-594 | May 13, 2015 Page 12 of 20 C. Count IV
[25] Count IV of the Information charged Gill with a third count of Class A felony
child molesting, alleging that Gill performed or submitted to an act involving
his penis and V.B.’s vagina. On appeal, Gill contends that the evidence is
insufficient to sustain his conviction on this charge because “no inference can
be drawn from V.B.’s testimony that [he] placed his penis in her vagina. The
only statement was from V.B., no eye witnesses, and no sexual evaluation
performed.” (Appellant’s Br. p. 11). Again, we find no merit in Gill’s
argument. As we have already stated, eye witnesses and medical evaluations
are not required to establish the crime of child molestation. See Feyka, 972
N.E.2d at 393.
[26] At trial, the State tied this charge to the encounter in which Gill wore a
condom. V.B. testified that when she was thirteen years old, Gill—after
“rubbing [his penis] on the front of [her] vagina”—put a condom on and “tried
going in but it hurt.” (Tr. p. 142). V.B. explained that they were subsequently
interrupted by a noise on the staircase, which prompted her to pull up her pants
and retreat to the restroom. In order to prove that a defendant performed or
submitted to sexual intercourse, the child molestation statute “does not require
that the vagina be penetrated, only that the female sex organ be penetrated.”
Mastin, 966 N.E.2d at 202. Thus, proof of the slightest “[p]enetration of the
external genitalia, or vulva, is sufficient” to sustain a conviction. Id.
Accordingly, we find that V.B.’s testimony that Gill tried to insert his penis in
her vagina and that it caused her pain is sufficient to establish penetration—i.e.,
Court of Appeals of Indiana | Memorandum Decision | 79A02-1408-CR-594 | May 13, 2015 Page 13 of 20 sexual intercourse. Therefore, we affirm his conviction as to Count IV, Class A
felony child molesting.
D. Count V
[27] Count V of the Information, as amended, charged Gill with sexual misconduct
with a minor as a Class B felony. In order to sustain Gill’s conviction, the State
had to prove beyond a reasonable doubt that Gill, being at least twenty-one
years of age, “perform[ed] or submit[ted] to sexual intercourse or deviate sexual
conduct” with V.B. when she was “at least fourteen (14) years of age but less
than sixteen (16) years of age.” I.C. § 35-42-4-9(a)(1) (2012). The Information
specifically alleges that Gill performed or submitted to an act involving his
penis and V.B.’s vagina when V.B. was fourteen years old.
[28] Gill contends that there is no evidence from which it “could reasonably be
inferred that [he] performed or submitted to sexual intercourse . . . when V.B.
was fourteen (14) years of age.” (Appellant’s Br. p. 12). Rather, he asserts that
“[t]he only such acts that were testified to by V.B. regarding vaginal sex”
involved two instances when she was thirteen years old, as charged in Counts
III and IV. (Appellant’s Br. p. 12). We, again, disagree.
[29] V.B.’s fourteenth birthday was on November 20, 2012. V.B. distinctly
remembered that she was fourteen years old at the time of her first menstrual
cycle. She testified that in December of 2012, Gill “wanted to do something”
with her. (Tr. p. 145). However, she was menstruating at the time, so when
Gill was “putting it in[,]” she “got blood on the carpet.” (Tr. p. 145).
Court of Appeals of Indiana | Memorandum Decision | 79A02-1408-CR-594 | May 13, 2015 Page 14 of 20 According to V.B., Gill stopped because she “had to clean up the . . . spot of
blood on the floor.” (Tr. p. 145). For the next few months, V.B. did not
menstruate, so she became concerned that Gill had impregnated her. At trial,
V.B. described that Gill had instructed her to punch herself in the stomach in
case she was pregnant, and she further admitted that she had stolen a pregnancy
test, which yielded a negative result. Based on this evidence, we find that a jury
could reasonably infer that Gill had performed or submitted to sexual
intercourse with V.B. when she was fourteen years old, and we affirm Gill’s
conviction as to Count V, Class B felony sexual misconduct with a minor.
II. Trial Court’s Sentencing Discretion
[30] Next, Gill claims that the trial court abused its discretion in imposing an
aggregate sentence of eighty years. Initially, we note that a Class A felony
carries a term of imprisonment between twenty and fifty years, with thirty years
being the advisory sentence. I.C. § 35-50-2-4 (2012). On Count I, Gill was
sentenced to forty years, and on Counts II and IV, he received the advisory
sentence. The minimum and maximum sentences for a Class B felony are six
years and twenty years, respectively, with an advisory sentence of ten years.
I.C. § 35-50-2-5 (2012). On Count V, Gill was sentenced to the advisory term.
Finally, a Class C felony is punishable by a sentence ranging from two years to
eight years, with an advisory sentence of four years. I.C. § 35-50-2-6(a) (2012).
On Counts VI and VII, Gill was sentenced to the maximum term of eight years,
and on Counts VIII, IX, X, and XI, Gill received the advisory sentence.
Court of Appeals of Indiana | Memorandum Decision | 79A02-1408-CR-594 | May 13, 2015 Page 15 of 20 [31] Trial courts are vested with sound discretion in matters of sentencing and may
impose any sentence that is authorized by statute. Anglemyer v. State, 868
N.E.2d 482, 490, clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). On appeal, we
review sentencing decisions only for an abuse of discretion. Id. It is an abuse of
discretion if the trial court’s “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. (quoting K.S. v. State, 849
N.E.2d 538, 544 (Ind. 2006)). With respect to sentencing, we may find an
abuse of discretion if the trial court fails to enter a sentencing statement, enters a
finding of aggravating and mitigating factors that are unsupported by the
record, omits reasons that are clearly supported by the record but are advanced
for consideration, or includes reasons that are improper as a matter of law.
Gomillia v. State, 13 N.E.3d 846, 849 (Ind. 2014).
[32] In determining an appropriate sentence, the trial court identified the following
aggravating circumstances: Gill’s criminal history; the fact that V.B. was under
the age of twelve in three of the offenses; the repetitive nature of the offenses;
the fact that Gill was in a position of care and trust over V.B.; and Gill’s lack of
veracity. As a mitigating circumstance, the trial court noted that Gill has family
support. The trial court found that the aggravating factors outweigh the
mitigating factors and accordingly enhanced Gill’s sentences on Counts I, VI,
and VII and ordered several of the sentences to run consecutively. Gill now
argues that the trial court abused its discretion by failing to state its reasons for
imposing consecutive sentences.
Court of Appeals of Indiana | Memorandum Decision | 79A02-1408-CR-594 | May 13, 2015 Page 16 of 20 [33] The decision to impose consecutive sentences is within the trial court’s sound
discretion. Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014), trans. denied.
The trial court should state its reasoning for ordering consecutive sentences,
which may be imposed based upon a single aggravating circumstance. Id. It is
well settled that a trial court “may rely on the same reasons to impose a
maximum sentence and also impose consecutive sentences.” Gellenbeck v. State,
918 N.E.2d 706, 712 (Ind. Ct. App. 2009). Moreover, the trial court is under
no obligation “to identify the aggravators that support consecutive sentences
separately from the factors that support the sentence enhancement.” Smith v.
State, 770 N.E.2d 818, 821 (Ind. 2002). In this case, the trial court cited
numerous aggravating circumstances, any one of which could support both
enhanced and consecutive sentences. As such, we cannot say that the trial
court abused its discretion by imposing consecutive sentences.
III. Appropriateness of Sentence
[34] Finally, Gill claims that his eighty-year sentence is inappropriate in light of the
nature of the offense and his character. He requests that our court revise his
aggregate sentence to a term of thirty years. Notwithstanding the fact that the
trial court acted within its sentencing discretion, our court “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 offense and the character of the offender.” Ind. Appellate Rule 7(B).
Whether a sentence is inappropriate depends upon “our sense of the culpability
of the defendant, the severity of the crime, the damage done to others, and
Court of Appeals of Indiana | Memorandum Decision | 79A02-1408-CR-594 | May 13, 2015 Page 17 of 20 myriad other factors that come to light in a given case.” Cardwell v. State, 895
N.E.2d 1219, 1224 (Ind. 2008). We may consider “any factors appearing in the
record.” Stetler, 972 N.E.2d at 408. “The principal role of appellate 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, 895
N.E.2d at 1225. Ultimately, our focus centers on “the length of the aggregate
sentence and how it is to be served.” Sanchez v. State, 938 N.E.2d 720, 722 (Ind.
2010). Here, Gill bears the burden of demonstrating that his eighty-year
sentence is inappropriate. See Stetler, 972 N.E.2d at 408.
[35] The nature of Gill’s offenses is that he repeatedly molested V.B. over a span of
seven years, beginning when V.B. was only seven years old. In so doing, Gill
violated a position of trust with a child who considered him to be her stepfather.
Gill’s sordid fondling of V.B. is despicable in itself, but he also penetrated her
vagina and anus with his penis on multiple occasions without regard for the fact
that he was hurting her and causing her to bleed. He tried to convince her that
what they were doing was normal and that it would help her to become a more
sexually experienced adult; yet, he also threatened that she would be separated
from her siblings if she ever told anyone. When V.B. became concerned that
she could be pregnant, Gill told his fourteen-year-old stepdaughter that she
should punch herself in the stomach in an effort to terminate any possible
pregnancy. And then, by his actions, Gill forced V.B. onto a criminal path by
having to steal a pregnancy test.
Court of Appeals of Indiana | Memorandum Decision | 79A02-1408-CR-594 | May 13, 2015 Page 18 of 20 [36] As to the character of the offender, Gill has a lengthy criminal history—all
committed as an adult. In addition to two Class D felony convictions for theft
and receiving stolen property and three Class A misdemeanor convictions for
criminal conversion and theft, Gill failed to appear before the court in various
matters on sixteen separate occasions between the ages of nineteen and twenty-
nine. Five petitions to revoke probation were filed against him, one of which
was found to be true and the others were dismissed pursuant to plea
agreements. While none of these prior offenses were related to the charged
molestations, they are indicative of Gill’s proclivity for deceitful conduct and
his disrespect for the court’s authority. We recognize that, prior to the instant
case, Gill’s last conviction was in 2001. However, it is clear that Gill was not
leading a law-abiding life during this gap of time as he spent at least seven of
those years repeatedly molesting his stepdaughter. Furthermore, as noted by
the trial court, Gill’s lack of veracity throughout the trial speaks volumes about
his character. Gill provided misleading information during the pre-sentence
investigation, and during the trial—despite the trial court’s order for a
separation of witnesses—Gill contacted both Ramirez and his father to report
on the testimony of other witnesses and to instruct his father about how to
testify. Gill is already serving far less than the maximum sentence for the
crimes that he committed, and in light of the nature of the offense and his
character, we decline to revise his sentence as being inappropriate.
Court of Appeals of Indiana | Memorandum Decision | 79A02-1408-CR-594 | May 13, 2015 Page 19 of 20 CONCLUSION
[37] Based on the foregoing, we conclude that the State presented sufficient evidence
to uphold Gill’s conviction. We further conclude that the trial court acted
within its discretion in imposing consecutive sentences, and Gill’s sentence is
appropriate in light of the nature of the offense and his character.
[38] Affirmed.
[39] Bailey, J. and Barnes, J. concur
Court of Appeals of Indiana | Memorandum Decision | 79A02-1408-CR-594 | May 13, 2015 Page 20 of 20