MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 26 2016, 9:27 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark Worthley Gregory F. Zoeller Worthley Law Attorney General of Indiana Valparaiso, Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Robert Stevenson, September 26, 2016 Appellant-Defendant, Court of Appeals Case No. 64A03-1511-CR-2038 v. Appeal from the Porter Superior Court State of Indiana, The Honorable Mark A. Smith, Appellee-Plaintiff. Judge Trial Court Cause No. 64D05-1405-FA-3931
Bradford, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016 Page 1 of 20 [1] On May 7, 2014, Appellant-Defendant Robert Stevenson was charged with
Class A felony child molestation after allegations arose that he had repeatedly
forced his girlfriend’s granddaughter, M.C., to place his penis in her mouth.
M.C. was between the ages of two and four-and-a-half at the time Stevenson
committed the sexual abuse. Following a three-day jury trial, Stevenson was
found guilty as charged. He was subsequently sentenced to a term of forty
years, ten years of which were suspended to probation.
[2] On appeal, Stevenson contends that the evidence is insufficient to sustain his
conviction and that the trial court abused its discretion in excluding and
admitting certain evidence. He also contends that the trial court abused its
discretion in sentencing him and that his sentence is inappropriate. We affirm.
Facts and Procedural History [3] Roy Castro and Amanda Boer are the parents of two minor children: M.C. and
J.C. (collectively, “the Children”). At the time of Stevenson’s criminal trial,
M.C. was six years old and J.C. was four years old.
[4] In early 2014, Boer’s mother, Carolyn, would frequently babysit the Children.
At all relevant times, Stevenson was Carolyn’s boyfriend. Stevenson would
frequently spend time with the Children while they were at Carolyn’s house.
[5] On January 30, 2014, Castro, Castro’s mother, M.C., and J.C. were in a vehicle
together driving home from the dentist. While in the vehicle together, the topic
turned to “puppy chow,” a snack made of Chex mix covered with powdered
Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016 Page 2 of 20 sugar. Tr. p. 34. J.C. indicated that the powdered sugar looked like the baby
powder that Boer put “on his butt and his hooey during normal [diaper]
changing practices.” Tr. p. 34. The Children used the term “hooey” to refer to
a penis. During this conversation, M.C. said that “Grandpa Rob has a hooey
and he asks us to suck it all the time.” Tr. p. 48. After hearing M.C.’s
statement about “Grandpa Rob,” Castro dropped the Children off with his
sister and notified the police.
[6] Valparaiso Police Sergeant Jerami Simpson took the report from Castro, Boer,
and Castro’s mother. While taking the report, Sergeant Simpson instructed
Castro and Boer not to allow M.C. and J.C. to return to Carolyn’s residence.
After taking the report, Sergeant Simpson relayed the report to the Department
of Child Services (“DCS”). DCS case manager Rachel Gibson was assigned to
the case. She soon thereafter arranged for the Children to be interviewed.
[7] On February 12, 2014, the Children were forensically interviewed by Angie
Marsh, a certified forensic interviewer. During her interview, M.C. disclosed
that Stevenson had made her suck on his “hooey” while she was in the master
bedroom of Carolyn’s home. M.C. indicated that she had to suck on
Stevenson’s penis because he told her to, even though she did not want to. She
indicated that he made her do so on numerous occasions. M.C. described
Stevenson’s penis as looking “hairy and brownish” and being “squishy.” Tr. p.
103. M.C. identified Stevenson’s pubic hair as brown, silver and gray. M.C.
indicated that one time Stevenson “peed” on the bed and that the “pee” was
white. State’s Ex. 6. She also indicated that Stevenson wiggled his penis with
Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016 Page 3 of 20 his hand. M.C. further indicated that J.C. was present and watching television
in the room when Stevenson forced her to suck on his penis. During his
forensic interview with Marsh, J.C. indicated that he saw something happen but
did not elaborate on what he saw.
[8] On February 13, 2014, Valparaiso Police Detective Brian Thurman interviewed
Stevenson. During this interview, Stevenson stated that he was forty-five years
old; that he lived with his girlfriend, Carolyn; and that he considered M.C. and
J.C. to be his grandchildren. Stevenson admitted that there would be times
when he would be alone with M.C. and J.C. in the master bedroom of the
home he shared with Carolyn. Stevenson denied sexually molesting either of
the Children.
[9] On May 7, 2014, Appellee-Plaintiff the State of Indiana (the “State”) charged
Stevenson with Class A felony child molestation. Following a three-day jury
trial, Stevenson was found guilty as charged. On October 22, 2015, the trial
court sentenced Stevenson to a term of forty years, with ten of those years
suspended to probation. This appeal follows.
Discussion and Decision I. Sufficiency of the Evidence [10] Stevenson contends that the evidence is insufficient to sustain his conviction for
Class A felony child molesting.
Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016 Page 4 of 20 When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder’s role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court’s ruling. Appellate courts affirm the conviction unless no reasonable fact- finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.
Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and
quotations omitted). “In essence, we assess only whether the verdict could be
reached based on reasonable inferences that may be drawn from the evidence
presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in
original). Upon review, appellate courts do not reweigh the evidence or assess
the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind.
2002).
[11] In order to convict Stevenson of Class A felony child molesting, the State was
required to prove that Stevenson was at least twenty-one years of age and
performed or submitted to sexual intercourse or deviate sexual conduct with a
Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016 Page 5 of 20 child under fourteen years of age. Ind. Code § 35-42-4-3(a).1 Deviate sexual
conduct was defined as an act involving “(1) a sex organ of one (1) person and
the mouth or anus of another person; or (2) the penetration of the sex organ or
anus of a person by an object.” Ind. Code § 35-31.5-2-94.
[12] In raising this contention, Stevenson claims that the evidence should be found
insufficient to sustain his conviction because M.C.’s testimony should have
been found unreliable under the incredible dubiosity rule. The Indiana
Supreme Court has held that the incredible dubiosity rule applies only in
situations “‘where a sole witness presents inherently contradictory testimony
which is equivocal or the result of coercion and there is a complete lack of
circumstantial evidence of the appellant’s guilt.’” Moore v. State, 27 N.E.3d 749,
755 (Ind. 2015) (quoting Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994))
(emphases in Moore). The Indiana Supreme Court has explained that “while
incredible dubiosity provides a standard that is ‘not impossible’ to meet, it is a
‘difficult standard to meet, [and] one that requires great ambiguity and
inconsistency in the evidence.’” Id. at 756 (quoting Edwards v. State, 753 N.E.2d
618, 622 (Ind. 2001)). “‘The testimony must be so convoluted and/or contrary
to human experience that no reasonable person could believe it.’” Id. (quoting
Edwards, 753 N.E.2d at 622 (internal citation omitted)). Thus, the Indiana
1 Indiana Code section 35-42-4-3 was amended in accordance with Indiana’s new criminal code on July 1, 2014. However, because Stevenson’s criminal actions occurred prior to July 1, 2014, we will apply the version of Indiana Code section 35-42-4-3 that was in effect at the time Stevenson committed the acts at issue.
Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016 Page 6 of 20 Supreme Court has held that a finding of incredible dubiosity “is a rare
occasion.” Id.
[13] In arguing that M.C.’s testimony was incredibly dubious, Stevenson claims that
M.C.’s testimony was incredibly dubious because the evidence demonstrates
that he was never alone in the home with M.C. without Carolyn present.
Regardless of whether Stevenson was ever alone in Carolyn’s home with the
children, the evidence demonstrates that Stevenson admitted to Detective Brian
Thurman that he would watch television with the children on the bed in the
master bedroom “all the time.” Tr. p. 213. The record further indicates that
Carolyn was not always present in the bedroom with Stevenson and the
children. Specifically, Mother testified that she had observed the children in the
bedroom with Stevenson while Carolyn was “[o]n the computer in the other
room.” Tr. p. 119. Likewise, Father testified that when he would pick the
children up from Carolyn’s home, he observed that Stevenson “would be in the
bedroom on the bed and the kids would be on the bed with him and they would
be watching TV.” Tr. p. 55. Father further testified that at these times, Carolyn
would “usually be on the computer in the kitchen.” Tr. p. 56. Given this
testimony, we find Stevenson’s claim that the evidence demonstrated that he
never was never alone with the children without Carolyn present to be without
merit. As such, we cannot say that M.C.’s testimony was incredibly dubious
for this reason.
[14] Stevenson also claims that M.C.’s testimony was incredibly dubious because
M.C.’s testimony regarding the color of his pubic hair was not accurate.
Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016 Page 7 of 20 During her interview with Angie Marsh, a forensic interviewer, M.C. indicated
that Stevenson’s pubic hair was brown, silver, and gray. M.C.’s testimony was
largely consistent at trial where she testified that Stevenson’s pubic hair was
“brownish.” Tr. p. 97, 103. Stevenson claims that the evidence demonstrates
that his pubic hair was black. While the evidence relied upon by Stevenson
demonstrates that Stevenson’s pubic hair is dark in color, the evidence is such,
however, that one could reasonably describe Steven’s public hair as being
“brownish” in color. As such, we cannot say that M.C.’s testimony in this
regard was incredibly dubious.
II. Evidentiary Questions [15] Stevenson also contends that the trial court abused its discretion in excluding
certain evidence from trial and admitting other evidence at trial.
The admission or exclusion of evidence is entrusted to the discretion of the trial court. Farris v. State, 818 N.E.2d 63, 67 (Ind. Ct. App. 2004). We will reverse a trial court’s decision only for an abuse of discretion. Id. We will consider the conflicting evidence most favorable to the trial court’s ruling and any uncontested evidence favorable to the defendant. Taylor v. State, 891 N.E.2d 155, 158 (Ind. Ct. App. 2008). An abuse of discretion occurs when the trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court or it misinterprets the law. Id. In determining whether an error in the introduction of evidence affected an appellant’s substantial rights, we assess the probable impact of the evidence on the jury. Oldham v. State, 779 N.E.2d 1162, 1170 (Ind. Ct. App. 2002). Admission of evidence is harmless and is not grounds for reversal where the evidence is merely cumulative of
Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016 Page 8 of 20 other evidence admitted. Pavey v. State, 764 N.E.2d 692, 703 (Ind. Ct. App. 2002).
Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012). “Moreover, the trial
court’s ruling will be upheld if it is sustainable on any legal theory supported by
the record, even if the trial court did not use that theory.” Rush v. State, 881
N.E.2d 46, 50 (Ind. Ct. App. 2008) (citing Gonser v. State, 843 N.E.2d 947, 950
(Ind. Ct. App. 2006)).
A. Exclusion of Certain Evidence [16] Stevenson argues that the trial court abused its discretion in ruling that he could
not call J.C. as a witness at trial.
Every defendant has the fundamental right to present witnesses in his or her own defense. [Barber v. State, 911 N.E.2d 641, 646 (Ind. Ct. App. 2009)] (citing Roach v. State, 695 N.E.2d 934, 939 (Ind. 1998) (some internal citations omitted); see Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (“Few rights are more fundamental than that of an accused to present witnesses in his own defense.”). “This right ‘is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecutor’s to the jury so it may decide where the truth lies.’” Barber, 911 N.E.2d at 646 (quoting Roach, 695 N.E.2d at 939) (internal quotation omitted)). “‘At the same time, while the right to present witnesses is of the utmost importance, it is not absolute.’” Id. (quoting Roach, 695 N.E.2d at 939 (internal citation omitted)). “‘In the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.’” Id. (quoting Roach, 695 N.E.2d at 939 (internal quotation omitted)).
Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016 Page 9 of 20 Tolliver v. State, 922 N.E.2d 1272, 1282 (Ind. Ct. App. 2010), trans. denied.
[17] Stevenson claims that the trial court abused its discretion in excluding J.C. from
testifying at trial because the trial court did not properly examine J.C.’s
competency to testify. In support, Stevenson argues that the trial court was
required to inquire into whether J.C. (1) understood the difference between
telling a lie and telling the truth, (2) knew he was under compulsion to tell the
truth, and (3) knew what a true statement actually was. Appellant’s Br. p. 17
(citing Newsome v. State, 686 N.E.2d 868, 872 (Ind. Ct. App. 1997)). For its
part, the State argues that even if the trial court failed to properly delve into
J.C.’s competency, as Stevenson alleges, Stevenson has waived appellate review
of the trial court’s decision regarding J.C. by failing to make an offer of proof
indicating what relevant evidence would likely be elicited from J.C.’s
testimony.
[18] The following exchange occurred during trial with respect to whether J.C.
should be allowed to testify:
[State]: Just on the issue of J.C.
[Trial Court]: All right. Well, let’s hear it.
[State]: Judge, obviously, we are here with the Defendant being charged with one Count against M.C. To place J.C. on the stand when I have not met him, Defense Counsel has not met him, he has absolutely no understanding of what happens in this courtroom, I do not believe that [Defense Counsel] can provide him as a competent witness. Obviously, every witness under 601 is presumed competent; however,
Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016 Page 10 of 20 obviously in the case of children there has to be a dialogue that is gone through, similar to what I went through with [M.C.]. and I don’t think that can be provided with J.C. I have not met with him, and [Defense Counsel] has not met with him. He scheduled a deposition of him and cancelled that [deposition]. And there’s been no indication he has any idea what’s going on here or what the purpose of this courtroom would be.
And frankly, he’s not relevant. I mean, he is indicated to have been in the room, but even in the forensic interview with Ms. Marsh he gave her nothing because he’s bouncing all over the room.
[Trial Court]: [Defense Counsel].
[Defense Counsel]: Whether the witness is competent is your Honor’s decision. Especially if the State hasn’t met him I don’t see how they could possibly render any sort of opinion on that issue. Second of all, Rachel Gibson testified that [J.C.] was a witness. [M.C.] testified that [J.C.] was always around. And he was forensically interviewed so there’s at least an indication that at one point the State believe [sic] that he had relevant information. Now, if the only kind of information that’s relevant is the kind that suggests that Mr. Stevenson is guilty, then perhaps [J.C.] doesn’t provide any relevant evidence. But I would say that the contrary does not negate his relevance.
[Trial Court]: Where do you recall hearing testimony that he was, I think the testimony is undisputed he was in the home. Where do you believe you heard testimony that he witnessed anything?
[Defense Counsel]: Rachel Gibson testified that [J.C.] is a witness. M.C. testified that [J.C.] was with her when these things were happening.
[Trial Court]: State.
Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016 Page 11 of 20 [State]: [M.C.] specifically admitted that [J.C.] was in the room on the floor watching TV. To take that that he is a witness I think takes a leap that is not there.
[Trial Court]: Based upon her own testimony?
[State]: Correct.
[Trial Court]: … And I’m going to grant the State’s request to prohibit [J.C.] from testifying due to his age, and I do not find that what he may or may not know is relevant.
Tr. pp. 193-195. This exchange demonstrates that while Stevenson generally
indicated that he believed that J.C.’s testimony might potentially provide
relevant evidence, Stevenson failed to make an offer of proof with regard to
what relevant evidence he believed J.C. would be able to provide during trial.
As such, his challenge to the trial court’s decision to exclude J.C. from
testifying is waived. See State v. Wilson, 836 N.E.2d 407, 410 (Ind. 2005)
(providing that “[a]n offer of proof should show the facts sought to be proved,
the relevance of that evidence, and the answer to any objection to exclusion of
the evidence.”).2
2 It is also of note that at Stevenson’s request, the video recording of J.C.’s forensic interview with Marsh was played for the jury. In viewing this video, the jury was able to observe J.C.’s young age and his ability to answer Marsh’s questions with answers containing any substance. While J.C. indicated that he saw “something happen,” he would not elaborate as to what he saw and did not disclose observing or being the victim of any sexual abuse during this interview. Tr. p. 76.
Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016 Page 12 of 20 B. Admission of Certain Evidence [19] Stevenson also argues that the trial court abused its discretion in admitting
evidence relating to his drug and alcohol use. For its part, the State maintains
that the evidence relating to Stevenson’s drug and alcohol use was relevant to
the question of whether Stevenson may not remember committing the alleged
criminal acts because he was intoxicated when the acts occurred.
[20] Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Ind. Evidence Rule 401. “Generally speaking, relevant evidence is admissible, and irrelevant evidence is inadmissible.” Sandifur v. State, 815 N.E.2d 1042, 1048 (Ind. Ct. App. 2004), trans. denied; Ind. Evidence Rule 402. Relevant evidence may nevertheless be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Ind. Evidence Rule 403. These basic tenets of evidence are utilized in addressing the specific issue of when evidence of other bad acts is admissible.
Indiana Evidence Rule 404(b) provides in pertinent part:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident[.] In determining the admissibility of evidence under Rule 404(b), the trial court must: (1) determine whether the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant’s propensity to commit the charged act; and (2)
Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016 Page 13 of 20 balance the probative value of the evidence against its prejudicial effect pursuant to Indiana Evidence Rule 403. Ware v. State, 816 N.E.2d 1167, 1175 (Ind. Ct. App. 2004). We employ the same test to determine whether the trial court abused its discretion. Id.
The effect of Rule 404(b) is that evidence is excluded only when it is introduced to prove the “forbidden inference” of demonstrating the defendant’s propensity to commit the charged crime. Sanders v. State, 724 N.E.2d 1127, 1130-1131 (Ind. Ct. App. 2000). The paradigm of inadmissible evidence under Rule 404(b) is a crime committed on another day in another place, evidence whose only apparent purpose is to prove the defendant is a person who commits crimes. Swanson v. State, 666 N.E.2d 397, 398 (Ind. 1996). Because evidence of other bad or uncharged acts can often be unduly prejudicial, however, exceptions to the 404(B) rule of permitting such evidence demonstrating motive, intent, preparation, plan, etc., are to be applied cautiously. Brown v. State, 577 N.E.2d 221, 226 (Ind. 1991).
Southern v. State, 878 N.E.2d 315, 321-22 (Ind. Ct. App. 2007).
[21] In the instant matter, we need not determine whether the challenged evidence
should have been excluded under Rule 404(b) because even assuming that it
was error to include the statements relating to Stevenson’s drug and alcohol
use, we find such error to be harmless. “Error is harmless if the conviction is
supported by substantial independent evidence of guilt such that there is no
substantial likelihood that the questioned evidence contributed to the
conviction.” Tolliver, 922 N.E.2d at 1279 (citing Cook v. State, 734 N.E.2d 563,
569 (Ind. 2000)). During trial, M.C. testified unequivocally and consistently
that Stevenson forced her to suck on his penis on numerous occasions. M.C.
Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016 Page 14 of 20 gave consistent descriptions of Stevenson’s penis. M.C.’s testimony was
consistent with the statements she made during her forensic interview with
Marsh and with statements she made to father and paternal grandmother.
Given M.C.’s testimony, we conclude that Stevenson’s conviction was
supported by substantial independent evidence of his guilt and that there was no
substantial likelihood that the evidence of his occasional drug and alcohol use
contributed to his conviction. As such, we further conclude that any error that
the trial court may have committed can only be considered harmless.
III. Sentence Challenge [22] Stevenson also challenges his sentence. In doing so, he contends both that the
trial court abused its discretion in sentencing him and that his sentence is
inappropriate in light of the nature of his offense and his character.
A. Abuse of Discretion [23] Sentencing decisions rest within the sound discretion of the trial court and are
reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868
N.E.2d 482, 490 (Ind. 2007), modified on other grounds on reh’g, 875 N.E.2d 218
(Ind. 2007). “An abuse of discretion occurs if 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.
(quotation omitted).
One way in which a trial court may abuse its discretion is failing to enter a sentencing statement at all. Other examples include
Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016 Page 15 of 20 entering a sentencing statement that explains reasons for imposing a sentence-including a finding of aggravating and mitigating factors if any-but the record does not support the reasons, or the sentencing statement omits reasons that are clearly supported by the record and advanced for consideration, or the reasons given are improper as a matter of law. Under those circumstances, remand for resentencing may be the appropriate remedy if we cannot say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.
Id. at 490-91. A single aggravating factor may support an enhanced sentence.
Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993).
[24] In sentencing Stevenson, the trial court found the age of the victim and the fact
that Stevenson was in a position of trust over the victim to be aggravating
factors. Stevenson does not argue on appeal that the aggravating factors found
by the trial court are not supported by the record. Rather, he claims that the
trial court abused its discretion by failing to find his relatively minor criminal
history, including the fact that none of his prior convictions were for sex crimes,
to be a mitigating factor.
[25] Although a sentencing court must consider all evidence of mitigating factors
offered by a defendant, the finding of mitigating factors rests within the court’s
discretion. Henderson v. State, 769 N.E.2d 172, 179 (Ind. 2002). A trial court is
neither required to find the presence of mitigating factors, Fugate, 608 N.E.2d at
1374 (citing Graham v. State, 535 N.E.2d 1152, 1155 (Ind. 1989)), nor obligated
to explain why it did not find a factor to be significantly mitigating. Sherwood v.
Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016 Page 16 of 20 State, 749 N.E.2d 36, 38 (Ind. 2001) (citing Birdsong v. State, 685 N.E.2d 42, 47
(Ind. 1997)). “A court does not err in failing to find mitigation when a
mitigation claim is highly disputable in nature, weight, or significance.”
Henderson, 769 N.E.2d at 179 (internal quotations omitted). Furthermore, while
Indiana law mandates that the trial judge not ignore facts in the record that
would mitigate an offense, and a failure to find mitigating factors 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 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).
[26] Stevenson argues that the trial court should have found his relatively minimal
criminal history, including the fact that he had never previously been accused or
convicted of a sex crime, to be a mitigating factor. Although a lack of criminal
history may be considered to be a mitigating factor, trial courts are not required
to give significant weight to a defendant’s lack of criminal history. Townsend v.
State, 860 N.E.2d 1268, 1272 (Ind. Ct. App. 2007), trans. denied. This is
especially so “‘when a defendant’s record, while felony-free, is blemished.’” Id.
(quoting Stout v. State, 834 N.E.2d 707, 712 (Ind. Ct. App. 2005), trans. denied).
Further, “‘[i]n the non-capital context, a single conviction or juvenile
adjudication may negate this mitigating circumstance [of lack of criminal
history].’” Id. (quoting Warlick v. State, 722 N.E.2d 809, 813 (Ind. 2000)).
Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016 Page 17 of 20 [27] While the record reveals that Stevenson has no prior felony convictions, his
criminal history includes seven prior misdemeanor convictions which date back
to 1987 and 1989. These convictions include two counts of battery of a police
officer, three counts of resisting law enforcement, disorderly conduct, and
public intoxication. Stevenson was also arrested for and charged with domestic
battery in 2007. This charge was subsequently dismissed after Stevenson
completed one year of a pre-trial diversion program.
[28] The trial court acknowledged that Stevenson’s criminal history was not
extensive but stated that the court did not find it to be a mitigating factor. Thus,
the situation presented here is not one in which the trial court was not aware of
Stevenson’s criminal history. Although Stevenson’s criminal history may not
constitute an aggravating circumstance sufficient to enhance a sentence, the
trial court was not required to attach mitigating weight to his criminal history.
See Robinson v. State, 775 N.E.2d 316, 321 (Ind.2002) (trial court properly
attached no mitigating weight to defendant’s criminal history consisting of one
misdemeanor, possession of marijuana, and several traffic infractions). We
therefore conclude that the trial court did not abuse its discretion in declining to
find Stevenson’s criminal history to be a mitigating circumstance.
B. Appropriateness of Sentence [29] Stevenson also claims that his forty-year sentence, ten years of which was
suspended to probation, is inappropriate in light of the nature of his offense and
his character. Indiana Appellate Rule 7(B) provides that “The Court may revise
a sentence authorized by statute if, after due consideration of the trial court’s Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016 Page 18 of 20 decision, the Court finds that the sentence is inappropriate in light of the nature
of the offense and the character of the offender.” In analyzing such claims, we
“‘concentrate less on comparing the facts of [the case at issue] 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.’” Paul v. State, 888 N.E.2d 818, 825
(Ind. Ct. App. 2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct.
App. 2002), trans. denied). The defendant bears the burden of persuading us that
his sentence is inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct.
App. 2008).
[30] With respect to the nature of Stevenson’s offense, we find the nature of
Stevenson’s offenses to be abhorrent as he repeatedly victimized a young child
over whom he was in a position of trust. The evidence demonstrates that M.C.
was between the ages of two and four and a half when she was victimized by
Stevenson. In addition, Stevenson committed these heinous acts while J.C.,
who was between the ages of one and three, was in the room watching
television.
[31] Stevenson’s acts of victimizing a young child over whom he had a position of
trust also reflects poorly on Stevenson’s character. In addition, while Stevenson
had not previously been convicted of any prior felony offenses, his criminal
history was not unblemished. Again, Stevenson’s criminal history includes
seven prior misdemeanor convictions which date back to 1987 and 1989. These
convictions include two counts of battery of a police officer, three counts of
Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016 Page 19 of 20 resisting law enforcement, disorderly conduct, and public intoxication.
Stevenson was also arrested for and charged with domestic battery in 2007.
This charge was subsequently dismissed after Stevenson completed one year of
a pre-trial diversion program. The fact that Stevenson committed the instant
criminal acts after having previously been granted the mercy of the court as
evidenced by his 2007 participation in a pre-trial diversion program also reflects
poorly on his character. In fact, the evidence presented at trial suggests that he
has apparently chosen not to refrain from victimizing others and has apparently
moved from victimizing innocent women to victimizing innocent young
children. Stevenson has failed to establish that his forty-year sentence, ten years
of which was suspended to probation, was inappropriate in light of the nature of
his offenses and his character.
Conclusion [32] In sum, we conclude that the evidence is sufficient to sustain Stevenson’s
conviction, the trial court did not abuse its discretion in excluding and
admitting certain evidence, the trial court did not abuse its discretion in
sentencing Stevenson, and Stevenson’s sentence is not inappropriate. As such,
we affirm the judgment of the trial court.
[33] The judgment of the trial court is affirmed.
Pyle, J., and Altice, J., concur.
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