Ryan A. Osowski v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: August 19, 2013
• Docket: 46A04-1211-CR-570
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), Aug 19 2013, 5:47 am 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:

THOMAS VANES GREGORY F. ZOELLER Merrillville, Indiana Attorney General of Indiana

AARON J. SPOLARICH Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

RYAN A. OSOWSKI ) ) Appellant-Defendant, ) ) vs. ) No. 46A04-1211-CR-570 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE LA PORTE CIRCUIT COURT The Honorable Thomas Alevizos, Judge Cause No. 46C01-1004-FA-169

August 19, 2013

MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge Ryan Osowski (“Osowski”) appeals the appropriateness of his sentence following

his guilty plea in La Porte Circuit Court to three counts of Class B felony child

molesting.1 Osowski argues first that the trial court abused its discretion when it relied

on the statements he made during a pre-sentencing, psychosexual evaluation in its

decision to sentence him to an aggregate term of thirty-four years. Alternatively,

Osowski argues that the sentence was inappropriate under Indiana Appellate Rule 7(B).

We disagree and affirm.

Facts and Procedural History

In 2009, Osowski and his wife were experiencing marital difficulties, and Osowski

began using his then nine-to-ten-year-old adoptive daughter, S.O., to fulfill his sexual

desires. Throughout the course of 2009, Osowski used S.O.’s hand to masturbate on

multiple occasions, used S.O.’s feet to reach orgasm several times, digitally penetrated

S.O.’s vagina twice, and forced S.O. to perform oral sex on him twice, each time until he

ejaculated into her mouth. Additionally, Osowski watched pornographic films with the

child, and told her not to tell anyone about his illicit activity, as it would upset her mother

if he were sent to jail. In all, Osowski abused S.O. between nine and eleven times.

S.O. eventually informed her mother of Osowski’s abusive behavior, and her

mother confronted Osowski about S.O.’s allegations. S.O.’s mother recorded her

conversation with Osowski, in case Osowski later attempted to deny allegations to the

police. On March 22, 2012, Detective Mark Lachmund (“Lachmund”) of the La Porte

County Sheriff’s Office took a statement from Osowski about the allegations. During 1 See Ind. Code § 35-42-4-3(a).

2 this questioning Osowski indicated that if his wife had been satisfying his sexual urges,

then he would not have sexually abused his adoptive daughter.

In his statement, Osowski described his sexual encounters with S.O. in disturbing

and graphic detail. Throughout his account, he placed blame on S.O., claiming that she

was a willing participant in his abuse. He first recounted an incident in which he and S.O.

were “humping each other.” State’s Ex. 1 at 30:25. According to Osowski, his nine-

year-old victim was trying to initiate sexual contact with him, but he later acknowledged

that he may have initiated the contact himself.

Next, Osowksi discussed an occasion when S.O. was sleeping in bed with her

mother and Osowski. Osowski, who had used his wife’s feet for sexual satisfaction in the

past while the woman slept, decided to use S.O.’s feet in the same way. Osowski

reported that he used the child’s feet to reach orgasm while she slept alongside her

mother three to four times, and stated that S.O. lifted her feet into the air willingly.

Osowski also claimed that the then nine-to-ten-year-old girl was very interested in

Osowski’s masturbation habits. Osowski reported that he used S.O.’s hand to masturbate

in the shower two or three times. Osowski also watched pornographic films with S.O.

and claimed that S.O. inquired as to what a female in the film was doing while the

woman performed fellatio on a man. After Osowski explained, he claimed that S.O. then

asked if she could perform oral sex on Osowski, because she wanted to please him.

Osowski ejaculated inside of S.O.’s mouth, and when the child thought that the emission

was urine, Osowski informed her that it was not, and that she should spit it out and brush

her teeth. Onsowski also coerced S.O. into performing oral sex on him on another

3 occasion, again ejaculating in the child’s mouth. Throughout his statement to Lachmund,

Osowski claimed that he never forced his pre-adolescent victim to perform sexual acts,

and instead asserted that S.O. wanted to engage in sexual intercourse with Osowski each

time.

At trial, the State also presented a recorded statement given to a counselor by S.O.

According to the child, Osowski asked S.O. to “help him shake” his penis. State’s Ex. 2

at 9:45. Osowski instructed the child to place herself on top of him and to move her legs

up and down. S.O. also described an incident in which Osowski penetrated her vagina

with his fingers. The record reveals that Osowski did this at least twice. S.O. also

reported that Osowski asked her to perform oral sex, as it would be pleasurable for him,

and he instructed her throughout the molestation. Osowski even told the child not to

discuss his conduct with her mother because Osowski would go to jail if S.O. reported

the molestations.

On April 15, 2010, the State charged Osowski with three counts of Class A felony

child molesting, and a fourth count of Class C felony child molesting. On May 16, 2010,

Osowski and the State entered into a plea agreement in which Osowski agreed to plead

guilty to three counts of the lesser-included offense of Class B felony child molesting in

exchange for the State’s dismissal of the remaining counts and two misdemeanors. The

plea agreement left sentencing open to the trial court.

The trial court held a sentencing hearing on August 21, 2012. Having pleaded

guilty to three Class B felonies for child molesting, Osowski faced a sentence of between

4 six and twenty years for each count, with advisory sentences of ten years per count.2 At

the hearing, the court noted that Osowski’s apology at the hearing was at odds with his

psychosexual evaluation, in which he blamed S.O. for the incidents. Although the court

found that Osowski’s guilty plea and cooperation with authorities were mitigating

circumstances, it also found that the aggravating circumstances outweighed those

mitigators. The trial court specifically found that five aggravators existed: (1) Osowski

was in a position of care, custody, and control over his victim; (2) Osowski performed his

sexually abusive acts repeatedly over a lengthy period of time; (3) S.O. was just nine to

ten years old at the time of the abuse, far younger than the statutory age of fourteen; (4)

Osowski violated the post-arraignment, no-contact order with S.O. and her mother that

was a condition of his bond; and (5) in his psychosexual evaluation, Osowski blamed his

victim for the crimes he committed.

The court sentenced Osowski to seventeen years executed for each count, and

ordered that Counts I and II be served consecutively, while ordering that Count III be

served concurrent with the first two counts. Osowski thus faces an aggregate sentence of

thirty-four years executed in the Department of Correction. Additionally, the court

suspended two years of Osowski’s sentence to probation. Osowski now appeals.

I. Court’s Acceptance of Psychosexual Evaluation

Osowski first argues that the trial court abused its discretion in relying on

statements he made in his pre-sentencing, psychosexual evaluation, rather than his

2 “A person who commits a Class B felony shall be imprisoned for a fixed term of between six (6) and twenty (20) years, with the advisory sentence being ten (10) years.” Ind. Code § 35-50-2-5.

5 statements of remorse at the sentencing hearing. Sentencing decisions rest within the

sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.2007).

So long as the sentence is within the statutory range, it is subject to review only for an

abuse of discretion. Id. 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. at 491. A trial court may

abuse its sentencing discretion in a number of ways, including: (1) failing to enter a

sentencing statement at all; (2) entering a sentencing statement that includes aggravating

and mitigating factors that are unsupported by the record; (3) entering a sentencing

statement that omits reasons that are clearly supported by the record; or (4) entering a

sentencing statement that includes reasons that are improper as a matter of law. Id. at

490–91.

Osowski characterizes the trial court’s observation of his blame-shifting as

“relying on materially false assumptions,” and evidence that the trial court entered a

sentencing statement based on improper reasons. Additionally, he argues that the trial

court’s rejection of his apology to S.O. at the sentencing hearing was an omission of a

reason clearly supported by the record.

In the psychosexual evaluation, completed just one month before the sentencing

hearing, the evaluator noted that based on Osowski’s prior statements in therapy and his

6 continued sexualized behavior,3 Osowski “lack[s] insight into his offending behavior by

not being able to identify the risks of his sexual behavior.” Appellant’s App. p. 117.

Further, the court noted that Osowski’s apology at trial seemed insincere. Although

Osowski is correct that the evaluation took into account previous statements made by

Osowski, and some of those statements may well have been inaccurate by the time of the

hearing, the current statements of an evaluator were relevant and accurate for the

purposes of the trial court’s sentencing. Moreover, the trial court is not obligated to

weigh evidence or credit facts proffered as mitigating by the defendant in the same way

as the defendant suggests that they should be weighed or credited. Heyen v. State, 936

N.E.2d 294, 304-05 (Ind. Ct. App. 2010), trans. denied.

Here, the trial court’s findings of aggravating factors, including Osowski’s

statements in his psychosexual evaluation, were supported by the circumstances before it

and reasonable inferences that could be drawn therefrom. Additionally, in light of the

multiple aggravators found by the trial court, Osowski would not be entitled to a remand

for sentencing even if the trial court did err in viewing the statements in the evaluation as

an aggravator, because he does not challenge the remaining aggravating factors. See

McDonald v. State, 868 N.E.2d 1111, 1114 (Ind. 2007). Furthermore, this court need not

remand for sentencing, unless the sentence was inappropriate, a claim which we address

below. Brock v. State, 983 N.E.2d 636, n.1 (Ind. Ct. App. 2013), reh’g denied.

3 Osowski’s psychosexual evaluator and his mental health care provider both expressed concern that although Osowski entered treatment on his own, he continued to watch pornographic films despite the fact that such behavior was connected with his tendency to abuse.

7 II. Inappropriate Sentence

Under Indiana Appellate Rule 7(B), we may “revise a sentence authorized by

statute if, after due consideration of the trial court’s decision, the Court finds that the

sentence is inappropriate in light of the nature of the offense and the character of the

offender.” Although we may review and revise a sentence, “[t]he 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 v. State, 895

N.E.2d 1219, 1225 (Ind. 2008). We must give “deference to a trial court’s sentencing

decision, both because Rule 7(B) requires us to give due consideration to that decision

and because we understand and recognize the unique perspective a trial court brings to its

sentencing decisions.” Trainor v. State, 950 N.E.2d 352, 355–56 (Ind. Ct. App. 2011),

trans. denied (quoting Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007))

(internal quotation marks omitted).

When we review the appropriateness of a sentence, we consider “the culpability of

the defendant, the severity of the crime, the damage done to others, and myriad other

factors that come to light in a given case.” Cardwell, 895 N.E.2d at 1224. The defendant

has the “burden to persuade us that the sentence imposed by the trial court is

inappropriate.” Shell v. State, 927 N.E.2d 413, 422 (Ind. Ct. App. 2010).

Osowski argues that because he confessed to his crimes, initiated his own

psychological counseling and treatment, and apologized to his victim at the sentencing

hearing, his sentence was inappropriate based on the character of the offender. However,

8 the trial court was not obligated to afford Osowski’s cooperation with authorities,

psychological treatment, and apology to S.O. the same mitigating weight as Osowski

might wish. See Healey v. State, 969 N.E.2d 607, 616 (Ind. Ct. App. 2012). Although

Anglemyer does not require the trial court to explain why it chooses not to weigh

proffered facts in the same way as the defendant, the trial court in this case affirmatively

explained in its sentencing statement that it found his apology to be less than credible, in

light of his prior blame-shifting, and also because he had read a prepared statement at the

sentencing hearing. See Anglemyer, 868 N.E.2d at 493. The court also heard evidence

that demonstrated that Osowski had violated no-contact orders meant to protect the

victim and her mother and had prevented the victim from changing her last name, despite

the child’s wishes to do so. The court could draw a reasonable inference from these

actions that Osowski’s treatment was ineffective and his sudden contrition at sentencing

was insincere. In short, the trial court was well within its discretion to reject these

proffered mitigating factors.

Osowski also attempts to raise an argument that his sentence is inappropriate

because his pre-existing criminal history is limited and unrelated to his crimes. As

support for his argument, he attempts to compare his case to our supreme court’s holding

in Sanchez v. State. There, the Indiana Supreme Court held that an eighty-year aggregate

sentence was inappropriate where a stepfather, with a limited but unrelated criminal

history, sexually abused two of his stepdaughters in three isolated incidents. Sanchez v.

State, 938 N.E.2d 720, 722 (Ind. 2010). Osowski argues that because our supreme court

held that Sanchez’s two forty-year sentences should run concurrently instead of

9 consecutively, resulting in an overall sentence of forty years for three counts of Class A

felony child molesting, Osowski’s three Class B felonies should not result in an aggregate

sentence of thirty-four years.

Osowski’s argument fails to take into account the fact that his behavior, unlike

Sanchez’s, was repeated over time and that he systematically victimized S.O. for a period

of a year, even telling the child that she was not to tell her mother of the incidents. In

Sanchez, our supreme court specifically noted that repeated and systematic abuse, like

Osowski’s conduct in this case, is deserving of enhanced and, in some cases, consecutive

sentences, while isolated incidents are not. See Sanchez, 938 N.E.2d at 722 (citing

Rivers v. State, 915 N.E.2d 141, 144 (Ind. 2009); Harris v. State, N.E.2d 927, 930 (Ind.

2008)).

Osowski’s comparison of his own sentence with Sanchez’s also fails to

demonstrate how Osowski’s sentence was inappropriate based on the nature of the

offense. Osowski legally adopted S.O., and in so doing, promised to care for and protect

her. Osowski acknowledges in his brief that he “cannot reasonably dispute the trial

court’s assessment of the nature of the offenses . . . they did constitute a breach of trust

given . . . the victim’s status as . . . adopted daughter.” Appellant’s Br. at 9. Furthermore,

he does not contest that his conduct went well beyond the elements of culpability

required by statute.

Osowski repeatedly and systematically abused his nine-to-ten year old adoptive

daughter sexually, all the while telling the child that she must keep his abusive behavior a

10 secret. His sentence is not inappropriate in light of the nature of his offenses and his

character as the offender. We affirm.

Affirmed.

NAJAM, J., and BROWN, J., concur.