Theodore Lincoln Jones v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 25, 2017
• Docket: 48A02-1612-CR-2814
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 25 2017, 8:41 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 David W. Stone IV Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana Ellen M. Meilaender Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Theodore Lincoln Jones, May 25, 2017 Appellant-Defendant, Court of Appeals Case No. 48A02-1612-CR-2814 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Mark K. Dudley, Appellee-Plaintiff. Judge Trial Court Cause No. 48C06-1508-F1-1352

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 48A02-1612-CR-2814 | May 25, 2017 Page 1 of 8 Statement of the Case [1] Theodore Jones (“Jones”) appeals the sentence imposed after he pled guilty

without a plea agreement to Level 1 felony child molesting1 and Level 5 felony

child exploitation.2 He specifically contends that (1) the trial court abused its

discretion by failing to consider his proposed mitigating factors; and (2) the

forty-year sentence imposed for his Level 1 felony child molesting conviction is

inappropriate in light of the nature of the offense and his character. Because we

conclude that the trial court did not abuse its discretion in failing to consider

Jones’ proposed mitigating circumstances and that his sentence is not

inappropriate, we affirm.

[2] We affirm.

Issues 1. Whether the trial court abused its discretion in failing to consider Jones’ proposed mitigating factors.

2. Whether Jones’ sentence is inappropriate in light of the nature of the offense and his character.

1 IND. CODE § 35-42-4-3. 2 I. C. § 35-42-4-4.

Court of Appeals of Indiana | Memorandum Decision 48A02-1612-CR-2814 | May 25, 2017 Page 2 of 8 Facts [3] In August 2014, fifty-seven-year-old Jones took sexually explicit photographs

and videos of his twenty-one-month old granddaughter, L.J. (“L.J.”). Some of

the photographs depicted L.J. on a mattress drinking a bottle with her vagina

exposed. In one photograph, L.J. was playing with a dildo or vibrator. Other

photographs showed Jones using his fingers to spread L.J.’s vagina. The videos

depicted Jones rubbing the outside of L.J.’s vagina with his finger, inserting his

finger into her vagina, and moving his finger in and out of her vagina. Jones

also filmed himself forcing L.J. to move her hand back and forth on his penis.

[4] One year later, in August 2015, Jones’ son found the photos and videos of his

daughter on Jones’ computer and contacted the police. Jones was charged with

Level 1 felony child molesting and Level 5 felony child exploitation. He pled

guilty without a plea agreement in October 2015.

[5] Evidence presented at Jones’ November 2016 sentencing hearing revealed that

his criminal history included a misdemeanor conviction for driving under the

influence in 1991. Jones’ wife testified that Jones was in poor health.

Specifically, she explained that he suffered from diabetes, high blood pressure,

high cholesterol, back problems, depression, and gangrene of his genitals.

Jones testified that his physician had told him that he “probably [would not] see

seventy (70).” (Tr. 39). Jones also presented evidence that he had worked at

General Motors for twenty years until he became disabled.

Court of Appeals of Indiana | Memorandum Decision 48A02-1612-CR-2814 | May 25, 2017 Page 3 of 8 [6] Following the sentencing hearing, the trial court found the following

aggravating circumstances: (1) there were multiple counts; (2) Jones had

violated a position of trust; and (3) the nature and circumstances of the offenses.

The trial court further found the following mitigating circumstances: (1) Jones

had pled guilty saving the State the time and cost of trial; and (2) Jones had led

a law-abiding life for twenty-three years. The trial court then sentenced Jones

to forty (40) years for the Level 1 felony and six (6) years for the Level 5 felony.

The court further ordered the sentences to run concurrently for a total executed

sentence of forty (40) years. Jones now appeals his sentence.

Decision [7] Jones argues that (1) the trial court abused its discretion by failing to consider

his proposed mitigating factors; and (2) the forty-year sentence imposed for his

Level 1 felony child molesting conviction is inappropriate in light of the nature

of the offense and his character. We address each of his contentions in turn.

1. Abuse of Discretion

[8] Sentencing decisions are 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. However, a trial court may be found to have abused its sentencing

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

statement; (2) entering a sentencing statement that explains reasons for

imposing a sentence where the record does not support the reasons; (3) entering

a sentencing statement that omits reasons that are clearly supported by the

Court of Appeals of Indiana | Memorandum Decision 48A02-1612-CR-2814 | May 25, 2017 Page 4 of 8 record and advanced for consideration; and (4) entering a sentencing statement

in which the reasons given are improper as a matter of law. Id. at 491. The

weight given to those reasons, i.e., to particular aggravators or mitigators, is not

subject to appellate review. Id.

[9] Jones argues that the trial court abused its discretion because it did not find his

age, his health, and his twenty years as a productive member of society to be

mitigating factors. A trial court is not obligated to accept a defendant’s claim as

to what constitutes a mitigating circumstance. Rascoe v. State, 736 N.E.2d 246,

249 (Ind. 2000). A trial court has discretion to determine whether the factors

are mitigating, and it is not required to explain why it does not find the

defendant’s proffered factors to be mitigating. Haddock v. State, 800 N.E.2d 242,

245 (Ind. Ct. App. 2003). A claim that the trial court failed to find a mitigating

circumstance requires the defendant to establish that the mitigating evidence is

both significant and clearly supported by the record. Anglemyer, 868 N.E.2d at

493.

[10] Jones first contends that the trial court abused its discretion because it failed to

find that his age was a mitigating factor. In support of his contention, Jones

directs us to Dockery v. State, 504 N.E.2d 291 (Ind. Ct. App. 1987). There, the

trial court found no mitigating factors. Id. at 297. On appeal, this Court

pointed out that Dockery was seventy-six years old and remanded the case to

the trial court for a proper consideration of mitigating factors. Here, Jones was

fifty-seven years old at the time of the offense, which is almost twenty years

younger than Dockery was. Dockery is therefore simply not persuasive. The

Court of Appeals of Indiana | Memorandum Decision 48A02-1612-CR-2814 | May 25, 2017 Page 5 of 8 trial court did not abuse its discretion in failing to find Jones’ age was a

mitigating factor.

[11] Jones next contends that the trial court abused its discretion because it failed to

find that his health was a mitigating factor. Henderson v. State, 848 N.E.2d 341,

344 (Ind. Ct. App. 2006) is instructive. Henderson, who suffered from

depression, anxiety, diabetes, acid reflux, bladder prolapse, hyperthyroidism,

hypertension, and arthritis in her left shoulder, argued on appeal that the trial

court had erred in failing to find that her health was a mitigating factor. Id. at

344. However, this Court concluded that Henderson did not present any

evidence demonstrating that her medical conditions would be untreatable

during incarceration or would render incarceration a hardship. Id.

Accordingly, we concluded that the trial court did not err in failing to consider

Henderson’s health to be a mitigating factor. Id. Here, Jones suffers from

diabetes, high blood pressure, high cholesterol, back problems, depression, and

gangrene of his genitals. However, as in Henderson, Jones has presented no

evidence demonstrating that his medical conditions would be untreatable

during incarceration or would render incarceration a hardship. The trial court

did not abuse its discretion in failing to consider Jones’ health to be a mitigating

factor.

[12] Jones also argues that the trial court abused its discretion because it failed to

consider as a mitigating circumstance that he “had been a productive member

of society, working in a General Motors plant for [twenty] years before he

because disabled . . . .” (Jones’ Br. 10). This Court has previously held that

Court of Appeals of Indiana | Memorandum Decision 48A02-1612-CR-2814 | May 25, 2017 Page 6 of 8 the trial court did not abuse its discretion in failing to find that defendant’s

history as a working, productive member of society was a significant mitigating

factor where the defendant failed to provide a detailed work history,

performance reviews, or attendance records. See Bennett v. State, 787 N.E.2d

938, 948 (Ind. Ct. App. 2003), trans. denied. Jones has also failed to provide

such information. The trial court did not abuse its discretion in failing to

consider as a mitigating factor that Jones was a productive member of society

who had worked at General Motors for twenty years.

2. Inappropriate Sentence

[13] Jones argues that the forty-year sentence for his Level 1 felony child molesting

conviction is inappropriate. Indiana Appellate Rule 7(B) provides that we may

revise a sentence authorized by statute if, after due consideration of the trial

court’s decision, we find that the sentence is inappropriate in light of the nature

of the offense and the character of the offender. The defendant bears the

burden of persuading this Court that his sentence is inappropriate. Childress v.

State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as

inappropriate turns on 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 v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

[14] When determining whether a sentence is inappropriate, we acknowledge that

the advisory sentence is the starting point the Legislature has selected as an

appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081.

Here, Jones was convicted of Level 1 felony child molesting. The sentencing

Court of Appeals of Indiana | Memorandum Decision 48A02-1612-CR-2814 | May 25, 2017 Page 7 of 8 range for a Level 1 felony child molesting conviction when the defendant is at

least twenty-one years old and the victim is less than twelve years old is

between twenty (20) and fifty (50) years, with an advisory sentence of thirty (30)

years. See I.C. § 35-50-2-4(c)(1). Here, the trial court sentenced Jones to forty

(40) years, which is ten (10) years less than the maximum sentence and ten (10)

years more than the advisory sentence.

[15] With regard to the nature of the offense, Jones took sexually explicit

photographs and videos of his twenty-one-month-old granddaughter, L.J. The

videos showed Jones rubbing the outside of L.J.’s vagina, inserting his finger

into her vagina, and moving his finger in and out of her vagina. Jones also

filmed himself forcing L.J. to move her hand back and forth on his penis.

[16] With regard to his character, Jones violated the trust of his wife, son, and

granddaughter. Based on the nature of the offense and his character, Jones has

failed to persuade this Court that his forty-year sentence for Level 1 felony child

molesting is inappropriate.

[17] Affirmed.

May, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 48A02-1612-CR-2814 | May 25, 2017 Page 8 of 8