MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 29 2020, 8:11 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE David W. Stone IV Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana
Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Thomas Henson, October 29, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-948 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Angela G. Warner Appellee-Plaintiff. Sims, Judge Trial Court Cause No. 48C01-1704-F4-916
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-948 | October 29, 2020 Page 1 of 6 Statement of the Case [1] Thomas Henson appeals his sentence following his conviction for child
molesting, as a Level 4 felony. Henson raises one issue for our review, namely,
whether his sentence is inappropriate in light of the nature of the offense and his
character. We affirm.
Facts and Procedural History [2] In late 2015 or early 2016, E.F., who was then eight years old, and her family
moved to a house next door to Henson in Anderson. E.F. lived with her
parents, V.S. and S.W., and her three younger siblings. Henson befriended
E.F. and her family, and he regularly attended family gatherings at E.F.’s
house. Henson quickly became “a regular part of [the family’s] daily life.” Tr.
at 127. S.W. described Henson as “like family.” Id. Henson helped V.S. with
house maintenance projects, and Henson sometimes babysat E.F. and her
siblings. At some point, Henson became “more forceful” with respect to
“wanting to be around [the] children a lot,” which made S.W. “very
uncomfortable.” Id. at 130.
[3] In early August 2016, a few days after E.F.’s birthday, Henson came to see E.F.
to give her some birthday money. V.S. was mowing the lawn, and S.W. was
inside the house. Henson, E.F., and her siblings were in the garage. Henson
told E.F.’s siblings to hide behind a bar in the garage, and they complied.
Henson then took a dollar bill, reached into E.F.’s shirt, and placed the dollar
bill inside E.F.’s bra. Henson then began rubbing E.F.’s “private spot below
Court of Appeals of Indiana | Memorandum Decision 20A-CR-948 | October 29, 2020 Page 2 of 6 [her] hips” through her clothing making “circles” with his thumb. Id. at 93-94.
Shortly thereafter, V.S. entered the garage and saw E.F. standing very close to
Henson “in between his lap.” Id. at 160. When she saw V.S., E.F. “jumped
back,” and Henson tried to start a conversation with V.S. as though nothing
had just happened. Id. V.S. told E.F. and the other children to go inside the
house, and he told Henson to go home.
[4] V.S. then told S.W. what he saw and what he “thought might have been going
on.” Id. at 162. V.S. and S.W. talked to E.F. about what had happened. E.F.
was “reluctant” to talk about the incident because she “didn’t want to get
[Henson] in trouble.” Id. at 140. Finally, in October, they called the police to
report the molestation. And, on October 21, E.F. talked to a forensic
interviewer, Kelsey Weber, at Kids Talk.
[5] The State charged Henson with child molesting, as a Level 4 felony. Following
a bench trial, the trial court found Henson guilty as charged. At sentencing, the
court identified as aggravating factors Henson’s criminal history, including
multiple prior child molesting convictions, and his violation of a position of
trust. The court did not identify any mitigators. The court imposed the
maximum sentence of twelve years executed. This appeal ensued.
Discussion and Decision [6] Henson contends that his sentence is inappropriate in light of the nature of the
offense and his character. Indiana Appellate Rule 7(B) provides that “[t]he
Court may revise a sentence authorized by statute if, after due consideration of
Court of Appeals of Indiana | Memorandum Decision 20A-CR-948 | October 29, 2020 Page 3 of 6 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.” This court
has recently held that “[t]he advisory sentence is the starting point the
legislature has selected as an appropriate sentence for the crime committed.”
Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017). And the Indiana
Supreme Court has recently explained that:
The principal role of appellate review should be to attempt to leaven the outliers . . . but not achieve a perceived “correct” result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Defendant has the burden to persuade us that the sentence imposed by the trial court is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007), decision clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).
Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).
[7] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we
regard a sentence as inappropriate at the end of the day turns on “our sense of
the culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other facts that come to light in a given case.” Id. at 1224.
The question is not whether another sentence is more appropriate, but rather
whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,
268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless
overcome by compelling evidence portraying in a positive light the nature of the
Court of Appeals of Indiana | Memorandum Decision 20A-CR-948 | October 29, 2020 Page 4 of 6 offense (such as accompanied by restraint, regard, and lack of brutality) and the
defendant’s character (such as substantial virtuous traits or persistent examples
of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[8] The sentencing range for a Level 4 felony is two years to twelve years, with an
advisory sentence of six years. Ind. Code § 35-50-2-5.5 (2020). Here, the court
identified as aggravating factors Henson’s criminal history and his violation of a
position of trust with E.F. The court did not identify any mitigating factors.
The court imposed the maximum sentence of twelve years.
[9] On appeal, Henson contends that his sentence is inappropriate in light of the
nature of the offense because “[t]he offense [does] not fall in the category of
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 29 2020, 8:11 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE David W. Stone IV Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana
Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Thomas Henson, October 29, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-948 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Angela G. Warner Appellee-Plaintiff. Sims, Judge Trial Court Cause No. 48C01-1704-F4-916
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-948 | October 29, 2020 Page 1 of 6 Statement of the Case [1] Thomas Henson appeals his sentence following his conviction for child
molesting, as a Level 4 felony. Henson raises one issue for our review, namely,
whether his sentence is inappropriate in light of the nature of the offense and his
character. We affirm.
Facts and Procedural History [2] In late 2015 or early 2016, E.F., who was then eight years old, and her family
moved to a house next door to Henson in Anderson. E.F. lived with her
parents, V.S. and S.W., and her three younger siblings. Henson befriended
E.F. and her family, and he regularly attended family gatherings at E.F.’s
house. Henson quickly became “a regular part of [the family’s] daily life.” Tr.
at 127. S.W. described Henson as “like family.” Id. Henson helped V.S. with
house maintenance projects, and Henson sometimes babysat E.F. and her
siblings. At some point, Henson became “more forceful” with respect to
“wanting to be around [the] children a lot,” which made S.W. “very
uncomfortable.” Id. at 130.
[3] In early August 2016, a few days after E.F.’s birthday, Henson came to see E.F.
to give her some birthday money. V.S. was mowing the lawn, and S.W. was
inside the house. Henson, E.F., and her siblings were in the garage. Henson
told E.F.’s siblings to hide behind a bar in the garage, and they complied.
Henson then took a dollar bill, reached into E.F.’s shirt, and placed the dollar
bill inside E.F.’s bra. Henson then began rubbing E.F.’s “private spot below
Court of Appeals of Indiana | Memorandum Decision 20A-CR-948 | October 29, 2020 Page 2 of 6 [her] hips” through her clothing making “circles” with his thumb. Id. at 93-94.
Shortly thereafter, V.S. entered the garage and saw E.F. standing very close to
Henson “in between his lap.” Id. at 160. When she saw V.S., E.F. “jumped
back,” and Henson tried to start a conversation with V.S. as though nothing
had just happened. Id. V.S. told E.F. and the other children to go inside the
house, and he told Henson to go home.
[4] V.S. then told S.W. what he saw and what he “thought might have been going
on.” Id. at 162. V.S. and S.W. talked to E.F. about what had happened. E.F.
was “reluctant” to talk about the incident because she “didn’t want to get
[Henson] in trouble.” Id. at 140. Finally, in October, they called the police to
report the molestation. And, on October 21, E.F. talked to a forensic
interviewer, Kelsey Weber, at Kids Talk.
[5] The State charged Henson with child molesting, as a Level 4 felony. Following
a bench trial, the trial court found Henson guilty as charged. At sentencing, the
court identified as aggravating factors Henson’s criminal history, including
multiple prior child molesting convictions, and his violation of a position of
trust. The court did not identify any mitigators. The court imposed the
maximum sentence of twelve years executed. This appeal ensued.
Discussion and Decision [6] Henson contends that his sentence is inappropriate in light of the nature of the
offense and his character. Indiana Appellate Rule 7(B) provides that “[t]he
Court may revise a sentence authorized by statute if, after due consideration of
Court of Appeals of Indiana | Memorandum Decision 20A-CR-948 | October 29, 2020 Page 3 of 6 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.” This court
has recently held that “[t]he advisory sentence is the starting point the
legislature has selected as an appropriate sentence for the crime committed.”
Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017). And the Indiana
Supreme Court has recently explained that:
The principal role of appellate review should be to attempt to leaven the outliers . . . but not achieve a perceived “correct” result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Defendant has the burden to persuade us that the sentence imposed by the trial court is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007), decision clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).
Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).
[7] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we
regard a sentence as inappropriate at the end of the day turns on “our sense of
the culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other facts that come to light in a given case.” Id. at 1224.
The question is not whether another sentence is more appropriate, but rather
whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,
268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless
overcome by compelling evidence portraying in a positive light the nature of the
Court of Appeals of Indiana | Memorandum Decision 20A-CR-948 | October 29, 2020 Page 4 of 6 offense (such as accompanied by restraint, regard, and lack of brutality) and the
defendant’s character (such as substantial virtuous traits or persistent examples
of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[8] The sentencing range for a Level 4 felony is two years to twelve years, with an
advisory sentence of six years. Ind. Code § 35-50-2-5.5 (2020). Here, the court
identified as aggravating factors Henson’s criminal history and his violation of a
position of trust with E.F. The court did not identify any mitigating factors.
The court imposed the maximum sentence of twelve years.
[9] On appeal, Henson contends that his sentence is inappropriate in light of the
nature of the offense because “[t]he offense [does] not fall in the category of
[the] worst offense for level 4 child molesting. There was nothing about the
crime at issue which made it more serious than other level 4 sex crimes
involving children.” Appellant’s Br. at 11. Further, he asserts that he “did not
physically harm the girl nor did he threaten her with physical injury to keep her
silent. It was not an ongoing series of acts of misconduct.” Id. at 12. And
Henson contends that his sentence is inappropriate in light of his character
because he has “many positive characteristics” as described in the letters of
support he submitted to the court from friends. Id. at 13. Henson maintains
that he can be rehabilitated.
[10] However, Henson has not met his burden on appeal to demonstrate that his
sentence is inappropriate. With respect to the nature of the offense, Henson
used his position of trust with E.F. to get close enough to her to molest her.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-948 | October 29, 2020 Page 5 of 6 Henson has not presented compelling evidence portraying the nature of the
offense in a positive light. See Stephenson, 29 N.E.2d at 122.
[11] As to his character, Henson has a significant criminal history. In 1999, Henson
was convicted of ten counts of child molesting, as Class B felonies; five counts
of sexual misconduct with a minor, as Class B felonies; one count of sexual
misconduct with a minor, as a Class C felony; and one count of theft, as a Class
D felony. Henson’s brazen misconduct in this case reveals that he has not
learned from or been rehabilitated by his convictions, lengthy incarceration, and
probation for his previous sexual offenses involving a minor. We cannot say
that Henson’s sentence is inappropriate in light of his character. We therefore
affirm Henson’s maximum sentence.
[12] Affirmed.
Bradford, C.J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-948 | October 29, 2020 Page 6 of 6