Thomas Maxfield v. State of Indiana (mem. dec.)

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as Feb 15 2017, 9:29 am

precedent or cited before any court except for the CLERK purpose of establishing the defense of res judicata, Indiana Supreme Court Court of Appeals collateral estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Leanna Weissmann Curtis T. Hill, Jr. Lawrenceburg, Indiana Attorney General of Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Thomas Maxfield, February 15, 2017

Appellant-Defendant, Court of Appeals Cause No. 16A01-1608-CR-1970 v. Appeal from the Decatur Circuit Court

State of Indiana, The Honorable Timothy Day, Judge Trial Court Cause No. 16C01-1512- Appellee-Plaintiff. FA-772

Riley, Judge.

Court of Appeals of Indiana | Memorandum Opinion 16A01-1608-CR-1970 | February 15, 2017 Page 1 of 8 STATEMENT OF THE CASE [1] Appellant-Defendant, Thomas Maxfield (Maxfield), appeals his sentence for

two Counts of child molesting, Class A felonies, Ind. Code § 35-42-4-3(a)(1).

[2] We affirm.

ISSUE [3] Maxfield raises one issue on appeal, which we restate as: Whether Maxfield’s

sentence is inappropriate in light of the nature of the offenses and his character.

FACTS AND PROCEDURAL HISTORY [4] B.C.C., born on March 10, 1992, and M.J.B., born on October 12, 1992, were

childhood friends living in Franklin County, Indiana. B.C.C.’s mother was

married to Maxfield between 1995 and 1998. During that time, B.C.C. became

closely bonded with Maxfield and he viewed him as a father figure. In 2001,

after his divorce from B.C.C.’s mother, Maxfield moved to a trailer in

Greensburg, Indiana. Even after the divorce, B.C.C. remained close to

Maxfield and he would visit Maxfield. M.J.B. would accompany B.C.C.

during the visits. On one evening, when the boys were around nine years old,

Maxfield instructed them to touch each other’s penises as Maxfield masturbated

himself.

[5] Maxfield thereafter moved to another trailer in Decatur County, Indiana, and

B.C.C. and M.J.B. continued to visit him. M.J.B. specified that he would sleep

on the couch, and B.C.C. would sleep with Maxfield in the bed. M.J.B.

Court of Appeals of Indiana | Memorandum Opinion 16A01-1608-CR-1970 | February 15, 2017 Page 2 of 8 thought this was odd considering B.C.C. had his own bed in the trailer. While

living in Decatur County, Maxfield again instructed M.J.B. and B.C.C. to

touch each other’s penises while he masturbated. On another occasion,

Maxfield directed B.C.C. and M.J.B. to perform anal sex with each other while

he masturbated in the bed. M.J.B. stated that Maxfield’s proposal to have them

engage in anal sex “didn’t work because they were too young and didn’t really

understand.” (Appellant’s App. Vol. II, p. 9). At times during his sexual

encounters with B.C.C. and M.J.B., Maxfield had difficulties in getting an

erection and would become frustrated. B.C.C. and M.J.B. thought this was

funny and they would laugh and snicker at Maxfield. Other sexual encounters

consisted of M.J.B. performing oral sex on Maxfield several times, Maxfield

touching M.J.B. and B.C.C. sexually over ten times, and M.J.B. watching

Maxfield perform oral sex on B.C.C. The record shows that M.J.B. and B.C.C.

were between nine and twelve years old when Maxfield resided in Decatur

County.

[6] When M.J.B. and B.C.C. were about twelve years old, Maxfield relocated to

Ripley County, Indiana. Maxfield was renting a space upstairs in his nephew’s

home. M.J.B. and B.C.C. continued visiting Maxfield. While living in Ripley

County, on several occasions, Maxfield touched the boys’ penises, and he

masturbated while observing M.J.B. and B.C.C touch each other’s penises.

According to M.J.B., most of the sexual encounters happened in the evening

with the lights on since Maxfield enjoyed watching. When M.J.B. and B.C.C.

were about thirteen years old, Maxfield moved back to Franklin County,

Court of Appeals of Indiana | Memorandum Opinion 16A01-1608-CR-1970 | February 15, 2017 Page 3 of 8 Indiana. Maxfield continued to sexually abuse M.J.B. and B.C.C. On several

occasions, Maxfield touched M.J.B.’s and B.C.C.’s penises; Maxfield

performed oral sex on M.J.B. and B.C.C.; M.J.B. performed oral sex on

Maxfield; and Maxfield ejaculated in M.J.B.’s mouth which “upset him and

made him sick.” (Appellant’s App. Vol. II, p. 11). Maxfield’s had about thirty

to forty sexual encounters with B.C.C. and M.J.B. in Franklin County.

[7] M.J.B. lost contact with B.C.C. when he turned sixteen years old. Over the

July 4th weekend in 2015, M.J.B. found the courage to disclose Maxfield’s

sexual abuse to his family. On August 19, 2015, Officer Kip Main (Officer

Main) of the Batesville Police Department interviewed M.J.B., who is now an

adult and serving in the U.S. Army. During the interview, M.J.B. reiterated

Maxfield’s sexual abuse on him and on B.C.C. On November 20, 2015, Officer

Main located B.C.C. in Ohio, and B.C.C. confirmed M.J.B.’s sexual abuse

allegations. On November 23, 2015, Officer Main located Maxfield, who was

now sixty years old, at his place of employment. Maxfield ultimately confessed

to sexually abusing M.J.B and B.C.C. Maxfield claimed that when B.C.C. was

about ten years old, he caught him and M.J.B. touching each other sexually.

Maxfield admitted that he watched B.C.C. and M.J.B. masturbate; B.C.C. and

M.J.B. watched him masturbate; B.C.C. and M.J.B. masturbated him; he

masturbated B.C.C., but he could not recall if he masturbated M.J.B.; he

performed oral sex on B.C.C. and M.J.B.; he received oral sex from B.C.C. and

M.J.B.; and he watched B.C.C. and M.J.B. perform oral sex on each other.

Maxfield admitted to about ninety sexual encounters with the boys.

Court of Appeals of Indiana | Memorandum Opinion 16A01-1608-CR-1970 | February 15, 2017 Page 4 of 8 [8] On December 4, 2015, the State filed an Information, charging Maxfield with

two Counts of child molesting, Class A felonies, on B.C.C. and M.J.B. On

June 28, 2016, Maxfield pled guilty as charged in exchange for concurrent

sentences. Sentencing was left open to the trial court. On July 28, 2016, the

trial court accepted Maxfield’s guilty plea, and thereafter conducted a

sentencing hearing. After hearing the evidence, the trial court sentenced

Maxfield to concurrent sentences of thirty years on each Count, to be executed

in the Indiana Department of Correction.

[9] Maxfield now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION [10] Maxfield argues that his sentence is inappropriate in light of his offenses and

character. 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 burden is on Maxfield to persuade the

appellate court that his sentence is inappropriate. Childress v. State, 848 N.E.2d

1073, 1080 (Ind. 2006). “Ultimately the length of the aggregate sentence and

how it is to be served are the issues that matter.” Cardwell v. State, 895 N.E.2d

1219, 1224 (Ind. 2008). Whether we regard a sentence as appropriate at the end

of the day turns on our sense of the culpability of Maxfield, the severity of the

crime, the damage done to others, and a myriad of other considerations that

come to light in a given case. Id.

Court of Appeals of Indiana | Memorandum Opinion 16A01-1608-CR-1970 | February 15, 2017 Page 5 of 8 [11] The advisory sentence is the starting point the legislature has selected as an

appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,

1019 (Ind. 2012). A person who commits a Class A felony faces a sentence of

twenty to fifty years, with the advisory sentence being thirty years. I.C. § 35-50-

2-4. The plea agreement provided that sentencing would be left open, however,

sentences to both Counts would run concurrently. In this case, the trial court

sentenced Maxfield to the advisory thirty years on each Count with both

sentences to run concurrently.

[12] Our review of the nature of the offenses reveals that Maxfield used his position

of trust to sexually molest B.C.C. and M.J.B. from age nine to about age

sixteen. During his interview, Maxfield confessed to Officer Main that he had

about ninety sexual encounters with B.C.C. and M.J.B. from 2001 to 2005. At

the sentencing hearing, Officer Main testified that when he interviewed B.C.C.

and M.J.B., they both explained to him “how this has affected their entire life,

the decisions that they have made, relationships that they have, [] or had

difficulty with, and that it has basically plagued them their entire life.” (Tr. Vol.

II, p. 25). B.C.C. reported in his victim impact statement that his biological

father left when he was two years old. The deep psychological effect of

Maxfield’s sexual exploitation was exhibited in B.C.C.’s letter where he

indicated that Maxfield saved his life, gave him a family that he never had, and

taught him everything he needed to learn from a father. Despite the

molestation, B.C.C. noted that Maxfield “changed [his] life for the better” and

that “[he] never told [Maxfield] no or tried to stop him because as a child

Court of Appeals of Indiana | Memorandum Opinion 16A01-1608-CR-1970 | February 15, 2017 Page 6 of 8 growing up in a broken home he made me feel like I was loved.” (Appellant’s

App. Vol. II, pp. 57-58). M.J.B. was not as forbearing as B.C.C. in his victim

impact statement and he stated that “Maxfield has greatly impacted my life by

ruining my childhood, and affecting my marriage from issues stemming from

abuse as a child.” (Appellant’s App. Vol. II, p. 54). In the instant case, one

victim was his step-son, and the other was his step-son’s friend. As noted,

B.C.C. grew an attachment to Maxfield and viewed him as the father figure. It

is apparent from the record that B.C.C.’s mother and M.J.B.’s parents trusted

Maxfield enough to allow the boys to visit Maxfield; however, during their

many visits, Maxfield sexually molested the boys for his own sexual

gratification.

[13] Turning to character, we examine “the offender’s life and conduct.”

Washington v. State, 940 N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied.

While Maxfield does not have any prior convictions, the record shows that he

did not live a law-abiding life. Maxfield admitted to Officer Main that he had

molested two other boys in Ohio when he was a Boy Scouts leader. Again,

there, he was in a position of trust as a Boy Scouts leader and he took

advantage of that position for his own sexual satisfaction. See Simmons v. State,

746 N.E.2d 81, 93 (Ind. Ct. App. 2001) (indicating that when considering

criminal history, the trial court can look to felony convictions, misdemeanor

convictions and other prior criminal activity which has not been reduced to a

conviction but which does indicate a prior criminal history).

Court of Appeals of Indiana | Memorandum Opinion 16A01-1608-CR-1970 | February 15, 2017 Page 7 of 8 [14] To the extent that Maxfield is seeking to have his sentence reduced from the

advisory to the minimum allowable sentence of twenty years, we note that the

sheer number of Maxfield’s sexual encounters with B.C.C. and M.J.B. over the

years makes his behavior egregious, therefore supporting not just an advisory

sentence, but a maximum sentence. See Newsome v. State, 797 N.E.2d 293, 300

(Ind. Ct. App. 2003) (holding that repeated molestations occurring over a

period of time can be an aggravating factor supporting the maximum

enhancement). Here, instead of sentencing him to the maximum sentence of

fifty years, the trial court was lenient in sentencing sixty-one-year-old Maxfield

to serve an advisory thirty-year sentence on each Count.

[15] Given the nature of Maxfield’s offenses and character, we cannot say that he

has demonstrated that the concurrent thirty-year sentence for his two Counts of

child molesting, Class A felonies, was inappropriate. Thus, we decline to revise

Maxfield’s sentence.

CONCLUSION [16] Based on the foregoing, we conclude that Maxfield’s sentence is appropriate in

light of his offenses and character.

[17] Affirmed.

[18] Crone, J. and Altice, J. concur

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