Tony E. Rice v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 4, 2015
• Docket: 89A05-1412-CR-556
• Status: Published

Opinion

MEMORANDUM DECISION Aug 04 2015, 9:01 am

Pursuant to Ind. Appellate Rule 65(D), 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 Adam G. Forrest Gregory F. Zoeller Boston Bever Klinge Cross & Chidester Attorney General of Indiana Richmond, Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Tony E. Rice, August 4, 2015

Appellant-Defendant, Court of Appeals Cause No. 89A05-1412-CR-556 v. Appeal from the Wayne Superior Court Cause No. 89D01-1110-FC-80 State of Indiana, Appellee-Plaintiff. The Honorable Charles K. Todd, Jr., Judge

Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 89A05-1412-CR-556| August 4, 2015 Page 1 of 5 Case Summary [1] Tony Rice appeals his twelve-year sentence for two counts of Class C felony

child molesting. We affirm.

Issue [2] Rice raises one issue, which we restate as whether his sentence is inappropriate.

Facts [3] V.M. was born in 1999. In 2009, V.M. was living in Richmond with her

mother and Rice, who was her mother’s live-in boyfriend. She also lived with

her brother and the child that V.M.’s mother and Rice had together. In 2009,

Rice began molesting V.M. by touching her vagina and breasts and

masturbating. She testified that the molestation occurred at least fifty times.

The molestation continued until 2011.

[4] On October 6, 2011, the State charged Rice with two counts of Class C felony

child molesting. A jury found Rice guilty as charged. In sentencing Rice to

consecutive six-year sentences for a total sentence of twelve years, the trial court

found as aggravating Rice’s criminal history, which included two felony

convictions for child molesting and thirteen misdemeanor convictions, Rice’s

position of trust with V.M. as her mother’s live-in boyfriend, and the fact that

the crimes were part of a series of molestations. As mitigating, the trial court

considered Rice’s health-related issues. Rice now appeals.

Court of Appeals of Indiana | Memorandum Decision 89A05-1412-CR-556| August 4, 2015 Page 2 of 5 Analysis [5] Rice argues that his twelve-year sentence is inappropriate. Indiana Appellate

Rule 7(B) permits us to 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. Although Appellate Rule 7(B) does not require us to be “extremely”

deferential to a trial court’s sentencing decision, we still must give due

consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.

App. 2007). We also understand and recognize the unique perspective a trial

court brings to its sentencing decisions. Id. “Additionally, a defendant bears

the burden of persuading the appellate court that his or her sentence is

inappropriate.” Id.

[6] The principal role of Appellate Rule 7(B) 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 “should focus on the forest—the aggregate sentence—rather

than the trees—consecutive or concurrent, number of counts, or length of the

sentence on any individual count.” Id. Whether a sentence is inappropriate

ultimately 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. Id. at 1224.

Court of Appeals of Indiana | Memorandum Decision 89A05-1412-CR-556| August 4, 2015 Page 3 of 5 [7] Rice contends that the nature of the offenses warrants the revision of his

sentence because he did not use force on V.M. or injure her and did not

penetrate her or require her to touch him. We are not persuaded. Rice, V.M.’s

mother’s live-in boyfriend and the father of V.M.’s younger sister, repeatedly

molested V.M. over a period of years in her own home. Further, there was

evidence that Rice burned V.M. with a cigarette during the molestation and

threatened to kill V.M. and her family after she initially reported the

molestation to her mother. The fact that the offenses could have been worse

does not render the sentence inappropriate.

[8] As for Rice’s character, his criminal history is extensive and includes two prior

Class C felony child molestation convictions and numerous misdemeanor

convictions. Despite repeated contact with the criminal justice system

beginning in 1977, Rice is unwilling or unable to conduct himself in accordance

with the law. Rice also claims to be concerned about the well-being of his

young daughter, V.M.’s half-sister; however, we are not convinced that his

sentence should be reduced given the nature of these convictions and his father-

like relationship with V.M. Finally, although we view Rice’s military service

positively, it does not render his twelve-year sentence inappropriate.

Analysis [9] Rice has not established that his twelve-year sentence is inappropriate. We

affirm.

[10] Affirmed.

Court of Appeals of Indiana | Memorandum Decision 89A05-1412-CR-556| August 4, 2015 Page 4 of 5 [11] Riley, J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 89A05-1412-CR-556| August 4, 2015 Page 5 of 5