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 Aug 06 2014, 8:20 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DONALD E. C. LEICHT GREGORY F. ZOELLER
Kokomo, Indiana Attorney General of Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DANIEL UTTERBACK, )
)
Appellant-Defendant, )
)
vs. ) No. 34A02-1312-CR-1021
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HOWARD SUPERIOR COURT
The Honorable Brant J. Parry, Judge
Cause No. 34D02-1302-FB-60
August 6, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
SHARPNACK, Senior Judge
STATEMENT OF THE CASE
Daniel Utterback appeals the seven-year sentence the trial court imposed upon his
conviction of child molesting, a Class C felony. We affirm.
ISSUE
Utterback raises one issue, which we restate as: whether his sentence is
inappropriate in light of the nature of the offense and his character.
FACTS AND PROCEDURAL HISTORY
When the victim in this case was eleven years old, she visited her father’s home.
During some of her visits, her half-brother Utterback, who was seventeen years old,
isolated her in his room and told her to take off her clothes. Once, he placed his fingers
in her vagina and forced her to perform oral sex on him, under threat of violence. On two
other occasions, he placed his penis in her vagina and also touched her breasts with his
hand and mouth.
The victim reported Utterback to authorities. The State opened a juvenile case,
but the juvenile court waived jurisdiction over Utterback. In adult court, the State alleged
four counts of child molesting, three as Class B felonies and one as a Class C felony. The
court found probable cause for the Class C felony.
Next, the parties jointly filed a Recommendation of Plea Bargain. They agreed
that Utterback would plead guilty to child molesting as a Class C felony, and the State
would dismiss the other charges. Sentencing would be left to the court’s discretion.
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The court accepted the plea agreement and sentenced Utterback to seven years,
with five years executed and the remainder to be served on probation. This appeal
followed.
DISCUSSION AND DECISION
Utterback first argues that the trial court must “weight [sic] aggravating and
mitigating circumstances” and asks this Court to do the same. Appellant’s Br. p. 3. This
request contradicts our Supreme Court’s well-established and often-repeated holding that
the trial court has no obligation to weigh aggravating and mitigating factors against each
other. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875
N.E.2d 218 (2007). Further, an appellant may not argue that the trial court erred by
failing to “properly weigh” such factors. Id.
Next, Utterback requests appellate review of his sentence under Indiana Appellate
Rule 7(B). Article 7, section 4 of the Indiana Constitution authorizes independent
appellate review of sentences. Rice v. State, 6 N.E.3d 940, 946 (Ind. 2014). This review
is implemented through Appellate Rule 7(B), which states that we may revise a sentence,
even if authorized by statute, if “after due consideration of the trial court’s decision,” the
sentence is inappropriate “in light of the nature of the offense or the character of the
offender.”
The principal role of such review is to attempt to leaven the outliers. Merida v.
State, 987 N.E.2d 1091, 1092 (Ind. 2013). Sentence review under Appellate Rule 7(B) is
very deferential to the trial court. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). The
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burden is on the defendant to persuade the appellate court that his sentence is
inappropriate. Id.
The State contends that Utterback has waived review of the appropriateness of his
sentence because he has failed to provide cogent argument. Utterback’s arguments are
not well put, but we choose to address the merits.
We first consider the sentence. At the time Utterback committed his offense, the
maximum sentence for a Class C felony was eight years, the minimum sentence was two
years, and the advisory sentence was four years. Ind. Code § 35-50-2-6 (2005). The trial
court sentenced Utterback to seven years, with two years suspended to probation.
Next, we consider the nature of the offense. Utterback isolated his much-younger
half-sister in his room at their father’s home. He then forced her to remove her clothes
and fondled her under threat of violence. This was not the only incident, as the probable
cause affidavit (which Utterback stipulated was accurate) indicates that he molested her
on several other occasions. Utterback, as the victim’s older sibling, violated a position of
trust and assaulted the victim in their parent’s home, where she should have felt safest.
Further, Utterback’s actions have severely traumatized the victim. She will not go
outside to play unless her grandmother or another relative is present, and she has limited
her circle of friends. Finally, Utterback’s crimes have interfered with the victim’s
relationship with their father. She could not visit their father while the case progressed
because Utterback continued to live with him.
Turning to Utterback’s character, he turned eighteen shortly before the sentencing
hearing. He has one juvenile adjudication, for an act that would have constituted dealing
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in marijuana had it been committed by an adult. Further, Utterback admitted to frequent
use of marijuana for several years prior to the current case. The record also reflects that
in the past, Utterback had sexual intercourse with a different younger sibling and forced
the victim in this case to watch. Finally, Utterback told the probation officer that the
victim was a willing participant in some of the molestations, which contradicts the
victim’s account of events and indicates an unwillingness to accept responsibility for his
crime. He has failed to carry his burden of demonstrating that his sentence is
inappropriate.
CONCLUSION
For the reasons stated above, we affirm the judgment of the trial court.
Affirmed.
FRIEDLANDER, J., and ROBB, J., concur.
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