Nov 13 2013, 7:15 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOEL C. WIENEKE GREGORY F. ZOELLER
Wieneke Law Office, LLC. Attorney General of Indiana
Plainfield, Indiana
BRIAN REITZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DAVID WILLIAMS, )
)
Appellant-Defendant, )
)
vs. ) No. 67A01-1302-CR-87
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE PUTNAM CIRCUIT COURT
The Honorable Matthew L. Headley, Judge
Cause No. 67C01-1201-FA-29
November 13, 2013
OPINION – FOR PUBLICATION
MATHIAS, Judge
David Williams (“Williams”) was convicted in Putnam Circuit court of eight
counts of Class A felony child molesting and one count of Class B felony incest and was
sentenced to an aggregate term of ninety-nine years. Williams appeals and presents four
issues, which we restate as:
I. Whether the trial court abused its discretion in admitting into evidence
Williams’s statement to the police;
II. Whether Williams’s convictions for child molesting and incest constitute
double jeopardy;
III. Whether the trial court abused its discretion in sentencing Williams; and
IV. Whether Williams’s sentence is inappropriate in light of the nature of the
offense and the character of the offender.
We affirm.
Facts and Procedural History
Williams and his ex-girlfriend, A.B., had an eight-year relationship which ended
in 2008. The two had a daughter, K.W., who was born in 2003. After Williams’s and
A.B.’s relationship ended, K.W. would spend one week at her mother’s house and the
next week at her father’s house. This arrangement lasted from 2009 until January 2012.
During the time K.W. was at Williams’s house, he repeatedly molested her. Williams
would wait until everyone else in the house was asleep, then have K.W. sneak out of her
room so that he could fondle her, perform oral sex on her, and have sexual intercourse
with her. Williams told K.W. not to tell anyone what he was doing or else she would not
be able to see him again.
Eventually, in January 2012, K.W. told her mother that she had a secret. When
asked what this secret was, K.W. stated that Williams had put his “thingy” inside her.
2
A.B. contacted the authorities, and K.W. was interviewed at a child advocacy center.
During the interview, K.W. stated, “we’ve got to stop it before [Williams] does it to
[E.B.],” who was Williams’s younger daughter with his current wife. Tr. p. 414. K.W.
stated in more detail how Williams would molest her: Williams told her to wait until
everyone was asleep and then sneak downstairs; then Williams would rub her genitalia,
and force his penis into her vagina and have intercourse with K.W., often until
ejaculation. If K.W. tried to resist, Williams would “jerk [K.W.] back.” Tr. p. 407.
Afterward, Williams would give K.W. an ice cream treat. K.W. also explained that this
occurred as many as five nights a week every time she was at her father’s house.
Although there were brief periods where Williams would stop his molestations, K.W.
explained, “then he would do it again. And again and again. He hasn’t stopped.” Tr. p.
393.
On January 25, 2012, the Indiana State Police (“ISP”) executed a search warrant at
Williams’s home. They also asked Williams to go the police station for an interview.
Williams agreed. On the way to the station, Williams sat in the front passenger seat of
the police car and was not handcuffed. Still, the officer escorting Williams advised him
of his Miranda rights. At the station, ISP Detective Jim Dungan (“Detective Dungan”)
and another officer interviewed Williams. Detective Dungan too advised Williams of his
rights by reading from an advisement-of-rights form. Williams indicated that he
understood the standard Miranda rights, i.e., that he had the right to remain silent, that
anything he said could be used against him, that he had a right to have an attorney present
during questioning, that an attorney would be appointed for him if he could not afford
3
one, and that he had the right to stop the questioning at any time. Tr. pp. 525-27. As
Detective Dungan read these rights to Williams, he placed a check mark next to each
right as Williams indicated that he understood that right.
Detective Dungan then asked Williams to read the waiver portion of the
advisement form, which resulted in the following exchange:
Williams: I have read this statement of my rights and I understand what
my rights are. I am willing to make a statement and answer
questions. I do not want a lawyer at this time. I understand
and know what I am doing. No promises or threats have been
made to me and no pressure,
Dungan: Coercion.
Williams: Coercion?
Dungan: Do you know what that means?
Williams: No I don’t.
Dungan: Kind of coercion, you are being coerced into saying
something. We are promising you things or pressuring you
into saying things[.] [A]nd you are talking on your own free
will basically. Okay?
Williams: All right.
Tr. p. 527.
Williams stated, “I don’t know like what or who is accusing me of stuff or
anything,” and further stated, “I don’t know anything about lawyers. I’ve never had
on[e] in my life. So I don’t know about [what] I should do to be safe for myself.” Id. at
528. The exchange then continued:
Dungan: Well I understand.
Williams: I mean I haven’t even talked to my wife.
Dungan: The way we operate is, the way we kind of operate is there
are two sides to every story. Okay, there’s one side that
4
somebody tells me and there is another side. We have heard,
we got one side,
Williams: Right.
Dungan: of the story.
Williams: And I don’t even know what that story is.
Dungan: And that’s . . . what we want to hear from you.
Williams: Okay.
Dungan: That’s the reason we are talking to you. We want to hear
[y]our side of what’s going on.
Williams: Okay.
Dungan: And that’s basically it.
Williams: All right. Okay. Um, well if you’re just wanting to hear my
side then I guess I don’t need a lawyer or anything I mean.
Dungan: Okay but we, this form here is just a standard form that
everybody. [sic] I’m sure you’ve seen on CSI and on TV
and everything.
Williams: Yeah.
Dungan: It’s just your rights. We have to read your rights to you.
Williams: Right.
Dungan: And so we just need you to sign right there basically saying
that you are willing to . . . sit there and talk to us.
Williams: Yeah. Yeah. I’ll say that.
Dungan: Yeah.
Williams: Yeah, you guys are not forcing me. You’ve, you’ve got to
bear with me. I just,
Dungan: Oh yeah. I completely understand. If anytime during this
you have a question for either one of us, feel free to ask.
Williams: Al[l] right.
Tr. pp. 528-30 (emphasis added).
As the questioning continued, Williams stated, “I’m just concerned that I, I don’t
know what I’m supposed to do. I’ve never been in . . . anything like this. I don’t
5
know . . . if I should have a lawyer present or what.” Tr. p. 538. Further yet into the
interview, Williams stated:
I’m sorry, I mean, I don’t have a lawyer here or anything but I don’t think it
even matters. You guys seem like really nice guys. Uh, I just see it, I mean
don’t matter what I say or tell you guy[s], my life is over. I know what
happens next. You know . . . I know if I go to prison they will beat me to
death. I mean I’m not as . . . I’m not a mean guy and I’m terrified. I don’t
want to be near harden[ed] criminals and I don’t even want my parents to
go through this.
Tr. pp. 539-40 (emphasis added).
As Williams confessed to molesting his daughter, he asked, “Without a lawyer
present here I’m just talking to you and all this stuff is going to be worse for me? The
same? I’ve never been through anything like this.” Tr. p. 550. Detective Dungan
answered, “That . . . I can’t answer. You are looking in a crystal ball and I don’t have
one.” Id. Detective Dungan also told Williams, “And we can’t for one, I don’t do
promises,” “We can’t make you [a] promise. Just like we can’t threaten you.” Tr. pp.
550-51. To this, Williams stated, “Well I don’t [know] the point in having a lawyer here.
It’s just here and we are talking. Being honest. . . . But I am, like I said I am totally
concerned and I’m not going to say it again[.] My life’s over man.” Tr. p. 551.
Williams then continued to detail his sexual molestation of his daughter, even telling the
police, “I’m going to tell you it’s the same as what [K.W.] told you. I’m sure she
wouldn’t lie.” Tr. p. 576. After his confession was over, Williams stated that he did not
“like what I did at all,” and explained that:
that’s why I didn’t say, oh yeah, get me a lawyer in here and all that.
[Be]cause I don’t even understand all that stuff anyway because I have
dealt with this stuff. So I didn’t want to have a lawyer here to try to get me
6
out of something. What’s done is done and I just want to do, you know get
it out there and really just disappear would be the best thing from me[.]
Tr. p. 649. When Williams telephoned his wife, she indicated that she was looking for a
lawyer for Williams. Williams responded by telling her her, “there’s not much need to
get a lawyer . . . . Because I screwed up. I did it. . . . I done [sic] inappropriate things to
her.” Tr. pp. 655-56.
On January 27, 2012, the State charged Williams with nine counts of Class A
felony child molesting, one count of Class B felony incest, and three counts of Class C
felony child molesting. On October 31, 2012, Williams filed a motion to suppress his
confession to the police. The trial court held a hearing on this motion on November 11,
2012, and denied the motion on November 30, 2012. A three-day jury trial began on
December 14, 2012. At the conclusion of trial, the jury found Williams guilty of all
counts save one count of Class A felony child molesting. The trial court held a
sentencing hearing on January 31, 2012, at which it merged the three Class B felony child
molesting convictions with three of the Class A felony convictions. The trial court then
sentenced Williams to an aggregate term of ninety-nine years, with ninety years executed
and nine years suspended. Williams now appeals.
I. Admission of Confession
Williams first claims that his confession to the police should not have been
admitted because it was, he claims, coerced. Questions regarding the admission of
evidence are within the sound discretion of the trial court, and we review the court’s
decision only for an abuse of that discretion. A trial court abuses its discretion only if its
7
decision is clearly against the logic and effect of the facts and circumstances before it, or
if the court has misinterpreted the law. Wells v. State, 904 N.E.2d 265, 269 (Ind. Ct. App.
2009), trans. denied. With regard to the admission of a defendant’s statement, it is the
State’s burden to prove by a preponderance of the evidence that a defendant’s statement
was voluntary. Id. (citing Pruitt v. State, 834 N.E.2d 90, 114 (Ind. 2005)).1
In evaluating a claim that a statement was not given voluntarily, the trial court is to
consider the totality of the circumstances, including the crucial element of police
coercion, the length of the interrogation, its location, its continuity, the defendant’s
maturity, education, physical condition, and mental health. Id. at 271. On review, we
look to the totality of the circumstances surrounding the waiver or confession, and our
focus is whether the waiver or confession was free and voluntary and not induced by any
violence, threats, promises, or other improper influences. Atteberry v. State, 911 N.E.2d
601, 606 (Ind. Ct. App. 2009) (citing Jackson v. State, 735 N.E.2d 1146, 1153 (Ind.
2000)). Of course, on appeal, we will not reweigh the evidence but instead, we view the
evidence most favorable to the State, together with the reasonable inferences that can be
drawn therefrom, in order to determine if there is substantial, probative evidence of
voluntariness. Id. If there is substantial evidence to support the trial court’s conclusion,
we will affirm the trial court’s decision. Id.
1
Our supreme court has held that the Indiana Constitution requires the State to prove beyond a
reasonable doubt that the defendant voluntarily waived his rights and that his confession was voluntarily
given. Id. at 271 n.2 (citing Pruitt, 834 N.E.2d at 114-15). Williams does not develop a separate
argument based on the Indiana Constitution, and we therefore only address his argument under the federal
Constitution. See id. Furthermore, the State presented evidence that met even this more stringent
standard.
8
Williams claims that the police coerced him into giving a statement and claims
that he did not really understand what it meant to have a lawyer. He also claims that the
police misled him into believing that his statements would not be used against him and
that the police were there simply to help him. We disagree.
The police read Williams his Miranda rights twice: first when in the car on the
way to the police station and again immediately before the interrogation began.
Detective Dungan went over each of Williams’s rights and Williams signed the waiver-
of-rights form. It is true that Williams seemed not to understand the meaning of the word
“coerce.” But it is clear that Williams understood that the police could not force him to
speak. Indeed, Williams even said to the police during the interrogation, “you guys are
not forcing me.” Tr. p. 530. Williams notes that he had only a ninth grade education and
never obtained his GED. Although Williams claims that, because he had no prior
criminal history, he did not understand what it meant “to have a lawyer,” this is not a
technical or difficult-to-comprehend term.2 It is clear that the police twice informed
Williams of his right to have an attorney present during questioning. And there is
evidence that Williams understood this right; indeed, he stated that he did not need a
lawyer to “try to get me out of something.” Tr. p. 649.
Nor does the record support Williams’s claim that the police misled him into
thinking that his statement would not be used against him. Again, the police twice
informed Williams of his Miranda rights, which plainly stated that what Williams said
2
We also note that, during sentencing, Williams himself presented evidence of his psychological
evaluation, which noted that Williams was of average intelligence and had the ability to read and
comprehend what was presented to him.
9
could be used against him in court. And the police officers’ statements that they wished
to “help” Williams and his daughter were not implied promises of leniency. In context,
the references to “help” appear to refer to Williams’s need of help for his pedophilia, not
help in the sense of lenience.
Our supreme court has long held that vague statements that the defendant benefits
by cooperating and telling the truth do not constitute “promises” sufficient to render a
statement involuntary. Giles v. State, 760 N.E.2d 248, 250 (Ind. Ct. App. 2002) (citing
Fields v. State, 679 N.E.2d 1315, 1320 (Ind. 1997)). Moreover, here the detectives
explicitly told Williams that they could not promise him anything.3 Under these facts and
circumstances, the trial court did not abuse its discretion in concluding that Williams’s
statement was voluntary, not coerced, and therefore admissible.
II. Double Jeopardy
Williams next contends that his convictions for incest and child molesting
constitute impermissible double jeopardy. Our supreme court recently summarized the
law on double jeopardy in Indiana:
[Article 1, Section 14 of the] Indiana Constitution . . . provides “[n]o
person shall be put in jeopardy twice for the same offense.” In Richardson
v. State, 717 N.E.2d 32 (Ind. 1999), this Court concluded that two or more
offenses are the same offense in violation of article 1, section 14 if, with
respect to either the statutory elements of the challenged crimes or the
actual evidence used to obtain convictions, the essential elements of one
challenged offense also establish the essential elements of another
challenged offense. Under the actual evidence test, we examine the actual
evidence presented at trial in order to determine whether each challenged
3
We agree with the State that the police statement that “that’s not going to happen,” was a reply to
Williams’s fear that he would be “beat to death in front of my family,” and not a specific promise of
protection. Tr. p. 544.
10
offense was established by separate and distinct facts. Id. at 53. To find a
double jeopardy violation under this test, we must conclude that there is “a
reasonable possibility that the evidentiary facts used by the fact-finder to
establish the essential elements of one offense may also have been used to
establish the essential elements of a second challenged offense.” Id. The
actual evidence test is applied to all the elements of both offenses. “In
other words . . . the Indiana Double Jeopardy Clause is not violated when
the evidentiary facts establishing the essential elements of one offense also
establish only one or even several, but not all, of the essential elements of a
second offense.” Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002).
Our precedents “instruct that a ‘reasonable possibility’ that the jury used
the same facts to reach two convictions requires substantially more than a
logical possibility.” Lee v. State, 892 N.E.2d 1231, 1236 (Ind. 2008)
(citing cases). The reasonable possibility standard “fairly implements the
protections of the Indiana Double Jeopardy Clause and also permits
convictions for multiple offenses committed in a protracted criminal
episode when the case is prosecuted in a manner that insures that multiple
guilty verdicts are not based on the same evidentiary facts.” Richardson,
717 N.E.2d at 53 n.46. The existence of a “‘reasonable possibility’ turns on
a practical assessment of whether the [fact finder] may have latched on to
exactly the same facts for both convictions.” Lee, 892 N.E.2d at 1236. We
evaluate the evidence from the jury’s perspective and may consider the
charging information, jury instructions, and arguments of counsel. Id. at
1234.
Garrett v. State, 992 N.E.2d 710, 719-20 (Ind. 2013).
Williams was convicted of incest based on evidence that he had sexual intercourse
with his daughter during the period between January 1, 2010 and January 19, 2012. He
was also convicted of Class A felony child molesting based on evidence that he had
sexual intercourse with his daughter during the period between January 1, 2010 and
January 20, 2012. Williams notes that, at trial, the State did not introduce any separate
evidence to distinguish its proof of child molesting from its proof of incest. Nor did the
State identify any separate acts of intercourse to support the incest conviction. Williams
11
therefore claims that there was a reasonable possibility that the jury relied on the same
evidence to convict him of both child molesting and incest.
In support of his claim, Williams relies on Schaefer v. State, 750 N.E.2d 787 (Ind.
Ct. App. 2001). In that case, the defendant was charged with and convicted of both child
molesting and incest based upon his acts of molesting his daughter, which occurred
between February 1, 1996 and May 27, 1996, when the defendant had custody of his
daughter. Both charges alleged that the defendant performed or submitted to sexual
intercourse or deviate sexual conduct with his daughter during the period he had custody
of her. On appeal, this court held that it was “extremely likely that the jury used the same
evidentiary facts to establish the essential elements of both child molesting and incest.”
Id. at 795.
We think, however, that Schaefer is distinguishable on its facts. In that case, the
court noted that “the molestation” occurred from February to May of 1996. Id. at 791. It
is therefore unclear from the discussion in that case whether there was any evidence of
multiple or repeated acts of molestation by the defendant. But based on the court’s
conclusion that it was “extremely likely” that the same evidence was used to support both
convictions, it is unlikely that there were numerous, repeated acts of sexual intercourse
and/or deviate sexual conduct.
Here, however, the State did present evidence of numerous, repeated acts of
molestation that took place over a period of years, up to five times per week when K.W.
was with her father. If the jury credited K.W.’s testimony, which it obviously did, then
there were numerous acts of sexual intercourse, any one of which could support a
12
conviction for incest or child molesting. Given these numerous instances of child
molesting, we do not think that there was a reasonable possibility that the jury used the
same instance of sexual intercourse to support Williams’s conviction for incest and his
convictions for Class A felony child molesting.
III. Sentencing Discretion
Williams also claims that the trial court abused its discretion in sentencing him.
At the sentencing hearing, Williams proffered as mitigating that he had no prior criminal
history, that he was a good candidate for therapeutic intervention, and that the crime was
unlikely to reoccur. The State asked the trial court to impose an aggregate sentence of
ninety years, with ten suspended to probation. The trial court found as aggravating
K.W.’s young age, the repeated nature of Williams’s molestation, and that he was at a
high risk to reoffend based upon his score on the Indiana Risk Assessment System
(“IRAS”).
The trial court grouped Williams’s convictions based upon the period in which
they were committed: on the first group, consisting of Counts I, II, and III, the trial court
imposed concurrent sentences of thirty-three years with three years suspended to
probation; on the second group, consisting of Counts IV, V, and VI, the trial court
imposed concurrent sentences of thirty-three years with three years suspended to
probation; and on the third group, consisting of Counts VII and IX, the trial court also
imposed concurrent sentences of thirty-three years with three years suspended to
probation. The trial court ordered the sentences on each of these groups of concurrent
sentences to be served consecutively. The trial court also imposed a ten-year sentence on
13
Count X and ordered it to be served concurrent with the other sentences.4 Thus, the trial
court sentenced Williams to an aggregate of ninety-nine years, with nine years thereof
suspended.
Williams claims that the trial court abused its discretion by failing to find certain
mitigating factors he claims were clearly supported by the record and by using the IRAS
score as an aggravating factor. Sentencing decisions rest within the sound discretion of
the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). So long as the
sentence is within the statutory range, it is subject to review only for an abuse of
discretion. Id. An abuse of discretion occurs if the decision is clearly against the logic
and effect of the facts and circumstances before the court or the reasonable, probable, and
actual deductions to be drawn therefrom. Id. at 491. A trial court may abuse its
sentencing discretion in a number of ways, including: (1) failing to enter a sentencing
statement at all; (2) entering a sentencing statement that includes aggravating and
mitigating factors that are unsupported by the record; (3) entering a sentencing statement
that omits reasons that are clearly supported by the record; or (4) entering a sentencing
statement that includes reasons that are improper as a matter of law. Id. at 490-91.
First, Williams claims that the trial court improperly failed to consider his lack of
criminal history as a mitigating factor. The finding of mitigating factors is not mandatory
and rests within the discretion of the trial court, and the trial court is not required to
accept the defendant’s arguments as to what constitutes a mitigating factor. Flickner v.
4
As noted above, the trial court “merged” the convictions on Counts XI, XII and XIII, which were the
Class C felony child molesting convictions, into the convictions for Class A felony child molesting.
14
State, 908 N.E.2d 270, 273 (Ind. Ct. App. 2009). Further, the trial court is not required to
give the same weight to proffered mitigating factors as the defendant does, nor is it
obligated to explain why it did not find a factor to be significantly mitigating. Id.
Historically, the lack of a criminal history has been considered to be a mitigating
factor. See, e.g., Powell v. State, 769 N.E.2d 1128, 1136 (Ind. 2002) (noting generally
that the lack of criminal history should be given substantial mitigating weight, but that
the lack of criminal history does not automatically outweigh any valid aggravating
circumstances), abrogated on other grounds by Beattie v. State, 924 N.E.2d 643 (Ind.
2010). However, it appears that our supreme court has retreated from this position.
In Kimbrough v. State, 979 N.E.2d 625 (Ind. 2012), our supreme court granted
transfer in a case this court had decided in a memorandum decision. In our decision in
that case, the majority concluded, sua sponte, that the trial court had abused its
sentencing discretion by failing to consider as a significant mitigating factor that the
defendant had no prior criminal history. See id. at 629 (citing Kimbrough v. State, No.
45A04-1106-CR-328 (Ind. Ct. App. March 21, 2012)). On transfer, our supreme court
concluded that the trial court did not overlook the defendant’s lack of criminal history. Id.
The court further wrote:
Second, by describing Kimbrough’s lack of criminal history as a
“substantial mitigating factor,” and remanding this case with instructions to
impose a reduced sentence, the Court of Appeals majority implicitly
suggested the trial court should have given greater weight to this factor.
But Anglemyer makes clear that when imposing a sentence a trial court “no
longer has any obligation to ‘weigh’ aggravating and mitigating factors
against each other” and thus “a trial court can not now be said to have
abused its discretion in failing to ‘properly weigh’ such factors.”
Anglemyer, 868 N.E.2d at 491. Here, the trial court did in fact weigh
15
aggravating and mitigating factors giving more weight to three aggravators
than the sole mitigator. And the trial court cannot be said to have abused its
discretion in so doing. See id. Thus on this ground the trial court also did
not abuse its discretion in imposing Kimbrough’s sentence.
Id.
We understand this language to mean that a defendant’s lack of criminal history
can no longer be said to always be a significant mitigating factor. This is so because,
under Anglemyer, trial courts have no duty to weigh aggravating and mitigating factors.
To hold that a particular factor is always significant suggests that the trial court has an
obligation to give certain weight to that factor. Yet Anglemyer clearly holds that a trial
court cannot now be said to have abused its discretion in how it weighed the aggravating
and mitigating factors. 868 N.E.2d at 491. Accordingly, the trial court did not err in
failing to consider as mitigating Williams’s lack of criminal history.
Williams also claims that the trial court abused its discretion by failing to consider
as mitigating the fact that Williams was amenable to therapeutic counseling. He refers to
a report by a forensic psychologist, which Williams filed with his sentencing
memorandum, in which the psychologist was of the opinion that Williams was a good
candidate for psychotherapeutic intervention. According to Williams, this
recommendation, combined with the restrictions placed on sex offenders, means that he
will be unlikely to reoffend.5 The trial court did not have to credit this report or give it
any mitigating value. Thus, we cannot say that this particular proffered mitigating factor
was clearly supported by the record, yet overlooked by the trial court.
5
This conclusion was also contradicted by other evidence, discussed below, that indicated that Williams
had a high risk to reoffend.
16
Williams next contends that the trial court abused its discretion by considering
William’s IRAS score to be an aggravating factor. The trial court did not directly state
that Williams’s IRAS score was an aggravating factor; instead, it noted that his score
“shows that [Williams] ha[s] a high risk to reoffend.” Tr. p. 881. Evidence-based
offender assessment scores are not to be considered aggravating or mitigating factors or
determine the gross length of a sentence. Malenchik v. State, 928 N.E.2d 564, 575 (Ind.
2010). But such evaluations and their scores may be employed in formulating the
manner in which a sentence is to be served. Id.
Thus, to the extent that the trial court may have relied on Williams’s IRAS score
as a separate aggravating factor, this was improper. See id. However, if the trial court
has abused its discretion in sentencing a defendant, we need not remand for resentencing
if we conclude that the sentence imposed is not inappropriate. Chappell v. State, 966
N.E.2d 124, 134 n.10 (Ind. Ct. App. 2012), trans. denied; Mendoza v. State, 869 N.E.2d
546, 556 (Ind. Ct. App. 2007), trans. denied; Felder v. State, 870 N.E.2d 554, 558 (Ind.
Ct. App. 2007); see also Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007) (noting that
when trial court errs in sentencing defendant, court on appeal may exercise authority to
review and revise sentence, instead of remanding for resentencing). As discussed below,
we conclude that Williams’s sentence is not inappropriate.
IV. Appellate Rule 7(B)
Pursuant to Indiana Appellate Rule 7(B), we may revise a sentence otherwise
authorized by statute if, “after due consideration of the trial court’s decision, the Court
finds that the sentence is inappropriate in light of the nature of the offense and the
17
character of the offender.” In our review of sentences under this rule, “we must and
should exercise deference to a trial court’s sentencing decision, both because Rule 7(B)
requires us to give ‘due consideration’ to that decision and because we understand and
recognize the unique perspective a trial court brings to its sentencing decisions.” Trainor
v. State, 950 N.E.2d 352, 355 (Ind. Ct. App. 2011), trans. denied.
Although we have the power to review and revise sentences, the principal role of
our review should be to attempt to level the outliers, and identify some guiding principles
for trial courts and those charged with improvement of the sentencing statutes, but not to
achieve what we perceive to be a “correct” result in each case. Fernbach v. State, 954
N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied (citing Cardwell v. State, 895
N.E.2d 1219, 1225 (Ind. 2008)). Our review under Appellate Rule 7(B) 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. The
appropriate question is not whether another sentence is more appropriate; rather, the
question is whether the sentence imposed is inappropriate. Fonner v. State, 876 N.E.2d
340, 344 (Ind. Ct. App. 2007). And it is the defendant’s burden on appeal to persuade us
that the sentence imposed by the trial court is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
Williams was convicted of eight counts of Class A felony child molesting. The
sentencing range for a Class A felony is twenty to fifty years, with the advisory sentence
being thirty years. Ind. Code § 35-50-2-4. And the sentencing range for a Class B felony,
such as William’s incest conviction, is six to twenty years, with ten years being the
18
advisory sentence. Ind. Code § 35-50-2-5. Thus, the statutory maximum sentence for
Williams would have been four hundred and twenty years. The trial court sentenced
Williams to an aggregate of ninety years executed and nine years suspended.6 As a
credit-restricted felon, Williams will be required to serve at least eighty-five percent of
his executed time. See Boling v. State, 982 N.E.2d 1055, 1058-59 (Ind. Ct. App. 2013).
“[E]valuation of a defendant’s sentence may include consideration of the defendant’s
credit time status because this penal consequence was within the contemplation of the
trial court when it was determining the defendant’s sentence.” Sharp v. State, 970 N.E.2d
647, 651 (Ind. 2012). With this in mind, we consider whether the sentence imposed by
the trial court was improper.
The nature of Williams’s offenses is particularly heinous. He used his own young
daughter, K.W., who was between the ages of seven and nine at the times of his crimes,
to satisfy his deviate sexual desires. Over a period of years, he repeatedly had sexual
intercourse with K.W., at times up to five times per week. If K.W. attempted to resist,
Williams forced her to submit. He also bribed her to remain silent by giving her treats
after he had molested her, and threatened her that he could not see her again if she told
what had happened. There was ample evidence presented that Williams molested K.W.
6
We find Williams’s citation to Akard v. State, 937 N.E.2d 811 (Ind. 2010), to be unavailing. In that
case, our supreme court noted that the sentence imposed by the trial court was the same as that requested
by the State at trial and argued as appropriate by the State on appeal. Id. at 813. Williams notes that here,
the State requested a sentence of only eighty years executed. But Akard does not stand for the
proposition that the trial court is in any way bound to the sentence requested by the State. Instead, at
issue in Akard was whether the court on appeal should increase the defendant’s sentence under Appellate
Rule 7(B). The Akard court concluded that “the State’s request for no greater sentence at trial and its
assertion on appeal that such is an appropriate sentence . . . [were] strong indicators that the trial court
sentence is not inappropriately lenient.” Id. at 814. Here, the question is not whether the trial court’s
sentence was inappropriately lenient, but whether it was inappropriately harsh. Akard is therefore
inapposite.
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dozens of times. The nature of Williams’s offenses alone justify the trial court’s
sentencing decision.
And our consideration of Williams’s character does not alter this conclusion.
Although Williams had yet to be convicted of any crimes, for years he repeatedly had
incestuous sexual intercourse with his young daughter. He abused one of, if not the, most
sacred positions of trust—that of a parent to his or her child. In addition, there was
evidence that Williams molested his daughter because she reminded him of her mother,
Williams’s ex-girlfriend. None of this speaks well for Williams’s character.
In short, Williams has not persuaded us that his sentence of ninety years executed
and nine suspended is inappropriate in light of the nature of the offense and the character
of the offender. Therefore, even if the trial court had abused its discretion in sentencing
Williams, there is no need to remand for resentencing. See Chappell, 966 N.E.2d at 134.
Conclusion
The trial court did not abuse its discretion in admitting Williams’s statement to the
police into evidence because his statement was not coerced. Williams’s convictions for
Class A felony child molesting and Class B felony incest do not constitute double
jeopardy because there was no reasonable possibility that these convictions were based
upon the same actual evidence. Lastly, even if the trial court did abuse its discretion in
its consideration of certain aggravating factors in sentencing Williams, we need not
remand for resentencing because the sentence imposed by the trial court is not
inappropriate.
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Affirmed.
NAJAM, J., and BROWN, J., concur.
21