Aug 28 2013, 5:54 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:
DEREK W. STEELE GREGORY F. ZOELLER
Deputy Public Defender Attorney General of Indiana
Kokomo, Indiana
ANGELA N. SANCHEZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
TERESA SMITH, )
)
Appellant-Defendant, )
)
vs. ) No. 34A04-1303-CR-131
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HOWARD SUPERIOR COURT
The Honorable George A. Hopkins, Judge
Cause No. 34D04-1208-FA-140
August 28, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Following her guilty plea to criminal deviate conduct1 as a Class B felony, Teresa
Smith (“Smith”) appeals her fourteen-year executed sentence.
We affirm.
FACTS AND PROCEDURAL HISTORY
Smith often babysat her friend’s son, D.H., and was responsible for babysitting
him on a particular day in the summer of 2012. D.H. was six years old at the time.
While Smith was babysitting D.H. at her residence, Troy Kavis (“Kavis”) came to visit.
In addition to being D.H.’s maternal grandfather, Kavis was in a romantic relationship
with Smith. With D.H. in the same room, Smith and Kavis began having sexual
intercourse. At some point, Smith began kissing D.H. on his neck and chest, then
performed oral sex on D.H. Kavis also had D.H. perform oral sex on him.
On August 31, 2012, the State charged Smith with one count of child molesting 2 as
a Class A felony, and pursuant to a plea agreement, Smith pleaded guilty to one count of
criminal deviate conduct as a Class B felony. On March 1, 2013, the trial court sentenced
Smith to the Department of Correction (“DOC”) for fourteen years executed. Smith now
appeals.
DISCUSSION AND DECISION
Smith contends that her sentence was inappropriate in light of the nature of the
offense and her character. She further argues that the trial court did not give proper
1
See Ind. Code § 35-42-4-2.
2
See Ind. Code § 35-42-4-3.
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consideration to the hardship that an extended period of incarceration would cause on her
family.
We may revise a sentence after careful review of the trial court’s decision if we
conclude that the sentence is inappropriate based on the nature of the offense and the
character of the offender. Ind. Appellate Rule 7(B). “Under this rule, the burden is on
the defendant to persuade the appellate court that his or her sentence is inappropriate.”
McMahon v. State, 856 N.E.2d 743, 749 (Ind. Ct. App. 2006) (citing Childress v. State,
848 N.E.2d 1073, 1080 (Ind. 2006)). Even if the trial court followed the appropriate
procedure in arriving at its sentence, the appellate court still maintains a constitutional
power to revise a sentence it finds inappropriate. Hope v. State, 834 N.E.2d 713, 718
(Ind. Ct. App. 2005). Nevertheless, the reviewing court “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.” Stewart v. State, 866
N.E.2d 858, 866 (Ind. Ct. App. 2007).
Smith contends that the trial court erred because it did not give proper
consideration to her character, the nature of the crime, and the hardship the sentence
would cause on her family. Appellant’s Br. at 2. To the extent Smith is arguing that the
trial court did not give proper weight to aggravating and mitigating factors, we cannot
review a sentence on such a basis. See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.
2007) (“The relative weight or value assignable to reasons properly found or those which
should have been found is not subject to review for abuse.”). We may only consider
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whether a sentence is inappropriate based on the nature of the offense and the character
of the offender. See id.
In support of her character, Smith notes that she is remorseful, accepts
responsibility for her actions, and that she is now regularly attending both church and
counseling sessions, taking active steps to prevent future deviant behavior. She also
notes that she has long been responsibly caring for her aging mother. Smith observes that
she has no prior criminal history, that “leniency is encouraged toward defendants who
have not previously been through the criminal justice system,” and that it does not appear
that any leniency was afforded her because her co-defendant, who has a criminal record,
received the same sentence. Filice v. State, 886 N.E.2d 24, 39 (Ind. Ct. App. 2008).
Although Smith did not have a formal criminal record at the time of the incident,
her behavior nevertheless was not isolated. Smith admitted to allowing D.H. to place his
hands and mouth on her breasts on two other occasions. Her admission demonstrates that
the offense was not one mistake or sudden lapse of judgment, but a pattern of abuse and
molestation that reveal her disregard for the impact of her behavior. Furthermore,
Smith’s son had been previously convicted of sexually assaulting D.H. Although her
son’s actions were certainly not Smith’s own, the trial court found incredible Smith’s
claim that she was not aware that D.H. was the victim of the assault, when she had
attended her son’s trial, spoken with D.H.’s mother about her son’s conviction, and
known D.H. for his entire life. Smith’s repeated abuse of D.H., which she carried out
from a position of trust and with knowledge of D.H.’s prior victimization, ultimately
4
demonstrates that a sentence of fourteen years is not inappropriate in light of her
character.
As to the nature of the offense, Smith contends that her sentence should be
reduced because her actions were “not the most heinous case of sexual abuse of a minor,”
as the encounter was brief and “was not an example of repeated forceful abuses
committed against the victim.” Appellant’s Br. at 4. Nevertheless, Smith’s actions
caused profoundly harmful damage to D.H.’s development and behavior. D.H. has
struggled in school, developed angry and violent tendencies, exhibited increasingly
solitary and despondent behavior, and has demonstrated outward expressions of his
sexual confusion—all foreseeable consequences of Smith’s repeated actions, particularly
given her knowledge of yet other preexisting mental struggles D.H. faced at the time.
Smith has failed to demonstrate that the trial court’s sentence was inappropriate.
Affirmed.
ROBB, C.J., concurs.
RILEY, J., dissents with separate opinion.
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IN THE
COURT OF APPEALS OF INDIANA
TERESA SMITH, )
)
Appellant-Defendant, )
)
vs. ) No. 34A04-1303-CR-131
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
RILEY, Judge, dissenting
I respectfully disagree with the majority to affirm the trial court’s sentencing
decision. Based on the record before me, I do not believe a fourteen year sentence to be
appropriate in light of Smith’s character and nature of the offense. The record reflects
that although Smith has no prior criminal history, she received the same sentence as her
co-defendant who has a criminal record. This court has held that “leniency is encouraged
towards defendants who have not previously been through the criminal justice system.”
Beck v. State, 790 N.E.2d 520, 522 (Ind. Ct. App. 2003). As such, I would reduce
Smith’s sentence and impose a ten-year executed sentence, the advisory term for a Class
B felony.
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