Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of Jul 16 2012, 8:57 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
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ATTORNEY FOR APPELLANT:
KIMBERLY A. JACKSON
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
AUSTIN BROWN, )
)
Appellant-Defendant, )
)
vs. ) No. 28A01-1112-CR-611
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE GREENE CIRCUIT COURT
The Honorable Erik C. Allen, Judge
Cause No. 28C01-1104-FC-115
July 16, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARTEAU, Senior Judge
STATEMENT OF THE CASE
Austin Brown appeals the sentence imposed upon his two convictions of sexual
misconduct with a minor, both Class C felonies. Ind. Code § 35-42-4-9 (2007). We
affirm.
ISSUES
Brown raises one issue, which we expand and restate as:
I. Whether the trial court abused its discretion in identifying aggravating and
mitigating factors.
II. Whether Brown’s sentence is inappropriate.
FACTS AND PROCEDURAL HISTORY
From August 2010 through February 2011, Brown, who was eighteen at the time,
spent every other weekend with his mother, stepfather, and two stepbrothers at their
home in Linton, Indiana. His stepbrothers were fourteen and fifteen years of age. On
multiple occasions during this period, Brown went into his stepbrothers’ rooms at night
and engaged in deviate sexual conduct with them. Specifically, he put his mouth on their
penises. His stepbrothers’ mother contacted the police when she learned of the
molestations.
The State charged Brown with two counts of sexual misconduct with a minor, both
as Class C felonies. The parties entered into a plea agreement, pursuant to which Brown
pleaded guilty as charged. In exchange, the State agreed that Brown’s aggregate
executed sentence would not exceed twelve years. The trial court sentenced Brown to
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four years on each count, with two years of each sentence suspended, to be served
consecutively for an aggregate executed sentence of four years. This appeal followed.
DISCUSSION AND DECISION
The State has failed to file an Appellee’s Brief. When an appellee fails to submit a
brief, an appellant may prevail by presenting a prima facie case of error. Benefield v.
State, 945 N.E.2d 791, 796 (Ind. Ct. App. 2011). Prima facie error is error at first sight,
on first appearance, or on the face of it. Id. Nonetheless, the burden of demonstrating
trial court error remains with the appellant. State v. Combs, 921 N.E.2d 846, 850 (Ind.
Ct. App. 2010).
I. AGGRAVATING AND MITIGATING FACTORS
In general, sentencing decisions rest within the sound discretion of the trial court
and are reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868
N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007). 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. A trial court abuses its discretion when it: (1) fails to enter a
sentencing statement; (2) enters a sentencing statement that includes reasons that are
unsupported by the record; (3) enters a sentencing statement that omits reasons that are
clearly supported by the record and advanced for consideration; or (4) enters a sentencing
statement that includes reasons that are improper as a matter of law. Id. at 490-91.
Brown argues that the trial court cited an aggravating factor that is unsupported by
the evidence. Specifically, he contends that the trial court erroneously determined that
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concurrent sentences would depreciate the seriousness of the offenses. We disagree. In
its sentencing order, the trial court found only one aggravating factor, as follows:
Each offense involved a separate and independent act with a separate
victim. Permitting concurrent sentences would diminish the seriousness of
the offenses and the impact on each of the individual victims, which
supports the imposition of consecutive sentences. The Court gives
substantial weight to the impact of the offense on each victim for the
purpose of imposing consecutive sentences.
Appellant’s App. p. 9. While it could have been more clearly stated, the trial court
focused upon the fact that Brown molested multiple victims rather than any depreciation
of the seriousness of Brown’s crimes. The presence of multiple victims as an aggravating
circumstance justifies the imposition of consecutive sentences. Gilliam v. State, 901
N.E.2d 72, 74 (Ind. Ct. App. 2009). Thus, we find no abuse of discretion. See Upton v.
State, 904 N.E.2d 700, 703 (Ind. Ct. App. 2009) (asserting that the trial court properly
identified the presence of multiple victims as justifying consecutive sentences despite the
trial court’s brief statement that the sentence should avoid “minimiz[ing] the significance
of the [defendant’s] horrendous acts”), trans. denied.
Next, Brown argues that the trial court overlooked significant mitigating factors
that were advanced at sentencing and that he claims are supported by the record. It is
well settled that a trial court is not obligated to weigh or credit a mitigating factor as the
defendant suggests. Lindsey v. State, 877 N.E.2d 190, 198 (Ind. Ct. App. 2007), trans.
denied.
Brown asserts that the trial court should have determined that his youth was a
mitigating circumstance. Age is neither a statutory nor a per se mitigating factor.
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Hoeppner v. State, 918 N.E.2d 695, 698 (Ind. Ct. App. 2009). Focusing on chronological
age, while often a shorthand for measuring culpability, is frequently not the end of the
inquiry for people in their teens and early twenties. Id. What really must be determined
is whether the young offender is “clueless” or “hardened and purposeful.” Rose v. State,
810 N.E.2d 361, 366 (Ind. Ct. App. 2004). Here, Brown was eighteen years old when he
committed his crimes. Brown committed multiple acts of deviate sexual conduct upon
both of his stepbrothers against their will. He had ample opportunity to end his criminal
conduct but chose not to. Given his purposeful, repeated misconduct, the trial court did
not abuse its discretion by failing to cite Brown’s youth as a mitigating factor.
Brown further argues that the trial court should have cited his cooperation with
police as a mitigating circumstance. However, Brown admitted to his crimes only after
the police brought him in for questioning and told him about his stepbrothers’
accusations. Therefore, his decision to cooperate could have been based on pragmatism
rather than a desire to assist law enforcement, and we find no abuse of discretion. See
Smith v. State, 929 N.E.2d 255, 259 (Ind. Ct. App. 2010) (determining that the trial court
was not obligated to consider Smith’s cooperation with the police as a mitigating factor
because it could have been based on pragmatism), trans. denied.
Brown also states that the trial court should have found as a mitigating
circumstance that his crimes were the result of circumstances that are unlikely to recur
because there is no evidence that he contemplated sexual activity with anyone other than
his stepbrothers. We disagree. Brown molested his stepbrothers over a span of several
months, and, according to evidence submitted at sentencing, he demonstrates minimal
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remorse for his crimes. Under these circumstances, we cannot say that he would not
commit the same crime on others if given the opportunity, and thus the trial court did not
abuse its discretion by failing to find that the crimes are the result of circumstances
unlikely to recur. See Hillenburg v. State, 777 N.E.2d 99, 109 (Ind. Ct. App. 2002)
(determining that the trial court properly rejected Hillenburg’s claim that, because he had
only molested his own daughter, he was not a threat to other children and the crime was
unlikely to recur), trans. denied.
Finally, Brown contends that the lack of physical harm to the victims was a
mitigating circumstance. We disagree. Brown already received some consideration for
the lack of physical harm to his stepbrothers by being charged with Class C felony
offenses rather than more severe offenses. See Ind. Code § 35-42-4-9 (stating that sexual
misconduct with a minor is a Class A felony if the commission of the offense results in
serious bodily injury to the victim). Furthermore, one of the stepbrothers testified that he
felt unsafe around Brown to the point that he attempted to barricade his door at night,
which is an indication of the emotional, if not physical, harm which Brown inflicted upon
him. The trial court did not abuse its discretion by failing to find lack of physical harm to
the victims as a mitigating factor.
In summary, with respect to the identification of aggravating and mitigating
factors, Brown has failed to establish error on the face of the record.
II. APPROPRIATENESS OF SENTENCE
Although a trial court may have acted within its lawful discretion in imposing a
sentence, Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent
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appellate review and revision of a sentence imposed by the trial court. Anglemyer, 868
N.E.2d at 491. This discretionary authority is implemented through Indiana Appellate
Rule 7(B), which provides that a court “may revise a sentence 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 character of the offender.” In
making this determination, we may look to any factors appearing in the record. Calvert
v. State, 930 N.E.2d 633, 643 (Ind. Ct. App. 2010). The defendant has the burden of
persuading the appellate court that his or her sentence is inappropriate. Childress v.
State, 848 N.E.2d 1073, 1080 (Ind. 2006).
To assess the appropriateness of the sentence, we look first to the statutory range
established for the class of the offenses. Here, the advisory sentence for a Class C felony
is four years, the shortest sentence is two years, and the longest sentence is eight years.
Ind. Code § 35-50-2-6 (2005). Brown received the advisory sentence for each
conviction, with two years of each sentence suspended, to be served consecutively for an
aggregate executed sentence of four years.
Our review here of the nature of the offenses shows that over a span of several
months, Brown repeatedly entered his stepbrothers’ rooms at night and placed his mouth
on their penises. They told him to stop, and one of the victims attempted to barricade his
door at night, to no avail. Brown points to the relatively small age difference between
himself and his victims, asserting that if he had been “a few months younger,” the sexual
interaction would not have been illegal. Appellant’s Br. p. 13. Brown was charged with
C felonies, which appropriately reflects the age difference between him and his
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stepbrothers. Had Brown been older than eighteen, or his victims younger than fourteen,
he would have been charged with more severe felonies. The relative ages of Brown and
his victims do not justify a reduction of his sentences below the advisory amount.
Our review here of the character of the offender shows that Brown has no criminal
history, has a record of employment, and, until this case began, was attending college.
However, these positive factors must be balanced against the attitude Brown expressed
toward his crimes. Although Brown pleaded guilty, he later maintained that his conduct
with his stepbrothers was consensual. Furthermore, Brown’s counselor indicated that
Brown did not exhibit remorse for what he had done and was not willing to address his
judgment on sexual issues. We cannot conclude that advisory sentences were
inappropriate based on Brown’s character. Therefore, he has failed to persuade us that
his sentence is inappropriate. See Gellenbeck v. State, 918 N.E.2d 706, 713-14 (Ind. Ct.
App. 2009) (determining that consecutive, advisory sentences for multiple convictions of
child seduction were not inappropriate, despite Gellenbeck’s good character, due to the
ongoing nature of the crimes).
CONCLUSION
For the reasons stated above, we affirm the judgment of the trial court.
Affirmed.
RILEY, J., and VAIDIK, J., concur.
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