John W. Kimbrough v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
Mar 21 2012, 9:32 am
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata, CLERK
of the supreme court,
collateral estoppel, or the law of the case. court of appeals and
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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

P. JEFFREY SCHLESINGER GREGORY F. ZOELLER
Appellate Public Defender Attorney General of Indiana
Crown Point, Indiana
GARY R. ROM
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

JOHN W. KIMBROUGH, )
)
Appellant-Defendant, )
)
vs. ) No. 45A04-1106-CR-328
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )

APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Kathleen Sullivan, Judge
Cause No. 45G04-1011-FA-48

March 21, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
 John W. Kimbrough (Kimbrough) appeals after a jury trial resulting in his convictions

and sentence for four counts of class A felony Child Molesting.1 Kimbrough presents the

following restated issues for our review:

1. Was there sufficient evidence of penetration to support Kimbrough’s
child molesting convictions?

2. Did the trial court err in its instruction defining female sex organ?

3. Did the trial court abuse its discretion when sentencing Kimbrough?

We affirm in part, reverse in part, and remand.

A.D. (Mother) began dating Kimbrough in January 2009. After approximately six

months of dating, Mother introduced Kimbrough to her three children: J.L., a daughter who

was born in January 2003, A.D., a daughter who was born in July 2004, and A.D.L., a son

who suffered from cerebral palsy. The couple and the children did many things as a family,

including staying at hotels to swim at the pool and staying at a casino hotel. Kimbrough

routinely drove the children to school and helped them with their homework. When Mother

and Kimbrough ended their relationship in the spring of 2010, Mother continued to allow

Kimbrough to take the children to school. Mother did so because she trusted Kimbrough and

the children loved him. At the time, Kimbrough lived in the basement of his grandparents’

house.

On the evening of October 29, 2010, Mother thought that J.L. appeared to be hiding

something and acted scared. A.D. also acted like she did not want to talk, but ultimately told

1
Ind. Code Ann. §35-42-4-3 (West, Westlaw current through 2011 1st Reg. Sess.).

2
Mother that her vagina was hurting. Mother asked the two if anyone had touched them

“down there” and after Mother’s questioning for a third time, J.L. and A.D. indicated that

Kimbrough had touch them inappropriately. Transcript at 136. J.L. was the one who

brought up Kimbrough’s name. Kimbrough had picked the girls up from school early that

day and had the children alone the previous weekend.

J.L. called her vagina a “private” and A.D. called hers a “cootie cat.” Transcript at

148. Kimbrough would put baby oil on his penis prior to touching J.L. and A.D. A.D. said

that Kimbrough would put his private area against hers and her sister’s and that he would

stick his private part in her “cootie cat.” Kimbrough also licked A.D.’s vagina. While in the

basement at Kimbrough’s grandparents’ house, Kimbrough put his private area up in A.D.’s

“cootie cat.” A.D. also observed Kimbrough putting his private area up in J.L.’s “cootie cat.”

When A.D. told Kimbrough to stop, he refused. Instead, Kimbrough would say no and

instruct A.D. not to tell anyone what had happened.

Kimbrough also touched J.L. in her “private” and in the back with his private part. He

would put his private part up in J.L.’s private part and would sometimes stick his penis in

J.L.’s back side. J.L. observed Kimbrough touching A.D. Kimbrough touched J.L. more

than once with his penis and used his fingers to touch J.L. inside her “private.” J.L. saw

Kimbrough masturbating and then ejaculating. Kimbrough asked J.L. to touch his penis and

she complied. The touching occurred both at the hotel and in the basement of Kimbrough’s

grandparents’ house.

On October 30, 2010, law enforcement officers were contacted and Mother took the

girls to the emergency room for examination. Each girl was examined by Dr. Kathryn Watts,

3
and both girls told her that Kimbrough had rubbed his penis against their vaginas and touched

their vaginas with his hands. Both A.D. and J.L. denied full penetration, or full insertion of

the penis inside the vaginal vault. During the physical examination, Dr. Watts found a small

break in J.L.’s hymen, but the break was not fresh because there was no bleeding. According

to Dr. Watts, a break such as that can be found in cases of sexual abuse and can heal in one

or two weeks. A.D. told Dr. Watts that her vagina was hurting. Upon examination, Dr.

Watts discovered that A.D. had redness around her vaginal openings and about a one

centimeter tear in her hymen. According to Dr. Watts while such an opening is not unusual,

it can be found in cases of sexual abuse. Further, redness can also be caused by penetration.

J.L. and A.D. were later interviewed by an officer at the family assistance bureau center.

On the evening of October 30, 2010, Kimbrough went to the residence of Sabrina

Clark, his cousin. Kimbrough, who was scared, told his cousin to close the doors. Clark

asked Kimbrough what was going on and he eventually said that he might be in trouble and

that it was all his fault. Kimbrough also told Clark that he wanted to end his life. Clark

pleaded with Kimbrough not to end his life. Police officers responded minutes later to

Clark’s residence and apprehended Kimbrough.

The State charged Kimbrough with four counts of class A felony child molesting and

two counts of class C felony child molesting. At the conclusion of Kimbrough’s four-day

jury trial, he was found guilty as charged. The trial court did not enter a judgment of

conviction on the two counts of class C felony child molesting. The trial court did enter

judgments of conviction as to the remaining counts and sentenced Kimbrough to an

aggregate sentence of eighty years imprisonment. Kimbrough now appeals.

4
 1.

Kimbrough argues that there is insufficient evidence of penetration to support his

convictions of two counts of child molesting by performing sexual intercourse.2 When

reviewing the sufficiency of the evidence needed to support a criminal conviction, we neither

reweigh evidence nor reassess witness credibility. Henley v. State, 881 N.E.2d 639 (Ind.

2008). We consider only the evidence supporting the conviction and any reasonable

inferences that can be drawn from such evidence. Id. We will affirm if there is substantial

evidence of probative value such that a reasonable trier of fact could have concluded the

defendant was guilty beyond a reasonable doubt. Id.

“Sexual intercourse” is defined by statute as “an act that includes any penetration of

the female sex organ by the male sex organ.” Ind. Code Ann. § 35-41-1-26 (West, Westlaw

current through 2011 1st Reg. Sess.). Thus, the State was required to prove penetration in

order to obtain a conviction for the crime as charged. We have previously stated as follows:

Moreover, a conviction for child molesting will be sustained when it is
apparent from the circumstances and the victim’s limited vocabulary that the
victim described an act which involved penetration of the sex organ. The
unfamiliarity of a young victim with anatomical terms does not make her
incompetent to testify when the facts are explained in simple or childlike
language which the judge and jury can understand. Also, a detailed anatomical
description of penetration is unnecessary. Proof of the slightest penetration is
sufficient to sustain convictions for child molesting. Indeed, our statute
defining sexual intercourse does not require that the vagina be penetrated, only
that the female sex organ, including the external genitalia, be penetrated.

Smith v. State, 779 N.E.2d 111, 115 (Ind. Ct. App. 2002) (internal citations omitted).

2
Kimbrough does not challenge the sufficiency of the evidence to support his convictions of two counts of
class A felony child molesting by performing deviate sexual conduct with J.L. and A.D.

5
 The present case differs from the evidence presented in Spurlock v. State, 675 N.E.2d

312 (Ind. 1996), where the evidence was deemed insufficient to support the conviction. In

Spurlock, the victim testified that the defendant tried to put his penis inside of her, but that

she was unsure if he did so. Here, J.L. and A.D. each testified that Kimbrough put his private

part up in their respective “privates.” Although the girls denied that penetration had occurred

when asked by the doctor, their descriptions of the conduct involved are sufficient to support

the jury’s determination that penetration did occur. In addition, Dr. Watts testified that during

her examination of each of the girls she found symptoms and physical evidence that could

have been caused by sexual abuse or penetration. Weighing of the evidence and assessment

of the credibility of the witnesses was for the jury to determine. Henley v. State, 881 N.E.2d

639. We decline Kimbrough’s invitation to reweigh the evidence and reassess witness

credibility. We find no error here.

2.

Kimbrough also argues that the trial court erred by instructing the jury on the

definition of female sex organ. It is well established that instructing the jury is within the

discretion of the trial court. White v. State, 846 N.E.2d 1026 (Ind. Ct. App. 2006). Jury

instructions are to be considered as a whole and in reference to each other. Id. In reviewing

a trial court’s decision to give or refuse a tendered instruction, we consider whether the

instruction (1) correctly states the law; (2) is supported by evidence in the record; and (3) is

covered in substance by other instructions. Wal-Mart Stores v. Wright, 774 N.E.2d 891 (Ind.

2002).

The trial court instructed the jury as follows in Final Instruction Number 5:

6
 “‘Female sex organ’ includes any part of the female sex organ, including the
vaginal vault, the labia or the external genitalia.”

Appellant’s Appendix at 72. Kimbrough argues that this is an incorrect statement of the law

without supporting analysis as to why this instruction incorrectly states the law.

Consequently, this argument has been waived. See Hollowell v. State, 707 N.E.2d 1014,

1025 (Ind. Ct. App. 1999) (“[f]ailure to present a cogent argument constitutes a waiver of

that issue for appellate review.”).

Waiver notwithstanding, we find that the instruction as given is not an incorrect

statement of the law. As previously stated, our statute defining sexual intercourse does not

require that the vagina be penetrated, only that the female sex organ, including the external

genitalia, be penetrated. Smith v. State, 779 N.E.2d 111. The instruction was not covered by

other instructions. Further, the decision to give the instruction was supported by Dr. Watts’

testimony, which follows:

The female sex organ is many parts that we would consider. Goes all the way
from the outer labia. In the vaginal lips is what I guess people would call them
in the law terms all the way up into the uterus. So the vaginal vault, the
clitoris. It is all the area, outside and internal.

Transcript at 310. “The purpose of an instruction is to inform the jury of the law applicable

to the facts without misleading the jury and to enable it to comprehend the case clearly and

arrive at a just, fair, and correct verdict.” Overstreet v. State, 783 N.E.2d 1140, 1163 (Ind.

2003). The trial court did not abuse its discretion here as the instruction aids the jury in

comprehending what must be penetrated in order to support the conviction.

3.

7
 Kimbrough contends that the trial court abused its discretion when it sentenced him.

In particular, Kimbrough appears to argue that the trial court considered improper

aggravating circumstances and failed to give enough weight to the sole mitigating

circumstance, i.e., his lack of a significant criminal history.

Sentencing decisions rest within the sound discretion of the trial court. Anglemyer v.

State, 868 N.E.2d 482 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. With the exception of

our authority to review sentences under Ind. Appellate Rule 7(B), as long as a defendant’s

sentence is within the statutory range, it is reviewed only for an abuse of discretion. Id. An

abuse of discretion occurs if the trial court’s decision is clearly against the logic and effect of

the facts and circumstances and the reasonable inferences to be drawn therefrom. Id.

Circumstances under which a trial court may be found to have abused its discretion include:

(1) failing to enter a sentencing statement, (2) entering a sentencing statement that includes

reasons not supported by the record, (3) entering a sentencing statement that omits reasons

clearly supported by the record, or (4) entering a sentencing statement that includes reasons

that are improper as a matter of law. Id. Where a trial court has identified proper aggravating

and mitigating circumstances, however, “[t]he relative weight or value assignable to reasons

properly found or those which should have been found is not subject to review for abuse.”

Id. at 491.

When imposing a sentence for a felony, the trial court must enter a sentencing

statement that includes a reasonably detailed recitation of its reasons for imposing the

sentence. Anglemyer v. State, 868 N.E.2d 482. A trial court abuses its discretion if its

reasons and circumstances for imposing the sentence are clearly against the logic and effect

8
of the facts and circumstances before the court, or the reasonable, probable, and actual

deductions to be drawn therefrom. Hollin v. State, 877 N.E.2d 462 (Ind. 2007). If the

statement includes a finding of aggravating and/or mitigating circumstances, then the

statement must identify all significant mitigating and aggravating circumstances. Anglemyer

v. State, 868 N.E.2d 482.

The trial court noted that Kimbrough had recently violated the conditions of his pre-

trial release granted in another court, the young ages of the victims, and that Kimbrough was

in a position of trust with the victims and violated that trust over a two-year period. The trial

court found those facts to be aggravating circumstances.

“A defendant’s commission of an offense while he or she ‘was in a position having

care, custody, or control of the victim of the offense” is a valid aggravating circumstance.”

Ind. Code Ann. § 35-38-1-7.1(a)(8) (West, Westlaw current through 2011 1st Reg. Sess.).

Furthermore, while the charging information alleged that the offenses occurred between

March 2008 and October 29, 2010, the trial court correctly noted that the evidence supported

the jury’s finding that the molestations occurred over a nearly two-year period between

January 2009 and October 29, 2010. Last, even when the age of the victim is an element of

the offense, extreme youth can support an enhanced sentence as a particularized circumstance

of the crime. Edrington v. State, 909 N.E.2d 1093 (Ind. Ct. App. 2009); Brown v. State, 760

N.E.2d 243 (Ind. Ct. App. 2002). Here, the record establishes that the victims were

approximately five years old and seven years old when the offenses first occurred. We find

no abuse of discretion in the finding of these valid aggravating circumstances.

9
 The trial court found as a mitigating circumstance that Kimbrough had no history of

delinquency or criminal activity. Thus, the trial court did not err by failing to recognize a

valid mitigating circumstance supported by the record. It is our duty, however, to “correct

sentencing errors, sua sponte, if necessary.” Comer v. State, 839 N.E.2d 721, 726 (Ind. Ct.

App. 2005). Generally, a lack of criminal history is recognized as a substantial mitigating

factor. Loveless v. State, 642 N.E.2d 974 (Ind. 1994). The sentencing range for a class A

felony is “a fixed term of between twenty (20) and fifty (50) years, with the advisory

sentence being thirty (30) years. Ind. Code Ann. § 35-50-2-4 (West, Westlaw current

through 2011 1st Reg. Sess.). After finding this substantial mitigating factor, the trial court,

enhanced the advisory sentence by ten years for the class A felony convictions. Focusing on

the appropriateness of the sentence and not the weight given to individual aggravating or

mitigating factors, we find that the trial court abused its discretion. While we acknowledge

the existence of the aggravating circumstances, an aggregate sentence of eighty years for a

defendant with no criminal history is clearly against the logic and effect of the facts and

circumstances before the trial court. Given the existence of this substantial mitigating factor,

a sentence of twenty years on Counts I and II, with a consecutive sentence of twenty years

for Counts I and IV, for an aggregate sentence of forty years is supported by the evidence.

We reverse the trial court’s sentencing order and remand to the trial court to enter an order

imposing the sentence outlined above.

Judgment affirmed in part, reversed in part, and remanded.

RILEY, J., concurs.

MATHIAS, J., concurs in part and dissents in part.

10
 IN THE
COURT OF APPEALS OF INDIANA

JOHN W. KIMBROUGH, )
)
Appellant-Defendant, )
)
vs. ) No. 45A04-1106-CR-328
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )

MATHIAS, Judge, concurring in part and dissenting in part

I concur fully in the majority’s resolution of Kimbrough’s claims concerning the

sufficiency of the evidence and the trial court’s jury instructions. I also agree with the

majority’s conclusion that the aggravating factors identified by the trial court were supported

by the record. However, I must part ways with my colleagues’ conclusion that the trial court

abused its discretion by imposing what the majority views as an inappropriately harsh

sentence in light of Kimbrough’s lack of criminal history.

As our supreme court explained in Anglemyer v. State, sentencing decisions rest

within the sound discretion of the trial court and, while subject to our authority to review and

revise sentences under Appellate Rule 7(B), sentences are reviewed only for an abuse of that
discretion. 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. 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 490-491. As the

majority correctly notes, under our current statutory sentencing regime, a trial court cannot be

said to have abused its discretion in failing to properly weigh the mitigating and aggravating

factors. Id. at 491. “[T]his is so because once the trial court has entered a sentencing

statement, which may or may not include the existence of aggravating and mitigating factors,

it may then ‘impose any sentence that is . . . authorized by statute; and . . . permissible under

the Constitution of the State of Indiana.’” Id. (quoting Ind. Code § 35-38-1-7.1(d))

(alteration in original).

In the case before us, the trial court entered a reasonably detailed sentencing statement

setting forth valid aggravating and mitigating factors that are supported by the record, and

Kimbrough raises no argument that the trial court overlooked any significant mitigating

factors. Accordingly, the trial court did not abuse its discretion in imposing Kimbrough’s

sentence, and appellate review of the merits of the sentence is therefore limited to the

grounds outlined in Appellate Rule 7(B). See Anglemyer, 868 N.E.2d at 491 (holding that it

is on the basis of Appellate Rule 7(B) alone that a criminal defendant may challenge his or

her sentence where the trial court has entered a sentencing statement that includes a

reasonably detailed recitation of its reasons for imposing a particular sentence that is

12
supported by the record, and the reasons are not improper as a matter of law, but has imposed

a sentence with which the defendant takes issue). Because Kimbrough advances no

argument under Appellate Rule 7(B) concerning the nature of the offense or his character, I

would not reach the issue of the appropriateness of his sentence.3

But even assuming that it is proper to analyze Kimbrough’s sentence under Appellate

Rule 7(B) sua sponte, I would conclude that his sentence was not inappropriate. 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 appellate review and

revision of a sentence imposed by the trial court. Alvies v. State, 905 N.E.2d 57, 64 (Ind. Ct.

App. 2009) (citing Anglemyer, 868 N.E.2d at 491). This appellate 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.” Anglemyer, 868 N.E.2d at 491.

In that consideration however, “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.” Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App.

3
The majority correctly notes that it is our duty to correct sentencing errors, sua sponte, if necessary. See Comer v.
State, 839 N.E.2d 721, 726 (Ind. Ct. App. 2005). But a request for sentence revision under Appellate Rule 7(B) is not
truly a claim of sentencing error. Rather, it is a request for this court to exercise its constitutional authority to revise a
lawfully entered sentence. See Anglemyer, 868 N.E.2d at 491 (providing that even where a trial court has acted within
its discretion in imposing a sentence, Article VII, Sections 4 and 6 of the Indiana Constitution, which are implemented
through Appellate Rule 7(B), authorize independent appellate review and revision of a sentence imposed by the trial
court). Kimbrough has made no such request here.

13
2007). The burden is on the defendant to persuade us that his sentence is inappropriate. Reid

v. State, 876 N.E.2d 1114, 1116 (Ind. 2007). Finally, although we have the power to review

and revise sentences, “[t]he principal role of appellate 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).

Here, Kimbrough was convicted of four counts of Class A felony child molesting, for

which the sentencing range is between twenty and fifty years, with an advisory sentence of

thirty years. See Ind. Code § 35-50-2-4. Kimbrough received an above-advisory, but below-

maximum, sentence of forty years on each count. The sentences on Counts I and II were

ordered to be served concurrently. Likewise, the sentences on Counts III and IV were

ordered to be served concurrently with each other, but consecutive to the sentences on

Counts I and II. Accordingly, Kimbrough received an aggregate sentence of eighty years in

the Department of Correction.

Based solely on Kimbrough’s lack of criminal history, the majority revises

Kimbrough’s sentence to the minimum term of twenty years on each count, but retains the

trial court’s imposition of concurrent and consecutive sentences, resulting in an aggregate

sentence of forty years in the Department of Correction. Although I agree that Kimbrough’s

lack of criminal history is a significant mitigating factor, I disagree that this factor, standing

alone, warrants revision of Kimbrough’s sentence, much less revision to the minimum

sentence on each count.

Here, the record establishes that Kimbrough molested two victims. As a general

14
matter, the existence of multiple victims may justify the imposition of both enhanced and

consecutive sentences. See Sanchez v. State, 938 N.E.2d 720, 723 (Ind. 2010); Tyler v.

State, 908 N.E.2d 463, 468 (Ind. 2009); Granger v. State, 946 N.E.2d 1209, 1221 (Ind. Ct.

App. 2011). Nevertheless, Indiana courts have occasionally revised sentences for child

molestation even where there were multiple victims when other evidence in the record

supported revision. See Sanchez, 938 N.E.2d at 723 (revising defendant’s consecutive,

enhanced sentences to be served concurrently where defendant molested two young victims,

but molestations were isolated incidents and defendant had limited criminal history unrelated

to the molestations and did not physically harm victims); Granger, 946 N.E.2d at 1221

(reducing defendant’s executed sixty-year sentence for molesting two preteen victims to fifty

years executed with ten years suspended in light of the defendant’s “lack of prior criminal

record, generally good conduct in the community separate from the offenses for which she

was convicted, and lack of substantial physical harm to her victims”).

Based on my review of the record, I am unconvinced that sentence revision is

warranted in the case before us. With respect to the nature of the offense, the record

establishes that Kimbrough molested two very young victims, seven-year-old J.L. and five-

year old A.D. See Hamilton v. State, 955 N.E.2d 723, 727 (Ind. 2011) (noting that “the

victim’s age . . . suggests a sliding scale in sentencing, as younger ages of victims tend to

support harsher sentences.”). Kimbrough’s victims were considerably younger than the

eleven-year-old victims in Granger. See 946 N.E.2d at 1211-12.

Moreover, in molesting the girls, Kimbrough violated a position of significant trust.

See Hamilton, 955 N.E.2d at 727 (noting that “[a] harsher sentence is also more appropriate

15
when the defendant has violated a position of trust that arises from a particularly close

relationship between the defendant and the victim, such as a parent-child or stepparent-child

relationship.”). As the majority notes, while Kimbrough and Mother were dating, the couple

and the children did many things together as a family, and Kimbrough routinely drove the

girls to school and helped them with their homework. Indeed, Kimbrough developed such a

close relationship with the girls that Mother continued to allow him to have contact with the

J.L. and A.D. even after she and Kimbrough stopped dating.

Moreover, and as the majority recognizes, the trial court’s conclusion that the

molestations occurred on multiple occasions and over a time period spanning nearly two

years was supported by the record. See Harris v. State, 897 N.E.2d 927, 930 (Ind. 2008)

(concluding that the defendant’s ongoing molestation of the victim, coupled with his abuse of

a position of trust, was sufficient to justify the imposition of enhanced sentences). Thus,

unlike the defendant in Sanchez, Kimbrough’s molestations of J.L. and A.D. were not

isolated incidents. See 938 N.E.2d at 722. I also find it noteworthy that Kimbrough

continued to molest A.D. after she asked him to stop and that he instructed her not to tell

anyone about the abuse.

With respect to Kimbrough’s character, I agree that his lack of criminal history is a

significant mitigating factor. But I do not believe that this factor, standing alone, renders

Kimbrough’s sentence inappropriate. Kimbrough’s abuse of his position of trust with respect

to J.L. and A.D. reflects very negatively on his character. Moreover, the record reflects that

at the time of sentencing, there was an active warrant for Kimbrough’s arrest for failure to

appear on a driving while suspended charge, and Kimbrough was also facing charges of

16
Class B felony criminal confinement, Class C felony intimidation, Class D felony criminal

confinement, and Class D felony residential entry. See Cotto v. State, 829 N.E.2d 520, 526

(Ind. 2005) (holding that a record of arrest alone does not establish the historical fact that a

defendant committed a crime, but that it may be relevant to the assessment of the defendant’s

character in terms of the risk that he will commit another crime). Additionally, Kimbrough

violated the terms of his pretrial release granted by another court in a separate case.

In light of this evidence concerning Kimbrough’s character, combined with the

aforementioned evidence concerning the nature of the offense, specifically the presence of

multiple victims, their young ages, the ongoing nature of Kimbrough’s crimes, and his abuse

of a position of trust, I cannot agree with the majority that revision of Kimbrough’s sentence

is warranted, particularly revision to the minimum sentence for each of Kimbrough’s four

Class A felony convictions and the resulting forty-year aggregate sentence. Mindful of the

deference we owe to the trial court in sentencing matters, I would affirm the trial court’s

eighty-year aggregate sentence for Kimbrough’s four Class A felony child molesting

convictions.

17