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
Oct 22 2014, 10:21 am
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SAMUEL J. BEASLEY GREGORY F. ZOELLER
Muncie, Indiana Attorney General of Indiana
CHANDRA K. HEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BRYAN M. STRICKLER, )
)
Appellant-Defendant, )
)
vs. ) No. 18A02-1401-CR-42
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE DELAWARE CIRCUIT COURT
The Honorable Kimberly S. Dowling, Judge
Cause No. 18C02-1112-FA-12
October 22, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Bryan Strickler appeals his 100-year sentence for two counts of Class A felony
child molesting. We affirm.
Issues
The issues before us are:
I. whether the trial court abused its discretion in
sentencing Strickler; and
II. whether his sentence is inappropriate.
Facts
In August 2011, Ashley Stapert began living with a long-time friend, Nikki
Chambers, at Chambers’s apartment in Muncie. Chambers had a daughter, J.F., who was
born in May 2011. In October 2011, Strickler, Stapert’s boyfriend, also moved in.
Chambers would often leave J.F. in Stapert and Strickler’s care while she worked during
the daytime. J.F. also sometimes slept at night near Strickler and Stapert in the
apartment’s living room.
Late in the night of November 7, 2011, or early morning of November 8, Stapert
awoke to see Strickler lying naked on the floor behind J.F., who also was naked. Stapert
could see that Strickler’s penis was near J.F.’s buttocks. Strickler then threatened to hit
Stapert if she did not join him on the floor with J.F. Stapert obliged, then began
performing oral sex on and placed her finger inside J.F.’s vagina while Strickler remained
behind J.F., holding her. This continued for about five minutes. Stapert then ended her
participation, and she did not witness any additional conduct by Strickler.
2
The next morning, Stapert told Chambers what had happened. 1 Chambers kicked
Stapert and Strickler out of the house. J.F., meanwhile, had gone to visit her father.
Later in the day, J.F.’s father called Chambers to tell her that he had observed red bumps
that looked like hemorrhoids near her anus. Chambers then called police and told J.F.’s
father to take her to the hospital. At Riley’s Children’s Hospital in Indianapolis, the red
bumps were diagnosed as genital warts. According to Stapert, Strickler also had genital
warts around this same time. J.F. also had an anal fissure and was constipated, both of
which may be indicators of sexual abuse, but the doctor who examined J.F. could not
determine whether she had suffered “acute trauma” from such abuse. Ex. 2. Strickler
later admitted to a friend that he had “done something” to J.F., but he claimed that he had
been forced to do so by Stapert, whom Strickler claimed to be afraid of due to her violent
tendencies. Tr. p. 136.
The State charged Strickler with one count of Class A felony child molesting and
one count of Class A felony attempted child molesting. The first count alleged that
Strickler had performed oral sex on J.F., while the second count alleged that Strickler had
rubbed his penis on J.F.’s buttocks. After a bench trial, Strickler was convicted as
charged. Although there was no evidence that Strickler had performed oral sex on J.F.,
his conviction on that charge apparently was based on accomplice liability for Stapert’s
actions.
1
Stapert indicated in her testimony that she told Chambers about the molestation; Chambers testified that
Stapert originally said that Strickler had tried to “smother” J.F. Tr. p. 150.
3
After conducting a sentencing hearing, the trial court issued a detailed sentencing
statement that noted fifteen aggravating circumstances and four mitigating circumstances.
Among the aggravating circumstances, the trial court found:
7. The Crime is particularly devastating to the victim in
that she will live with the long term physical effects of a
sexually transmitted disease as a result of being sexually
abused . . .
8. The Defendant was in a position having care and
control of the victim of the offense, to wit: fulfilling the role
of caregiver and a trusted family friend having a duty to
protect her from this type of criminal behavior . . .
*****
11. The harm or injury of [sic] damage suffered by the
victim was both significant and greater than the elements
necessary to prove the elements of the offense . . . .
App. p. 256. Included among the mitigators, the trial court noted Strickler’s lack of prior
criminal convictions and his “possible learning disability and a possible mental health
issue . . . .” Id. The trial court imposed the maximum sentence of fifty years for each
conviction, to be served consecutively. Strickler now appeals.
Analysis
Strickler makes distinct arguments both that the trial court abused its discretion in
sentencing him and that his sentence is inappropriate. We engage in a four-step process
when evaluating a sentence. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007). First,
the trial court must issue a sentencing statement that includes “reasonably detailed
reasons or circumstances for imposing a particular sentence.” Id. Second, the reasons or
omission of reasons given for choosing a sentence are reviewable on appeal for an abuse
4
of discretion. Id. Third, the weight given to those reasons, i.e. to particular aggravators
or mitigators, is not subject to appellate review. Id. Fourth, the merits of a particular
sentence are reviewable on appeal for appropriateness under Indiana Appellate Rule 7(B).
Id. Even if a trial court abuses its discretion by not issuing a reasonably detailed
sentencing statement or in its findings or non-findings of aggravators and mitigators, we
may choose to review the appropriateness of a sentence under Rule 7(B) instead of
remanding to the trial court. See Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007).
I. Abuse of Discretion
An abuse of discretion in identifying or not identifying aggravators and mitigators
occurs if it 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 490 (quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)). Additionally, an abuse
of discretion occurs if the record does not support the reasons given for imposing
sentence, or the sentencing statement omits reasons that are clearly supported by the
record and advanced for consideration, or the reasons given are improper as a matter of
law. Id. at 490-91.
Strickler challenges the trial court’s finding that he gave J.F. a sexually transmitted
disease, which formed the basis of aggravators seven and eleven listed above. In
particular, he notes the undisputed evidence in the record that genital warts, which are
caused by a strain of human papillomavirus (“HPV”), have an incubation period of not
less than two to three weeks after infection and will not be visible before that time. This
evidence came from a nurse’s testimony and reports prepared by the Centers for Disease
5
Control and Prevention and medical researchers. Thus, Strickler asserts he could not
have been the cause of the genital warts observed on J.F. on November 8, 2011, because
the incident for which he was convicted occurred during the previous night; the genital
warts would have to have been related to an exposure to HPV that occurred at least two
to three weeks previously.
We agree that, as a scientific matter of fact, the genital warts observed on J.F. on
November 8, 2011, could not have resulted from the actions of Strickler during the
previous night. However, Strickler moved into Chambers’s residence several weeks
previously and had been assisting with J.F.’s care and had access to her during that time
period. Strickler does not deny that he had genital warts during this time period.
Although Strickler was not charged with any other molestations of J.F. and Stapert did
not testify about any other incidents during trial, she did tell police, in a statement
admitted into evidence, that Strickler had molested J.F. on other occasions. The trial
court was not forbidden from inferring that Strickler may have committed earlier acts
against J.F. See Vermillion v. State, 978 N.E.2d 459, 468 (Ind. Ct. App. 2012)
(reaffirming that trial courts may rely upon uncharged misconduct as an aggravating
circumstance). Thus, the conclusion that Strickler was the cause of J.F.’s genital warts is
not clearly against the logic and effect of the circumstances before the trial court. The
trial court did not abuse its discretion in relying on that fact as the basis for two of its
aggravating circumstances.
Strickler also asserts that the trial court abused its discretion in finding that he was
a “caregiver and a trusted family friend” of Chambers’s as stated in the eighth
6
aggravating circumstance. App. p. 256. He notes that although Stapert had known
Chambers for a long time, he was essentially a stranger to Chambers before he moved in.
Regardless, Chambers did entrust Strickler with the care of J.F. for extended periods of
time. Courts have upheld abuse of a position of trust as a legitimate aggravating
circumstance in similar situations. See Martin v. State, 535 N.E.2d 493, 498 (Ind. 1989)
(affirming that defendant was in position of trust when he beat his live-in girlfriend’s son
to death while babysitting); Shaffer v. State, 674 N.E.2d 1, 9 (Ind. Ct. App. 1996)
(affirming that defendant was in a position of trust over children he molested, whom his
wife babysat in her and defendant’s home), trans. denied. Even if the extent to which
Strickler occupied a position of trust in Chambers’s home and over J.F. was debatable,
we cannot re-evaluate the weight that a trial court decides to place on a proper
aggravating circumstance. 2 See Anglemyer, 868 N.E.2d at 491. The trial court did not
abuse its discretion with respect to this aggravating circumstance.
II. Inappropriateness
We now assess whether Strickler’s sentence is inappropriate under Appellate Rule
7(B) in light of his character and the nature of the offense. See Anglemyer, 868 N.E.2d
at 491. Although Rule 7(B) does not require us to be “extremely” deferential to a trial
court’s sentencing decision, we still must give due consideration to that decision.
Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We also understand and
recognize the unique perspective a trial court brings to its sentencing decisions. Id.
2
In any case, the trial court said it only was giving “some weight,” not “significant weight,” to this
aggravating circumstance. See App. p. 256.
7
“Additionally, a defendant bears the burden of persuading the appellate court that his or
her sentence is inappropriate.” Id.
The principal role of Rule 7(B) 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). We “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. Whether a sentence is
inappropriate ultimately turns on the culpability of the defendant, the severity of the
crime, the damage done to others, and myriad other factors that come to light in a given
case. Id. at 1224. When reviewing the appropriateness of a sentence under Rule 7(B),
we may consider all aspects of the penal consequences imposed by the trial court in
sentencing the defendant, including whether a portion of the sentence was suspended.
Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).
Regarding the nature of the offense, Strickler was allowed to live in Chambers’s
apartment and was entrusted with the care of Chambers’s six-month-old daughter. In
return, Strickler took advantage of the situation to perform sexual acts upon a fragile
infant on at least one occasion, if not more. Strickler also forced Stapert to join in his
heinous acts by making physical threats against her. 3 Ultimately, he passed along his
HPV infection to a baby. Chambers noted she will have to one day tell J.F. what
3
Strickler questions Stapert’s credibility on this point, but we must view the evidence in a light most
favorable to the judgment.
8
happened because of the HPV infection and the risk it may pose to J.F. in the future. 4
Even after Strickler’s conviction and in pre-sentencing discussions with a probation
officer, Strickler continued to insist that Stapert had forced him to molest J.F. This
reveals a failure to accept complete responsibility for his own actions.
As for Strickler’s character, he was twenty-three at the time of the offense and
these are his first criminal convictions. He has pending charges for three misdemeanor
offenses allegedly committed before the molestations. There was some evidence
presented that Strickler may have a learning disability and have some unspecified mental
health issues, but their relation to the offense are unclear.
Strickler contends that his case compares favorably to others in which our supreme
court reduced sentences for child molestation. In exercising our power to review and
revise sentences, we may compare sentences of those convicted of the same or similar
offenses, although such comparison is not required. Corbally v. State, 5 N.E.3d 463,
471-72 (Ind. Ct. App. 2014). The first case Strickler cites is Rivers v. State, 915 N.E.2d
141 (Ind. 2009). In that case, the trial court imposed consecutive thirty-year sentences
for two counts of Class A felony child molesting, but our supreme court ordered that they
be served concurrently. Rivers, 915 N.E.2d at 144. The defendant in that case had no
other criminal history and had molested his seven or eight-year-old niece, with whom the
defendant had otherwise had a positive relationship before the molestation occurred.
There was no indication in the opinion that the niece had been physically injured by the
4
The evidence from the CDC and medical research reports is unclear as to the extent to which J.F.’s
future health is threatened by the HPV infection, but it seems clear that there is a risk. Thankfully, the
medical documents indicate that the strain of HPV that causes genital warts is different from the strain
associated with cancer.
9
acts, which occurred very close in time, and the defendant committed no other
molestations for seven years before the niece disclosed what had happened.
The second case is Monroe v. State, 886 N.E.2d 578 (Ind. 2008). The defendant
in that case received a total 100-year sentence for five counts of Class A felony child
molesting, which our supreme court ordered reduced to a total aggregate term of fifty
years. Monroe, 886 N.E.2d at 581. The facts of the case revealed the defendant had
repeatedly molested a child of his live-in-girlfriend for two years, when the victim was
between the ages of seven and nine; as in Rivers, there is no indication in the opinion that
the victim sustained any injuries, aside from those inherent in molestation. The
defendant’s criminal history consisted only of driving-related misdemeanors. Our
supreme court stated that the defendant’s position of trust over the victim warranted an
aggravated sentence, but also noted, “the five counts of child molestation were identical
and involved the same child,” and it could not discern a reason for imposing consecutive
sentences. Id. at 580.
The final case is Buchanan v. State, 767 N.E.2d 967 (Ind. 2002). There, the trial
court imposed a maximum fifty-year sentence upon a defendant convicted of Class A
felony child molesting for one incident of performing oral sex on a five-year-old girl and
videotaping the incident. Our supreme court reduced the sentence to forty years. 5
Buchanan, 767 N.E.2d at 974. Among other things, the court noted “that this crime was
5
The court applied the “manifestly unreasonable” standard for reviewing sentences that was in effect at
the time.
10
committed without excessive physical brutality, the use of a weapon, or resulting physical
injury,” and was only a one-time occurrence. Id. at 973.
Although Strickler has no criminal history, and his convictions are related solely
to a one-time non-violent occurrence, we find his case to be distinguishable from Rivers,
Monroe, and Buchanan. Most notably, J.F.’s age at the time of the incident makes
Strickler’s conduct undeniably outrageous. Our supreme court has observed, “a victim’s
age . . . suggests a sliding scale in sentencing, as younger ages of victims tend to support
harsher sentences. . . . The younger the victim, the more culpable the defendant’s
conduct.” Hamilton v. State, 955 N.E.2d 723, 727 (Ind. 2011). As a six-month-old, J.F.
was completely powerless to do anything to resist Strickler and she was unable to report
what he did to anyone. If Stapert had not confessed to Chambers, his conduct might
never have been discovered. Additionally, infecting a child with a sexually transmitted
disease certainly increases the egregiousness of a molestation. See Brown v. State, 760
N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied. Strickler took advantage of
Chambers’s generosity in allowing him to live in her apartment by preying on her infant
child. And, he continues to shift the blame for what happened onto Stapert, failing to
take responsibility for his actions as a grown man. All things considered, we cannot say
that Strickler’s 100-year aggregate sentence is inappropriate in light of the nature of the
offense and his character.
Conclusion
The trial court did not abuse its discretion in sentencing Strickler, and his sentence
is not inappropriate. We affirm.
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Affirmed.
BRADFORD, J., and BROWN, J., concur.
12