MEMORANDUM DECISION Jul 21 2015, 10:01 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
Jerry T. Drook Gregory F. Zoeller
Marion, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Cory Alan Neal, July 21, 2015
Appellant-Defendant, Court of Appeals Cause No.
85A02-1412-CR-839
v. Appeal from the Wabash Circuit
Court
Cause No. 85C01-1310-FA-889
State of Indiana,
Appellee-Plaintiff. The Honorable Robert R. McCallen,
III, Judge
Barnes, Judge.
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Case Summary
[1] Cory Neal appeals his forty-year sentence for Class A felony child molesting.
We affirm.
Issue
[2] Neal raises one issue, which we restate as whether his sentence is inappropriate.
Facts
[3] Neal is the father of A.N., who was born in July 2005. In 2013, A.N. reported
that Neal had touched her inappropriately. During the course of the
investigation, Neal admitted that he put his penis in A.N.’s mouth on two
occasions, that she touched his penis with her hands, and that he watched
pornography with her. He stated that he first put his penis in A.N.’s mouth
when she was three or four years old.
[4] On October 31, 2013, the State charged Neal with Class A felony child
molesting and Class B felony incest. At trial, then nine-year-old A.N. described
extensive sexual conduct on several occasions between Neal and her, including
vaginal intercourse, anal sex, and oral sex. A jury found Neal guilty as
charged. Because of double jeopardy concerns, Neal was only convicted of
Class A felony child molesting.
[5] In sentencing Neal, the trial court considered as aggravating that Neal failed to
accept responsibility or show remorse despite admitting to the conduct, that he
has a minor criminal history, that he unsuccessfully completed probation in the
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past, that a reduced or suspended sentence would depreciate the seriousness of
the offense, and that A.N. was his daughter. The trial court found no
mitigators, and sentenced Neal to forty years executed. Neal now appeals.
Analysis
[6] Neal argues that his forty-year executed sentence is inappropriate and that it
should be reduced and/or include a term of probation. Indiana Appellate Rule
7(B) permits us to revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, we find that the sentence is
inappropriate in light of the nature of the offense and the character of the
offender. Although Appellate 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. “Additionally, a defendant bears
the burden of persuading the appellate court that his or her sentence is
inappropriate.” Id.
[7] The principal role of Appellate 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
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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 Appellate 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).
[8] Regarding the nature of the offense, Neal acknowledges that A.N. was his very
young daughter with whom he held a position of trust. Nevertheless, he
contends that he did not force or threaten physical harm to A.N. and that the
medical examination supported his theory that no sexual intercourse occurred.
We simply are not persuaded that the nature of the offense, even if limited to
oral sex, warrants a reduction of his forty-year sentence when, by Neal’s own
admission, he engaged in oral sex with his daughter when she was three or four
and again when she was older.
[9] Regarding the character of the offender, Neal argues that he was thirty-one
when he was charged with the current offense and before that had only been
convicted of misdemeanor possession of marijuana and alcohol in 2001 and
misdemeanor check deception in 2006. Although Neal’s criminal history is not
significant, it is not non-existent. Further, the presentence investigation report
shows that Neal had used marijuana daily since he was eighteen and had used
methamphetamine multiple times a week since he was twenty-seven. Neal also
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used opiates two to three times a week. This ongoing drug abuse taken with his
criminal history indicates a pattern of disregard for the law.
[10] Moreover, although Neal admitted to engaging in oral sex with A.N., he
insisted in taking his case to trial whereby nine-year-old A.N. had to testify
against her father in graphic detail. This shows Neal’s lack of remorse and
failure to accept responsibility for his crime. The presentence investigation
report indicated that, because of Neal’s failure to accept responsibility, he is not
an appropriate candidate for a community-based sex offender treatment
program, which would be a requirement of probation. Based on the nature of
the offense and character of the offender, we are not convinced that Neal’s
sentence is inappropriate or that a portion of his sentence should be suspended
to probation.
Conclusion
[11] Neal has not established that his forty-year executed sentence is inappropriate.
We affirm.
[12] Affirmed.
Riley, J., and Bailey, J., concur.
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