MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Dec 21 2016, 8:29 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David M. Payne Gregory F. Zoeller
Marion, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William D. Funderburgh III, December 21, 2016
Appellant-Defendant, Court of Appeals Case No.
27A05-1604-CR-867
v. Appeal from the Grant Superior
Court
State of Indiana, The Honorable Dana J.
Appellee-Plaintiff. Kenworthy, Judge
Trial Court Cause No.
27D02-1405-FA-10
Pyle, Judge.
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Statement of the Case
[1] William D. Funderburgh III (“Funderburgh”) appeals his sentence imposed
following his guilty plea to Class A felony child molesting.1 Funderburgh
appeals his sentence, arguing that the trial court erred in its consideration of
aggravators and mitigators and that his fifty-year sentence is inappropriate.
Concluding that the trial court did not abuse its discretion when sentencing
Funderburgh and that Funderburgh has failed to show that his sentence is
inappropriate, we affirm his sentence.
[2] We affirm.
Issues2
1. Whether the trial court abused its discretion when sentencing
Funderburgh.
2. Whether Funderburgh’s sentence is inappropriate pursuant to
Indiana Appellate Rule 7(B).
1
IND. CODE § 35-42-4-3(a)(1) (2006). We note that under the current version of the child molesting statute,
which took effect in 2014, Class A felony child molesting is now a Level 1 felony. Because Funderburgh
committed his offense in 2005-2006, we will apply the statute in effect at that time.
2
Funderburgh sets forth his appellate argument as solely a challenge to the inappropriateness of his sentence.
However, interspersed in his inappropriate sentencing argument, Funderburgh challenges the three
aggravators found by the trial court as well as the trial court’s decision to reject his proffered mitigators.
Because a challenge to aggravating and mitigating factors is to be reviewed under a different standard of
review than an inappropriate sentencing challenge, we will review these arguments separately.
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Facts
[3] Between September 2005 and September 2006, Funderburgh, who was then
thirty-four years old, engaged in sexual intercourse with M.M., who was the
eight-year-old daughter of Funderburgh’s live-in girlfriend.
[4] Several years later, once M.M. had moved in with her grandmother, M.M.
reported what Funderburgh had done to her. Thereafter, on November 5, 2013,
the Marion Police Department questioned Funderburgh regarding the child
molesting allegations against him. Initially, Funderburgh denied all the
allegations. He told police that he “wanted to take a polygraph to clear himself
of the allegations.” (App. 153).
[5] Three days later, on November 8, 2013, Funderburgh returned to the police
station for the scheduled polygraph. Funderburgh then signed a “Polygraph
Waiver Form” and an “Agreement of Stipulation of Polygraph Examination,”
in which he agreed that the results of the polygraph could be used against him
in any action that would arise from charges filed against him. (App. 75, 78).
The police videotaped Funderburgh as he was interviewed before the polygraph
examination, during the polygraph examination, and after the examination.
During the post-polygraph interview, Funderburgh stated that he thought of
M.M. as his daughter. When officers asked if he could explain why the
polygraph showed that he was being deceptive about the question of whether
his bare penis had touched M.M.’s bare vagina, Funderburgh first stated that,
when he lived with M.M., her mother, and her siblings, they used to walk
naked around the house and that his penis might have touched M.M.’s vagina
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when he walked by her. He later stated that there had been only one contact
that had occurred, and he blamed it on M.M. Specifically, Funderburgh stated
that when he was sitting on the toilet having a bowel movement with an erect
penis, and M.M. straddled his lap. He later stated that his penis became erect
after M.M. sat on him.
[6] In 2014, the State charged Funderburgh with three counts of Class A felony
child molesting. Specifically, Count 1 alleged that Funderburgh had engaged in
sexual intercourse with M.M.; Count 2 alleged that Funderburgh had
performed deviate sexual conduct on M.M.; and Count 3 alleged that
Funderburgh had M.M. perform deviate sexual conduct on him.
[7] Prior to trial, Funderburgh’s counsel filed a motion in limine, seeking to
exclude evidence of the polygraph examination and results. The trial court held
a hearing on Funderburgh’s motion, and the State introduced, as State’s Exhibit
1, the DVD of Funderburgh’s November 8, 2014 interviews and polygraph
examination.3 The trial court reviewed the videotape of Funderburgh’s pre-
polygraph interview, his polygraph examination, and his post-polygraph
interview; determined that Funderburgh had knowingly waived his right to
counsel prior to the polygraph examination; and denied Funderburgh’s limine
motion.
3
The transcript of this limine hearing is not included in the record on appeal.
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[8] On January 26, 2016, the day of Funderburgh’s jury trial, Funderburgh entered
an agreement to plead guilty to Count 1 in exchange for the dismissal of Counts
2 and 3.4 The parties also agreed that sentencing would be open to the trial
court’s discretion. The factual basis for Funderburgh’s offense was laid by
Funderburgh’s admission to the facts alleged in the charging information for
Count 1.
[9] At Funderburgh’s sentencing hearing, the State asked the trial court to take
judicial notice of the State’s Exhibit 1 from the limine hearing, which was the
DVD of Funderburgh’s November 8, 2014 interviews and polygraph
examination. The trial court granted the State’s request.
[10] The State also had M.M. present her victim impact statement. When making
this statement, M.M. stated that Funderburgh “raped” her in the bathroom
when she was eight years old. (Tr. 45). She further explained that
Funderburgh had “sexual intercourse with [her] in the bathroom after everyone
ha[d] gone to sleep.” (Tr. 46). M.M. further stated that Funderburgh had
molested her “repeatedly” and explained that it was multiple times a week over
4
It appears that the plea agreement was an oral, not a written plea agreement. We note that INDIANA CODE
§ 35-35-3-3(a) requires that a plea agreement on a felony charge be made “in writing” and “before the
defendant enters a plea of guilty.” Recently, we explained that “‘[t]he purpose behind [INDIANA CODE § 35-
35-3-3] is to insure that a defendant does not base his guilty plea upon certain promises made by the
prosecutor where the judge has in fact not accepted the [S]tate’s recommendation.’” Gil v. State, 988 N.E.2d
1231, 1234 n.2 (Ind. Ct. App. 2013) (quoting Davis v. State, 418 N.E.2d 256, 260 (Ind. Ct. App. 1981)).
However, we also explained that “failure to reduce an agreement to writing need not itself be deemed a
sufficient ground for rejection” of a defendant’s guilty plea. Gil, 988 N.E.2d at 1234 n.2 (quoting Centers v.
State, 501 N.E.2d 415, 417-18 (Ind. 1986)).
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multiple months. (Tr. 46). Additionally, M.M. stated that Funderburgh had
forced her to watch “sex position guide videos” and to look at “porn
magazines.” (Tr. 54). She further stated that she had been seeing a therapist
for a few years and that Funderburgh’s actions still affected her.
[11] M.M.’s grandmother (“Grandmother”) also presented a statement during the
sentencing hearing. Apparently, around 2006 or 2007, the Department of Child
Services had removed M.M. from her mother’s home and placed her in foster
care, where she remained for approximately two years. Thereafter, M.M.
moved in with her grandparents. Grandmother stated that when M.M. moved
in with her, she “knew something unusual had happened to M.[M.]” and that,
at that time, M.M. would crawl into a small space, get into a fetal position,
cover herself with a blanket, and “sob[.]” (Tr. 59). Grandmother further stated
that M.M. had been in therapy for almost four years before she was able to
reveal that Funderburgh had molested her. Additionally, Grandmother stated
that Funderburgh had stolen M.M.’s “childhood and innocence” and caused
her to feel shame and have low self-worth. (Tr. 60).
[12] When Funderburgh made a statement, he “apologize[d] for what had happened
with all of this” and then stated that he wanted to have a jury trial instead of a
sentencing hearing. (Tr. 73). The trial court told Funderburgh that he had his
chance to have a jury trial and had decided to plead guilty and that the court
would proceed with sentencing.
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[13] The State argued that, taking into consideration Funderburgh’s polygraph
examination and interviews, his statements made to the probation officer as
part of the presentence investigation report (“PSI”), and M.M.’s sentencing
statements, it was clear that Funderburgh blamed M.M. for the molestation.
The State requested that the trial court impose a fifty-year sentence.
[14] During the sentencing hearing, Funderburgh’s counsel asked the trial court to
consider certain mitigating factors, including his difficult childhood of physical
and emotional abuse. His counsel also referenced the DVD from
Funderburgh’s November 2013 police interview and stated that the video
showed that Funderburgh was “embarrass[ed]” by “what had happened
here[.]” (Tr. 76). Additionally, Funderburgh’s counsel argued that
Funderburgh was not in a position of trust with M.M. Counsel acknowledged
that Funderburgh had a relationship with M.M.’s mother and lived with her,
but he argued that there was no position of trust because Funderburgh had
never married M.M.’s mother. Funderburgh’s counsel requested that the trial
court impose a thirty-year sentence with ten years suspended to probation.
[15] When sentencing Funderburgh, the trial court acknowledged that Funderburgh
had pled guilty and noted that he had received “some consideration” for it
because the State had dismissed two other Class A felony charges. (Tr. 80).
The trial court noted that Funderburgh had five misdemeanor convictions.
Specifically, in June 2000, Funderburgh was convicted in Wisconsin of criminal
damage to property/use of a dangerous weapon and disorderly conduct. In
January 2001, he was convicted in Wisconsin of battery (domestic abuse
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related) and two counts of disorderly conduct. The trial court found the
following aggravating circumstances: (1) Funderburgh’s criminal history,
which the trial court found to be “a moderate aggravating factor[;]” (2) the age
of the victim, which the trial court found to be “a moderate aggravating factor”
because M.M. was “an eight year old little girl[;]” and (3) Funderburgh’s
position of “care, custody[,] and control” of the victim, which the trial court
found to be “a very strong aggravating factor[.]” (Tr. 80-81). The trial court
also noted that Funderburgh “minimize[d] his own responsibility[] and
blame[d] the victim for initiating his victimization of her[,]” and it found
Funderburgh’s “statements and attitude on this point to be incredible and
disturbing.” (App. 181).
[16] The trial court imposed a fifty (50) year sentence for Funderburgh’s Class A
child molesting conviction and ordered it be served in the Department of
Correction. Funderburgh now appeals.
Decision
[17] On appeal, Funderburgh contends that: (1) the trial court erred in it
consideration of aggravating and mitigating circumstances; and (2) his sentence
is inappropriate. We will review each argument in turn.
1. Abuse of Discretion
[18] Funderburgh suggests that the trial court erred by finding the three aggravating
circumstances and by rejecting his proffered mitigating circumstances.
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[19] Sentencing decisions rest within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218 (Ind. 2007). So long as the sentence is within the statutory range, it is
subject to review only for an abuse of discretion. Id. An abuse of discretion
will be found where 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 may abuse its 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 490–91.
[20] Funderburgh suggests that the trial court’s use of his criminal history as an
aggravating circumstance was erroneous because he had only misdemeanor
convictions and was not on probation at the time of the current offense.
Funderburgh’s challenge to the trial court’s aggravator is nothing more than a
request to review the weight that the trial court applied to this aggravating
factor, which we will not do. See Anglemyer, 868 N.E.2d at 491 (explaining that
relative weight given to aggravating and mitigating factors is not subject to
review). Thus, we conclude that the trial court did not abuse its discretion by
considering Funderburgh’s criminal history as an aggravating factor.
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[21] Next, Funderburgh’s challenges the trial court’s determination that the victim’s
age was an aggravating circumstance. Specifically, he contends that such an
aggravator was improper because the age of the victim is an element of his
offense.
[22] Generally, where the age of the victim is a material element of the crime, the
age of the victim may not be used as an aggravating circumstance. Kien v. State,
782 N.E.2d 398, 414 (Ind. Ct. App. 2003) (citing Stewart v. State, 531 N.E.2d
1146, 1150 (Ind. 1988)), reh’g denied, trans. denied. “However, the trial court
may properly consider the particularized circumstances of the material elements
of the crime” to be an aggravating factor. Id. (citing Stewart, 531 N.E.2d at
1150). For example, a trial court may properly consider as aggravating the age
of the victim when the trial court considers that the victim was of a “tender
age.” Id. (citing Stewart, 531 N.E.2d at 1150 and Buchanan v. State, 767 N.E.2d
967, 971 (Ind. 2002)). Stated differently, we have held that a trial court may
properly consider the victim’s age as an aggravating factor where “the youth of
the victim is extreme.” Reyes v. State, 909 N.E.2d 1124, 1128 (Ind. Ct. App.
2009).
[23] In Reyes, the defendant was convicted of Class A felony child molesting after he
had sexual intercourse with a nine year old. Id. at 1126. At sentencing, the trial
court found the victim’s age to be an aggravating circumstance. Id. at 1128. On
appeal, we rejected Reyes’ contention “that the trial court [had] abused its
discretion in concluding that the molestation of a nine year old [was] extreme.”
Id. We explained that “[a]lthough the trial judge could have been more specific
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in tying the victim’s age to the particular nature and circumstances of the
offenses, [the court] did refer to the victim’s age in conjunction with the
molestation that occurred over a period of years.” Id. Thus, we held that the
trial court had not abused its discretion by considering the victim’s age as an
aggravating circumstance. Id.
[24] Here, the trial court noted that M.M. was under the statutory age required for
Funderburgh’s child molesting conviction. When sentencing Funderburgh, the
trial court also commented that M.M. was “an eight year old little girl[,]” and it
stated that it was taking into consideration M.M.’s victim impact statement and
the effects that Funderburgh’s crime had on M.M. (Tr. 81). As a result, it is
clear that the trial court’s finding concerning M.M.’s age was linked to the
particular circumstances of this case, namely the profound impact it had on her
young life. Therefore, the trial court did not abuse its discretion by identifying
M.M.’s age as an aggravating circumstance. See, e.g., Reyes, 909 N.E.2d at 1128
(finding no error in the trial court’s use of the nine-year-old victim’s age as an
aggravating circumstance).
[25] Lastly, we turn to Funderburgh’s contention that the position of trust and care
aggravator is “not supported by the record.” (Funderburgh’s Br. 15). In regard
to this aggravating circumstance, we have explained as follows:
The position of trust aggravator is frequently cited by sentencing
courts where an adult has committed an offense against a minor
and there is at least an inference of the adult’s authority over the
minor. Moreover, this aggravator applies in cases where the
defendant has a more than casual relationship with the victim
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and has abused the trust resulting from that relationship. This is
usually the case where the defendant is the victim’s mother,
father or stepparent . . . . Generally, cohabitation arrangements
of nearly any character between adults do in fact, and should,
establish a position of trust between the adults and minors living
or staying together.
Rodriguez v. State, 868 N.E.2d 551, 555 (Ind. Ct. App. 2007).
[26] Here, Funderburgh was the boyfriend of M.M.’s mother and living in the same
house with M.M.’s family. The State argues that “the combination of
cohabitation, the intimate relationship between Funderburgh and M.M.’s
mother, and his statement that he considered M.M. as his daughter shows that
he was in a position of care, custody, or control over M.M.” (State’s Br. 15-16).
We agree. Indeed, the trial court specifically noted that “the evidence
support[ed] [the position of trust aggravator] based upon the testimony . . .
heard here as well as the video of the defendant’s own statements.” (Tr. 80-81).
Accordingly, the trial court did not abuse its discretion by considering this
aggravating circumstance. See, e.g., Hines v. State, 856 N.E.2d 1275, 1281 (Ind.
Ct. App. 2006) (finding no abuse of discretion where the trial court considered
the defendant’s position of trust with the victim to be an aggravating
circumstance), trans. denied.
[27] As with Funderburgh’s challenges to his aggravators, we also find without merit
his challenge to the trial court’s rejection of his proffered mitigating
circumstances. Funderburgh contends that the trial court should have
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considered his difficult childhood and psychological conditions of depression,
bipolar disorder, and anger control as mitigating circumstances.
[28] A trial court is not obligated to accept a defendant’s claim as to what constitutes
a mitigating circumstance. Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000). A
claim that the trial court failed to find a mitigating circumstance requires the
defendant to establish that the mitigating evidence is both significant and clearly
supported by the record. Anglemyer, 868 N.E.2d at 493.
[29] As for Funderburgh’s proposed difficult childhood mitigating factor, he has not
shown that the trial court abused its discretion by refusing to assign mitigating
weight to this factor where he “never established why his past victimization led
to his current behavior.” Hines, 856 N.E.2d at 1283 (finding no abuse of
discretion where the trial court’s rejected the defendant’s childhood history
mitigator). See also Coleman v. State, 741 N.E.2d 697, 700 (Ind. 2000)
(explaining that evidence of a “difficult childhood warrants little, if any,
mitigating weight”), reh’g denied, cert. denied; Loveless v. State, 642 N.E.2d 974,
976-77 (Ind. 1994) (trial court was not obligated to consider the defendant’s
“overwhelmingly difficult” childhood as a mitigating circumstance).
[30] Similarly, Funderburgh has failed to show that the trial court abused its
discretion by finding that his psychological conditions were not entitled to
mitigating weight where Funderburgh failed to show a nexus between any such
conditions and his crime. See Corralez v. State, 815 N.E.2d 1023, 1026 (Ind. Ct.
App. 2004) (explaining that “in order for a mental history to provide a basis for
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establishing a mitigating factor, there must be a nexus between the defendant’s
mental health and the crime in question”). Accordingly, the trial court did not
abuse its discretion by refusing to assign mitigating weight to his proposed
mitigating factors.
2. Inappropriate Sentence
[31] Funderburgh contends that his fifty-year year sentence for his Class A child
molesting conviction is inappropriate. He requests this Court to reduce his
sentence to the advisory term of thirty years.
[32] We may revise a sentence if it is inappropriate in light of the nature of the
offense and the character of the offender. Ind. Appellate Rule 7(B). The
defendant has the burden of persuading us that his sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a
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). Whether a sentence is
inappropriate ultimately turns on “the culpability of the defendant, the severity
of the crime, the damage done to others, and a myriad of other factors that
come to light in a given case.” Id. at 1224.
[33] When determining whether a sentence is inappropriate, we acknowledge that
the advisory sentence “is the starting point the Legislature has selected as an
appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081.
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Here, Funderburgh pled guilty to Class A felony child molesting. A Class A
felony has a range of twenty (20) to fifty (50) years with an advisory sentence of
thirty (30) years. I.C. § 35-50-2-4. The trial court imposed the maximum term
of fifty (50) years for Funderburgh’s Class A felony conviction.
[34] Funderburgh focuses much of his appellate argument on a discussion of other
inappropriate sentencing cases, trying to compare them to and distinguish them
from the facts and sentence in his case. However, we have explained that “[i]n
analyzing such [inappropriate sentencing] claims, we [should] ‘“concentrate
less on comparing the facts of [the case at issue] to others, whether real or
hypothetical, and more on focusing on the nature, extent, and depravity of the
offense for which the defendant is being sentenced, and what it reveals about
the defendant’s character.”’” Guzman v. State, 985 N.E.2d 1125, 1134 (Ind. Ct.
App. 2013) (quoting Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008)
(quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied),
trans. denied)).
[35] Turning to the nature of Funderburgh’s Class A felony child molesting offense,
we note that Funderburgh forced the eight-year-old daughter of his girlfriend to
engage in sexual intercourse with him. According to the victim’s statement
during the sentencing hearing, Funderburgh had “sexual intercourse with [her]
in the bathroom after everyone ha[d] gone to sleep[,]” and he did so
“repeatedly” over multiple months. (Tr. 46). As the trial court noted,
Funderburgh’s act of having sex with M.M. was all the more heinous because
he was in a position of trust with her.
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[36] Turning to Funderburgh’s character, we acknowledge that Funderburgh pled
guilty; however, he did so on the day of trial and in exchange for the dismissal
of two other Class A felony charges. See Wells v. State, 836 N.E.2d 475, 479
(Ind. Ct. App. 2005) (explaining that “a guilty plea does not rise to the level of
significant mitigation where the defendant has received a substantial benefit
from the plea or where the evidence against him is such that the decision to
plead guilty is merely a pragmatic one”), trans. denied. We also note that
Funderburgh has a criminal history consisting of five misdemeanor convictions.
The PSI reveals that, in June 2000, he was placed on probation for one year
from his use of a dangerous weapon and disorderly conduct convictions and
that, within that probationary period, he committed three additional offenses
(battery and two counts of disorderly conduct) in November 2000 and was
sentenced for them in January 2001. Funderburgh attempts to minimize his
criminal history by arguing that he did not have any prior felony convictions
and that his last conviction was somewhat remote in time. We find, however,
that his prior criminal history reflects poorly on his character. Additionally, as
the trial court noted, Funderburgh “minimize[d] his own responsibility[] and
blame[d] the victim for initiating his victimization of her.” (App. 181). This
too reflects poorly on his character.
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[37] Funderburgh has not persuaded us that his fifty-year sentence for his Class A
felony child molesting conviction is inappropriate. Therefore, we affirm the
trial court’s sentence.5
[38] Affirmed.
Baker, J., and Mathias, J., concur.
5
To the extent that Funderburgh challenges the results of the probation department’s risk assessment
instruments, we note that the “scores on a probation department’s risk assessment instrument ‘are not intended to
serve as aggravating or mitigating circumstances nor to determine the gross length of sentence[.]’” Bratcher v. State,
999 N.E.2d 864, 872 (Ind. Ct. App. 2013) (quoting Malenchik v. State, 928 N.E.2d 564, 575 (Ind. 2010)), trans.
denied. “Instead, these ‘offender assessment instruments are appropriate supplemental tools for judicial
consideration at sentencing’ and can be used by the trial court ‘in formulating the manner in which a sentence is to
be served.’” Id. (quoting Malenchik, 928 N.E.2d at 575).
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William D. Funderburgh, III v. State of Indiana (mem. dec.)
Combined Opinion