MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 01 2018, 10:03 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Christopher Sturgeon Curtis T. Hill, Jr.
Clark County Public Defender’s Office Attorney General
Jeffersonville, Indiana
Andrew A. Kobe
Section Chief, Criminal Appeals
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ericka Jeanne Fouch, October 1, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-907
v. Appeal from the Clark Circuit
Court
State of Indiana, The Honorable Vicki L.
Appellee-Plaintiff Carmichael, Judge
Trial Court Cause No.
10C04-1709-F1-06
Vaidik, Chief Judge.
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Case Summary
[1] Ericka Fouch appeals her sentence of eighteen years (with three of those years
suspended to probation) for causing the deaths of her two young children while
operating a vehicle with methamphetamine and marijuana in her blood. We
affirm.
Facts and Procedural History
[2] On the afternoon of June 28, 2017, Fouch drove an SUV into the path of an
oncoming train in Henryville, causing a collision and the death of her two
children, five-year-old Adalynn and four-year-old Wyatt. Immediately after the
accident, Fouch “admitted to doing drugs within the past hour,” Appellant’s
App. Vol. II p. 59, and subsequent testing revealed the presence of
methamphetamine and marijuana in her blood.
[3] In September 2017, the State charged Fouch with two counts of neglect of a
dependent resulting in death, a Level 1 felony; two counts of causing the death
of another person when operating a vehicle with a controlled substance listed in
schedule I or II of Indiana Code chapter 35-48-2 or its metabolite in her blood,
a Level 4 felony; and one count of driving while suspended, a Class A
infraction. A few months later, Fouch and the State agreed that the neglect
charges would be dismissed and that Fouch would plead guilty to the other
three charges, leaving sentencing to the discretion of the trial court.
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[4] In sentencing Fouch, the trial court found the following aggravating factors: (1)
Fouch’s criminal history; (2) the age of the victims; (3) Fouch was in a position
of “having care and custody of those victims”; and (4) “this tragedy very well
could have been avoided had [Fouch] continued or sought treatment prior to
this incident occurring.” Tr. p. 36. The court found as mitigating factors that
Fouch “took responsibility and took responsibility early in this case” and that
“incarceration of the defendant would cause an undue hardship to her family
members, specifically her grandparents who she has been caring for since she
has been on pre-trial release.” Id. Finding that the aggravators outweigh the
mitigators, the trial court imposed consecutive nine-year sentences for the two
operating counts, with three years suspended to probation on one of the counts,
for a total sentence of eighteen years—fifteen years to serve with the
Department of Correction and three years suspended to probation. (The court
also imposed a $500 fine for driving while suspended.)
[5] Fouch now appeals her sentence.
Discussion and Decision
[6] Fouch challenges the trial court’s finding of aggravators and mitigators and
argues that her sentence is inappropriate.
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I. Aggravators and Mitigators
[7] Our trial courts enjoy broad discretion in identifying aggravating and mitigating
factors, and we will reverse only for an abuse of that discretion. Coy v. State,
999 N.E.2d 937, 946 (Ind. Ct. App. 2013).
[8] Fouch first argues that the trial court abused its discretion by finding her
criminal history to be an aggravating circumstance. We disagree. The pre-
sentence investigation report indicates that Fouch had two prior felony
convictions (receiving stolen property and theft) and three prior misdemeanor
convictions (acquiring a controlled substance by fraud, theft, and conversion).
The felony and controlled-substance convictions came more than seven years
before the offenses in this case, but that is not such a long period of time that
the trial court was required to disregard them. To the extent Fouch challenges
the weight the trial court gave to the criminal-history aggravator, that is not a
matter we can review. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007),
clarified on reh’g, 875 N.E.2d 218 (Ind. 2007); see also Gellenbeck v. State, 918
N.E.2d 706, 712 (Ind. Ct. App. 2009).
[9] We also reject Fouch’s argument that the trial court abused its discretion by
failing to find three additional mitigating factors: that she “turned herself in,”
that she “expressed extreme remorse,” and that “her risk expressed for
reoffending is low.” Appellant’s Br. p. 10. We are confident that the first fact is
covered by the trial court’s finding that she “took responsibility and took
responsibility early in this case.” That finding also covers Fouch’s expression of
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remorse—at the sentencing hearing, when Fouch’s lawyer talked about her
remorse, he did so as part of his argument that Fouch had taken responsibility
for her actions. See Tr. pp. 28 (“I would ask the Court to assign a mitigating
factor that [Fouch’s] taking responsibility for her actions, that she is repentant
and contrite today.”), 29 (“[Fouch] is taking responsibility for her actions as
much as she possibly can at this point, given all of the unfortunate tragic
circumstances in this case. She is repentant, she is contrite and I would ask the
Court to give significant weight to that.”). And we think the trial court acted
well within its discretion when it declined to find that Fouch presents a low risk
of reoffending. The court’s rejection of that mitigator was reasonable in light of
Fouch’s criminal history, including a drug-related conviction, as well as the fact
that she was given probation for most of her prior convictions and failed to take
advantage of those previous opportunities for rehabilitation, as evidenced by
her continued use of illegal drugs all the way up until the accident.
II. Inappropriate Sentence
[10] Fouch also argues that her sentence is inappropriate and asks us to revise it
pursuant to Indiana Appellate Rule 7(B), which provides that an appellate 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.” “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.” Thompson v. State, 5 N.E.3d 383, 391
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(Ind. Ct. App. 2014) (citing Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.
2008)). Because we generally defer to the judgment of trial courts in sentencing
matters, defendants have the burden of persuading us that their sentences are
inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind. Ct. App. 2016).
[11] Initially, we note that in exchange for Fouch’s guilty plea on the two Level 4
felony operating counts, the State agreed to drop the two Level 1 felony neglect
counts. If Fouch had been convicted on the latter counts, she would have faced
a sentence of up to forty years on each count. See Ind. Code § 35-50-2-4.
Because of the State’s agreement to drop those charges, Fouch’s exposure
dropped to twelve years on each operating count. See Ind. Code § 35-50-2-5.5.
Her ultimate sentence was nine years on each count—halfway between the
advisory sentence of six years and the maximum sentence of twelve years—
with three years suspended on one of the counts, for a total of eighteen years
with fifteen years to serve. The trial court also recommended Fouch for
placement in the Purposeful Incarceration program, successful completion of
which could lead to a sentence modification. See Marley v. State, 17 N.E.3d 335,
338 n.1 (Ind. Ct. App. 2014), trans. denied.
[12] In arguing that this sentence is inappropriate, Fouch seriously downplays the
nature of her offenses. Not only did she have methamphetamine and marijuana
in her blood—she admitted that she had done drugs shortly before the accident.
Not only did she drive after doing drugs—she drove with a suspended license.
And her victims were her two young children who were in her sole care and
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custody at the time of the crash—facts that Fouch makes no mention of in her
brief.
[13] As for Fouch’s character, she is by no means a “bad” person or a hardened
criminal. There seems to be no dispute that she had a tough upbringing with
little support from her parents and started using illegal drugs at a young age. As
an adult, she has provided care for her grandfather with dementia. She turned
herself in after being charged, and she pled guilty not long after being charged.
But Fouch’s criminal history, while certainly not the worst we have seen, is still
troubling, particularly the two felony convictions and the drug conviction. And
the significance of her guilty plea is tempered by the fact that it came only after
the State agreed to dismiss more serious charges.
[14] Fouch has not convinced us that her sentence is inappropriate.
[15] Affirmed.
Riley, J., and Kirsch, J., concur.
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