MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jun 18 2019, 6:46 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark A. Kiesler Curtis T. Hill, Jr.
Kiesler Law Office Attorney General of Indiana
New Albany, Indiana
Matthew Michaloski
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David Gill, June 18, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2335
v. Appeal from the Orange Circuit
Court
State of Indiana, The Honorable Steven L. Owen,
Appellee-Plaintiff. Judge
Trial Court Cause No.
59C01-1709-F3-1005
Friedlander, Senior Judge.
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[1] David Gill appeals the sentence he received for his conviction of sexual
1
misconduct with a minor, a Level 4 felony. Concluding the aggravating
circumstances applied by the trial court were not improper and his sentence was
not inappropriate, we affirm.
[2] Fifteen-year-old I.G. and thirty-year-old Gill were friends, and Gill often
provided alcohol and drugs to I.G. One evening in October 2016, I.G. texted
Gill because she was “having a bad day” and she “wanted to get drunk.”
Appellant’s App. Vol. II, p. 31. I.G. told her mother she was going out with
friends. Instead, Gill picked her up at the end of her driveway and took her
back to his house where he provided her alcohol. As I.G. was drinking, Gill
informed her he had put Xanax in her drink. I.G. does not remember anything
but “bits and pieces” after a certain point in the evening. Id. at 32. She
remembers throwing up several times and being put in the shower. She awoke
in a bed at 4:00 a.m. and asked Gill to take her home.
[3] The next day I.G. asked Gill if he had “done anything” to her, referring to sex.
Id. at 33. Initially, Gill was equivocal with his response, but ultimately he
denied having sex with I.G. Eventually, I.G. discovered that she was pregnant.
In July 2017, I.G. delivered a baby, and DNA samples were obtained from the
baby and Gill. Results of DNA testing showed that the probability of Gill’s
paternity of I.G.’s baby is 99.9999%. Id. at 21.
1
Ind. Code § 35-42-4-9 (2014).
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[4] Based upon these events, the State charged Gill with rape and sexual
misconduct with a minor. Gill pleaded guilty to the sexual misconduct charge,
and the State dismissed the rape charge; the parties left sentencing to the court’s
discretion. The court sentenced Gill to a fully executed sentence of twelve
years. Gill now appeals that sentence.
[5] Gill first contends the trial court considered improper aggravating factors in
sentencing him. 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 (2007). An abuse of discretion occurs if the decision is clearly
against the logic and effect of the facts and circumstances before the court, or
the reasonable, probable, and actual deductions drawn therefrom. Id. One of
the ways in which a trial court may abuse its discretion is if the sentencing
statement identifies aggravating factors that are improper as a matter of law. Id.
[6] With regard to the second of two aggravating circumstances found by the court,
the court stated:
The Court looks at the facts of the case and finds that they were
particularly egregious and caused more harm to the victim than
was necessary to meet the elements of the crime. There was a
significant age difference between the Defendant and the victim.
She was a troubled youth and the Defendant used the lure of
drugs and alcohol to achieve the results of his crime. Finally, as
a result of his actions, the victim gave birth to a child. This
certainly will have a lifelong [e]ffect upon the victim and her
child. The Court gave moderate weight to this factor.
Appellant’s App. Vol. II, pp. 148-49.
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[7] Gill challenges the trial court’s consideration of the age difference between
himself and I.G., alleging that it constitutes the use of a material element of the
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offense as an aggravator. Although a trial court may not use a material
element of the offense as an aggravating factor, it may find the nature and
circumstances of the offense to be an aggravating factor. Caraway v. State, 959
N.E.2d 847 (Ind. Ct. App. 2011) (citing Indiana Code § 35-38-1-7.1 (a)(1)
(2015), which provides that, in determining a sentence, the court may consider
as an aggravating circumstance that the harm, injury, loss, or damage suffered
by the victim was significant and greater than the elements necessary to prove
the commission of the offense), trans. denied. In other words, where a trial
court’s reason for imposing a sentence greater than the advisory includes
material elements of the offense but lacks something unique about the
circumstances that would justify deviating from the advisory sentence, that
reason is improper as a matter of law. Gomillia v. State, 13 N.E.3d 846 (Ind.
2014). Even if the trial court relied on an improper factor under the “nature
and circumstances” aggravating circumstance, the sentence may be upheld so
long as the remaining components of the aggravator are proper. Id.
Additionally, Gill takes exception with the court’s use of the term “lure”
because, on the night of this offense, I.G. initiated the contact with him.
2
Although not stated in his brief, Gill is presumably referring to the element of the offense of sexual
misconduct with a minor that requires, in this instance, the defendant to be at least twenty-one and the victim
to be at least fourteen but less than sixteen. See Ind. Code § 35-42-4-9(a)(1).
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[8] In finding the nature and circumstances of the offense as an aggravator, the trial
court stated that, as a result of Gill’s actions, I.G. became pregnant and gave
birth to a child, forever changing her life and creating “a very difficult
situation.” Tr. Vol. 2, p. 28. In further describing the unique circumstances of
this offense, the court noted the vast discrepancy in age between Gill and I.G.—
fifteen years, the fact that Gill should not have allowed I.G. to party with him,
and the fact that their relationship was based on Gill providing drugs and
alcohol to I.G.
[9] The nature and circumstances aggravator is primarily based upon the facts that
Gill furnished alcohol and drugs to fifteen-year-old I.G., engaged in intercourse
with I.G. while she was under the influence of these substances, and, as a result,
I.G. became pregnant and gave birth to a child. These facts are indeed far
greater and more significant than the elements necessary to prove the offense of
sexual misconduct. See Ind. Code § 35-42-4-9 (setting forth elements of Level 4
felony sexual misconduct with a minor as a person who is at least twenty-one
years of age, with a child at least fourteen years of age but less than sixteen
years of age, performs or submits to sexual intercourse or other sexual conduct).
Additionally, although Gill had to be at least twenty-one under the statute, his
thirty years exceeded that minimum by almost a decade. As such, it was not
improper for the trial court to consider the disparity between I.G.’s and Gill’s
ages. See Gellenbeck v. State, 918 N.E.2d 706 (Ind. Ct. App. 2009) (stating it was
not improper for court to consider disparity in defendant’s and victim’s ages
where defendant’s age far exceeded minimum age of eighteen required by
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statute). Further, regardless of who initiated the contact on this particular
night, it is undisputed that Gill had established a tempting arrangement with
I.G. She described Gill’s residence as a “party setting” and stated that “it was
like cool to have someone who like, when your friends are like, let’s get drunk,
you could be like, hey, well, I know this guy who is complet[ely] okay with
that.” Appellant’s App. Vol. II, p. 40. Thus, the trial court’s terminology was
not improper to describe Gill’s pattern of providing alcohol and drugs to I.G.,
as well as a location in which to consume them.
[10] Nevertheless, even assuming that the age difference and the court’s use of the
term “lure” are improper factors under the nature and circumstances
aggravating circumstance, the remaining and principal components of the
aggravator (i.e., providing mind-altering substances, having intercourse with the
victim while she was under the influence of those substances, resulting
pregnancy, and birth of a child) are proper. See Gomillia, 13 N.E.3d 846 (even if
trial court relied on improper factor under “nature and circumstances”
aggravating circumstance, sentence may be upheld if remaining components of
aggravator are proper). We cannot say the trial court abused its discretion by
considering the nature and circumstances of the offense as an aggravator.
[11] Gill also asserts that his sentence is inappropriate in light of the nature of the
offense and his character. Although a trial court may have acted within its
lawful discretion in imposing a sentence, article VII, sections 4 and 6 of the
Indiana Constitution authorize independent appellate review and revision of
sentences through Indiana Appellate Rule 7(B), which provides that we may
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revise a sentence authorized by statute if, after due consideration of the trial
court’s decision, we determine that the sentence is inappropriate in light of the
nature of the offense and the character of the offender. Thompson v. State, 5
N.E.3d 383 (Ind. Ct. App. 2014). 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. 2007). Such deference to
the trial court’s judgment should prevail unless overcome by compelling
evidence portraying in a positive light the nature of the offense (such as
accompanied by restraint, regard, and lack of brutality) and the defendant’s
character (such as substantial virtuous traits or persistent examples of good
character). Stephenson v. State, 29 N.E.3d 111 (Ind. 2015). Thus, the question
under Appellate Rule 7(B) is not whether another sentence is more appropriate;
rather, the question is whether the sentence imposed is inappropriate. King v.
State, 894 N.E.2d 265 (Ind. Ct. App. 2008). The defendant bears the burden of
persuading the appellate court that his or her sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073 (Ind. 2006).
[12] To assess whether a sentence is inappropriate, we look first to the statutory
range established for the class of the offense. Here, Gill was convicted of Level
4 felony sexual misconduct with a minor, for which the advisory sentence is six
years, with a minimum sentence of two years and a maximum of twelve. Ind.
Code § 35-50-2-5.5 (2014). The court sentenced Gill to twelve years.
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[13] Next, we look to the nature of the offense. Touting the fact that he did not
employ any brutality or violence, Gill argues that there is nothing about how he
committed this offense that makes it more egregious than any other commission
of sexual misconduct with a minor. His contention is disingenuous and fails to
cast his offense in a positive light. As we have detailed throughout our
discussion, Gill did not have to use any violence to accomplish his crime
because he drugged his victim and rendered her unconscious.
[14] Additionally, while Gill concedes that the fact that his crime resulted in the
birth of a child is an appropriate aggravator, he states that he did not intend to
impregnate I.G. He further claims that because I.G. did not testify at his
sentencing hearing it is impossible to know the extent of the nature of harm he
created by impregnating her and causing her to give birth to a child. While it
may be true that Gill did not intend to impregnate I.G., that fact is of no
moment. Thirty-year-old Gill was certainly aware that a pregnancy is one
possible consequence of having intercourse. Indeed, I.G.’s pregnancy was a
direct result of the course of action Gill engaged in when he furnished alcohol
mixed with Xanax to I.G. and then, while she was under the influence of these
substances, made the decision to and did in fact engage in sexual intercourse
with her. Moreover, contrary to Gill’s assertion, the fact that I.G. did not
testify at his sentencing hearing is inconsequential. It is not at all difficult to
conceive of the difficulties a pregnancy would cause a fifteen-year-old girl—
physically, mentally, socially, and financially. I.G. was forced into adulthood
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with substantial decisions and responsibilities in a situation not of her own
making and which forever changed her life.
[15] We turn now to the character of the offender. Gill points to the age of his prior
criminal convictions as a factor indicating assignment of less weight to his
criminal history. The trial court, while acknowledging that Gill’s criminal
conduct is not recent, found it to be significant and determined that it is an
aggravating factor. The court classified Gill’s criminal history as “fairly
serious” and specifically noted Gill’s felony conviction of aggravated robbery,
for which he spent five years in the DOC. Tr. Vol. 2, p. 27. Even a minor
criminal history is a poor reflection of a defendant’s character. Moss v. State, 13
N.E.3d 440 (Ind. Ct. App. 2014), trans. denied. In total, Gill has two felony
convictions and one misdemeanor. Moreover, apparently undeterred in his
criminal behavior, Gill notes in his brief that he was charged with possession of
marijuana subsequent to the current offense. See Appellant’s Br. p. 14. He also
acknowledges that he scored in the high risk category to reoffend due to his
criminal history. Id. at 15.
[16] Gill also mentions his remorse and his difficult childhood. Evidence of a
difficult childhood warrants little, if any, mitigating weight. Bethea v. State, 983
N.E.2d 1134 (Ind. 2013). Yet, the trial court took this factor into consideration
as well as Gill’s expression of remorse.
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[17] Gill has not met his burden of presenting compelling evidence portraying in a
positive light the nature of the offense and his character in order to overcome
the trial court’s sentencing decision.
[18] For the reasons stated, we conclude the trial court did not abuse its discretion
by relying on the nature and circumstances of the offense aggravator. In
addition, considering both the nature of the offense and the character of the
offender and giving due consideration to the trial court’s sentencing decision,
we are unable to conclude that Gill’s twelve-year sentence is inappropriate.
[19] Judgment affirmed.
Bailey, J., and Robb, J., concur.
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