ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Leanna Weissmann Gregory F. Zoeller
Lawrenceburg, Indiana Attorney General of Indiana
Joseph Y. Ho
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________
In the
May 17 2013, 11:10 am
Indiana Supreme Court
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No. 40S05-1301-CR-23
KIRK B. LYNCH,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
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Appeal from the Jennings Circuit Court
No. 40C01-0907-FB-262
The Honorable Jon W. Webster, Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 40A05-1201-CR-26
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May 17, 2013
Per Curiam.
Evidence at Lynch’s trial showed that one evening in 2009, the mother of a twelve-year-
old girl noticed her daughter had received an instant message through an internet account from
Lynch, a man in his forties. While pretending to be the girl, the mother participated in an instant
message conversation with Lynch. Lynch wanted to see the girl. In one colloquy, Lynch asked
“[Y]ou know wat we gonna do don’t ya?” and he answered his own question, “[I]mma bed you
baby.” (spelling and grammar in the original). Lynch made arrangements to meet at a hotel. The
mother contacted police, and they apprehended Lynch in the hotel parking lot. Lynch gave
police several different explanations for being there. Lynch was arrested at the end of the police
interview, and during the booking process, he said to a police sergeant, “[I] drove all this way
and didn’t even get laid.” As relevant to these transfer proceedings, Lynch was convicted of
Attempted Child Molesting, a Class A felony. See Ind. Code §§ 35-42-4-3(a) (2008) (defining
the offense of child molesting); 35-41-5-1 (2008) (defining attempt).
The sentencing range for a Class A felony is twenty years to fifty years; the advisory
sentence is thirty years. See I. C. § 35-50-2-4 (2008). The trial court imposed a sentence of forty
years with five years suspended. The trial court noted the following aggravating factors: the
“significant and substantial evidence” that Lynch had contacted other girls and “was an Internet
sexual predator and prowler;” Lynch had carefully planned the crime; and his criminal history
which included a prior felony conviction and two misdemeanor convictions. As mitigating
factors, the trial court noted Lynch had a high school diploma and some employment history.
Also, he had been diagnosed with paranoid schizophrenia, depression, and panic attacks, but the
court noted there was no evidence linking these conditions to Lynch’s conduct in this case. The
trial court found the aggravating factors outweighed the mitigating factors and justified a
sentence in excess of the advisory term.
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Citing Indiana Appellate Rule 7(B), a majority of the Court of Appeals panel revised the
sentence to twenty years, the minimum term. See Lynch v. State, No. 40A05-1201-CR-26 (Ind.
Ct. App. Nov. 2, 2012) (mem. dec.), vacated. We granted the State’s petition to transfer
jurisdiction to this Court. See Lynch v. State, 980 N.E.2d 841 (Ind. Jan. 11, 2013) (table); App.
R. 56(B) & 58(A).
The authority granted by Article 7, § 4 of the Indiana Constitution permitting appellate
review and revision of criminal sentences is implemented through Appellate Rule 7(B), which
provides: “The 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.” Under this rule, and as interpreted by case law,
appellate courts may revise sentences after due consideration of the trial court's decision, if the
sentence is found to be inappropriate in light of the nature of the offense and the character of the
offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008); Serino v. State, 798 N.E.2d
852, 856-57 (Ind. 2003). The principal role of such review is to attempt to leaven the outliers.
Cardwell, 895 N.E.2d at 1225.
Having reviewed the matter, our collective judgment is that the sentence imposed by the
trial court is not inappropriate under Appellate Rule 7(B), and does not warrant appellate
revision. Accordingly, we affirm the sentence imposed by the trial court and summarily affirm
the decision of the Court of Appeals in all other respects. See App. R. 58(A)(2).
Dickson, C.J., and Rucker, David, Massa, and Rush, JJ., concur.
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