Court of Appeals of Indiana | Memorandum Decision 89A04

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### MEMORANDUM DECISION 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

.
A TTORNEY FOR A PPELLANT Andrew J. Sickmann Boston Bever Klinge Cross & Chidester Richmond, Indiana A TTORNEY S FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana
Christina D. Pace Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF AP PEALS OF INDIANA

Earl D. Napier , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. April 28, 2016 Court of Appeals Case No. 89A04

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- 1654 Appeal from the Wayne Superior Court The Honorable Gregory A. Horn, Judge Trial C ourt Cause N o. 89D02

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Najam , Judge
.Court of Appeals of Indiana | Memorandum Decision 89A04

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### Statement of the Case

[1] Earl Napier appeals his sentence following his convictions for four counts of child molesting , two as Class A felon ies and two as Class C felon ies

. Napier raises two issue s for our review :

1. Wheth er t he trial court abused its discretion when it sentenced him.
2. Whether t he trial court erred when it imposed consecutive sentences.

We affirm. 

### Facts and Procedural History

[2] Between February of 2013 and February of 2014, sisters A.T. and S.T.

— aged six and nine at th at time, respectively

— would often stay the night at their grandmother’s, Shondia Napier ’s ( “ Shondia ” ) , house. Napier was Shondia’s husband, and a step

- grandfather to both A.T. and S.T. Since Shondia would often work the night shift, it was not unusual for A.T. and S.T. to stay alone with Napier.

[3] On those occasions, Napier repeatedly molested both A.T. and S.T. Napier put his finger in A.T. ’s and S.T.’s vagina s and touch ed their buttock. Napier also touched and bit S.T.’s breasts. These i ncidents normally occurred at night when Napier slep t in bed between A.T. and S.T., and when they were sitting in a rocking chair

. Both A.T. and S.T. asked Napier to stop

. Napier said heCourt of Appeals of Indiana | Memorandum Decision 89A04

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would “try to remember,” but he never did stop. Tr. at 259. Durin g this time period, A.T. and S.T.’s mother, Annie Ashwell, noticed that A.T. suffered from “a lot of nightmares, bed wetting, . . . [and] temper tantrums,” while S.T. became “[m]ore emotional . . . [and] stayed to herself a lot more.” Id . at 192.

[4] On Febr

uary 8, 2014, A.T. and S.T. told As h well about the sexual abuse. S.T. finally told her mother about the abuse because S.T. believed she would “go to hell” if she did not tell the truth. Id . at 259

- 60. Ashwell confronted Napier about these allegations, b ut he denied them. Ashwell reported the incident s to the police.

[5] On February 10, both A.T. and S.T. went to the Justice and Advocacy Cen ter for Youth H ouse for forensic interviews, where they both disclosed that Napier had repeatedly molested them. On F ebruary 12, Detective Thomas Legear of the Richmond Police Department questioned Napier

. Napier did not admit to any wrongdoing

.

[6] On March 12, the State charged Napier with the following: c ount I, child molesting, as a Class A felony; c ount II, child mole sting, as a Class C felony;

c ount III, child molesting, as a Class A felony; and c ount IV, child molesting, as a Class C felony. A jury found Napier guilty as charged, and the trial court entered judgment accordingly. At a s entencing h earing o n September 8, 2015, the trial court found the following aggravating circumstance s : (1) there were multiple acts of child molesting against two victims; (2) the young age of the victims; (3) the multiple acts of child molestation were crimes of violence; (4) Napier , asCourt of Appeals of Indiana | Memorandum Decision 89A04

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grandfather of the victims, was in a position of trust, custody and control over the victims; and (5) the crimes against each victim were committed in the presence of the other victim.
The trial court also found the following mitigating circumstance s: (1) Napier was sixty

- two years old with no prior criminal history; (2) Napier had significant health concerns; and (3) imprisonment would result in financial hardship to Napier and his family.

[7] The court sentenced Napier to thirty years for c ount I , f our years for c ount II, thirty years for c ount III, and four years for c ount IV, with c ount s I and II running concurrently, and c ount s III and IV running concurrently. The court ordered that c ount I was to be served consecutive with c ount III, for an
aggr egate sentence of sixty years , for “same reasons that the Court has found certain aggravating circumstances

. ” Tr. at 428. The trial court stated: “In particular, we’re dealing with a crime of violence. These were multiple acts that took place[,] the ju ry found[,] over a period of a year and we’re talking about separate children.” Id

. This appeal ensue d

.



### Discussion and Decision

[8] Napier contends that the trial court decision was inappropriate for failing to consider mitigating factors and by imposing co nsecutive sentence s
. Article VII, Sections 4 and 6 of the Indiana Constitution authorize independent appellate review and revision of a sentence through Indiana Appellate Rule 7(B), which provides that a court “may revise a sentence authorized by statute if, after dueCourt of Appeals of Indiana | Memorandum Decision 89A04

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consideration of the trial court’s decision, the Court finds that the sente nce is inappropriate in light of the nature of the offense and the character of the offender.” Reid v. State , 876 N.E.2d 1114, 1116 (Ind. 2007) (citing Anglemyer v. St ate , 868 N.E.2d 482, 491 (Ind. 2007))

. H ere, h owever, Napier’s argument is focused entirely on whether the trial court abused its discretion in sentencing him

. This C ourt has made clear that there is a separate argument and analysis for an inappropriate sentence and abuse of discretion claim. See King v. State , 894 N.E.2d 265, 267 (Ind. Ct. App. 2008) (“[A]n inappropriate sentence analysis does not involve an argument that the trial court abused its discretion in sentencing the defendant.”). Napier a llu des to an Indiana Appellate Rule 7(B) argument using relevant wording such as “inappropriate” and “character” at points in his brief but make s no cogent argument in support of revision of his sentence under the standards of Appellate Rule 7(B). Without a v alid Appellate Rule 7(B) argument, the inappropriateness standard does not apply here.

[9] Our standard of review is well settled. Sentencing decisions rest within the sound discretion of the trial court. Anglemyer , 868 N.E.2d at 490. So long as the senten ce 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 reasonab le, probable, and actual deductions to be drawn therefrom. Id.

[10] 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 thatCourt of Appeals of Indiana | Memorandum Decision 89A04

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includes aggravating and mi tigating 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. Because the trial court no longer has any obligation to weigh aggravating and mitigating factors against each other when imposing a sentence, a trial court cannot now be said to have abused its discretion in failing to properly weigh such factors

. Id. at 491.

[11] Napier first contends that the trial court abused its discretion when it did not identify certain mitigating factors. When an allegation is made that the trial court failed to find a mitigating factor, the defendant is required to establish that the mitigating evidence is both significant and clearly supported by the record. Id. at 493. However, 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, 2 49 (Ind. 2000). “If the trial court does not find the existence of a mitigating factor after it has been argued by counsel, the trial court is not obligated to explain why it has found that the factor does not exist.” Anglemyer , 868 N.E.2d at 493 (citati on omitted).

[12] Napier contends that the trial court failed to account for the mitigating evidence of his age or testimony from his family and friends regarding his good character. Concerning Napier’s age, he contends that , in effect, he has been given a lif

e sentence since he would not complete his sixty

- year sentence until he is 120 years old. As such, Napier contends that his current age should be taken into account as a non

- statutory mitigating factor. However, the trialCourt of Appeals of Indiana | Memorandum Decision 89A04

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court consider ed Napier’s age an d declined to find it to be a mitigating factor

. Specifically, the trial court state d , “[c]ertainly one who is sixty plus years of age would have the background and experience to know that this is absolutely a horrendous crime.” Tr. at 427

. T he trial co urt did not abuse its discretion when it reject ed Napier’s age as a mitigating factor.

[13] Concerning the positive testimony pertaining to Napier’s character, he contends th at the trial court overlooked this testimon y when determining his sentence. Those wit nesses testified that they did not believe Napier sexually molested A.T. and S.T. But, again, a trial court is not obligated t o explain why it has rejected a proffered mitigator. See Anglemyer , 868 N.E.2d at 493 . The trial court had ample evidence of Na pier’s bad character in addition to the positive character evidence. T he trial court did not abuse its discretion in declining to consider the positive testimony from Napier’s family and friends as a mitigating factor.

[14] Finally, Napier c ontends that the trial court abused its discretion when it did not identify an aggravator to support the imposition of consecutive sentences

. I n order to impose consecutive sentences , the trial court must find at least one aggravating circumstance

. Marcum v. State , 7 25 N .E.2d 852, 864 (Ind. 2002). The trial court may find aggravating factors for purposes of the length of a sentence and then find an additional, free

- standing aggravator justifying the imposition of consecutive sentences, e.g. , Lopez v. State , 869 N.E.2d 12 54, 1258 (Ind. Ct. App. 2007), trans. denied , or find that one of the same aggravators used in determining the length of the sentence justifies imposing consecutiveCourt of Appeals of Indiana | Memorandum Decision 89A04

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sentences , Frentz v. State , 875 N.E.2d 453, 472 (Ind. Ct. App. 2007), trans. denied

. When imposing a consecutive sentence, the trial court must provide a “reasonably detailed recitation of the trial court’s reasons for imposing a particular sentence.” Anglemyer , 868 N.E.2d at 490.

[15] Here, t he trial court based its rationale for imposing consecut ive sentence s for

c ounts I and III on the “same reasons that the Court has found certain aggravating circumstances , ” Tr. at 428 , for purposes of the length of the sentence. T his is permissible

. Frentz , 875 N.E.2d at 472. Additionally, our

s upreme c ourt has held that consecutive sentences are proper when a defendant commits multiple crimes against multiple victims. See Serino v. State , 798 N.E.2d 852, 857 (Ind. 2003) (“[W]hen the perpetrator commits the same offense against two victims, enhanced and cons ecutive sentences seem necessary to vindicate the fact that there were separate harms and separate acts against more than one person.”). As the trial court explained in the instant

case , “[t]hese were multiple acts that took place . . . over a period of a year and we’re talking about separate children.” Tr. at 428. Thus, Napier has failed to demonstrate that the trial court abuse d its discretion in his sentencing.

[16] Affirmed.

Riley, J., and May, J., concur

.