Court of Appeals of Indiana | Memorandum Decision 89A04-1510-CR-1654 | April 28, 2016 Page 1 of 8

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.

ATTORNEY FOR APPELLANT

Andrew J. Sickmann

Boston Bever Klinge Cross & Chidester

Richmond, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Christina D. Pace

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Earl D. Napier,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

April 28, 2016

Court of Appeals Case No.

89A04-1510-CR-1654

Appeal from the Wayne Superior 

Court

The Honorable Gregory A. Horn, 

Judge

Trial Court Cause No.

89D02-1403-FA-8

Najam, Judge.
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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 felonies and two as Class C felonies. Napier 

raises two issues for our review:

1. Whether the trial court abused its discretion when it 

sentenced him.

2. Whether the 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 that 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 vaginas and touched their buttock. Napier also 

touched and bit S.T.’s breasts. These incidents normally occurred at night 

when Napier slept 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 he 
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would “try to remember,” but he never did stop. Tr. at 259. During 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 February 8, 2014, A.T. and S.T. told Ashwell 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, but he denied them. Ashwell reported the incidents to 

the police. 

[5] On February 10, both A.T. and S.T. went to the Justice and Advocacy Center 

for Youth House for forensic interviews, where they both disclosed that Napier

had repeatedly molested them. On February 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: count I, child 

molesting, as a Class A felony; count II, child molesting, as a Class C felony; 

count III, child molesting, as a Class A felony; and count IV, child molesting, 

as a Class C felony. A jury found Napier guilty as charged, and the trial court 

entered judgment accordingly. At a sentencing hearing on September 8, 2015, 

the trial court found the following aggravating circumstances: 

(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, as 
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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 circumstances: (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 count I, four years for count II, 

thirty years for count III, and four years for count IV, with counts I and II 

running concurrently, and counts III and IV running concurrently. The court 

ordered that count I was to be served consecutive with count III, for an 

aggregate 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 jury found[,] over a period of a year and we’re talking about 

separate children.” Id. This appeal ensued. 

Discussion and Decision

[8] Napier contends that the trial court decision was inappropriate for failing to 

consider mitigating factors and by imposing consecutive sentences. 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 due 
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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.” Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007) (citing Anglemyer v. 

State, 868 N.E.2d 482, 491 (Ind. 2007)). Here, however, Napier’s argument is 

focused entirely on whether the trial court abused its discretion in sentencing 

him. This Court 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 alludes to an Indiana Appellate Rule 

7(B) argument using relevant wording such as “inappropriate” and “character” 

at points in his brief but makes no cogent argument in support of revision of his 

sentence under the standards of Appellate Rule 7(B). Without a valid 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 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.

[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 that 
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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. 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, 249 (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 (citation 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 life 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 trial 
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court considered Napier’s age and declined to find it to be a mitigating factor. 

Specifically, the trial court stated, “[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. The trial court did not abuse its discretion 

when it rejected Napier’s age as a mitigating factor. 

[13] Concerning the positive testimony pertaining to Napier’s character, he contends 

that the trial court overlooked this testimony when determining his sentence. 

Those witnesses testified that they did not believe Napier sexually molested 

A.T. and S.T. But, again, a trial court is not obligated to explain why it has 

rejected a proffered mitigator. See Anglemyer, 868 N.E.2d at 493. The trial 

court had ample evidence of Napier’s bad character in addition to the positive 

character evidence. The 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 contends that the trial court abused its discretion when it did 

not identify an aggravator to support the imposition of consecutive sentences.

In order to impose consecutive sentences, the trial court must find at least one 

aggravating circumstance. Marcum v. State, 725 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 1254, 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 consecutive 
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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, the trial court based its rationale for imposing consecutive sentences for 

counts 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. This is permissible. Frentz, 875 N.E.2d at 472. Additionally, our 

supreme court 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 consecutive 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 abused its discretion in his sentencing.

[16] Affirmed.

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