Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016 Page 1 of 20

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

Mark Worthley

Worthley Law

Valparaiso, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Chandra K. Hein

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Robert Stevenson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

September 26, 2016

Court of Appeals Case No.

64A03-1511-CR-2038

Appeal from the Porter Superior 

Court

The Honorable Mark A. Smith, 

Judge

Trial Court Cause No.

64D05-1405-FA-3931

Bradford, Judge.

Case Summary
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[1] On May 7, 2014, Appellant-Defendant Robert Stevenson was charged with 

Class A felony child molestation after allegations arose that he had repeatedly

forced his girlfriend’s granddaughter, M.C., to place his penis in her mouth. 

M.C. was between the ages of two and four-and-a-half at the time Stevenson 

committed the sexual abuse. Following a three-day jury trial, Stevenson was 

found guilty as charged. He was subsequently sentenced to a term of forty 

years, ten years of which were suspended to probation.

[2] On appeal, Stevenson contends that the evidence is insufficient to sustain his

conviction and that the trial court abused its discretion in excluding and 

admitting certain evidence. He also contends that the trial court abused its 

discretion in sentencing him and that his sentence is inappropriate. We affirm.

Facts and Procedural History

[3] Roy Castro and Amanda Boer are the parents of two minor children: M.C. and 

J.C. (collectively, “the Children”). At the time of Stevenson’s criminal trial, 

M.C. was six years old and J.C. was four years old. 

[4] In early 2014, Boer’s mother, Carolyn, would frequently babysit the Children. 

At all relevant times, Stevenson was Carolyn’s boyfriend. Stevenson would 

frequently spend time with the Children while they were at Carolyn’s house.

[5] On January 30, 2014, Castro, Castro’s mother, M.C., and J.C. were in a vehicle 

together driving home from the dentist. While in the vehicle together, the topic 

turned to “puppy chow,” a snack made of Chex mix covered with powdered 
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sugar. Tr. p. 34. J.C. indicated that the powdered sugar looked like the baby 

powder that Boer put “on his butt and his hooey during normal [diaper] 

changing practices.” Tr. p. 34. The Children used the term “hooey” to refer to 

a penis. During this conversation, M.C. said that “Grandpa Rob has a hooey 

and he asks us to suck it all the time.” Tr. p. 48. After hearing M.C.’s 

statement about “Grandpa Rob,” Castro dropped the Children off with his 

sister and notified the police. 

[6] Valparaiso Police Sergeant Jerami Simpson took the report from Castro, Boer, 

and Castro’s mother. While taking the report, Sergeant Simpson instructed 

Castro and Boer not to allow M.C. and J.C. to return to Carolyn’s residence. 

After taking the report, Sergeant Simpson relayed the report to the Department 

of Child Services (“DCS”). DCS case manager Rachel Gibson was assigned to 

the case. She soon thereafter arranged for the Children to be interviewed.

[7] On February 12, 2014, the Children were forensically interviewed by Angie 

Marsh, a certified forensic interviewer. During her interview, M.C. disclosed 

that Stevenson had made her suck on his “hooey” while she was in the master 

bedroom of Carolyn’s home. M.C. indicated that she had to suck on 

Stevenson’s penis because he told her to, even though she did not want to. She 

indicated that he made her do so on numerous occasions. M.C. described 

Stevenson’s penis as looking “hairy and brownish” and being “squishy.” Tr. p. 

103. M.C. identified Stevenson’s pubic hair as brown, silver and gray. M.C. 

indicated that one time Stevenson “peed” on the bed and that the “pee” was 

white. State’s Ex. 6. She also indicated that Stevenson wiggled his penis with 
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his hand. M.C. further indicated that J.C. was present and watching television 

in the room when Stevenson forced her to suck on his penis. During his 

forensic interview with Marsh, J.C. indicated that he saw something happen but 

did not elaborate on what he saw. 

[8] On February 13, 2014, Valparaiso Police Detective Brian Thurman interviewed 

Stevenson. During this interview, Stevenson stated that he was forty-five years 

old; that he lived with his girlfriend, Carolyn; and that he considered M.C. and 

J.C. to be his grandchildren. Stevenson admitted that there would be times 

when he would be alone with M.C. and J.C. in the master bedroom of the 

home he shared with Carolyn. Stevenson denied sexually molesting either of 

the Children. 

[9] On May 7, 2014, Appellee-Plaintiff the State of Indiana (the “State”) charged 

Stevenson with Class A felony child molestation. Following a three-day jury 

trial, Stevenson was found guilty as charged. On October 22, 2015, the trial 

court sentenced Stevenson to a term of forty years, with ten of those years 

suspended to probation. This appeal follows.

Discussion and Decision

I. Sufficiency of the Evidence

[10] Stevenson contends that the evidence is insufficient to sustain his conviction for 

Class A felony child molesting. 
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When reviewing the sufficiency of the evidence to support a 

conviction, appellate courts must consider only the probative 

evidence and reasonable inferences supporting the verdict. It is 

the fact-finder’s role, not that of appellate courts, to assess 

witness credibility and weigh the evidence to determine whether 

it is sufficient to support a conviction. To preserve this structure, 

when appellate courts are confronted with conflicting evidence, 

they must consider it most favorably to the trial court’s ruling. 

Appellate courts affirm the conviction unless no reasonable factfinder could find the elements of the crime proven beyond a 

reasonable doubt. It is therefore not necessary that the evidence 

overcome every reasonable hypothesis of innocence. The 

evidence is sufficient if an inference may reasonably be drawn 

from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and 

quotations omitted). “In essence, we assess only whether the verdict could be 

reached based on reasonable inferences that may be drawn from the evidence 

presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in 

original). Upon review, appellate courts do not reweigh the evidence or assess 

the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind. 

2002).

[11] In order to convict Stevenson of Class A felony child molesting, the State was 

required to prove that Stevenson was at least twenty-one years of age and 

performed or submitted to sexual intercourse or deviate sexual conduct with a 
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child under fourteen years of age. Ind. Code § 35-42-4-3(a).1 Deviate sexual 

conduct was defined as an act involving “(1) a sex organ of one (1) person and 

the mouth or anus of another person; or (2) the penetration of the sex organ or 

anus of a person by an object.” Ind. Code § 35-31.5-2-94.

[12] In raising this contention, Stevenson claims that the evidence should be found 

insufficient to sustain his conviction because M.C.’s testimony should have 

been found unreliable under the incredible dubiosity rule. The Indiana 

Supreme Court has held that the incredible dubiosity rule applies only in 

situations “‘where a sole witness presents inherently contradictory testimony 

which is equivocal or the result of coercion and there is a complete lack of 

circumstantial evidence of the appellant’s guilt.’” Moore v. State, 27 N.E.3d 749, 

755 (Ind. 2015) (quoting Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994)) 

(emphases in Moore). The Indiana Supreme Court has explained that “while 

incredible dubiosity provides a standard that is ‘not impossible’ to meet, it is a 

‘difficult standard to meet, [and] one that requires great ambiguity and 

inconsistency in the evidence.’” Id. at 756 (quoting Edwards v. State, 753 N.E.2d 

618, 622 (Ind. 2001)). “‘The testimony must be so convoluted and/or contrary 

to human experience that no reasonable person could believe it.’” Id. (quoting 

Edwards, 753 N.E.2d at 622 (internal citation omitted)). Thus, the Indiana 

 

1

 Indiana Code section 35-42-4-3 was amended in accordance with Indiana’s new criminal code

on July 1, 2014. However, because Stevenson’s criminal actions occurred prior to July 1, 2014, 

we will apply the version of Indiana Code section 35-42-4-3 that was in effect at the time 

Stevenson committed the acts at issue.
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Supreme Court has held that a finding of incredible dubiosity “is a rare 

occasion.” Id.

[13] In arguing that M.C.’s testimony was incredibly dubious, Stevenson claims that 

M.C.’s testimony was incredibly dubious because the evidence demonstrates 

that he was never alone in the home with M.C. without Carolyn present. 

Regardless of whether Stevenson was ever alone in Carolyn’s home with the 

children, the evidence demonstrates that Stevenson admitted to Detective Brian 

Thurman that he would watch television with the children on the bed in the 

master bedroom “all the time.” Tr. p. 213. The record further indicates that 

Carolyn was not always present in the bedroom with Stevenson and the 

children. Specifically, Mother testified that she had observed the children in the 

bedroom with Stevenson while Carolyn was “[o]n the computer in the other 

room.” Tr. p. 119. Likewise, Father testified that when he would pick the 

children up from Carolyn’s home, he observed that Stevenson “would be in the 

bedroom on the bed and the kids would be on the bed with him and they would 

be watching TV.” Tr. p. 55. Father further testified that at these times, Carolyn 

would “usually be on the computer in the kitchen.” Tr. p. 56. Given this 

testimony, we find Stevenson’s claim that the evidence demonstrated that he 

never was never alone with the children without Carolyn present to be without 

merit. As such, we cannot say that M.C.’s testimony was incredibly dubious 

for this reason. 

[14] Stevenson also claims that M.C.’s testimony was incredibly dubious because 

M.C.’s testimony regarding the color of his pubic hair was not accurate. 
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During her interview with Angie Marsh, a forensic interviewer, M.C. indicated 

that Stevenson’s pubic hair was brown, silver, and gray. M.C.’s testimony was 

largely consistent at trial where she testified that Stevenson’s pubic hair was 

“brownish.” Tr. p. 97, 103. Stevenson claims that the evidence demonstrates 

that his pubic hair was black. While the evidence relied upon by Stevenson 

demonstrates that Stevenson’s pubic hair is dark in color, the evidence is such, 

however, that one could reasonably describe Steven’s public hair as being 

“brownish” in color. As such, we cannot say that M.C.’s testimony in this 

regard was incredibly dubious. 

II. Evidentiary Questions

[15] Stevenson also contends that the trial court abused its discretion in excluding 

certain evidence from trial and admitting other evidence at trial.

The admission or exclusion of evidence is entrusted to the 

discretion of the trial court. Farris v. State, 818 N.E.2d 63, 67 

(Ind. Ct. App. 2004). We will reverse a trial court’s decision only 

for an abuse of discretion. Id. We will consider the conflicting 

evidence most favorable to the trial court’s ruling and any 

uncontested evidence favorable to the defendant. Taylor v. State, 

891 N.E.2d 155, 158 (Ind. Ct. App. 2008). An abuse of 

discretion occurs when the trial court’s decision is clearly against 

the logic and effect of the facts and circumstances before the 

court or it misinterprets the law. Id. In determining whether an 

error in the introduction of evidence affected an appellant’s 

substantial rights, we assess the probable impact of the evidence 

on the jury. Oldham v. State, 779 N.E.2d 1162, 1170 (Ind. Ct.

App. 2002). Admission of evidence is harmless and is not 

grounds for reversal where the evidence is merely cumulative of 
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other evidence admitted. Pavey v. State, 764 N.E.2d 692, 703 

(Ind. Ct. App. 2002).

Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012). “Moreover, the trial 

court’s ruling will be upheld if it is sustainable on any legal theory supported by 

the record, even if the trial court did not use that theory.” Rush v. State, 881 

N.E.2d 46, 50 (Ind. Ct. App. 2008) (citing Gonser v. State, 843 N.E.2d 947, 950 

(Ind. Ct. App. 2006)).

A. Exclusion of Certain Evidence

[16] Stevenson argues that the trial court abused its discretion in ruling that he could 

not call J.C. as a witness at trial. 

Every defendant has the fundamental right to present witnesses 

in his or her own defense. [Barber v. State, 911 N.E.2d 641, 646 

(Ind. Ct. App. 2009)] (citing Roach v. State, 695 N.E.2d 934, 939 

(Ind. 1998) (some internal citations omitted); see Chambers v. 

Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 

(1973) (“Few rights are more fundamental than that of an 

accused to present witnesses in his own defense.”). “This right 

‘is in plain terms the right to present a defense, the right to 

present the defendant’s version of the facts as well as the 

prosecutor’s to the jury so it may decide where the truth lies.’” 

Barber, 911 N.E.2d at 646 (quoting Roach, 695 N.E.2d at 939) 

(internal quotation omitted)). “‘At the same time, while the right 

to present witnesses is of the utmost importance, it is not 

absolute.’” Id. (quoting Roach, 695 N.E.2d at 939 (internal 

citation omitted)). “‘In the exercise of this right, the accused, as 

is required of the State, must comply with established rules of 

procedure and evidence designed to assure both fairness and 

reliability in the ascertainment of guilt and innocence.’” Id. 

(quoting Roach, 695 N.E.2d at 939 (internal quotation omitted)).
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Tolliver v. State, 922 N.E.2d 1272, 1282 (Ind. Ct. App. 2010), trans. denied.

[17] Stevenson claims that the trial court abused its discretion in excluding J.C. from 

testifying at trial because the trial court did not properly examine J.C.’s 

competency to testify. In support, Stevenson argues that the trial court was 

required to inquire into whether J.C. (1) understood the difference between 

telling a lie and telling the truth, (2) knew he was under compulsion to tell the 

truth, and (3) knew what a true statement actually was. Appellant’s Br. p. 17 

(citing Newsome v. State, 686 N.E.2d 868, 872 (Ind. Ct. App. 1997)). For its 

part, the State argues that even if the trial court failed to properly delve into 

J.C.’s competency, as Stevenson alleges, Stevenson has waived appellate review 

of the trial court’s decision regarding J.C. by failing to make an offer of proof 

indicating what relevant evidence would likely be elicited from J.C.’s 

testimony.

[18] The following exchange occurred during trial with respect to whether J.C. 

should be allowed to testify:

[State]: Just on the issue of J.C.

[Trial Court]: All right. Well, let’s hear it.

[State]: Judge, obviously, we are here with the 

Defendant being charged with one Count against M.C. To place 

J.C. on the stand when I have not met him, Defense Counsel has 

not met him, he has absolutely no understanding of what 

happens in this courtroom, I do not believe that [Defense 

Counsel] can provide him as a competent witness. Obviously, 

every witness under 601 is presumed competent; however, 
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obviously in the case of children there has to be a dialogue that is 

gone through, similar to what I went through with [M.C.]. and I 

don’t think that can be provided with J.C. I have not met with 

him, and [Defense Counsel] has not met with him. He scheduled 

a deposition of him and cancelled that [deposition]. And there’s 

been no indication he has any idea what’s going on here or what 

the purpose of this courtroom would be.

And frankly, he’s not relevant. I mean, he is indicated to have 

been in the room, but even in the forensic interview with Ms. 

Marsh he gave her nothing because he’s bouncing all over the 

room.

[Trial Court]: [Defense Counsel].

[Defense Counsel]: Whether the witness is competent is your 

Honor’s decision. Especially if the State hasn’t met him I don’t 

see how they could possibly render any sort of opinion on that 

issue. Second of all, Rachel Gibson testified that [J.C.] was a 

witness. [M.C.] testified that [J.C.] was always around. And he 

was forensically interviewed so there’s at least an indication that 

at one point the State believe [sic] that he had relevant 

information. Now, if the only kind of information that’s relevant 

is the kind that suggests that Mr. Stevenson is guilty, then 

perhaps [J.C.] doesn’t provide any relevant evidence. But I 

would say that the contrary does not negate his relevance.

[Trial Court]: Where do you recall hearing testimony that 

he was, I think the testimony is undisputed he was in the home. 

Where do you believe you heard testimony that he witnessed 

anything?

[Defense Counsel]: Rachel Gibson testified that [J.C.] is a 

witness. M.C. testified that [J.C.] was with her when these 

things were happening.

[Trial Court]: State.
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[State]: [M.C.] specifically admitted that [J.C.] was in 

the room on the floor watching TV. To take that that he is a 

witness I think takes a leap that is not there.

[Trial Court]: Based upon her own testimony?

[State]: Correct.

[Trial Court]: ... And I’m going to grant the State’s request 

to prohibit [J.C.] from testifying due to his age, and I do not find 

that what he may or may not know is relevant.

Tr. pp. 193-195. This exchange demonstrates that while Stevenson generally 

indicated that he believed that J.C.’s testimony might potentially provide 

relevant evidence, Stevenson failed to make an offer of proof with regard to 

what relevant evidence he believed J.C. would be able to provide during trial. 

As such, his challenge to the trial court’s decision to exclude J.C. from 

testifying is waived. See State v. Wilson, 836 N.E.2d 407, 410 (Ind. 2005)

(providing that “[a]n offer of proof should show the facts sought to be proved, 

the relevance of that evidence, and the answer to any objection to exclusion of 

the evidence.”).2 

 

2

 It is also of note that at Stevenson’s request, the video recording of J.C.’s forensic interview 

with Marsh was played for the jury. In viewing this video, the jury was able to observe J.C.’s 

young age and his ability to answer Marsh’s questions with answers containing any substance. 

While J.C. indicated that he saw “something happen,” he would not elaborate as to what he 

saw and did not disclose observing or being the victim of any sexual abuse during this interview. 

Tr. p. 76.
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B. Admission of Certain Evidence

[19] Stevenson also argues that the trial court abused its discretion in admitting 

evidence relating to his drug and alcohol use. For its part, the State maintains 

that the evidence relating to Stevenson’s drug and alcohol use was relevant to 

the question of whether Stevenson may not remember committing the alleged 

criminal acts because he was intoxicated when the acts occurred.

[20] Relevant evidence is “evidence having any tendency to make the 

existence of any fact that is of consequence to the determination 

of the action more or less probable than it would be without the 

evidence.” Ind. Evidence Rule 401. “Generally speaking, 

relevant evidence is admissible, and irrelevant evidence is 

inadmissible.” Sandifur v. State, 815 N.E.2d 1042, 1048 (Ind. Ct. 

App. 2004), trans. denied; Ind. Evidence Rule 402. Relevant 

evidence may nevertheless be excluded if its probative value is 

substantially outweighed by the danger of unfair prejudice. Ind. 

Evidence Rule 403. These basic tenets of evidence are utilized in 

addressing the specific issue of when evidence of other bad acts is 

admissible.

Indiana Evidence Rule 404(b) provides in pertinent part:

Evidence of other crimes, wrongs, or acts is not 

admissible to prove the character of a person in order 

to show action in conformity therewith. It may, 

however, be admissible for other purposes, such as 

proof of motive, intent, preparation, plan, 

knowledge, identity, or absence of mistake or 

accident[.]

In determining the admissibility of evidence under Rule 404(b), 

the trial court must: (1) determine whether the evidence of other 

crimes, wrongs, or acts is relevant to a matter at issue other than 

the defendant’s propensity to commit the charged act; and (2) 
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balance the probative value of the evidence against its prejudicial 

effect pursuant to Indiana Evidence Rule 403. Ware v. State, 816 

N.E.2d 1167, 1175 (Ind. Ct. App. 2004). We employ the same 

test to determine whether the trial court abused its discretion. Id.

The effect of Rule 404(b) is that evidence is excluded only when 

it is introduced to prove the “forbidden inference” of 

demonstrating the defendant’s propensity to commit the charged 

crime. Sanders v. State, 724 N.E.2d 1127, 1130-1131 (Ind. Ct.

App. 2000). The paradigm of inadmissible evidence under Rule 

404(b) is a crime committed on another day in another place, 

evidence whose only apparent purpose is to prove the defendant 

is a person who commits crimes. Swanson v. State, 666 N.E.2d 

397, 398 (Ind. 1996). Because evidence of other bad or 

uncharged acts can often be unduly prejudicial, however, 

exceptions to the 404(B) rule of permitting such evidence 

demonstrating motive, intent, preparation, plan, etc., are to be 

applied cautiously. Brown v. State, 577 N.E.2d 221, 226 (Ind.

1991).

Southern v. State, 878 N.E.2d 315, 321-22 (Ind. Ct. App. 2007).

[21] In the instant matter, we need not determine whether the challenged evidence 

should have been excluded under Rule 404(b) because even assuming that it 

was error to include the statements relating to Stevenson’s drug and alcohol 

use, we find such error to be harmless. “Error is harmless if the conviction is 

supported by substantial independent evidence of guilt such that there is no 

substantial likelihood that the questioned evidence contributed to the 

conviction.” Tolliver, 922 N.E.2d at 1279 (citing Cook v. State, 734 N.E.2d 563, 

569 (Ind. 2000)). During trial, M.C. testified unequivocally and consistently 

that Stevenson forced her to suck on his penis on numerous occasions. M.C. 
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gave consistent descriptions of Stevenson’s penis. M.C.’s testimony was 

consistent with the statements she made during her forensic interview with 

Marsh and with statements she made to father and paternal grandmother. 

Given M.C.’s testimony, we conclude that Stevenson’s conviction was 

supported by substantial independent evidence of his guilt and that there was no 

substantial likelihood that the evidence of his occasional drug and alcohol use 

contributed to his conviction. As such, we further conclude that any error that 

the trial court may have committed can only be considered harmless. 

III. Sentence Challenge

[22] Stevenson also challenges his sentence. In doing so, he contends both that the 

trial court abused its discretion in sentencing him and that his sentence is

inappropriate in light of the nature of his offense and his character.

A. Abuse of Discretion

[23] Sentencing decisions rest within the sound discretion of the trial court and are 

reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868 

N.E.2d 482, 490 (Ind. 2007), modified on other grounds on reh’g, 875 N.E.2d 218 

(Ind. 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 to be drawn therefrom.” Id. 

(quotation omitted). 

One way in which a trial court may abuse its discretion is failing 

to enter a sentencing statement at all. Other examples include 
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entering a sentencing statement that explains reasons for 

imposing a sentence-including a finding of aggravating and 

mitigating factors if any-but the record does not support the 

reasons, or the sentencing statement omits reasons that are 

clearly supported by the record and advanced for consideration, 

or the reasons given are improper as a matter of law. Under 

those circumstances, remand for resentencing may be the 

appropriate remedy if we cannot say with confidence that the 

trial court would have imposed the same sentence had it properly 

considered reasons that enjoy support in the record.

Id. at 490-91. A single aggravating factor may support an enhanced sentence. 

Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993).

[24] In sentencing Stevenson, the trial court found the age of the victim and the fact 

that Stevenson was in a position of trust over the victim to be aggravating 

factors. Stevenson does not argue on appeal that the aggravating factors found 

by the trial court are not supported by the record. Rather, he claims that the 

trial court abused its discretion by failing to find his relatively minor criminal 

history, including the fact that none of his prior convictions were for sex crimes, 

to be a mitigating factor.

[25] Although a sentencing court must consider all evidence of mitigating factors 

offered by a defendant, the finding of mitigating factors rests within the court’s 

discretion. Henderson v. State, 769 N.E.2d 172, 179 (Ind. 2002). A trial court is 

neither required to find the presence of mitigating factors, Fugate, 608 N.E.2d at

1374 (citing Graham v. State, 535 N.E.2d 1152, 1155 (Ind. 1989)), nor obligated 

to explain why it did not find a factor to be significantly mitigating. Sherwood v. 
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State, 749 N.E.2d 36, 38 (Ind. 2001) (citing Birdsong v. State, 685 N.E.2d 42, 47 

(Ind. 1997)). “A court does not err in failing to find mitigation when a 

mitigation claim is highly disputable in nature, weight, or significance.” 

Henderson, 769 N.E.2d at 179 (internal quotations omitted). Furthermore, while 

Indiana law mandates that the trial judge not ignore facts in the record that 

would mitigate an offense, and a failure to find mitigating factors that are 

clearly supported by the record may imply that the trial court failed to properly 

consider them, id., an allegation that the trial court failed to find a mitigating 

factor requires the defendant to establish that the mitigating evidence is both 

significant and clearly supported by the record. Carter v. State, 711 N.E.2d 835, 

838 (Ind. 1999).

[26] Stevenson argues that the trial court should have found his relatively minimal 

criminal history, including the fact that he had never previously been accused or 

convicted of a sex crime, to be a mitigating factor. Although a lack of criminal 

history may be considered to be a mitigating factor, trial courts are not required 

to give significant weight to a defendant’s lack of criminal history. Townsend v. 

State, 860 N.E.2d 1268, 1272 (Ind. Ct. App. 2007), trans. denied. This is 

especially so “‘when a defendant’s record, while felony-free, is blemished.’” Id. 

(quoting Stout v. State, 834 N.E.2d 707, 712 (Ind. Ct. App. 2005), trans. denied). 

Further, “‘[i]n the non-capital context, a single conviction or juvenile 

adjudication may negate this mitigating circumstance [of lack of criminal 

history].’” Id. (quoting Warlick v. State, 722 N.E.2d 809, 813 (Ind. 2000)).
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[27] While the record reveals that Stevenson has no prior felony convictions, his 

criminal history includes seven prior misdemeanor convictions which date back 

to 1987 and 1989. These convictions include two counts of battery of a police 

officer, three counts of resisting law enforcement, disorderly conduct, and 

public intoxication. Stevenson was also arrested for and charged with domestic 

battery in 2007. This charge was subsequently dismissed after Stevenson 

completed one year of a pre-trial diversion program.

[28] The trial court acknowledged that Stevenson’s criminal history was not 

extensive but stated that the court did not find it to be a mitigating factor. Thus, 

the situation presented here is not one in which the trial court was not aware of 

Stevenson’s criminal history. Although Stevenson’s criminal history may not 

constitute an aggravating circumstance sufficient to enhance a sentence, the 

trial court was not required to attach mitigating weight to his criminal history. 

See Robinson v. State, 775 N.E.2d 316, 321 (Ind.2002) (trial court properly 

attached no mitigating weight to defendant’s criminal history consisting of one 

misdemeanor, possession of marijuana, and several traffic infractions). We 

therefore conclude that the trial court did not abuse its discretion in declining to 

find Stevenson’s criminal history to be a mitigating circumstance.

B. Appropriateness of Sentence

[29] Stevenson also claims that his forty-year sentence, ten years of which was 

suspended to probation, is inappropriate in light of the nature of his offense and 

his character. Indiana Appellate Rule 7(B) provides that “The Court may revise 

a sentence authorized by statute if, after due consideration of the trial court’s 
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decision, the Court finds that the sentence is inappropriate in light of the nature 

of the offense and the character of the offender.” In analyzing such claims, we 

“‘concentrate less on comparing the facts of [the case at issue] to others, 

whether real or hypothetical, and more on focusing on the nature, extent, and 

depravity of the offense for which the defendant is being sentenced, and what it 

reveals about the defendant’s character.’” Paul v. State, 888 N.E.2d 818, 825 

(Ind. Ct. App. 2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. 

App. 2002), trans. denied). The defendant bears the burden of persuading us that 

his sentence is inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. 

App. 2008).

[30] With respect to the nature of Stevenson’s offense, we find the nature of 

Stevenson’s offenses to be abhorrent as he repeatedly victimized a young child 

over whom he was in a position of trust. The evidence demonstrates that M.C. 

was between the ages of two and four and a half when she was victimized by 

Stevenson. In addition, Stevenson committed these heinous acts while J.C., 

who was between the ages of one and three, was in the room watching 

television.

[31] Stevenson’s acts of victimizing a young child over whom he had a position of 

trust also reflects poorly on Stevenson’s character. In addition, while Stevenson 

had not previously been convicted of any prior felony offenses, his criminal 

history was not unblemished. Again, Stevenson’s criminal history includes 

seven prior misdemeanor convictions which date back to 1987 and 1989. These 

convictions include two counts of battery of a police officer, three counts of 
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resisting law enforcement, disorderly conduct, and public intoxication. 

Stevenson was also arrested for and charged with domestic battery in 2007. 

This charge was subsequently dismissed after Stevenson completed one year of 

a pre-trial diversion program. The fact that Stevenson committed the instant 

criminal acts after having previously been granted the mercy of the court as 

evidenced by his 2007 participation in a pre-trial diversion program also reflects 

poorly on his character. In fact, the evidence presented at trial suggests that he 

has apparently chosen not to refrain from victimizing others and has apparently 

moved from victimizing innocent women to victimizing innocent young 

children. Stevenson has failed to establish that his forty-year sentence, ten years 

of which was suspended to probation, was inappropriate in light of the nature of 

his offenses and his character.

Conclusion

[32] In sum, we conclude that the evidence is sufficient to sustain Stevenson’s 

conviction, the trial court did not abuse its discretion in excluding and 

admitting certain evidence, the trial court did not abuse its discretion in 

sentencing Stevenson, and Stevenson’s sentence is not inappropriate. As such, 

we affirm the judgment of the trial court.

[33] The judgment of the trial court is affirmed.

Pyle, J., and Altice, J., concur.