Court of Appeals of Indiana | Memorandum Decision 79A02-1505-CR-451 | December 30, 2015 Page 1 of 5

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

Timothy P. Broden

Lafayette, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Lyubov Gore

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Tommy E. Foster,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

December 30, 2015

Court of Appeals Case No.

79A02-1505-CR-451

Appeal from the Tippecanoe 

Superior Court

The Honorable Randy J. Williams, 

Judge

Trial Court Cause No.

79D01-1401-FC-2

Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A02-1505-CR-451 | December 30, 2015 Page 2 of 5

Statement of the Case

[1] Tommy E. Foster appeals his sentence following his conviction for child 

solicitation, as a Class C felony, and for being a habitual offender following a 

guilty plea. Foster raises a single issue for our review, namely, whether his 

sentence is inappropriate in light of the nature of his offenses and his character. 

We affirm.

Facts and Procedural History

[2] In January of 2014, Foster posted an advertisement on Craigslist seeking a 

sexual partner and stating that “age,” among other things, was “not important.” 

Appellant’s App. at 53. Lafayette Police Department Sergeant Gossard,

1

posing as a thirteen-year-old girl, responded to Foster’s advertisement. When 

informed of Sergeant Gossard’s purported age, Foster responded that he was 

“cool with your age” and then asked Sergeant Gossard if “she” would perform 

oral sex. Id. Foster and Sergeant Gossard exchanged several other sexually 

explicit messages thereafter. Eventually, Foster arranged to meet with Sergeant 

Gossard for the purpose of engaging in sexual activity. At the arranged time 

and place, a local Wendy’s restaurant on the afternoon of January 17, Lafayette 

Police Department Detective Pinkard2located and arrested Foster.

 

1

 Sergeant Gossard’s first name is not in the record on appeal.

2

 Detective Pinkard’s first name is not in the record on appeal.
Court of Appeals of Indiana | Memorandum Decision 79A02-1505-CR-451 | December 30, 2015 Page 3 of 5

[3] On January 22, the State charged Foster, in relevant part, with child 

solicitation, as a Class C felony, and for being a habitual offender. Foster 

pleaded guilty to those two charges pursuant to a written plea agreement, which 

called for an aggregate executed sentence between eight and twelve years. The 

trial court accepted the plea agreement and sentenced Foster to six years for 

child solicitation and five years for being a habitual offender, for a total term of 

eleven years executed. In entering Foster’s sentence, the court stated:

The Court finds as mitigating factors the defendant plead [sic] 

guilty and accepted responsibility, the defendant has family 

support[,] and the defendant has mental health issues.

The Court finds as aggravating factors the defendant has a 

criminal history, fifteen (15) Petitions to Revoke Probation were 

filed with eight (8) found to be true, the defendant was on 

probation at the time of the commission of the instant offense, 

the defendant has been unsuccessfully released from probation[,] 

and the defendant has a history of substance abuse.

The Court further finds that the aggravating factors outweigh the 

mitigating factors.

Id. at 24. This appeal ensued. 

Discussion and Decision

[4] Foster contends that his sentence is inappropriate in light of the nature of the 

offenses and his character. Indiana Appellate Rule 7(B) permits an Indiana 

appellate court to “revise a sentence authorized by statute if, after due 

consideration of the trial court’s decision, the Court finds that the sentence is 
Court of Appeals of Indiana | Memorandum Decision 79A02-1505-CR-451 | December 30, 2015 Page 4 of 5

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

offender.” We assess the trial court’s recognition or non-recognition of 

aggravators and mitigators as an initial guide to determining whether the 

sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. 

Ct. App. 2006). The principal role of appellate review is to attempt to “leaven 

the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). A

defendant must persuade the appellate court that his or her sentence has met the 

inappropriateness standard of review. Roush v. State, 875 N.E.2d 801, 812 (Ind. 

Ct. App. 2007).

[5] We initially note that, had he gone to trial, Foster faced a maximum possible 

term of twenty years for a Class C felony conviction and for being found to be a 

habitual offender. See Ind. Code §§ 35-50-2-6, -8 (2013). However, pursuant to 

Foster’s plea agreement, the maximum possible term to which the court could 

have sentenced him was twelve years. And, despite finding six aggravators to 

outweigh three mitigators, the court actually sentenced Foster to a total term of 

eleven years.

[6] With respect to the nature of the offenses, Foster argues that “the police 

facilitated an offense that was not [Foster’s] original intent,” and that the

offense occurred “only after police had whetted [his] appetite for a sexual 

encounter.” Appellant’s Br. at 5. Foster further argues that he was “only 

minimally eligible for the habitual offender enhancement.” Id. And, with 

respect to his character, Foster emphasizes his mental illness and downplays his 

criminal history.
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[7] We cannot say that Foster’s eleven-year aggregate sentence is inappropriate 

with respect to the nature of the offenses. Foster’s arguments on this issue

ignore the fact that his Craigslist request for a sexual encounter stated that 

“age,” among other things, was “not important.” Appellant’s App. at 53. 

Foster also ignores the fact that he stated that he was “cool with your age” 

when he believed the person responding to his request was a thirteen-year-old 

girl. Id. Further, Foster sent numerous sexually explicit messages to a person 

he believed to be a thirteen-year-old girl, and he eventually arranged to meet his 

target in the hope of furthering his desires. And Foster’s habitual-offender 

enhancement was for five years, or one year above the minimum enhancement 

required by law and seven years below the maximum enhancement permitted. 

See I.C. §§ 35-50-2-6, -8.

[8] Neither can we say that Foster’s sentence is inappropriate in light of his 

character. The trial court has already considered Foster’s mental illness vis-àvis his criminal record. And Foster has an extensive criminal history, which 

includes twenty convictions and numerous probation violations. And he was 

on probation at the time of the instant offenses. After considering both the 

nature of the offenses and the character of the defendant, we conclude that this 

sentence is not inappropriate. We affirm Foster’s sentence.

[9] Affirmed.

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