Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2239 | May 17, 2017 Page 1 of 9

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

Curtis T. Hill, Jr.

Attorney General of Indiana

Larry D. Allen

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Timothy J. Miles,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

May 17, 2017

Court of Appeals Case No.

79A02-1609-CR-2239

Appeal from the Tippecanoe 

Superior Court.

The Honorable Steven P. Meyer, 

Judge.

Trial Court Cause No. 

79D02-1604-F6-373

Barteau, Senior Judge
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Statement of the Case

Timothy J. Miles appeals his sentence upon his conviction of battery as a Level 

6 felony.1

 We affirm.

Issues

Although Miles states that his sole contention on appeal is the 

inappropriateness of his sentence, he also challenges the aggravating factors 

found by the trial court. Thus, we address two issues in this appeal:

I. Whether the trial court abused its discretion in sentencing 

Miles.

II. Whether Miles’ sentence is inappropriate in light of the 

nature of the offense and his character.

Facts and Procedural History

On March 17, 2016, eleven-year-old M.E. was waiting for the school bus when 

Miles, dressed all in black, approached her from behind, touched her buttocks, 

and ran away.

Based upon this incident, the State charged Miles with battery as a Level 6 

felony. At Miles’ trial, the jury returned a verdict of guilty. The trial court later 

sentenced Miles to two years, with one and one-half years executed followed by 

direct placement to community corrections for six months. 

 

1

Ind. Code §35-42-2-1 (2014).
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Discussion and Decision

I. Sentencing

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), clarified on reh’g, 875 N.E.2d 218 (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. When imposing a sentence for a felony, 

a trial court must enter a sentencing statement including reasonably detailed 

reasons for imposing a particular sentence. Id. at 491. A trial court abuses its 

discretion when it fails to issue a sentencing statement, gives reasons for 

imposing a sentence that are not supported by the record, omits reasons clearly 

supported by the record and advanced for consideration, or considers reasons 

that are improper as a matter of law. Id. at 490-91.

Miles begins by noting that a prior version of the battery statute required bodily 

injury to the victim in order to elevate the offense to a felony when it was 

committed by a person at least eighteen years of age upon a person less than 

fourteen years of age. See Ind. Code § 35-42-2-1 (2012). However, the act 

constituting an offense under a prior version of the statute is of no moment in 

this appeal. The time of a crime is selected as an act of free will by the offender. 

Rondon v. State, 711 N.E.2d 506, 513 (Ind. 1999). Therefore, the criminal, not 

the State, chooses which statute applies. Id. Accordingly, Miles is bound by 

the law in effect at the time he committed this offense.
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Miles argues the trial court improperly used the seriousness of the offense as an 

aggravator and cites to Walsman v. State, 855 N.E.2d 645, 653 (Ind. Ct. App. 

2006), which holds that the seriousness of the crime may only be used as an 

aggravator when the trial court is considering imposition of a sentence shorter 

than the presumptive. More recently, our Supreme Court observed that “the 

seriousness of the offense . . ., which implicitly includes the nature and 

circumstances of the crime as well as the manner in which the crime is 

committed, has long been held a valid aggravating factor.” Anglemyer, 868 

N.E.2d at 492.

Here, it is clear from the record that the trial court’s reliance on the seriousness 

of Miles’ offense as an aggravator was based on the nature and the 

circumstances of the crime. At sentencing, the trial court expressed its concern 

about Miles’ escalating proclivity to commit indecent acts/sex offenses. The 

court discussed the nature of this offense as a touching of a child’s buttocks and 

that it occurred just a short time after Miles had committed the offense of public 

indecency against a different victim. The trial court did not consider whether 

imposition of a reduced sentence would depreciate the seriousness of Miles’

crime. Thus, this aggravator is not an improper aggravator, and the court did 

not abuse its discretion by relying on it.

Next Miles claims that the court erroneously considered the impact upon the 

victim and her family as an aggravating circumstance. In determining what 

sentence to impose for a crime, the court may consider as an aggravating 

circumstance that the harm, injury, loss, or damage suffered by the victim of an 
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offense was significant and greater than the elements necessary to prove the 

commission of the offense. Ind. Code § 35-38-1-7.1(a)(1) (2015). More 

specifically, if there is nothing in the record to indicate that the impact on the 

family and victim in a specific case is different than the impact on families and 

victims which usually occurs with such a crime, this separate aggravator is 

improper. McElroy v. State, 865 N.E.2d 584, 590 (Ind. 2007).

Here, the pre-sentence investigation report reveals M.E.’s family’s fear of being 

watched. It further detailed M.E.’s terror of riding the school bus, her fear of 

playing outside, her refusal to be out of sight of her parents, and her struggle 

with frequent nightmares since the incident. In order that M.E. could continue 

to ride the bus to school, the school altered the bus stop so that M.E. can board 

the bus directly in front of her house. Additionally, the report disclosed an 

incident that occurred two months prior to the instant offense in which Miles 

exposed himself to M.E. At the sentencing hearing, the trial court noted:

Now I know the Court[’]s not necessarily supposed to consider 

the impact if it’s nothing more than what’s sort of expected of 

these kind[s] of offenses. However, I think the impact has gone 

above and beyond what one might expect on a battery on a child. 

I mean here she’s been emotionally scarred. She’s afraid to go 

out of her own house because of this. She has to have a friend 

come meet her to meet the bus. And she feels afraid in her own, 

in her, inside of her own home, and it’s affected the family for 

those same reasons. The school system had to change the bus 

route to ensure that this little girl feels safe on getting, on getting 

on the bus. . . . In a way, you robbed this little girl of her 

innocence because she no longer feels safe to stand around with 
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her friends waiting for the bus. And I think that’s a serious 

impact that this, that you’ve inflicted on this girl, this little girl.

Tr. pp. 156-57. The fears of M.E. and her family are well beyond the level of

emotional and psychological trauma usually associated with the crime of 

battery. The trial court properly acted within its discretion to consider this as 

an aggravating factor.

Finally, Miles asserts the court’s finding in its written sentencing order that this 

offense occurred in the presence of other children is exaggerated. The transcript 

of the sentencing hearing discloses a simple comment of the trial court that “this 

happened in the early morning hours on a residential street where kids gather 

for the bus” but not a definitive finding of this as an aggravating circumstance 

in this case. “The approach employed by Indiana appellate courts in reviewing 

sentences in non-capital cases is to examine both the written and oral 

sentencing statements to discern the findings of the trial court.” McElroy, 865 

N.E.2d at 589. Thus, based upon the general nature of the trial court’s 

comment at sentencing, we decline to treat this circumstance as an aggravating 

factor. Regardless, the trial court properly considered several other aggravating 

factors, and just a single aggravator is sufficient to support an enhanced 

sentence. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008).

II. Inappropriate Sentence

Although a trial court may have acted within its lawful discretion in imposing a 

sentence, Article 7, Sections 4 and 6 of the Indiana Constitution authorize 

independent appellate review and revision of sentences through Indiana 
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Appellate Rule 7(B), which provides that we may revise a sentence authorized 

by statute if, after due consideration of the trial court’s decision, we determine 

that the sentence is inappropriate in light of the nature of the offense and the 

character of the offender. Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 

2014). However, “we must and should exercise deference to a trial court’s 

sentencing decision, both because Rule 7(B) requires us to give ‘due 

consideration’ to that decision and because we understand and recognize the

unique perspective a trial court brings to its sentencing decisions.” Stewart v. 

State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). The principal role of appellate 

review under Rule 7(B) is to attempt to leaven the outliers, not to achieve a 

perceived “correct” result in each case. Garner v. State, 7 N.E.3d 1012, 1015 

(Ind. Ct. App. 2014). In other words, the question under Appellate Rule 7(B) is 

not whether another sentence is more appropriate; rather, the question is 

whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265, 

268 (Ind. Ct. App. 2008). The defendant bears the burden of persuading the 

appellate court that his or her sentence is inappropriate. Childress v. State, 848 

N.E.2d 1073, 1080 (Ind. 2006).

To assess whether the sentence is inappropriate, we look first to the statutory 

range established for the class of the offense. Here the offense is a Level 6 

felony, for which the advisory sentence is one year, with a minimum sentence 

of six months and a maximum sentence of two and one-half years. Ind. Code § 

35-50-2-7 (2014). Miles was sentenced to two years, which is less than the 

maximum sentence allowed by statute.
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Next, we look to the nature of the offense and the character of the offender. As 

to the nature of the current offense, we note that Miles, dressed in all black, 

approached eleven-year-old M.E. at her bus stop and touched her buttocks. As 

a result of this assault, M.E. is terrified to ride the bus to school or play outside 

in her yard, and she suffers from frequent nightmares.

With regard to the character of the offender, we observe that, as a juvenile, 

Miles was warned and released for an offense that would constitute battery if 

committed by an adult in 1999. In the same year, no action was taken on an 

offense that would constitute disorderly conduct. In late 1999, Miles was 

placed at an alternative high school due to truancy issues. The following year a 

truancy action was filed in which Miles was adjudicated a delinquent with 

supervised probation and counseling. In 2001, he was charged with 

intimidation, pointing a firearm, and dangerous possession of a firearm and was 

waived into adult court and convicted of intimidation as a Class D felony in 

2002. Further, as an adult, Miles was convicted of battery resulting in bodily 

injury as a Class A misdemeanor (originally filed as a Class D felony) in 2007. 

Finally, just months prior to the present case, Miles committed public 

indecency as a Class A misdemeanor. Although the State indicated there were 

no mitigators, the court considered Miles’ “good work history” and “strong 

family support.” Tr. p. 155. Miles’ criminal history, particularly his recent 

tendency toward indecent acts/sex offenses, reflects poorly on his judgment and 

any prior attempts at rehabilitation. Thus, we cannot say that Miles’ sentence is 

inappropriate in light of the nature of the offense or his character.
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Conclusion

For the reasons stated, we conclude that the trial court did not abuse its 

discretion in sentencing Miles and his sentence is not inappropriate given the 

nature of the offense and his character.

Affirmed.

Bailey, J., and Crone, J., concur.