Court of Appeals of Indiana | Memorandum Decision 18A-CR-2482 | December 9, 2019 Page 1 of 24

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

Holly L. Lyons

Brand & Morelock

Greenfield, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Chandra K. Hein

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Ryan Michael Dudley,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

December 9, 2019

Court of Appeals Case No.

18A-CR-2482

Appeal from the Hancock Circuit 

Court

The Honorable R. Scott Sirk, 

Judge

Trial Court Cause No.

30C01-1703-F4-620

Barteau, Senior Judge.
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Statement of the Case

[1] Ryan Michael Dudley appeals from his convictions after a jury trial of two 

counts of child molesting,

1

each as a Level 4 felony, and one count of child 

molesting,

2

as a Level 3 felony, and his sentence for those convictions. Finding 

no double jeopardy violation, no error in the admission of evidence, or

inappropriateness of his sentence, we affirm.

Issues

[2] Dudley presents the following issues for our review, which we restate as the 

following questions:

I. Do Dudley’s two convictions for Level 4 felony child 

molesting violate the Double Jeopardy Clause of the Indiana 

Constitution?

II. Did the trial court abuse its discretion by allowing testimony 

about Dudley’s prior admission that he was a sex addict?

III. Is Dudley’s sentence inappropriate in light of the nature of 

the offense and the character of the offender?

 

1

Ind. Code § 35-42-4-3(b) (2015).

2

Ind. Code § 35-42-4-3(a) (2015).
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Facts and Procedural History

[3] In 2011, sisters M.G. and B.G.’s parents divorced and the parents shared joint 

custody of the girls. Their mother exercised parenting time on Mondays and 

Tuesdays and their father exercised parenting time every Wednesday and 

Thursday. The parents alternated parenting time on Fridays, Saturdays, and 

Sundays. 

[4] In August of 2016, their father broke up with his girlfriend. In September of 

2016, Dudley, a friend of the girls’ father, moved in to help pay the rent. 

Dudley sometimes babysat the girls when their father was at work. 

[5] At all relevant times pertaining to the charged offenses, M.G. and B.G. were six 

and seven years old respectively. After Dudley moved in, he licked B.G.’s 

vagina multiple times. Dudley also molested M.G. multiple times in various 

ways.

[6] In March of 2017, the girls spent one week of their spring break with their 

father. They returned to their mother’s house on Sunday, March 19, 2017 for 

the second week of their spring break. The mother testified that “[a]t family 

dinner my step-son had made an offhand comment and my daughter B.G. then 

started to cry and get very upset and worried at the dinner table and we knew 

something was wrong.” Tr. Vol. 2, p. 137. The girls told their mother and 

stepfather what Dudley had done to them.

[7] The mother called the girls’ father and informed him about what the girls had 

disclosed. She stated that he needed to ask his roommate to leave his house. 
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The girls’ stepfather went to the father’s house that night at around 10:00 p.m. 

He called the father to inform him that he was coming and asked him if he had 

called the police yet. The girls’ father then called law enforcement. Officers 

arrived shortly thereafter. One of those officers was Detective Randy Ratliff of 

the Greenfield Police Department. 

[8] The girls’ stepfather spoke with the officers and told them what the girls had 

disclosed. He then left at around midnight and returned home. Later, the girls’ 

father came to the girls’ mother’s house and the three adults discussed how to 

address what they had learned and what to do going forward. 

[9] The girls’ mother and stepfather took them to give statements at the Greenfield 

Police Department, to see Bridget Harter (“Harter”) for their forensic 

interviews, and to see Lori Wilson (“Wilson”) for physical examinations.

[10] Although Harter was currently employed through the Indiana Department of 

Child Services, covering the child abuse hotline at the time of trial, in March of 

2017, she worked in Hancock County with the Department of Child Services as 

an assessment worker. She later testified that it was her responsibility to speak 

with the victim, the perpetrator, and all of the parties involved to determine 

whether the child has been a victim of abuse or neglect. 

[11] After receiving a call that M.G. and B.G. were the victims of sexual abuse, she 

called law enforcement, the prosecutor’s office, and made arrangements with 

the girls’ mother for forensic interviews. A forensic interview of a victim is 

conducted by the assessment worker while someone from the prosecutor’s 
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office and from law enforcement listen and observe from a separate room. 

They assist the assessment worker by providing additional questions to ask or 

strategies to obtain information. The goal is to maximize the amount of 

information gathered at the interview such that additional interviews are not 

necessary. In this situation, on March 21, 2017, Harter interviewed B.G., 

M.G., the girls’ mother, and the girls’ father. The girls’ stepbrother, J.G., was 

interviewed a few days later.

[12] On March 21, 2017, M.G. and B.G. were examined by Wilson, a sexual assault 

nurse examiner employed by Community Hospital in Anderson. She examined 

the girls and compiled a patient history, which included a detailed recitation of 

the disclosures made to her by the girls regarding sexual abuse allegations

against Dudley. Releases were signed by the girls’ mother and the reports were 

shared with Detective Ratliff, the prosecutor’s office, and the Hancock County 

DCS.

[13] Wilson testified as follows about the girls’ disclosures:

Um [M.G.] told me that um every time she goes to her Dad’s 

house that–that [Dudley]’s there and something happens every 

time she’s at–at her Dad’s house with [Dudley].

* * * *

MG [sic] states [Dudley] pulls down her pants and panties and 

touches his boy part to her girl part. He touched her inside her 

clothing with his hand and on the outside as well. She states he 

has put his boy part in her mouth and she demonstrates [Dudley] 

holding his penis and moving his hand back and forth. She also 

describes ejaculating and states white stuff comes out in his hand 
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and he wipes it off with a dirty sock he keeps next to the bed in 

the dresser. MG [sic] states he’s made her touch his boy part 

with her hand and made her move her hand back and forth. . . . 

[H]e has tried to put his boy part in her girl part. She points to 

both her vaginal and anal area. I asked her how that felt and she 

stated it hurt and [she] asked him to stop but sometimes he 

doesn’t. She also describes getting on her hands and knees and 

[Dudley] getting behind her and touches his boy part to her um 

butt.

Tr. Vol. 3, pp. 125-26. Dudley forced B.G. to watch him molest M.G., and 

B.G. verified that M.G.’s molestations occurred.

[14] B.G. told her mother and her stepbrother what Dudley did to her. When 

Harter interviewed her, she was extremely quiet and would not disclose to 

Harter what Dudley had done to her. She testified at trial that she was afraid to 

tell Harter the truth about what had happened. Later, in February 2018, B.G., 

who had been seeing a counselor and talking more with her mother about the 

abuse, went to the Greenfield Police Department to give a second statement.3 

[15] On March 24, 2017, the State charged Dudley with Count I, child molesting, a 

Level 4 felony (against M.G.); and Count II, child molesting, a Level 4 felony 

(against M.G.). On August 19, 2018, the State amended the charging 

information to include Count III, child molesting, a Level 3 felony (against 

B.G.). At the conclusion of Dudley’s jury trial, which was held on August 21 

 

3 Dudley does not present a challenge to his conviction for Count III, child molesting as a Level 3 felony 

against B.G.
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through August 23, 2018, the jury found Dudley guilty as charged. On 

September 20, 2018, the trial court sentenced Dudley to consecutive terms of 

twelve years executed in the Department of Correction on Count I, twelve years 

executed on Count II, and sixteen years executed on Count III, for an aggregate 

sentence of forty years. Dudley now appeals. 

Discussion and Decision

I. Double Jeopardy Violation

[16] Dudley argues that his convictions of the charges under both Count I and 

Count II violate the protections afforded under Indiana’s double jeopardy 

clause.4 He claims that, “[t]he way the case was charged and the manner of 

presentation of the evidence create both a double jeopardy issue and an issue 

[of] whether the state in fact proved their case beyond a reasonable doubt.” 

Appellant’s Br. p. 5. Article 1, section 14 provides in part: “No person shall be 

put in jeopardy twice for the same offense.”

Questions arising under the Indiana Constitution are to be 

resolved by examining the language of the text in the context of 

the history surrounding its drafting and ratification, the purpose 

and structure of our constitution, and case law interpreting the 

specific provisions. In construing the Constitution, a court 

should look to the history of the times and examine the state of 

things existing when the constitution or any part thereof was 

framed and adopted, to ascertain the old law, the mischief, and 

the remedy. Because the intent of the framers of the Constitution 

 

4 Dudley does not make a separate argument under the federal double jeopardy clause.
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is paramount in determining the meaning of a provision, this 

Court will consider the purpose which induced the adoption, in 

order that we may ascertain what the particular constitutional 

provision was designed to prevent. 

Richardson v. State, 717 N.E.2d 32, 38 (Ind. 1999) (internal quotations and 

citations omitted).

[17] After analyzing prior cases addressing Indiana’s constitutional prohibition against 

double jeopardy, our supreme court articulated the following analysis. 

“Synthesizing these considerations, we therefore conclude and hold that two or 

more offenses are the ‘same offense’ in violation of Article I, Section 14 of the 

Indiana Constitution, if, with respect to either the statutory elements of the 

challenged crimes or the actual evidence used to convict, the essential elements of 

one challenged offense also establish the essential elements of another challenged 

offense.” Id. at 49. We review de novo whether a defendant’s convictions violate 

either part of the analysis under this provision. Goldsberry v. State, 821 N.E.2d 447, 

458 (Ind. Ct. App. 2005).

[18] Dudley challenges both elements of the Indiana Constitution’s double jeopardy 

analysis. More specifically, he argues that the jury relied on the same facts to 

convict him of both counts because they each refer to an offense occurring on 

March 19, 2017. The language of the charge under Count I is as follows:

The undersigned, being duly sworn upon oath, says that on or 

about March 19, 2017 in Hancock County, State of Indiana, Ryan 

Dudley did perform or submit to fondling or touching with 

M.G., a child under the age of fourteen years, to-wit: 7, with the 

intent to arouse or satisfy the sexual desires of the child or 
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defendant contrary to the form of the statutes in such cases made 

and provided by I.C. § 35-42-4-3(b) and against the peace and 

dignity of the State of Indiana.

Appellant’s App. Vol. 2, p. 21 (emphasis added).

[19] The language of the charge under Count II is as follows:

The undersigned, being duly sworn upon oath, says that between 

October 1, 2016 and March 19, 2017 in Hancock County, State of 

Indiana, Ryan Dudley did perform or submit to fondling or 

touching with M.G., a child under the age of fourteen years, towit: 7, with the intent to arouse or satisfy the sexual desires of 

the child or defendant contrary to the form of the statutes in such 

cases made and provided by I.C. § 35-42-4-3(b) and against the 

peace and dignity of the State of Indiana.

Id. (emphasis added).

[20] The statutory elements of the crimes alleged in Count I and Count II are the 

same. Therefore, we turn to the actual evidence used in this case. 

[21] “Under the ‘actual evidence’ test, we must examine the evidence presented at 

trial to determine ‘whether each challenged offense was established by separate 

and distinct facts.’” Goldsberry, 821 N.E.2d at 459. “To demonstrate two 

offenses are the same, the appellant must show a reasonable possibility that the 

facts used by the jury to establish the essential elements of one offense were also 

used to establish the essential elements of the second offense.” Id. “The 

appellant must show more than a remote or speculative possibility that the 

same facts were used.” Id. “To determine what facts were used, we consider 
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the evidence, charging information, final jury instructions, and arguments of 

counsel.” Id. 

[22] The evidence shows that Wilson conducted a sexual assault examination which

included a patient history for M.G. and B.G. As respects M.G., Wilson learned 

that M.G., who was six years old at the time of the crimes, described being 

touched inappropriately by Dudley in the chest area, the vaginal area, and the 

anal area. 

[23] M.G. told Wilson that this happened every time they visited their father’s house 

and Dudley was there. The touching would take place on the floor in his 

bedroom, in the living room, and in the garage. Although others might be 

present in the home at the time, Dudley would sexually abuse M.G. in a room 

where no one could see what was happening. 

[24] She disclosed that Dudley touched her “girl parts” both inside and outside of 

her clothing. Tr. Vol. 3, p. 126. He pulled down her pants and panties and 

touched “his boy part to her girl part.” Id. Six-year-old M.G. also described 

ejaculation and demonstrated how Dudley held his penis moving his hand back 

and forth. She further stated that white stuff came out in his hand, and he 

wiped it off with a dirty sock he kept next to the bed in the dresser. She told 

Wilson that he “has put his boy part in [my] mouth,” but does not allege that he 

ejaculated in her mouth. Id. She also stated that Dudley placed her hand on his 

penis “and made her move her hand back and forth.” Id. 
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[25] She disclosed that Dudley tries “to put his boy part in her girl part,” pointing to 

her vaginal and anal area. Id. When asked how that felt, “she stated it hurt and 

[she] asked him to stop but sometimes he doesn’t.” Id. She further described

“getting on her hands and knees and [Dudley] getting behind her” touching 

“his boy part to her um butt.” Id. M.G. stated that Dudley “sometimes [] 

makes B.G. stay” during M.G.’s abuse, and other times “he has me leave and 

B.G. has to stay in the room with him.” Id. 

[26] At trial, M.G. testified that Dudley inappropriately touched her more than ten 

times. 

[27] Detective Ratliff’s probable cause affidavit included the following allegation:

6. [Stepfather] and [Mother] then spoke with [M.G]. 

[Stepfather] said the [sic] [M.G.] told them that Dudley had done 

things that he said were of a sexual nature on several occasions 

including this past Sunday (3/19/17).

Appellant’s App. Vol. 2, p. 23. The probable cause affidavit further stated:

8. [Father] had worked most of the day on 3/19 and the girls 

were at home with his girlfriend [] and [Dudley.]

9. I spoke with [] Dudley who said that that [sic] he was moving 

out and that he had moved in approx, [sic] October 2016. 

Dudley also provided contact information.

10. [Father’s girlfriend] advised that she and the girls had left 

about 10:00 am, were at Starbucks about 11:00 am and took a 

drink to [Father] at work. They then went to eat at the Gas 

Grille (SR 109 & 1-70). She had a photo of the girls taken shortly 

after noon, showing that they were still eating, and likely 

returned home about 12:30 pm. After that the girls played both 
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outside and inside till about 5:00 pm when they went to 

Walmart. [Father’s girlfriend] said that [Father] took them to 

their mother’s after that.

Id. at 24. 

[28] At trial, Detective Ratliff testified in pertinent part as follows:

Beyond the initial report uh something occurring on March 19th

the Sunday of March 19th when the children last had visitation 

with their Father, the timeline was very broad from the time Mr. 

Dudley moved in until the time Mr. Dudley moved out.

* * * *

I asked [Dudley] if he could explain [why the girls had seen his 

privates] and he said the only thing that he could [think] of was 

that that morning that Sunday morning he was out in the garage 

smoking and he had ripped his pants and thought maybe MG 

had seen something. 

Tr. Vol. 3, pp. 75-78. He further testified that he assembled all of the 

information he had gathered to draft the probable cause affidavit. Id. at 78.

[29] Therefore, the evidence reveals that the sexual abuse occurred between October 

of 2016 and March 19, 2017. There are references to the abuse occurring in 

different rooms and in different ways. M.G. stated that sometimes Dudley 

would not stop his attempts at vaginal and anal penetration and that it hurt. 

“Sometimes” indicate multiple incidents of abuse. Indeed, she testified that the 

abuse occurred on more than ten occasions. Further, Detective Ratliff’s 

probable cause affidavit and testimony refer to something happening on Sunday 

March 19, 2017. The young girls disclosed what had happened to their 
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similarly-aged stepbrother. The stepbrother then made a remark including a 

sexual reference which upset B.G. at the family dinner table after the girls had 

returned to their Mother’s house on Sunday March 19, 2017. On that evening, 

both girls disclosed to their Mother and Stepfather what Dudley had done to 

them. 

[30] We conclude under the actual evidence test that, given the numerous incidents 

of sexual abuse over time, there is not a reasonable possibility the same facts 

were used by the jury to establish the essential elements of both Count I and 

Count II, that there was sufficient evidence to support both convictions, and 

that the Indiana Constitution’s double jeopardy protections were not violated.

II. Admission of Evidence

[31] Dudley contends that the trial court abused its discretion by allowing evidence

“through state’s witness Mark Stacy of a statement made by [Dudley] nine 

years prior to the trial that he was a sex addict . . . offered for the sole purpose 

of inflaming the jury.” Appellant’s Br. p. 6.

[32] Our standard of review in this area is well-settled. The admission of evidence 

falls within the sound discretion of the trial court, and we review the trial 

court’s decision for an abuse of that discretion. Mack v. State, 23 N.E.3d 742, 

750 (Ind. Ct. App. 2014), trans. denied. An abuse of discretion occurs when the 

trial court’s decision is clearly against the logic and effect of the facts and 

circumstances before it. Morrison v. State, 824 N.E.2d 734, 739 (Ind. Ct. App. 

2005), trans. denied. However, if a trial court abuses its discretion by admitting 
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challenged evidence, we will only reverse for that error if the error is 

inconsistent with substantial justice or if a substantial right of the party is 

affected. McVey v. State, 863 N.E.2d 434, 440 (Ind. Ct. App. 2007) (internal 

quotations omitted), trans. denied. “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.” Collins v. State, 966 N.E.2d 96, 

104 (Ind. Ct. App. 2012). “Moreover, we will sustain the trial court[’s]

[decisions on the admission of certain evidence] if it can be done on any legal 

ground apparent in the record.” Jester v. State, 724 N.E.2d 236, 240 (Ind. 2000). 

Any error caused by the admission of evidence is harmless error for which we 

will not reverse a conviction if the erroneously admitted evidence was 

cumulative of other evidence properly admitted. Id.

[33] Dudley claims that the trial court abused its discretion by admitting the 

evidence because it violated Indiana Rules of Evidence 403 and 404(b). The 

pertinent rules provide as follows:

Rule 403. Excluding Relevant Evidence for Prejudice, 

Confusion, or Other Reasons

The court may exclude relevant evidence if its probative value is 

substantially outweighed by a danger of one or more of the

following: unfair prejudice, confusing the issues, misleading the 

jury, undue delay, or needlessly presenting cumulative evidence.

Rule 401. Test for Relevant Evidence

Evidence is relevant if:
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(a) it has any tendency to make a fact more or less probable than 

it would be without the evidence; and 

(b) the fact is of consequence in determining the action.

Rule 404. Character Evidence; Crimes or Other Acts

* * * *

(b) Crimes, Wrongs, or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not 

admissible to prove a person’s character in order to show that on 

a particular occasion the person acted in accordance with the 

character.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be 

admissible for another purpose, such as proving motive, 

opportunity, intent, preparation, plan, knowledge, identity, 

absence of mistake, or lack of accident. . . .

[34] At trial, Stacy testified as follows after being sworn in and spelling his name for 

the court reporter:

Q: And um Mr. Stacy back in 2009 did you come into contact 

with the defendant uh Ryan Dudley?

A: Yes I did.

Q: And at that time uh did the defendant tell you anything out of 

the ordinary?

A: Yes he did.

Q: And what statement did he make to you?

A: He told me he was a sex addict and he was in treatment for 

that.
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Tr. Vol. 3, pp. 39-40. No cross-examination was conducted. Stacy’s name was 

mentioned briefly during the State’s closing argument connecting Stacy’s 

testimony to support the inference that the defendant committed those crimes 

for his own sexual arousal. “[T]he defendant did this for his own sexual 

arousal, that’s what the [sic] Mark Stacy came in and testified about, he’s a sex 

addict. That was a self-admission that he made back in 2009.” Id. at 156. 

[35] Indiana Evidence Rule 404(b) is designed to prevent the jury from assessing a 

defendant’s guilt of the instant offense based on past propensities. Collins, 966 

N.E.2d at 104. Put a different way, Evidence Rule 404(b) excludes evidence

offered for the sole purpose of raising the forbidden inference of demonstrating

a defendant’s propensity to commit the charged crime. Rogers v. State, 897 

N.E.2d 955, 960 (Ind. Ct. App. 2008), trans. denied. The standard used for 

assessment of admissibility of 404(b) evidence is: (1) whether the evidence is 

relevant to a matter at issue other than the defendant’s propensity to commit the 

charged act; and (2) whether the probative value of the evidence is outweighed 

by its unfair prejudice pursuant to Evidence Rule 403. Hicks v. State, 690 

N.E.2d 215, 221 (Ind. 1997). As for relevance, the trial court may consider any 

factor it would ordinarily consider under Evidence Rule 402, including the 

evidence’s ability to tie the charged acts to the defendant. Id. 

[36] Dudley’s admission that he is a sex addict who was seeking treatment for that 

addiction is not a prior bad act or bad character evidence. “[E]vidence which 

creates a mere inference of prior bad conduct does not fall within the purview of 

Evidence Rule 404(b).” Dixson v. State, 865 N.E.2d 704, 712 (Ind. Ct. App. 
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2007), trans. denied. Dudley’s admission that he was a sex addict is not 

necessarily indicative of criminal behavior. Indeed, for purposes of this 

analysis, it merely establishes that he was seeking treatment, i.e., was bad for 

some unspecified reason. This evidence does not qualify as a prohibited bad act 

or bad character such that it should be excluded under Evidence Rule 404(b). 

[37] We next address Dudley’s claim that the evidence is unduly prejudicial and 

inadmissible under Evidence Rule 403. “The trial court has wide latitude, 

however, in weighing the probative value of the evidence against the possible 

prejudice of its admission, and its ruling will be reviewed only for an abuse of 

discretion.” Crain v. State, 736 N.E.2d 1223, 1235 (Ind. 2000). “All evidence 

that is relevant to a criminal prosecution is inherently prejudicial, and thus the 

Evidence Rule 403 inquiry boils down to a balance of the probative value of the 

proffered evidence against the likely unfair prejudicial impact of that evidence.” 

Duvall v. State, 978 N.E.2d 417, 428 (Ind. Ct. App. 2012). “When determining 

the likely unfair prejudicial impact, courts will look for the dangers that the jury 

will (1) substantially overestimate the value of the evidence or (2) that the 

evidence will arouse or inflame the passions or sympathies of the jury.” Id.

[38] In sum, Stacy’s testimony simply consisted of his statement that he had a 

conversation with Dudley in 2009 in which Dudley admitted that he was a sex 

addict who was receiving treatment for his addiction. Further, the State’s 

concise reference to Stacy’s testimony in its closing argument revealed the 

purpose for introduction of that testimony–to establish Dudley’s motive and the 

intent element of the charged offenses.
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[39] Evidence Rule 401 further supports the admission of Stacy’s testimony. The 

evidence’s probative value was to show that Dudley touched M.G. and B.G. 

with the intent to arouse or satisfy the sexual desires of the victims, who were

very young children, or Dudley, a thirty-one-year old adult. “Mere touching 

alone is insufficient to constitute the crime of child molesting.” Carter v. State, 

31 N.E.3d 17, 30 (Ind. Ct. App. 2015), trans. denied. “The State must also prove 

beyond a reasonable doubt that the act of touching was accompanied by the 

specific intent to arouse or satisfy sexual desires.” Id. “The intent element of 

child molesting may be established by circumstantial evidence and may be 

inferred from the actor’s conduct and the natural and unusual consequence to 

which such conduct usually points.” Id. 

[40] The implication derived from Stacy’s testimony about Dudley’s admission is 

that Dudley has difficulty controlling his sexual urges and that his admission 

makes it more probable that his intent in touching B.G. and M.G. was to 

arouse or satisfy his own sexual desires. We conclude that Stacy’s testimony 

was relevant.

[41] Assuming, arguendo, that the admission of Stacy’s testimony was erroneous, 

such error was harmless in light of other evidence presented at trial. There was 

substantial independent evidence of Dudley’s guilt. Each of the girls testified 

that Dudley inappropriately touched them to arouse or satisfy his own sexual 

desires. The disclosures made by the girls to their Mother, Stepfather, and 

Wilson remained consistent. “The evidentiary error is harmless if we are 

satisfied that the conviction is supported by such substantial independent 
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evidence of guilt that there is little likelihood the challenged evidence 

contributed to the conviction.” Townsend v. State, 33 N.E.3d 367, 372 (Ind. Ct. 

App. 2015), trans. denied. 

[42] Here, M.G. and B.G. disclosed to others that Dudley had touched them 

inappropriately. B.G. testified at trial that Dudley “had licked my vagina” and 

that it had occurred more than once in Dudley’s room. Tr. Vol. 2, p. 240. 

M.G. disclosed in detail that Dudley had sexually abused her and at one point

demonstrated the methods used in the instances of abuse. Dudley forced B.G. 

to watch him molest M.G., and B.G. verified that M.G.’s molestations 

occurred. The trial court correctly decided that the minimal prejudice to 

Dudley from the admission of Stacy’s testimony was outweighed by 

independent evidence of Dudley’s guilt. We conclude that there is no reversible 

error here. 

III. Inappropriate Sentence

[43] Dudley challenges his sentence, claiming that his sentence is inappropriate in 

light of the nature of the offense and the character of the offender. More 

specifically, he argues that his aggregate sentence of forty years “was too 

lengthy given that [] [he] had one prior felony and one misdemeanor 

conviction, that this was not a situation [where] either victim was injured as a 

result of [Dudley’s] conduct and where the charges were both enhanced and run 

consecutively.” Appellant’s Br. p. 6. 
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[44] “Although a trial court may have acted within its lawful discretion in 

determining a sentence, Article VII, Sections 4 and 6 of the Indiana 

Constitution ‘authorize[] independent appellate review and revision of a 

sentence imposed by the trial court.’” Anglemyer v. State, 868 N.E.2d 482, 491

(Ind. 2007) (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)

(emphasis omitted) (quoting Buchanan v. State, 767 N.E.2d 967, 972 (Ind. 

2002))), clarified on reh’g, 875 N.E.2d 218 (2007). “This appellate authority is 

implemented through Appellate Rule 7(B), which provides that the Court may 

revise a sentence authorized by statute if, after due 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.” Anglemyer, 868 N.E.2d 

at 491 (internal citations omitted). “Of course a defendant must persuade the 

appellate court that his or her sentence has met this inappropriateness standard 

of review.” Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

[45] Under Appellate Rule 7(B), the question is “not whether another sentence is 

more appropriate” but rather “whether the sentence imposed is inappropriate.” 

King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Whether a sentence 

should be deemed inappropriate turns on the sense of culpability of the 

defendant, the severity of the crime, the damage done to others, and other 

factors. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). We may consider 

whether a portion of the sentence is ordered suspended or is otherwise 

fashioned using any of the variety of sentencing tools available to the trial 

judge. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010). “[Deference to 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2482 | December 9, 2019 Page 21 of 24

trial courts] should prevail unless overcome by compelling evidence portraying 

in a positive light the nature of the offense (such as accompanied by restraint, 

regard, and lack of brutality) and the defendant’s character (such as substantial 

virtuous traits or persistent examples of good character).” Stephenson v. State, 29 

N.E.3d 111, 122 (Ind. 2015). 

[46] The nature of the offense analyzes the defendant’s action in comparison with 

the elements of the offense. Cardwell, 895 N.E.2d at 1224. “The nature of the 

offense is found in the details and circumstances of the commission of the 

offense and the defendant’s participation.” Perry v. State, 78 N.E.3d 1, 13 (Ind. 

Ct. App. 2017).

[47] Here, regarding the convictions of Level 4 felony child molesting involving 

M.G., the State was required to prove beyond a reasonable doubt that Dudley 

with M.G., who was under fourteen years of age, performed or submitted to 

any fondling or touching of either M.G. or Dudley with intent to arouse or 

satisfy the sexual desires of either M.G. or Dudley. Ind. Code § 35-42-4-3(b). 

Regarding the conviction of Level 3 felony child molesting involving B.G., the 

State was required to prove beyond a reasonable doubt that Dudley with B.G., 

who was under fourteen years of age, knowingly or intentionally performed or 

submitted to sexual intercourse or other sexual conduct (including the mouth of 

one person with the sex organ of the other). Ind. Code § 35-42-4-3(a).

[48] Dudley forced two very young girls aged 6 and 7 to submit to multiple 

molestations over a period of six months. Not only did Dudley molest B.G., he
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2482 | December 9, 2019 Page 22 of 24

forced her to watch him molest M.G. He told the girls not to disclose the 

sexual abuse to anyone. Dudley was in a position of trust with the family as he 

was a close friend of the girls’ father and sometimes babysat the girls. M.G. 

disclosed that some of the times that he molested her, her father was in the 

house. He had multiple opportunities to cease his criminal conduct but chose 

to persist until the girls disclosed the molestations. In addition, on several 

occasions M.G. told Dudley he was hurting her, but he continued his 

molestations.

[49] As for the character of the offender, we refer to “general sentencing 

considerations and the relevant aggravating and mitigating circumstances.” 

Douglas v. State, 878 N.E.2d 873, 881 (Ind. Ct. App. 2007). A defendant’s 

criminal history is relevant to review of his character. Sanders v. State, 71 

N.E.3d 839, 844 (Ind. Ct. App. 2017), trans. denied. 

[50] Dudley gave a statement for purposes of the preparation of a pre-sentence 

investigation report. To summarize, Dudley refused to accept responsibility for 

his actions, choosing instead to blame others. He claimed that a bad jury was 

selected to decide his case. He also blamed others for trying to set him up by 

encouraging M.G. and B.G. to lie about the allegations against him. Further, 

he claimed that one of the State’s witnesses’ testimony rambled so much that a

juror fell asleep during that testimony. The take away from the evidence of his 

failure to accept responsibility for his actions and his decision to blame others is 

that he fails to demonstrate remorse.
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[51] “A record of arrest, without more, does not establish the historical fact that a 

defendant committed a criminal offense and may not be properly considered as 

evidence of criminal history.” Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005). 

Nonetheless, a record of arrests and charges may reveal that a defendant has 

not been deterred from criminal activity even after having been subject to the 

police authority of the State. Id. A sentencing court may consider the charges 

as evidence of the defendant’s character and the risk that he will reoffend. 

Tunstill v. State, 568 N.E.2d 539, 545 (Ind. 1991). 

[52] The record reflects that Dudley has been charged with impregnating a thirteenyear-old girl, having sexual intercourse with another thirteen-year-old girl, and

having been reported as engaging in “other sexual conduct” as defined by 

Indiana Code section 35-31.5-2-221.5 (2014), with another thirteen-year-old 

girl. In 2003, a police report was made alleging that Dudley committed a 

sexual assault on his cousin. That same cousin was the subject of a police 

report in 2009 that was prosecuted, alleging that Dudley engaged in “other 

sexual conduct.” Due to the intervention of certain of Dudley’s family 

members, the charge to which he pleaded was battery as a Class D felony. 

[53] Although Dudley has but one felony conviction and one misdemeanor 

conviction, his record of reports, arrests, and charges reflect that, despite 

numerous contacts with the legal system, Dudley has failed to modify his 

behavior. This reflects poorly on his character.
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[54] The sentencing range for a Level 4 felony is imprisonment for a fixed term of 

between two and twelve years with the advisory sentence being six years. Ind. 

Code § 35-5-2-5.5 (2014). The sentencing range for a Level 3 felony is 

imprisonment for a fixed term of between three and sixteen years with the 

advisory sentence being nine years. Ind. Code § 35-50-2-5 (Ind. 2014). After 

finding the aggravating factors of Dudley’s history of criminal delinquent 

behavior and his position of care and trust with the victims, the trial court 

sentenced Dudley to an aggregate term of forty years executed. 

[55] Dudley has not met his burden of persuading this court that his sentence is 

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

offender.

[56] Affirmed.

Conclusion

[57] In light of the foregoing, we conclude that there was no violation of the 

protections offered under the double jeopardy clause of the Indiana 

Constitution, that the trial court did not abuse its discretion in the admission of 

evidence, and that Dudley’s sentence is not inappropriate in light of the nature 

of the offense and the character of the offender.

Najam, J., and Kirsch, J., concur.