Court of Appeals of Indiana | Memorandum Decision 19A-CR-649 | August 30, 2019 Page 1 of 13

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

Brian A. Karle

Ball Eggleston, PC

Lafayette, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Megan M. Smith

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Shawn Robert Thomas Cowling,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

August 30, 2019

Court of Appeals Case No.

19A-CR-649

Appeal from the Tippecanoe 

Superior Court

The Honorable Steven P. Meyer, 

Judge

Trial Court Cause No.

79D02-1804-F1-5

Brown, Judge.
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[1] Shawn Robert Thomas Cowling appeals his sentence for child molesting as a 

level 1 felony. We affirm. 

Facts and Procedural History

[2] On or about April 15, 2018, Cowling, who was forty-two years of age, 

knowingly or intentionally performed or submitted to sexual intercourse or 

other sexual conduct with his daughter K.C., a child of seven years of age. 

[3] On April 25, 2018, the State charged him with three counts of child molesting 

as level 1 felonies, which alleged that he did knowingly or intentionally perform 

or submit to sexual intercourse or other sexual conduct with K.C., and three 

counts of child molesting as level 4 felonies, which alleged that he did perform 

or submit to any fondling or touching with K.C. with intent to arouse or satisfy 

his sexual desires. 

[4] On December 27, 2018, he entered a plea of guilty to one count of child 

molesting as a level 1 felony, and the court took the matter under advisement. 

On February 12, 2019, the State filed a sentencing memorandum that included 

a narrative report which was dated April 20, 2018. The report indicated that,

during an interview, K.C. had described three incidents in which: she tried to 

leave the bathroom in the room of Cowling and K.C.’s mother but he kept the 

door shut, placed her back in the bathroom, and “put his boy part in her girl 

part”; he picked her up and took her into the upstairs bathroom of a previous 

residence in Hoopeston, Illinois, took off her and his clothes, and “put his penis 

in her girl part and her butt”; and he “one time . . . put his boy part in her girl 
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part on her bed.” Appellant’s Appendix Volume II at 55-56. It stated that K.C. 

disclosed that Cowling “told her not to tell anyone what had happened” and 

that he showed her “videos of real people on the lap top [sic] computer doing 

the thing he does to her. She said that sometimes it was adults doing it to little 

girls.” Id. at 56. The narrative report also stated that Cowling, in a separate 

interview, had initially described the reason he was being interviewed as related 

to an “accidental touching of [K.C.’s] vagina with his hand while playing,” 

denied showing K.C. pornography, and stated that, when she entered from the 

bathroom and was on top of him on the bed, “she may have fell down on him 

onto his penis” before admitting that he did place his penis inside of her vagina. 

Id. at 57. The sentencing memorandum also included a supplemental report 

dated May 16, 2018, of a forensic analyst, which indicated that approximately 

500 images were found that fit the definition of child exploitation material, 

including images of child erotica as well as nude images of children less than 

the age of eighteen, and that a folder in the recycle bin, which was deleted on 

April 20, 2018, at 1:51 a.m., contained “what appeared to be 20 favorite[]” links 

to pornographic websites, “some including terms like . . . ‘incest stories[,]’ . . . 

‘your lust teens[,]’ . . . [and] ‘nice young teens sex’.” Id. at 62. 

[5] The presentence investigation report (“PSI”) was filed on February 20, 2019,

and stated that Cowling reported that he enlisted in the United States Air Force 

on August 17, 1997, and retired on August 31, 2015, that his “highest rank was 

E-7 and his MOS was 2W/71,” that he was involved in active combat duty in 

the Middle East in 2004, and that he had never been listed as AWOL, 
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incarcerated, or court-martialed. Id. at 100. It further stated that Cowling 

replied, “[m]aybe,” when asked if he had any physical and/or emotional 

difficulties as a result of his military experience. Id.

[6] On February 25, 2019, the court held a sentencing hearing at which it admitted 

the sentencing memorandum. Cowling presented the testimony of Dr. Robin 

Dianne Kohli, a clinical psychologist. Dr. Kohli testified that she completed an 

examination of Cowling on October 9, 2018, during which she administered 

several psychological assessment measures, including “the MCMI III and the 

Sex Offender Risk Assessments, the SORAG, and the STATIC-2002.” 

Transcript Volume II at 26. She indicated that she picked the “STATIC-2002 

because it’s a good predictor, a strong predictor of recidivism, and the SORAG 

also is one of those measures that’s also a good predictor of risk.” Id. at 28. 

She testified that Cowling came up as low risk to reoffend on the two different 

sex offender risk assessment measures “primarily due to his no history of acting 

out sexually in the past” and indicated that the assessment measures were 

“basically actuarial risk assessments like . . . insurance companies use” and 

that, “so in this case, due to his lack of previous offenses and the other factors 

associated with his past, and his current mental health issues, he came up as 

low risk for reoffense and in the lowest percentage for that to occur.” Id. at 27. 

She testified that Cowling scored at a Level 1 based on the STATIC-2002, 

“which is the lowest risk category” and that his likelihood to reoffend would be 

1.8 percent in a five-year period and 1.8 percent in a ten-year period. Id. at 28. 
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[7] When asked for specific recommendations, Dr. Kohli testified that: Cowling “has 

a misunderstanding about people and relationships”; she thought he lacked

empathy and he “could have a hard time seeing things from his daughter’s 

perspective”; and he struggled when asked to consider the perspective of others 

and “really rationalized his actions,” which was apparent in statements he made 

during the evaluation. Id. at 29. She stated: 

Even though he’s low risk to reoffend, technically, on these 

instruments, I think that it would be very important for him to 

have a better understanding of how to prevent himself from 

acting in this way that he’d have a relapse prevention plan in 

place when he came out and that he would have follow–up 

services also in the community so that he wouldn’t reoffend.

Id. at 30. During cross-examination, she testified that he said he engaged K.C. 

in oral, anal, and vaginal sex “over the course of up to ten incidents” and that 

he was not sure exactly how many incidents had occurred. Id. at 32. She 

explained that “some of the instruments determine based upon how many 

victims and some of them are how many times they’ve been arrested” and 

“[b]ut when you’ve been arrested one time, that counts as one incident” and 

answered affirmatively when asked “[s]o you’re looking at arrest or convictions

– particularly arrests, but it doesn’t matter if that arrest included ten or one 

incident.” Id. at 32-33. She indicated that, “strangely, if . . . the victim’s related 

to you, . . . it doesn’t factor in as much as if it’s an unrelated victim, which 

doesn’t make sense to anyone, but it’s just how it is.” Id. at 33-34. 
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[8] She testified that Cowling mentioned possessing child pornography and that 

“[i]t doesn’t really ask about child pornography on these risk assessment 

measures, probably because most of them are using pornography of some sort.” 

Id. at 35. She indicated that she diagnosed him with pedophilia and adjustment 

disorder with depressed mood. When examined by the court, she testified that

the pedophilia diagnosis was concerning because “he may have a hard time 

modifying that interest,” answered in the negative when asked if she was aware 

that police reports filed by the State “indicated that they located approximately 

500 images of child exploitation materials on his computer,” and stated “[b]ut it 

wouldn’t . . . surprise [her].” Id. at 39, 41. Regarding people downloading 

child pornography, she stated that, “just for the purposes of these evaluations, it 

would be really hard to determine like how many each person has downloaded 

over the course of time,” the court asked, “but isn’t it something you’d want to 

know,” and she answered affirmatively and stated: “It’s just not something that 

necessarily translates to a number of or a risk assessment of reoffending. Now 

if we were to say, is he very likely to get back into child pornography and 

viewing child pornography? Yes. The answer would probably be yes.” Id. at 

42. She further explained there is a wide variability of different types of sex 

offenders, that “in his case . . . he is probably high risk to reengage in child 

pornography,” and that “then it’s like is he likely to reoffend with children 

specifically? And for that he’s at low risk technically because he’s had one 

human victim.” Id. at 43. 
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[9] In closing argument, his counsel argued that Cowling, “as the PSI showed, had 

[] what would be considered a distinguished military career.” Id. at 47. The 

court stated it had read through the entire file before discussing several 

mitigating and aggravating circumstances, accepting his guilty plea, finding that 

he was guilty of one count of child molesting as a level 1 felony, and sentencing 

him to forty years, with thirty-five years executed and five years suspended on 

supervised probation. The court indicated that it had considered the argument 

about the low risk to reoffend and stated:

I appreciate the doctor’s testimony. But while I appreciate the 

testimony, I also find that it’s not completely persuasive to the 

Court given, number one, the rationalization that the doctor 

indicated that [Cowling] engages in; given the diagnosis of 

pedophilia, which concerns the Court; given the fact that the 

doctor did also indicate that he’s highly likely to reoffend with 

regard to child pornography, that he’s a high risk to reoffend on 

that; and that testing did indicate that he’s attracted to children. 

So those factors weigh into my consideration about giving the 

weight to the argument that he is low risk to reoffend. So I 

wanted to make sure the record was clear on that.

The other thing I wanted to also mention is that – I think it was 

mentioned in the argument about he’s a veteran and that he has 

military service. While I typically like to give some recognition 

of that and thank the individuals for their service as a veteran, I 

have to say, sir, your acts here dishonored that word veteran. 

You dishonored it in the most vile way, and so the Court does 

not give a lot of weight to your service given the egregious nature 

of the acts here.

Id. at 68. 
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[10] On February 27, 2019, the court issued its sentencing order, which indicated 

that it considered the PSI and found as aggravating factors:

the victim was in the care, custody and control of [Cowling] (she 

was his daughter); the molestations occurred up to 10 different 

times; the serious nature of acts committed upon the child; 

[Cowling] attempted to avoid detection by telling the child to not 

tell anyone; deleting evidence from his computer; [Cowling’s] 

expert witness testified that he was highly likely to reoffend 

regarding child exploitation and/or child pornography; and the 

impact the offense has had on the victim and her family are more 

than what would be expected to prove the elements of the crime.

Appellant’s Appendix Volume II at 72. (71) The court found that the 

aggravating factors outweighed the mitigating factors, which it found as:

[Cowling] pled guilty (diminished by the benefits he received 

from the plea agreement); he has no prior criminal convictions 

(diminished by prior uncharged acts of molestation and 

possession of child pornography); and he expressed remorse 

today (diminished by the fact that he failed to express remorse 

prior to sentencing hearing and [Cowling’s] expert witness 

testified that he lacks empathy for the victim).

Id. 

Discussion

[11] The issue is whether the trial court abused its discretion in sentencing Cowling. 

We review the sentence 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. An abuse of 

discretion occurs if the decision is “clearly against the logic and effect of the 
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facts and circumstances before the court, or the reasonable, probable, and actual 

deductions to be drawn therefrom.” Id. A trial court abuses its discretion if it: 

(1) fails “to enter a sentencing statement at all;” (2) enters “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;” (3) enters a sentencing statement that “omits reasons that are clearly 

supported by the record and advanced for consideration;” or (4) considers 

reasons that “are improper as a matter of law.” Id. at 490-491. If the trial court 

has abused its discretion, we will remand for resentencing “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 491. 

The relative weight or value assignable to reasons properly found, or those 

which should have been found, is not subject to review for abuse of discretion. 

Id.

[12] Cowling argues the trial court committed three sentencing errors and that the 

“effect of those errors, individually and cumulatively, warrants remand for 

reconsideration.” Appellant’s Brief at 14. First, he argues the court failed to 

recognize his low risk to reoffend as a mitigating circumstance and contends 

that Dr. Kohli’s testimony of the two risk assessment tests constituted 

“substantial uncontroverted evidence of a statutory mitigator.”1

 Id. at 7. 

 

1 Cowling cites Ind. Code § 35-38-1-7.1, which provided at the time that “[t]he court may consider the 

following factors as mitigating circumstances or as favoring suspending the sentence and imposing probation:

. . . (2) The crime was the result of circumstances unlikely to recur. . . . (8) The character and attitudes of the 
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Second, in pointing to the court’s comments about his military service during 

sentencing, he contends that its refusal to give mitigating weight to his service 

has no basis in the factual record or connection to the nature of his service and 

argues that there is no reasonable basis to deny a mitigator to sex offenders 

while granting it to other classes of offenders. Third, in pointing to Dr. Kohli’s 

testimony and the court’s identified aggravating circumstance that he was 

highly likely to reoffend regarding child exploitation and/or child pornography, 

Cowling contends that the court “cherry-pick[ed] one unsupported statement” 

to his detriment after having found her testimony not completely persuasive and 

she testified that there was not a “risk assessment measure for child 

pornography recidivism yet.” Id. at 13-14. 

[13] The State maintains that the court was not required to give any mitigating 

weight to Dr. Kohli’s testimony or Cowling’s military service and that he 

provides no support for his assertion that the court abused its discretion by 

relying on those portions of witness testimony which it found persuasive while 

disregarding those portions it found unpersuasive. It contends Dr. Kohli’s

testimony and the record do not clearly support her assessment of Cowling’s 

likelihood to reoffend and that, based on her explanation of the psychological 

assessment measures, “someone could have molested one child thousands of 

times and still be considered a low risk to reoffend.” Appellee’s Brief at 10. 

 

person indicate that the person is unlikely to commit another crime.” (Subsequently amended by Pub. L. 

No. 5-2019, § 1 (eff. July 1, 2019). 
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[14] Determining mitigating circumstances is within the discretion of the trial court. 

Rogers v. State, 878 N.E.2d 269, 272 (Ind. Ct. App. 2007), trans. denied. The 

court is not obligated to accept the defendant’s argument as to what constitutes 

a mitigating factor, and the court is not required to give the same weight to 

proffered mitigating factors as does a defendant. Id. “A court does not err in 

failing to find mitigation when a mitigation claim is highly disputable in nature, 

weight, or significance.” Guzman v. State, 985 N.E.2d 1125, 1133 (Ind. Ct. App. 

2013) (quoting Henderson v. State, 769 N.E.2d 172, 179 (Ind. 2002) (internal 

quotations omitted)). An allegation that the trial court failed to identify or find 

a mitigating factor requires the defendant to establish that the mitigating 

evidence is both significant and clearly supported by the record. Anglemyer, 868 

N.E.2d at 493. If the court does not find the existence of a mitigating factor 

after it has been argued by counsel, it is not obligated to explain why it has 

found that the factor does not exist. Id.

[15] Further, a single aggravating circumstance may be sufficient to enhance a 

sentence. See Hackett v. State, 716 N.E.2d 1273, 1278 (Ind. 1999) (citing 

Angleton v. State, 714 N.E.2d 156, 160 (Ind. 1999)). “Generally, the nature and 

circumstances of a crime is a proper aggravating circumstance.” Gomillia v. 

State, 13 N.E.3d 846, 853 (Ind. 2014) (citing McCann v. State, 749 N.E.2d 1116, 

1120 (Ind. 2001)). When a trial court improperly applies an aggravator but 

other valid aggravating circumstances exist, a sentence enhancement may still 

be upheld. Hackett, 716 N.E.2d at 1278 (citing Shields v. State, 699 N.E.2d 636, 

639 (Ind. 1998)).
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[16] Here, the trial court considered Dr. Kohli’s testimony, which it found not 

completely persuasive, and Cowling’s military service as provided in the PSI. 

While Dr. Kohli testified that Cowling was measured as a low risk to reoffend 

on the two sex offender risk assessment measures, the court also heard her 

testimony that the result was primarily due to his lack of history of acting out 

sexually in the past, that he reported he had engaged K.C. in up to ten sexual 

incidents, some instruments assess based upon the number of victims while 

others assess based upon the number of times that the perpetrator had been 

arrested and that it does not matter if the arrest involved a single or multiple 

incidents, and that “strangely, if . . . the victim’s related to you, . . . it doesn’t 

factor in as much as if it’s an unrelated victim.” Transcript Volume II at 33. 

With respect to his military service, we observe that service to our country is a 

commendable act, but military service is not necessarily a mitigating 

circumstance. See Harman v. State, 4 N.E.3d 209, 218 (Ind. Ct. App. 2014) 

(observing that the State pointed out during the sentencing hearing that the 

defendant’s actions were the actions “of a monster and not of a Marine,” and 

holding that the trial court did not abuse its discretion by not finding the 

defendant’s military service to be a mitigating circumstance), trans. denied. To 

the extent he argues that his character or attitude indicates that he is unlikely to 

commit another crime, we note that the court found that he expressed remorse 

as a mitigating factor “diminished by the fact that he failed to express remorse 

prior to sentencing hearing and [Cowling’s] expert witness testified that he lacks

empathy for the victim.” Appellant’s Appendix Volume II at 72. We cannot 

say that Cowling has established that the mitigating evidence was both 
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significant and clearly supported by the record. Further, based upon the record

and in light of the valid aggravators, we cannot say that the trial court abused

its discretion in sentencing Cowling.

[17] For the foregoing reasons, we affirm Cowling’s sentence for child molesting as 

a level 1 felony. 

[18] Affirmed. 

Altice, J., and Tavitas, J., concur.