MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                      Feb 17 2020, 10:25 am
regarded as precedent or cited before any
                                                                                CLERK
court except for the purpose of establishing                                Indiana Supreme Court
                                                                               Court of Appeals
the defense of res judicata, collateral                                          and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Brian Woodward                                        Curtis T. Hill, Jr.
Appellate Public Defender                                Attorney General of Indiana
Crown Point, Indiana                                     Angela N. Sanchez
                                                         Assistant Section Chief, Criminal
                                                         Appeals
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Major Loren Wilson,                                      February 17, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1605
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Diane Ross
Appellee-Plaintiff.                                      Boswell, Judge
                                                         Trial Court Cause No.
                                                         45G03-1403-FA-10



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1605 | February 17, 2020                   Page 1 of 19
[1]   Major Loren Wilson appeals his convictions and sentence for two counts of

      criminal deviate conduct as class B felonies, burglary as a class B felony, and

      criminal confinement as a class D felony. He raises five issues which we restate

      as:


        I.    Whether the trial court abused its discretion by admitting certain
              evidence;

       II.    Whether the court abused its discretion in denying his motion for
              mistrial;

      III.    Whether the evidence was sufficient to sustain his conviction for
              burglary;

      IV.     Whether his convictions for criminal deviate conduct violate the
              prohibition against double jeopardy; and

       V.     Whether the court abused its discretion in sentencing him.


      We affirm.


                                      Facts and Procedural History

[2]   In 2014, Phyllis Harris lived in an apartment in East Chicago, Indiana, with her

      twenty-five-year-old daughter, T.R. At some point, Wilson became a new

      resident in the apartment directly below Harris’s apartment. When he first

      moved in, he knocked on Harris’s door and asked if he could “hook his

      electricity up to [theirs] because his wasn’t on yet.” Transcript Volume III at

      18. Wilson would often come up to Harris’s apartment bringing Valentine

      cards, videos, and “things like that.” Id. at 19. T.R. had friendly and

      neighborly interaction with Wilson, and Harris considered him to be a friend.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1605 | February 17, 2020   Page 2 of 19
[3]   On March 4, 2014, Harris left for work at 1:00 a.m., closed the door, and

      locked it. T.R. was in her bedroom watching TV and realized she was not

      alone when the door to her room creaked open. A man wearing a black ski

      mask and latex gloves stepped into the room. He told her to lie on her back,

      and she complied. He also told her to “turn the TV off so it could be pitch

      black.” Id. at 64. She turned off the TV and looked at her cell phone, and the

      man “slammed it.” Id. at 65. He told her to remove her clothes, and she did

      so. He told her to flip over, and she complied. He removed his glove and

      placed two fingers in her vagina. He asked her if she wanted him to perform

      oral sex, and “of course [she] said ‘Yes’ because – you know, for survival.” Id.

      at 68. He removed the mask covering his mouth and put his tongue in her

      vagina. T.R. knew the man was Wilson because she recognized his voice. He

      said, “The next time won’t be so lucky.” Id. at 71. He made her follow him to

      the bathroom and told her to wash her private area, and she did so. He asked

      her if she wanted him to stay, and she replied, “No.” Id. at 72. Wilson left, and

      T.R. heard him walk down the creaky stairs back to his apartment.


[4]   T.R. did not call the police because she was afraid Wilson would come back

      and know that she called the police and also because she “couldn’t have [her]

      phone because it was behind the bed, so [she] didn’t have access to it.” Id. at

      73. Later that morning, Wilson came to her door, T.R. opened it and was

      shocked to see him, and he gave her a note and told her “not to tell anybody.”

      Id. at 74. The note read: “[T.], As I said, don’t say anything to anyone, not




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1605 | February 17, 2020   Page 3 of 19
      even your mother.” State’s Exhibit 11. Wilson left, and she closed and locked

      the door.


[5]   Harris returned home around 10:30 a.m., saw Wilson and his dog outside,

      made small talk with him, went into her apartment, and found T.R. who looked

      like she was about to cry. T.R. told Harris what had happened. Harris walked

      over to the window, saw Wilson, and told him she knew what he did and she

      was going to call the police. Wilson went up to her apartment and asked “how

      does she know it was me?” Id. at 25. Harris called 911.


[6]   East Chicago Police Officer Garrick Manley responded to the scene and spoke

      to Harris who seemed to be “pretty upset.” Id. at 105. When he approached

      T.R., she was crying and shaking non-stop. He waited a few minutes and, once

      T.R. calmed down, she told him she was assaulted by Wilson who resided in

      the apartment below her.


[7]   The police discovered a box of latex gloves, a used pair of latex gloves on a

      nightstand, notebook paper, and a ski mask in Wilson’s apartment. At some

      point, Wilson provided a handwriting exemplar. Courtney Baird, a forensic

      document unit supervisor employed by the Indiana State Police Laboratory

      Division, compared the exemplar against the note and concluded that it was

      probable that Wilson wrote the note to T.R.


[8]   On March 6, 2014, the State charged Wilson with Count I, criminal deviate

      conduct as a class A felony; Count II, criminal deviate conduct as a class B

      felony; Count III, criminal deviate conduct as a class B felony; Count IV,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1605 | February 17, 2020   Page 4 of 19
       criminal confinement as a class B felony; Count V, burglary as a class B felony;

       Count VI, burglary while armed with a deadly weapon as a class B felony;

       Count VII, battery by means of a deadly weapon as a class C felony; Count

       VIII, sexual battery as a class C felony; Count IX, sexual battery as a class D

       felony; and Count X, criminal confinement as a class D felony. 1 The State later

       amended the information to add the allegation that he was an habitual offender.


[9]    In May 2019, the court held a retrial. 2 T.R. testified and identified Wilson as

       the person who entered her apartment. She also testified that Wilson had a

       knife when he entered her bedroom, placed the knife to her throat, and later

       dragged it across her body.


[10]   Harris testified that she returned home, talked to Wilson, went into her

       apartment, and found T.R. who looked like she was about to cry. The

       prosecutor asked: “And without telling us exactly what she said, why was she

       about to cry?” Transcript Volume III at 24. Harris answered: “Something

       happened.” Id. Wilson’s counsel objected on the basis of hearsay. The




       1
           Counts I, IV, VI, VII, and VIII referred to a knife.
       2
        A jury initially found Wilson guilty as charged, and Wilson admitted to being an habitual offender. The
       court vacated the convictions for Counts II, III, IV, V, VII, VIII, IX, and X. On appeal, Wilson argued the
       State did not present sufficient evidence to support his conviction for burglary as a class B felony. Wilson v.
       State, No. 45A03-1412-CR-425, slip op. at 2 (Ind. Ct. App. August 11, 2015), trans. denied. This Court
       affirmed. Id. In August 2016, Wilson filed a petition for post-conviction relief. On appeal, this Court held
       that Wilson received ineffective assistance of appellate counsel and reversed and remanded for further
       proceedings. Wilson v. State, 94 N.E.3d 312, 315 (Ind. Ct. App. 2018). Specifically, the Court found the
       performance of Wilson’s appellate counsel was deficient by not raising the issue of whether Wilson
       knowingly, voluntarily, and intelligently waived his right to counsel. Id. at 321-323.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1605 | February 17, 2020                    Page 5 of 19
       prosecutor stated: “Judge, the effect on the listener is an exception to hearsay,

       and Ms. Harris takes certain actions subsequent that are important for

       describing this case to the jury, namely, a 911 call and her future interactions

       with the defendant.” Id. The court overruled the objection. She testified she

       learned that Wilson attacked T.R. in the apartment. When she stated she told

       Wilson that T.R. told her what happened, Wilson’s counsel objected on the

       basis of hearsay, and the court sustained the objection.


[11]   Officer Manley testified that T.R. was crying and shaking non-stop, he waited a

       few minutes to allow her to calm down before asking what happened, and,

       “[o]nce she calmed down,” she said she was assaulted by Wilson. Id. at 108.

       Wilson’s counsel objected on the basis of hearsay. The prosecutor indicated

       that a foundation had been laid for an excited utterance, and the court

       overruled the objection.


[12]   During the direct examination of Jerry Lewis, a crime scene investigator with

       the East Chicago Police, the prosecutor asked about the contact he had with

       Wilson, and Lewis stated: “I was by Detective Velez. We received a phone call

       in regards to me being requested to come down to Lake County Jail facilities to

       take a buccal swab, and a buccal swab would have been me actually taking a

       DNA sample.” Id. at 183. Defense counsel objected, moved for a mistrial, and

       argued the jury became aware that Wilson was at the Lake County Jail. After

       some discussion, the court stated that Lewis’s testimony did not indicate when

       he was at the Lake County Jail and the testimony was not so prejudicial as to



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1605 | February 17, 2020   Page 6 of 19
       warrant a mistrial. Defense counsel asked for a curative instruction, and the

       court told the jury to disregard Lewis’s last statement.


[13]   Kimberly Anderson, a forensic scientist in the Biology Unit at the Indiana State

       Police Lowell Regional Lab, testified that her initial test revealed a piece of

       toilet paper found inside the underwear in the evidence collection kit contained

       a major DNA profile consistent with T.R. and a minor DNA profile consistent

       with Wilson’s DNA and “[a]ssuming the minor result originated from a single

       individual, the alleles detected [were] consistent with Major Wilson and [were]

       estimated to occur once in 76 million unrelated individuals.” 3 Transcript

       Volume IV at 165-166. She testified that she analyzed the toilet paper again in

       2018 and concluded “[t]he DNA profile obtained from the previously extracted

       sample of the toilet paper was interpreted as originating from two individuals,”

       “[t]he DNA profiled is 14 million times more likely if it originated from [T.R.]

       and Major Wilson than if it originated from [T.R.] and an unknown, unrelated

       individual,” and “[t]his analysis provides very strong support for the

       proposition that Major Wilson is a contributor to the DNA profile.” Id. at 172.


[14]   After the State rested, Wilson’s counsel moved for judgment of acquittal, and

       the court denied the motion. The jury found Wilson guilty of Count II,

       criminal deviate conduct as a class B felony, Count III, criminal deviate




       3
         When asked to explain the difference between a major profile and a minor profile, Anderson stated that in a
       sample in which two individuals contribute unequal amounts of DNA to the sample, the one that is
       contributing more is considered the major, and the one that is contributing less is the minor.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1605 | February 17, 2020                Page 7 of 19
       conduct as a class B felony, Count V, burglary as a class B felony, Count IX,

       sexual battery as a class D felony, and Count X, criminal confinement as a class

       D felony, and not guilty of the remaining counts. Wilson pled guilty to being

       an habitual offender.


[15]   The court vacated Wilson’s conviction for Count IX, sexual battery as a class D

       felony, which it found merged with Count III. The court found Wilson’s prior

       criminal history, his likelihood of committing a similar crime, the nature and

       circumstances of the crime, and his position of trust with the victim’s family as

       aggravating circumstances. The court stated: “Mr. Wilson was – while not a

       caretaker or a person of any responsibility for this young lady, he was a friend

       of the family and trusted by the family . . . .” Sentencing Transcript at 26-27.

       The court sentenced him to twenty years for Count II enhanced by twenty-five

       years for his status as an habitual offender, twenty years for Count III, twenty

       years for Count V, and two and one-half years for Count X. The court ordered

       the sentences be served consecutively for an aggregate sentence of 87.5 years.


                                                    Discussion

                                                          I.


[16]   The first issue is whether the trial court abused its discretion by admitting

       Officer Manley’s testimony that T.R. stated she was assaulted by Wilson and

       Harris’s testimony regarding T.R.’s statements. Wilson argues that T.R.’s

       statements to Officer Manley did not qualify as an excited utterance. He

       appears to contend that the admission of Harris’s testimony regarding T.R.’s


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1605 | February 17, 2020   Page 8 of 19
       statements was admitted based upon the effect on the listener, the effect upon

       Harris was irrelevant to the charges faced by him, the effect upon her failed to

       meet the basic test of relevancy, and Harris’s testimony unduly prejudiced him.


[17]   The trial court has broad discretion to rule on the admissibility of evidence.

       Bradley v. State, 54 N.E.3d 996, 999 (Ind. 2016). A trial court’s ruling on the

       admission of evidence is generally accorded a great deal of deference on appeal.

       Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015), reh’g denied. We will not reverse

       an error in the admission of evidence if the error was harmless. Turner v. State,

       953 N.E.2d 1039, 1058 (Ind. 2011). In determining the effect of the evidentiary

       ruling on a defendant’s substantial rights, we look to the probable effect on the

       fact finder. Id. at 1059. An improper admission is harmless if the conviction is

       supported by substantial independent evidence of guilt satisfying the reviewing

       court that there is no substantial likelihood the challenged evidence contributed

       to the conviction. Id.


[18]   Even if the admission of the challenged testimony was improper, the admission

       of the statements was cumulative of T.R.’s testimony and harmless. See

       Davenport v. State, 749 N.E.2d 1144, 1149 (Ind. 2001) (holding that even if

       admission of testimony under the excited utterance exception was erroneous,

       the admission was cumulative and harmless), reh’g denied.


                                                         II.


[19]   The next issue is whether the trial court abused its discretion in denying

       Wilson’s motion for mistrial. Wilson argues that Lewis’s testimony regarding

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1605 | February 17, 2020   Page 9 of 19
       taking a buccal swab at the Lake County Jail facilities impaired his presumption

       of innocence and resulted in unfair prejudice.


[20]   “[A] mistrial is an extreme remedy that is only justified when other remedial

       measures are insufficient to rectify the situation.” Isom v. State, 31 N.E.3d 469,

       481 (Ind. 2015) (quoting Mickens v. State, 742 N.E.2d 927, 929 (Ind. 2001)), reh’g

       denied, cert. denied, 136 S. Ct. 1161 (2016). The Indiana Supreme Court has

       explained:


               A trial court is in the best position to evaluate whether a mistrial
               is warranted because it can assess first-hand all relevant facts and
               circumstances and their impact on the jury. We therefore review
               denial of a motion for mistrial only for abuse of discretion.
               However, the correct legal standard for a mistrial is a pure
               question of law, which we review de novo.


       Ramirez v. State, 7 N.E.3d 933, 935 (Ind. 2014) (citations omitted).


[21]   The record reveals that, when asked to describe the nature of his contact with

       Wilson, Lewis testified: “I was by Detective Velez. We received a phone call in

       regards to me being requested to come down to Lake County Jail facilities to

       take a buccal swab, and a buccal swab would have been me actually taking a

       DNA sample.” Transcript Volume III at 183. After some discussion, the trial

       court stated that Lewis’s testimony did not indicate when Wilson was at the

       Lake County Jail and did not imply that Wilson was still in custody. Further,

       the court told the jury to disregard Lewis’s last statement. We cannot say the

       trial court abused its discretion when it denied Wilson’s motion for mistrial. See

       Jackson v. State, 518 N.E.2d 787, 789 (Ind. 1988) (acknowledging that,
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1605 | February 17, 2020   Page 10 of 19
       generally, the admission of evidence of prior criminal history is error; observing

       that the reference was fragmentary and inadvertent and there was no attempt by

       the prosecutor to elicit the information; and holding the evidence was not so

       close that the jury could have been influenced by the error and the trial court

       properly denied the motions for mistrial).


                                                        III.


[22]   The next issue is whether the evidence is sufficient to sustain Wilson’s

       conviction for burglary. Wilson argues there was no evidence which would

       permit the jury to infer that a breaking occurred and asserts the investigating

       officers noted there was old damage to the door but no sign of forced entry.


[23]   When reviewing claims of insufficiency of the evidence, we do not reweigh the

       evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816,

       817 (Ind. 1995), reh’g denied. We look to the evidence and the reasonable

       inferences therefrom that support the verdict. Id. The conviction will be

       affirmed if there exists evidence of probative value from which a reasonable jury

       could find the defendant guilty beyond a reasonable doubt. Id.


[24]   At the time of the offense, Ind. Code § 35-43-2-1 provided that a person who

       breaks and enters the building or structure of another person, with intent to

       commit a felony in it, commits burglary and that the offense is a class B felony

       if it is committed while armed with a deadly weapon; or the building or

       structure is a dwelling or structure used for religious worship. “Using even the

       slightest force to gain unauthorized entry satisfies the breaking element of the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1605 | February 17, 2020   Page 11 of 19
       crime.” Davis v. State, 770 N.E.2d 319, 322 (Ind. 2002), reh’g denied. “For

       example, opening an unlocked door or pushing a door that is slightly ajar

       constitutes a breaking.” Id.


[25]   Harris testified that she closed the door behind her and locked it when she left

       for work. On cross-examination, she indicated she did not notice anything

       strange about her door but when asked if it looked like the door had been

       tampered with, she answered “[a] little.” Transcript Volume III at 39. T.R.

       testified that, after Harris left, she realized she was not alone and she did not let

       the person into the apartment. She later indicated she did not open the door for

       anyone or unlock the door.


[26]   To the extent Wilson requests that we judge the credibility of the witnesses and

       reweigh evidence, we will not do so. See Jordan, 656 N.E.2d at 817. Based

       upon the record, we conclude the State presented evidence of probative value

       from which the jury could have found Wilson guilty beyond a reasonable doubt

       of burglary as a class B felony. See Cockerham v. State, 246 Ind. 303, 307-308,

       204 N.E.2d 654, 657 (1965) (“The jury, from the facts here, could reasonably

       conclude from the evidence that no one could enter the home with the windows

       and doors locked and closed without opening such doors or windows. This

       would constitute a ‘breaking’ even though there be no physical marks showing

       that force was used. As a matter of logic, no one could conclude otherwise than

       that a door or window had to be pushed open to get inside the house.”).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1605 | February 17, 2020   Page 12 of 19
                                                         IV.


[27]   The next issue is whether Wilson’s convictions for criminal deviate conduct

       violate the prohibition against double jeopardy. The Indiana Constitution

       provides that “[n]o person shall be put in jeopardy twice for the same offense.”

       Ind. Const. art. 1, § 14. The Indiana Supreme Court has held 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.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999).


[28]   Wilson admits there were two separate acts which may have satisfied the

       elements of criminal deviate conduct but asserts the State did not elect which

       acts it was relying upon to prove criminal deviate conduct in each of the

       respective counts.


[29]   Under the actual evidence test, the evidence presented at trial is examined to

       determine whether each challenged offense was established by separate and

       distinct facts. Lee v. State, 892 N.E.2d 1231, 1234 (Ind. 2008). To show that

       two challenged offenses constitute the “same offense” in a claim of double

       jeopardy, a defendant must demonstrate a reasonable possibility that the

       evidentiary facts used by the fact finder to establish the essential elements of one

       offense may also have been used to establish the essential elements of a second

       challenged offense. Id. The Indiana Supreme Court has determined the


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1605 | February 17, 2020   Page 13 of 19
       possibility to be remote and speculative and therefore not reasonable when

       finding no sufficiently substantial likelihood that the jury used the same

       evidentiary facts to establish the essential elements of two offenses. Hopkins v.

       State, 759 N.E.2d 633, 640 (Ind. 2001) (citing Long v. State, 743 N.E.2d 253, 261

       (Ind. 2001), reh’g denied; Redman v. State, 743 N.E.2d 263, 268 (Ind. 2001)).

       “[U]nder the . . . actual evidence test, the Indiana Double Jeopardy Clause is

       not violated when the evidentiary facts establishing the essential elements of

       one offense also establish only one or even several, but not all, of the essential

       elements of a second offense.” Spivey v. State, 761 N.E.2d 831, 832-833 (Ind.

       2002).


[30]   During closing argument, the prosecutor stated: “[T.R.] told you two forms of

       sexually deviate conduct. Now what those are is that he performed oral sex on

       her. That’s the first one, meaning that he used his tongue to penetrate her

       vagina. The second form is using his fingers.” Transcript Volume V at 29-30.

       She later stated:


                Let’s go to Counts II and III. Exact same thing we talked about
                but you don’t need a knife anymore. So this one does not require
                – or, I’m sorry, this one doesn’t require the same as the other
                one. You’re taking some things out. Same thing: Digital
                penetration, oral penetration.


       Id. at 30-31. During rebuttal, she asserted: “[Wilson’s] DNA happened to be in

       her vagina and her underwear after she said that he performed oral sex on her

       and vaginally penetrated her . . . .” Id. at 63.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1605 | February 17, 2020   Page 14 of 19
[31]   Based upon the evidence presented, including only two incidences of criminal

       deviate conduct, the jury’s finding of guilt on both charges, and the prosecutor’s

       statements during closing argument, we find no sufficient substantial likelihood,

       and thus no reasonable possibility, that the trier of fact based its determination

       of guilt on the same evidentiary facts to establish the essential elements of two

       offenses.


                                                         V.


[32]   The next issue is whether the trial court abused its discretion in sentencing

       Wilson. Wilson argues the trial court’s determination that he violated a

       position of trust was erroneous as a matter of law because there was no

       evidence he abused any trust. He contends the court did not offer an

       explanation that the nature and circumstances went beyond the statutory

       requirements, using his likelihood to reoffend as a separate aggravator was

       error, and the court did not engage in any evaluative process as to why his prior

       criminal history would warrant an aggravated sentence.


[33]   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

       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


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1605 | February 17, 2020   Page 15 of 19
       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. We will examine both the written sentencing order and the trial court’s

       comments at the sentencing hearing to determine whether the trial court

       adequately explained the reasons for the sentence. Powell v. State, 751 N.E.2d

       311, 315 (Ind. Ct. App. 2001). A single aggravator is sufficient to support an

       enhanced sentence. See Trusley v. State, 829 N.E.2d 923, 927 (Ind. 2005).


[34]   When asked to describe her relationship with Wilson, T.R. answered: “It

       wasn’t personal, just neighborly.” Transcript Volume III at 58. When asked if

       she felt like she had to be nice to Wilson, T.R. answered: “No. I was just like

       neighborly saying ‘Hi’ and, you know, being a friend so . . . .” Id. at 59. When

       asked if Wilson ever knocked on her door and she did not answer it, she

       answered: “No, I always answered it because, you know, he was just neighbor,

       so I was being nice.” Id. at 60. On cross-examination, T.R. testified she had

       previously had friendly and neighborly interactions with Wilson. Harris

       testified Wilson brought Valentine cards, videos, and “things like that.” Id. at


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1605 | February 17, 2020   Page 16 of 19
       19. She also testified that Wilson would often come up to her apartment and

       she considered him a friend. The sentencing order states “[t]he defendant was

       in a position of trust with the victim’s family,” Appellant’s Appendix Volume

       III at 139, and the court explained at the sentencing hearing: “Mr. Wilson was

       – while not a caretaker or a person of any responsibility for this young lady, he

       was a friend of the family and trusted by the family . . . .” Sentencing

       Transcript at 26-27. We cannot say that the court abused its discretion with

       respect to this aggravator. 4


[35]   With respect to his criminal history, the presentence investigation report

       (“PSI”) reveals that Wilson was charged with breaking and entering with intent

       to commit petty larceny in Florida in 1969, 5 pled guilty to burglary as a felony

       in 1971, pled guilty to rape and two counts of burglary as felonies under three

       separate cause numbers in 1973, committed parole violations in 1981, was

       convicted of burglary as a felony in 1981, pled guilty to residential burglary as a

       felony in 1988, pled guilty to burglary as a felony in 1992, pled guilty to

       conversion as a misdemeanor in 2003, and was convicted of burglary as a

       felony in 2003. Wilson was on parole at the time he committed the current




       4
         In addition to the court’s finding that Wilson was a friend of the family and trusted by the family, the court
       also found the nature and circumstances of the crimes as an aggravator. As mentioned above, a single
       aggravator is sufficient to support an enhanced sentence. See Trusley, 829 N.E.2d at 927.
       5
           The PSI does not reveal a disposition.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1605 | February 17, 2020                  Page 17 of 19
       offenses. We cannot say the court abused its discretion by finding his criminal

       history as an aggravator.


[36]   As for the likelihood to reoffend, the Indiana Supreme Court has held that,

       absent a jury determination or an admission by the defendant, a judicial

       conclusion that a defendant is likely to reoffend cannot serve as an aggravating

       circumstance separate from the defendant’s prior convictions. Williams v. State,

       838 N.E.2d 1019, 1021 (Ind. 2005). Rather, such a statement is more properly

       characterized as a legitimate observation about the weight to be given to the

       prior convictions aggravator. Id. Williams, however, was based upon the

       presumptive sentencing scheme, not the advisory scheme applicable in this

       case, so there is some question as to whether it still applies. See McMahon v.

       State, 856 N.E.2d 743, 751 n.8 (Ind. Ct. App. 2006) (observing that, although

       criminal history and fact of unsuccessful attempts at rehabilitation could not be

       used as separate aggravators under presumptive sentencing scheme, claim of

       error on this ground is not available to defendants sentenced under advisory

       sentencing scheme). Even assuming the court might have abused its discretion

       by treating Wilson’s likelihood to reoffend as a separate aggravating

       circumstance, it is unnecessary to remand for resentencing because we are

       convinced the trial court would have imposed the same sentence even without

       this aggravator. See Edrington v. State, 909 N.E.2d 1093, 1101 (Ind. Ct. App.

       2009) (observing that it is proper to affirm sentence where an improper

       aggravator is considered, if we have “confidence the trial court would have

       imposed the same sentence” regardless), trans. denied. Wilson’s criminal history


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1605 | February 17, 2020   Page 18 of 19
       consists of eight prior felonies including rape and multiple counts of burglary.

       We find no abuse of discretion in the trial court’s sentencing.


                                                   Conclusion

[37]   For the foregoing reasons, we affirm Wilson’s convictions and sentence.


[38]   Affirmed.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1605 | February 17, 2020   Page 19 of 19
