MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                             FILED
this Memorandum Decision shall not be                                       Dec 09 2019, 9:58 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
Holly L. Lyons                                           Curtis T. Hill, Jr.
Brand & Morelock                                         Attorney General of Indiana
Greenfield, Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Ryan Michael Dudley,                                     December 9, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2482
        v.                                               Appeal from the Hancock Circuit
                                                         Court
State of Indiana,                                        The Honorable R. Scott Sirk,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         30C01-1703-F4-620



Barteau, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2482 | December 9, 2019                Page 1 of 24
                                             Statement of the Case
[1]   Ryan Michael Dudley appeals from his convictions after a jury trial of two
                                             1
      counts of child molesting, each as a Level 4 felony, and one count of child
                      2
      molesting, 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).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2482 | December 9, 2019   Page 2 of 24
                               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.
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2482 | December 9, 2019   Page 3 of 24
       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

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2482 | December 9, 2019   Page 4 of 24
       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

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2482 | December 9, 2019   Page 5 of 24
                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
                                                                                                                   3
       abuse, went to the Greenfield Police Department to give a second statement.


[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.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2482 | December 9, 2019                 Page 6 of 24
       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
                  4
       clause. 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.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2482 | December 9, 2019         Page 7 of 24
               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

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2482 | December 9, 2019   Page 8 of 24
               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, to-
               wit: 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



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




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2482 | December 9, 2019   Page 10 of 24
[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
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2482 | December 9, 2019   Page 11 of 24
               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 19 th
               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


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2482 | December 9, 2019   Page 12 of 24
       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

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2482 | December 9, 2019   Page 13 of 24
       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:



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2482 | December 9, 2019   Page 14 of 24
               (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.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2482 | December 9, 2019   Page 15 of 24
       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.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2482 | December 9, 2019   Page 16 of 24
       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.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2482 | December 9, 2019   Page 17 of 24
[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

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




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2482 | December 9, 2019   Page 19 of 24
[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 20 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 21 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.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2482 | December 9, 2019   Page 22 of 24
[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 thirteen-

       year-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.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2482 | December 9, 2019   Page 23 of 24
[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.




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