Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the                          Oct 22 2014, 10:21 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.

ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

JEFFREY D. STONEBRAKER                           GREGORY F. ZOELLER
Clark County Chief Public Defender               Attorney General of Indiana
Jeffersonville, Indiana
                                                 JUSTIN F. ROEBEL
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

BERNARD E. HARRIS,                               )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )       No. 10A01-1404-CR-152
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                      APPEAL FROM THE CLARK CIRCUIT COURT
                         The Honorable Vicki L. Carmichael, Judge
                              Cause No. 10C04-1210-FA-96



                                      October 22, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
          Bernard E. Harris appeals his sentence for two counts of child molesting as class

A felonies. Harris raises one issue which we revise and restate as whether his sentence is

inappropriate in light of the nature of the offense and the character of the offender. We

affirm.

                          FACTS AND PROCEDURAL HISTORY

          On July 4, 2009, Harris, who was born on April 28, 1968, married the mother of

B.C. Harris saw B.C. every other week and sometimes for longer periods. Between

January 1, 2012, and July 1, 2012, Harris forced B.C., who was then twelve years old, to

engage in vaginal sexual intercourse and oral sex. Between July 2, 2012, and September

30, 2012, Harris forced B.C. to engage in vaginal sexual intercourse and anal sexual

intercourse.

          In October 2012, the State charged Harris with three counts of child molesting as

class A felonies and one count of child solicitation as a class D felony. That same month,

the court scheduled a jury trial for March 12, 2013.         On February 2, 2013, Harris

requested a continuance, and the court rescheduled the jury trial for June 18, 2013. On

May 14, 2013, Harris again requested a continuance, and the court rescheduled the jury

trial for October 22, 2013. Harris filed another motion for continuance, and the court

granted the motion and rescheduled the jury trial for February 4, 2014.

          On January 22, 2014, Harris filed a Motion for More Specific Statement or, in the

Alternative, Motion to Dismiss alleging that the information alleged “a date in 2012” and

that this vague statement prevented him from formulating a defense.            Appellant’s

Appendix at 46. On February 3, 2014, Harris withdrew his formerly entered plea of not

                                              2
guilty and entered a plea of guilty to two counts of child molesting as class A felonies.

The same day, the State filed an amended information which included two counts of child

molesting as class A felonies, and the court held a hearing at which Harris pled guilty and

the court took the pleas under advisement.

       On March 3, 2014, the court held a hearing. B.C.’s father read a statement in

which he indicated that Harris had used a digital camera to photograph B.C. and record

video of B.C. in the nude and while performing sex acts, that the detectives searched

Harris’s residence but could not find the memory card, and that B.C.’s mother continued

to search the trailer for weeks afterwards in hopes of locating the card and any other

evidence overlooked by the police but she did not find the memory card. B.C.’s father

stated: “There is still a concern in my mind that these new digital images and videos that

[Harris] recorded of my underage daughter are still out there somewhere, perhaps in

someone’s possession right now or in a hiding place where they may someday be

discovered by another unscrupulous individual.” Transcript at 30-31. He also indicated

that Harris used several grooming techniques against B.C. including attempting to

alienate B.C. from him and his wife, showering B.C. with gifts, becoming verbally

abusive, and taking control emotionally and physically. He testified that Harris used

Bible references and asked B.C. to refer to B.C.’s father by his first name and to refer to

him as “Daddy.” Id. at 32. According to B.C.’s father, Harris made physical threats to

B.C.’s rabbit. He also testified that B.C. has been in weekly counseling since two weeks

after the revelation.



                                             3
         B.C. testified that she was twelve years old when the molestation began, and that

she “had to go on walks into the woods to be forced by [Harris] to go through so much

pain.” Id. at 42. She testified: “You kept threatening me that if I told, or didn’t do what

you wanted me to do, that you would take my phone away, not let me text my friends,

make my mom’s life horrible, and even kill my rabbit; which are all things were [sic]

important to me especially at such a young age.” Id. B.C. testified that Harris “did those

things to [her] so many times, for so long.” Id. She stated that, when she visited her

mother, Harris would take her out on the railroad tracks behind the house where they

would go to a certain area in the woods and he would have her perform intercourse and

oral sex. She also testified that Harris used a razor to shave her pubic area, used a dildo,

and used a camera to take pictures and videos of her. B.C.’s mother testified that Harris

has not shown any remorse for what he did to B.C. Denise Poukish, the probation officer

who prepared the presentence investigation report, testified that she recommended that

Harris receive an aggravated sentence and that the sentences run consecutive to each

other.

         Harris’s counsel stated: “[Harris] is not able address [sic] the child because

obviously that’s inappropriate at this point.” Id. at 62. Harris’s counsel asked that the

court impose the advisory sentence and give consideration to probation. The prosecutor

asked for “a minimal [sic] of thirty years on each one to be run consecutively” and if the

court believed they should be concurrent then “50 years would be an appropriate one for

one count or two counts run concurrently.” Id. at 63. At the end of her argument, the



                                             4
prosecutor stated: “we ask for 50 years on each count to be served consecutively.” Id. at

65.

       The court found that the harm, injury, and loss suffered by the victim was greater

than the elements necessary to prove the commission of the offense, and that Harris was

in a position of trust with B.C. and had demonstrated a lack of remorse. The court stated:

“While the mitigators are that there is no criminal history and there was acceptance of

responsibility by pleading guilty [Harris] has shown no remorse to this Court and the

Court finds that these aggravating factors clearly outweigh the mitigating factors . . . .”

Id. at 66. The court sentenced Harris to fifty years on each count and ordered that the

sentences be served consecutive to each other for an aggregate sentence of 100 years.

                                      DISCUSSION

       The issue is whether Harris’s sentence is inappropriate in light of the nature of the

offense and the character of the offender. Ind. Appellate Rule 7(B) provides that we

“may revise a sentence authorized by statute if, after due consideration of the trial court’s

decision, [we find] that the sentence is inappropriate in light of the nature of the offense

and the character of the offender.” Under this rule, the burden is on the defendant to

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

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

       Harris acknowledges that he was in a position of trust with B.C. and that B.C.

reported he would threaten her, but argues that “[w]hile such threats were disgusting

Harris never physically forced B.C. to submit and/or perform the sexual acts he

acknowledged committing.” Appellant’s Brief at 8. He contends that the conduct does

                                             5
not represent the worst example of said crimes which would merit maximum consecutive

sentences.   He also argues that the nature and circumstances may be sufficiently

aggravating to warrant an enhanced sentence but does not justify the order of maximum

terms served consecutively. He also argues that the guilty plea saved the court the time

and expense of a jury trial and saved B.C. from testifying about the molestation. He

notes that the State chose to file only two counts in the amended information after his

counsel requested the State file a more time specific information given that the original

charging information alleged the offenses occurred on or about a date in 2012.

Accordingly, Harris argues that he pled guilty to both counts contained in the amended

information and that he did not receive a direct benefit from his decision to enter open

pleas as no charges were dismissed in return for his guilty pleas. He points to his

employment history, cooperation during the presentence interview, and lack of criminal

history.

       The State responds that Harris’s sentence is not inappropriate and that “[i]n

exchange for [Harris’s plea], the State filed [an] amended information which removed a

single count of child molesting and the count of child solicitation.” Appellee’s Brief at 6.

The State argues that the crimes were particularly egregious as the evidence shows that

Harris sexually violated B.C. over a long period of time, starting with sexual touching

when she was barely twelve years old, and the offenses occurred bi-weekly from January

1, 2012, to September 30, 2012. The State points to the impact on B.C. and her family,

Harris’s position of trust, his refusal to reveal the location of the videos and photographs

he took of B.C., his threats, and his attempt to alienate B.C. from her father.

                                              6
        Regarding the imposition of the maximum possible sentence, the Indiana Supreme

Court has stated:

        [T]he maximum possible sentences are generally most appropriate for the
        worst offenders. This is not, however, an invitation to determine whether a
        worse offender could be imagined. Despite the nature of any particular
        offense and offender, it will always be possible to identify or hypothesize a
        significantly more despicable scenario. Although maximum sentences are
        ordinarily appropriate for the worst offenders, we refer generally to the
        class of offenses and offenders that warrant the maximum punishment. But
        such class encompasses a considerable variety of offenses and offenders.

Buchanan v. State, 767 N.E.2d 967, 973 (Ind. 2002) (citations and quotation marks

omitted).

        Our review of the nature of the offense reveals that Harris was in a position of

trust and forced B.C., who was twelve years old, to have vaginal sexual intercourse, oral

sex, and anal sexual intercourse with him. Harris took B.C. into the woods to have her

perform intercourse and oral sex, and the conduct occurred bi-weekly for a period of nine

months. Harris used a razor to shave B.C.’s pubic area, used a dildo, and took pictures

and videos of her. He threatened that he would make the life of B.C.’s mother horrible

and would kill her rabbit if she did not do what he wanted or if she told anyone. While

the two counts of child molesting involved the same child, they did not involve identical

acts.1 B.C. has been in weekly counseling since two weeks after the revelation.

        Our review of the character of the offender reveals that Harris pled guilty but only

after multiple requests for continuances and on the day before the scheduled jury trial.

        1
         Count I alleged that Harris “did with B.C. . . . perform or submit to deviate sexual conduct and
sexual intercourse, to-wit: forced vaginal sexual intercourse and oral deviate sexual conduct.”
Appellant’s Appendix at 50. Count II alleged that Harris “did with B.C. . . . perform or submit to deviate
sexual conduct and sexual intercourse, to-wit: forced vaginal sexual intercourse and anal deviate sexual
conduct.” Id.
                                                    7
The record reveals that the State initially charged Harris with three counts of child

molesting as class A felonies and one count of child solicitation as a class D felony, and

the State later amended the information to two counts of child molesting to which Harris

pled guilty. He does not have a criminal history.

       Harris has one child who is fourteen years old. The presentence investigation

report (“PSI”) indicates that Harris reported that he pays child support but does not see

his son regularly and has seen him only five to six times in his life. The PSI also states

that Harris reported that he was employed as a janitor at the time of his arrest. According

to the results of the Indiana Risk Assessment System (“IRAS”), the PSI reports that

Harris’s overall risk assessment score placed him in the low risk to reoffend category.

However, Poukish, the probation officer who prepared the PSI, testified that the IRAS

does not measure sexual recidivism. She also testified that Harris is in the low category

for criminal recidivism to commit another criminal offense but that does not include

another sex offense.

       After due consideration of the trial court’s decision and in light of the repeated

offenses and the position of trust held by Harris, we conclude that the sentence imposed

by the trial court is not inappropriate in light of the nature of the offense and the character

of the offender.

                                       CONCLUSION

       For the foregoing reasons, we affirm the sentence imposed by the trial court.

       Affirmed.

BARNES, J., and BRADFORD, J., concur.

                                              8
