MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 FILED
court except for the purpose of establishing                         Jun 13 2017, 6:48 am

the defense of res judicata, collateral                                   CLERK
                                                                      Indiana Supreme Court
estoppel, or the law of the case.                                        Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                     Curtis T. Hill, Jr.
Anderson, Indiana                                       Attorney General of Indiana

                                                        Larry D. Allen
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jerry Coop,                                             June 13, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        22A01-1610-CR-2376
        v.                                              Appeal from the Floyd Superior
                                                        Court
State of Indiana,                                       The Honorable Susan L. Orth,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        22D01-1506-F1-1121



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2376 | June 13, 2017          Page 1 of 19
                                       Statement of the Case
[1]   Jerry Coop appeals his four convictions for child molesting, following a jury

      trial, and his ensuing 120-year sentence. Coop raises five issues for our review,

      which we restate as the following four issues:

              1.      Whether the trial court committed fundamental error
                      when it permitted the State to introduce certain testimony
                      and exhibits.


              2.      Whether the prosecutor committed misconduct.


              3.      Whether the trial court abused its discretion when it found
                      an aggravating circumstance during sentencing.


              4.      Whether Coop’s 120-year aggregate sentence is
                      inappropriate in light of the nature of the offenses and his
                      character.


[2]   We affirm Coop’s convictions and sentence.


                                 Facts and Procedural History
[3]   Between February of 2014 and April of 2015, Coop repeatedly molested R.M.

      and H.M., who were friends of Coop’s minor daughter and between the ages of

      ten and twelve at the time. Coop molested the two girls as they stayed

      overnight at his house during sleepovers with Coop’s daughter. Another friend,

      S.G., also frequently stayed the night with the girls.


[4]   S.G. and Coop’s minor son, K.C., observed Coop having intercourse with R.M.

      and H.M. and also engaging the two girls in oral sex. S.G. reported her
      Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2376 | June 13, 2017   Page 2 of 19
      observations to a school counsellor, and all three girls and K.C. thereafter

      underwent forensic interviews. Initially, the children, except S.G., denied the

      accusations. However, K.C. later stated that he saw Coop having intercourse

      with the two girls and performing oral sex on them.


[5]   R.M. and H.M. later also confirmed S.G.’s report. According to R.M., Coop

      would give her a pill before bedtime to help her sleep. However, on more than

      one occasion, she woke up with Coop on top of her, touching her, or “inside of

      [her].” Tr. Vol. 2 at 215. H.M. described similar experiences: shortly before

      bedtime, Coop would give her a pill, which caused her to “black out.” Id. at

      128. Nonetheless, on more than one occasion, H.M. woke up with Coop “on

      top of [her],” touching her, or “inside of [her].” Id. at 130-31.


[6]   Both girls stayed at Coop’s house frequently: R.M. stayed there about three

      weeks each month and had her own closet and bed; H.M. stayed there most

      weekends. Coop would play games with the girls, take them shopping, and buy

      them gifts, which included buying a laptop for R.M. R.M. and H.M. both

      described Coop as “a father figure” to them. Id. at 133, 203.


[7]   R.M. and H.M. submitted to physical examinations. The medical examiner

      observed no physical signs of “acute or chronic trauma” to either girl’s genitals

      but did note that both girls tested positive for Gardnerella Vaginalis, a bacterial

      infection that can be, but is not always, transmitted by sexual means. Tr. Vol. 3

      at 60, 65. Coop submitted to a test for Gardnerella Vaginalis and tested

      negative. However, Gardnerella Vaginalis “is not typically found in males”


      Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2376 | June 13, 2017   Page 3 of 19
      and “[a] negative result does not rule out . . . Gardnerella” in the tested subject.

      Id. at 142.


[8]   The State arrested Coop and charged him with multiple offenses of child

      molesting. Thereafter, Coop waived his Miranda rights and admitted that he

      would sleep with the girls and give them medication prior to bedtime. Coop

      further asserted that one of the girls once “jumped onto his lap . . . and . . .

      straddled him like a stripper.” Id. at 126 (quotation marks omitted). Coop

      further stated that “one of the girls” had entered his room once while he was

      naked and then ran out of the room. Id. He otherwise denied any physical

      involvement with the girls.


[9]   At his ensuing jury trial, S.G., K.C., R.M., and H.M. each testified against

      Coop. The investigating officer, Floyd County Sheriff’s Department Detective

      George Schultz, and the forensic interviewer, Rebecca Sanders, also testified.

      In particular, Sanders testified as follows on direct examination:

              Q.      Were you here today when [R.M. and H.M.] testified?


              A.      No, I wasn’t.


              Q.    Would it surprise you that either one of them has told us
              more?


              A.      Oh, no, not at all.


              Q.      Should we be worried about that?


      Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2376 | June 13, 2017   Page 4 of 19
        A.       . . . I would not be worried at all about that.


        Q.       . . . why?


        A.       . . . [K]ids disclose in stages and it’s just not uncommon
        that it all doesn’t come out the first time they talk. . . .


                                               ***


        Q.      So, the changing stories is not uncommon?


        A.    No, but . . . even changing is not necessarily the word.
        Evolving, . . . fluid. You know, . . . these things develop. It’s not
        necessarily that they change. They . . . evolve.


Id. at 42-43. Following that testimony, on cross-examination Coop’s counsel

questioned Sanders on whether the children might have been told what to say

by their parents and whether Sanders discussed with the children apparent

inconsistencies between their statements to her. After cross-examination, a

juror submitted the following question to Sanders, which she was permitted to

answer without objection:

        Q.    . . . [D]id you ever feel like the kids had talked between
        themselves?


        A.     Well, they told . . . me they talked between themselves in
        regards to [S.G.] talking to them about what she had seen and
        them talking to her about what they remembered happening. . . .
        [S.G.] told [H.M.] what she saw and . . . [H.M.] kind of said, like
        I don’t want to talk about it. . . . [S]o I mean they told me they
        talked to each other. I didn’t get the feeling, if the question is,

Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2376 | June 13, 2017   Page 5 of 19
               did they get together to get their statements straight, absolutely
               not, because . . . they weren’t identical, you know, I mean these
               are kids. Adults have trouble keeping lies straight. They can’t lie
               the same way three times. These are kids so they certainly can’t.
               . . . [A]nd . . . they didn’t come in there and parrot the same
               interview each time they came in, each child was individual. So
               I didn’t get that impression at all.


       Id. at 52-53.


[10]   During closing statements, Coop’s counsel argued that the children were not

       being truthful in their accusations and that he “just want[s] to know the truth

       here.” Id. at 183. In response, the prosecutor stated as follows during his

       rebuttal:


               I think [defense counsel] did a pretty good job. He sort of started
               off with . . . the search for the truth. Remember him saying that,
               as if, well, you know, he’s sort of deciding what the truth is.
               That was an, I’m here to determine whether this is true or not
               true. Um, is that his job? No. His job is to represent his client.
               He’s not here to search for the truth. . . . [T]he Prosecutor has a
               little bit different duty. That’s why I dismissed one of the counts.
               Okay. A little bit of a different job here. So he certainly has to
               advocate for his client and he should, not discounting that. But
               to think that that’s his job is to look for the truth, no, his job is to
               represent his client.


       Id. at 199.


[11]   Thereafter, the jury found Coop guilty of two counts of child molesting, each as

       a Level 1 felony, as charged. The jury also found Coop guilty of child



       Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2376 | June 13, 2017   Page 6 of 19
       molesting, as a Level 4 felony, and child molesting, as a Class C felony,1 which

       were lesser-included offenses to the offenses charged. Following a sentencing

       hearing, the court found the harm to the victims and Coop’s abuse of a position

       of trust to be aggravating circumstances, and the court sentenced Coop to an

       aggregate term of 120 years in the Department of Correction. This appeal

       ensued.


                                        Discussion and Decision
                                  Issue One: Alleged Fundamental Errors

[12]   On appeal, Coop first asserts that the trial court committed fundamental error

       when it permitted the State to introduce certain testimony and exhibits. As he

       did not object to the admission of the testimony in the trial court, we review

       Coop’s arguments for fundamental error. See Halliburton v. State, 1 N.E.3d 670,

       678 (Ind. 2013). The fundamental error exception is “extremely narrow” and

       “applies only when the error constitutes a blatant violation of basic principles,

       the harm or potential for harm is substantial, and the resulting error denies the

       defendant fundamental due process.” Id. (quotation marks omitted). That is,

       the appellant “must now prove fundamental error by showing the alleged

       violation was so prejudicial to his rights as to make a fair trial impossible.”

       Griffith v. State, 59 N.E.3d 947, 957 (Ind. 2016) (quotation marks and brackets




       1
         For this offense, the State alleged that Coop had committed child molesting, as a Class A felony, for his
       molestation of R.M. in February of 2014, which was prior to our criminal code’s change in felony offenses
       from classes to levels.

       Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2376 | June 13, 2017             Page 7 of 19
       omitted). “This exception is available only in egregious circumstances.”

       Halliburton, 1 N.E.3d at 678 (quotation marks omitted).


[13]   Coop argues that Sanders’ testimony on direct examination was impermissible

       vouching testimony because she stated that the jury should “not be worried”

       about changes R.M. and H.M. made to their stories of what happened as time

       passed. See Tr. Vol. 3 at 42. He also argues that Sanders impermissibly

       asserted, in response to a jury question following cross-examination, that the

       children “absolutely [did] not” “get together to get their statements straight.”

       See id. at 52-53. And he avers that the State impermissibly presented “drumbeat

       repetition” of R.M. and H.M.’s accusations through other sources—namely,

       Detective Schultz prior to the testimony of R.M. and H.M., Sanders afterwards,

       and in the admission of two exhibits—to bolster its case. Appellant’s Br. at 26.


[14]   We first consider Sanders’ alleged vouching testimony. Indiana Evidence Rule

       704(b) generally prohibits witnesses from testifying as to whether another

       witness has testified truthfully. However, as the Indiana Supreme Court has

       made clear:


               the subtle distinction between an expert’s testimony that a child
               has or has not been coached versus an expert’s testimony that the
               child did or did not exhibit any “signs or indicators” of coaching
               is insufficient to guard against the dangers that such testimony
               will constitute impermissible vouching . . . . Nevertheless, once a
               child’s credibility is called into question[,] proper expert
               testimony may be appropriate. . . . We thus align ourselves with
               those jurisdictions that permit testimony about the signs of
               coaching and whether a child exhibited such signs or has or has


       Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2376 | June 13, 2017   Page 8 of 19
               not been coached, provided that the defendant has opened the
               door to such testimony.


       Sampson v. State, 38 N.E.3d 985, 991-92 (Ind. 2015) (emphasis removed)

       (quotation marks and footnote omitted).


[15]   We cannot say that the trial court committed fundamental error when it

       permitted Sanders’ testimony. First, Sanders’ testimony on direct examination

       was not vouching testimony. Sanders did not testify, directly or indirectly, as to

       the children’s credibility. Rather, she explained that it is normal child behavior

       to disclose information incrementally and to have a child’s story “develop” as

       her memory becomes more clear through prior disclosures. Tr. Vol. 3 at 42-43.

       This is testimony about child behavior generally and is not testimony vouching

       for the credibility of R.M. or H.M. in particular. See, e.g., Carter v. State, 31

       N.E.3d 17, 29-30 (Ind. Ct. App. 2015), trans. denied.


[16]   Second, Sanders’ testimony in response to the juror’s question, insofar as it may

       have been vouching for another witness’s credibility, was permissible under

       Sampson as Coop had opened the door. See 38 N.E.3d at 991-92. During

       Sanders’ cross-examination, Coop’s counsel attacked R.M. and H.M.’s

       credibility, and he questioned whether Sanders had investigated changes in the

       children’s stories and whether they had discussed their stories with others. It

       was after that line of inquiry that the juror question was submitted to Sanders,

       which she answered without objection. As her testimony was permissible

       under Sampson, its admission was not error, let alone fundamental error.


       Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2376 | June 13, 2017   Page 9 of 19
[17]   Finally, having reviewed the whole of the record that was before the jury, we

       cannot agree that any error in the admission of the now-challenged “drumbeat”

       evidence of Detective Schultz’s testimony, Sanders’ testimony, and two relevant

       and admissible exhibits was so egregious that it made a fair trial impossible. See

       Griffith, 59 N.E.3d at 957. Indeed, the Indiana Supreme Court has held, under

       our standard of review for properly preserved issues, that improperly admitted

       statements that might bolster a witness’s credibility but have “only [a] minor

       impact on the jury” do not merit reversal. Craig v. State, 630 N.E.2d 207, 211-

       12 (Ind. 1994). And that is the case with the now-challenged “drumbeat”

       evidence—this evidence might have supported the victims’ testimony but it did

       not elaborate on that testimony. Accordingly, we also find no fundamental

       error in the admission of that evidence.


                            Issue Two: Alleged Prosecutorial Misconduct

[18]   Coop next asserts that the prosecutor committed misconduct when, in his

       closing rebuttal, he “improperly and unfairly distinguished between the roles of

       defense counsel and the prosecution.” Appellant’s Br. at 17. We review a

       prosecutorial misconduct claim using a two-step analysis. State v. Taylor, 49

       N.E.3d 1019, 1029 (Ind. 2016). First, there must be misconduct. Id. Second,

       the misconduct must have placed the defendant in a position of grave peril. Id.

       The gravity of the peril is measured “by the probable persuasive effect of the

       misconduct on the jury’s decision rather than the degree of impropriety of the

       conduct.” Id. And, again, as Coop has not preserved this issue for review with



       Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2376 | June 13, 2017   Page 10 of 19
       a proper objection at trial, on appeal he must show that the alleged error made a

       fair trial impossible. Griffith, 59 N.E.3d at 957.


[19]   Here, Coop asserts that the prosecutor committed misconduct and placed Coop

       in grave peril, and made a fair trial impossible, when the prosecutor told the

       jury that defense counsel’s “job is to represent his client,” “not . . . to search for

       the truth,” while the prosecutor has “a different job here.” Tr. Vol. 3 at 199.

       While we do not condone such statements, nonetheless we hold that the

       prosecutor’s comments did not make a fair trial impossible.


[20]   In Ryan v. State, the Indiana Supreme Court held:


               While “comments that demean opposing counsel, especially in
               front of a jury, are inappropriate,” Marcum v. State, 725 N.E.2d
               852, 859 (Ind. 2000), not all of the allegedly improper comments
               here are objectionable. “Prosecutors are entitled to respond to
               allegations and inferences raised by the defense even if the
               prosecutor’s response would otherwise be objectionable.” Cooper[
               v. State], 854 N.E.2d [831, 836 (Ind. 2006)]. Here, the prosecutor
               used her rebuttal to respond to defense counsel’s closing
               argument, in which he criticized the quality of the police
               investigation and then compared famous cases of false
               accusations such as “the Duke Lacrosse case,” which
               “supposedly had a full and thorough investigation.” Tr. at 142.
               Without question, the characterization of defense counsel’s line
               of argumentation as “how guilty people walk” and a “trick,” is
               inconsistent with the requirement that lawyers “demonstrate
               respect for the legal system and for those who serve it,
               including . . . other lawyers,” see Preamble [5], Ind. Professional
               Conduct Rules. But the defendant has failed to establish that,
               under all of the circumstances, such improper comments placed
               him in a position of grave peril to which he would not have been

       Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2376 | June 13, 2017   Page 11 of 19
               subjected otherwise. See Cooper, 854 N.E.2d at 835; Marcum, 725
               N.E.2d at 859-60. In Marcum, this Court held it could not
               conclude that comments such as “what this is, is a response to
               your nonsense,” “Judge I guess we can move the jury out and we
               can do a quick evidence course here for [defense counsel],” and
               “He is trying to mislead this jury” affected the jury’s verdict in
               light of the evidence as a whole. 725 N.E.2d at 858-60.
               Similarly, in Brock v. State, this Court found that the prosecutor’s
               statement that defense counsel was “pulling the most low life
               tricks in this case,” was improper but did not place the defendant
               in grave peril. 423 N.E.2d 302, 304-05 (Ind. 1981) (noting that
               defense counsel conceded it was a “rather insignificant” personal
               matter). This case is less egregious than Marcum and Brock; we
               find no prosecutorial misconduct.


       9 N.E.3d 663, 669-70 (Ind. 2014) (last alteration in original).


[21]   Here, the prosecutor’s comments are no worse than those in Ryan, Marcum, or

       Brock. And, as in Ryan, the prosecutor made his comments in response to

       statements made during defense counsel’s closing statement. In light of the

       record as a whole, we conclude that the prosecutor’s comments did not place

       Coop in “a position of grave peril to which he would not have been subjected

       otherwise.” Id. Accordingly, we conclude that no fundamental error occurred

       on this issue.


                             Issue Three: Finding of Aggravating Factors

[22]   We next consider Coop’s argument that the trial court abused its discretion

       when it sentenced him. Sentencing decisions rest within the sound discretion of

       the trial court and are reviewed on appeal only for an abuse of discretion.

       Gomilla v. State, 13 N.E.3d 846, 849 (Ind. 2014). An abuse of discretion occurs

       Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2376 | June 13, 2017   Page 12 of 19
       if the trial court’s 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. McElfresh v. State, 51 N.E.3d 103, 107 (Ind.

       2016). One way in which a trial court may abuse its discretion in sentencing is

       by providing reasons for the sentence that are improper as a matter of law.

       Gomilla, 13 N.E.3d at 849.


[23]   Coop asserts on appeal that the trial court abused its discretion when it

       sentenced him because the court found as an aggravating circumstance that

       Coop had furnished his victims with sleep aids prior to molesting them.

       According to Coop, the trial court’s reliance on this fact was improper as a

       matter of law because the jury acquitted Coop of two charges that had been

       elevated based on that fact and instead found Coop guilty of lesser-included

       offenses on those two counts. See Appellant’s App. Vol. II at 73-74, 96-97.


[24]   We cannot agree with Coop’s characterization of the trial court’s sentencing

       statement. In sentencing Coop, the court stated described the aggravating

       factors it considered significant as follows:


               the harm, injury, loss[,] or damage suffered by the victim of the
               offense was significant and greater than the elements necessary to
               prove the commission of the offense. The elements of the offense
               speak to the physical assault . . . to these children, but not to the
               emotional ones . . . they have suffered, and continue to suffer
               today and . . . undoubtedly will suffer in the future . . . . [B]oth
               girls are in counseling. . . . [B]oth have talked about being
               isolated today, the isolation that . . . they have. The changes that
               they’ve had in school. . . . [T]he changes they’ve had in their
               personal lives and they don’t get the chance to have a normal
       Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2376 | June 13, 2017   Page 13 of 19
        childhood. . . . [I]t’s difficult to hear a thirteen year old girl tell
        me that she no longer even wants to try to have friends or to trust
        others . . . because of her experience with you. . . . [S]o I do find
        that to be a particular . . . aggravating factor . . . and do give it
        significant weight.


        The other . . . aggravating factor[] . . . is the person was in a
        position having care, custody[,] or control of the victims . . . . I
        find this factor to be extremely significant as well. . . . I find that
        these girls were groomed. That you bought them electronics,
        iPhones, took them on outings . . . to the parks, to the walking
        bridge, bought them food, took them out to eat, bought them
        clothing, . . . and these are girls who, at that time, were lacking in
        a home structure. I feel that you carefully selected your targets
        and I think that’s what the evidence clearly showed. That these
        were young girls seeking attention, seeking acceptance, seeking a
        safe place. . . . [B]ut instead, you provided them a lair and
        preyed upon their very innocence. You gave young girls drugs so
        that you could ensure their compliance and their silence. And I find
        that to be particularly aggravating.


Tr. Vol. 4 at 31-33 (emphasis added). Coop’s takeaway from the court’s

statement that it improperly relied on Coop drugging his victims is incorrect.

The aggravator in question was Coop’s abuse of his position of trust. The court

commented on Coop drugging his victims as only a small part of its lengthy

explanation as to why it found the fact that Coop had violated his position of

trust over the victims to be a significant aggravating circumstance. As such, the

court did not abuse its discretion and rely on an improper aggravator.




Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2376 | June 13, 2017   Page 14 of 19
                               Issue Four: Indiana Appellate Rule 7(B)

[25]   Finally, Coop argues that his 120-year aggregate sentence is inappropriate. As

       we have explained:


               Indiana Appellate Rule 7(B) permits an Indiana appellate court
               to “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.” We assess the trial court’s
               recognition or nonrecognition of aggravators and mitigators as an
               initial guide to determining whether the sentence imposed was
               inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct.
               App. 2006). The principal role of appellate review is to “leaven
               the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
               2008). A defendant must persuade the appellate court that his or
               her sentence has met the inappropriateness standard of review.
               Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).


       Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).


[26]   Here, again, the trial court identified the following two aggravating factors: the

       emotional harm suffered by the victims and Coop’s abuse of his position of trust

       over the victims. As a mitigating circumstance, the court noted that Coop had

       a minimal criminal history. The court then sentenced Coop to an aggregate

       term of 120 years, the maximum possible term for his convictions.


[27]   On appeal, Coop argues only that the 120-year sentence is inappropriate

       because he “is not the worst of offenders and did not commit the worst of

       offenses.” Appellant’s Br. at 43. More specifically, Coop asserts that his lack of

       a criminal history reflects well on his character and that he has a low risk of

       Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2376 | June 13, 2017   Page 15 of 19
       reoffending. He also asserts that “there is nothing about how Coop committed

       the charged offenses that makes them more egregious than is already inherent

       in the nature of the offenses.” Id. at 45. And Coop avers that consecutive

       sentences, in particular, are inappropriate here.


[28]   We cannot agree. Coop’s clear abuse of his position of trust over the children

       reflects his poor character. Further, the nature and circumstances of that abuse

       of his position of trust, and the ongoing emotional harm suffered by his victims,

       demonstrates that the nature of Coop’s offenses was deplorable. And

       consecutive sentences are not inappropriate where there are multiple victims.

       See Serino v. State, 798 N.E.2d 852, 857 (Ind. 2003). Coop committed his

       offenses against multiple victims for more than a year and in the presence of

       other children. We cannot say that his 120-year sentence is inappropriate.


                                                  Conclusion

[29]   In sum, we affirm Coop’s convictions and his sentence.


[30]   Affirmed.


       Bradford, J., concurs.


       Riley, J., concurs in part and dissents in part with separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2376 | June 13, 2017   Page 16 of 19
                                                 IN THE
           COURT OF APPEALS OF INDIANA

       Jerry Coop,
       Appellant-Defendant,
                                                               Court of Appeals Case No.
               v.                                              22A01-1610-CR-2376

       State of Indiana,
       Appellee-Plaintiff.




       Riley, Judge, concurring in part and dissenting in part.


[31]   Even though I agree with the majority’s decision on the plurality of the issues

       raised by Coop, I respectfully dissent from its conclusion that Coop’s sentence

       is not inappropriate in light of his offense and his character. I recognize that the

       trial court, as affirmed by the majority, sentenced Coop to the maximum

       aggregate sentence possible, and that maximum sentences should generally be

       reserved for the worst offenses and offenders. See Bacher v. State, 686 N.E.2d

       791, 802 (Ind. 1997). However, as this court has previously explained,

               If we were to take this language literally, we would reserve the
               maximum punishment for only the singly most heinous crime….
               We should concentrate less on comparing the facts of this case to
               others, whether real or hypothetical, and more on focusing on the
       Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2376 | June 13, 2017   Page 17 of 19
               nature, extent, and depravity of the offense for which the
               defendant is being sentenced, and what it reveals about the
               defendant’s character.


       Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied.


[32]   The record reflects a very limited criminal history, only comprised of charges

       unrelated to the instant offenses. Coop had steady employment and was placed

       in the low risk category to re-offend. He did not brutalize or harm the victims

       in any manner not already inherent in the nature of the offenses. See Fointno v.

       State, 487 NE.2d 140, 148 (Ind. 1986) (“a rational sentencing scheme should

       punish more severely those who brutalize the victims of their crime.”).

       Although the evidence indicated that Coop supplied the victims with sleeping

       aids, the jury acquitted him of the offenses that were elevated based upon this

       fact and he was only convicted of the lesser included offenses.


[33]   While Coop’s offenses are undeniably serious and warrant significant

       punishment, the lack of injury or use of physical force in the molestation of the

       victims demonstrated that the nature of the offense did not warrant consecutive

       sentences. See Laster v. State, 918 N.E.2d 428, 434 (Ind. Ct. App. 2009); see also

       Tyler v. State, 903 N.E.2d 463, 469 (Ind. 2009) (revising an enhanced sentence

       to the advisory term in part because there was no evidence that the defendant

       used physical force on his child molesting victims, nor were the children

       physically injured by the molestation). Even though our supreme court has

       repeatedly revised the consecutive sentences with regard to a single molestation

       victim, I do acknowledge that the second amended Counts I and II involve the

       Court of Appeals of Indiana | Memorandum Decision 22A01-1610-CR-2376 | June 13, 2017   Page 18 of 19
same victim, while the second amended Counts III and V relate to a different

victim. See, e.g., Harris v. State, 897 N.E.2d 927 (Ind. 2008); Monroe v. State, 886

N.E.2d 578 (Ind. 2008). Accordingly, based on Coop’s minimal criminal

history, steady employment, and lack of physical force, I would revise his

sentence to the advisory sentence for each offense, with Counts I and II running

concurrently and Counts III and V running concurrently, and with both sets of

Counts running consecutively to each other, for an aggregate sentence of 36

years.




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