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

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

RICHARD WALKER                                  GREGORY F. ZOELLER
Anderson, Indiana                               Attorney General of Indiana

                                                AARON J. SPOLARICH
                                                Deputy Attorney General
                                                Indianapolis, Indiana
                                                                              FILED
                                                                          Mar 14 2012, 9:34 am
                              IN THE
                                                                                  CLERK
                    COURT OF APPEALS OF INDIANA                                 of the supreme court,
                                                                                court of appeals and
                                                                                       tax court




JACOB LOCKRIDGE,                                )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 48A02-1104-CR-383
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MADISON SUPERIOR COURT
                         The Honorable Dennis D. Carroll, Judge
                             Cause No. 48D01-1105-FB-76



                                      March 14, 2012


               MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
       Following a jury trial, Appellant-Defendant Jacob Lockridge was convicted of

two counts of Class B felony Child Molesting1 and sentenced to an aggregate term of

thirty-two years in the Department of Correction with six years suspended to probation.

Upon appeal, Lockridge claims that certain evidence admitted against him at trial

violated Indiana Evidence Rule 404(b). Lockridge additionally challenges his sentence

by claiming that it is inappropriate and that the trial court abused its discretion in

considering certain aggravating circumstances to enhance his sentence and impose

consecutive terms. We affirm.

                           FACTS AND PROCEDURAL HISTORY

       In the summer of 2008, M.B., who was nine years old at the time, spent

approximately two weekends per month at her father‟s home. Lockridge, who was

M.B.‟s father‟s wife‟s nephew, sometimes stayed at the home as well. Lockridge was

twenty years old at the time. At some point that summer, M.B., who had fallen asleep in

one of the bedrooms in the home, awoke to find Lockridge beside her with his finger

inside her vagina. M.B., who was wearing a T-shirt, boxer shorts, and underwear at the

time, felt pain. M.B. left the room and stayed in the laundry room the rest of the night.

       Approximately a week later, M.B., who had again worn clothes to bed, awoke to

find herself naked, with Lockridge on top of her, putting his penis into her vagina. At

the time Lockridge asked M.B. why she was doing this to him. He also hit M.B. in the

chest, told her he loved her and claimed they would have many children together and be

happy. Lockridge, who squeezed his penis throughout the act, later removed it and
       1
           Ind. Code § 35-42-4-3(a) (2008).


                                              2
ejaculated on the bed. M.B. left the house and spent the night in her father‟s truck

parked in the driveway.

       In 2010, M.B. confided in a friend about the incidents, and authorities were

notified. Subsequent medical examinations of M.B. revealed that she had two injuries to

her hymen. According to sexual assault nurse examiner Holly Renz, it is unusual to see

such injuries after a period of two years has passed.

       On May 6, 2010, the State charged Lockridge with two counts of Class B felony

child molesting (Counts I and III) and one count of Class C felony child molesting.

(Count II). Count II was subsequently dismissed, and Counts I and III were tried to a

jury on March 22-24, 2011. At trial, Lockridge testified in his defense. In cross-

examining him, the State was permitted to inquire, over defense objection, about several

entries Lockridge had made on his MySpace page regarding his urge to have sex. These

entries included the following statements, some of which were accompanied by

statements indicating that Lockridge was in a “horny as h***” mood: “Any females

trying to f***?”; “trying to find some female that will let me tear that monkey the h***

up”; “needing to f*** bad like my life depends on it”; “f***ing horny and can‟t do

anything about it”; and “looking for some p****.” Tr. pp. 383-87.2

       The jury found Lockridge guilty as charged. The trial court entered judgment of

conviction and sentenced Lockridge to consecutive sentences of sixteen years in the

Department of Correction for each count, with twenty-six years executed and six years

       2
         The trial court permitted cross-examination on the content of the MySpace pages but did not
admit the exhibit containing copies of the MySpace pages. The quotations are from the transcript and
may vary, in insignificant ways, from some of the MySpace entries in State‟s Exhibit 5.


                                                 3
suspended to probation.      In reaching this sentence, the trial court considered as

aggravators Lockridge‟s criminal history, his breach of trust, and his multiple offenses

against a single victim. The trial court considered as a mitigator Lockridge‟s abusive

and dysfunctional upbringing. This appeal follows.

                            DISCUSSION AND DECISION

       Upon appeal, Lockridge challenges the trial court‟s admission of his MySpace

entries by claiming that they violate Indiana Evidence Rule 404(b). Lockridge also

challenges his sentence on several bases.

                                    I.      Rule 404(b)

       The admission of evidence is left to the sound discretion of the trial court, and this

court will not reverse that decision absent an abuse of discretion. Weis v. State, 825

N.E.2d 896, 900 (Ind. Ct. App. 2005). An abuse of discretion occurs when trial court‟s

decision is against the logic and effect of the facts and circumstances before it. Id.

       Indiana Evidence Rule 404(b) provides as follows, in pertinent part: “Evidence of

other crimes, wrongs, or acts is not admissible to prove the character of a person in order

to show action in conformity therewith.” Evidence is excluded under Rule 404(b) when

it is introduced to prove the “forbidden inference” of demonstrating the defendant‟s

propensity to commit the charged crime. Clark v. State, 915 N.E.2d 126, 129-30 (2009),

reh’g denied.

       In Clark, the admission into evidence of a defendant‟s MySpace postings was

similarly attacked on Rule 404(b) grounds.         The defendant, who was convicted of

murdering a two-year-old child, had written various prideful declarations regarding his

                                              4
reputation as an “outlaw and criminal” who could “do it and get away.” Clark, 915

N.E.2d at 129. In rejecting the defendant‟s 404(b) challenge, the Clark court reasoned

that the posting contained only the defendant‟s statements about himself and in reference

to himself; it was not a crime, wrong, or act and therefore did not fall under Rule 404(b).

Id. at 130. As the Clark court held, the MySpace postings placed the defendant‟s words

at issue, not his deeds, so they were not inadmissible pursuant to Rule 404(b). Id.

       Similarly here, Lockridge‟s sexual musings on MySpace are not past deeds. They

are merely statements by Lockridge about himself and in reference to himself,

specifically his sexual urges. Under Clark they are merely evidence of Lockridge‟s own

statements and neither covered nor barred by Rule 404(b). See id. We find no abuse of

discretion.3

                                        II.     Sentencing

                                  A.      Aggravating Factors

       Lockridge challenges the trial court‟s consideration of various aggravators in

imposing his sentence. Under the current sentencing scheme, “the trial court must enter

a statement including reasonably detailed reasons or circumstances for imposing a

particular sentence.” Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), modified on

other grounds on reh’g, 875 N.E.2d 218 (Ind. 2007). We review the sentence for an

abuse of discretion. Id. at 490. An abuse of discretion occurs if “the decision is clearly



       3
         This conclusion is not to say that the evidence, which may qualify as depraved sexual instinct
evidence, was not inadmissible on other grounds. For purposes of this appeal, Lockridge confines his
challenge to Rule 404(b).


                                                  5
against the logic and effect of the facts and circumstances.” Id. (internal quotation

omitted).

       A trial court abuses its discretion if it (1) fails “to enter a sentencing statement at

all[,]” (2) enters “a sentencing statement that explains reasons for imposing a sentence—

including a finding of aggravating and mitigating factors if any—but the record does not

support the reasons,” (3) enters a sentencing statement that “omits reasons that are

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

reasons that “are improper as a matter of law.” Id. at 490-91. If the trial court has

abused its discretion, we will remand for resentencing “if we cannot say with confidence

that the trial court would have imposed the same sentence had it properly considered

reasons that enjoy support in the record.” Id. at 491. However, under the current

statutory scheme, the relative weight or value assignable to reasons properly found is not

subject to review for abuse of discretion. Id. We may review both oral and written

statements in order to identify the findings of the trial court. See McElroy v. State, 865

N.E.2d 584, 589 (Ind. 2007).

                                 1.     Criminal History

       Lockridge first challenges the trial court‟s consideration of his criminal history as

an aggravating factor. Lockridge claims that his juvenile history is relatively minor and

remote in time and that his adult convictions for marijuana possession and resisting law

enforcement occurred after the current offenses and should not be included in his

criminal history.

       In considering Lockridge‟s criminal history, the trial court stated as follows:

                                              6
       So on the aggravators, there is some modest criminal and juvenile history.
       It would be dishonest that there is a, a, great criminal history. It‟s just not
       true. There is a series of shopliftings and a contemporaneous marijuana
       possession charge. It‟s a history, it‟s repetitive behavior that‟s criminal.
       But it is not an egregious criminal history. But there is some aggravation. I
       think the most compelling aggravation is both the bre[a]ch of trust and the
       multiple offenses against a single young victim.

Tr. p. 517.

       While Lockridge‟s criminal history may have been relatively minor, the trial court

was fully aware of this, and its order specifically minimizes the importance of this factor.

To the extent Lockridge would have this court treat the factor as somehow more minimal,

this is essentially a request that it reconsider the relative weight of the factors, which it

does not do. See Anglemyer, 868 N.E.2d at 491. Further, while the trial court may have

erroneously included Lockridge‟s marijuana offense, which occurred after the instant

offenses, as part of his criminal history, this does not erase the fact that he had a criminal

history. Even a limited criminal history can be considered an aggravating factor. Atwood

v. State, 905 N.E.2d 479, 488 (Ind. Ct. App. 2009), trans. denied. We find no abuse of

discretion.

                                 2.     Multiple Offenses

       Lockridge additionally challenges the trial court‟s finding as an aggravating

circumstance the fact that he had committed “multiple offenses against a single young

victim.” Tr. p. 517. Lockridge challenges this factor by claiming that the age of his

victim was an element of his crime and could not have been used as an aggravating

factor. As the State points out, the gravamen of this aggravator was not the age of the

victim but the fact that she had been subjected to multiple offenses. As the trial court

                                              7
emphasized, in summarizing its consideration of this factor, “And so the bre[a]ch of trust

and then multiple offenses against the same victim I, I consider to be aggravators.” Tr.

p. 518. The fact that Lockridge committed multiple offenses against M.B. is a valid

aggravating factor. See McDonald v. State, 868 N.E.2d 1111, 1114 (Ind. 2007) (“The

law is settled that the fact of multiple crimes is a valid aggravating factor.”). We find no

abuse of discretion.

                                  3.     Position of Trust

       Lockridge also challenges the trial court‟s consideration of his position of trust

with M.B. as an aggravating factor.          Lockridge claims that this is an improper

aggravating factor because he did not have care, custody, or control over M.B.

       Indiana Code section 35-38-1-7.1(a)(8) (2008) provides that the trial court may

consider as an aggravating circumstance the fact that the defendant was in a position

having care, custody or control of the victim. “A position of trust exists where a

defendant has „more than a casual relationship with the victim and has abused the trust

resulting from that relationship.‟” Amalfitano v. State, 956 N.E.2d 208, 211 (Ind. Ct.

App. 2011) (quoting Rodriguez v. State, 868 N.E.2d 551, 555 (Ind. Ct. App. 2007)).

“„Generally, cohabitation arrangements of nearly any character between adults do in

fact, and should, establish a position of trust between the adults and minors living or

staying together.‟” Id. (quoting Rodriquez, 868 N.E.2d at 555).

       In considering this factor, the trial court stated as follows:

       I think the most compelling aggravation is both the bre[a]ch of trust and the
       multiple offenses against a single young victim. [Defense counsel] is
       probably correct that most of these offenses do happen in a situation where

                                               8
       there is a bre[a]ch of trust. Of course I would make the argument that, that
       makes crime much more egregious actually. And it‟s not an element and so
       therefore it seems to me it‟s appropriate for it, it to be an aggravator, the
       bre[a]ch of trust, because that‟s when children are most vulnerable with
       people in the family and in the extended family and so forth. And so the
       bre[a]ch of trust and then multiple offenses against the same victim I, I
       consider to be aggravators.

Tr. pp. 517-18.

       Here, Lockridge, whose aunt was married to M.B.‟s father, sometimes stayed at

M.B.‟s father‟s home, where M.B. stayed on weekends about twice a month. According

to M.B.‟s mother, Lockridge stayed at the home “quite a bit.” Tr. p. 235. The not-

infrequent basis upon which Lockridge and M.B. spent the night in the same home,

coupled with the fact that they were both part of the same extended family, supports the

trial court‟s conclusion that Lockridge held a position of trust over M.B. We find no

abuse of discretion.

                              B.     Consecutive Sentences

       Lockridge further claims that the trial court abused its discretion by using the same

aggravating factor to impose both enhanced and consecutive sentences. There were three

aggravating circumstances in this case, and the trial court did not specify which were

used to enhance the sentences and which were used to impose consecutive sentences.

But the trial court had no duty to do so, nor was it prohibited from using the very same

circumstances for both functions. See Blanche v. State, 690 N.E.2d 709, 716 (Ind. 1998)

(“[T]here is neither any prohibition against relying on the same aggravating

circumstances both to enhance a sentence and to order it served consecutively, nor any

requirement that the trial court identify the factors that supported the sentence

                                             9
enhancement separately from the factors that supported consecutive sentences.”). We

find no abuse of discretion.

                                 C.       Appropriateness

       Lockridge also challenges the appropriateness of his thirty-two-year sentence. In

doing so, Lockridge points to his abusive and unstable childhood and to his early

diagnoses of attention deficit hyperactivity disorder and mild mental retardation. In light

of these factors, together with his claimed young age of twenty, Lockridge contends that

his sentence is inappropriately harsh.

       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, 868

N.E.2d at 491 (quoting Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006) (emphasis

and internal quotations omitted)).       Such appellate authority is implemented through

Indiana 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.” We exercise deference to a trial court‟s sentencing decision,

both because Rule 7(B) requires that we give “due consideration” to that decision and

because we recognize the unique perspective a trial court has when making sentencing

decisions.   Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007).          It is the

defendant‟s burden to demonstrate that his sentence is inappropriate. Childress, 848

N.E.2d at 1080.



                                              10
       Lockridge committed two Class B felony offenses of child molestation. Pursuant

to Indiana Code section 35-50-2-5 (2008), a person who commits a Class B felony is

subject to a sentence ranging from six years to twenty years, with the advisory sentence

being ten years. Lockridge received an aggregate sentence of thirty-two years, with

twenty-six years executed in the Department of Correction. Accordingly, his sentence

was enhanced, but he did not receive the maximum sentence.

       There can be no question that Lockridge has faced significant difficulties in his

life. As the trial court observed:

       But I think [defense counsel] is absolutely correct that it is not appropriate
       for us to ignore the socio-psychological damage that occurs in a highly
       dysfunctional and abusive family. And if you don‟t think that‟s the family
       that Mr. Lockridge lived in, then you need to read the PSI or know a little
       bit about what we have learned during the progress, progress of these
       proceedings. It doesn‟t excuse his behavior. There are a lot of people who
       come from very, very difficult homes who rise above that, but it doesn‟t
       help. And I think it‟s, in fairness to Mr. Lockridge, his lawyer has every
       right to ask us to give some consideration to that and the Court intends to
       do so.

Tr. p. 518. But the fact of his difficulties is reflected in his non-maximum sentence.

Lockridge committed particularly heinous crimes against a nine-year-old child. His acts

were perverse and violent enough to leave physical injuries to the child‟s sex organs two

years later and emotional injuries to last a lifetime. While Lockridge may have certain

mental limitations, his testimony at trial and comments in the PSI4 and, indeed, on his

MySpace page, demonstrate a reasonable level of competence. Further, it is not as

       4
         Regarding his youth, Lockridge states that “I shouldn‟t have been the child I was. I was always
running around, doing what I wanted to do. I didn‟t care. I should have stayed home.” Appellant‟s App.
p. 232. Regarding his sentence, Lockridge requests only that he not be “max[ed] out.” Appellant‟s App.
p. 234.


                                                  11
though Lockridge has led a law-abiding life up to this point. He has a juvenile history for

repeated acts of criminal conversion, and he admittedly smokes marijuana. We are not

convinced that his thirty-two-year sentence, with twenty-six years executed, is

inappropriate.

       The judgment of the trial court is affirmed.

KIRSCH, J., and BARNES, J., concur.




                                            12
