MEMORANDUM DECISION
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                              FILED
the defense of res judicata, collateral                               Oct 20 2017, 5:54 am
estoppel, or the law of the case.
                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark A. Thoma                                            Curtis T. Hill, Jr.
Leonard, Hammond, Thoma & Terrill                        Attorney General of Indiana
Fort Wayne, Indiana
                                                         Matthew B. Mackenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael P. Swygart,                                      October 20, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         01A02-1704-CR-847
        v.                                               Appeal from the Adams Circuit
                                                         Court
State of Indiana,                                        The Honorable Chad E. Kukelhan,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         01C01-1512-F4-9



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 01A02-1704-CR-847 | October 20, 2017        Page 1 of 18
                                          Case Summary
[1]   In March of 2017, a jury found Appellant-Defendant Michael Swygart guilty of

      committing numerous acts of sexual misconduct on his step-daughter, I.H.

      Swygart appeals, arguing that (1) the evidence is insufficient to sustain his

      convictions, (2) the trial court abused its discretion in sentencing him, and (3)

      his sentence is inappropriate. Because we conclude otherwise, we affirm.



                            Facts and Procedural History
[2]   When I.H. was born, she suffered from several developmental issues. Swygart

      was I.H.’s step-father and her primary caregiver. I.H. was never close to, and

      did not get along with, her mother, so she spent most of her time with Swygart.

      At all times relevant to this appeal, I.H. lived in a home in Adams County with

      Swygart, her mother, and her step-brother, M.M.


[3]   As a child, I.H. suffered from anxiety which left her scared to be alone,

      specifically in the shower. Because I.H. feared being alone, Swygart would

      typically stand in the bathroom while she showered and would leave the

      bathroom when she finished so that she could get dressed. However, one day

      when I.H. was thirteen, Swygart failed to leave the bathroom after she had

      finished in the shower. Swygart told I.H. that he needed to “check something

      first.” Tr. Vol. II, p. 57. When I.H. inquired into what he needed to check,

      Swygart indicated that he needed to see if she was a virgin. While still in the

      private confines of the bathroom, Swygart forcibly placed I.H on top of the


      Court of Appeals of Indiana | Memorandum Decision 01A02-1704-CR-847 | October 20, 2017   Page 2 of 18
      washing machine. I.H., who was still naked from her shower, kicked at

      Swygart and told him to stop. Despite I.H.’s request that he stop, Swygart

      forcibly grabbed I.H.’s “thighs to pull [her] legs apart,” placed his head between

      I.H.’s legs, and spread her vagina apart with both of his hands. Tr. Vol. II, p.

      58. He stared at I.H.’s vagina for several seconds before remarking “okay, you

      are.” Tr. Vol. II, p. 58. Swygart then left the bathroom. I.H. reported the

      incident to her mother “[r]ight after it happened.” Tr. Vol. II, p. 59. I.H.’s

      mother confronted Swygart who “threw a fit.” Tr. Vol. II, p. 59. I.H.’s mother

      then yelled and cussed at I.H. and forced her to apologize to Swygart.


[4]   One morning during the summer of 2015, after I.H. had turned fourteen, I.H.

      and Swygart were alone in the family home from approximately 3:30 a.m. until

      approximately 6:00 a.m. I.H., who was in her bedroom watching cartoons, had

      taken one of her mother’s “Klonopins” to help her fall asleep. Tr. Vol. II, p. 63.

      At some point, Swygart entered I.H.’s bedroom wearing “just his boxers.” Tr.

      Vol. II, p. 65. After I.H. indicated that she was having trouble falling asleep,

      Swygart suggested that she “take another Klonopin.” Tr. Vol. II, p. 65. After a

      couple of minutes, while I.H. was lying flat on her bed, Swygart “looked at

      [I.H.] and said let me show you something.” Tr. Vol. II, p. 65. He then started

      rubbing the outside of I.H.’s vagina. Swygart “then moved inside [I.H.’s] pants

      and started fingering [her].” Tr. Vol. II, p. 66. I.H. subsequently indicated that

      it hurt when Swygart did so.


[5]   Swygart then removed I.H.’s pajama pants and underwear and “started licking

      [her] vagina.” Tr. Vol. II, p. 66. Swygart had positioned his body so that he

      Court of Appeals of Indiana | Memorandum Decision 01A02-1704-CR-847 | October 20, 2017   Page 3 of 18
      was “laying down on the bed” with his body in the “[o]pposite direction” from

      I.H.’s body. Tr. Vol. II, p. 66. Swygart continued licking I.H.’s vagina for “a

      couple minutes.” Tr. Vol. II, p. 66. I.H. subsequently indicated that it also hurt

      when Swygart committed this act.


[6]   Swygart then “got on [I.H.’s] bed on his knees and inserted his penis a little

      bit.” Tr. Vol. II, p. 67. I.H. felt Swygart’s penis “go inside” her. Tr. Vol. II, p.

      67. She later described that it seemed that Swygart “put a little bit of [his penis]

      in before he realized what he was doing” and that Swygart’s penis was “inside

      of [her]” for “[m]aybe a couple seconds.” Tr. Vol. II, p. 67. I.H. later indicated

      that it hurt when Swygart committed this act.


[7]   Throughout the encounter, Swygart “kept asking [I.H.] if [she] liked it” and

      I.H. kept asking him to stop. Tr. Vol. II, p. 67. After removing his penis from

      inside I.H., Swygart “got up, dressed [I.H.], and grabbed his phone and left

      [I.H.’s] room.” Tr. Vol. II, p. 68. After Swygart left, I.H. “curled up in a ball

      and … just started crying.” Tr. Vol. II, p. 69. At some point, Swygart came

      back into I.H.’s room and sat at the edge of I.H.’s bed. Swygart grabbed I.H.’s

      leg and said he was sorry and that he “didn’t mean to.” Tr. Vol. II, p. 70. I.H.

      flinched away from him, after which he “started banging his head on [I.H.’s]

      wall saying that he was so f’ing stupid.” Tr. Vol. II, p. 69. Swygart then left

      I.H.’s bedroom.


[8]   I.H.’s mother checked on I.H. in her bedroom after she returned home. When

      her mother entered the room, I.H. began crying. I.H. continued to cry as she


      Court of Appeals of Indiana | Memorandum Decision 01A02-1704-CR-847 | October 20, 2017   Page 4 of 18
       told her mother that Swygart had “raped” her. Tr. Vol. I, p. 248. I.H.’s mother

       responded by giving her medication to help her calm down. M.M. overheard

       I.H. tell their mother that Swygart had raped her.


[9]    Shortly thereafter, an argument broke out when I.H.’s mother confronted

       Swygart about the allegations made by I.H. At some point during this

       argument, a window was broken after Swygart “put his fist through it.” Tr.

       Vol. II, p. 4. Swygart injured his wrist in the process and had to bandage his

       wrist to stop it from bleeding. When I.H. awoke later that morning, I.H.

       noticed the injury to Swygart’s wrist. I.H.’s mother also informed I.H. that she

       and Swygart “just wanted to keep [what had happened] in the family.” Tr. Vol.

       II, p. 73. Swygart then apologized to I.H.


[10]   Approximately one month later, Swygart began “trying to hit on” I.H., “calling

       [her] attractive and telling [her] that [they] could do it again if [she] wanted but

       [her] mom couldn’t know.” Tr. Vol. II, p. 77. When Swygart made these

       comments, I.H. attempted to change the subject. She reported Swygart’s

       comments to her mother who “seemed really mad.” Tr. Vol. II, p. 78. I.H.’s

       mother eventually took I.H. to I.H.’s maternal grandmother’s home, telling her

       that I.H. “was her problem now.” Tr. Vol. II, p. 80. I.H. started crying

       “[b]ecause [she] knew [her] mom didn’t care” about what happened to her. Tr.

       Vol. II, p. 80. At some point, I.H.’s grandmother’s partner informed I.H.’s

       biological father about what had happened. After discussing Swygart’s actions

       with her biological father, I.H. reported Swygart’s actions to the police.



       Court of Appeals of Indiana | Memorandum Decision 01A02-1704-CR-847 | October 20, 2017   Page 5 of 18
[11]   Appellee-Plaintiff the State of Indiana (“the State”) subsequently charged

       Swygart with Count I–Level 4 felony child molesting based on the incident in

       the bathroom, Count II–Level 4 felony sexual misconduct with a minor based

       on the oral sex that occurred in I.H.’s bedroom, and Count III–Level 4 felony

       sexual misconduct with a minor based on the vaginal sex which occurred in

       I.H.’s bedroom. On February 28, 2017, Swygart proceeded to a jury trial, at the

       conclusion of which he was found guilty of all counts. Following a March 20,

       2017 sentencing hearing, the trial court sentenced Swygart to an aggregate term

       of twenty-six years of incarceration, with twenty-three years executed and three

       years suspended to probation. This appeal follows.



                                  Discussion and Decision
                                I. Sufficiency of the Evidence
[12]   Swygart challenges the sufficiency of the evidence to sustain his convictions.


               When reviewing the sufficiency of the evidence to support a
               conviction, appellate courts must consider only the probative
               evidence and reasonable inferences supporting the verdict. It is
               the fact-finder’s role, not that of appellate courts, to assess
               witness credibility and weigh the evidence to determine whether
               it is sufficient to support a conviction. To preserve this structure,
               when appellate courts are confronted with conflicting evidence,
               they must consider it most favorably to the trial court’s ruling.
               Appellate courts affirm the conviction unless no reasonable fact-
               finder could find the elements of the crime proven beyond a
               reasonable doubt. It is therefore not necessary that the evidence
               overcome every reasonable hypothesis of innocence. The


       Court of Appeals of Indiana | Memorandum Decision 01A02-1704-CR-847 | October 20, 2017   Page 6 of 18
                evidence is sufficient if an inference may reasonably be drawn
                from it to support the verdict.


       Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and

       quotations omitted). “In essence, we assess only whether the verdict could be

       reached based on reasonable inferences that may be drawn from the evidence

       presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in

       original). Upon review, appellate courts do not reweigh the evidence or assess

       the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind.

       2002).


                      A. Count I–Level 4 Felony Child Molesting
[13]   Swygart was charged under Count I as follows:


                The undersigned says that between July 1, 2014 and December 1,
                2014 in Adams County, State of Indiana, Michael P. Swygart did
                perform fondling or touching on [I.H.], a child under the age of
                fourtween (14) years, to-wit: 13 years of age, with the intent to
                arouse or satisfy the sexual desires of the 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. II, p. 107. Indiana Code section 35-42-4-3(b) provides

       that “[a] person who, with a child under fourteen (14) years of age, performs or

       submits to any fondling or touching, of either the child or the older person, with

       intent to arouse or to satisfy the sexual desires of either the child or the older

       person, commits child molesting, a Level 4 felony.” “The intent element of


       Court of Appeals of Indiana | Memorandum Decision 01A02-1704-CR-847 | October 20, 2017   Page 7 of 18
       child molesting may be established by circumstantial evidence and may be

       inferred from the actor’s conduct and the natural and usual sequence to which

       such conduct usually points.” Bass v. State, 947 N.E.2d 456, 460 (Ind. Ct. App.

       2011), trans. denied.


[14]   In challenging the sufficiency of the evidence to sustain his conviction for Level

       4 felony child molesting, Swygart argues that (1) there is reasonable doubt as to

       whether the incident in the bathroom occurred and (2) the State failed to prove

       that he committed the alleged acts with the intent to arouse or satisfy his sexual

       desires. We disagree.


[15]   As mentioned, I.H. testified that on one occasion when she was thirteen years

       old, Swygart forcibly grabbed her “thighs to pull [her] legs apart,” placed his

       head between her legs, and spread her vagina apart with both of his hands. Tr.

       Vol. II, p. 58. We have previously concluded that “the uncorroborated

       testimony of a child victim is sufficient to support a conviction of child

       molesting.” Wisneskey v. State, 736 N.E.2d 763, 764 (Ind. Ct. App. 2000).

       I.H.’s testimony is more than sufficient to establish the Swygart fondled her

       when she was under fourteen (14) years of age.


[16]   As for Swygart’s intent, we reiterate that “[t]he intent element of child

       molesting may be established by circumstantial evidence and may be inferred

       from the actor’s conduct and the natural and usual sequence to which such

       conduct usually points.” Bass, 947 N.E.2d at 460. We have previously noted

       that an erogenous zone, such as one’s genitals, or an area in close proximity to


       Court of Appeals of Indiana | Memorandum Decision 01A02-1704-CR-847 | October 20, 2017   Page 8 of 18
       an erogenous zone may be the source of sexual gratification. See Nuerge v. State,

       677 N.E.2d 1043, 1049 (Ind. Ct. App. 1997) (providing that “[b]ecause the

       inner thigh is in close proximity to the genitals, an erogenous zone, it may itself

       be the source of sexual gratification.”), trans. denied. In this case, Swygart

       placed his face near an erogenous zone after forcibly grabbing I.H.’s thighs and

       pulling her legs apart. With his head between I.H.’s legs, he then fondled I.H.

       by spreading her vagina apart with both of his hands. While fondling I.H.,

       Swygart stared at her vagina for at least several seconds. I.H. was naked at the

       time as she had just gotten out of the shower. We believe that the jury could

       reasonably infer from the circumstances of this case that Swygart committed

       these acts with the intent to arouse or satisfy his sexual desires. As such, we

       conclude that the evidence is sufficient to sustain Swygart’s conviction for Level

       4 felony child molesting. Swygart’s claim to the contrary merely amounts to an

       invitation for this court to reweigh the evidence, which we will not do. See

       Stewart, 768 N.E.2d at 435.


        B. Counts II and III–Level 4 Felony Sexual Misconduct with
                                 a Minor
[17]   With respect to Counts II and III, Swygart was charged as follows:


                                              Count 2:
               The undersigned says that between June 1, 2015 and June 30,
               2015 in Adams County, State of Indiana, Michael P Swygart, a
               person at least twenty-one (21) years of age, did perform sexual
               intercourse or other sexual conduct, as defined by I.C. 35-31.5-2-
               221.5, with [I.H.], a child at least fourteen (14) years of age but
               less than sixteen (16) years of age, to-wit: 14 years of age,

       Court of Appeals of Indiana | Memorandum Decision 01A02-1704-CR-847 | October 20, 2017   Page 9 of 18
               contrary to the form of the statutes in such cases made and
               provided by I.C. 35-42-4-9(a) and I.C. 35-42-4-9(a)(1) and against
               the peace and dignity of the State of Indiana.
                                              Count 3:
               The undersigned says that between June 1, 2015 and June 30,
               2015 in Adams County, State of Indiana, Michael P Swygart, a
               person at least twenty-one (21) years of age, did perform sexual
               intercourse or other sexual conduct, as defined by I.C. 35-31.5-2-
               221.5, with [I.H.], a child at least fourteen (14) years of age but
               less than sixteen (16) years of age, to-wit: 14 years of age,
               contrary to the form of the statutes in such cases made and
               provided by I.C. 35-42-4-9(a) and I.C. 35-42-4-9(a)(1) and against
               the peace and dignity of the State of Indiana.


       Appellant’s App. Vol. II, pp. 107-08. Indiana Code section 35-42-4-9(a)

       provides that “[a] person at least eighteen (18) years of age who, with a child at

       least fourteen (14) years of age but less than sixteen (16) years of age, performs

       or submits to sexual intercourse or other sexual conduct (as defined in IC 35-

       31.5-2-221.5) commits sexual misconduct with a minor, a Level 5 felony.” The

       offense is a Level 4 felony if it is committed by a person at least twenty-one

       years of age. Ind. Code § 35-42-4-9(a)(1).


[18]   Indiana Code section 35-31.5-2-221.5 defines the term “other sexual conduct”

       as follows: “(1) a sex organ of one (1) person and the mouth or anus of another

       person; or (2) the penetration of the sex organ or anus of a person by an object.”

       I.H.’s testimony at trial is sufficient to sustain Swygart’s convictions under both

       Counts II and III. I.H. testified that on the night in question, Swygart

       penetrated her vagina with his fingers, performed oral sex on her, and

       penetrated her vagina with his penis.

       Court of Appeals of Indiana | Memorandum Decision 01A02-1704-CR-847 | October 20, 2017   Page 10 of 18
[19]   In arguing that the evidence is insufficient to sustain his convictions for Counts

       II and III, Swygart claims that we should find I.H.’s testimony lacks credibility

       because it is “starkly different” from his own self-serving version of the events

       that occurred on the night in question.1 Appellant’s Br. p. 23. Review of the

       record shows that I.H.’s testimony was consistent. In addition, I.H.’s testimony

       that she reported the abuse to her mother at the first available opportunity and

       that Swygart cut his hand after he was confronted about I.H.’s claims was

       corroborated by other evidence in the record. Swygart’s argument that I.H.’s

       testimony lacked credibility amounts to nothing more than an invitation for this

       court to reweigh the evidence, which we will not do. See Stewart, 768 N.E.2d at

       435.


                                          II. Sentencing Issues
[20]   Swygart next challenges his sentence. In doing so, Swygart contends that the

       trial court abused its discretion in sentencing him and that his sentence is

       inappropriate. We disagree.


               A. Whether the Trial Court Abused Its Discretion in
                              Sentencing Swygart
[21]   Sentencing decisions rest within the sound discretion of the trial court and are

       reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868




       1
         Swygart claimed that he initially went to bed but got out of bed and went to sit on the front steps because
       he was nervous about an upcoming doctor’s appointment.

       Court of Appeals of Indiana | Memorandum Decision 01A02-1704-CR-847 | October 20, 2017            Page 11 of 18
       N.E.2d 482, 490 (Ind. 2007), modified on other grounds on reh’g, 875 N.E.2d 218

       (Ind. 2007). “An abuse of discretion occurs if the decision is clearly against the

       logic and effect of the facts and circumstances before the court, or the

       reasonable, probable, and actual deductions to be drawn therefrom.” Id.

       (quotation omitted).


               One way in which a trial court may abuse its discretion is failing
               to enter a sentencing statement at all. Other examples include
               entering 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, or the sentencing statement omits reasons that are
               clearly supported by the record and advanced for consideration,
               or the reasons given are improper as a matter of law. Under
               those circumstances, remand for resentencing may be the
               appropriate remedy 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 490-91.


[22]   Swygart argues that the trial court abused its discretion in two ways. First,

       Swygart argues that the trial court abused its discretion by failing to find certain

       factors to be mitigating. Second, Swygart argues that the trial court abused its

       discretion in ordering his sentences in Counts II and III to run consecutively to

       each other.


                         1. Failure to Find Certain Factors to be Mitigating

[23]   The finding of mitigating factors is discretionary with the trial court. Fugate v.

       State, 608 N.E.2d 1370, 1374 (Ind. 1993) (citing Graham v. State, 535 N.E.2d
       Court of Appeals of Indiana | Memorandum Decision 01A02-1704-CR-847 | October 20, 2017   Page 12 of 18
       1152, 1155 (Ind. 1989)). The trial court is not required to find the presence of

       mitigating factors. Id. (citing Graham, 535 N.E.2d at 1155). Further, the trial

       court is not required to weigh or credit the mitigating evidence the way

       appellant suggests it should be credited or weighed. Id. (citing Hammons v.

       State, 493 N.E.2d 1250, 1255 (Ind. 1986)). Likewise, if the trial court does not

       find the existence of a mitigating factor after it has been argued by counsel, the

       trial court is not obligated to explain why it has found that the factor does not

       exist. Id. (citing Hammons, 493 N.E.2d at 1254-55).


[24]   Swygart argues that the trial court abused its discretion by failing to find three

       particular factors to be mitigating: (1) the undue hardship that a lengthy

       incarceration would have on his dependents, (2) that he had responded

       affirmatively to probation in the past, and (3) that he had been a productive

       member of society and had “much support” from the community at-large.

       Appellant’s Br. p. 29. We will discuss each in turn.


                                     i. Undue Hardship on Dependents

[25]   A trial court is not required to find that a defendant’s incarceration would result

       in undue hardship on his dependents. Benefield v. State, 904 N.E.2d 239, 247

       (Ind. Ct. App. 2009); see also Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind.

       1999). “Many persons convicted of serious crimes have one or more children

       and, absent special circumstances, trial courts are not required to find that

       imprisonment will result in an undue hardship.” Dowdell, 720 N.E.2d at 1154.




       Court of Appeals of Indiana | Memorandum Decision 01A02-1704-CR-847 | October 20, 2017   Page 13 of 18
[26]   The Pre-Sentence Investigation Report (“PSI”) completed prior to sentencing

       indicates that while Swygart has three adult children, Swygart’s parental rights

       to these adult children were terminated in 2002, and the children were

       subsequently “adopted separately.” Appellant’s App. Vol. III–Confidential, p.

       6. When Swygart married I.H.’s mother, he became a step-father to M.M. and

       I.H. At the time of sentencing, M.M. was eighteen years old. Swygart’s sole

       remaining dependent child is I.H., the victim of his crimes. We agree with the

       State that “[i]t would be improbable to consider the hardship [Swygart’s]

       incarceration would place on his dependents when [Swygart] in fact does not

       have any minor dependents” other than the victim. Appellee’s Br. p. 23. As

       such, we conclude that the trial court did not abuse its discretion to find the

       alleged undue hardship that Swygart’s incarceration would allegedly have on

       his dependents to be a mitigating factor.


                               ii. Prior Affirmative Response to Probation

[27]   Review of the record demonstrates that the trial court discussed Swygart’s

       criminal history and noted that while the court “maybe [ ] could have” found

       Swygart’s criminal history to be an aggravating factor, the trial court “will not

       find either aggravator or mitigatory with regard to [Swygart’s] criminal history.

       I do that specifically.” Tr. Vol. II, p. 212. In reaching this decision, the trial

       court balanced the fact that Swygart had previously been convicted of a crime

       of violence against the fact that he had apparently responded well to his

       punishment and had lived a law-abiding life, noting that his criminal history “is

       older.” Tr. Vol. II, p. 212. As such, we agree with the State’s contention that

       Court of Appeals of Indiana | Memorandum Decision 01A02-1704-CR-847 | October 20, 2017   Page 14 of 18
       “the trial court did consider [Swygart’s] criminal record” and thus “did not

       neglect to consider [Swygart’s] argument regarding that mitigatory.” Appellee’s

       Br. p. 23.


                                           iii. Community Support

[28]   Swygart’s alleged “community support” is better characterized as “family

       support.” Swygart called two witnesses to speak on his behalf at sentencing.

       One was his son. Swygart’s parental rights to this son were terminated in 2002,

       but the two men had reconnected once the son became an adult. The other was

       his wife, who also happens to be I.H.’s mother. Swygart also provided the trial

       court with a number of letters which were written on his behalf. All but one of

       these letters were written by Swygart’s family members. The other was written

       by a friend. The record reveals that the trial court reviewed the submitted

       letters and listened to the testimony of the witnesses who appeared on

       Swygart’s behalf. Again, the trial court is not required to weigh or credit the

       mitigating evidence the way Swygart suggests it should be credited or weighed

       or to explain why it has found that a proffered mitigating factor does not exist.

       Fugate, 608 N.E.2d at 1374. We cannot say that the trial court abused its

       discretion in failing to award mitigating weight to the fact that Swygart’s family

       and friend believe him to be a person who deserves leniency.




       Court of Appeals of Indiana | Memorandum Decision 01A02-1704-CR-847 | October 20, 2017   Page 15 of 18
           2. Decision to Order Sentence for Counts II and III to Run Consecutively to
                                           Each Other

[29]   We have previously concluded that so long as a defendant’s convictions do not

       violate the prohibitions against double jeopardy2 and the sentence does not

       violate applicable statutory mandates, “[a] trial court may impose consecutive

       sentences for separate and distinct crimes that arise out of a single confrontation

       involving the same victim.” Vermillion v. State, 978 N.E.2d 459, 466 (Ind. Ct.

       App. 2012). The Indiana General Assembly has defined an “episode of

       criminal conduct” as “offenses or a connected series of offenses that are closely

       related in time, place, and circumstance.” Ind. Code § 35-50-1-2(b). “[T]he

       total of the consecutive terms of imprisonment to which the defendant is

       sentenced for felony convictions arising out of an episode of criminal conduct

       may not exceed the following: … (3) If the most serious crime for which the

       defendant is sentenced is a Level 4 felony, the total of the consecutive terms of

       imprisonment may not exceed fifteen (15) years.” Ind. Code § 35-50-1-2(d).


[30]   The trial court’s sentencing order indicates that the trial court sentenced

       Swygart to terms of seven years for both Counts II and III. Thus, when added

       together, the total consecutive term of imprisonment to which Swygart was

       sentenced for his convictions relating to the events which occurred in I.H.’s

       bedroom was fourteen years. Given our opinion in Vermillion coupled with the




       2
         Swygart does not develop an argument that his convictions violated the prohibitions against double
       jeopardy.

       Court of Appeals of Indiana | Memorandum Decision 01A02-1704-CR-847 | October 20, 2017        Page 16 of 18
       fact that fourteen years is less than the fifteen-year maximum set forth for a

       Level 4 felony in Indiana Code section 35-50-1-2(d), we cannot say that the trial

       court abused its discretion in ordering the sentences imposed in Counts II and

       III to be served consecutively to each other.


                  B. Whether Swygart’s Sentence is Inappropriate
[31]   Indiana Appellate Rule 7(B) 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.” In analyzing such claims, we “‘concentrate

       less on comparing the facts of [the case at issue] to others, whether real or

       hypothetical, and more on focusing on the nature, extent, and depravity of the

       offense for which the defendant is being sentenced, and what it reveals about

       the defendant’s character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App.

       2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans.

       denied). The defendant bears the burden of persuading us that his sentence is

       inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).


[32]   In challenging the appropriateness of his sentence, Swygart does not present

       any argument that his sentence is inappropriate in light of the nature of his

       offenses. As to his character, Swygart argues that at the time of sentencing, he

       was forty-two years old and had not been convicted of any crimes since 2002.

       He also points to the fact that he had been gainfully employed for over twenty




       Court of Appeals of Indiana | Memorandum Decision 01A02-1704-CR-847 | October 20, 2017   Page 17 of 18
       years and that his family and friends found him to be hardworking and

       trustworthy.


[33]   The Indiana Supreme Court has held that a harsher sentence is more

       appropriate when the defendant has violated a position of trust that arises from

       a particularly close relationship between the defendant and the victim, such as a

       parent-child relationship. Hamilton v. State, 955 N.E.2d 723, 727 (Ind. 2011).

       Swygart’s actions and character reveal that he violated such a position of trust

       by committing sexual misconduct on his young step-daughter. Swygart has

       failed to meet his burden of persuading us that his aggregate twenty-six-year

       sentence is inappropriate.



                                               Conclusion
[34]   In sum, we conclude that the evidence is sufficient to sustain Swygart’s

       convictions, the trial court did not abuse its discretion in sentencing Swygart,

       and Swygart’s sentence is not inappropriate. As such, we affirm the judgment

       of the trial court.


[35]   The judgment of the trial court is affirmed.


       May, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 01A02-1704-CR-847 | October 20, 2017   Page 18 of 18
