                                                                         FILED
                                                                     Mar 25 2020, 5:45 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Russell B. Cate                                           Curtis T. Hill, Jr.
Cate, Terry & Gookins, LLC                                Attorney General of Indiana
Carmel, Indiana                                           Lauren A. Jacobsen
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Richard A. Mise,                                          March 25, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-1049
        v.                                                Appeal from the Hamilton
                                                          Superior Court
State of Indiana,                                         The Honorable Michael A. Casati,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          29D01-1702-FA-747



Pyle, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-1049 | March 25, 2020                           Page 1 of 19
                                          Statement of the Case
[1]   Richard A. Mise (“Mise”) appeals, following a jury trial, his convictions and

      aggregate sentence for Class A felony child molesting1 and Class C felony child

      molesting.2 Mise argues that: (1) the trial court committed fundamental error

      when it admitted into evidence testimony from the two victims relating to more

      than one instance of inappropriate touching; and (2) his aggregate advisory

      sentence with time suspended to probation is inappropriate. Concluding that

      Mise has failed to show fundamental error and that his sentence is not

      inappropriate, we affirm Mise’s convictions and sentence.


[2]   We affirm.


                                                        Issues
             1. Whether the trial court committed fundamental error when it
                admitted into evidence testimony from the two victims.

             2. Whether Mise’s sentence is inappropriate.



                                                         Facts
[3]   Mise has five children with two different women, neither of whom he married.

      These two women each had a daughter with men other than Mise. These



      1
        IND. CODE § 35-42-4-3(a). We note that, effective July 1, 2014, a new version of this child molesting statute
      was enacted and that Class A felony child molesting is now a Level 1 felony. Because Mise committed his
      crime prior to the effective date, we will apply the statute in effect at that time.
      2
       I.C. § 35-42-4-3(b). Under the above-noted amended statute, Class C felony child molesting is now a Level
      4 felony.

      Court of Appeals of Indiana | Opinion 19A-CR-1049 | March 25, 2020                                 Page 2 of 19
      daughters, S.M., born in September 2001, and E.R., born in June 2002, are the

      victims in this case.


[4]   S.M.’s mother met Mise in 2002 when S.M. was five or six months old. S.M.

      had a father-daughter relationship with Mise. S.M.’s mother had an eleven-

      year relationship and four sons with Mise. In 2013, after that relationship had

      ended, Mise moved into his parents’ house in Noblesville. Thereafter, S.M.

      and her four brothers stayed with Mise at his parents’ house every other

      weekend.


[5]   E.R. first met Mise around 2013 when she was eleven or twelve years old.

      E.R.’s mother had a daughter, G.R., with Mise. From the time that E.R. met

      Mise, she and G.R. spent “[a]lmost every weekend” visiting Mise at his parents’

      house. (Tr. Vol. 3 at 23). During some of those weekends, S.M. and her four

      brothers also visited Mise.


[6]   During one weekend, Mise’s dog had fleas, and E.R., who was eleven or twelve

      years old, gave the dog a bath in the bathroom. After she had finished bathing

      the dog, Mise went into the bathroom and told E.R. that “he wanted [her] to

      check [her] vagina [to see] if [she] had fleas.” (Tr. Vol. 3 at 28). Mise watched

      as he had E.R. take off her clothes, squat on the floor, stick her finger in her

      vagina, pull it out, and check it for fleas.


[7]   On a day shortly thereafter, E.R. gave Mise’s dog another bath. After the bath,

      Mise had E.R. check herself for fleas while in his bedroom. Mise told E.R. to

      “take off [her] pants[,] . . . squat or lay down[,] . . . stick [her] finger in [her]

      Court of Appeals of Indiana | Opinion 19A-CR-1049 | March 25, 2020              Page 3 of 19
      vagina[,] . . . pull it back out[,] and see if [she] had fleas.” (Tr. Vol. 3 at 30).

      Again, Mise watched E.R. as she did the flea check. E.R. was “really scared”

      at that time but did not say anything to Mise because she felt that he was “the

      powerful human[.]” (Tr. Vol. 3 at 33). E.R. did not tell anyone what had

      happened because she was “afraid that [she] would have been in trouble.” (Tr.

      Vol. 3 at 32).


[8]   Later, sometime between late 2013 and early 2014, E.R., S.M., and their

      mothers and siblings visited Mise on the same day. E.R. was sitting in the

      living room on the couch with Mise as she played with her Kindle and he

      watched television. Mise sat against the couch’s armrest with his legs spread

      out, and E.R. sat in between his legs and leaned against him. Mise’s father was

      also in the living room, sitting at the computer with his back to Mise. Mise

      reached under the blanket that covered E.R., slid his hand inside her jeans,

      inserted his finger in her vagina, and rubbed his finger up and down. As he did

      so, Mise whispered in E.R.’s ear, asking her, “Does that feel good?” (Tr. Vol. 3

      at 26). When Mise’s mother approached and walked into the room, Mise

      pulled his hand out E.R.’s pants. E.R. left the couch and “went straight back”

      to where S.M. was in the house, and E.R. told S.M. what Mise had done. (Tr.

      Vol. 3 at 27). After that incident, E.R. never went back to Mise’s house.


[9]   Thereafter, Mise inappropriately touched S.M. when she was visiting at Mise’s

      house. On one occasion when S.M. was twelve years old, she was in Mise’s

      bedroom talking to him when he “told [her] to get completely undressed.” (Tr.

      Vol. 2 at 247). S.M. “d[id] what [she] was told” and removed her tank top and

      Court of Appeals of Indiana | Opinion 19A-CR-1049 | March 25, 2020            Page 4 of 19
       shorts. (Tr. Vol. 2 at 247). He then instructed S.M. to lie on the bed. Mise,

       who was wearing basketball shorts and no shirt, then started “fingering” S.M.

       (Tr. Vol. 2 at 248). He put his hand on top of and inside her vagina. S.M. told

       Mise to stop, but he did not. He eventually stopped when S.M. got up, got

       dressed, and ran out of the bedroom. S.M. did not tell anyone what Mise had

       done because she “didn’t feel comfortable saying it.” (Tr. Vol. 2 at 250).


[10]   A couple of weeks later, Mise again inappropriately touched S.M. At that time,

       she had a skin rash on her arms, legs, chest, and stomach, and she had a

       medicated lotion that she had to put on it. S.M. was able to apply the lotion by

       herself, but Mise went into the bathroom with her to apply lotion on her. Mise

       told S.M. to get undressed and to sit on the toilet, and he rubbed lotion on

       S.M.’s arms, legs, and chest, including her “boobs.” (Tr. Vol. 3 at 4). Mise

       then touched S.M. “[i]n the private area” and began “fingering [her] again.”

       (Tr. Vol. 3 at 4, 5). After a few minutes, S.M. “pushed him” off, got dressed,

       and ran out of the bathroom. (Tr. Vol. 3 at 5).


[11]   Approximately three years later, S.M. told her school counselor what Mise had

       done to her. S.M. also told her school counselor that she was concerned about

       E.R. The school counselor then reported the allegations to DCS and the police.

       Thereafter, in March 2016, forensic interviewers at Cherish Child Advocacy

       Center (“Cherish Center”) interviewed S.M. and E.R. Apparently, during

       E.R.’s forensic interview, she stated that Mise had touched her vagina when he

       checked her for fleas. The full content of the girls’ forensic interviews, however,

       is not known because the State did not offer them as evidence during trial.

       Court of Appeals of Indiana | Opinion 19A-CR-1049 | March 25, 2020       Page 5 of 19
[12]   Hamilton County Sheriff’s Department Detective Sergeant Scott Goff

       (“Detective Goff”) interviewed Mise on March 30, 2016 and April 12, 2016.

       During the first interview, Mise acknowledged that he had had a father-

       daughter relationship with S.M. since she was a baby. Detective Goff asked

       Mise whether he had rubbed S.M.’s vagina while on his bed, and Mise denied

       it. The detective also asked Mise about S.M.’s rash, and Mise stated that he

       had rubbed the rash cream on S.M.’s back only and that he had instructed her

       to put the cream on any other part of her body. Mise also stated that he had no

       memory of doing anything wrong.


[13]   Additionally, Detective Goff asked Mise about allegations involving E.R. The

       detective asked Mise if he had talked to E.R. about masturbation because E.R.

       had said that Mise had talked to her about “sticking a finger in the hole” and it

       “feeling good.” (State’s Ex. 6R). Mise denied doing so. Detective Goff also

       asked Mise about how he had checked E.R. for fleas in the bathroom after she

       had washed the dog, and he denied that he had E.R. open her vagina and then

       checked it for fleas. Mise stated that he had told E.R. that fleas could go

       anywhere and that he had instructed her to spray herself off after giving the dog

       a bath. Mise also denied that he had put his hand down E.R.’s pants and had

       rubbed her vagina while sitting on the couch, and he stated that his dad was

       always in the living room with him.


[14]   During the second interview, when Detective Goff and Mise discussed whether

       Mise had rubbed the rash cream on S.M.’s vagina, Mise stated that he had

       never directly done anything of which he was consciously aware. When the

       Court of Appeals of Indiana | Opinion 19A-CR-1049 | March 25, 2020       Page 6 of 19
       detective asked Mise whether he had indirectly touched her, Mise pondered

       that he may have explained to her in too much detail about how to rub in the

       cream and where to rub it. Mise stated that he had told S.M. to put the cream

       everywhere and that he had demonstrated to her, by rubbing his own nipples,

       how to rub it on her chest. Mise again denied that he had put his finger in

       E.R.’s vagina while they were on the couch, but he mused that, when she

       leaned up against him on the couch, he may have put his arms around her and

       put his hand on her belly. Detective Goff and Mise again discussed what had

       happened with the flea check after E.R. had washed the dog. Mise denied that

       he had touched E.R.’s vagina or breasts but stated that E.R. had raised her shirt

       for him to look at her back for fleas.


[15]   The State later charged Mise with Class A felony child molesting and Class C

       felony child molesting. In regard to the Class A felony, the State generally

       alleged that between June 24, 2013 and June 23, 2015, Mise performed deviate

       sexual conduct with E.R. For the Class C felony, the State generally alleged

       that between September 14, 2013 and February 28, 2015, Mise fondled or

       touched S.M. with intent to arouse or satisfy the sexual desire of himself or

       S.M.


[16]   After he was charged, Mise filed a motion for discovery in which he sought,

       among other things, any exhibits and any 404(b) evidence that the State might

       offer at trial. In April 2017, the State filed a discovery response, indicating the

       various exhibits, which included a copy of S.M.’s and E.R.’s forensic

       interviews, that it had provided to Mise’s counsel.

       Court of Appeals of Indiana | Opinion 19A-CR-1049 | March 25, 2020         Page 7 of 19
[17]   The trial court held a three-day jury trial in March 2019. At that time, S.M.

       was seventeen years old, and E.R. was sixteen years old. During opening

       statements, the prosecutor told the jurors that they would hear testimony from

       S.M. about two instances where Mise had touched her vagina, once in his

       bedroom and the second time when he put a prescription cream on her rash.

       The prosecutor also told the jury that they would hear testimony from E.R.

       about how Mise had put his finger into her vagina when they were sitting on a

       couch and about how Mise had inspected E.R.’s vagina for fleas after she had

       washed the dog. Mise did not object to the prosecutor’s statements.


[18]   During the trial, S.M. and E.R. testified to the facts regarding the offenses as set

       forth above, and Mise did not object to the admission of this testimony. S.M.

       and E.R. also testified that they had been interviewed at the Cherish Center.

       The videos of their interviews were not offered as evidence. When discussing

       her Cherish Center interview, S.M. testified that she had told the Cherish

       Center interviewer what had happened but acknowledged that it was “not in

       full detail” because she had not felt comfortable when discussing what Mise had

       done to her. (Tr. Vol. 3 at 7).


[19]   Mise’s counsel specifically cross-examined S.M. and E.R. regarding their

       testimony that Mise had inappropriately touched them on various occasions.

       His counsel also used S.M.’s and E.R.’s statements made during their Cherish

       Center interviews to challenge the credibility of their trial testimony. For

       example, counsel asked S.M. if she remembered whether she had told the

       Cherish Center interviewer that Mise had touched her only on the outside of

       Court of Appeals of Indiana | Opinion 19A-CR-1049 | March 25, 2020        Page 8 of 19
       her body and that she had stopped Mise from touching her breasts. Mise’s

       counsel also asked E.R. whether she remembered telling the Cherish Center

       interviewer that Mise had touched her when she checked for fleas in the

       bathroom and whether she had told the interviewer about the flea check

       incident in the bedroom.


[20]   During closing arguments, the State discussed the elements of the two charged

       offenses. When discussing Mise’s Class A felony charge involving E.R., the

       State argued that Mise had performed deviate sexual conduct with E.R. when

       he put his finger insider her vagina while they were on the couch. The State

       also argued that Mise had groomed E.R. for the inappropriate touching when

       he had instructed her to touch her vagina to check for fleas. During Mise’s

       closing argument, his attorney also referred to flea-checking testimony in an

       attempt to challenge E.R.’s credibility. In regard to Mise’s Class C felony

       charge involving S.M., the State argued that Mise had fondled or touched

       S.M.’s vagina on two occasions, once in his bedroom and again when he had

       put rash cream on her. The jury found Mise guilty as charged.


[21]   During Mise’s sentencing hearing, E.R. gave a victim-impact statement,

       testifying that Mise had originally “acted like a dad” whom she had trusted but

       then he had “turned into this monster” that “absolutely terrified” her after he

       had “laid [his] hands on [her.]” (Tr. Vol. 3 at 121). S.M. provided a written

       victim-impact statement and explained that Mise’s crime against her had

       affected her emotionally and had caused her to feel depressed, scared, and

       suicidal. The trial court found multiple aggravating circumstances, including:

       Court of Appeals of Indiana | Opinion 19A-CR-1049 | March 25, 2020       Page 9 of 19
       (1) Mise’s violation of his position of trust with S.M. and E.R.; (2) the nature

       and circumstances of the offenses showing that Mise had committed the

       offenses while his other minor children were in the house; (3) the fact that he

       had multiple victims; (4) Mise had engaged in multiple acts of molestation

       against these victims; and (5) a lesser sentence would depreciate the seriousness

       of his offenses. The trial court found Mise’s lack of criminal history and the

       hardship on his dependent to be mitigating circumstances. The trial court

       imposed an advisory thirty (30) year sentence, with twenty-five (25) years

       executed and five (5) years suspended to probation for Mise’s Class A felony

       conviction and an advisory four (4) year sentence for his Class C felony

       conviction. The trial court ordered these sentences to be served consecutively.

       Mise now appeals.


                                                    Decision
[22]   Mise argues that: (1) the trial court committed fundamental error when it

       admitted into evidence testimony from the two victims; and (2) his aggregate

       sentence is inappropriate.


       1. Admission of Evidence


[23]   We first review Mise’s challenge to the trial court’s admission of testimony

       from the two victims, E.R. and S.M. Specifically, he contends that their

       testimony was inadmissible under Indiana Evidence Rule 404(b) because it

       involved prior bad acts that were “undisclosed” and “uncharged.” (Mise’s Br.

       10, 13). Mise acknowledges that he did not object to the testimony at trial. His

       Court of Appeals of Indiana | Opinion 19A-CR-1049 | March 25, 2020       Page 10 of 19
       failure to object to the testimony results in waiver of any argument regarding its

       admissibility. See Hoglund v. State, 962 N.E.2d 1230, 1239 (Ind. 2012) (“Failure

       to object at trial waives the issue for review unless fundamental error

       occurred.”), reh’g denied. Mise recognizes this procedural default and argues

       that the admission of the testimony constituted fundamental error.


[24]   “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.” Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006)

       (internal quotation marks omitted). “Harm is not shown by the fact that the

       defendant was ultimately convicted; rather harm is found when error is so

       prejudicial as to make a fair trial impossible.” Hoglund, 962 N.E.2d at 1239.

       The fundamental error exception is “available only in ‘egregious

       circumstances.’” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (quoting

       Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003)), reh’g denied. “Fundamental

       error is meant to permit appellate courts a means to correct the most egregious

       and blatant trial errors that otherwise would have been procedurally barred, not

       to provide a second bite at the apple for defense counsel who ignorantly,

       carelessly, or strategically fail to preserve an error.” Ryan v. State, 9 N.E.3d 663,

       668 (Ind. 2014), reh’g denied.


[25]   Indiana Evidence Rule 404(b) provides that “[e]vidence of a crime, wrong, or

       other act is not admissible to prove a person’s character in order to show that on

       a particular occasion the person acted in accordance with the character.” Ind.

       Court of Appeals of Indiana | Opinion 19A-CR-1049 | March 25, 2020        Page 11 of 19
       Evid. Rule 404(b)(1). However, such evidence may be admitted to prove

       “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of

       mistake, or lack of accident.” Evid. R. 404(b)(2). Evidence “Rule 404(b) is

       designed to prevent the jury from making the forbidden inference that prior

       wrongful conduct suggests present guilt.” Halliburton v. State, 1 N.E.3d 670, 681

       (Ind. 2013) (citation and internal quotation marks omitted). See also Hicks v.

       State, 690 N.E.2d 215, 218 (Ind. 1997) (explaining that Evidence Rule 404(b) is

       “designed to prevent the jury from assessing a defendant’s present guilt on the

       basis of his past propensities”). When assessing the admissibility of evidence

       under Evidence Rule 404(b), the trial court must: (1) determine whether the

       evidence of other crimes, wrongs, or acts is relevant to a matter at issue other

       than the defendant’s propensity to commit the charged act; and (2) balance the

       probative value of the evidence against its prejudicial effect pursuant to

       Evidence Rule 403. Rivera v. State, 132 N.E.3d 5, 12 (Ind. Ct. App. 2019), reh’g

       denied, trans. denied.


[26]   Turning to Mise’s challenge to the admission of E.R.’s and S.M.’s testimony,

       we conclude that he has failed to meet his burden of showing fundamental

       error. Mise has failed to show how the admission of their testimony made a

       fair trial impossible and why the circumstances in this case were egregious.

       Indeed, Mise has failed to direct us to the specific portion of testimony from

       E.R. and S.M. that he contends should have been excluded from evidence.

       Instead, he references the girls’ testimony regarding the multiple acts that he

       committed against them, which were the acts that were investigated by


       Court of Appeals of Indiana | Opinion 19A-CR-1049 | March 25, 2020       Page 12 of 19
       Detective Goff and apparently discussed by the girls during the forensic

       interviews. Mise seems to argue that, because he was charged with only one

       count of child molesting for each girl, it was fundamental error for the trial

       court to allow S.M. and E.R. to testify to multiple instances.


[27]   Evidence Rule 404(b) does not, however, bar evidence of repeated incidents of

       sex offenses that occurred within the charged timeframe where such evidence is

       “direct evidence” of guilt of the charged offenses and not evidence of other

       crimes or wrongs. See e.g., Marshall v. State, 893 N.E.2d 1170, 1174 (Ind. Ct.

       App. 2008); Garner v. State, 754 N.E.2d 984, 993 (Ind. Ct. App. 2001), opinion

       summarily aff’d in relevant part, vacated in part, 777 N.E.2d 721 (Ind. 2002); see also

       Baker v. State, 948 N.E.2d 1169, 1174-78 (Ind. 2011) (holding that the State may

       present evidence of a greater number of separate child molesting offenses than

       the number charged so long as jury is properly instructed on unanimity),3 reh’g

       denied. In Garner and Marshall, testimony regarding repeated molestations,

       which were more than the charged counts of child molesting, was admitted into

       evidence. On appeal, the defendants in both cases argued that the admission of

       the multiple acts violated Evidence Rule 404(b). Our Court explained that

       there was no error in the admission of the multiple acts of molestation and no

       violation of Rule 404(b) in either case because the testimony in each case was

       “direct evidence” that the defendants had committed the charged offenses




       3
           Mise does not argue that the jury was improperly instructed regarding unanimity.


       Court of Appeals of Indiana | Opinion 19A-CR-1049 | March 25, 2020                     Page 13 of 19
       during the charged time period, not evidence of other wrongs to show that the

       defendants had acted in accordance with the character to commit the offenses.

       See Marshall, 893 N.E.2d at 1174; Garner, 754 N.E.2d at 993.


[28]   Like those cases, here, the State presented testimony from S.M. that Mise had

       touched her vagina on two occasions within the charging dates, once in his

       bedroom and a second time when he put rash lotion on her. This evidence was

       direct evidence that Mise had committed the charged offense of child molesting

       during the time period listed in the charging information. As such, the

       admission of her testimony was not in violation of Rule 404(b). See Marshall,

       893 N.E.2d at 1174; Garner, 754 N.E.2d at 993. Furthermore, Mise did not

       object to S.M.’s testimony regarding the multiple instances of molestation, and

       he used this testimony when cross-examining her in an effort to challenge her

       credibility. Accordingly, Mise has failed to show that the trial court committed

       fundamental error by allowing S.M.’s testimony.


[29]   As for Mise’s challenge to E.R.’s testimony, it appears that he is challenging the

       admission of her testimony regarding the flea checks during which Mise

       instructed E.R. to insert her own finger in her vagina to check for fleas.

       Because Mise was charged with child molesting for performing sexual deviate

       conduct with E.R. (or that he performed the penetration of her sex organ by an

       object), this evidence would not constitute direct evidence of his charged

       offense. Nevertheless, her testimony was admissible under Rule 404(b)(2),

       which permits evidence to be admitted when it is admitted “for another

       purpose,” such as “preparation” or “plan[.]” Evid. R. 404(b)(2). We have

       Court of Appeals of Indiana | Opinion 19A-CR-1049 | March 25, 2020       Page 14 of 19
       previously explained that evidence of a defendant’s preparation and planning,

       which includes “grooming”—or “the process of cultivating trust with a victim

       and gradually introducing sexual behaviors until reaching the point where it is

       possible to perpetrate a sex crime against the victim” is relevant and establishes

       a valid basis for the admission of evidence under Rule 404(b). See Piercefield v.

       State, 877 N.E.2d 1213, 1216 n.1 (Ind. Ct. App. 2007) (internal quotation marks

       and citation omitted), trans. denied; see also Guffey v. State, 42 N.E.3d 152, 161

       (Ind. Ct. App. 2015), trans. denied.


[30]   Here, the testimony regarding the flea checks was relevant to a matter other

       than his propensity to commit the charged offense. Instead, it was relevant to

       show Mise’s grooming of S.M. to get her comfortable with having her vagina

       touched. See Guffey, 42 N.E.3d at 161 (explaining that evidence was admissible

       under Rule 404(b)(2) where the defendant’s acts of encouraging the victim’s

       exposure to alcohol and sexually-tinged content and acts were done to prepare

       the victim to be more comfortable with the eventual sexual act that the

       defendant had planned); Piercefield, 877 N.E.2d at 1216-17 (holding that

       evidence was admissible under Rule 404(b)(2) because the defendant’s prior

       acts of having his stepchildren massage him were relevant under Rule 404(b) to

       show the defendant’s preparation, plan, and grooming because he was

       familiarizing the children to touching his body). As the State pointed out

       during its closing argument, Mise had prepared E.R. for the inappropriate

       touching when he had instructed her to touch her vagina to check for fleas.

       E.R.’s testimony was probative and admissible to show his preparation and


       Court of Appeals of Indiana | Opinion 19A-CR-1049 | March 25, 2020         Page 15 of 19
       planning and any prejudice did not outweigh the probative value. Because this

       evidence was admissible, Mise has failed to show that the trial court committed

       fundamental error by admitting the testimony into evidence.4


       2. Inappropriate Sentence


[31]   Mise argues that the aggregate sentence for his Class A felony child molesting

       and Class C felony child molesting is inappropriate. We disagree.


[32]   We may revise a sentence if it is inappropriate in light of the nature of the

       offense and the character of the offender. Ind. Appellate Rule 7(B). The

       defendant has the burden of persuading us that his sentence is inappropriate.

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a

       Rule 7(B) review “should be to attempt to leaven the outliers, and identify some

       guiding principles for trial courts and those charged with improvement of the

       sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

       Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “Appellate Rule 7(B)



       4
          In his Reply Brief, Mise challenges the admission of E.R.’s testimony under Rule 404(b)(2), arguing for the
       first time that the State had failed to give him reasonable notice—before or during trial—of the general nature
       of the evidence that it intended to offer. Mise has waived this argument. See Snow v. State, 137 N.E.3d 965,
       969 (Ind. Ct. App. 2019) (“The law is well settled that grounds for error may only be framed in an appellant’s
       initial brief and if addressed for the first time in the reply brief, they are waived.”), reh’g denied; see also Jones v.
       State, 22 N.E.3d 877, 881 n.4 (Ind. Ct. App. 2014). Waiver notwithstanding, the record before us makes
       clear that Mise had notice of the flea-check incidents prior to E.R.’s testimony as the incidents were discussed
       during Mise’s police interview, were apparently contained on the video of E.R.’s forensic interview that the
       State provided to him pursuant to a discovery request, and were discussed during opening statements at trial.
       Additionally, we reject Mise’s reliance on Sasser v. State, 945 N.E.2d 201 (Ind. Ct. App. 2011), trans. denied.
       In Sasser, the defendant was charged with failing to register as a sex offender, and the State introduced
       evidence of the defendant’s prior convictions for failure to register. In Sasser’s appeal, there was no argument
       that the evidence was admissible pursuant to one of the exceptions in Rule 404(b)(2). Here, however, an
       exception is applicable to Mise’s challenged testimony.

       Court of Appeals of Indiana | Opinion 19A-CR-1049 | March 25, 2020                                        Page 16 of 19
       analysis is not to determine whether another sentence is more appropriate but

       rather whether the sentence imposed is inappropriate.” Conley v. State, 972

       N.E.2d 864, 876 (Ind. 2012) (internal quotation marks and citation omitted),

       reh’g denied.


[33]   When determining whether a sentence is inappropriate, we acknowledge that

       the advisory sentence “is the starting point the Legislature has selected as an

       appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081.

       Here, Mise was convicted of Class A felony child molesting and Class C felony

       child molesting. A person who commits a Class A felony “shall be imprisoned

       for a fixed term of between twenty (20) and fifty (50) years, with the advisory

       sentence being thirty (30) years.” I.C. § 35-50-2-4(a). A person who commits a

       Class C felony “shall be imprisoned for a fixed term of between two (2) and

       eight (8) years, with the advisory sentence being four (4) years.” I.C. § 35-50-2-

       6(a). Here, the trial court imposed consecutive advisory sentences and

       suspended a portion of the sentence to probation. Specifically, the trial court

       imposed an advisory thirty (30) year sentence, with twenty-five (25) years

       executed and five (5) years suspended to probation for Mise’s Class A felony

       conviction and an advisory four (4) year sentence for his Class C felony

       conviction.


[34]   An appellate court is “unlikely to consider an advisory sentence inappropriate.”

       Shelby v. State, 986 N.E.2d 345, 371 (Ind. Ct. App. 2013), trans. denied. “[A]

       defendant bears a particularly heavy burden in persuading us that his sentence

       is inappropriate when the trial court imposes the advisory sentence.” Fernbach

       Court of Appeals of Indiana | Opinion 19A-CR-1049 | March 25, 2020       Page 17 of 19
       v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied. When

       considering the appropriateness of a sentence, we consider “all aspects of the

       penal consequences imposed by the trial judge in sentencing,” including

       “whether a portion of the sentence is ordered suspended.” Davidson v. State, 926

       N.E.2d 1023, 1025 (Ind. 2010). Mise has not met the heavy burden he faces in

       this appeal.


[35]   Turning first to the nature of Mise’s two felony child molesting offenses, we

       note that Mise committed his offenses against two young girls with whom he

       shared a father-daughter relationship. He abused his position of trust with these

       girls and robbed them of their youthful innocence when he molested them. As

       noted during the sentencing hearing, the nature of Mise’s offenses against the

       girls had a detrimental effect on them.


[36]   Turning to Mise’s character, we recognize that he has no prior criminal history

       and that his incarceration may pose a hardship to his dependents. Indeed, the

       trial court considered those factors as mitigating circumstances when imposing

       the advisory sentences with suspended time in this case. We note, however,

       that Mise’s commission of the offenses while other people, including his own

       minor children, were in the house reflects poorly on his character.


[37]   Mise has not persuaded us that his aggregate thirty-four-year sentence with five

       years suspended for his Class A felony and Class C felony child molesting




       Court of Appeals of Indiana | Opinion 19A-CR-1049 | March 25, 2020     Page 18 of 19
       convictions is inappropriate. Therefore, we affirm the sentence imposed by the

       trial court.5


[38]   Affirmed.


       Robb, J., and Mathias, J., concur.




       5
        We also reject Mise’s suggestion that the trial court improperly considered his score on the Indiana Risk
       Assessment System instrument. “Our Indiana Supreme Court has explained that scores on a probation
       department’s risk assessment instrument ‘are not intended to serve as aggravating or mitigating circumstances nor
       to determine the gross length of sentence[.]’” Bratcher v. State, 999 N.E.2d 864, 872 (Ind. Ct. App. 2013) (quoting
       Malenchik v. State, 928 N.E.2d 564, 575 (Ind. 2010)), trans. denied. “Instead, these ‘offender assessment instruments
       are appropriate supplemental tools for judicial consideration at sentencing’ and can be used by the trial court ‘in
       formulating the manner in which a sentence is to be served.’” Id. (quoting Malenchik, 928 N.E.2d at 575). Here,
       during the sentencing hearing, Mise was the one who highlighted his risk assessment score by presenting testimony
       from the probation officer. The trial court, however, did not use his assessment score as an aggravating
       circumstance.




       Court of Appeals of Indiana | Opinion 19A-CR-1049 | March 25, 2020                                     Page 19 of 19
