 MEMORANDUM DECISION                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),                                          Apr 08 2019, 10:01 am

this Memorandum Decision shall not be                                                CLERK
                                                                                 Indiana Supreme Court
regarded as precedent or cited before any                                           Court of Appeals
                                                                                      and Tax Court
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
Jennifer A. Joas                                          Curtis T. Hill, Jr.
Madison, Indiana                                          Attorney General of Indiana
                                                          Taylor C. Byrley
                                                          Angela Sanchez
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Versal W. Strunk,                                         April 8, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2272
        v.                                                Appeal from the
                                                          Ripley Circuit Court
State of Indiana,                                         The Honorable
Appellee-Plaintiff.                                       Ryan J. King, Judge
                                                          Trial Court Cause No.
                                                          69C01-1710-F1-11



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2272 | April 8, 2019                       Page 1 of 10
[1]   Versal W. Strunk (“Strunk”) pleaded guilty to child molesting1 as a Level 1

      felony and was sentenced to fifty years executed and determined to be a credit

      restricted felon. Strunk appeals and raises the following issue for our review:

      whether his fifty-year executed sentence is inappropriate in light of the nature of

      the offense and the character of the offender.


[2]   We vacate and remand.


                                      Facts and Procedural History
[3]   Strunk was born in 1986. Tr. Vol. 2 at 13. Strunk’s wife babysat children in the

      couple’s residence in Osgood, Ripley County, Indiana. Appellant’s App. Vol. II

      at 49. E.W. and L.W. were two of the children that Strunk’s wife watched, and

      E.W. and L.W. would sometimes stay overnight at Strunk’s residence when

      their mother had to work early the next morning. Id. at 13, 64. During the

      time that Strunk’s wife watched E.W. and L.W., Strunk engaged in sexual

      conduct with them. Id. at 49-50, 63-68. The molestation began when Strunk

      and his wife first began watching the children and continued until the police

      began their investigation. Id. at 63.


[4]   On September 26, 2017, L.W., who was seven years old at the time, told her

      mother that Strunk had “touched” her. Id. at 12. The children’s mother took

      them to the police department where they were interviewed. During her




      1
          See Ind. Code § 35-42-4-3(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2272 | April 8, 2019   Page 2 of 10
      interview, L.W. told the police that Strunk would give her a bath and touch her

      everywhere on her body with his hands. Id. at 63. L.W. stated that he had

      given her a bath more than one time and stated that is was “not okay” for him

      to touch her “bad body parts.” Id. L.W. further stated that Strunk’s hands

      would go “inside the folds of her vagina and between the cheeks of her butt”

      when he gave her a bath. Id. L.W. told the police that Strunk would wake up

      her brother, E.W., in the middle of the night to go into the bathroom to play

      cards. Id. L.W. indicated that when E.W. had to use the toilet, Strunk would

      sit on the toilet with his clothes off and have E.W. urinate between Strunk’s

      legs. Id. Strunk told L.W. that she had to “keep it a secret” or he “would go to

      jail.” Id. L.W. told the police that “if mommy wouldn’t [have] known about it,

      it would have kept going.” Id.


[5]   The police also interviewed E.W., who was eight years old at the time, and in

      the interview, E.W. referred to Strunk as “uncle” although they are not related.

      Id. E.W. indicated that Strunk would wake him up and take him to the

      bathroom to “play slap jack and if you lose you have to drink.” Id. at 64. E.W.

      stated that Strunk would make him urinate between Strunk’s legs “all the time.”

      Id. E.W. said that Strunk would put “sex.com” on his phone when E.W. was

      urinating between his legs and that Strunk would have his underwear around

      his ankles. Id. E.W. indicated that Strunk told him that his son had done this

      before. Id. E.W. stated that Strunk would show him “sex videos” and “how

      women get pregnant.” Id. E.W. further stated that Strunk “touched his wiener

      and butt” and “had taken pictures of his wiener.” Id. E.W. told the police that

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2272 | April 8, 2019   Page 3 of 10
      Strunk “puts his finger up my butt” and that it “feels weird.” Id. E.W. stated

      that when Strunk gave him a bath he would use his hands on his “weiner” and

      start rubbing him. Id.         E.W. also stated that Strunk had shown E.W. his penis

      and that Strunk “jacks off and white stuff comes out onto the toilet paper that

      [Strunk] flushes down the toilet.” Id. E.W. indicated that, when he was in bed

      at Strunk’s house, Strunk would “suck on his peebird” and that it “feels weird.”

      Id. E.W. stated that Strunk told him “it will feel good when [you are] thirteen.”

      Id. E.W. told the police that Strunk told him to “keep this a secret” because

      Strunk “doesn’t want mommy and daddy to know” and he “doesn’t want to go

      to jail.” Id. E.W. indicated that all this happened when he was seven and eight

      years old. Id.


[6]   Strunk met with the police and voluntarily admitted that he has a “sexual

      problem” with young boys and that he has had children urinate on him. Id. at

      65. Strunk stated that L.W. had urinated on him several times and

      acknowledged that this was a sexual fantasy of his. Id. Strunk also stated that

      he told L.W. the only way he would give her a bath is if she urinated on him.

      Id. Strunk admitted that E.W. has probably urinated on him at least ten times

      and that he would “tell [E.W.] things about sex hoping that [E.W.] would want

      to act on them.” Id. Strunk would sleep in the same bed with E.W. and would

      “jack him most of the time with [E.W.’s] underwear pulled up and on the

      outside of E.W.’s underwear.” Id. Strunk also took E.W.’s underwear down

      and masturbated E.W., telling E.W. that “it will feel a lot different when you

      become a teenager.” Id. Strunk also told the police that he had given E.W. “a

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2272 | April 8, 2019   Page 4 of 10
      blowjob” two times and that E.W. told him, “I don’t really like that.” Id.

      Strunk admitted that he would place E.W. on top of him and show E.W. “the

      feeling of what guys do on top of girls” and acknowledged that he and E.W.

      were acting out having sex with their underwear still on. Id. Strunk also

      admitted that he had masturbated in front of E.W. probably ten times in the

      bathroom after E.W. urinated on him. Id. at 66. Strunk stated that he had

      offered for E.W. to put his penis in Strunk’s butt “for the experience of what it

      would be like if you’re doing it with a woman when you get older.” Id. at 67.


[7]   Strunk stated that he had “been wanting to put an end to it” because he did not

      feel right doing it and “didn’t want to lose his kids.” Id at 65. Strunk told the

      police that he told L.W. and E.W. not to say anything to anyone and that “if

      you say anything I won’t be able to do anything and then come back, and you

      guys won’t be able to see me again.” Id. at 67. Strunk also told L.W. and E.W.

      that he would probably go to prison. Id.


[8]   Strunk also later admitted to the police that his son had urinated on him about

      three times, and that his son has seen him masturbate four or five times. Id. at

      68. Strunk stated that his daughter may have also walked in on him

      masturbating once or twice. Id. Strunk also admitted that he “did stuff with his

      nephew” when Strunk was younger. Id. at 66.


[9]   On October 4, 2017, the State charged Strunk with two counts of Level 1 felony

      child molesting, alleging that he performed or submitted to intercourse or other

      sexual conduct with E.W. when Strunk was over the age of twenty-one and


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2272 | April 8, 2019   Page 5 of 10
       E.W. was under the age of fourteen. On May 22, 2018, Strunk entered into a

       plea agreement under which he would plead guilty to one count of Level 1

       felony child molesting and the other count would be dismissed.


[10]   A sentencing hearing was held on August 23, 2018, at which the trial court

       considered aggravating and mitigating circumstances. As aggravating

       circumstances, the trial court found: (1) Strunk “committed a multitude of sex

       offenses going far beyond the single offense” to which he pleaded guilty; (2)

       Strunk’s “character indicate[d] there is a substantial likelihood he will

       reoffend”; (3) he violated “a position of care, custody, or control of the victim”;

       (4) he “committed a crime of violence and said commission occurred in the

       presence of another child, L.W., who was not the victim”; and (5) “E.W. has

       already and will continue to suffer from significant psychological and emotional

       impact that will be with him forever.” Id. at 108-09. As mitigating

       circumstances, the trial court found: (1) Strunk lacked a criminal history; and

       (2) Strunk is “mentally slow.” Id. at 109. Finding that the aggravating factors

       significantly outweighed the mitigating factors, the trial court sentenced Strunk

       to a maximum sentence of fifty years and determined him to be a credit

       restricted felon. Strunk now appeals his sentence.


                                      Discussion and Decision
[11]   Pursuant to Indiana Appellate Rule 7(B), this court “may revise a sentence

       authorized by statute if, after due consideration of the trial court’s decision, the

       [c]ourt finds that the sentence is inappropriate in light of the nature of the

       offense and the character of the offender.” Our Supreme Court has explained
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2272 | April 8, 2019   Page 6 of 10
       that the principal role of appellate review should be to attempt to leaven the

       outliers, “not to achieve a perceived ‘correct’ result in each case.” Cardwell v.

       State, 895 N.E.2d 1219, 1225 (Ind. 2008). We independently examine the

       nature of Strunk’s offense and his character under Appellate Rule 7(B) with

       substantial deference to the trial court’s sentence. Satterfield v. State, 33 N.E.3d

       344, 355 (Ind. 2015). “In conducting our review, we do not look to see whether

       the defendant’s sentence is appropriate or if another sentence might be more

       appropriate; rather, the test is whether the sentence is ‘inappropriate.’” Barker v.

       State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied. Whether a

       sentence is inappropriate ultimately depends upon “the culpability of the

       defendant, the severity of the crime, the damage done to others, and a myriad

       of other factors that come to light in a given case.” Cardwell, 895 N.E.2d at

       1224. Strunk bears the burden of persuading this court that his sentence is

       inappropriate. Id.


[12]   Strunk argues that his maximum fifty-year sentence is inappropriate in light of

       the nature of the offense and his character. Specifically, he contends that,

       although the crime of child molesting is heinous by nature and will likely inflict

       permanent damage to the victims, such harm is accounted for in the sentencing

       guidelines, especially where, as here, Strunk did not use force or physically

       harm E.W. Strunk asserts that his crime is not the worst of offenses. He further

       maintains that, when looking at his character, it is clear that his maximum

       sentence is inappropriate. Strunk claims that his lack of a criminal history, his




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2272 | April 8, 2019   Page 7 of 10
       learning disability, and his traumatic and abusive childhood lend credence to

       his contention that his sentence is inappropriate.


[13]   When determining whether a sentence is inappropriate, the advisory sentence is

       the starting point the legislature has selected as an appropriate sentence for the

       crime committed. Kunberger v. State, 46 N.E.3d 966, 973 (Ind. Ct. App. 2015);

       Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014). Strunk was

       convicted of a Level 1 felony and determined to be a credit restricted felon, and

       the advisory sentence for a Level 1 felony conviction as a credit restricted felon

       is thirty years, with a range of between twenty and fifty years. Ind. Code §§ 35-

       50-2-4(c), 35-31.5-2-72(1). Strunk received a sentence of fifty years executed for

       his Level 1 felony conviction.


[14]   As this court has recognized, the nature of the offense is found in the details

       and circumstances of the commission of the offense and the defendant’s

       participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). With respect

       to the nature of the offense, Strunk repeatedly subjected E.W. and L.W. to

       sexual abuse. These acts occurred when the children were staying at his

       residence in the care of him and his wife who were babysitting E.W. and L.W.

       Strunk repeatedly abused E.W. by forcing him to urinate on Strunk while

       Strunk masturbated and exposed E.W. to pornographic materials. Strunk also

       touched E.W.’s genitals, put his finger in E.W.’s butt, and performed oral sex

       on E.W. Additionally, Strunk forced L.W. to urinate on him if she wanted to

       take a bath. Although Strunk was only convicted of one offense, Strunk

       actually committed numerous and repeated offenses against E.W., and in doing

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2272 | April 8, 2019   Page 8 of 10
       so, he violated a position of trust. We, therefore, do not agree that the nature of

       Strunk’s offense makes his sentence inappropriate.


[15]   However, we agree that Strunk’s sentence is inappropriate considering his

       character.2 The character of the offender is found in what we learn of the

       offender’s life and conduct. Perry, 78 N.E.3d at 13. When considering the

       character of the offender, one relevant fact is the defendant’s criminal history.

       Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013). Strunk has no

       criminal record and was thirty-two years old at the time of sentencing. The

       evidence showed that Strunk suffered significant abuse as a child. Appellant’s

       App. Vol. II at 41. Until the age of four and a half, he suffered physical,

       emotional, and sexual abuse at the hands of his mother and grandmother. Id.

       Later, when living with his adoptive parents, Strunk was sexually abused by his

       foster brother from the age of seven until fourteen, an older nephew on his

       adoptive mother’s side of the family from the age of six until fifteen, and his

       adoptive father’s brother from the age of fifteen until eighteen. Id. Strunk

       reported that he suffers from Post-Traumatic Stress Disorder because of the

       childhood abuse he experienced and that, although he completed twelve years

       of school, he has a learning disability and only has a third-grade educational

       level. Id. at 42-43.




       2
         While we must consider both the nature of the offense and the character of the offender in determining
       whether a sentence is inappropriate, a defendant need not necessarily prove both prongs for us to find a
       sentence inappropriate. See Conner v. State, 58 N.E.3d 215, 218-19 (Ind. Ct. App. 2016).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2272 | April 8, 2019                    Page 9 of 10
[16]   Strunk occupied a position of trust with E.W. and L.W. that he betrayed, and

       his offenses are undeniably reprehensible; however, Strunk’s learning disability

       and his own history of abuse must also be factored into the balance of all the

       factors. In addition, Strunk has shown a nexus between his mental health and

       the crimes which he committed. See Steinberg v. State, 941 N.E.2d 515, 534

       (Ind. Ct. App. 2011), trans. denied. Thus, while we find that an enhanced

       sentence is appropriate, the fifty-year maximum sentence as a credit restricted

       felon is not. We, therefore, invoke our authority under Indiana Appellate Rule

       7(B) and revise Strunk’s sentence to thirty-five years executed as a credit

       restricted felon. We remand the case to the trial court with instructions to enter

       such sentence.


[17]   Vacated and remanded.


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2272 | April 8, 2019   Page 10 of 10
