      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                                     FILED
      this Memorandum Decision shall not be
                                                                             Jul 15 2019, 6:15 am
      regarded as precedent or cited before any
      court except for the purpose of establishing                               CLERK
                                                                             Indiana Supreme Court
      the defense of res judicata, collateral                                   Court of Appeals
                                                                                  and Tax Court

      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      R. Patrick Magrath                                       Curtis T. Hill, Jr.
      Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
      Madison, Indiana                                         Evan Matthew Comer
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Tommy J. Graham, Jr.,                                    July 15, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-2163
              v.                                               Appeal from the Jackson Circuit
                                                               Court
      State of Indiana,                                        The Honorable Richard W.
      Appellee-Plaintiff.                                      Poynter, Judge
                                                               Trial Court Cause No.
                                                               36C01-1609-F4-18



      Mathias, Judge.


[1]   Tommy Graham (“Graham”) was convicted in Jackson Circuit Court of two

      counts of Level 4 felony sexual misconduct with a minor and one count of


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2163 | July 15, 2019                  Page 1 of 18
      Level 5 felony sexual misconduct with a minor. Graham now appeals, arguing

      whether (1) the trial court abused its discretion when admitting evidence

      without proper foundation; (2) the evidence was sufficient to support his

      conviction; and (3) his aggregate sentence of fifteen years is inappropriate in

      light of the nature of his offense and his character.


[2]   We affirm.


                                  Facts and Procedural History

[3]   Following the suicide death of her boyfriend in December 2015, fourteen-year-

      old L.G. left her home to “get away” temporarily and stayed with a family

      friend, whom she referred to as “Aunt Becky.” Tr. Vol. I, p. 176. Rebecca

      Graham (“Becky”) lived in a mobile home along with her husband, Graham,

      and their three sons. L.G. stayed with the Graham family for one week and

      slept in a bedroom with two bunk beds shared by the sons.

[4]   On the night of December 12, 2015, L.G. ate dinner with the Graham family,

      and Graham drank alcohol, specifically vodka, while L.G. drank a beer.

      Afterwards, L.G. sat around with Becky and Graham and then went to bed

      around midnight. Graham’s sons were already asleep in the bedroom by the

      time L.G. went to sleep.


[5]   About an hour after she fell asleep, L.G. heard someone enter the bedroom.

      L.G. could not identify who the person was because the room was dark. L.G.

      felt a man touch her, and this man’s size was noticeably larger than any of

      Graham’s sons. The man placed his hand on L.G.’s back and turned her over,
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2163 | July 15, 2019   Page 2 of 18
      forcing L.G.’s hand onto his erect penis. L.G. heard the man say, “just let me

      feel,” and she knew from the sound of the man’s voice that it was Graham. Tr.

      Vol. I, pp. 201–03. L.G. could smell vodka coming from the man, which

      Graham had been drinking that night. Graham inserted his fingers repeatedly

      “in and out” of L.G.’s vagina, sucked on L.G’s vagina with his mouth, and

      licked her genitals with his tongue. Id. L.G. estimated that the molestation

      lasted for approximately thirty minutes, leaving L.G. feeling “gross and

      awkward” on the bunk bed. Id.


[6]   The next day, L.G. asked Becky to take her home. When L.G. got to her house,

      she received a series of personal messages from a Facebook account belonging

      to Becky. The user of the account eventually identified himself as “Tj,”

      Graham’s nickname. In the message exchange, Graham repeatedly said he was

      sorry for what had happened the previous night during a “conversation”

      between him and L.G. Tr. Vol. I, pp. 204–05; Ex. Vol., State’s Ex. 1 at 5–6.

      L.G. asked Graham if him and Becky were “done” and told Graham that he

      needed to tell Becky about what had happened. Ex. Vol., State’s Ex. 1 at 8.

      Graham admitted that his actions were “wrong,” but told L.G. that Becky did

      not “need to know the details of our conversation.” Id. at 9, 18. L.G. insisted

      that Graham tell Becky about the sexual assault and said she would if he

      himself did not. Graham made it clear he would not tell Becky as it would ruin

      his marriage and damage Becky’s relationship with L.G.’s mother. Graham

      pressured L.G. not to tell anyone about the assault. Graham told L.G. he

      would likely go to prison if others found out. When L.G. kept pressing Graham


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2163 | July 15, 2019   Page 3 of 18
      to admit what he had done, Graham responded, “Did I f***k you? No now

      drop it.” Id. at 12.


[7]   L.G. decided not to tell Becky or her parents about the incident with Graham

      because it was “embarrassing” and L.G. did not want to “betray” Becky. Tr.

      Vol. I, pp. 208–09. L.G. did tell her brother and a friend from school, S.G.,

      about the incident with Graham. In June 2016, L.G.’s mother learned of what

      had happened through the father of L.G.’s friend while the two of them were at

      work together. L.G.’s parents confronted L.G. about the incident, and L.G.

      admitted Graham had touched her inappropriately.


[8]   L.G. was taken to a hospital and examined by doctors, who referred L.G. to the

      police. An initial report was filed, and L.G. underwent a forensic interview at

      the Child Advocacy Center. After the interview, police sent a preservation

      request to Facebook regarding the chat logs between L.G.’s account and

      Becky’s account from December 13, 2015. Detectives then obtained a warrant

      to search through the Facebook records, along with a certificate of authenticity

      signed by Christine Oliveira, Facebook’s records custodian assigned to the case.

      Ex. Vol., State’s Ex. 1.


[9]   On September 19, 2016, the State charged Graham with two counts of sexual

      misconduct with a minor as Level 4 felonies and one count of sexual

      misconduct with a minor as a Level 5 felony. On July 6, 2018, Graham filed a

      motion in limine, in which he asked the trial court to exclude any evidence of

      Facebook communications “purportedly sent by the defendant and alleged


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2163 | July 15, 2019   Page 4 of 18
       victim” on the grounds that there was “no transactional nexus to the

       defendant” and constituted inadmissible hearsay. Appellant’s App. Vol. 2, p.

       87. On July 11, 2018, the State filed an habitual offender enhancement against

       Graham. Id. at 93.


[10]   A two-day jury trial commenced on July 10, 2018. On the first day of Graham’s

       jury trial, the trial court conducted a hearing on Graham’s motion in limine.

       The trial court declined to issue a ruling at that time. The State called Detective

       Benjamin Rudolph (“Detective Rudolph”) to testify about his role in sending

       the preservation request to Facebook in efforts to obtain the records of the

       conversation between Graham and L.G. The State moved to admit Exhibit 1,

       which consisted of the Facebook conversation between L.G. and Becky’s

       account, and Exhibit 1 was admitted over Graham’s hearsay objection. In

       addition to the Facebook messages, the trial court allowed over Graham’s

       objection a one-minute-eight-second long video of Graham’s post-arrest

       interview dressed in jail clothing with Detective Bob Lucas (“Detective

       Lucas”).


[11]   The jury found Graham guilty as charged on all three counts of sexual

       misconduct with a minor. A separate hearing was held outside the presence of

       the jury, during which Graham admitted to the habitual offender count. A

       sentencing hearing was held on August 9, 2018. Graham was sentenced to nine

       years each for the two counts of Level 4 felony sexual misconduct with a minor

       and four years for the Level 5 felony sexual misconduct with a minor count, all

       concurrent. Graham’s sentence was enhanced by six years due to the habitual

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2163 | July 15, 2019   Page 5 of 18
       offender enhancement, for an aggregate sentence of fifteen years. Graham now

       appeals.


                                      Discussion and Decision

                                  I. Authentication of Facebook Messages

[12]   Graham argues that the trial court erred in admitting Facebook messages which

       he alleges were not properly authenticated and, therefore, lacked a proper

       foundation. A trial court has broad discretion to admit or exclude evidence

       offered at trial. Carpenter v. State, 786 N.E.2d 696, 702 (Ind. 2003). This Court

       will only reverse a decision to admit evidence where the trial court’s decision

       constitutes a “manifest abuse of discretion [resulting] in the denial of a fair

       trial.” Ennik v. State, 40 N.E.3d 868, 877 (Ind. Ct. App. 2015), trans. denied. In

       reviewing the admissibility of evidence at trial, this Court does not reweigh the

       evidence and considers the evidence in the light most favorable to the trial

       court’s ruling. See State v. Gray, 997 N.E.2d 1147, 1150 (Ind. Ct. App. 2013),

       trans. denied; see also Holbert v. State, 996 N.E.2d 396, 400 (Ind. Ct. App. 2013),

       trans. denied.


[13]   Prior to trial, Graham filed a motion in limine claiming that there was “no

       transactional nexus” establishing that he actually authored the private

       messages. Tr. Vol. I, p. 147; Appellant’s App. Vol. 2, p. 87. However, at trial,

       Graham raised no similar objection to the foundation of the evidence when the

       State moved to admit Exhibit 1. Graham’s attorney stated only “I’m going to

       object on hearsay,” and Exhibit 1 was admitted over Graham’s objection. Id.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2163 | July 15, 2019   Page 6 of 18
       Graham’s objection at trial preserved the issue of hearsay for appeal and did not

       extend to the foundational arguments Graham raises. See Gill v. State, 730

       N.E.2d 709, 711 (Ind. 2000) (“a defendant may not argue one ground for

       objection at trial and then raise new grounds on appeal.”). “Rulings on motions

       in limine are not final decisions and, therefore, do not preserve errors for

       appeal.” Swaynie v. State, 762 N.E.2d 112, 113 (Ind. 2002). Graham’s motion in

       limine was not enough to preserve the issue as to the foundation of State’s

       Exhibit 1. Because Graham did not object at trial to the foundation of Exhibit

       1, the arguments he raises regarding the authentication of Exhibit 1 are waived.

[14]   Waiver notwithstanding, to lay a foundation for the admission of evidence, the

       proponent of the evidence must show that it has been authenticated. Hape v.

       State, 903 N.E.2d 977, 989 (Ind. Ct. App. 2009) (citing Bartlett v. State, 711

       N.E.2d 497, 502 (Ind. 1999)), trans. denied. “To satisfy the requirement of

       authenticating or identifying an item of evidence, the proponent must produce

       evidence sufficient to support a finding that the item is what the proponent

       claims it is.” Ind. Evidence Rule 901(a). But “[a]bsolute proof of authenticity is

       not required.” Fry v. State, 885 N.E.2d 742, 748 (Ind. Ct. App. 2008), trans.

       denied. The proponent of the evidence need only establish a reasonable

       probability that the document is what it is claimed to be. M.T.V. v. State, 66

       N.E.3d 960, 963 (Ind. Ct. App. 2016), trans. denied. Once this is shown, any

       inconclusiveness regarding the exhibit’s connection with the events at issue goes

       to the exhibit’s weight, not its admissibility. Richardson v. State, 79 N.E.3d 958,

       962 (Ind. Ct. App. 2017), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2163 | July 15, 2019   Page 7 of 18
[15]   “Letters and words set down by electronic recording and other forms of data

       compilation are included within Rule 901(a).” Wilson v. State, 30 N.E.3d 1264,

       1268 (Ind. Ct. App. 2015), trans. denied. Moreover, Evidence Rule

       901(b) provides a non-exhaustive list of evidence that satisfies the

       authentication requirement, including: 1) evidence describing a process or

       system and showing that it produces an accurate result.; and 2) evidence, taken

       together with all the circumstances, has distinctive characteristics in

       appearance, contents, or substance. Ind. Evid. R. 901(b). Federal Rule of

       Evidence 901(b)(4) uses language identical to that of Indiana Rule of Evidence

       901(b)(4). “We have previously acknowledged that federal courts have

       recognized Federal Rule of Evidence 901(b)(4) as one of the most frequently

       used means to authenticate electronic data, including text messages and

       emails.” Wilson, 30 N.E.3d at 1268.


[16]   Here, the content and substance of the Facebook messages, coupled with the

       circumstantial evidence from L.G.’s trial testimony, established a reasonable

       probability that Graham authored the messages. It is not dispositive that the

       messages at issue were sent from Becky’s Facebook account. Even where a

       defendant sends an electronic communication from an account bearing his

       name, the trial court must conduct an inquiry into whether the communications

       were authored by the defendant. Pavlovich v. State, 6 N.E.3d 969, 976 (Ind. Ct.

       App. 2014), trans. denied. In this case, the sender of the messages twice

       identified himself as “TJ,” which was Graham’s nickname. Tr. Vol. I, pp. 204–

       05; Ex. Vol., State’s Ex. 1 at 5–6, 18. Throughout the exchange, Graham


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2163 | July 15, 2019   Page 8 of 18
       repeatedly referred to Becky in the third person and referenced information

       about the sexual assault of L.G. that only he could have known, begging L.G.

       not to tell Becky about what had happened between them the night before.

       Graham repeatedly admitted that his actions were “wrong” and that he was

       “sorry” for what he did. Id. Lastly, Graham acknowledged he had a sexual

       encounter with L.G. that fell short of actual penetrative sexual intercourse

       when Graham said, “Did I f*ck you? No now drop it.” Ex. Vol., State’s Ex. 1 at

       12. The Facebook messages paralleled L.G.’s trial testimony and were properly

       authenticated and admitted into evidence. See Pavlovich, 6 N.E.3d at 978–79.


                                   II. Video of Graham in Jail Clothing

[17]   Graham further argues that the trial court violated his due process rights when

       it admitted into evidence a one-minute-and-eight second video clip of him in an

       orange jail jumpsuit during his post-arrest interview with Detective Lucas.

       Specifically, Graham argues that allowing the jury to view him disheveled and

       wearing jail clothing prejudiced him as there was no purpose for admitting the

       video.


[18]   An individual accused of a crime is entitled to have his guilt or innocence

       determined solely on the basis of the evidence introduced at trial, and not on

       the grounds of suspicion, indictment, continued custody, or other circumstances

       not offered as proof at trial. Taylor v. Kentucky, 436 U.S. 478, 485 (1978). The

       Supreme Court of the United States has established that a trial court may not

       compel a defendant to appear at trial in jail clothes because doing so violates

       basic due process rights, impinges on the presumption of innocence, and could
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2163 | July 15, 2019   Page 9 of 18
       impede the defendant from engaging meaningfully with his trial counsel. Deck v.

       Missouri, 544 U.S. 622, 634–635 (2005). Essentially, Graham contends that the

       presumption of innocence was impaired when the jurors viewed the short video

       in which he was wearing jail clothing and advised of his Miranda rights. We

       disagree.


[19]   “In order for there to be a constitutional violation resulting from a defendant

       standing trial in jail attire, the defendant must show he was compelled to wear

       jail attire, and that it was readily identifiable as such.” Shackelford v. State, 498

       N.E.2d 382, 384 (Ind.1986) (citing Estelle v. Williams, 425 U.S. 501, 512 (1976)).

       In Estelle, the Supreme Court indicated a juror’s judgment may be affected by

       the constant reminder of the accused’s condition implicit in his appearance at

       trial in jail clothing. Estelle, 425 U.S. at 504–505. Such clothing is likely to be a

       continuing influence throughout the trial. Id. at 505.


[20]   In Ritchie, the defendant argued that his trial counsel was ineffective for failing

       to object to video evidence showing him in jail clothing and shackled. Ritchie v.

       State, 875 N.E.2d 706, 718 (Ind. 2007). Specifically, Ritchie believed that the

       videos admitted in his case were constitutionally inadmissible because they (1)

       risked diluting the presumption of innocence; (2) risked the jury finding him

       guilty based on “extraneous influential factors” rather than evidence at trial;

       and (3) hindered his ability to participate with counsel. Id. Our supreme court

       disagreed and held that, “Any reasonable juror would have expected Ritchie to

       be dressed in jail clothing and shackled when meeting with members of the

       public outside the security of a jail cell.” Id. at 718.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2163 | July 15, 2019   Page 10 of 18
[21]   Here, much like in Ritchie, the video consumed only a minute portion of the

       two-day trial. The circumstances at hand are distinguishable from those

       in Estelle because the video was only a small portion of the trial as opposed to a

       defendant wearing a jail uniform during his entire trial. The bulk of the video

       contained footage of Detective Lucas administering Graham his Miranda rights

       and Graham asking Detective Lucas, “I don’t understand how this turned into

       three [counts].” Tr. Vol. 1, pp. 188–89. In response, Detective Lucas said that

       Graham needed to speak to his lawyer and testified that he did not answer in

       further detail because “with [his] training and experience, [he] didn’t feel like

       [he] was permitted to.” Id. at 237.1 Therefore, we conclude that the trial court

       did not abuse its discretion in permitting the jury to view the video.


                                            III. Sufficiency of Evidence

[22]   Graham further contends that the evidence is insufficient to support the jury’s

       verdict. When reviewing a claim of insufficient evidence to sustain a conviction,

       we consider only the probative evidence and reasonable inferences supporting

       the verdict. Jackson v. State, 50 N.E.3d 767, 770 (Ind. 2016). It is the fact-finder’s

       role, not ours, to assess witness credibility and weigh the evidence to determine

       whether it is sufficient to support a conviction. Id. We will affirm the conviction

       unless no reasonable fact-finder could have found the elements of the crime




       1
         The Indiana Constitution guards against the exploitation by the prosecutor of a defendant’s invocation of
       the constitutional right to counsel. Willsey v. State, 698 N.E.2d 784, 793 (Ind. 1998). Here, Detective Lucas
       simply informed Graham that he needed to discuss it with his lawyer in response to the question that
       Graham asked. There was no showing in the video that Graham was invoking his right to counsel.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2163 | July 15, 2019                     Page 11 of 18
       proven beyond a reasonable doubt. Id. It is therefore not necessary that the

       evidence overcome every reasonable hypothesis of innocence; rather, the

       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).


[23]   To convict Graham of the two Level 4 felony counts of sexual misconduct with

       a minor, the State had to prove that Graham:

                a person of at least twenty-one (21) years of age, did perform or
                submit to other sexual conduct, as defined by I.C. 35-31.5-2-
                221.5, with L.G., a child at least fourteen (14) years of age but
                less than sixteen (16) years of age, to-wit: did insert his tongue
                into the child’s vagina[.]


                and


                a person of at least twenty-one (21) years of age, did perform or
                submit to other sexual conduct, as defined by I.C. 35-31.5-2-
                221.5, with L.G., a child at least fourteen (14) years of age but
                less than sixteen (16) years of age, to-wit: did insert his finger into
                the child’s vagina[.]


       Appellant’s App. Vol. 2, p. 91; see Ind. Code § 35-42-4-9(a)(1) (2014).2


[24]   To convict Graham of Level 5 felony sexual misconduct with a minor, the State

       had to prove that Graham:




       2
        We cite to, and the charging information includes, the language of the statute in effect at the time Graham
       committed these offenses.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2163 | July 15, 2019                   Page 12 of 18
                a person of at least twenty-one (21) years of age, did perform or
                submit to fondling or touching with L.G., a child at least fourteen
                (14) years of age but less than sixteen (16) years of age, with the
                intent to arouse or satisfy the sexual desires of the child or
                defendant.


       Appellant’s App. Vol. 2, p. 91; see Ind. Code § 35-42-4-9(b)(1) (2014).3


[25]   Graham argues that the only evidence offered in support of his conviction was

       L.G.’s incredibly dubious testimony and there was no corroborating evidence.

       We disagree.


[26]   This court may reverse a defendant’s conviction when presented with incredibly

       dubious testimony that “runs counter to human experience” such that a

       reasonable person could not believe it. Edwards v. State, 753 N.E.2d 618, 622

       (Ind. 2001); see also C.S. v. State, 71 N.E.3d 848, 851 (Ind. Ct. App. 2017).

       However, in order to invoke the incredible dubiosity rule, the defendant must

       establish that: (1) the judgment against him was based on the testimony of a

       single witness; (2) the testimony is inherently contradictory, equivocal, or the

       result of coercion; and (3) the testimony is completely unsupported by any

       circumstantial evidence. Moore v. State, 27 N.E.3d 749, 756 (Ind. 2015); see also

       Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994).




       3
        We cite to, and the charging information includes, the language of the statute in effect at the time Graham
       committed this offense.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2163 | July 15, 2019                   Page 13 of 18
[27]   Here, the incredible dubiosity rule is inapplicable. L.G.’s trial testimony

       identifying Graham as the person that molested her was supported by State’s

       Exhibit 1. As explained above, the Facebook messages exchanged between

       Graham and L.G. made several allusions to the sexual assault. Graham

       repeatedly said he was sorry and admitted his actions were wrong. Graham

       admitted to being in the room with L.G., stating that he “almost fell” as he left

       the room. Ex. Vol., State’s Ex. 1 at 17.


[28]   Additionally, there were no internal inconsistencies with L.G.’s trial testimony.

       L.G. had been living with the Graham family for a week and was familiar with

       Graham’s voice. L.G. identified Graham in the dark room by the sound of his

       voice, the smell of vodka from his breath, and his larger body size compared to

       Graham’s sons who were sleeping in the room. On cross-examination by

       Graham, L.G. remained unequivocal and consistent.

[29]   L.G. did not immediately tell her parents or the authorities about the sexual

       assault by Graham, a person who occupied a position of trust in her life. L.G.

       testified she was “embarrassed” and felt “awkward” about the situation. Tr.

       Vol. I, pp. 208–09. L.G. did not want to damage her mother’s and Becky’s

       friendship and was afraid she would “betray” Becky. Id. L.G.’s testimony does

       not run counter to human experience. For all of these reasons, we conclude that

       the jury’s verdict was supported by sufficient evidence.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2163 | July 15, 2019   Page 14 of 18
                                         IV. Inappropriate Sentence

[30]   Lastly, Graham argues that his aggregate fifteen-year sentence is inappropriate

       in light of the nature of the offense and the character of the offender.

       Specifically, Graham argues that his sentence is inappropriate because he has

       stable employment, has been married to Becky for a number of years, and

       provides for Becky’s children. Graham also claims there was no evidence in the

       record indicating L.G. suffered any psychological trauma as a result of the

       offense.


[31]   Although a trial court may have acted within its lawful discretion in imposing a

       sentence, Article 7, Sections 4 and 6 of the Indiana Constitution authorize

       independent appellate review and revision of sentences through Indiana

       Appellate Rule 7(B), which provides that a 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.” Reid v. State, 876 N.E.2d 1114, 1116 (Ind.

       2007) (citing Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007)). The

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

       Finally, although we have the power to review and revise sentences, “[t]he

       principal role of appellate 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).



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2163 | July 15, 2019   Page 15 of 18
[32]   A Level 4 felony conviction carries a sentence between two and twelve years,

       with an advisory sentence of six years, and a Level 5 felony conviction carries a

       sentence between one and six years, with an advisory sentence of three years.

       See Ind. Code §§ 35-50-2-5.5 & 6. The advisory sentence is a helpful guidepost

       for ensuring fairness, proportionality, and transparency in sentencing. Hamilton

       v. State, 955 N.E.2d 723, 726 (Ind. 2011) (citing Ind. Code § 35-50-2-1.3 (2008),

       which defined “advisory sentence” as “a guideline sentence that the court may

       voluntarily consider as the midpoint between the maximum sentence and the

       minimum sentence”).

[33]   In this case, Graham was ordered to serve concurrent nine-year sentences for

       each Level 4 felony conviction, and a concurrent four-year sentence for the

       Level 5 felony conviction. See Ind. Code §§ 35-50-2-5.5 & 6. Graham pled guilty

       to the habitual offender count, which enhanced Graham’s sentence by six years,

       for an aggregate sentence totaling fifteen years executed at the Department of

       Correction. The sentencing order reflected a recommendation that the sentence

       be purposeful incarceration.

[34]   Crimes against children are particularly contemptible. See Singer v. State, 674

       N.E.2d 11, 15 (Ind. Ct. App. 1996). Concerning the nature of the offense,

       Graham forced L.G. to touch his erect penis, repeatedly inserted his finger into

       her vagina, and performed oral sex on L.G. The sexual assault lasted for

       approximately thirty minutes, causing L.G. to feel “gross and awkward.” Tr.

       Vol. I, pp. 202–03. Graham committed this offense at a time that L.G. was in a

       particularly vulnerable mental state. L.G. was grieving the loss of her boyfriend,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2163 | July 15, 2019   Page 16 of 18
       who had committed suicide recently. Graham had knowledge that L.G. was

       mentally vulnerable and was apologetic for taking advantage of her when she

       had trusted him. L.G. told Graham she would “never [feel] safe around

       [Graham] again.” Ex. Vol., State’s Ex. 1 at 9. Further, Graham urged L.G. to

       stay quiet about the incident, putting significant psychological pressure on L.G.

       Id. 9–12. The record is clear that L.G. suffered harm as a result of Graham’s

       actions.


[35]   Concerning the character of the offender, Graham has been convicted of four

       felonies and ten misdemeanors for numerous offenses. In 2003, Graham

       committed residential entry as a felony. Then in 2004, Graham committed

       burglary, and in 2006, Graham committed another burglary and auto theft.

       Graham’s criminal behavior has been linked to his abuse of substances, and

       Graham has not made efforts to stop that abuse. In the instant offense, Graham

       was under the influence of alcohol when he sexually assaulted L.G. At trial,

       L.G. testified that Graham smelled of vodka, and Graham himself in the

       Facebook messages admitted he was drunk and remembered only “a little”

       about the actual incident. Ex. Vol., State’s Ex. 1 at 17. Such an abuse of alcohol

       reflects poorly on Graham’s character. Graham preyed on a vulnerable girl who

       had taken comfort in his home after she had just experienced a traumatic event.

       Graham attempted to cover up his actions by pressuring L.G. not to reveal

       what he had done and took advantage of L.G.’s vulnerable mental state.

       Graham has not met his substantial burden of persuading us that his sentence is




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2163 | July 15, 2019   Page 17 of 18
       inappropriate in light of the nature of the offense and the character of the

       offender.


                                                 Conclusion

[36]   The trial court properly admitted the Facebook messages between Graham and

       L.G. and the video clip showing Graham in jail clothing. Also, the evidence

       presented to the jury was sufficient to sustain Graham’s conviction, and L.G.’s

       trial testimony was not incredibly dubious. Finally, Graham’s aggregate fifteen-

       year sentence is not inappropriate in light of the nature of his offense and his

       character. Accordingly, we affirm Graham’s convictions for sexual misconduct

       with a minor and the sentences imposed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2163 | July 15, 2019   Page 18 of 18
