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

ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

JEFFREY P. LITTLE                                    GREGORY F. ZOELLER
Power, Little, Little & Little                       Attorney General of Indiana
Frankfort, Indiana
                                                     JUSTIN F. ROEBEL
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana

                                                                                   Apr 08 2013, 9:20 am
                               IN THE
                     COURT OF APPEALS OF INDIANA

JOHN C. KINCADE, JR.,                                )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )      No. 12A02-1207-CR-583
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                      APPEAL FROM THE CLINTON CIRCUIT COURT
                          The Honorable Linley E. Pearson, Judge
                              Cause No. 12C01-1111-FC-276



                                           April 8, 2013


                 MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       John C. Kincade, Jr. (“Kincade”) pleaded guilty to one count of sexual misconduct

with a minor1 as a Class C felony and one count of child solicitation2 as a Class D felony.

Kincade appeals from the trial court’s sentencing order for those convictions, contending

that his sentence is inappropriate in light of the nature of the offense and the character of

the offender.

       We affirm.

                           FACTS AND PROCEDURAL HISTORY

       The factual background supporting Kincade’s guilty plea establishes that on

October 8, 2011, Kincade solicited fifteen-year-old A.H. to engage in fondling and

arousing with the intent to arouse his or A.H.’s sexual desires and that he also touched

A.H. with the intent to arouse or gratify his or A.H.’s sexual desires. Kincade was thirty

years old at the time.

       More specifically, when A.H. stayed overnight with Kincade’s niece, Kincade

spent the evening with the two taking them out to eat, taking them bowling, and then

watching a movie with them in his bedroom. Kincade was supervising the children on

behalf of his sister. A.H. told investigators that the touching occurred on the morning of

the sleepover when Kincade texted her and asked her to come to his bedroom. When

A.H. complied, Kincade started kissing her, put his hand down her pants and inside her

underwear, and put a hand under her bra, touching her genitals and breasts. A.H. told law

enforcement officers that Kincade tried to put her hand down his pants, but that she was

       1
           See Ind. Code § 35-42-4-9.
       2
           See Ind. Code § 35-42-4-6.

                                             2
able to move her hand away.

      After initially denying the allegations against him, Kincade submitted to a

polygraph examination. Kincade failed the polygraph examination and then admitted that

he had “sexted” and flirted with A.H. He further claimed that it was A.H. who kissed

him and that he returned the kiss. Ultimately, he admitted to rubbing A.H.’s bare genitals

and breasts. Copies of the text messages were attached to the law enforcement report

prepared in the course of the investigation, and the texts included references to Kincade

“play[ing] with his penis” and stating he had “something [A.H.] can play with.”

Appellee’s App. at 25-26.

      After Kincade’s confession, his guilty plea, and letter of apology written to both

his sister and A.H., Kincade’s version of the events given for purposes of the pre-

sentence investigation report, differed significantly. In his later statements, he claimed

that he was never alone with or touched A.H. and that she was making up the story

because he refused her advances.

      The trial court sentenced Kincade to a sentence of seven years, for his conviction

of sexual misconduct with a minor, and a sentence of three years, for his conviction of

child solicitation, to be served concurrently. The trial court ordered three years of the

sentence to be served in the Indiana Department of Correction and the remaining four

years suspended to probation. Kincade now appeals.

                            DISCUSSION AND DECISION

      Kincade argues that his sentence is inappropriate in light of the nature of the

offense and the character of the offender. Article VII, Sections 4 and 6 of the Indiana

                                            3
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. (citing Childress v. State, 848 N.E.2d

1073, 1080 (Ind. 2006)). Furthermore, our review under Appellate Rule 7(B) focuses on

whether the sentence imposed is inappropriate, rather than whether another sentence is

more appropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).

       Assuming without deciding that the nature of Kincade’s offense was not

extraordinary, we conclude that Kincade’s sentence is not inappropriate in light of his

character. The portion of Kincade’s sentence which was ordered to be served in the

Indiana Department of Correction, three years, is less than the advisory sentence for a

Class C felony. See Ind. Code § 35-50-2-6 (Class C felony advisory sentence is four

years). Kincade was released on bond for another offense when he committed these

offenses. Furthermore, Kincade failed to take responsibility for the crimes to which he

pleaded guilty as reflected by his version of the events set forth in the pre-sentence

investigation report. Kincade moved from his address in Rossville, Indiana without

permission of the court or his probation officer, to an address in Portage, Indiana. The

trial court also noted that Kincade’s Adult Sex Offender Risk Assessment placed him at

moderate risk to reoffend, and Kincade was not entirely cooperative with the evaluator.

                                             4
The trial court further observed that Kincade had little motivation to find employment or

gain job skills, admittedly preferring instead to play video games approximately forty

hours per week. In sum, Kincade has failed to meet his burden of establishing that his

sentence is inappropriate in light of his character; thus, we affirm the trial court.

       Affirmed.

VAIDIK, J., and PYLE, J., concur.




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