MEMORANDUM DECISION                                                           FILED
                                                                         Jul 26 2017, 10:43 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                              CLERK
this Memorandum Decision shall not be                                     Indiana Supreme Court
                                                                             Court of Appeals
regarded as precedent or cited before any                                      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
Deborah Markisohn                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Newton Kirk,                                             July 26, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1702-CR-243
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Grant Hawkins,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G05-1502-FA-4221



Altice, Judge.


                                          Case Summary



Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-243 | July 26, 2017               Page 1 of 7
[1]   Newton Kirk appeals his aggregate 180-year sentence for four counts of class A

      felony child molesting, one count of class C felony child molesting, and a repeat

      sexual offender enhancement. On appeal, Kirk contends that the trial court

      abused its discretion by failing to consider certain mitigating factors.


[2]   We affirm.


                                         Facts & Procedural History


[3]   In 2001, at the age of twenty, Kirk pled guilty to two counts of class B felony

      child molesting and was sentenced to twelve years – six executed in the

      Department of Correction (DOC) and six suspended. 1 His probation was

      revoked in July 2005, and he was returned to the DOC to serve the previously

      suspended six-year term. After his release on parole in January 2008, Kirk

      violated parole and was returned to the DOC. He was released in December

      2009 and again violated parole in October 2010. Following his third release on

      parole, Kirk was discharged due to mandatory release in May 2011.


[4]   L.E.’s mother (Mother) began dating Kirk in late 2011 and shortly thereafter

      she and Kirk moved in together. L.E. was seven years old at the time. Mother

      had primary custody of L.E., and L.E.’s father (Father) exercised parenting

      time on weekends. Because Mother worked and Kirk was unemployed, Kirk

      regularly served as L.E.’s primary caretaker. Kirk was a heavy drinker and




      1
       Kirk also has a juvenile adjudication for committing an act that would constitute class C felony child
      molesting if committed by an adult. He was fifteen years old when he committed this act.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-243 | July 26, 2017                Page 2 of 7
      physically abusive to both Mother and L.E. He often kept L.E. from seeing

      Father.


[5]   In 2012, when L.E. was eight years old and living in a brown house,2 Kirk

      began sexually abusing him while Mother was not at home. On the first

      occasion, Kirk called L.E. into a bedroom and directed L.E. to take off his

      clothes. He threatened to whip L.E. if he did not comply. Kirk then directed

      L.E. to get onto the bed and bend over. After anally raping the boy, Kirk

      ordered L.E. to open his mouth. He then ejaculated into L.E.’s mouth. Kirk

      told L.E. that if he told anyone he would kill Father and Grammy, L.E.’s

      paternal grandmother.


[6]   On another occasion, eight-year-old L.E. was playing video games with Kirk

      when Kirk unzipped his own pants and told L.E. that if he lost the game he

      would have to “suck his penis.” Transcript Vol. II at 51. L.E. lost the game, and

      Kirk forced L.E.’s head and mouth toward his penis. He made L.E. perform

      oral sex until Mother returned home several minutes later. This was not the

      only time that L.E. was forced to perform oral sex on Kirk at this house.


[7]   The abuse continued as Kirk and Mother moved to a blue house when L.E. was

      about nine years old. At trial, L.E. recounted two specific instances in which

      Kirk inserted his penis into L.E.’s anus under circumstances similar to what




      2
        Mother and Kirk moved often between 2011 and 2014. The molestations occurred in two of these
      residences, which L.E. described as a brown house and a blue house.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-243 | July 26, 2017         Page 3 of 7
       occurred in the brown house. During one of these occasions, L.E. was

       screaming loudly, so Kirk directed him to put his face into a pillow to muffle

       the screams while he continued to anally penetrate him. L.E. testified that

       while living at the blue house, Kirk placed his penis inside L.E.’s anus and

       mouth about seven times.


[8]    In July 2014, when L.E. was ten years old and living with Father for the

       summer, he told his older cousin about the sexual abuse. L.E. warned her not

       to tell anyone because Kirk would hurt his family. The cousin, however, went

       to Father to inform him of the abuse, and L.E. then disclosed the abuse to

       Father. Father contacted the police.


[9]    On February 5, 2015, the State charged Kirk with five counts of child

       molesting, four class A felonies and one class C felony. The State later filed a

       sixth count alleging that Kirk was a repeat sexual offender. Following a jury

       trial in November 2016, Kirk was found guilty of all five child molesting counts.

       Kirk then admitted being a repeat sexual offender. On January 6, 2017, the

       trial court sentenced Kirk to an aggregate sentence of 180 years in the DOC.

       Kirk now appeals his sentence, contending that the trial court abused its

       discretion in determining the mitigating factors. Additional facts will be

       provided below as needed.


                                           Discussion & Decision


[10]   Sentencing decisions rest within the sound discretion of the trial court.

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-243 | July 26, 2017   Page 4 of 7
       218. “An abuse of discretion occurs if the decision is ‘clearly against the logic

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

       probable, and actual deductions to be drawn therefrom.’” Id. (quoting K.S. v.

       State, 849 N.E.2d 538, 544 (Ind. 2006)).


[11]   Here, Kirk contends that the trial court failed to find three mitigating factors

       that he advanced for consideration and that were supported by the record. “An

       allegation that the trial court failed to identify or find a mitigating factor

       requires the defendant to establish that the mitigating evidence is both

       significant and clearly supported by the record.” Id. at 493. Further, the trial

       court is not obligated to explain why it has found that a proffered mitigating

       factor does not exist. Id. An abuse of discretion will not be found where the

       mitigation claim is highly disputable in nature, weight, or significance. See

       Henderson v. State, 769 N.E.2d 172, 179 (Ind. 2002).


[12]   The first mitigating factor advanced by Kirk below and on appeal is his alleged

       ongoing mental health issues. We note that Kirk presented no independent

       evidence to the trial court regarding his mental health. Rather, his trial counsel

       simply referenced the Presentence Investigation Report (PSI) where Kirk self-

       reported that he had been diagnosed in 2015 with depression and paranoid

       schizophrenia and had since been medicated while in jail. In the PSI, Kirk also

       reported experiencing hallucinations. After noting Kirk’s claims in the PSI,

       counsel stated at the sentencing hearing, “I’m assuming [these mental health

       issues] have been documented or verified to the satisfaction of the psychiatric



       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-243 | July 26, 2017   Page 5 of 7
       staff at the jail since he is receiving medication to address that.” Transcript Vol.

       III at 24.


[13]   As set forth above, Kirk is tasked on appeal with establishing that his mental

       health was a significant mitigating factor supported by the record. For a

       defendant’s mental health to provide a basis for mitigation, there must be a

       nexus between the defendant’s mental health and the crime in question.

       Weedman v. State, 21 N.E.3d 873, 894 (Ind. Ct. App. 2014), trans. denied. Kirk

       has made no attempt to establish such a nexus, and his evidence supporting the

       claimed mitigating factor is weak. On this record, we find no abuse of

       discretion in the trial court’s rejection of Kirk’s mental health as a mitigating

       factor.


[14]   Kirk also asserts that the trial court abused its discretion by failing to find his

       lack of disciplinary problems while incarcerated to be mitigating. The evidence

       does not support this proffered mitigating factor and, even if supported by the

       evidence, Kirk does not explain its significance. Kirk’s trial counsel simply

       stated, “throughout [Kirk’s] time in jail as well as prior commitments to the

       [DOC] that I’m not aware of any documented incidents of any disciplinary

       problems during his periods of incarceration”. Transcript Vol. III at 24.

       Counsel’s uncorroborated remark “does not lead to a finding that the evidence

       is clearly supported in the record.” Page v. State, 689 N.E.2d 707, 711 (Ind.

       1997). Moreover, according to the PSI, Kirk had five prior prison conduct

       incidents. The trial court did not abuse its discretion with respect to this alleged

       mitigating factor.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-243 | July 26, 2017   Page 6 of 7
[15]   Finally, Kirk contends that the trial court abused its discretion by not finding as

       mitigating that his mother is seriously ill. Kirk again provided absolutely no

       evidence at sentencing in support of this alleged mitigating factor.3 And he does

       not even attempt on appeal to explain how his mother’s health is a relevant

       consideration in determining his sentence. Kirk has wholly failed to establish

       an abuse of discretion in this regard.


[16]   Judgment affirmed.


       Kirsch, J. and Mathias, J., concur.




       3
        Kirk’s trial counsel stated at sentencing: “He wanted me to let the court know that his mother is seriously ill
       with cancer and he is saddened by the fact that he will not be available to help her in her time of need.”
       Transcript Vol. III at 25.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CR-243 | July 26, 2017                  Page 7 of 7
