MEMORANDUM DECISION
                                                                      Apr 06 2015, 8:40 am
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
Mark Small                                                Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Chandra K. Hein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jeffery W. Moore,                                         April 6, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          60A05-1407-CR-349
        v.                                                Appeal from the Owen Circuit
                                                          Court; The Honorable Lori Thatcher
                                                          Quillen, Judge
State of Indiana,                                         60C01-1208-FA-520
Appellee-Plaintiff.




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 60A05-1407-CR-349 | April 6, 2015          Page 1 of 8
[1]   Jeffery Moore appeals his twenty-year sentence for Class B felony sexual

      misconduct with a minor.1 Moore asserts the court abused its discretion when

      it imposed that sentence.


[2]   We affirm.


                                      Facts and Procedural History
[3]   In 2001 and 2002, Moore, who was in his mid-thirties, repeatedly engaged in

      sexual activity with T.B., who was the daughter of the woman Moore was

      dating. Moore began having sexual intercourse with T.B. when she was eleven,

      and he would obtain access to T.B. by sending her mother to the store so that

      he and T.B. were alone. T.B. became pregnant before her fourteenth birthday

      and had the baby “three months before [she] turned fifteen.” (Tr. at 32.) Police

      learned T.B. had become pregnant by Moore, but they could not locate him.


[4]   In 2012, police found Moore, and his DNA indicated the probability that he

      was the father of T.B.’s child was “99.9999%.” (App. at 30.) On August 29,

      2012, the State charged Moore with one count of Class A felony sexual

      misconduct with a minor2 for sexual intercourse with T.B. when she was

      thirteen years old and one count of Class B felony sexual misconduct with a

      minor for sexual intercourse with T.B. when she was fourteen years old.




      1
          Ind. Code § 35-42-4-9(a)(1) (1998).
      2
          Ind. Code § 35-42-4-3(a)(1) (1998).


      Court of Appeals of Indiana | Memorandum Decision 60A05-1407-CR-349 | April 6, 2015   Page 2 of 8
[5]   Moore reached a plea agreement with the State pursuant to which Moore

      would plead guilty to the Class B felony, the State would dismiss the Class A

      felony, and sentencing would be left to the discretion of the trial court.

      Following a sentencing hearing, the court found aggravators in Moore’s

      criminal history, his position of trust with T.B., and his commission of multiple

      acts of misconduct with her and found mitigators in Moore’s plea of guilty and

      his willingness to provide medical history for the benefit of the child. It

      imposed a twenty-year sentence, with two years suspended.


                                     Discussion and Decision
[6]   Sentencing is principally a discretionary function, and the trial court’s judgment

      should receive considerable deference. Cardwell v. State, 895 N.E.2d 1219, 1222

      (Ind. 2008). Thus, we reverse only for an abuse of discretion, which occurs

      when a 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 from those facts and circumstances. Anglemyer v. State,

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

      N.E.2d 218 (Ind. 2007). We may find an abuse of discretion if the trial court

      does not provide a sentencing statement, if the sentencing statement is not

      supported by the record, if the sentencing statement omits reasons clearly

      supported by the record and advanced by the defendant, or if the trial court’s

      reasons for sentencing are improper as a matter of law. Id. at 490-91. In a

      felony case such as this, a trial court must give a “reasonably detailed

      recitation” of the reasons for the sentence imposed. Id. at 490. As we review

      Court of Appeals of Indiana | Memorandum Decision 60A05-1407-CR-349 | April 6, 2015   Page 3 of 8
      the court’s decision, we may consider both the written and oral sentencing

      statements. Corbett v. State, 764 N.E.2d 622, 631 (Ind. 2002) (“we are not

      limited to the written sentencing statement but may consider the trial court’s

      comments in the transcript of the sentencing proceedings”).


[7]   Moore’s arguments all arise from the court’s statement at the sentencing

      hearing:

              Mr. Moore . . . you were an adult male and you took a position of
              trust and you took that child, and it wasn’t one time of stupidity, it was
              over and over again, to the point that a child resulted in that. So, you
              screwed up two lives essentially at that moment. And, you also
              destroyed a relationship between a child and her parent. And, you
              took the stand and you told me how important your children were to
              you and so you have to know that by the choices that you made on
              that day, even though it was several years ago, it was one that [was]
              designed for evil. And, you were wise enough then and wise enough
              now to know that what you were doing was wrong. And, so I have
              some real concerns when you say I didn’t know about the baby. The
              fact of the matter the baby resulted doesn’t mean you didn’t know
              what you did on a regular basis that put her in the position where she
              was placed in foster care. If you were so big on I’m going to take
              responsibility, the reality is that had the baby not been produced, you
              probably couldn’t have been found guilty because there wouldn’t have
              been enough evidence on a twelve-year-old little girl ten years later and
              it would have been you saying it didn’t happen and her saying that it
              did. . . . The fact is the evidence was overwhelming. After that it was
              just doing math and it was pretty easy to determine that [sic] what you
              did [and] when you did it. So, you got a pretty decent deal when I
              look at the charge because if I get rid of the A Felony, which by the
              plea agreement I have to do, the minimum you would have got [sic]
              under that sentence would have been twenty years. So, I’m glad that
              you did show up today, but the reality had you not showed [sic] up
              today then the plea never would have been accepted and you’d be still
              looking at potentially doing fifty years for what happened back then.
              Now, would you be deserving of fifty years, I don’t know. Because I

      Court of Appeals of Indiana | Memorandum Decision 60A05-1407-CR-349 | April 6, 2015   Page 4 of 8
        do think there’s [sic] some special circumstances that [defense counsel]
        has brought out. But, on the same hand I think the minimum in that
        case of twenty years is appropriate [in] this case because you did
        violate a position of trust, you did have a prior criminal history, it
        wasn’t one incident, it was multiple and several incidents. I do find
        that you pled guilty and I’m glad that you were a trustee ‘cause it tells
        me it’s somebody that the department can work with. But, because
        you were a trustee you got benefits and, more importantly, you got
        entitled to your good time credit because you did what you were
        supposed to do. And, since you get good time credit, that’s what you
        deserve and I’m glad they did give that to you. But, I don’t think
        that’s something that screams volumes that says that you deserve to
        have no further punishment for this because you do. You destroyed
        that woman’s life and she just had the strength and integrity to go
        forward with it and be a survivor instead of a victim for the rest of her
        life. But, it’s time for you to have to suffer the consequences of it and I
        think you do deserve punishment for the same. So, here’s what your
        sentence is going to be. . . . I am going to sentence you to twenty years.
        I think that’s the minimum amount that was on the one sentence that’s
        appropriate. I agree with [State’s counsel]. That’s the notes that I
        made throughout the whole process. I think suspending two years is
        appropriate in this particular case. I will show that you have credit for
        606 days. With good time credit you have 1,216 days toward your
        sentence. I will sentence you to the Department of Correction,
        therefore, for eighteen years, give you credit for the time that we just
        discussed. I’m going to order there be a no-contact order with the
        victim in this case. The reason why I did suspend the two years is that
        I don’t think you’re the worst of the worst and you voluntarily have
        agreed to provide the medical is- -- history for the benefit of the child
        herein . . . . I do find, though, that the aggravators outweigh the
        mitigators. I find that you got a significant break by having the Count
        I – child molesting charge dismissed and I will follow through with
        that and dismiss that charge. I will show at this point in time you’re
        remanded to the Department of Corrections [sic] to start serving your
        sentence.
(Tr. at 64-67.)




Court of Appeals of Indiana | Memorandum Decision 60A05-1407-CR-349 | April 6, 2015   Page 5 of 8
[8]   Moore asserts “the trial court did not identify any factor as an ‘aggravator’ or

      any as a ‘mitigator.’” (Appellant’s Br. at 7.) It is true the court does not

      explicitly label any factor as an aggravator or mitigator in that statement, but

      the trial court’s written sentencing order explicitly lists three aggravators --

      Moore’s criminal history, his position of trust with T.B., and his commission of

      multiple acts of misconduct with T.B. -- and two mitigators -- Moore’s plea of

      guilty and his willingness to provide medical history for the benefit of the child.

      (See App. at 7.) Thus, the court adequately identified aggravators and

      mitigators. See Corbett, 764 N.E.2d at 631 (we may consider both the written

      order and the statement at sentencing).


[9]   Moore also argues the court should have found as a mitigator that he was “a

      model inmate during nearly two years of incarceration” before sentencing.

      (Appellant’s Br. at 9.)3 A court “need not regard . . . a possible mitigating

      circumstance the same as urged by the defendant.” Corbett, 764 N.E.2d at 630.

      The court abuses its discretion only when it does not “find mitigating

      circumstances clearly supported by the record and advanced for consideration.”

      Cardwell, 895 N.E.2d at 1225. As Moore notes, the court explicitly declined to

      find a mitigator in Moore’s status as a trustee at the county jail because he “got

      benefits and, more importantly, [he] got entitled to [his] good time credit.” (Tr.

      at 65.) As the court’s discussion indicated it considered this proposed mitigator,



      3
        Moore also claims the court should have found a mitigator in his guilty plea because his “plea was not
      simply a pragmatic calculation.” (Appellant’s Br. at 9.) As the trial court listed Moore’s plea as a mitigator,
      (see App. at 7), we need not address this argument.

      Court of Appeals of Indiana | Memorandum Decision 60A05-1407-CR-349 | April 6, 2015                  Page 6 of 8
       we cannot find the court overlooked it. See Corbett, 764 N.E.2d at 631

       (declining to hold trial court overlooked mitigators where trial court discussed

       each proposed mitigator during sentencing).


[10]   Moore next asserts the court focused too heavily on the harm to the victim but

       “did not focus on matters as aggravating circumstances,” (Appellant’s Br. at

       11), which suggests the court was imposing “vindictive justice.” (Id.) To the

       extent Moore’s argument suggests the court did not find aggravating factors, the

       record does not support that argument. (See App. at 7.) Furthermore, our

       Legislature has permitted a trial court to consider the “harm, injury, loss, or

       damage suffered by the victim of an offense” when that harm was significant

       and greater than necessary to prove the offense. Ind. Code § 35-38-1-7.1(a)(1).

       As the trial court noted, the harm to T.B. was greater than that required to

       prove Class B felony sexual misconduct because T.B. was only thirteen years

       old when she was impregnated by Moore. Compare Ind. Code § 35-42-4-3(a)(1)

       (defining Class A felony as act involving child “under fourteen”) with Ind. Code

       § 35-42-4-9(a)(1) (defining Class B felony as act involving child “at least

       fourteen”). There was no abuse of discretion in the court’s discussion of the

       harm to T.B.4 See Anglemyer, 868 N.E.2d at 492 (“Concerning the seriousness




       4
         Moore also asserts error based on “what appears to have been the weight the trial court gave to the offense
       Moore committed.” (Appellant’s Br. at 12.) As we are no longer permitted to review the weight a court
       assigns to aggravating and mitigating factors, this assertion raises no error to review. See Anglemyer, 868
       N.E.2d at 491 (“Because the trial court no longer has any obligation to ‘weigh’ aggravating and mitigating
       factors against each other when imposing a sentence, unlike the pre-Blakely statutory regime, a trial court can
       not now be said to have abused its discretion in failing to ‘properly weigh’ such factors.”).

       Court of Appeals of Indiana | Memorandum Decision 60A05-1407-CR-349 | April 6, 2015                Page 7 of 8
       of the offense, this aggravator, which implicitly includes the nature and

       circumstances of the crime as well as the manner in which the crime is

       committed, has long been held a valid aggravating factor.”).


[11]   Finally, Moore asserts the court abused its discretion by discussing the

       sentencing range for the Class A felony charge that was dismissed without

       mentioning the sentencing range for the Class B felony sentence that was being

       imposed. Moore has not demonstrated an abuse of discretion. The controlling

       statute permitted a twenty-year sentence for a Class B felony, see Ind. Code §

       35-50-2-5 (setting sentencing range at six to twenty years), and “we presume the

       trial court knows and follows the applicable law.” Tharpe v. State, 955 N.E.2d

       836, 842 (Ind. Ct. App. 2011), trans. denied. Moore has not overcome that

       presumption.


                                                 Conclusion
[12]   Finding no abuse of discretion in the imposition of a twenty-year sentence for

       Class B felony sexual misconduct with a minor, we affirm.


[13]   Affirmed.


       Barnes, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 60A05-1407-CR-349 | April 6, 2015   Page 8 of 8
