MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               FILED
regarded as precedent or cited before any                      Mar 21 2017, 9:31 am

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
Barbra A. Stooksbury                                     Curtis T. Hill, Jr.
Howes & Howes, LLP                                       Attorney General of Indiana
La Porte, Indiana
                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kevin Hoffman,                                           March 21, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         46A03-1606-CR-1497
        v.                                               Appeal from the LaPorte Superior
                                                         Court
State of Indiana,                                        The Honorable Michael S.
Appellee-Plaintiff                                       Bergerson, Judge
                                                         Trial Court Cause No.
                                                         46D01-1501-FA-1



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 46A03-1606-CR-1497 | March 21, 2017   Page 1 of 12
                                                Case Summary
[1]   Kevin Hoffman appeals his conviction following a jury trial for class A felony

      child molesting. He also appeals the fifty-year sentence imposed by the trial

      court. He raises several issues, including that the trial court erred in denying his

      pretrial motion to dismiss the charge against him and that the trial court abused

      its discretion in admitting certain photographic evidence. He further asserts

      that his fifty-year sentence is inappropriate in light of both the nature of the

      offense and his character. Finding no error or abuse of discretion, and

      concluding that he has not met his burden to demonstrate that his sentence is

      inappropriate, we affirm.


                                   Facts and Procedural History1
[2]   Between September 2012 and August 2013, then thirty-nine-year-old Hoffman

      lived in an apartment with then six-year-old A.K.2 and her mother (“Mother”).

      Hoffman was Mother’s boyfriend and A.K. considered him “pretty much like a

      dad.” Tr. Vol. 2 at 139.3 Other members of the household included A.K’s

      older sister H.K., H.K.’s girlfriend Ashley, and A.K.’s two young cousins.




      1
       We remind Appellant’s counsel that an appellant’s statement of facts “shall be in narrative form and shall
      not be a witness by witness summary of the testimony.” Ind. Appellate Rule 46(A)(6)(c).
      2
        The child-victim is referred to in the transcript by her nickname rather than by her birth name. We use the
      initials of her birthname, A.K., for purposes of our discussion.
      3
        We note that the transcript was submitted to this Court in multiple volumes that were mislabeled and not
      consecutively numbered in violation of Indiana Appellate Rule 28(A) (“The Court Reporter shall prepare an
      electronic Transcript in accordance with Appendix A,” which provides “Each volume of the Transcript shall
      be independently and consecutively numbered at the bottom.”). For purposes of our discussion, we will refer
      to each volume in chronological order rather than how they were labeled.

      Court of Appeals of Indiana | Memorandum Decision 46A03-1606-CR-1497 | March 21, 2017             Page 2 of 12
      Mother worked long hours and Hoffman, H.K., and Ashley would take turns

      babysitting A.K. and her cousins while Mother was working.


[3]   When Mother was away, A.K. would spend time alone with Hoffman in his

      bedroom. Hoffman would remove his clothes and instruct A.K. to remove her

      clothes and kneel on the bed. He would then instruct A.K. to move her hands

      back and forth on his penis and he would also place his penis in her mouth.

      A.K. testified that “it was weird,” sometimes “went too far” into her throat and

      made her “choke,” and sometimes a liquid “like syrup” would come out of his

      penis and go into her mouth. Id. at 156, 159. Other times Hoffman would

      make A.K. lie back on the bed with her “legs up” and he would put “his private

      in between [her] legs and go back and forth.” Id. at 160. He told her that this

      was “practice” for her. Id. One time Hoffman had A.K. shower with him and

      told her to put her mouth on his penis after the shower. Hoffman, who suffered

      from diabetes, convinced A.K. that she needed to perform sexual acts with him

      to help his diabetes, and she believed that he “could probably die” if she did not

      do what he wanted. Id. at 147.


[4]   In August 2013, Hoffman moved with Mother and her family to a house.

      Around that time, Mother purchased a new cell phone for Hoffman. Because

      Ashley did not own a cell phone, she was permitted to use Hoffman’s phone

      whenever needed. On September 5, 2013, Hoffman was sitting in his bedroom

      when Ashley came in and asked to borrow his phone. A.K. had just exited the

      bedroom wearing a bathing suit. Hoffman obliged and gave Ashley his phone,

      and Ashley walked to the kitchen to use the phone. When she flipped open the

      Court of Appeals of Indiana | Memorandum Decision 46A03-1606-CR-1497 | March 21, 2017   Page 3 of 12
      phone, “pictures popped up of [A.K.].” Tr. Vol. 1 at 50. The pictures were a

      “chest picture” and “one of her laying straight down with her hands flat on the

      side.” Id. A.K. was naked in the pictures. Ashley screamed and asked A.K.

      about the pictures. A.K. became extremely upset and ran back toward the

      bedroom and exclaimed to Hoffman that Ashley had “seen the x-rays.” Id. at

      52. Hoffman immediately came to the kitchen, grabbed the phone from

      Ashley, and started “pressing buttons.” Id. at 56. A.K. was crying when

      Hoffman instructed her to “tell the truth” that she “took these pictures.” Id.

      A.K. responded, “I didn’t take these pictures, you took them.” Id. at 58. When

      Hoffman took the pictures of A.K., he told her that they were playing “doctor”

      and that the pictures were “x-rays.” Tr. Vol. 2 at 175.


[5]   The State charged Hoffman with two counts of class A felony child molesting.

      Hoffman filed a motion to dismiss alleging that he had already been convicted

      on federal charges involving the same conduct. The State responded and the

      trial court subsequently denied Hoffman’s motion to dismiss. On January 27,

      2016, the State filed an amended information charging a single count of class A

      felony child molesting. A jury trial began on February 22, 2016. At the close of

      the evidence, the jury found Hoffman guilty as charged. Following a sentencing

      hearing, the trial court imposed a fifty-year sentence and ordered that the

      sentence be served consecutively to the sentence previously imposed by the

      federal court. This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 46A03-1606-CR-1497 | March 21, 2017   Page 4 of 12
                                     Discussion and Decision

       Section 1 – The State’s prosecution of the current charge was
            not barred by statutory double jeopardy principles.
[6]   Hoffman first asserts that the trial court erred in denying his pretrial motion to

      dismiss the charge against him. Specifically, he argues that because he was

      convicted and sentenced in the United States District Court for the Northern

      District of Indiana on two counts involving the same conduct giving rise to the

      current class A felony child molesting charge, prosecution of him on the current

      offense was barred by statutory double jeopardy principles. We disagree.


[7]   As a general matter, we review a trial court’s ruling on a motion to dismiss a

      charging information for an abuse of discretion. Delagrange v. State, 951 N.E.2d

      593, 594 (Ind. Ct. App. 2011), trans. denied. However, whether a prosecution is

      barred by double jeopardy is a question of law. State v. Allen, 646 N.E.2d 965,

      972 (Ind. Ct. App. 1995), trans. denied. In cases where the issue is a question of

      law, we apply a de novo standard of review. Austin v. State, 997 N.E.2d 1027,

      1039 (Ind. 2013).


[8]   This Court has recognized that federal and state governments are considered

      separate or dual sovereigns. Smith v. State, 993 N.E. 2d 1185, 1189 (Ind. Ct.

      App. 2013) (citing Allen, 646 N.E.2d at 968), trans. denied (2014). While the

      Indiana and United States Constitutions provide no protection from double

      jeopardy as between “dual sovereigns,” Indiana has provided statutory

      protection against double jeopardy in such situations. See Allen, 646 N.E.2d at


      Court of Appeals of Indiana | Memorandum Decision 46A03-1606-CR-1497 | March 21, 2017   Page 5 of 12
       967-68. “Therefore, the double jeopardy question involved in this case is one of

       statutory construction, rather than constitutional construction.” Id. at 968.


[9]    Indiana Code Section 35-41-4-5 provides:

               In a case in which the alleged conduct constitutes an offense
               within the concurrent jurisdiction of Indiana and another
               jurisdiction, a former prosecution in any other jurisdiction is a
               bar to a subsequent prosecution for the same conduct in Indiana,
               if the former prosecution resulted in an acquittal or a conviction
               of the defendant or in an improper termination under section 3 of
               this chapter.


       “The plain language of the statute requires a comparison of the conduct alleged

       to constitute an offense in Indiana with the conduct alleged to constitute an

       offense in another jurisdiction, here, in federal district court.” Smith, 993

       N.E.2d at 1190.


[10]   Here, the State’s amended charge alleged that Hoffman committed class A

       felony child molesting in that he, an adult over the age of twenty-one years,

       “did perform deviate sexual conduct with a child under age 14, to-wit: A.K.

       d/o/b 1/5/2007, being six (6) years of age, to-wit: sex organ of one person and

       the mouth of the other.” Appellant’s App. Vol. 2 at 231. Count 1 of Hoffman’s

       federal indictment, of which a jury found him guilty, alleged that Hoffman had

       committed sexual exploitation of a child in that he:

               did knowingly employ, use, persuade, induce, entice, and coerce
               any minor, specifically [A.K.], to engage in sexually explicit
               conduct for the purpose of producing any visual depiction of such
               conduct, using materials that have been mailed, shipped, and
       Court of Appeals of Indiana | Memorandum Decision 46A03-1606-CR-1497 | March 21, 2017   Page 6 of 12
                transported in and affecting interstate and foreign commerce by
                means, including by computer.


       Id. at 60, 124. Count 2 of the federal indictment, also of which a jury found

       him guilty, alleged that Hoffman had committed possession of child

       pornography in violation of 18 U.S.C. § 2252(a)(4)(B) in that he:

                did knowingly possess, one (1) or more books, magazines,
                periodicals, films, videos, tapes, or other matter which contained
                visual depictions … which was produced using materials which
                have been mailed or so shipped or transported by any means
                including by computer, the production of which involved the use
                of a minor engaged in sexually explicit conduct, and which visual
                depictions were of such conduct.


       Id. at 61, 124.


[11]   It is clear from a comparison of both the state and federal charges that, although

       the same victim was involved, the charges do not arise from the same conduct.4

       The federal charges revolved around Hoffman’s conduct of inducing and

       photographing a six-year-old A.K. engaged in “sexually explicit conduct”

       which is defined in relevant part as “actual or simulated … (v) lascivious

       exhibition of the genitals or pubic area of any person[.]” See 18 U.S.C. § 2256.

       The state charge was based upon Hoffman’s conduct of performing deviate

       sexual conduct with A.K. by placing his penis in her mouth. Accordingly, the

       conduct that Hoffman was prosecuted for and convicted of in the federal


       4
        See United States v. Hoffman, 847 F.3d 878 (7th Cir. 2017) (explaining that federal charges arose “out of
       events occurring on one day” and state charges covered “18 months of repeated abuse” of the victim).

       Court of Appeals of Indiana | Memorandum Decision 46A03-1606-CR-1497 | March 21, 2017              Page 7 of 12
       proceedings was not the same as the conduct forming the basis of his class A

       felony child molesting charge. We conclude that Hoffman’s prosecution for

       class A child molesting was not barred by Indiana Code Section 35-41-4-5 and

       therefore the trial court properly denied the motion to dismiss.


            Section 2 – The trial court did not abuse its discretion in
                          admitting certain evidence.
[12]   Hoffman next asserts that the trial court abused its discretion in admitting, over

       his objection, certain photographic evidence. During the testimony of

       Detective Matthew Barr, the trial court admitted without objection two exhibits

       containing three photographs “of a nude A.K.” that were recovered from

       Hoffman’s cell phone.5 Appellant’s Br. at 20. At the conclusion of Detective

       Barr’s testimony, the jury submitted written questions to clarify the testimony.

       Specifically, a juror asked Detective Barr, “[C]ould the victim have taken

       pictures herself?” Tr. Vol. 3 at 226. Detective Barr responded, “The answer to

       that … would be, no. You can see her hands in the majority of the pictures.

       Some of them they’re to her side. Most of ‘em, you can see ‘em just kind of

       tight to her side, but you can actually see her hands in the pictures.” Id.

       Thereafter, the State moved to admit State’s Exhibit 83, which Detective Barr

       identified as a photograph of A.K. in which “[h]er body is straight, her hands

       are to her side and they’re in the photo” and she is “unclothed.” Id. at 231.




       5
         We note that, for unknown reasons, this Court was not supplied with a copy of the exhibits admitted at
       trial. However, the parties do not appear to disagree as to the content of those exhibits.

       Court of Appeals of Indiana | Memorandum Decision 46A03-1606-CR-1497 | March 21, 2017           Page 8 of 12
       Hoffman objected to the admission of the additional photograph as being

       prejudicial and needlessly cumulative of the prior exhibits. The trial court

       overruled his objection, and Hoffman now challenges that decision. 6


[13]   It is well settled that the admission and exclusion of evidence is within the trial

       court’s discretion. Jackson v. State, 973 N.E.2d 1123, 1127 (Ind. Ct. App. 2012),

       trans. denied. An abuse of discretion occurs when the trial court’s decision is

       clearly against the logic and effect of the facts and circumstances before it. Id.

       Relevant evidence is generally admissible and is defined as evidence that has

       any tendency to make a fact more or less probable than it would be without the

       evidence and the fact is of consequence in determining the action. Ind.

       Evidence Rules 401, 402. A trial court may exclude relevant evidence,

       including photographic evidence, only if its probative value is substantially

       outweighed by the danger of unfair prejudice, confusing the issues, misleading

       the jury, undue delay, or needlessly presenting cumulative evidence. Ind.

       Evidence Rule 403; Swingley v. State, 739 N.E.2d 132, 133 (Ind. 2000).


[14]   Hoffman concedes the probative value and relevance of the photographic

       evidence, and we do not disagree with him that the admission of Exhibit 83

       may well have been generally cumulative in that it was an additional

       photograph of A.K. that was recovered from Hoffman’s phone. However,



       6
        Without citation to the transcript, Hoffman argues that “it was irrelevant and unnecessary” for the trial
       court to admit “a dozen photographs” of “a nude A.K.” during Detective Barr’s testimony. Appellant’s Br.
       at 20-21. Our review of the record reveals that only three photographic exhibits were admitted during
       Detective Barr’s testimony, two of which were admitted without objection. Thus, we address only the
       admission of State’s Exhibit 83, a single photograph, which was admitted over Hoffman’s objection.

       Court of Appeals of Indiana | Memorandum Decision 46A03-1606-CR-1497 | March 21, 2017           Page 9 of 12
       Exhibit 83 depicted A.K. with her hands to her side and was offered and

       admitted in response to a specific juror question regarding whether A.K. could

       have taken the photographs herself. Thus, Exhibit 83 was probative and

       relevant to that specific inquiry. Moreover, even if it were cumulative, the

       admission of cumulative evidence alone is insufficient to warrant a new trial.

       Helsley v. State, 809 N.E.2d 292, 296 (Ind. 2004). As stated above, an appellant

       must establish that the probative value of the evidence was substantially

       outweighed by the unfair prejudice flowing from it. Id. Hoffman has not

       established how the danger of unfair prejudice in the admission of a single

       additional photograph substantially outweighed the probative value of the

       evidence. The trial court did not abuse its discretion.


         Section 3 – Hoffman has not met his burden to demonstrate
                      that his sentence is inappropriate.
[15]   As a final matter, Hoffman claims that his sentence is inappropriate and invites

       this Court to revise his sentence pursuant to Indiana Appellate Rule 7(B), which

       provides that we may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, we find that the sentence “is

       inappropriate in light of the nature of the offense and the character of the

       offender.” The defendant bears the burden to persuade this Court that his or

       her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

       2006). Indiana’s flexible sentencing scheme allows trial courts to tailor an

       appropriate sentence to the circumstances presented, and the trial court’s

       judgment “should receive considerable deference.” Cardwell v. State, 895

       Court of Appeals of Indiana | Memorandum Decision 46A03-1606-CR-1497 | March 21, 2017   Page 10 of 12
       N.E.2d 1219, 1222 (Ind. 2008). The principal role of appellate review is to

       attempt to “leaven the outliers.” Id. at 1225. Whether we regard a sentence as

       inappropriate at the end of the day turns on “our sense of the culpability of the

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

       other facts that come to light in a given case.” Id. at 1224.


[16]   Regarding the nature of the offense, the advisory sentence is the starting point

       that the legislature has selected as an appropriate sentence for the crime

       committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range

       for a class A felony is between twenty and fifty years, with the advisory

       sentence being thirty years. Ind. Code § 35-50-2-4. The trial court here

       imposed the maximum sentence of fifty years to be served consecutive to his

       previously imposed twenty-five-year federal sentence. Hoffman argues that the

       maximum sentence should be reserved for the very worst offenders, see Hamilton

       v. State, 955 N.E.2d 723, 727 (Ind. 2011), and that he is not one of them. We

       disagree.


[17]   The nature of the current offense is, to say the least, heinous. Hoffman

       repeatedly molested his girlfriend’s six-year-old daughter. He was a father

       figure to the young victim, shared a home with her, and was often responsible

       for her care. He used his position of trust to manipulate his victim, even

       convincing her that he might die unless she performed various sexual acts

       which included oral sex on him. The victim feels “bad” and is “mad” about

       what Hoffman did to her, and she “doesn’t really trust that many people right

       now.” Sentencing Tr. at 69-70. She feels “gross” about what happened and is

       Court of Appeals of Indiana | Memorandum Decision 46A03-1606-CR-1497 | March 21, 2017   Page 11 of 12
       “scared” that Hoffman might do things to her again. Id. In short, Hoffman has

       caused unspeakable damage to this child. Nothing about the nature of this

       offense convinces us that the maximum sentence is inappropriate.


[18]   Regarding Hoffman’s character, he fares no better. He has an extensive

       criminal history spanning four decades, including two juvenile adjudications

       involving violent sexual behavior and at least fifteen adult misdemeanor

       offenses. He has expressed zero remorse for his current crime and continues to

       deny any culpability. The trial court aptly described Hoffman as “a heartless

       and gutless pedophile.” Id. at 79. Contrary to Hoffman’s assertion, he is one of

       the very worst offenders and has not persuaded us that his fifty-year sentence is

       inappropriate in light of both the nature of his offense and his character. 7 We

       affirm the trial court in all respects.


[19]   Affirmed.


       Riley, J., and Altice, J., concur.




       7
         Within his inappropriate sentence argument, Hoffman briefly mentions that “the trial court did not properly
       weigh aggravating and mitigating circumstances” during sentencing. Appellant’s Br. at 21. However, a
       sentencing court cannot be said to have abused its discretion by failing to properly weigh aggravating and
       mitigating factors. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218.
       Moreover, “inappropriate sentence and abuse of discretion claims are to be analyzed separately.” King v.
       State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008) (citing Anglemyer, 868 N.E.2d at 491). Because Hoffman
       failed to present a separate, cogent argument with the appropriate standard of review regarding the trial
       court’s sentencing discretion, he has waived the issue for our review. See Foutch v. State, 53 N.E.3d 577, 580
       n.1 (Ind. Ct. App. 2016) (citing Ind. Appellate Rule 46(A)(8)(a)-(b)).

       Court of Appeals of Indiana | Memorandum Decision 46A03-1606-CR-1497 | March 21, 2017           Page 12 of 12
