MEMORANDUM DECISION
                                                                  FILED
Pursuant to Ind. Appellate Rule 65(D), this
                                                             May 17 2017, 5:53 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                CLERK
                                                              Indiana Supreme Court
purpose of establishing the defense of res judicata,             Court of Appeals
                                                                   and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy P. Broden                                        Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General of Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Timothy J. Miles,                                        May 17, 2017

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A02-1609-CR-2239
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court.
                                                         The Honorable Steven P. Meyer,
State of Indiana,                                        Judge.
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         79D02-1604-F6-373




Barteau, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2239 | May 17, 2017    Page 1 of 9
                                   Statement of the Case
Timothy J. Miles appeals his sentence upon his conviction of battery as a Level
                1
6 felony. We affirm.


                                              Issues
Although Miles states that his sole contention on appeal is the

inappropriateness of his sentence, he also challenges the aggravating factors

found by the trial court. Thus, we address two issues in this appeal:


           I.       Whether the trial court abused its discretion in sentencing
                    Miles.
           II.      Whether Miles’ sentence is inappropriate in light of the
                    nature of the offense and his character.

                            Facts and Procedural History
On March 17, 2016, eleven-year-old M.E. was waiting for the school bus when

Miles, dressed all in black, approached her from behind, touched her buttocks,

and ran away.


Based upon this incident, the State charged Miles with battery as a Level 6

felony. At Miles’ trial, the jury returned a verdict of guilty. The trial court later

sentenced Miles to two years, with one and one-half years executed followed by

direct placement to community corrections for six months.




1
    Ind. Code §35-42-2-1 (2014).

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                             Discussion and Decision
                                        I. Sentencing
Sentencing decisions rest within the sound discretion of the trial court and are

reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868

N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007). 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. When imposing a sentence for a felony,

a trial court must enter a sentencing statement including reasonably detailed

reasons for imposing a particular sentence. Id. at 491. A trial court abuses its

discretion when it fails to issue a sentencing statement, gives reasons for

imposing a sentence that are not supported by the record, omits reasons clearly

supported by the record and advanced for consideration, or considers reasons

that are improper as a matter of law. Id. at 490-91.


Miles begins by noting that a prior version of the battery statute required bodily

injury to the victim in order to elevate the offense to a felony when it was

committed by a person at least eighteen years of age upon a person less than

fourteen years of age. See Ind. Code § 35-42-2-1 (2012). However, the act

constituting an offense under a prior version of the statute is of no moment in

this appeal. The time of a crime is selected as an act of free will by the offender.

Rondon v. State, 711 N.E.2d 506, 513 (Ind. 1999). Therefore, the criminal, not

the State, chooses which statute applies. Id. Accordingly, Miles is bound by

the law in effect at the time he committed this offense.
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Miles argues the trial court improperly used the seriousness of the offense as an

aggravator and cites to Walsman v. State, 855 N.E.2d 645, 653 (Ind. Ct. App.

2006), which holds that the seriousness of the crime may only be used as an

aggravator when the trial court is considering imposition of a sentence shorter

than the presumptive. More recently, our Supreme Court observed that “the

seriousness of the offense . . ., 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.” Anglemyer, 868

N.E.2d at 492.


Here, it is clear from the record that the trial court’s reliance on the seriousness

of Miles’ offense as an aggravator was based on the nature and the

circumstances of the crime. At sentencing, the trial court expressed its concern

about Miles’ escalating proclivity to commit indecent acts/sex offenses. The

court discussed the nature of this offense as a touching of a child’s buttocks and

that it occurred just a short time after Miles had committed the offense of public

indecency against a different victim. The trial court did not consider whether

imposition of a reduced sentence would depreciate the seriousness of Miles’

crime. Thus, this aggravator is not an improper aggravator, and the court did

not abuse its discretion by relying on it.


Next Miles claims that the court erroneously considered the impact upon the

victim and her family as an aggravating circumstance. In determining what

sentence to impose for a crime, the court may consider as an aggravating

circumstance that the harm, injury, loss, or damage suffered by the victim of an

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offense was significant and greater than the elements necessary to prove the

commission of the offense. Ind. Code § 35-38-1-7.1(a)(1) (2015). More

specifically, if there is nothing in the record to indicate that the impact on the

family and victim in a specific case is different than the impact on families and

victims which usually occurs with such a crime, this separate aggravator is

improper. McElroy v. State, 865 N.E.2d 584, 590 (Ind. 2007).


Here, the pre-sentence investigation report reveals M.E.’s family’s fear of being

watched. It further detailed M.E.’s terror of riding the school bus, her fear of

playing outside, her refusal to be out of sight of her parents, and her struggle

with frequent nightmares since the incident. In order that M.E. could continue

to ride the bus to school, the school altered the bus stop so that M.E. can board

the bus directly in front of her house. Additionally, the report disclosed an

incident that occurred two months prior to the instant offense in which Miles

exposed himself to M.E. At the sentencing hearing, the trial court noted:


        Now I know the Court[’]s not necessarily supposed to consider
        the impact if it’s nothing more than what’s sort of expected of
        these kind[s] of offenses. However, I think the impact has gone
        above and beyond what one might expect on a battery on a child.
        I mean here she’s been emotionally scarred. She’s afraid to go
        out of her own house because of this. She has to have a friend
        come meet her to meet the bus. And she feels afraid in her own,
        in her, inside of her own home, and it’s affected the family for
        those same reasons. The school system had to change the bus
        route to ensure that this little girl feels safe on getting, on getting
        on the bus. . . . In a way, you robbed this little girl of her
        innocence because she no longer feels safe to stand around with



Court of Appeals of Indiana | Memorandum Decision 79A02-1609-CR-2239 | May 17, 2017   Page 5 of 9
        her friends waiting for the bus. And I think that’s a serious
        impact that this, that you’ve inflicted on this girl, this little girl.
Tr. pp. 156-57. The fears of M.E. and her family are well beyond the level of

emotional and psychological trauma usually associated with the crime of

battery. The trial court properly acted within its discretion to consider this as

an aggravating factor.


Finally, Miles asserts the court’s finding in its written sentencing order that this

offense occurred in the presence of other children is exaggerated. The transcript

of the sentencing hearing discloses a simple comment of the trial court that “this

happened in the early morning hours on a residential street where kids gather

for the bus” but not a definitive finding of this as an aggravating circumstance

in this case. “The approach employed by Indiana appellate courts in reviewing

sentences in non-capital cases is to examine both the written and oral

sentencing statements to discern the findings of the trial court.” McElroy, 865

N.E.2d at 589. Thus, based upon the general nature of the trial court’s

comment at sentencing, we decline to treat this circumstance as an aggravating

factor. Regardless, the trial court properly considered several other aggravating

factors, and just a single aggravator is sufficient to support an enhanced

sentence. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008).


                             II. Inappropriate Sentence
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

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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 determine

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

character of the offender. Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App.

2014). However, “we must and should exercise deference to a trial court’s

sentencing decision, both because Rule 7(B) requires us to give ‘due

consideration’ to that decision and because we understand and recognize the

unique perspective a trial court brings to its sentencing decisions.” Stewart v.

State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). The principal role of appellate

review under Rule 7(B) is to attempt to leaven the outliers, not to achieve a

perceived “correct” result in each case. Garner v. State, 7 N.E.3d 1012, 1015

(Ind. Ct. App. 2014). In other words, the question under Appellate Rule 7(B) is

not whether another sentence is more appropriate; rather, the question is

whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,

268 (Ind. Ct. App. 2008). The defendant bears the burden of persuading the

appellate court that his or her sentence is inappropriate. Childress v. State, 848

N.E.2d 1073, 1080 (Ind. 2006).


To assess whether the sentence is inappropriate, we look first to the statutory

range established for the class of the offense. Here the offense is a Level 6

felony, for which the advisory sentence is one year, with a minimum sentence

of six months and a maximum sentence of two and one-half years. Ind. Code §

35-50-2-7 (2014). Miles was sentenced to two years, which is less than the

maximum sentence allowed by statute.


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Next, we look to the nature of the offense and the character of the offender. As

to the nature of the current offense, we note that Miles, dressed in all black,

approached eleven-year-old M.E. at her bus stop and touched her buttocks. As

a result of this assault, M.E. is terrified to ride the bus to school or play outside

in her yard, and she suffers from frequent nightmares.


With regard to the character of the offender, we observe that, as a juvenile,

Miles was warned and released for an offense that would constitute battery if

committed by an adult in 1999. In the same year, no action was taken on an

offense that would constitute disorderly conduct. In late 1999, Miles was

placed at an alternative high school due to truancy issues. The following year a

truancy action was filed in which Miles was adjudicated a delinquent with

supervised probation and counseling. In 2001, he was charged with

intimidation, pointing a firearm, and dangerous possession of a firearm and was

waived into adult court and convicted of intimidation as a Class D felony in

2002. Further, as an adult, Miles was convicted of battery resulting in bodily

injury as a Class A misdemeanor (originally filed as a Class D felony) in 2007.

Finally, just months prior to the present case, Miles committed public

indecency as a Class A misdemeanor. Although the State indicated there were

no mitigators, the court considered Miles’ “good work history” and “strong

family support.” Tr. p. 155. Miles’ criminal history, particularly his recent

tendency toward indecent acts/sex offenses, reflects poorly on his judgment and

any prior attempts at rehabilitation. Thus, we cannot say that Miles’ sentence is

inappropriate in light of the nature of the offense or his character.


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                                         Conclusion
For the reasons stated, we conclude that the trial court did not abuse its

discretion in sentencing Miles and his sentence is not inappropriate given the

nature of the offense and his character.


Affirmed.


Bailey, J., and Crone, J., concur.




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