MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          Feb 21 2017, 10:08 am
court except for the purpose of establishing                            CLERK
the defense of res judicata, collateral                             Indiana Supreme Court
                                                                       Court of Appeals
estoppel, or the law of the case.                                        and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
T. Alexander Newman                                      Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

John C. McClafferty,                                     February 21, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A04-1609-CR-2086
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable David A. Happe,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No. 48C04-
                                                         1509-FC-1610



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A04-1609-CR-2086 | February 21, 2017    Page 1 of 11
[1]   John C. McClafferty appeals his sentence for attempted child exploitation as a

      class C felony, possession of child pornography as a class D felony, and

      contributing to the delinquency of a minor as a class A misdemeanor.

      McClafferty raises one issue which we revise and restate as whether the trial

      court abused its discretion in sentencing him. We affirm.


                                      Facts and Procedural History

[2]   McClafferty, born November 19, 1967, volunteered at the Muncie OUTreach

      program 1 at the Unitarian Church and signed an agreement that forbade him

      from texting or contacting the children in the program. On April 18, 2014, a

      juvenile’s mother “called and said that the high school staff had called and told

      her that her son was absent from school.” Transcript at 27. Indiana State

      Police Troopers obtained surveillance video of the juvenile being dropped off at

      school in the morning, going back outside, and entering a car later determined

      to belong to McClafferty. The police located McClafferty’s car and the juvenile

      at a motel in Anderson. A trooper observed McClafferty and the juvenile

      carrying luggage and walking towards a motel room. McClafferty’s luggage

      contained condoms, lubrication, whiskey, and a cooler of ice and soda pop.

      McClafferty also had a cell phone, a laptop, and a digital camera with him, and

      consented to a search of those devices. The juvenile “in this case had turned

      sixteen (16) just weeks before on March the 30th.” Id. at 28. The juvenile



      1
        The presentence investigation report indicates that “OUTreach is a Lesbian-Gay-Transgender-Queer youth
      group which meets at Unitarian Church” and was a program created “to give LGBT youth a safe space to be
      themselves.” Appellant’s Appendix at 29-30.

      Court of Appeals of Indiana | Memorandum Decision 48A04-1609-CR-2086 | February 21, 2017     Page 2 of 11
      indicated that there were nude pictures of himself that he sent to McClafferty,

      that McClafferty also sent some to him, and that McClafferty touched him on

      the way to the motel that afternoon. Later investigation revealed that there was

      a photograph of the victim prior to turning sixteen on McClafferty’s electronic

      devices.


[3]   McClafferty indicated that he met the juvenile on Craigslist and admitted

      knowing that the juvenile was fifteen at the time. He allowed the detective to

      open his text messages, and there were several sexually explicit messages.

      Indiana State Police Sergeant Bunner identified eleven nude pictures of the

      sixteen-year-old juvenile on McClafferty’s computer and at least one of them

      was sent on March 24th while the juvenile was still fifteen years old.


[4]   On September 30, 2015, the State charged McClafferty with: Count I,

      attempted child exploitation as a class C felony; Count II, possession of child

      pornography as a class D felony; and Count III, contributing to the delinquency

      of a minor as a class A misdemeanor.


[5]   On June 27, 2016, McClafferty pled guilty as charged and “open to the Court to

      those counts.” Id. at 23. The court accepted McClafferty’s guilty plea and

      scheduled a sentencing hearing.


[6]   On August 8, 2016, the court held a sentencing hearing. Indiana State Police

      Detective Robert Allen May testified that he checked Facebook after

      McClafferty was arrested and released on bond and he “had a lengthy history

      on Facebook, Craiglist OkCupid of looking for young boys.” Id. at 37. When

      Court of Appeals of Indiana | Memorandum Decision 48A04-1609-CR-2086 | February 21, 2017   Page 3 of 11
      asked what kinds of things he found on McClafferty’s computer and cell phone,

      Detective May answered:

              I think there was at least ten (10) different teenage boys naked. I
              don’t think – I don’t know if they were prepubescent, but they
              were hairless. They could’ve – they were – they were very
              muscular, so I couldn’t tell if they were under the age of sixteen
              (16) or seventeen (17) or eighteen (18), but they were mostly
              clean shaven. There was one adult male that he was performing
              oral sex with and receiving.


      Id. at 38. McClafferty’s counsel objected to the relevance, and, after some

      discussion, the trial court overruled the objection and stated: “When you’ve got

      a case where a person has been engaging in illegal sexual conduct with a minor

      and he’s using pornography which depicts people who appear in appearance at

      least to be young men then that’s very relevant to the Court’s conditions of

      sentence and probation.” Id. at 39. Detective May referred to communications

      on Craigslist and when asked whether a certain communication was between

      McClafferty and the victim in this case, Detective May answered that “[i]t

      might’ve been [C.] or some other people, too,” and “I can’t recall exactly there

      were so many.” Id. at 40. On cross-examination, Detective May testified that

      there was no solicitation specifically requesting that underage men contact him

      on Craigslist and other social media matters that he viewed.


[7]   McClafferty stated:

              [W]hen I first started out my intentions were good to do the right
              thing and then made some bad choices, which is obvious. And
              my time sitting in jail I’ve had time to think about those, and,

      Court of Appeals of Indiana | Memorandum Decision 48A04-1609-CR-2086 | February 21, 2017   Page 4 of 11
              overall, um, I hope you see the good in me, what I have been
              able – what I have been able to do. And I do have goals in the
              future that I’d like to pursue. And, basically, to wrap it up, I do
              have remorse for the victim, and I do wish that he can put this
              behind him and move forward in his life.


      Id. at 44.


[8]   The court stated:

              The Court is going to find that there is aggravation and
              mitigation present on the record. Aggravation, as stated by
              probation, is that [McClafferty] does have a history of significant
              criminal and delinquent and multiple felony and misdemeanor
              convictions. By my count, I believe these would be his third and
              fourth felony convictions. Although that probably misrepresents
              the seriousness of his criminal history in some way because he
              did have the benefit of several charges being reduced. And the
              types of charges are victim offenses, theft, auto theft, . . . arson.
              There’s also a handgun case in there. Of course, it’s a significant
              aggravator here that [McClafferty] did violate a position of trust
              and used his position as a person trusted within this program for
              young people to groom and manipulate one of the participants
              there in to having sexual activity for the defendant’s gratification.
              And that was a calculated act. It was not a rash, impulsive type
              of act. He planned ahead, had intoxicants and sexual aids there
              to enable that to happen. This was something he put some
              thought in to and a plan he had that he carried out. It’s further
              aggravation that there were multiple counts that are being
              sentenced here at the same time. There is mitigation present on
              the record, as well. [McClafferty] has pled guilty and accepted
              responsibility. He did express some measure of remorse. I do
              find the aggravation strongly outweighs the mitigation.
              Independent from aggravation and mitigation, the Court also
              considers the risk assessments that were conducted, both the
              IRAS which scored a moderate and the Static-99 which scored a

      Court of Appeals of Indiana | Memorandum Decision 48A04-1609-CR-2086 | February 21, 2017   Page 5 of 11
              high. Weighing those things out, the Court does find here that
              community supervision would not be appropriate, a presumptive
              sentence would not be appropriate. I find, after balancing the
              aggravation and mitigation here and considering the harm that
              [McClafferty] inflicted on the victim, as well as the risk of future
              harm, and the fact that [McClafferty] is in need of rehabilitative
              services best provided in the Department of Corrections, I find
              that the appropriate sentence is as follows: For Count I,
              [McClafferty will be sentenced to eight (8) years, Count II, two
              (2) years, Count III, 365 days.


      Id. at 49-50. The court ordered that the sentences for Counts II and III be

      served concurrent with each other and consecutive to Count I for an aggregate

      sentence of ten years.


                                                  Discussion

[9]   The issue is whether the trial court abused its discretion in sentencing

      McClafferty. We review the sentence 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 (Ind.

      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. A trial court

      abuses its discretion if it: (1) fails “to enter a sentencing statement at all;” (2)

      enters “a sentencing statement that explains reasons for imposing a sentence—

      including a finding of aggravating and mitigating factors if any—but the record

      does not support the reasons;” (3) enters a sentencing statement that “omits

      reasons that are clearly supported by the record and advanced for

      consideration;” or (4) considers reasons that “are improper as a matter of law.”

      Court of Appeals of Indiana | Memorandum Decision 48A04-1609-CR-2086 | February 21, 2017   Page 6 of 11
       Id. at 490-491. If the trial court has abused its discretion, we will remand for

       resentencing “if we cannot say with confidence that the trial court would have

       imposed the same sentence had it properly considered reasons that enjoy

       support in the record.” Id. at 491. The relative weight or value assignable to

       reasons properly found, or those which should have been found, is not subject

       to review for abuse of discretion. Id.


[10]   McClafferty argues that the trial court improperly concluded his criminal

       history was more severe than what was indicated in the presentence

       investigation report by rationalizing that he had the benefit of several charges

       being reduced. He contends that, when the trial court relied on a presumption

       that the seriousness of his criminal acts was more severe than what was

       available in the record, it explained reasons for imposing the sentence that are

       not supported by the record. 2


[11]   The State argues that the court properly identified McClafferty’s criminal

       history as an aggravating circumstance. It contends that McClafferty’s

       contention that the trial court improperly concluded his criminal history was



       2
         In his conclusion, McClafferty states: “Further, McClafferty contends that his ten (10) year executed
       sentence at the Indiana Department of Correction was inappropriate in light of the reported seriousness of the
       Defendant’s criminal convictions.” Appellant’s Brief at 13. McClafferty does not cite to Ind. Appellate Rule
       7(B), which provides that “[t]he 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.” McClafferty does not develop an argument regarding either the
       nature of his offenses or his character, and instead focuses on the validity of one of the aggravating
       circumstances identified by the trial court. We find that McClafferty has waived his argument that his
       sentence is inappropriate. See Gentry v. State, 835 N.E.2d 569, 575-576 (Ind. Ct. App. 2005) (holding that the
       defendant’s “failure to offer more than a mere conclusory statement that his sentence should be reduced
       waives his opportunity for appellate review”) (footnote omitted).

       Court of Appeals of Indiana | Memorandum Decision 48A04-1609-CR-2086 | February 21, 2017          Page 7 of 11
       more severe than was indicated is without merit, that the trial court did not

       make a presumption because it did not need to in light of the record before it,

       and that McClafferty’s argument is an improper request for this court to

       reweigh the seriousness of McClafferty’s criminal history as an aggravator.


[12]   The Indiana Supreme Court has described when and how a defendant’s arrest

       record may be used in sentencing:


                A long line of cases from this Court holds that allegations of prior
                criminal activity need not be reduced to conviction before they
                may be properly considered as aggravating circumstances by a
                sentencing court. Creasy v. State (1988), Ind., 518 N.E.2d 785
                (one pending charge, four arrests); Dillon v. State (1986), Ind., 492
                N.E.2d 661 (pending felony charges); McNew v. State (1979), 271
                Ind. 214, 391 N.E.2d 607 (long record of arrests). The court
                must, however, place this type of information in the proper
                context when considering it and determining its relative weight.
                A record of arrests cannot be considered as an aggravator under
                I.C. 35-38-1-7(b)(2)[repealed, similar provision at Ind. Code § 35-
                38-1-7.1(a)(2)] because it does not reveal to the sentencing court
                that the defendant has engaged in the kind of behavior which the
                legislature identified as an aggravator in that subsection. I.C. 35-
                38-1-7(d) [repealed, similar provision at Ind. Code § 35-38-1-
                7.1(c) 3], however, gives a sentencing court the flexibility to
                consider any factor which reflects on the defendant’s character,




       3
         In Tunstill, the Court observed that at the time of the defendant’s sentencing, Ind. Code § 35-38-1-7, which
       was repealed in 1990 and replaced with Ind. Code § 35-38-1-7.1, stated in subsection (b) that the trial court
       could consider whether the defendant “ha[d] a history of criminal or delinquent activity,” and subsection (d)
       provided that “the criteria listed in subsections (b) and (c) do not limit the matters that the court may consider
       in determining the sentence.” 568 N.E.2d at 544-545. At the time of McClafferty’s sentencing, Ind. Code §
       35-38-1-7.1(a)(2) provided that a trial court may consider whether “[t]he person has a history of criminal or
       delinquent behavior,” and Ind. Code § 35-38-1-7.1(c) provided that “[t]he criteria listed in subsections (a) and
       (b) do not limit the matters that the court may consider in determining the sentence.”

       Court of Appeals of Indiana | Memorandum Decision 48A04-1609-CR-2086 | February 21, 2017             Page 8 of 11
               good or bad, in addition to those expressly set out in the rest of
               the statute when determining the appropriate sentence to impose
               on that defendant. It is in this category that a record of arrests is
               properly considered. While a record of arrests does not establish
               the historical fact of prior criminal behavior, such a record does
               reveal to the court that subsequent antisocial behavior on the part
               of the defendant has not been deterred even after having been
               subject to the police authority of the State and made aware of its
               oversight of the activities of its citizens. This information is
               relevant to the court’s assessment of the defendant’s character
               and the risk that he will commit another crime and is therefore
               properly considered by a court in determining sentence. I.C. 35-
               38-1-7(a)(1) and (a)(3)(B) [repealed, similar provisions at Ind.
               Code § 35-38-1-7.1(b)(8), (c)]. See also Willoughby v. State (1990),
               Ind., 552 N.E.2d 462, 471 (DeBruler, J., concurring and
               dissenting); Chamness v. State (1983), Ind., 447 N.E.2d 1086, 1088
               (DeBruler, J., concurring in result).


       Tunstill v. State, 568 N.E.2d 539, 544-545 (Ind. 1991).


[13]   The presentence investigation report (“PSI”) reveals that some charges were

       either dismissed pursuant to guilty pleas or the disposition is unknown, but it

       also reveals that McClafferty has multiple convictions and that the trial court’s

       statement that the present convictions would include his third and fourth felony

       convictions is accurate. As a juvenile, McClafferty was alleged to have

       committed auto theft, reckless driving, “Leaving Scene of Property Damage

       Accident,” “No Operator’s License,” and fleeing in 1981, and was placed on

       formal probation. Appellant’s Appendix at 24. In 1985, he was alleged to have

       committed “Burglary/School,” and the PSI indicates that the disposition is

       unknown. Id. at 25. As an adult, McClafferty was charged with receiving


       Court of Appeals of Indiana | Memorandum Decision 48A04-1609-CR-2086 | February 21, 2017   Page 9 of 11
       stolen property as a class D felony and contributing to the delinquency of a

       minor in 1989, and the PSI indicates that the disposition is unknown. In 1992,

       McClafferty was convicted of carrying a handgun without a license as a class A

       misdemeanor. McClafferty was also convicted of auto theft as a class D felony,

       his sentence was suspended, and he later admitted the allegations in a petition

       for revocation. In 1993, McClafferty was charged with theft as a class D felony

       and criminal conversion as a class A misdemeanor and pled guilty to criminal

       conversion as a class A misdemeanor. In 1994, the State charged McClafferty

       with four counts of receiving stolen property as class D felonies, he pled guilty

       to theft as a class A misdemeanor, and the three remaining counts were

       dismissed. That same year, McClafferty pled guilty to arson as a class D

       felony. In 2007, McClafferty was charged with check deception as a class A

       misdemeanor, an agreement was entered to withhold prosecution, and the court

       ultimately granted the State’s motion to dismiss.


[14]   The trial court considered “the risk of future harm, and the fact that

       [McClafferty] is in need of rehabilitative services best provided in the

       Department of Corrections . . . .” Transcript at 50. Under Tunstill and Ind.

       Code § 35-38-1-7.1, the trial court could consider McClafferty’s arrests when

       sentencing him as indicative of “subsequent antisocial behavior on the part of

       the defendant [that was not] deterred even after having been subject to the

       police authority of the State and made aware of its oversight of the activities of

       its citizens,” his character, and the risk that he might commit another crime.

       Tunstill, 568 N.E.2d at 545. We also note that McClafferty does not challenge


       Court of Appeals of Indiana | Memorandum Decision 48A04-1609-CR-2086 | February 21, 2017   Page 10 of 11
       the court’s other aggravators. Under the circumstances, we cannot say that the

       trial court abused its discretion in sentencing McClafferty.


                                                   Conclusion

[15]   For the foregoing reasons, we affirm McClafferty’s sentence.


[16]   Affirmed.


       Vaidik, C.J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A04-1609-CR-2086 | February 21, 2017   Page 11 of 11
