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:

ETHAN G. BARTANEN                                   GREGORY F. ZOELLER
Bartanen Law Office, LLC                            Attorney General of Indiana
Salem, Indiana
                                                    JONATHAN R. SICHTERMANN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                                                                              FILED
                                                                           Feb 19 2013, 9:14 am


                                                                                    CLERK
                               IN THE                                             of the supreme court,
                                                                                  court of appeals and
                                                                                         tax court

                     COURT OF APPEALS OF INDIANA

DANIEL MILLER,                                      )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No. 88A01-1205-CR-228
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                  APPEAL FROM THE WASHINGTON SUPERIOR COURT
                         The Honorable Frank Newkirk, Jr., Judge
                             Cause No. 88D01-1005-FA-267



                                        February 19, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                       Case Summary

       Daniel Miller, a federal census worker, drank at least six beers at a bar, broke into the

home of a woman he had visited while conducting census surveys several days earlier, and

raped her twenty-one-year-old physically and mentally disabled daughter. The State charged

Miller with class A felony burglary and class B felony rape. Miller pled guilty as charged,

and the trial court sentenced him to concurrent terms of forty years (with five years

suspended) for burglary and ten years for rape.

       On appeal, Miller claims that the trial court abused its discretion in considering

aggravating and mitigating circumstances at sentencing and that his sentence is inappropriate

in light of the nature of the offenses and his character. We conclude that Miller has failed to

carry his burden in either respect and therefore affirm his sentence.

                               Facts and Procedural History

       Miller was employed as a federal census worker in Washington County. On the

afternoon of May 4, 2010, the thirty-eight-year-old Miller visited the home of C.F., who

resided with and cared for her twenty-one-year-old daughter, L.F. L.F. has cerebral palsy and

is autistic and mildly mentally disabled. She cannot dress or shower herself, wash her hair, or

brush her teeth. Miller told C.F. that he needed to conduct a census survey. C.F. told Miller

that she had already filled out and mailed in the census questionnaire, but he insisted that the




                                               2
census office had not received it. He then asked C.F. the survey questions and learned about

L.F.’s age and dependent status.1

        On the evening of May 8, Miller and some companions went to a bar, where he drank

at least six beers. Miller left the bar sometime around 2:30 a.m. on May 9.

        At approximately 4:30 a.m., C.F. got out of bed because she was cold. She exited her

bedroom and encountered L.F., who told her that “a man was in [her] room hurting [her],

choking [her], .… hitting [her], putting hands over [her] mouth.” Tr. at 56.2 C.F. noticed that

L.F. was not wearing her pajama bottoms and underwear. She also noticed that L.F. had

bloodshot eyes and scratches and bruises on her face and neck. The home’s front door was

“wide open.” Id. at 66. C.F. called 911.

        The responding police officers found a man’s clothing and boots on the floor of L.F.’s

bedroom, as well as a wallet containing Miller’s driver’s license and social security card.

Officers went to Miller’s apartment complex and determined that the hood of his vehicle was

still warm. They found L.F.’s underwear inside the vehicle and Miller sleeping nude in his

bed. L.F. was taken to a rape center for evaluation. A DNA swab taken from L.F.’s vagina,

which had suffered blunt force trauma, matched Miller’s DNA profile.




        1
           C.F. testified that she and L.F. were picking up sticks in their yard when Miller arrived, whereas
Miller testified that he did not see L.F. during his visit.
        2
          Miller’s counsel has included portions of the guilty plea and sentencing hearing transcripts in the
appellant’s appendix in violation of Indiana Appellate Rule 50(F), which says, “Because the Transcript is
transmitted to the Court on Appeal pursuant to Rule 12(B), parties should not reproduce any portion of the
Transcript in the Appendix.”


                                                     3
        On May 10, 2010, the State charged Miller with class A felony burglary (burglary

resulting in bodily injury) and class B felony rape (rape compelled by force or imminent

threat of force or committed against a person who is so mentally disabled or deficient that

consent to sexual intercourse cannot be given). On January 30, 2012, Miller pled guilty as

charged pursuant to a plea agreement that left sentencing to the trial court’s discretion.

Miller did not dispute the State’s factual basis for the offenses but insisted that he had no

memory of them. The court accepted Miller’s plea and ordered the probation department to

prepare a presentence investigation report (“PSI”).3

        A sentencing hearing was held on April 10 and 19, 2012. At the conclusion, the trial

court pronounced sentence against Miller as follows:

        Of course I heard that you are not prepared to say today that you believe you
        committed the crime. Your testimony was, of course, that that was the only
        truthful answer that you could give. That makes this an unusual case. But, it
        also is clear from the hearing, which was held back in January, that there is
        abundant evidence that you committed the crime and that you acknowledge
        that you are guilty of that crime and that has been previously determined. So
        any effort today to maybe create confusion about whether, in fact, you’re guilty
        is, is not considered as a basis for [] the effect on the sentence. But I do have,
        as the attorneys have talked about certain aggravating and mitigating factors
        which are referred to in the statute [Indiana Code Section 35-38-1-7.1]
        specifically. But as the attorneys have also said there are some things that I
        can consider which are not statutorily outlined, but which ought to be
        considered. And, of course, your attorney rightly pointed out that one of those
        important factors is your lack of a criminal history. And as [your attorney]

        3
           The appellant’s appendix contains a copy of Miller’s PSI on white paper in violation of the Indiana
Rules of Court. Indiana Administrative Rule 9(G)(l)(b)(viii) provides that “[a]ll presentence reports pursuant
to Ind. Code § 35-38-1-13” are “excluded from public access” and “confidential.” Indiana Appellate Rule 9(1)
requires that “[d]ocuments and information excluded from public access pursuant to Ind. Administrative Rule
9(G)(1) shall be filed in accordance with Trial Rule 5(G).” Indiana Trial Rule 5(G) states, “Whole documents
that are excluded from public access pursuant to Administrative Rule 9(G)(1) shall be tendered on light green
paper or have a light green coversheet attached to the document, marked Not for Public Access or
Confidential.”

                                                      4
noted, there are many people who come through here who have a number of
crimes in their background and, in fact, they may have pages of things for me
to review about their criminal history. But even having said that, it’s very rare
for a person to come through where their first conviction is for an A felony and
so I just want to be clear as to the seriousness of this. The only thing greater
than an A felony, as far as [its] seriousness in the law, is murder. And so when
you enter a plea of guilty to an A felony then naturally I know you are, you
must expect the sentence to be quite, quite punitive. And it will be, it must be
under the law. In fact, what the legislature has said is, that in the ordinary case
the advisory sentence for an A felony will be thirty years. And so if we say
that that’s where we begin and then look at the factors, that’s in effect, what
I’m trying to do. And I want you to know that I have kept an open mind
throughout this day and the prior day about what the sentence should be. And
it’s not an easy thing to know what’s in a person’s heart. And one of the
things that the Probation Department said was that after talking to you and
reviewing your history they believed that you were unlikely to commit other
crimes. And that you are likely to respond well to probation or short term
imprisonment. And I’ve considered that. But I do have to tell you that I
wasn’t convinced by it. And the reason, of course, is that the circumstances
are such that, you know, in some cases you may say well that will never
happen again. But there are always going to be vulnerable people in their
homes. There’s always going to be alcohol available to people. And there’s
always going to be the risk that although you say you don’t remember what
happened here, there’s always going to be the risk that this will happen again.
If you can’t explain why it happened or how it happened the first time, then it’s
hard for me to accept the proposition that it’s not likely to happen the next
time. But as I said I considered that and there is a lot of speculation, I guess,
when we ask the probation department to prepare that report and I don’t fault
the probation department for making that statement. But I do have to say to
you that I cannot find as a mitigating circumstance a belief that you are
unlikely to commit this in [the] future or that you are likely to respond to short
term imprisonment or probation. But I certainly do consider the fact that you
have not had a substantial criminal history, in fact you had no criminal history
prior to coming to Court on this. The prosecutor asked me to consider certain
things, of course, as aggravating circumstances. And I can’t say that I agree
with everything that the prosecutor said, but there are certain things that are
clear. And one is under the statute the victim was mentally or physically
infirm. And that is an aggravating circumstance. And of course it is, it is
important. One of the questions that you responded to and I gather, when you
talked to probation about how you would react if it happened to your family is
our general[] sense of justice that people shouldn’t be bullied. And for a
person who is mentally or physically infirm who has no chance of fending for

                                        5
       themselves and depends on someone else every, basically every minute of
       every day, to become a victim offends all of us. Offends society and the
       legislature recognized that when they made this an aggravated circumstance.
       The prosecutor asked me also to consider as an aggravating circumstance the
       fact that the harm which occurred in this case, was greater than what would be
       needed to prove the offense. And, and I believe that also has been shown. It
       would have been enough to have shown that in the course of committing the
       crime that there had been pain involved, but of course, there were multiple
       injuries to the victim and so I must find, therefore, that the harm which did
       occur was greater than necessary to prove the offense. The statute talks about
       a person entrusted with a person’s care and if they are the person who creates
       or causes the crime that that’s an aggravating circumstance. And that is not
       present here, but in considering what happened I have to be aware of the fact
       that you were at the house. You acted under the color of the law. That is you
       demanded information, which ultimately became used for the commission of
       the crime. Demanded information, I was told by [C.F.] in her testimony that
       she didn’t want to answer your questions. She said she shouldn’t have to
       answer your questions, that she had sent in the questionnaire already but that
       she was told no you have to answer my questions and who lives here. And that
       information acting in a position of trust and representing the government,
       forcing her to disclose things which ultimately were used against her and her
       daughter, that, I believe, should be considered as an aggravating factor,
       although it is not a statutory factor. It is something I considered.… If the
       advisory sentence [for a class A felony] is thirty years, the maximum sentence
       is fifty years. I also tend to agree with your attorney, that although this is, that
       this is not the worst of the worst aggravating circumstances. There are people
       of course who do have long criminal histories, they have similar crimes in their
       past, they have, um, permanent injuries that are committed or caused because
       of their crimes, um and so I do agree that this is not the worst of the worst
       when it comes to reviewing the aggravating circumstances and the maximum
       sentence isn’t going to be imposed. But having balanced out all of the factors
       in this case, um, and considering the statutes carefully, the sentence of forty
       (40) years and five (5) years of that will be suspended. Thirty-five years will
       be executed and that is on Count 1 which is the burglary as an A felony. Now
       because the other sentence will also run concurrently, it will not reduce or
       increase that thirty-five years in prison plus five years on probation. But on
       Count 2, it is a total of ten (10) year[s], none of which is suspended, which
       again is the advisory sentence for that count.

Id. at 337-44.

       This appeal ensued. Additional facts will be provided as necessary.

                                                6
                                      Discussion and Decision

                         I. Aggravating and Mitigating Circumstances

        Miller challenges the trial court’s consideration of aggravating and mitigating

circumstances. “Sentencing decisions rest within the sound discretion of the trial court and

are reviewed on appeal only for an abuse of discretion. An abuse of discretion occurs if the

decision is clearly against the logic and effect of the facts and circumstances before the

court.” Webb v. State, 941 N.E.2d 1082, 1088 (Ind. Ct. App. 2011) (citation omitted), trans.

denied.

        A trial court must enter a sentencing statement that includes reasonably
        detailed reasons for imposing a particular sentence. The purpose of this rule is
        to guard against arbitrary sentencing and to provide an adequate basis for
        appellate review. A trial court may abuse its discretion by issuing an
        inadequate sentencing statement, finding aggravating or mitigating factors that
        are not supported by the record, omitting factors that are clearly supported by
        the record and advanced for consideration, or by finding factors that are
        improper as a matter of law.

Id. (citations omitted).        The relative weight given to aggravating and mitigating

circumstances is not subject to review for an abuse of discretion. Id.4

                                  A. Aggravating Circumstances

        Miller first takes issue with the trial court’s finding as an aggravating circumstance

that his victim was “mentally or physically infirm.” Tr. at 340. Miller points out that a

victim’s mental infirmity is a material element of class B felony rape and that a “‘material

element of a crime cannot be considered an aggravating circumstance when sentencing a

        4
         To the extent Miller suggests that a trial court must weigh and balance aggravating and mitigating
circumstances, we note that it is not required to do so. Gervasio v. State, 874 N.E.2d 1003, 1005 (Ind. Ct.
App. 2007).

                                                    7
defendant.’” Appellant’s Br. at 9 (quoting Rogers v. State, 878 N.E.2d 269, 274 (Ind. Ct.

App. 2007));5 see also Ind. Code § 35-42-4-1(a) (stating that “a person who knowingly or

intentionally has sexual intercourse with a member of the opposite sex when … the other

person is compelled by force or imminent threat of force [or] … the other person is so

mentally disabled or deficient that consent to sexual intercourse cannot be given” commits

class B felony rape).

        We first observe that although a victim’s mental infirmity is a material element of

class B felony rape, it is not a material element of class A felony burglary. Thus, even if the

trial court erroneously considered L.F.’s mental infirmity in determining Miller’s rape

sentence (which is extremely unlikely given the ten-year advisory term and the probation

officer’s warning against doing so in the PSI), any error must be considered harmless in light

of his concurrent forty-year burglary sentence. We further observe that a victim’s physical

infirmity is not a material element of either crime charged, and it is undisputed that L.F. had

cerebral palsy and was unable to perform even simple physical tasks. In sum, Miller has

failed to establish an abuse of discretion regarding this aggravator.

        Miller also takes issue with the trial court’s finding as an aggravator that “the harm

which occurred in this case, was greater than what would be needed to prove the offense.”

Tr. at 340. Indiana Code Section 35-43-2-1 provides that “[a] person who breaks and enters

the building or structure of another person, with intent to commit a felony in it, commits


        5
           Miller also cites Castenada-Nova v. State, an unpublished memorandum decision from this Court, in
violation of Indiana Appellate Rule 65(D) (“Unless later designated for publication, a not-for-publication
memorandum decision shall not be regarded as precedent and shall not be cited to any court except by the
parties to the case to establish res judicata, collateral estoppel, or law of the case.”).

                                                     8
burglary, a Class C felony.” The offense is a class A felony if it results in either bodily injury

or serious bodily injury “to any person other than a defendant.” Id. Bodily injury is defined

as “any impairment of physical condition, including physical pain.” Ind. Code § 35-31.5-2-

29. Serious bodily injury is defined as “bodily injury that creates a substantial risk of death

or that causes: (1) serious permanent disfigurement; (2) unconsciousness; (3) extreme pain;

(4) permanent or protracted loss or impairment of the function of a bodily member or organ;

or (5) loss of a fetus.” Ind. Code § 35-31.5-2-292.

        Here, the charging information alleged that the burglary resulted in bodily injury to

L.F. Appellant’s App. at 10. Miller argues,

        In this case, the prosecution saw it fit to charge the crime as resulting only in
        bodily injury rather than serious bodily injury. One can presume that this was
        because the prosecution was not sure if the evidence comprised serious bodily
        injury. It does not seem appropriate for the State to charge Mr. Miller with
        simple bodily injury and then turn around and argue that the sentence should
        be enhanced because serious bodily injury in fact took place.

Appellant’s Br. at 12. That is not what happened here. The State has consistently—and

correctly—argued that L.F.’s injuries were both more numerous and more severe than

required to constitute bodily injury; it has not argued that the injuries were so severe as to

constitute serious bodily injury.6 Moreover, the harm that occurred in this case was not

merely physical. C.F. testified that the incident traumatized both her and L.F., who is now

extremely anxious and has trouble sleeping. Again, we find no abuse of discretion.




        6
          A rape center employee told C.F. that L.F.’s bloodshot eyes were caused “from her being blacked
out” from lack of oxygen, which would constitute serious bodily injury. Tr. at 57.

                                                   9
       Finally, Miller contends that the trial court erred in finding as an aggravating

circumstance that he “acted under the color of the law” as a federal census worker in

“demand[ing] information, which ultimately became used for the commission of the crime.”

Tr. at 341. Miller asserts,

       Frankly, there exists absolutely no evidence that Mr. Miller was so forceful in
       his actions. The victim’s mother recounts an event in which she states that she
       already mailed in the [census] form and was told that it was not received so the
       questions had to be asked again. No testimony exists that disputes the veracity
       of Mr. Miller’s alleged statements regarding the receipt of the form.
       Additionally, no evidence exists that indicates that Mr. Miller utilized any
       information obtained on that day in furtherance of the commission of these
       crimes. There is a litany of possibilities that could have led to Mr. Miller
       being in that home on the evening in question and nowhere in the record is a
       direct correlation drawn between any information obtained during the census
       interview and the crimes charged in this case.

Appellant’s Br. at 13-14.

       C.F. testified that Miller told her that “he was from the census bureau and he had to

do” a census survey. Tr. at 60. C.F. told him that she had already sent in the census

questionnaire, and “he said well we didn’t get it, we have to do it again. And I said I don’t

see why we had to do it again when I’d already done it. And he says because we didn’t get

your paper. And I said if we have to we have to.” Id. Miller acknowledged that he “would

have found out information about” L.F. during the survey. Id. at 268. Based on this

testimony and the facts and circumstances surrounding the burglary and rape, the trial court

reasonably could have inferred that Miller demanded information from C.F. in his role as a

federal census worker and later used that information to prey upon the vulnerable L.F. Once

again, we find no abuse of discretion.


                                             10
                                   B. Mitigating Circumstances

        Miller first claims that the trial court failed to give his lack of criminal history

sufficient mitigating weight. Such a claim is not subject to review. Webb, 941 N.E.2d at

1088.

        He also claims that the trial court failed to find his guilty plea to be a mitigating

circumstance. We note, however, that the trial court mentioned in its oral sentencing

statement that Miller had acknowledged his guilt and specifically found as a mitigating factor

in its written sentencing statement that Miller “had admitted his violations and accepted his

punishment.” Appellant’s App. at 38. To the extent Miller claims that the trial court failed

to give that factor sufficient weight, that claim is not subject to review. Webb, 941 N.E.2d at

1088.

        Next, Miller argues that the trial court should have found his military service to be a

mitigating factor. Miller did not raise this argument at sentencing and therefore has waived it

on appeal. See Spears v. State, 735 N.E.2d 1161, 1167 (Ind. 2000) (“If the defendant does

not advance a factor to be mitigating at sentencing, this Court will presume that the factor is

not significant and the defendant is precluded from advancing it as a mitigating circumstance

for the first time on appeal.”).

        Finally, Miller contends that the trial court abused its discretion in rejecting two

proposed mitigators mentioned by the probation officer in the PSI and raised by his counsel

at the sentencing hearing: (1) that he “is likely to respond affirmatively to short-term

imprisonment or probation”; and (2) “the circumstances of this crime are unlikely to occur.”


                                               11
Appellant’s Br. at 17-18. We note that “[t]he trial court is not obligated to find a

circumstance to be mitigating merely because it is advanced by the defendant. Rather, on

appeal, a defendant must show that the proffered mitigating circumstance is both significant

and clearly supported by the record.” Spears, 735 N.E.2d at 1167 (citation omitted).

       To reiterate, the trial court rejected those proposed mitigators as follows:

       I’ve considered that. But I do have to tell you that I wasn’t convinced by it.
       And the reason, of course, is that the circumstances are such that, you know, in
       some cases you may say well that will never happen again. But there are
       always going to be vulnerable people in their homes. There’s always going to
       be alcohol available to people. And there’s always going to be the risk that
       although you say you don’t remember what happened here, there’s always
       going to be the risk that this will happen again. If you can’t explain why it
       happened or how it happened the first time, then it’s hard for me to accept the
       proposition that it’s not likely to happen the next time.

Tr. at 339.

       In support of his argument, Miller points to his lack of criminal history and his low

score on the Indiana Risk Assessment System Community Supervision Tool. For its part, the

State notes that Miller’s brother testified that he had personally seen Miller drink until he

blacked out “[a] couple of times” and that when Miller drank, “he wasn’t the same person

that he is when he [doesn’t] drink.” Id. at 202. At the very least, reasonable minds could

differ regarding whether Miller would respond affirmatively to short-term imprisonment or

probation or whether the circumstances of the crimes are unlikely to recur, and therefore we

cannot say that the trial court abused its discretion in rejecting those proffered mitigators.




                                              12
                              II. Appropriateness of Sentence

       Miller also asks that we reduce his sentence pursuant to Indiana Appellate Rule 7(B),

which states, “The 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.” We have said that “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). “[T]he 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).

“[W]hether we regard a sentence as appropriate 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 factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219,

1224 (Ind. 2008). Miller bears the burden of persuading us that his sentence is inappropriate.

Id.

       As for the nature of the offense, “the advisory sentence is the starting point the

Legislature has selected as an appropriate sentence for the crime committed.” Abbott v.

State, 961 N.E.2d 1016, 1019 (Ind. 2012). Essentially, Miller is challenging only the forty-

year sentence (with five years suspended) that he received for class A felony burglary. The

sentencing range for a class A felony is between twenty and fifty years, with an advisory


                                               13
sentence of thirty years. Ind. Code § 35-50-2-4. Miller broke and entered the home of a

physically and mentally disabled young woman in the middle of the night, with the intent to

commit the felony of rape. The burglary resulted in numerous physical injuries and lasting

emotional trauma to Miller’s defenseless victim, who was choked, hit, and sexually assaulted.

The violent and disturbing nature of this offense clearly justifies a sentence above the thirty-

year advisory term.7

        Regarding Miller’s character, we acknowledge his lack of criminal history and the

supportive testimony of his family at the sentencing hearing. We also acknowledge that

Miller pled guilty, but he waited over a year and a half to do so and the evidence of his guilt

was overwhelming. Miller emphasizes his service in the Navy, but we have stated that “an

honorable military service record does not excuse a sex crime.” Bluck v. State, 716 N.E.2d

507, 515 (Ind. Ct. App. 1999). He also emphasizes his steady work history, but he took

advantage of his position as a federal census worker to obtain information about his

vulnerable future victim. Miller has consumed alcoholic beverages to the point of blacking

out on several occasions, and this time the results were senseless and tragic. In sum, Miller

has failed to persuade us that his sentence is inappropriate. Therefore, we affirm.

        Affirmed.

KIRSCH, J., and MATHIAS, J., concur.


        7
           Miller does not discuss the nature of the offenses at all in his appellate brief. The State claims that
this Court held that “failure to address both prongs of the Rule 7(B) analysis constitutes a waiver for failing to
make a cogent argument” and argues that Miller “has waived his Rule 7(B) argument.” Appellee’s Br. at 15-
16 (citing Perry v. State, 921 N.E.2d 525, 528 (Ind. Ct. App. 2010)). In Perry, the defendant apparently failed
to make a cogent argument regarding either prong. Here, because Miller has presented a cogent argument
regarding his character, we choose to address the merits of his Rule 7(B) claim as to that prong.

                                                       14
