ATTORNEY FOR APPELLANT                                       ATTORNEYS FOR APPELLEE
Brian A. Karle                                               Curtis T. Hill, Jr.
Ball Eggleston, PC                                           Attorney General of Indiana
Lafayette, Indiana
                                                             Matthew B. Mackenzie
                                                             Deputy Attorney General
                                                             Indianapolis, Indiana
______________________________________________________________________________


                                  In the                                               FILED
                          Indiana Supreme Court                                    Jan 17 2018, 2:59 pm

                                                                                       CLERK
                            _________________________________                      Indiana Supreme Court
                                                                                      Court of Appeals
                                                                                        and Tax Court

                                         No. 18S-CR-26

JESSICA MCCAIN,
                                                             Appellant (Defendant below),

                                                v.

STATE OF INDIANA,
                                                      Appellee (Plaintiff below).
                            _________________________________

                Appeal from the Tippecanoe Superior Court, No. 79D01-1606-F1-8
                            The Honorable Randy J. Williams, Judge
                            _________________________________

      On Petition to Transfer from the Indiana Court of Appeals, No. 79A02-1703-CR-616
                            _________________________________

                                        January 17, 2018

Per Curiam.

        Jessica McCain, then twenty-three years old, placed her mouth on her one-year-old son’s

penis while bathing him. The incident occurred after McCain had oral sex with her boyfriend. He

left the apartment and sent her text messages that were sexual in nature. At her boyfriend’s urging,

McCain recorded the incident with her son on a borrowed cell phone with the intent of sending the

video to the boyfriend.
       McCain pleaded guilty to Level 1 felony child molesting, for which the sentence is a fixed

term between twenty and fifty years, with an advisory term of thirty years. See Ind. Code § 35-

50-2-4. The trial court identified as mitigating factors McCain’s guilty plea, lack of criminal

history, and history of employment. The court identified as aggravating factors McCain’s position

of care, custody, and control of the victim, the victim’s age, and McCain’s intent at the time of the

offense. The court found the aggravators outweigh the mitigators and imposed a forty-year

sentence with thirty-eight years executed and two years suspended to probation.

       McCain appealed her sentence. The Court of Appeals reduced McCain’s sentence to thirty

years, finding the forty-year sentence inappropriate under Indiana Appellate Rule 7(B). McCain

v. State, No. 79A02-1703-CR-616, 2017 WL 4079491 (Ind. Ct. App. Sept. 15, 2017). The State

seeks transfer.

       The Indiana Constitution authorizes independent appellate review and revision of a trial

court’s sentencing decision. Ind. Const. art. 7, §§ 4, 6; Serino v. State, 798 N.E.2d 852, 856 (Ind.

2003). This authority is implemented through Appellate Rule 7(B), which permits an appellate

court to revise a sentence if, after due consideration of the trial court’s decision, the sentence is

found to be inappropriate in light of the nature of the offense and the character of the offender.

Serino, 798 N.E.2d at 856. The principal role of such review is to attempt to leaven the outliers.

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).

       Our judgment is that the sentence imposed by the trial court in this case is not inappropriate

under Appellate Rule 7(B) and does not warrant appellate revision. Accordingly, we grant transfer,

see Ind. Appellate Rule 58(A), and affirm the sentence imposed by the trial court.


Rush, C.J., and David, Massa, and Goff, JJ., concur.
Slaughter, J., votes to deny transfer.


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