MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                     Jun 18 2019, 6:46 am
regarded as precedent or cited before any
                                                                                CLERK
court except for the purpose of establishing                               Indiana Supreme Court
                                                                              Court of Appeals
the defense of res judicata, collateral                                         and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark A. Kiesler                                          Curtis T. Hill, Jr.
Kiesler Law Office                                       Attorney General of Indiana
New Albany, Indiana
                                                         Matthew Michaloski
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

David Gill,                                              June 18, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2335
        v.                                               Appeal from the Orange Circuit
                                                         Court
State of Indiana,                                        The Honorable Steven L. Owen,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         59C01-1709-F3-1005



Friedlander, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2335 | June 18, 2019                      Page 1 of 10
[1]   David Gill appeals the sentence he received for his conviction of sexual
                                                              1
      misconduct with a minor, a Level 4 felony. Concluding the aggravating

      circumstances applied by the trial court were not improper and his sentence was

      not inappropriate, we affirm.


[2]   Fifteen-year-old I.G. and thirty-year-old Gill were friends, and Gill often

      provided alcohol and drugs to I.G. One evening in October 2016, I.G. texted

      Gill because she was “having a bad day” and she “wanted to get drunk.”

      Appellant’s App. Vol. II, p. 31. I.G. told her mother she was going out with

      friends. Instead, Gill picked her up at the end of her driveway and took her

      back to his house where he provided her alcohol. As I.G. was drinking, Gill

      informed her he had put Xanax in her drink. I.G. does not remember anything

      but “bits and pieces” after a certain point in the evening. Id. at 32. She

      remembers throwing up several times and being put in the shower. She awoke

      in a bed at 4:00 a.m. and asked Gill to take her home.


[3]   The next day I.G. asked Gill if he had “done anything” to her, referring to sex.

      Id. at 33. Initially, Gill was equivocal with his response, but ultimately he

      denied having sex with I.G. Eventually, I.G. discovered that she was pregnant.

      In July 2017, I.G. delivered a baby, and DNA samples were obtained from the

      baby and Gill. Results of DNA testing showed that the probability of Gill’s

      paternity of I.G.’s baby is 99.9999%. Id. at 21.




      1
          Ind. Code § 35-42-4-9 (2014).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2335 | June 18, 2019   Page 2 of 10
[4]   Based upon these events, the State charged Gill with rape and sexual

      misconduct with a minor. Gill pleaded guilty to the sexual misconduct charge,

      and the State dismissed the rape charge; the parties left sentencing to the court’s

      discretion. The court sentenced Gill to a fully executed sentence of twelve

      years. Gill now appeals that sentence.


[5]   Gill first contends the trial court considered improper aggravating factors in

      sentencing him. Sentencing decisions rest within the sound discretion of the

      trial court. Anglemyer v. State, 868 N.E.2d 482 (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 drawn therefrom. Id. One of

      the ways in which a trial court may abuse its discretion is if the sentencing

      statement identifies aggravating factors that are improper as a matter of law. Id.


[6]   With regard to the second of two aggravating circumstances found by the court,

      the court stated:


              The Court looks at the facts of the case and finds that they were
              particularly egregious and caused more harm to the victim than
              was necessary to meet the elements of the crime. There was a
              significant age difference between the Defendant and the victim.
              She was a troubled youth and the Defendant used the lure of
              drugs and alcohol to achieve the results of his crime. Finally, as
              a result of his actions, the victim gave birth to a child. This
              certainly will have a lifelong [e]ffect upon the victim and her
              child. The Court gave moderate weight to this factor.


      Appellant’s App. Vol. II, pp. 148-49.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2335 | June 18, 2019   Page 3 of 10
[7]   Gill challenges the trial court’s consideration of the age difference between

      himself and I.G., alleging that it constitutes the use of a material element of the
                                        2
      offense as an aggravator. Although a trial court may not use a material

      element of the offense as an aggravating factor, it may find the nature and

      circumstances of the offense to be an aggravating factor. Caraway v. State, 959

      N.E.2d 847 (Ind. Ct. App. 2011) (citing Indiana Code § 35-38-1-7.1 (a)(1)

      (2015), which provides that, in determining a sentence, the court may consider

      as an aggravating circumstance that the harm, injury, loss, or damage suffered

      by the victim was significant and greater than the elements necessary to prove

      the commission of the offense), trans. denied. In other words, where a trial

      court’s reason for imposing a sentence greater than the advisory includes

      material elements of the offense but lacks something unique about the

      circumstances that would justify deviating from the advisory sentence, that

      reason is improper as a matter of law. Gomillia v. State, 13 N.E.3d 846 (Ind.

      2014). Even if the trial court relied on an improper factor under the “nature

      and circumstances” aggravating circumstance, the sentence may be upheld so

      long as the remaining components of the aggravator are proper. Id.

      Additionally, Gill takes exception with the court’s use of the term “lure”

      because, on the night of this offense, I.G. initiated the contact with him.




      2
        Although not stated in his brief, Gill is presumably referring to the element of the offense of sexual
      misconduct with a minor that requires, in this instance, the defendant to be at least twenty-one and the victim
      to be at least fourteen but less than sixteen. See Ind. Code § 35-42-4-9(a)(1).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2335 | June 18, 2019                     Page 4 of 10
[8]   In finding the nature and circumstances of the offense as an aggravator, the trial

      court stated that, as a result of Gill’s actions, I.G. became pregnant and gave

      birth to a child, forever changing her life and creating “a very difficult

      situation.” Tr. Vol. 2, p. 28. In further describing the unique circumstances of

      this offense, the court noted the vast discrepancy in age between Gill and I.G.—

      fifteen years, the fact that Gill should not have allowed I.G. to party with him,

      and the fact that their relationship was based on Gill providing drugs and

      alcohol to I.G.


[9]   The nature and circumstances aggravator is primarily based upon the facts that

      Gill furnished alcohol and drugs to fifteen-year-old I.G., engaged in intercourse

      with I.G. while she was under the influence of these substances, and, as a result,

      I.G. became pregnant and gave birth to a child. These facts are indeed far

      greater and more significant than the elements necessary to prove the offense of

      sexual misconduct. See Ind. Code § 35-42-4-9 (setting forth elements of Level 4

      felony sexual misconduct with a minor as a person who is at least twenty-one

      years of age, with a child at least fourteen years of age but less than sixteen

      years of age, performs or submits to sexual intercourse or other sexual conduct).

      Additionally, although Gill had to be at least twenty-one under the statute, his

      thirty years exceeded that minimum by almost a decade. As such, it was not

      improper for the trial court to consider the disparity between I.G.’s and Gill’s

      ages. See Gellenbeck v. State, 918 N.E.2d 706 (Ind. Ct. App. 2009) (stating it was

      not improper for court to consider disparity in defendant’s and victim’s ages

      where defendant’s age far exceeded minimum age of eighteen required by


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2335 | June 18, 2019   Page 5 of 10
       statute). Further, regardless of who initiated the contact on this particular

       night, it is undisputed that Gill had established a tempting arrangement with

       I.G. She described Gill’s residence as a “party setting” and stated that “it was

       like cool to have someone who like, when your friends are like, let’s get drunk,

       you could be like, hey, well, I know this guy who is complet[ely] okay with

       that.” Appellant’s App. Vol. II, p. 40. Thus, the trial court’s terminology was

       not improper to describe Gill’s pattern of providing alcohol and drugs to I.G.,

       as well as a location in which to consume them.


[10]   Nevertheless, even assuming that the age difference and the court’s use of the

       term “lure” are improper factors under the nature and circumstances

       aggravating circumstance, the remaining and principal components of the

       aggravator (i.e., providing mind-altering substances, having intercourse with the

       victim while she was under the influence of those substances, resulting

       pregnancy, and birth of a child) are proper. See Gomillia, 13 N.E.3d 846 (even if

       trial court relied on improper factor under “nature and circumstances”

       aggravating circumstance, sentence may be upheld if remaining components of

       aggravator are proper). We cannot say the trial court abused its discretion by

       considering the nature and circumstances of the offense as an aggravator.


[11]   Gill also asserts that his sentence is inappropriate in light of the nature of the

       offense and his character. Although a trial court may have acted within its

       lawful discretion in imposing a sentence, article VII, sections 4 and 6 of the

       Indiana Constitution authorize independent appellate review and revision of

       sentences through Indiana Appellate Rule 7(B), which provides that we may

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2335 | June 18, 2019   Page 6 of 10
       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 (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). Such deference to

       the trial court’s judgment should prevail unless overcome by compelling

       evidence portraying in a positive light the nature of the offense (such as

       accompanied by restraint, regard, and lack of brutality) and the defendant’s

       character (such as substantial virtuous traits or persistent examples of good

       character). Stephenson v. State, 29 N.E.3d 111 (Ind. 2015). Thus, 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 (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 (Ind. 2006).


[12]   To assess whether a sentence is inappropriate, we look first to the statutory

       range established for the class of the offense. Here, Gill was convicted of Level

       4 felony sexual misconduct with a minor, for which the advisory sentence is six

       years, with a minimum sentence of two years and a maximum of twelve. Ind.

       Code § 35-50-2-5.5 (2014). The court sentenced Gill to twelve years.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2335 | June 18, 2019   Page 7 of 10
[13]   Next, we look to the nature of the offense. Touting the fact that he did not

       employ any brutality or violence, Gill argues that there is nothing about how he

       committed this offense that makes it more egregious than any other commission

       of sexual misconduct with a minor. His contention is disingenuous and fails to

       cast his offense in a positive light. As we have detailed throughout our

       discussion, Gill did not have to use any violence to accomplish his crime

       because he drugged his victim and rendered her unconscious.


[14]   Additionally, while Gill concedes that the fact that his crime resulted in the

       birth of a child is an appropriate aggravator, he states that he did not intend to

       impregnate I.G. He further claims that because I.G. did not testify at his

       sentencing hearing it is impossible to know the extent of the nature of harm he

       created by impregnating her and causing her to give birth to a child. While it

       may be true that Gill did not intend to impregnate I.G., that fact is of no

       moment. Thirty-year-old Gill was certainly aware that a pregnancy is one

       possible consequence of having intercourse. Indeed, I.G.’s pregnancy was a

       direct result of the course of action Gill engaged in when he furnished alcohol

       mixed with Xanax to I.G. and then, while she was under the influence of these

       substances, made the decision to and did in fact engage in sexual intercourse

       with her. Moreover, contrary to Gill’s assertion, the fact that I.G. did not

       testify at his sentencing hearing is inconsequential. It is not at all difficult to

       conceive of the difficulties a pregnancy would cause a fifteen-year-old girl—

       physically, mentally, socially, and financially. I.G. was forced into adulthood




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2335 | June 18, 2019   Page 8 of 10
       with substantial decisions and responsibilities in a situation not of her own

       making and which forever changed her life.


[15]   We turn now to the character of the offender. Gill points to the age of his prior

       criminal convictions as a factor indicating assignment of less weight to his

       criminal history. The trial court, while acknowledging that Gill’s criminal

       conduct is not recent, found it to be significant and determined that it is an

       aggravating factor. The court classified Gill’s criminal history as “fairly

       serious” and specifically noted Gill’s felony conviction of aggravated robbery,

       for which he spent five years in the DOC. Tr. Vol. 2, p. 27. Even a minor

       criminal history is a poor reflection of a defendant’s character. Moss v. State, 13

       N.E.3d 440 (Ind. Ct. App. 2014), trans. denied. In total, Gill has two felony

       convictions and one misdemeanor. Moreover, apparently undeterred in his

       criminal behavior, Gill notes in his brief that he was charged with possession of

       marijuana subsequent to the current offense. See Appellant’s Br. p. 14. He also

       acknowledges that he scored in the high risk category to reoffend due to his

       criminal history. Id. at 15.


[16]   Gill also mentions his remorse and his difficult childhood. Evidence of a

       difficult childhood warrants little, if any, mitigating weight. Bethea v. State, 983

       N.E.2d 1134 (Ind. 2013). Yet, the trial court took this factor into consideration

       as well as Gill’s expression of remorse.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2335 | June 18, 2019   Page 9 of 10
[17]   Gill has not met his burden of presenting compelling evidence portraying in a

       positive light the nature of the offense and his character in order to overcome

       the trial court’s sentencing decision.


[18]   For the reasons stated, we conclude the trial court did not abuse its discretion

       by relying on the nature and circumstances of the offense aggravator. In

       addition, considering both the nature of the offense and the character of the

       offender and giving due consideration to the trial court’s sentencing decision,

       we are unable to conclude that Gill’s twelve-year sentence is inappropriate.


[19]   Judgment affirmed.


       Bailey, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2335 | June 18, 2019   Page 10 of 10
