MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Nov 26 2018, 8:45 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
Mary P. Lake                                            Curtis T. Hill, Jr.
La Porte, Indiana                                       Attorney General of Indiana
                                                        Caroline G. Templeton
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

James W. Adams,                                         November 26, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1228
        v.                                              Appeal from the LaPorte Superior
                                                        Court
State of Indiana,                                       The Honorable Michael S.
Appellee-Plaintiff.                                     Bergerson, Judge
                                                        Trial Court Cause No.
                                                        46D01-1706-F5-496



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1228 | November 26, 2018               Page 1 of 8
[1]   James W. Adams appeals his sentence for failure to register as a sex offender, a

      level 5 felony, and illegal sex offender residency, a level 6 felony. He raises one

      issue which we revise and restate as whether his sentence is inappropriate in

      light of the nature of the offenses and his character. We affirm.


                                      Facts and Procedural History

[2]   On June 30, 2000, Adams pled guilty to the felony of 3rd degree sexual assault

      under cause number 402000CF001245 (“Cause No. 1245”) in Milwaukee

      County, Wisconsin, and was sentenced to seven years confinement in the

      Wisconsin State Prison with three years executed and four years of probation.

      On July 26, 2001, Adams was convicted of felony 2nd degree sexual assault of a

      child under cause number 402001CF001909 (“Cause No. 1909”) in Milwaukee

      County and was sentenced to imprisonment of ten years to be served

      concurrently with Cause No. 1245. Adams’s conviction under Cause No. 1909

      required him to “register for life with the WI Sex Offender Registry.” State’s

      Exhibit 6.


[3]   On June 15, 2009, Adams registered in Indiana as a sex offender with the

      LaPorte County Sheriff’s Office. On October 18, 2013, Adams registered as

      homeless with the LaPorte County Sheriff’s Office and complied with the

      requirements for homeless registration until December 13, 2013. He was later

      arrested in LaPorte County and, on February 25, 2015, pled guilty to failure to

      register, a class D felony. He was sentenced to two years in the Indiana

      Department of Correction (“DOC”), with one and one-half years suspended to



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1228 | November 26, 2018   Page 2 of 8
      probation and an executed sentence of six months in jail. Following his release,

      Adams registered in St. Joseph County and his probation was transferred there.


[4]   On May 19, 2016, Adams pled guilty to the misdemeanor of resisting or

      obstructing an officer under cause number 402016CM001716 in Milwaukee

      County, was sentenced to six months on probation and to “30 days Milwaukee

      County House of Corrections, 15 days time served, alcohol assessment, fine

      and Court costs,” and he was released on September 8, 2016. Appellant’s

      Appendix Volume II at 92. Adams never registered in Wisconsin as required,

      nor did he register in Indiana, since his release on September 8, 2016. On

      February 21, 2017, a bench warrant was issued in Milwaukee County for a sex

      registry violation, felony H, under cause number 2017CF00946.


[5]   On May 4, 2017, Pamela Bergren, coordinator for the sex and violent offender

      registration for the LaPorte County Sheriff’s Office, discovered that Adams had

      been arrested by the Indiana State Police and had filled out an inmate

      registration form upon his arrival at the LaPorte County Jail that listed 402

      Holiday Street as his address. Detective Jacob Koch of the LaPorte County

      Sheriff’s Office interviewed Adams, who admitted that, prior to being arrested,

      he resided with his grandmother, Ruby Adams (“Ruby”), at 402 Holiday Street,

      Michigan City, Indiana. Bergren verified Adams’s identity by his social

      security number which she had on file, ran his driver’s license information

      through the NCIC IDACS system, discovered on his license, which expired on

      March 10, 2016, that his registered address was 402 Holiday Street, checked the

      Wisconsin Sex Offender Registration online, and discovered that his last photo

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1228 | November 26, 2018   Page 3 of 8
      was taken on January 12, 2016, and that the compliance status was marked as

      noncompliant with address unknown. She contacted the Wisconsin Sex

      Offender Registry and spoke with a staff member who referred her to someone

      who had taken over Adams’s case “once he had become non-compliant in . . .

      Wisconsin.” Transcript Volume II at 17. After learning 402 Holiday Street

      “was the address that [Adams] was declaring as his residence,” Bergren

      determined that the address was within a 1000-foot radius of “prohibited . . .

      facilities such as a daycare, school, park or community center” and that it was

      two houses away, or approximately seventy-five feet, from a facility located at

      414 Holiday Street called “Poo’s Playhouse Daycare” and 435 feet from a

      facility located at 123 Hobart Street called “Teresa’s Tender Toes.” Id. at 19,

      21.


[6]   In June 2017, the State charged Adams in its amended charging information

      with one count of failure to register as a sex or violent offender, a level 5 felony,

      and one count of illegal sex offender residency, a level 6 felony. On October

      12, 2017, Adams waived trial by jury and, on February 26, 2018, the matter

      proceeded to a bench trial, at which Ruby testified that she lived at 402 Holiday

      Street and that Adams received mail at the address “the year he got out – the

      year he came here.” Id. at 34. Ruby answered affirmatively when asked if it

      was fair to say that Adams received mail at the address for two or two-and-one-

      half years. She also answered affirmatively when later asked if she told

      detectives that Adams stayed with her sometimes and indicated Adams would

      come and “spend the night here and there, when he first came here he stayed


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1228 | November 26, 2018   Page 4 of 8
      there for a while . . . .” Id. at 35. In response to the question of whether

      “maybe three nights a month . . . sound[s] about right,” Ruby answered that it

      might have been and that she “wouldn’t dispute [it].” Id. She indicated that

      she was not familiar with the daycare “Theresa Tender Toes” but that a

      “[w]indow or sign, one of them” for “Pooh’s Playhouse” was visible to the eye.

      Id. at 36-37. The court found Adams guilty of failure to register as a sex

      offender, a level 5 felony, and illegal sex offender residency, a level 6 felony.


[7]   On March 8, 2018, the court held a sentencing hearing. The State asked for five

      years and indicated that it believed an aggravated sentence was appropriate as

      Adams had been previously charged with violent crimes, had “two prior sex

      offenses and the prior failure to register,” had been charged “at least, on 12

      occasions,” was on probation at the time of these offenses, and had “been on

      probation previously, which has been revoked.” Id. at 90. Counsel for Adams

      agreed that he was “probably not a good candidate for probation,” and asked

      that the “mitigators balance the aggravators and he be given the advisory

      sentence.” Id. at 91.


[8]   The court found the following aggravating circumstances: that Adams’s

      criminal history did not give it “much comfort in thinking that [Adams] can

      comply with the terms of probation”; that the “chances that [Adams] has been

      given in the past certainly have been squandered” by him; and that these

      offenses were committed while also on probation, which did not give the court

      “any reason to think that [Adams] would comply with the terms of probation or

      there is any chance that the Defendant might be rehabilitated. Suspending the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1228 | November 26, 2018   Page 5 of 8
       sentence or any portion of that sentence would depreciate the seriousness of this

       crime.” Appellant’s Appendix Volume II at 101. The court found the fact that

       Adams “did not make the State go to the expense of having a Trial” as a

       mitigating circumstance, sentenced him to concurrent terms of four years

       executed in the DOC on the count of failure to register as a sex or violent

       offender and one year on the count of illegal sex offender residency, and gave

       him 307 days credit and 102 days good-time credit for time spent in custody.

       Id. at 100.


                                                   Discussion

[9]    The issue is whether Adams’s sentence is inappropriate in light of the nature of

       the offenses and his character. Adams acknowledges that he has a significant

       criminal history but contends that the current offenses are strictly status

       offenses, that he has no significant drug or alcohol use history, and that there

       was no harm to any victims or testimony that he attempted to come into

       contact with any children. The State argues that Adams’s sentence is not

       inappropriate.


[10]   Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by

       statute if, after due consideration of the trial court’s decision, [we find] that the

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

       of the offender.” Under this rule, the burden is on the defendant to persuade

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

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


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1228 | November 26, 2018   Page 6 of 8
[11]   Ind. Code § 35-50-2-6 provides in part that a person who commits a level 5

       felony shall be imprisoned for a fixed term of between one and six years, with

       the advisory sentence being three years. Ind. Code § 35-50-2-7 provides in part

       that a person who commits a level 6 felony shall be imprisoned for a fixed term

       of between six months and two and one-half years, with the advisory sentence

       being one year.


[12]   Our review of the nature of the offenses reveals that Adams did not register in

       Wisconsin, as required, or in Indiana since his release on September 8, 2016.

       We also observe that, when Bergren verified Adams’s identity by his social

       security number which she had on file, ran his driver’s license information

       through the NCIC IDACS system, and checked the Wisconsin Sex Offender

       Registration, she discovered that his last photo had been taken on January 12,

       2016, and that his status was marked as non-compliant. Further, the 402

       Holiday Street address is within a 1000-foot radius of two prohibited facilities.

       As for his character, the presentence investigation report (“PSI”) indicates that

       Adams’s criminal history includes convictions in Wisconsin for felonies of 3rd

       degree sexual assault in 2000, 2nd degree sexual assault of a child in 2001, sex

       offender registry violation in 2016, as well as for misdemeanors of operating

       while under the influence and resisting or obstructing an officer in 2016. On

       February 21, 2017, a bench warrant was issued in Milwaukee County for a sex

       registry violation, felony H, and the PSI indicates that it is still active. The PSI

       further reveals that Adams was convicted in Indiana for residential entry, a

       class D felony, in 2010 and failure to register as a sex or violent offender, a class


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1228 | November 26, 2018   Page 7 of 8
       D felony, in 2014. The PSI states that he has been on probation, had his

       probation revoked, and was on probation at the time he was arrested and

       charged for the instant offense. Additionally, the PSI states that Adams

       reported he first used alcohol at the age of fifteen and began regularly using

       alcohol at the age of twenty-nine, and that, while he denied any illegal drug use,

       according to a previously completed PSI in December 2014, he admitted to

       using marijuana at the age of thirteen and that the last time he used marijuana

       was in June 2001.


[13]   After due consideration, we conclude that Adams has not sustained his burden

       of establishing that his sentence is inappropriate in light of the nature of the

       offenses and his character.


                                                   Conclusion

[14]   For the foregoing reasons, we affirm Adams’s sentence.


[15]   Affirmed.


       Altice, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1228 | November 26, 2018   Page 8 of 8
