MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                            FILED
court except for the purpose of establishing                          May 23 2019, 10:25 am

the defense of res judicata, collateral                                     CLERK
                                                                        Indiana Supreme Court
estoppel, or the law of the case.                                          Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Matthew D. Anglemeyer                                   Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Matthew B. Mackenzie
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

James Edward Williams, Jr.,                             May 23, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-2764
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Kurt M. Eisgruber,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        49G01-1704-F1-15309



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2764 | May 23, 2019                    Page 1 of 8
                                          Statement of the Case
[1]   James Williams (“Williams”) appeals the seventy-year aggregate sentence

      imposed after he pleaded guilty to Class A felony child molesting, 1 two counts

      of Level 1 felony child molesting,2 two counts of Level 4 felony sexual

      misconduct with a minor,3 and three counts of Class C felony child molesting. 4

      He argues that his sentence is inappropriate in light of his character and the

      nature of his offenses. Concluding that the sentence is not inappropriate, we

      affirm Williams’ sentence.


[2]   We affirm.


                                                          Issue
                        Whether Williams’ sentence is inappropriate in light of the
                        nature of his offense and his character.




      1
       IND. CODE § 35-42-4-3. The charging information alleged that this offense occurred “[o]n or about or
      between August 1, 2012 and June 1, 2013.” (App. at 17). Effective July 1, 2014, this offense was reclassified
      as a Level 1 felony. Because Williams committed this offense before that date, it retains its classification as a
      Class A felony.
      2
       I.C. § 35-42-4-3. The charging information alleged that these offenses occurred “[o]n or about or between
      October 21, 2015 and June 30, 2016.” (App. at 18).
      3
       I.C. § 35-42-4-9. The charging information alleges that these offenses occurred “[o]n or about or between
      December 1, 2016 and April 23, 2017” and “[o]n or about or between April 1, 2017 and April 5, 2017.”
      (App. at 18).
      4
        I.C. § 35-42-4-3. The charging information alleges that these offenses all occurred “[o]n or about or
      between August 1, 2012 and June 30, 2013.” (App. at 18-19). Effective July 1, 2014, this offense was
      reclassified as a Level 4 felony. Because Williams committed these offenses before that date, they retain their
      classification as Class C felonies.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2764 | May 23, 2019                          Page 2 of 8
                                                     Facts
[1]   Williams was in a relationship with D.B.’s (“D.B.”) mother (“Mother”) from

      2009 to 2017, and they have two children together. Williams began having

      intercourse with D.B. in 2012, when she was ten years old and Williams was

      forty-four years old. The first incident of intercourse occurred when Williams

      called D.B. into his bedroom, sat her on the edge of the bed, took off her pants,

      and told her that he was “getting her ready for when she [was] older.” (App.

      Vol. 2 at 14). Williams inserted his penis into D.B.’s vagina, had sexual

      intercourse with her until he pulled out, and then ejaculated on the floor.

      Williams pulled up D.B.’s pants and told her that if she told anyone what had

      happened, they would both be in trouble.


[2]   For five years, Williams fondled D.B., performed oral sex on her, had her

      perform oral sex on him, and had vaginal intercourse with her. The last time

      Williams had intercourse with D.B. was in April 2017, when he told her to go

      upstairs to the bedroom closet. Williams followed D.B. up the stairs, told her

      to get on her hands and knees, pulled down her pants, and had sexual

      intercourse with her from behind. Williams ejaculated partially in D.B.’s

      vagina and partially on the closet floor.


[3]   Several weeks later, Williams suspected that D.B. was pregnant because she

      was gaining weight and had missed her period. Williams searched the internet

      for ways to terminate pregnancies. He gave D.B. Excedrin migraine pills every

      day and told her to boil and drink cinnamon because he believed that it would

      cause her to have a miscarriage.
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2764 | May 23, 2019   Page 3 of 8
[4]   Mother noticed the search history on Williams’ phone and questioned Williams

      about it. He subsequently told D.B. to tell Mother that she had been raped at

      gunpoint. During a discussion of the phone search, D.B. broke down and

      admitted that Williams had been molesting her for five years. Tests revealed

      that Williams had impregnated D.B.


[5]   The State charged Williams with: (1) Class A felony child molesting; (2-3) two

      counts of Level 1 felony child molesting; (4-5) two counts of Level 4 felony

      sexual misconduct with a minor; and (6-8) three counts of Class C felony child

      molesting. Williams admitted that that he had been having intercourse with

      D.B. at least once a month, and sometimes once a week, for five years and pled

      guilty to all of the charged offenses.


[6]   The trial court held a sentencing hearing in October 2018. At the hearing, the

      State told the trial court that Mother had intended to attend the hearing;

      however, she had been receiving threats for cooperating in the proceedings.

      She became so frightened by the threats that she had moved into a shelter in

      northwestern Indiana with her children. Mother sent a letter that she had asked

      the State to read into the record and present to the trial court. In the letter,

      Mother explained that being molested for five years had been “extremely

      strenuous on D.B. and her emotional well-being . . . [and] ha[d] changed [her]

      overall outlook on life and her future.” (Tr. at 19). Mother further explained

      that following Williams’ arrest, the State had opened a case against her, which

      had resulted in her losing her state childcare license and source of income. She

      and her children had eventually become homeless and had had to move to

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2764 | May 23, 2019   Page 4 of 8
      northwestern Indiana to stay with family. D.B. had lost her position on the

      travel dance team that had provided her with safety and security. Mother

      further explained that D.B. “had had her innocence stolen from her not only

      once but hundreds of times.” (Tr. 19). The Pre-Sentence Investigation Report

      revealed that Williams has a prior felony conviction in California for

      transporting a narcotic.


[7]   The trial court sentenced Williams to: thirty (30) years for the Class A felony

      child molesting conviction; thirty (30) years for each of the two Level 1 felony

      child molesting conviction; six (6) years for each of the two Level 4 felony

      sexual misconduct with a minor convictions; and four (4) years for each of the

      three Class C felony child molesting convictions. The trial court further

      ordered the thirty-year sentence for the Class A felony child molesting

      conviction, one of the thirty-year sentences for a Level 1 felony child molesting

      conviction, one of the six-year sentences for a Level 4 felony sexual misconduct

      with a minor conviction, and one of the four-year sentences for a Class C felony

      child molesting conviction to run consecutively with each other, for a total

      executed sentence of seventy (70) years. Williams now appeals his sentence.


                                                  Decision
[8]   Williams argues that his seventy-year sentence is inappropriate. Indiana

      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. The defendant bears the burden of persuading this Court that
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2764 | May 23, 2019   Page 5 of 8
       his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

       2006). Whether we regard a sentence as inappropriate turns on 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).


[9]    The Indiana Supreme Court has further explained that “[s]entencing is

       principally a discretionary function in which the trial court’s judgment should

       receive considerable deference.” Id. at 1222. “Such deference 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, 122

       (Ind. 2015).


[10]   When determining whether a sentence is inappropriate, the advisory sentence is

       the starting point the legislature has selected as an appropriate sentence for the

       crime committed. Childress, 848 N.E.2d at 1081. The sentencing range for a

       Class A felony is twenty (20) years to fifty (50) years, and the advisory sentence

       is thirty (30) years. IND. CODE § 35-50-2-4. The sentencing range for a Level 1

       felony is twenty (20) to forty (40) years, and the advisory sentence is thirty (30)

       years. IND. CODE § 35-50-2-4. The sentencing range for a Level 4 felony is two

       (2) and twelve (12) years, and the advisory sentence is six (6) years. IND. CODE

       35 -50-2-5.5. Lastly, the sentencing range for a Class C felony is two (2) to eight

       (8) years, and the advisory sentence is four (4) years. IND. CODE § 35-50-2-6.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2764 | May 23, 2019   Page 6 of 8
[11]   Here, the trial court sentenced Williams to the advisory sentence for each

       offense, which includes thirty years for each Class A and Level 1 felony, six

       years for each Level 4 felony, and four years for each Class C felony. The trial

       court further ordered the sentences for the Class A felony, one of the Level 1

       felonies, one of the Level 4 felonies, and one of the Class C felonies to run

       consecutively to each other, for a total executed sentence of seventy years. This

       is well below the 178-year maximum executed sentence that trial court could

       have ordered.


[12]   Regarding the nature of the offense, we note that Williams began having

       intercourse with D.B. when she was ten years old under the guise of “getting

       her ready for when she was older.” (App. Vol. 2 at 14). For the next five years,

       he sexually victimized the young girl at least once per month and sometimes

       once per week. As a result of the offenses, D.B. became pregnant, and Mother

       lost her childcare license and her ability to support her family. She and her

       children subsequently became homeless.


[13]   Regarding Williams’ character, we note that Williams, who has a prior felony

       conviction for transporting narcotics, abused his position of trust with both

       D.B. and Mother by molesting D.B. for five years and threatening her not to tell

       anyone. Then, when Williams believed that D.B. was pregnant, he attempted

       to induce a miscarriage and he told D.B. to lie to Mother about how she had

       become pregnant.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2764 | May 23, 2019   Page 7 of 8
[14]   Williams has failed to meet his burden to persuade this Court that his aggregate

       seventy-year sentence is inappropriate.


[15]   Affirmed.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2764 | May 23, 2019   Page 8 of 8
