MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                              Sep 02 2016, 9:02 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
Ronald J. Moore                                          Gregory F. Zoeller
The Moore Law Firm, LLC                                  Attorney General of Indiana
Richmond, Indiana
                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Timothy D. Shuff,                                        September 2, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         89A04-1602-CR-419
        v.                                               Appeal from the Wayne Circuit
                                                         Court
State of Indiana,                                        The Honorable David A. Kolger,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         89C01-1503-F1-9



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 89A04-1602-CR-419 | September 2, 2016    Page 1 of 11
                                          Case Summary
[1]   Timothy D. Shuff (“Shuff”) was convicted of Child Molesting, as a Level 1

      felony;1 Sexual Misconduct with a Minor, as a Level 4 felony; 2 and Child

      Molesting, as a Level 4 felony.3 He now appeals.


[2]   We affirm.



                                                   Issues
[3]   Shuff raises two issues for our review, which we restate as:

                    I.     Whether the trial court abused its discretion when it
                           denied a motion for continuance on the day of trial; and


                   II.     Whether his sentence is inappropriate under Appellate
                           Rule 7(B).


                                    Facts and Procedural History
[4]   Shuff was married in 2010 to Rachel S., who had three children from prior

      relationships: two daughters, S. and C., and a son, R. S.was the eldest child,

      born on January 19, 2001. During the events at issue in this case, the family

      lived together in a home in Whitewater, Indiana.




      1
          Ind. Code § 35-42-4-3(a)(1).
      2
          I.C. § 35-42-4-9(a)(1).
      3
          I.C. § 35-42-4-3(b).


      Court of Appeals of Indiana | Memorandum Decision 89A04-1602-CR-419 | September 2, 2016   Page 2 of 11
[5]   Sometime in 2012 or 2013, Rachel noted that Shuff’s relationship with S. had

      changed. Though she suspected that Shuff was engaging in sexual conduct

      with S., both Shuff and S. denied any sexual interactions. In 2014, C. reported

      that she had seen Shuff and S. having sexual intercourse. In response to this,

      Shuff used a two-by-four piece of wood to strike C.’s buttocks, leading to

      injuries and eventually Shuff’s conviction in a separate cause for Battery, as a

      Class D felony.


[6]   Rachel’s suspicions remained unabated. Sometime in January 2015, while

      Rachel was at work, R. witnessed Shuff and S. engaged in sexual intercourse in

      the bedroom Shuff and Rachel shared. Shuff knew that R. had seen this, and

      concocted a story in which he was wrestling with S., who rather than being

      naked was wearing a flesh-colored shirt. Shuff persuaded S. to corroborate his

      claims.


[7]   A few days after this, R. informed Rachel of what he had seen; the following

      day, Rachel, along with the children, moved out of the home. Sometime after

      Rachel and the children left the home, Shuff and S. met and drove in Shuff’s car

      to a cemetery in Fountain City, where they engaged in sexual intercourse.


[8]   On February 25, 2015, Rachel contacted police about Shuff’s conduct with S.

      after Rachel discovered e-mail correspondence between the two. Subsequent

      investigation would reveal that Shuff had begun molesting S. in 2012 or 2013,

      that he would sometimes have intercourse with S. multiple times in a week, that

      he took S. out of school several times in 2014 to engage in sexual intercourse


      Court of Appeals of Indiana | Memorandum Decision 89A04-1602-CR-419 | September 2, 2016   Page 3 of 11
       with her, and that he would have S. consume alcohol or pain pills before

       engaging in sexual intercourse with her.


[9]    On March 6, 2015, the State charged Shuff with Child Molesting, as a Level 1

       felony, and Sexual Misconduct with a Minor, as a Level 4 felony.


[10]   During the course of the proceedings before the trial court, Shuff failed to

       attend a hearing scheduled for April 20, 2015. Shuff had fled Indiana for Ohio,

       where he was eventually apprehended on May 6, 2015. On May 20, 2015,

       Shuff was returned to the Wayne County Jail, where he remained for the

       duration of the proceedings.


[11]   At the initial hearing in the case, Shuff expressed his intent to hire an attorney,

       but failed to do so, after which a public defender was appointed. On September

       24, 2015, the State filed an amended charging information that added a count of

       Child Molesting, as a Level 4 felony, and that restated the date ranges for the

       charged offenses. Shuff waived an initial hearing on the additional charge.


[12]   On September 25, 2015, Shuff filed a request for a continuance of the trial date.

       A hearing was conducted on the motion on October 16, 2015, at which time the

       trial court granted a continuance of the trial to January 14, 2016.


[13]   On October 19, 2015, Shuff retained private counsel. On December 14, 2015,

       Shuff again moved for a continuance of the trial date, requesting additional

       time to conduct depositions and obtain other discovery. On December 21,

       2015, the trial court denied the motion, noting several delays as a result of


       Court of Appeals of Indiana | Memorandum Decision 89A04-1602-CR-419 | September 2, 2016   Page 4 of 11
       Shuff’s conduct, finding that Shuff’s counsel would have adequate time before

       trial for discovery after entering his appearance on October 19, 2015, and noting

       the court’s intention to alleviate stress for S. and her family by proceeding to

       trial without an additional continuance.


[14]   On January 4, 2016, the State filed a motion to amend the charging

       information, along with its Second Amended Information. The changes to the

       charging information centered on refining the dates associated with the specific

       charges against Shuff. On January 6, 2016, Shuff notified the trial court that he

       had no objection to the Second Amended Information.


[15]   The case subsequently proceeded to trial from January 12, 2016 to January 14,

       2016. Before conducting voir dire, Shuff orally renewed his motion to continue

       of December 14, 2015; the trial court again denied the motion and the trial

       proceeded. At the conclusion of the trial, the jury found Shuff guilty as

       charged. After the jury entered its verdict, the trial court entered judgment of

       conviction against Shuff.


[16]   On February 17, 2016, a sentencing hearing was conducted. At the hearing’s

       conclusion, the trial court sentenced Shuff to forty years imprisonment for

       Child Molesting, as a Level 1 felony, and eleven years each for Sexual

       Misconduct with a Minor and Child Molesting, as Level 4 felonies. The trial

       court ran the sentences consecutively, yielding an aggregate term of

       imprisonment of sixty-two years.


[17]   This appeal ensued.

       Court of Appeals of Indiana | Memorandum Decision 89A04-1602-CR-419 | September 2, 2016   Page 5 of 11
                                       Discussion and Decision
                                           Denial of a Continuance
[18]   Shuff’s appeal first contends that the trial court abused its discretion when it did

       not grant his renewed motion for a continuance. Generally, where a statute

       does not require that the trial court rule on a continuance, we review the denial

       of a continuance for an abuse of discretion. Flake v. State, 767 N.E.2d 1004,

       1008).


[19]   Shuff challenges the trial court’s denial of his December 2015 motion for a

       continuance. The December 2015 motion, which Shuff renewed prior to voir

       dire on January 12, 2016, sought a continuance for the purpose of obtaining

       additional discovery. On appeal, Shuff couches his challenge as one centered

       upon a need for a continuance in light of the State’s second amended charging

       information, directing this Court’s attention to Indiana Code subsection 35-34-

       1-5(d):

                  Before amendment of any indictment or information other than
                  amendment as provided in subsection (b),[4] the court shall give



       4
           I.C. § 35-34-1-5(b) provides:

       The indictment or information may be amended in matters of substance and the names of material witnesses
       may be added, by the prosecuting attorney, upon giving written notice to the defendant at any time:
       (1) up to:
       (A) thirty (30) days if the defendant is charged with a felony; or
       (B) fifteen (15) days if the defendant is charged only with one (1) or more misdemeanors;
       before the omnibus date; or
       (2) before the commencement of trial;

       Court of Appeals of Indiana | Memorandum Decision 89A04-1602-CR-419 | September 2, 2016      Page 6 of 11
                all parties adequate notice of the intended amendment and an
                opportunity to be heard. Upon permitting such amendment, the
                court shall, upon motion by the defendant, order any
                continuance of the proceedings which may be necessary to
                accord the defendant adequate opportunity to prepare the
                defendant’s defense.


[20]   The State contends, and we agree, that Shuff’s appeal on this point is waived.

       The amended charging information was submitted to the trial court on January

       4, 2016. On January 6, 2016, the trial court noted in the CCS that “the

       Defendant [states] that he has no objection to the Second Amended

       Information” (App’x at 131), and Shuff concedes that he raised no objection to

       the amendment of the charging information. Nevertheless, he argues that the

       trial court violated his due process rights and abused its discretion by failing “to

       enter a denial or give Mr. Shuff a formal opportunity to be heard on the Second

       Amended Information.” (Appellant’s Br. at 18.) Yet the renewed motion to

       continue the trial pertained to a request for additional time to conduct

       discovery, and bore no relationship to a challenge to the amended charges—and

       Shuff had already waived that challenge by notifying the trial court that he did

       not object to the amended charging information. See Absher v. State, 866 N.E.2d

       350, 354-55 (Ind. Ct. App. 2007) (holding that, where the State filed amended

       charges, “failure to object at trial constitutes waiver of review unless an error is

       so fundamental that it denied the accused a fair trial”). With Shuff having




       if the amendment does not prejudice the substantial rights of the defendant. When the information or
       indictment is amended, it shall be signed by the prosecuting attorney or a deputy prosecuting attorney.

       Court of Appeals of Indiana | Memorandum Decision 89A04-1602-CR-419 | September 2, 2016          Page 7 of 11
       waived a challenge to the charging information at trial and presenting no

       argument to this Court pertinent to the subject matter of the renewed motion,

       we conclude that Shuff’s challenge to the denial of the motion to continue has

       been waived.


                           Inappropriateness under Rule 7(B)
[21]   Shuff also challenges the appropriateness of his sentence under Appellate Rule

       7(B). The authority granted to this Court by Article 7, § 6 of the Indiana

       Constitution permitting appellate review and revision of criminal sentences is

       implemented through Appellate Rule 7(B), which provides: “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.” Under this rule, and as

       interpreted by case law, appellate courts may revise a sentence after due

       consideration of the trial court’s decision, if the sentence is found to be

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

       offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008); Serino v. State,

       798 N.E.2d 852, 856-57 (Ind. 2003). The principal role of such review is to

       attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225.


[22]   Here, Shuff was convicted of a Level 1 felony, Child Molesting, and two Level

       4 felonies, Child Molesting and Sexual Misconduct with a Minor. For the

       Level 1 felony, Shuff faced a term of imprisonment of between twenty and forty

       years, with an advisory term of thirty years, I.C. § 35-50-2-4(b); the trial court


       Court of Appeals of Indiana | Memorandum Decision 89A04-1602-CR-419 | September 2, 2016   Page 8 of 11
       imposed the maximum sentence of forty years. For each of the Level 4

       felonies, Shuff faced a term of imprisonment ranging from two to twelve years,

       with an advisory term of six years, I.C. § 35-50-2-5.5; the court imposed

       sentences of eleven years for each offense. Run consecutively, Shuff was

       exposed to a maximum term of imprisonment of sixty-four years; the trial court

       imposed an aggregate term of imprisonment of sixty-two years, two years shy of

       the maximum. Shuff requests that this Court revise each sentence to the

       statutory advisory term and order that the sentences be run concurrently,

       yielding an aggregate term of imprisonment of thirty years.


[23]   We note first that Shuff spends considerable effort in his brief identifying

       mitigating factors that he suggests should have been taken into account, and

       evidence relating to aggravating factors that he suggests the trial court classified

       incorrectly. However, Shuff does not contend that the trial court abused its

       discretion in sentencing, and in fact states that the trial court’s sentence was

       “legislatively sound.” (Appellant’s Br. at 25.) Thus, to the extent that Shuff

       implies the trial court disregarded statutory mitigating factors for which there

       was evidence, we find that argument to be waived.


[24]   Turning now to the application of Rule 7(B), we look first at the nature of

       Shuff’s offense. For at least one year, Shuff abused a position of trust by

       engaging in sexual activity with his stepdaughter, and then went to great lengths

       to conceal that relationship. Often, Shuff provided drugs or alcohol to S. before

       sexual intercourse. During the period of Shuff’s offenses, he would correspond

       with S. by e-mail and phone as though the two were dating. By using phone

       Court of Appeals of Indiana | Memorandum Decision 89A04-1602-CR-419 | September 2, 2016   Page 9 of 11
       and e-mail, Shuff was able to communicate with S. without others knowing.

       On multiple occasions, Shuff took S. from school early for the purpose of

       engaging in intercourse when Rachel and the other children would not be

       home. Shuff also induced S. to obtain a second e-mail account that would be

       more difficult for Rachel and S.’s school to monitor, and gave S. a cell phone

       that had been set aside for family use in the event of emergencies.


[25]   After he was discovered by S.’s younger sister, C., Shuff claimed C. was lying

       and used a two-by-four piece of wood to strike C. as punishment. This resulted

       in considerable injury to C., for which Shuff was convicted in another case of

       Battery, as a Class D felony. When R. discovered Shuff and S. engaged in

       sexual activity, Shuff induced S. to play along with an attempt to make R.

       believe he had been mistaken about what he saw. And even after Rachel

       learned of Shuff’s conduct and left the home, Shuff arranged at least one more

       rendezvous with S., where he again engaged in sexual intercourse with her.


[26]   The consequences of Shuff’s conduct toward S. do nothing to make any of this

       of less concern. During the time he was engaging in sexual activity with S.,

       Shuff drove a wedge into the life of his family, alienating S. from her mother

       and siblings. During the period of Shuff’s offenses, S. became sullen and

       withdrawn. After Shuff’s arrest, S. suffered from depression and suicidal

       thoughts, and for some period of time also engaged in self-harming behavior.

       All of this supports a significantly aggravated sentence.




       Court of Appeals of Indiana | Memorandum Decision 89A04-1602-CR-419 | September 2, 2016   Page 10 of 11
[27]   Shuff’s character also speaks ill of him. After being arrested and charged, Shuff

       was released on bond on March 9, 2015. However, Shuff failed to appear for a

       hearing, having fled Indiana for Ohio. Shuff was apprehended in Ohio, and

       remained in the Wayne County Jail throughout the remainder of the trial court

       proceedings. While incarcerated, Shuff accrued several citations for violation of

       jail disciplinary rules. Shuff has, in the period from 2014 to 2016, accrued

       criminal convictions beyond those already mentioned: a 2015 misdemeanor

       conviction in Ohio for Assault, and a 2015 misdemeanor in Indiana associated

       with violation of a protective order. Moreover, Shuff failed to successfully

       complete probation ordered in the case involving his battering of C., leading to

       his probation being revoked.


[28]   In light of the grievous nature of Shuff’s offense and his character, we cannot

       conclude that his sentence was inappropriate.



                                               Conclusion
[29]   Shuff waived for appeal a challenge to his motion for a continuance. His

       sentence was not inappropriate.


[30]   Affirmed.


       Riley, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 89A04-1602-CR-419 | September 2, 2016   Page 11 of 11
