MEMORANDUM DECISION                                                            FILED
                                                                           Apr 06 2017, 9:56 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                                   CLERK
                                                                           Indiana Supreme Court
precedent or cited before any court except for the                            Court of Appeals
                                                                                and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Michael C. Borschel                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Caryn N. Szyper
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Cameron Washington,                                       April 6, 2017

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A02-1608-CR-1848
        v.                                                Appeal from the Marion Superior
                                                          Court.
                                                          The Honorable Lisa F. Borges,
State of Indiana,                                         Judge.
Appellee-Plaintiff.                                       Cause No. 49G04-1502-F1-5723




Darden, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1848 | April 6, 2017               Page 1 of 12
                                          Statement of the Case
[1]   A jury found Cameron Washington guilty of two counts of rape as Level 1
                      1                                           2
      felonies, armed robbery as a Level 3 felony, and kidnapping as a Level 3
                  3
      felony. Finding four aggravating factors and one mitigating factor, the trial

      court sentenced him to thirty-five years each for both counts of rape, with

      twenty years executed, five years in community corrections, ten years

      suspended, and five years of probation, as well as nine years executed for the

      robbery and kidnapping counts – all to be served concurrently. Washington

      appeals, arguing that the trial court erred when it cited his expunged juvenile

      adjudication as an aggravating factor in determining his sentence. We conclude

      that the trial court erred when it cited the improper aggravating factor but that

      the error does not require reversal. We affirm.


                                                        Issue
[2]   The sole issue Washington presents (restated) is whether the trial court abused

      its discretion when it sentenced him to an enhanced sentence based in part on

      his criminal history, where his history of contact with the criminal justice




      1
          Ind. Code § 35-42-4-1 (2014).
      2
          Ind. Code § 35-42-5-1 (2014).
      3
          Ind. Code § 35-42-3-2 (2014).

      Washington was found guilty of additional felonies that were vacated by the trial court due to double
      jeopardy concerns.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1848 | April 6, 2017             Page 2 of 12
      system was comprised solely of two expunged juvenile true findings and the

      underlying arrests.


                               Facts and Procedural History
[3]   On the evening of February 12, 2015, E.H., who has cerebral palsy, drove to

      her friend’s house located in Indianapolis. She pulled into the driveway,

      opened the driver’s side door, and, using her cell phone, began to send a text

      message to her friend to say she had arrived. While she texted, Washington

      approached her vehicle and pointed a gun at her face. Washington then entered

      the back seat of E.H.’s car and instructed her to drive.


[4]   E.H. drove through the neighborhood until Washington told her to stop.

      Washington then began to look through the vehicle’s console and glove

      compartment for valuables. He also riffled through E.H.’s purse, but found

      nothing of value. E.H. told Washington she had no money. She used her cell

      phone to show him her extremely low bank account balance. Washington took

      her cell phone and sat in complete silence for a moment.


[5]   Washington then ordered E.H. to get in the back seat of the car with him, and

      forced her to perform oral sex on him. She did so for approximately one to two

      minutes until Washington told her to stop. Washington then positioned himself

      behind E.H. and raped her vaginally. He then pulled his pants up and leaned

      over the seat toward the front of the car. At that point, E.H. exited the car and

      ran, screaming “[h]elp, help, help.” Tr., Vol. 2, p. 30.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1848 | April 6, 2017   Page 3 of 12
[6]    Washington chased E.H. E.H. testified that she thought she heard three gun

       shots as she ran. E.H. reached a neighboring home, banged on the door for

       help, entered the house when the home owner opened the door, and told the

       owner that she had been raped. The home owner called 911. The police

       arrived shortly thereafter. E.H. gave a statement to the officers, after which, she

       was taken to the hospital for a rape kit examination.


[7]    Law enforcement located E.H.’s vehicle. A K-9 unit led police officers from

       her vehicle to Washington’s home, located one block away. The officers

       knocked on the door, and Washington’s parents answered and allowed the

       officers to enter the home. The officers asked Washington where he had been

       that evening. Washington told the officers that he had been at a YMCA that

       was within walking distance of his home. Washington denied involvement in

       the incident involving E.H.


[8]    E.H. was later shown a photo array and she identified Washington as her

       attacker. Forensic testing of the rape kit revealed that the DNA profile of the

       seminal fluid found on E.H. matched Washington’s DNA profile.


[9]    The police detective assigned to the case obtained a search warrant to search

       Washington’s house. A Glock handgun, that matched the description E.H. had

       provided, was recovered. The gun contained fifteen live rounds, and had a

       maximum capacity of eighteen rounds.


[10]   Washington was arrested and charged with two counts of rape and two counts

       of criminal confinement, as well as robbery, kidnapping, and pointing a firearm

       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1848 | April 6, 2017   Page 4 of 12
       at another. A jury found Washington guilty of all seven counts and the trial

       court entered judgment of conviction. Prior to sentencing, a presentence

       investigation report (PSI) was prepared which revealed that Washington had

       two prior contacts with the juvenile system that had been expunged. At

       sentencing, the trial court amended the judgment out of double jeopardy

       concerns and vacated Washington’s convictions for criminal confinement and

       pointing a firearm at another.


[11]   The trial court sentenced Washington to thirty-five years, with twenty years

       executed, five years in community corrections, and ten years suspended for

       both counts of rape. He received nine years executed for robbery, and nine

       years executed for kidnapping, with all sentences to be served concurrently.

       Washington’s sentences were within the statutory range. See Ind. Code §§ 35-
                                                     4
       50-2-4 (2014) and 35-50-2-5 (2014).


[12]   Washington appeals. Additional facts are provided as necessary.




       4
        A person who commits a Level 1 felony shall be imprisoned for a fixed term of between
       twenty and forty years, with the advisory sentence being thirty years. Ind. Code § 35-50-2-
       4 (2014).

       A person who commits a Level 3 felony shall be imprisoned for a fixed term of between
       three and sixteen years, with the advisory sentence being nine years. Ind. Code § 35-50-2-
       5 (2014).




       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1848 | April 6, 2017   Page 5 of 12
                                    Discussion and Decision
                                  I. Expunged Juvenile Record
[13]   Washington contends the trial court abused its discretion because it enhanced

       his sentence using, in part, his expunged juvenile adjudications as an

       aggravating factor. The court noted at sentencing that his juvenile record

       showed a history of contact with the juvenile justice system. The State

       maintains that no error occurred because “arrest records and juvenile records

       can be considered by the trial court at sentencing as evidence of a defendant’s

       character, even in the absence of a conviction or true finding.” Appellee’s Br.

       p. 10.


[14]   Sentencing decisions rest within the sound discretion of the trial court and, if

       the sentence is within the statutory range, are reviewed on appeal for an abuse

       of discretion. See Anglemyer v. State, 868 N.E.2d 482, 490 (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 to be drawn

       therefrom. Id. (quotation omitted). Our Supreme Court has explained:


                One way in which a trial court may abuse its discretion is failing
                to enter a sentencing statement at all. Other examples include
                entering a sentencing statement that explains reasons for
                imposing a sentence – including a finding of aggravating and
                mitigating factors if any – but the record does not support the
                reasons, or the sentencing statement omits reasons that are
                clearly supported by the record and advanced for consideration,


       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1848 | April 6, 2017   Page 6 of 12
               or the reasons given are improper as a matter of law.


       Id. at 490-91.


[15]   During the sentencing hearing, Washington’s counsel alluded to Washington’s

       expunged criminal history, as listed in the PSI. The criminal history was

       comprised of two separate arrests that occurred when Washington was a

       juvenile that resulted in adjudications of true findings. Each adjudication

       contained a notation indicating the record was expunged on November 30,

       2012.


[16]   Washington argued that the expunged arrests and true findings should not be

       used as aggravating factors in deciding his sentence. The State maintained that

       whereas the court could not consider the true findings as aggravators, it could

       consider Washington’s arrests, that is, his contact with the legal system, when

       determining his sentence.


[17]   Washington then submitted for the trial court’s consideration a letter from the

       victim of one of his expunged juvenile adjudications. The trial court stated, “So

       I note the arrest, and I’m noting it because [Washington has provided] a letter

       from [the victim] asking [the court to have mercy on Washington]. But it – I

       can’t even recognize [the letter] without referring back to the fact that there was

       that arrest. So I’ll just note that, okay?” Tr., Vol. 3, p. 160.


[18]   Washington’s counsel explained that he submitted the letter because the PSI

       listed the juvenile history. The trial court then stated, “I’m not considering any


       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1848 | April 6, 2017   Page 7 of 12
       adjudication of the juvenile offense, the juvenile arrest, but taking into

       consideration [the victim’s] plea for mercy [on Washington], I can’t even

       consider that without noting the arrest, so I note it, okay?” Id. at 161. Counsel

       responded, “Understood, Judge. Thank you.” Id.


[19]   The trial court then found the following aggravating factors: that Washington

       violated his placement on pretrial release by being arrested for a new offense,

       that E.H. has cerebral palsy, and that the offenses Washington committed

       against E.H. will have a lasting effect on her quality of life. The court also

       found as an aggravating factor that “[Washington] has a history of contact with the

       juvenile justice system, and I’m going to leave it at that, as an aggravating

       circumstance.” Id. (emphasis added).


[20]   Indiana courts have recognized that criminal behavior reflected in delinquent

       adjudications can serve as the basis for enhancing an adult criminal sentence.

       Ryle v. State, 842 N.E.2d 320, 321 (Ind. 2005). Our Supreme Court has

       emphasized that it is the criminal behavior reflected in earlier proceedings

       rather than the adjudications that is the proper proof of a prior history of

       criminal behavior. Id. However, under Indiana law, expunged juvenile records

       cannot be considered as aggravating factors in the sentencing decision. See

       Owens v. State, 544 N.E.2d 1375, 1378-79 (Ind. 1989).


[21]   If a court grants an expungement petition for juvenile records it “shall order

       each law enforcement agency and each person who provided treatment for the

       child under an order of the court to send that person’s records to the court.”


       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1848 | April 6, 2017   Page 8 of 12
       Ind. Code § 31-6-8-2(d) (repealed 1997) (recodified as Ind. Code § 31-39-8-5

       (1997)). Once the records reach the court, they “may be destroyed or given to

       the person to whom [the records] pertain.” Ind. Code § 31-6-8-2(e) (repealed

       1997) (recodified as Ind. Code § 31-39-8-6 (1997)). Per our Supreme Court in

       Owens, “[p]roperly implemented, these procedures render expunged juvenile

       records unavailable to be considered as aggravating sentencing factors.” 544

       N.E.2d at 1378. We find that the trial court erred when it considered as an

       aggravating factor Washington’s expunged juvenile record.


                                             2. Invited Error
[22]   The State argues that the use of Washington’s expunged juvenile record as an

       aggravating factor is not reversible error because Washington invited it by

       introducing into evidence the letter from the victim of the offense. We disagree.


[23]   The invited error doctrine forbids a party to take advantage of an error that he

       “commits, invites, or which is the natural consequence of [his] own neglect or

       misconduct.” Brewington v. State, 7 N.E.3d 946, 975 (Ind. 2014). “[E]rror

       invited by the complaining party is not reversible error.” Booher v. State, 773

       N.E.2d 814, 822 (Ind. 2002) (citation omitted).


[24]   Washington introduced a letter from the victim of one of his juvenile offenses,

       wherein the victim asked the trial court to have mercy on Washington at

       sentencing in the present case. This caused the trial court to struggle with

       whether to accept the letter. The court noted that “I’m not considering any

       adjudication of the juvenile offense, the juvenile arrest, but taking into

       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1848 | April 6, 2017   Page 9 of 12
       consideration [the victim’s] plea for mercy [on Washington], I can’t even

       consider that without noting the arrest, so I note it, okay?” Tr., Vol. 3, p. 161.


[25]   Washington did place the trial court in a quandary regarding noting the

       submission of the victim’s letter. However, Washington did not invite the trial

       court’s error in using his expunged juvenile record as an aggravating factor for

       sentencing purposes.


                             3. Other Valid Aggravating Factors
[26]   The State further argues that if the use of Washington’s expunged juvenile

       record as an aggravating factor was error, no reversible error occurred because

       the trial court cited three valid aggravators to support Washington’s enhanced

       sentence. We agree.


[27]   “A single aggravating circumstance may be sufficient to enhance a sentence.

       When a trial court improperly applies an aggravator but other valid aggravating

       circumstances exist, a sentence enhancement may still be upheld.” Hackett v.

       State, 716 N.E.2d 1273, 1278 (Ind. 1999) (internal citations omitted). We will

       remand for resentencing if we cannot say with confidence that the trial court

       would have imposed the same sentence if it considered the proper aggravating

       and mitigating circumstances. McCann v. State, 749 N.E.2d 1116, 1121 (Ind.

       2001).


[28]   Here, the trial court considered one improper aggravating factor, but found as

       valid aggravating factors that Washington violated his placement on pretrial

       release, that E.H. has cerebral palsy, and that the offenses Washington
       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1848 | April 6, 2017   Page 10 of 12
       committed against E.H. will have a lasting effect on her quality of life. See Ind.

       Code § 35-38-1-7.1(a)(1), (6), (7) (2014) (in determining what sentence to

       impose, court may consider as aggravating circumstances (among others) that

       harm suffered by victim was significant, defendant violated conditions of

       pretrial release, and victim of offense was person with disability). The trial

       court sentenced Washington to an aggregate sentence of thirty-five years for his

       most serious offenses, rape – five years less than the maximum sentence

       allowed by statute. Washington received the advisory sentence for this Level 3

       felonies. The trial court found Washington’s youth a mitigating factor, and

       ordered twenty years of Washington’s sentence executed, five years served in

       community corrections, ten years suspended, and five years’ probation. Based

       on the foregoing, we can say with confidence that the trial court would have

       imposed the same sentence even if it had not found the improper aggravator.

       See, e.g., McCann, 749 N.E.2d at 1121 (declining to remand for resentencing

       where trial court considered one improper aggravating circumstance, but

       considered three other valid aggravating circumstances).


                                                Conclusion
[29]   For the reasons stated, we find that the trial court erred when it enhanced

       Washington’s sentence using, in part, his expunged juvenile record as an

       aggravating factor, but that the error does not warrant reversal because the trial

       court found additional, valid aggravating factors to support the enhanced

       sentence.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1848 | April 6, 2017   Page 11 of 12
[30]   Affirmed.


       Kirsch, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1608-CR-1848 | April 6, 2017   Page 12 of 12
