MEMORANDUM DECISION                                                     Jul 21 2015, 10:01 am

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Jerry T. Drook                                            Gregory F. Zoeller
Marion, Indiana                                           Attorney General of Indiana

                                                          Michael Gene Worden
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Cory Alan Neal,                                           July 21, 2015

Appellant-Defendant,                                      Court of Appeals Cause No.
                                                          85A02-1412-CR-839
        v.                                                Appeal from the Wabash Circuit
                                                          Court
                                                          Cause No. 85C01-1310-FA-889
State of Indiana,
Appellee-Plaintiff.                                       The Honorable Robert R. McCallen,
                                                          III, Judge




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 85A02-1412-CR-839 | July 21, 2015             Page 1 of 5
                                             Case Summary
[1]   Cory Neal appeals his forty-year sentence for Class A felony child molesting.

      We affirm.


                                                      Issue
[2]   Neal raises one issue, which we restate as whether his sentence is inappropriate.


                                                     Facts
[3]   Neal is the father of A.N., who was born in July 2005. In 2013, A.N. reported

      that Neal had touched her inappropriately. During the course of the

      investigation, Neal admitted that he put his penis in A.N.’s mouth on two

      occasions, that she touched his penis with her hands, and that he watched

      pornography with her. He stated that he first put his penis in A.N.’s mouth

      when she was three or four years old.


[4]   On October 31, 2013, the State charged Neal with Class A felony child

      molesting and Class B felony incest. At trial, then nine-year-old A.N. described

      extensive sexual conduct on several occasions between Neal and her, including

      vaginal intercourse, anal sex, and oral sex. A jury found Neal guilty as

      charged. Because of double jeopardy concerns, Neal was only convicted of

      Class A felony child molesting.


[5]   In sentencing Neal, the trial court considered as aggravating that Neal failed to

      accept responsibility or show remorse despite admitting to the conduct, that he

      has a minor criminal history, that he unsuccessfully completed probation in the

      Court of Appeals of Indiana | Memorandum Decision 85A02-1412-CR-839 | July 21, 2015   Page 2 of 5
      past, that a reduced or suspended sentence would depreciate the seriousness of

      the offense, and that A.N. was his daughter. The trial court found no

      mitigators, and sentenced Neal to forty years executed. Neal now appeals.


                                                   Analysis
[6]   Neal argues that his forty-year executed sentence is inappropriate and that it

      should be reduced and/or include a term of probation. Indiana Appellate Rule

      7(B) permits us to 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. Although Appellate Rule 7(B) does not require us to be “extremely”

      deferential to a trial court’s sentencing decision, we still must give due

      consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.

      App. 2007). We also understand and recognize the unique perspective a trial

      court brings to its sentencing decisions. Id. “Additionally, a defendant bears

      the burden of persuading the appellate court that his or her sentence is

      inappropriate.” Id.


[7]   The principal role of Appellate Rule 7(B) review “should be to attempt to

      leaven the outliers, and identify some guiding principles for trial courts and

      those charged with improvement of the sentencing statutes, but not to achieve a

      perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225

      (Ind. 2008). We “should focus on the forest—the aggregate sentence—rather

      than the trees—consecutive or concurrent, number of counts, or length of the


      Court of Appeals of Indiana | Memorandum Decision 85A02-1412-CR-839 | July 21, 2015   Page 3 of 5
      sentence on any individual count.” Id. Whether a sentence is inappropriate

      ultimately 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. Id. at 1224. When reviewing the appropriateness of a sentence

      under Appellate Rule 7(B), we may consider all aspects of the penal

      consequences imposed by the trial court in sentencing the defendant, including

      whether a portion of the sentence was suspended. Davidson v. State, 926 N.E.2d

      1023, 1025 (Ind. 2010).


[8]   Regarding the nature of the offense, Neal acknowledges that A.N. was his very

      young daughter with whom he held a position of trust. Nevertheless, he

      contends that he did not force or threaten physical harm to A.N. and that the

      medical examination supported his theory that no sexual intercourse occurred.

      We simply are not persuaded that the nature of the offense, even if limited to

      oral sex, warrants a reduction of his forty-year sentence when, by Neal’s own

      admission, he engaged in oral sex with his daughter when she was three or four

      and again when she was older.


[9]   Regarding the character of the offender, Neal argues that he was thirty-one

      when he was charged with the current offense and before that had only been

      convicted of misdemeanor possession of marijuana and alcohol in 2001 and

      misdemeanor check deception in 2006. Although Neal’s criminal history is not

      significant, it is not non-existent. Further, the presentence investigation report

      shows that Neal had used marijuana daily since he was eighteen and had used

      methamphetamine multiple times a week since he was twenty-seven. Neal also

      Court of Appeals of Indiana | Memorandum Decision 85A02-1412-CR-839 | July 21, 2015   Page 4 of 5
       used opiates two to three times a week. This ongoing drug abuse taken with his

       criminal history indicates a pattern of disregard for the law.


[10]   Moreover, although Neal admitted to engaging in oral sex with A.N., he

       insisted in taking his case to trial whereby nine-year-old A.N. had to testify

       against her father in graphic detail. This shows Neal’s lack of remorse and

       failure to accept responsibility for his crime. The presentence investigation

       report indicated that, because of Neal’s failure to accept responsibility, he is not

       an appropriate candidate for a community-based sex offender treatment

       program, which would be a requirement of probation. Based on the nature of

       the offense and character of the offender, we are not convinced that Neal’s

       sentence is inappropriate or that a portion of his sentence should be suspended

       to probation.


                                                 Conclusion
[11]   Neal has not established that his forty-year executed sentence is inappropriate.

       We affirm.


[12]   Affirmed.


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




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