Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
                                                              FILED
                                                           Feb 11 2013, 9:36 am
court except for the purpose of
establishing the defense of res judicata,                          CLERK
collateral estoppel, or the law of the case.                     of the supreme court,
                                                                 court of appeals and
                                                                        tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

THOMAS W. VANES                                 GREGORY F. ZOELLER
Crown Point, Indiana                            Attorney General of Indiana

                                                JAMES B. MARTIN
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

MANUEL LLOYD JAMERSEN,                          )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 45A03-1206-CR-257
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                      APPEAL FROM THE LAKE SUPERIOR COURT
                          The Honorable Salvador Vasquez, Judge
                              Cause No. 45G01-1010-FA-36


                                    February 11, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

       Appellant-Defendant, Manuel Lloyd Jamersen (Jamersen), appeals his sentence

for Count I, child molesting, a Class A felony, Ind. Code § 35-42-4-3(a); and Count II,

attempted child molesting, a Class A felony, I.C. §§ 35-42-4-3, -41-5-1.

       We affirm.

                                           ISSUE

       Jamersen raises one issue on appeal, which we restate as: Whether the trial court

abused its discretion in sentencing him.

                         FACTS AND PROCEDURAL HISTORY

       Between December 1, 2009 and July 28, 2010, Jamersen lived with thirteen-year-

old M.F., her mother, and other family members in a building in Gary, Indiana. Over the

course of eight months, Jamersen molested M.F. numerous times with the incidents

taking place in the basement, Jamersen’s bedroom, and throughout the house. Jamersen

engaged in fondling, touching, and oral sex with M.F. Jamersen told M.F. that she was

his girlfriend and threatened to put her mother in jail if M.F. informed her of their

activities. On July 30, 2010, M.F.’s mother contacted the Gary Police Department, which

began investigating.     Jamersen was arrested thereafter in Cook County, Illinois and

extradited to Indiana.

       On October 22, 2011, the State filed an Information charging Jamersen with Count

I, child molesting, a Class A felony, I.C. § 35-42-4-3(a); Count II, attempted child

molesting, a Class A felony, I.C. §§ 35-42-4-3(a), -41-5-1; and Count III, child

                                             2
molesting, a Class C felony, I.C. § 35-42-4-3(b). On April 9, 2012, Jamersen pled guilty

to all Counts without a plea agreement before a magistrate.             Jamersen’s counsel

announced that the factual basis for the plea would be established orally and the

magistrate suggested that the probable cause affidavit be used.         Jamersen’s counsel

recited portions of the plea agreement which Jamersen affirmed.

       Jamersen admitted many of the allegations his counsel read or summarized from

the plea agreement but denied others. Specifically, he denied that he told M.F. not to tell

her mother, that he inserted his finger into M.F.’s vagina, that he told M.F. that he did not

want to engage in intercourse so as to avoid leaving evidence, and that he ejaculated in

M.F.’s mouth. However, at the conclusion of the guilty plea hearing, the magistrate

confirmed the factual basis with Jamersen as follows:

       [TRIAL COURT]: Just for the record then, too, in terms of the factual
       basis, what I understood you to say, Mr. Jamersen, correct me if I’m wrong,
       that you were affirming everything that was in the probable cause affidavit
       except for the fact that you never threated or you didn’t in any way try to
       threaten [M.F.’s] mother with going to jail if [M.F.] told, right? You never
       did that?

       [JAMERSEN’S COUNSEL]: You have to speak out loud.

       [JAMERSEN]: No. I’m sorry. No, your Honor.

       [TRIAL COURT]: Okay. And you never stuck your fingers up inside her;
       is that right?

       [JAMERSEN]: No, I did not.

       [TRIAL COURT]: Okay. Those are the only two things you disputed in
       the probable cause affidavit?

       [JAMERSEN]: Exactly.
                                             3
       [TRIAL COURT]: Is that right?

       [JAMERSEN]: Yes, your Honor.

       [TRIAL COURT]: You are both agreeing?

       [JAMERSEN]: Yes, your Honor.

       [JAMERSEN’S COUNSEL]: Yes.

       [STATE]: Yes, your Honor.

(Plea Transcript. pp. 23-24).

       On May 3, 2012, the trial court held a sentencing hearing. Jamersen’s counsel

argued that Counts II and III should merge with Count I. While the trial court agreed that

Count III would merge into Count I, it indicated it would enter judgment on Count II.

During the discussion, the following exchange occurred:

       [STATE]: I think the attempted [child molesting, Count II] stands on its
       own, based on the facts and the [p]robable [c]ause [a]ffidavit, which he has
       adopted as his stipulated factual basis for this plea.

       [TRIAL COURT]: My note from the magistrate indicates that he denied
       digital penetration.
       [* * * ]

       [JAMERSEN’S COUNSEL]: Yes, he did.

       [TRIAL COURT]: My understanding – and I spoke with Magistrate
       Sullivan this morning – of the oral factual basis is that the [p]robable
       [c]ause [a]ffidavit was read. And essentially discussion went to Jamersen
       and said, “[d]o you agree with what’s been read,” essentially. And he
       disagreed with two aspects. One was the […] statement to the mother that
       the mother would go – the statement to the child that the mother would go
       to jail if she told anyone. Jamersen denied that.


                                            4
              The second was the […] digital penetration, the finger penetration.
       And Jamersen denied that as well. And that’s all I have. Everything else
       was consistent and Mr. Jamersen remained consistent with the [p]robable
       [c]ause [a]ffidavit. That’s my understanding of what took place at the
       change of plea. […].

       [JAMERSEN’S COUNSEL]: That is correct, your Honor.

(Sentencing Tr. pp. 6-7). The trial court later found Jamersen had manipulated M.F., a

troubled girl who had been significantly damaged by Jamersen’s acts. The court also

found that Jamersen abused a position of trust over the thirteen year old M.F. The 55

year old Jamersen, who resided in the same house as a “live-in tenant or guest” and

looked over M.F. when her mother was away, “took advantage” of her. (Sent. Tr. p. 33).

The trial court found as a mitigator that Jamersen pled to the charges but nevertheless

concluded that the aggravators clearly outweighed the mitigator. It sentenced Jamersen

to the Department of Correction for forty years on Count I and twenty years on Count II.

Count III was merged into Count I and both Counts I and II were ordered to run

consecutively, resulting in an aggregate sentence of sixty years.

        Jamersen now appeals. Additional facts will be provided as necessary.

                             DISCUSSION AND DECISION

       Jamersen argues that the trial court abused its discretion when it sentenced him.

Sentencing decisions rest with the sound discretion of the trial court and those decisions

are generally reviewed upon appeal for an abuse of that discretion. Anglemyer v. State,

868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).        An

abuse of discretion will be found where the decision is clearly against the logic and effect

                                             5
of the facts and circumstances before the court or the reasonable, probable, and actual

deductions to be drawn therefrom. Id. One way that the trial court may abuse its

discretion is by finding a factor in aggravation that is otherwise unsupported by the

record. Id. When reviewing the sufficiency of a sentencing statement, we examine both

the trial court’s written and oral statements. Gleason v. State, 965 N.E.2d 702, 710 (Ind.

Ct. App. 2012).

      In both its written and oral sentencing statements, the trial court found the

following six aggravating factors: (1) Jamersen’s criminal history, which included felony

and misdemeanor convictions; (2) Jamersen’s age of 55, his residence with M.F. and her

family, and the supervisory position over M.F. when her mother was not at home; (3)

Jamersen had molested M.F. over a ten month period, during which deviate sexual

conduct and attempted deviate sexual conduct occurred; (4) the emotional impact of his

conduct upon M.F. and her mother; (5) Jamersen’s acts were calculated to conceal his

crimes; and (6) Jamersen’s character was deceptive and manipulative.

      Jamersen’s sole challenge to his sentence is that a single aggravating factor

identified by the trial court is unsupported by the evidence. Jamersen references his plea

hearing before the magistrate during which he denied telling M.F. that he abstained from

intercourse with her in order to avoid leaving evidence. He claims that the trial court

later improperly relied on this circumstance by aggravating his sentence based upon its

conclusion that Jamersen’s acts were calculated to conceal evidence of his crimes and

that his character was deceptive and manipulative. This argument is unavailing.

                                            6
      When establishing the factual basis for Jamersen’s plea, the magistrate expressly

sought Jamersen’s confirmation that he contested only two facts: digital penetration and

threatening to send M.F.’s mother to jail if M.F. revealed his crimes. Jamersen concedes

that neither he nor his counsel objected or attempted to repeat his prior denials. Thus,

Jamersen cannot now argue that he denied telling M.F. that he abstained from intercourse

to avoid leaving evidence. The trial court could and did find this as evidence of a

calculated attempt to conceal Jamersen’s crimes and indicative of a deceptive and

manipulative character.

      Even if we were to conclude otherwise, reversal would not be required. The trial

court need only find one aggravating factor before exercising its discretion to enhance a

sentence. See Smith v. State, 908 N.E.2d 1251, 1253 (Ind. Ct. App. 2009). Jamersen

does not challenge the trial court’s finding that he held a position of supervision over

M.F. Nor does he contest other evidence supporting a finding that he molested M.F. in a

manner calculated to hide his offenses such as by secluding M.F. and molesting her away

from other occupants in the house. Given these remaining aggravating factors found by

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

same sentence. See Anglemyer, 868 N.E.2d at 491.

                                    CONCLUSION

      Based on the foregoing, we conclude that the trial court did not abuse its discretion

when sentencing Jamersen.

      Affirmed.

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BAKER, J. and BARNES, J. concur




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