Pursuant to Ind. Appellate Rule 65(D),

                                                              FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
                                                            Jan 03 2012, 8:54 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.                                                              CLERK
                                                                 of the supreme court,
                                                                 court of appeals and
                                                                        tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

JOHN T. WILSON                                   GREGORY F. ZOELLER
Anderson, Indiana                                Attorney General of Indiana

                                                 KATHERINE MODESITT COOPER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                               IN THE
                    COURT OF APPEALS OF INDIANA

ROBERT O. BROYLES,                               )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 48A02-1103-CR-338
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE MADISON SUPERIOR COURT
                        The Honorable Thomas Newman, Jr., Judge
                             Cause No. 48D03-1003-FC-99


                                      January 3, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

DARDEN, Judge
                                  STATEMENT OF THE CASE

          Robert O. Broyles appeals his sentence for class D felony voyeurism,1 class D

felony child solicitation,2 and class C felony sexual misconduct with a minor.3

          We affirm.

                                               ISSUE

                     Whether the trial court erred in sentencing Broyles.

                                              FACTS

          In Fall of 2009, Broyles made sexual comments to his fifteen-year-old step-

granddaughter, M.J. While M.J. stayed the weekend at Broyles’ house, he offered to

perform oral sex on her and “teach[] her about sex.” (Tr. 8). On one occasion, Broyles

cupped M.J.’s breast with his hands while he asked her about sexual activity. Broyles

also constructed a wooden cabinet with a two-way mirror that he attached to the shower

wall so he could watch M.J. as she took a shower. Broyles told M.J. that he built the

cabinet so she would have a place for her soap when she showered. After Broyles built

the cabinet, he began sleeping in the bedroom that was adjacent to the bathroom wall.

          In January 2010, M.J. reported to the Madison County Department of Child

Services (“DCS”) that her grandfather, whom she called “papaw,” had made

inappropriate sexual comments to her and that she felt as if he was watching her take

showers. DCS contacted the Madison County Sheriff’s Department, which later executed


1
    Ind. Code § 35-42-4-5.
2
    I.C. § 35-42-4-6(c).
3
    I.C. § 35-42-4-9(b)(1).
                                                 2
a search warrant on Broyles’ house. The sheriff’s department saw the shower cabinet

with the two-way mirror and discovered that Broyles had a camera hooked up to a VCR

in the adjacent bedroom.       They also found a VCR tape upon which Broyles had

videotaped M.J. while she was naked and taking a shower on ten different occasions.

       On March 4, 2010, the State charged Broyles with class D felony voyeurism, class

D felony child solicitation, and class C felony sexual misconduct with a minor. On the

day of his scheduled trial, January 25, 2011, Broyles entered into a plea agreement in

which he agreed to plead guilty as charged, and the State conceded to concurrent

sentencing in light of Broyles’ lack of criminal history. Broyles pled guilty to all three

charges, and the trial court accepted his pleas.

       The trial court held a sentencing hearing on February 23, 2011. During this

hearing, M.J.’s mother testified that Broyles’ crimes against M.J. had caused her to

“completely withdraw[]” from her friends and softball, (tr. 23), caused her to have

nightmares about Broyles coming to “finish[] what he started,” (tr. 23), made her afraid

to take a shower without putting a curtain on the mirror, and “put a fear in [her] that will

never go away.” (Tr. 25). She also testified that M.J. had been especially humiliated

because the newspaper reported that Broyles had done “awful things” to a “minor female

relative,” and M.J. was Broyles’ only such minor relative. (Tr. 23). In the presentence

investigation report (“PSI”), Broyles admitted that “[i]t should have never happened” but

at the same time he blamed M.J.’s mother, stating, “[i]f her mother had been a mother she

would have kept her at home.” (App. 38). During the sentencing hearing, Broyles

testified that “[i]t was all [his] fault” and that he was “truly sorry” for what he did, but he

                                              3
also stated that he had “spent the last year . . . in [his] own prison at home” and could not

“watch the ball games or anything, which [he] love[d] to do, but now [he] c[ould not].”

(Tr. 27).

       When imposing Broyles’ sentence, the trial court addressed Broyles’ statement of

remorse and the reasons for the sentence imposed:

               The aggravating - - the mitigating circumstances [that] ha[ve] been
       articulated by both the prosecutor and the defense attorney would be the
       defendant’s lack of criminal history, the fact that []he pled, the fact that he’s
       articulated remorse. The Court finds that based upon the crime that’s been
       committed here that those mitigating circumstances are basically [d]e-
       minimus and of no significant value. The fact that he pled at the last
       minute when the case was ready to [go to] trial and as [the prosecutor]
       indicated the victim in this case was willing to testify. Remorse is - - has
       been articulated, but based upon the crimes that have been committed and
       the affect [sic] that it’s had on the victim in this case, remorse is very
       insignificant. The aggravating circumstances are that the defendant has
       committed a serious violation of trust with somebody that cared for and
       trusted him for a long period of time during the child’s life. The span of
       time during which the offenses were committed and the elaborate way in
       which the defendant was able to construct and effectuate the crimes of
       voyeurism and the fact that he’s charged with more than one count against
       the same victim over a significant period of time. The aggravating
       circumstances outweigh the mitigating circumstances justifying an eight (8)
       year executed sentence to prison.

(Tr. 35-37). The trial court sentenced Broyles to an aggregate term of eight years by

sentencing him to three years for each of his two class D felony convictions and eight

years for his class C felony conviction, and, pursuant to the plea agreement, ordering him

to serve these sentences concurrently.




                                              4
                                        DECISION

       Broyles argues that the trial court erred in sentencing him. Specifically, Broyles

contends that: (a) the trial court abused its discretion in its finding of aggravators and

mitigators; and (b) his sentence is inappropriate.

A. Abuse of Discretion

       Sentencing decisions rest within the sound discretion of the trial court. Anglemyer

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

So long as the sentence is within the statutory range, it is subject to review only for an

abuse of discretion. Id. An abuse of discretion will be found where 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.

       A trial court may abuse its discretion in a number of ways, including: (1) failing

to enter a sentencing statement at all; (2) entering a sentencing statement that includes

aggravating and mitigating factors that are unsupported by the record; (3) entering a

sentencing statement that omits reasons that are clearly supported by the record; or (4)

entering a sentencing statement that includes reasons that are improper as a matter of law.

Id. at 490–91. Because the trial court no longer has any obligation to weigh aggravating

and mitigating factors against each other when imposing a sentence, a trial court cannot

now be said to have abused its discretion in failing to properly weigh such factors. Id. at

491.




                                             5
        1. Mitigators

        Broyles argues that the trial court erred by failing to consider his lack of criminal

history, guilty plea, and remorse as significant mitigating factors.

        One way in which a court may abuse its discretion is by entering a sentencing

statement that omits mitigating circumstances that are clearly supported by the record and

advanced for consideration. Id. at 490–91. However, a trial court is not obligated to

accept a defendant’s claim as to what constitutes a mitigating circumstance. Rascoe v.

State, 736 N.E.2d 246, 249 (Ind. 2000). A claim that the trial court failed to find a

mitigating circumstance requires the defendant to establish that the mitigating evidence is

both significant and clearly supported by the record. Anglemyer, 868 N.E.2d at 493.

        Broyles contends that the trial court abused its discretion by failing to consider his

lack of criminal history, guilty plea, and remorse as “significant” mitigating factors.

Broyles’ Br. at 9.       As shown in the facts above, the trial court found these to be

mitigating circumstances but determined that they were “of no significant value.” (Tr.

36).4 Because we may not review the relative weights that the trial court assigned to

these mitigating factors, see Anglemyer, 868 N.E.2d at 490, we cannot say that the trial

court abused its discretion in its determination of mitigating circumstances.




4
  While the trial court mentioned Broyles’ remorse as a mitigating factor during the sentencing hearing,
the trial court’s written order does not list it as a mitigating factor. We may, however, review both oral
and written statements in order to identify the findings of the trial court. See McElroy v. State, 865
N.E.2d 584, 589 (Ind. 2007).

                                                    6
       2. Aggravators

       Broyles first argues that the trial court’s inclusion of the nature and circumstance

of the crime as an aggravator was inadequate because it did not point to facts outside the

factual elements of the crime.

       Broyles is correct that the trial court may not use a material element of his crime

as an aggravating circumstance to enhance his sentence. See McCann v. State, 749

N.E.2d 1116, 1120 (Ind. 2001). However, the nature and circumstances of a crime do

constitute a proper aggravating circumstance. See id. Here, the trial court did not refer

to a material element of the crimes when discussing the nature and circumstances of the

crimes. Instead, the trial court explained that the nature and circumstances was an

aggravating factor due to “[t]he span of time during which the offenses were committed

and the elaborate way in which the defendant was able to construct and effectuate the

crimes of voyeurism[.]” (Tr. 36). Accordingly, we cannot say that the trial court erred

when considering the nature and circumstances to be an aggravating circumstance.

       Broyles also contends that the trial court improperly found as an aggravator the

fact that he committed multiple crimes against M.J. Contrary to Broyles’ claim, “[t]he

law is settled that the fact of multiple crimes is a valid aggravating factor.” McDonald v.

State, 868 N.E.2d 1111, 1114 (Ind. 2007). The factual basis revealed that Broyles had,

on ten separate occasions, videotaped M.J. while she was naked and showering.

Therefore, we conclude that the trial court did not abuse its discretion in its consideration

of this aggravator.



                                             7
B. Inappropriate sentence

       Broyles argues that his eight-year sentence was inappropriate. We may revise a

sentence if it is inappropriate in light of the nature of the offense and the character of the

offender. Ind. Appellate Rule 7(B). The defendant has the burden of persuading us that

his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

The principal role of a 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).               Whether a sentence is

inappropriate ultimately turns on the culpability of the defendant, the severity of the

crime, the damage done to others, and a myriad of other factors that come to light in a

given case. Id. at 1224.

       Broyles contends that the trial court erred by imposing an eight-year “maximum”

sentence. Broyles’ Br. at 6.     We note, however, that Broyles received the maximum

sentence under the plea agreement, not under the law for the commission of his three

separate offenses not arising out of the same criminal episode. Indeed, the sentencing

range for a class C felony is between two years and eight years, with the advisory

sentence being four years, I.C. § 35-50-2-6, while the sentencing range for a class D

felony is between six months and three years, with the advisory sentence being one and

one-half years. I.C. § 35-50-2-7. Thus, the maximum term that Broyles could have

potentially faced as charged if he had not pled guilty was fourteen years. Here, the trial

court sentenced Broyles to three years for each of his two class D felony convictions and

                                              8
eight years for his class C felony conviction, and, pursuant to the plea agreement, it

ordered him to serve these sentences concurrently.

       Regarding Broyles’ offenses, the record reveals that Broyles violated a position of

trust with his fifteen-year-old granddaughter when he—on at least ten occasions—

watched and videotaped her while she was naked in the shower. Broyles was only able to

do so after he built and installed an elaborate mirrored shower cabinet, which he told his

granddaughter he had built so she would have a place to store her soap and shampoo.

Broyles, however, used the cabinet to secretly peep at her from the adjacent bedroom and

to videotape her with a camera and video recorder that he set up in that same bedroom.

Additionally, Broyles also fondled his granddaughter’s breast and offered to perform oral

sex on her and “teach[] her about sex.” (Tr. 8). The record reveals that Broyles started

making sexual comments to M.J. in the Fall of 2009 and that he only stopped after M.J.

reported him to DCS in January 2010.

       In support of his character, Broyles points to his guilty plea, lack of criminal

history, and prior work history. The trial court acknowledged his guilty plea and noted

that it was not of significant value because he pled guilty on the day of his scheduled trial

when the case was already ready for trial and M.J. was ready to testify against him. The

trial court also recognized his lack of criminal history but found it to be “[d]e-minimus”

given the span of time and the number of crimes Broyles committed against his

granddaughter and the effect that his actions had on her. (Tr. 36). The record reveals that

Broyles was sixty-eight years old and retired at the time of the offense. The record also

shows that Broyles had helped M.J. with softball since she was five years old and that she

                                             9
frequently spent the weekend with Broyles, whom she called papaw. Broyles took

advantage of the position of trust that he had with his granddaughter, who the PSI reveals

had lost her father to suicide within two years prior to the crimes. Broyles’ character is

further revealed by the elaborate planning and the building of a secretive device that he

used to commit his crimes of voyeurism. Despite his deliberate and planned out actions

against his granddaughter, Broyles blamed M.J.’s mother for his crimes, stating that her

mother should have just kept M.J. at home.

       Broyles has not persuaded us that, under the circumstances herein, his aggregate

sentence of eight years for the commission of class D felony voyeurism, class D felony

child solicitation, and class C felony sexual misconduct with his granddaughter is

inappropriate. Therefore, we affirm the trial court’s sentence.

       Affirmed.

BAKER, J., and BAILEY, J., concur.




                                             10
