Pursuant to Ind.Appellate Rule 65(D),
                                                                             Nov 06 2013, 5:38 am
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:

HUGH N. TAYLOR                                          GREGORY F. ZOELLER
Hugh N. Taylor, P.C.                                    Attorney General of Indiana
Auburn, Indiana
                                                        CHANDRA K. HEIN
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

DEXTER STACY, SR.,                                 )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )   No. 76A04-1303-CR-113
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE STEUBEN SUPERIOR COURT
                           The Honorable William C. Fee, Judge
                              Cause No. 76D01-1201-FA-34


                                        November 6, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                              Case Summary

          Dexter Stacy, Sr. (“Stacy”) challenges his seventy-five-year aggregate sentence for

two counts of Child Molesting, as Class A felonies.1 We affirm.

                                                    Issues

          Stacy presents for our review two issues, which we revise and restate as:

          I.      Whether the trial court abused its sentencing discretion; and

          II.     Whether Stacy’s sentence is inappropriate.2

                                    Facts and Procedural History

          On December 16, 2011, Fort Wayne Police Officer Michael Bell responded to a report

of child molestation. During the ensuing investigation, it was alleged that Stacy had

molested R.W., his eight-year-old biological daughter, and S.P., his seven-year-old

stepdaughter. (Tr. at 156-59.) Stacy was charged with two counts of Child Molesting, as

Class A felonies.

          A jury trial was conducted on February 13 and 14, 2013. R.W. testified that several

times Stacy had engaged in sexual intercourse with her, and had placed his mouth on her

genitals. (Tr. at 138-42.) She further testified that S.P. was in the room with them when this

occurred.        (Tr. at 142.)      S.P. testified that several times Stacy had touched her

inappropriately, and had engaged in sexual intercourse with her. (Tr. at 148-51.) She further

1
    Ind. Code § 35-42-4-3(a)(1).

2
 Stacy intermingles claims that the trial court abused its sentencing discretion with claims that his sentence is
inappropriate. However, “[a]s our Supreme Court has made clear, inappropriate sentence and abuse of
discretion claims are to be analyzed separately.” King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008)
(citing Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007)).
Therefore, we address each claim of error in turn.

                                                       2
testified that R.W. was in the room with them when this occurred. (Tr. at 148-49.) R.W. and

S.P. both tested positive for chlamydia. (Tr. at 155, 159.) At the conclusion of the trial, the

jury found Stacy guilty of both counts.

       On March 1, 2013, the trial court entered judgments of conviction and sentenced Stacy

to forty years imprisonment for one count, and forty years imprisonment with five years

suspended to probation for the other count. The terms of imprisonment were to be run

consecutively, yielding an aggregate sentence of seventy-five years.

       Stacy now appeals.

                                  Discussion and Decision

                                     Abuse of Discretion

       A Class A felony carries a sentencing range between twenty and fifty years with an

advisory sentence of thirty years. I.C. § 35-50-2-4. Stacy received sentences of forty years

for Count I and thirty-five years executed for Count II, with the terms to be run

consecutively. In imposing this sentence, the trial court found that there were no mitigating

circumstances, observing that Stacy showed no sympathy, emotion, or remorse for the

victims. (Tr. at 230.) The court found as aggravating circumstances that Stacy had a

criminal record, that he had violated conditions of probation in the past, that the victims were

both less than twelve years old, and that he had care, custody, and control over the victims.

(Tr. at 230-31.) Stacy contends that the trial court abused its discretion in finding

aggravating circumstances.

       “So long as [a] sentence is within the statutory range, it is subject to review only for


                                               3
abuse of discretion.” Anglemyer, 868 N.E.2d at 490. A trial court abuses its discretion if the

reasons and circumstances for imposing a particular sentence are 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. Hollin v. State, 877 N.E.2d 462, 464 (Ind. 2007). A

defendant may challenge findings of aggravating circumstances only to the extent that they

are not supported by the record or are improper as a matter of law. Anglemyer, 868 N.E.2d

at 490-91. A trial court’s sentencing order may not be challenged as reflecting an improper

weighing of sentencing factors. Id. at 491.

       Stacy first argues that the trial court improperly found his lack of sympathy, emotion,

or remorse as an aggravating circumstance. However, the record reveals that the trial court

treated Stacy’s lack of sympathy, emotion, or remorse as supporting a finding of a lack of

mitigating circumstances, rather than as an aggravating circumstance. (Tr. at 230.)

       Stacy next challenges the trial court’s finding of his criminal history as an aggravating

circumstance.    The significance of a defendant’s criminal history as an aggravating

circumstance will vary based on the gravity, nature, and number of prior offenses, and their

relation to the current offense. Prickett v. State, 856 N.E.2d 1203, 1209 (Ind. 2006). Yet, a

trial court properly may consider a defendant’s prior criminal history as an aggravating

circumstance. I.C. § 35-38-1-7.1(a)(2); Prickett, 856 N.E.2d at 1208-09. And to the extent

Stacy argues that the trial court gave improper weight to his criminal history, this is an

invitation for us to reweigh aggravating circumstances, which we cannot do. Anglemyer, 868

N.E.2d at 491.


                                               4
       Stacy contends that the trial court improperly found a material element of the crimes,

the age of the victims, as an aggravating circumstance. However, trial courts are not

prohibited from considering material elements of an offense in finding aggravating

circumstances for sentencing. Pedraza v. State, 887 N.E.2d 77, 80 (Ind. 2008).

       Finally, Stacy asserts that the trial court improperly found his abuse of a position of

trust as an aggravating circumstance. But, a defendant’s abuse of a position of trust properly

may be found as an aggravating circumstance for sentencing. I.C. § 35-38-1-7.1(a)(8); see

also Amalfitano v. State, 956 N.E.2d 208, 211 (Ind. Ct. App. 2011), trans. denied. And to the

extent Stacy attempts to argue that abuse of a position of trust is an element of the crime of

child molesting, and thus may not be used as an aggravating circumstance, we have already

rejected this argument, supra. See Pedraza, 887 N.E.2d at 80.

       We thus conclude that the trial court did not abuse its discretion in finding aggravating

circumstances.

                                    Inappropriate Sentence

       We turn now to Stacy’s claim that his sentence is inappropriate. 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 sentences after due consideration of the trial court’s decision, if


                                                5
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.

       We turn first to the nature of the offenses. Stacy, in his thirties, engaged in sexual

intercourse with R.W., his eight-year-old biological daughter, and S.P., his seven-year-old

stepdaughter. This was sufficient to complete two acts of Child Molesting, as Class A

felonies. However, Stacy committed these acts multiple times; in addition, he placed his

mouth on R.W.’s genitals and inappropriately touched S.P. Following this, the two girls

tested positive for chlamydia. Stacy’s actions went beyond the two acts of Child Molesting

for which he was convicted.

       We turn next to the character of the offender. Stacy, in his thirties, several times

engaged in sexual intercourse with R.W., his eight-year-old biological daughter, and S.P., his

seven-year-old stepdaughter, after which both girls tested positive for chlamydia. Stacy has

six prior criminal convictions, including one felony. And on several occasions he has

violated probation, failed to appear in court, or failed to follow court orders. Stacy’s

behavior indicates that he harbors a general disregard for the law, an unwillingness to

conform his behavior to acceptable standards, and an unwillingness to rehabilitate himself.

       Therefore, having reviewed the matter, we conclude that the trial court did not impose

an inappropriate sentence under Appellate Rule 7(B), and the sentence does not warrant

appellate revision. Accordingly, we decline to disturb the sentence imposed by the trial


                                               6
court.

                                         Conclusion

         The trial court did not abuse its sentencing discretion, and Stacy’s sentence is not

inappropriate.

         Affirmed.

MAY, J., and BRADFORD, J., concur.




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