Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                              FILED
                                                                Jul 06 2012, 9:28 am
any court except for the purpose of
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:

PHYLLIS J. EMERICK                                   GREGORY F. ZOELLER
Monroe County Public Defender                        Attorney General of Indiana
Bloomington, Indiana
                                                     JOSEPH Y. HO
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

CHARLES HAZELBAKER,                                  )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )      No. 53A05-1111-CR-636
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                      APPEAL FROM THE MONROE CIRCUIT COURT
                          The Honorable Teresa D. Harper, Judge
                              Cause No. 53C09-1009-FB-893



                                           July 6, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
       Appellant-Defendant Charles Hazelbaker appeals following his conviction for Class C

felony Incest1 and the determination that he is a habitual offender. On appeal, Hazelbaker

challenges the appropriateness of his eight-year executed sentence. We affirm.

                           FACTS AND PROCEDURAL HISTORY

       Hazelbaker lived with Michelle Schott from about 1982 to 1988, and their relationship

produced five children, including A.H. A.H. was born on March 5, 1987. Hazelbaker had

sporadic contact with A.H. during her childhood. However, both Hazelbaker and A.H. knew

that Hazelbaker was A.H.’s biological father and A.H. “always called [Hazelbaker] dad.” Tr.

p. 89. In May of 2002, when A.H. was fifteen, A.H., who was experiencing emotional

struggles as well as problems at home and school, moved in with Hazelbaker in hopes of

having a normal father-daughter relationship.

       Sometime in 2003, after A.H. turned sixteen, Hazelbaker attempted to engage A.H. in

sexual intercourse. A.H. was scared and confused, but eventually agreed. Hazelbaker

instructed A.H. not to tell anyone, but assured her that “it was a natural thing to do between a

father and a daughter” and that “it was okay in the Bible.” Tr. pp. 100-01. Hazelbaker

instructed A.H. to lie about the nature of their relationship and told her that she would get

into trouble if she revealed the nature of their relationship.

       In September of 2007, A.H. gave birth to E.M.H. A.H. identified, and DNA testing

revealed, that Hazelbaker was E.M.H.’s biological father. In order to continue to hide the

nature of their relationship, Hazelbaker and A.H. told others that A.H. had conceived E.M.H.


       1
           Ind. Code § 35-46-1-3 (2003).
                                               2
after an unknown individual had raped her.

       Hazelbaker and A.H.’s sexual relationship lasted for approximately seven years,

ending in June of 2010. Hazelbaker and A.H. had sexual intercourse “so many” times that

she could not remember. Tr. p. 100. During this period, C.H., Hazelbaker’s younger

daughter and A.H.’s half-sister, lived with Hazelbaker and A.H. On at least one occasion,

C.H. saw Hazelbaker and A.H. “sleeping naked on the couch together.” Tr. pp. 145-46.

A.H. continued the sexual relationship because she was scared of Hazelbaker and thought she

had no other choice.

       On September 22, 2010, the State charged Hazelbaker with one count of Class B

felony incest and one count of Class B felony sexual misconduct with a minor. On

September 29, 2010, the State filed a notice of intent to seek habitual offender status. The

State subsequently sought permission to amend the charging information to amend the incest

charge to the level of Class C felony and dismissed the Class B felony sexual misconduct

with a minor charge. A jury trial commenced on February 14, 2011, but was subsequently

declared to be a mistrial. Hazelbaker’s new trial was scheduled for October 24, 2011.

       On October 26, 2011, following a three-day jury trial, the jury found Hazelbaker guilty

of Class C felony incest. The jury also found that Hazelbaker was a habitual offender. On

October 27, 2011, the trial court sentenced Hazelbaker to eight years of incarceration for the

Class C felony incest conviction, enhanced by twelve years due to his habitual offender

status. This appeal follows.

                               DISCUSSION AND DECISION

                                              3
        In arguing that his eight-year executed sentence is inappropriate, Hazelbaker contends

that because his actions cannot be labeled as “one of the worst offenses,” he should not have

been sentenced to a maximum eight-year executed sentence.2 Indiana Appellate Rule 7(B)

provides that “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.” The defendant bears the

burden of persuading us that his sentence is inappropriate. Sanchez v. State, 891 N.E.2d 174,

176 (Ind. Ct. App. 2008). We cannot, however, agree that Hazelbaker’s sentence is

inappropriate.

        With respect to the nature of his offense, Hazelbaker argues that the eight-year

executed sentence is inappropriate because his actions do not constitute “one of the worst

offenses.” Appellant’s Br. p. 4. While we may be able to imagine a worse factual pattern,

the record demonstrates that Hazelbaker’s actions were heinous. Hazelbaker engaged in a

seven-year sexual relationship with his biological daughter, A.H. During this relationship,

Hazelbaker convinced A.H. to lie to family and friends about the nature of their relationship.

Hazelbaker convinced A.H. to keep the nature of their relationship a secret because “nobody

would think it was okay” although he assured A.H. that “it was okay in the Bible.” Tr. p.

100. When A.H. became pregnant, Hazelbaker again convinced her to lie about the nature of



        2
           Hazelbaker does not challenge the twelve-year sentence enhancement imposed by the trial court for
his habitual offender status. As such, any argument relating to the twelve-year habitual offender enhancement
is waived. See Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006) (providing that an issue known and available
but not raised on appeal is waived).

                                                     4
their relationship and came up with a plan in which A.H. would claim that she became

impregnated after being raped by some unknown individual. At sentencing, A.H. testified

that she experienced confusion and mixed feelings about the sexual nature of her relationship

with Hazelbaker. A.H. further testified that she continued the sexual relationship because she

was scared of Hazelbaker. In imposing the maximum eight-year sentence, the trial court

found as follows:

       However, I will make a finding of the heinous facts in this case, and a
       violation of trust that arises from those heinous, above and beyond those
       heinous facts, above and beyond that of a position of trust as a parent. This
       was a parent who had a child that wanted to develop a relationship with him
       and as is indicated by her testimony, by testimony of her mother, and by
       [Hazelbaker’s] version in the presentence investigation report, at that point in
       time [A.H.] was having difficulty in her mother’s home and was also
       apparently having some difficulty, some emotional difficulties. When she
       came to her father’s house what she entered was in essence a hornet’s nest. It
       does not make any difference to me who initiated a sexual nature to this
       offense. Mr. Hazelbaker was the father and as such he was in a supervisory
       position and he should have attempted to protect his daughter rather than take
       advantage of her in this way when she was emotionally disadvantaged at that
       point. So I make a finding of a particularized heinousness with regard to that.

Tr. pp. 344-45. We agree with the trial court’s findings regarding the heinous nature of

Hazelbaker’s actions.

       With respect to his character, Hazelbaker acknowledges that he has prior criminal

convictions but argues that the eight-year executed sentence is inappropriate because, with

the exception of the instant offense, he has led a law-abiding life for nearly a decade and his

imprisonment would result in undue hardship on another daughter, C.H. Hazelbaker’s

criminal history includes felony convictions for armed robbery, attempted rape, forgery, and


                                              5
non-support of a dependent child, as well as misdemeanor convictions for conversion, battery

(twice), resisting law enforcement, and public intoxication. Hazelbaker’s criminal history

also includes numerous probation violations, and Hazelbaker was on unsupervised probation

for his felony forgery conviction when he began having sexual relations with his daughter.

While Hazelbaker claims to have been a law-abiding citizen for nearly a decade, this decade

of so-called law-abiding behavior encompasses the seven-year period during which he

engaged in an unlawful sexual relationship with A.H. As such, we are unpersuaded by

Hazelbaker’s claim that the remoteness of his prior criminal convictions reflects positively on

his character.

       In addition, we, like the trial court, are unconvinced that Hazelbaker’s desire to

support C.H. reflects positively on his character. The trial court considered Hazelbaker’s

claim regarding the alleged undue hardship C.H. would suffer if he received a maximum

sentence but did “not give much weight” to the claim because Hazelbaker has a prior

conviction for failing to support a dependent. Moreover, in light of the nature and

circumstances of Hazelbaker’s instant crime, we cannot say that C.H., who lived with

Hazelbaker and A.H. and appears to have witnessed at least some of Hazelbaker’s

inappropriate contact with A.H., would suffer an undue hardship because of Hazelbaker’s

incarceration. One could reasonably argue that witnessing her father engage in inappropriate

behavior with her half-sister would be much more harmful to C.H. than having to deal with

the pecuniary consequences of Hazelbaker’s incarceration.

       Hazelbaker’s depraved actions demonstrate that he took advantage of his daughter,

                                              6
who wanted nothing more than to have a normal father-daughter relationship, by engaging

her in a seven-year sexual relationship. Hazelbaker convinced A.H. to lie to family and

friends about the nature of their relationship even though he assured her that their

relationship was natural and would be “okay” in the Bible. Tr. p. 100. In light of the

depraved and heinous nature of Hazelbaker’s actions, we conclude that the trial court’s

imposition of an eight-year executed sentence is wholly appropriate.

      The judgment of the trial court is affirmed.

VAIDIK, J., and CRONE, J., concur.




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