                                                                                 FILED
MEMORANDUM DECISION
                                                                           09/15/2017, 10:21 am
Pursuant to Ind. Appellate Rule 65(D), this                                      CLERK
                                                                             Indiana Supreme Court
Memorandum Decision shall not be regarded as                                    Court of Appeals
                                                                                  and Tax Court
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
Brian A. Karle                                           Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General of Indiana
                                                         Matthew B. Mackenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                             IN THE
    COURT OF APPEALS OF INDIANA

Jessica McCain,                                          September 15, 2017

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A02-1703-CR-616
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court.
                                                         The Honorable Randy J. Williams,
State of Indiana,                                        Judge.
Appellee-Plaintiff.                                      Trial Court Case Number
                                                         79D01-1606-F1-8




Friedlander, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 79A02-1703-CR-606 | September 15, 2017             Page 1 of 9
                                                                                             1
[1]   After pleading guilty to one count of Level 1 felony child molesting, Jessica

      McCain appeals from the trial court’s sentencing order, contending that her

      forty-year sentence is inappropriate in light of the nature of the offense and the

      character of the offender. We reverse and remand with instructions.


[2]   On May 28, 2016, twenty-three-year-old McCain was at an apartment in

      Lafayette, Indiana, with the one-year-old victim. McCain was giving the victim

      a bath. McCain admitted that she intentionally placed her mouth on the

      victim’s penis while videotaping the incident on a borrowed cellphone. She had

      planned to send the video to her boyfriend. McCain also stated that she was

      aware that the victim was less than twelve years old.


[3]   The State charged McCain with multiple offenses for this incident. McCain

      agreed to plead guilty to the most serious charge, Level 1 felony child

      molesting. Under the terms of the plea agreement, McCain’s sentence was left

      open to argument and the discretion of the trial court.


[4]   After hearing the arguments of counsel and reviewing the pre-sentence

      investigation report, the trial court imposed a forty-year sentence with thirty-

      eight years executed and two years suspended to probation. McCain now

      appeals.




      1
          Ind. Code § 35-42-4-3(a)(1) (2015).


      Court of Appeals of Indiana | Memorandum Decision 79A02-1703-CR-606 | September 15, 2017   Page 2 of 9
[5]   McCain contends that her sentence is inappropriate in light of the nature of the

      offense and the character of the offender, seeking review under Indiana

      Appellate Rule 7(B).


[6]   Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized

      by statute if, after due consideration of the trial court’s decision, we determine

      that the sentence is inappropriate in light of the nature of the offense and the

      character of the offender. Thompson v. State, 5 N.E.3d 383 (Ind. Ct. App. 2014).

      When a defendant requests appellate review and revision of his sentence, we

      have the power to affirm or reduce the sentence. Akard v. State, 937 N.E.2d 811

      Ind. 2010). In conducting our review, we may consider all aspects of the penal

      consequences imposed by the trial court in sentencing, i.e., whether it consists

      of executed time, probation, suspension, home detention, or placement in

      community corrections, and whether the sentences are ordered to run

      concurrently or consecutively. Davidson v. State, 926 N.E.2d 1023 (Ind. 2010).


[7]   We do not look to see whether the defendant’s sentence is appropriate or if

      another sentence might be more appropriate; rather, the test is whether

      the sentence is “inappropriate.” Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct.

      App. 2007). A defendant bears the burden of persuading this Court that

      his sentence meets the inappropriateness standard, Anglemyer v. State, 868

      N.E.2d 482 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218, and he must do so

      under both parts of the test. Childress v. State, 848 N.E.2d 1073 (Ind. 2006). Our

      resolution of whether a sentence is appropriate turns on myriad factors which

      come to light in a given case, including our sense of the culpability of the

      Court of Appeals of Indiana | Memorandum Decision 79A02-1703-CR-606 | September 15, 2017   Page 3 of 9
       defendant, the severity of the crime, and the damage done to others. Cardwell v.

       State, 895 N.E.2d 1219 (Ind. 2008).


[8]    To assess whether the sentence is inappropriate, we look first to the statutory

       range established for the class of the offense. McCain pleaded guilty to one

       count of Level 1 felony child molesting for which the sentencing range is a fixed

       term of between twenty and fifty years, with the advisory sentence being thirty

       years. Ind. Code § 35-50-2-4 (2014).


[9]    The advisory sentence is the starting point to determine the appropriateness of

       the sentence. Holloway v. State, 950 N.E.2d 803 (Ind. Ct. App. 2011). A factor

       appellate courts consider when determining the appropriateness of a deviation

       from the advisory sentence is whether there is anything more or less egregious

       about the offense committed by the defendant that makes it different from the

       “typical” offense contemplated by the legislature when setting the advisory

       sentence. Johnson v. State, 986 N.E.2d 852, 856 (Ind. Ct. App. 2013).


[10]   We then look at the nature of the offense. Both parties acknowledge as we do

       the deplorable nature of McCain’s offense. McCain, the twenty-three-year-old

       mother of the one-year-old victim, placed her mouth on his penis while bathing

       him and admitted to being sexually aroused while doing so. She did so after

       having an oral sexual encounter with her boyfriend and a sexual conversation

       via text messages with him after he left. Additionally, at her boyfriend’s urging

       through those text messages, she recorded the incident on a borrowed cellphone

       with the intent of sending the recording to him.


       Court of Appeals of Indiana | Memorandum Decision 79A02-1703-CR-606 | September 15, 2017   Page 4 of 9
[11]   Also relevant to our review is that McCain’s offense was a solitary occurrence

       carried out at the urging of her boyfriend, but for which she readily accepted

       responsibility in carrying out. Although the victim will, at some point, learn of

       his mother’s victimization of him, unlike most victims of child molesting, he is

       too young now to understand what happened to him and will likely not have a

       memory of the event.


[12]   Next, we look at the character of the offender. In this case, the record reflects

       that McCain has no criminal history or history of the use of illegal substances.

       She also has a history of employment. Further, McCain accepted responsibility

       for her actions by pleading guilty to the highest-level felony with which she was

       charged and left the issue of sentencing open to argument and the trial court’s

       discretion. She admitted her crime to law enforcement when she was first

       confronted and interviewed. The trial court acknowledged that the first time

       she was in court she wished to plead guilty.


[13]   McCain clearly committed her crime against a child under her care, custody,

       and control, and who was significantly under the age provided for by statute.

       Her victimization of her young son in an effort to please her boyfriend clearly is

       deplorable. We conclude, nonetheless, that under these circumstances a

       sentence above the advisory sentence of thirty years is inappropriate under these

       circumstances.


[14]   We remand this matter to the trial court for the purpose of imposing a thirty-

       year advisory sentence.


       Court of Appeals of Indiana | Memorandum Decision 79A02-1703-CR-606 | September 15, 2017   Page 5 of 9
[15]   Judgment reversed and remanded with instructions.


       Najam, J., concurs.


       Mathias, J., concurs with separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1703-CR-606 | September 15, 2017   Page 6 of 9
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Jessica McCain,                                          Court of Appeals Case No.
                                                                79A02-1703-CR-616
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Mathias, Judge, concurring.

[16]   As a judge on the Court of Appeals of Indiana for the past seventeen years, I

       find it to be an extremely difficult decision to reduce the sentence of a

       convicted child molester, yet under the unique facts and circumstances of this

       case, I reluctantly join my colleagues in doing so. Therefore, I concur with

       Senior Judge Friedlander’s opinion and its conclusion that McCain’s maximum

       forty-year sentence is inappropriately harsh in light of the nature of the offense

       and the character of the offender. I write separately to emphasize the

       importance of the advisory sentence set forth by our General Assembly when

       considering cases such as the present one.
       Court of Appeals of Indiana | Memorandum Decision 79A02-1703-CR-606 | September 15, 2017   Page 7 of 9
[17]   Our supreme court has repeatedly held that the advisory sentence is the starting

       point when determining the appropriateness of a sentence. See, e.g., Anglemeyer

       v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218

       (citing Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006)). Thus, all things

       being equal, a person convicted of any level of felony should receive the

       advisory sentence.


[18]   Moreover, it has long been held that the maximum possible sentences are

       generally most appropriate for the worst offenders and offenses. Payton v. State,

       818 N.E.2d 493, 499 (Ind. Ct. App. 2004) (Mathias, J., concurring in part and

       dissenting in part) (citing Buchanan v. State, 767 N.E.2d 967, 973 (Ind. 2002)),

       trans. denied.


[19]   It is clear here that McCain’s offense is deplorable, and indeed, I personally find

       it to be unthinkable. So are most cases of Level 1 felony child molestation,

       which is precisely why our General Assembly has set the advisory sentence at

       thirty years. But McCain, who has no prior criminal history of any kind, and for

       whom this was a single and immediately regretted incident, is not among the worst

       offenders.2 In addition, the sentencing court found several mitigators, including

       McCain’s immediate acceptance of responsibility and desire to plead guilty.




       2
         However, a first crime can warrant the maximum sentence when it involves multiple incidents of brutal
       behavior. See, e.g., Heinzman v. State, 970 N.E.2d 214, 229 (Ind. Ct. App. 2012) (holding that defendant’s
       maximum sentence on three counts of child molesting was not inappropriate given the heinous circumstances
       of the crimes even though defendant did not have any prior criminal history at the time he committed his
       crimes), trans. granted, aff’d in relevant part, 979 N.E.2d 143 (Ind. 2012); Booker v. State, 790 N.E.2d 491, 496
       (Ind. Ct. App. 2003) (holding that, even though defendant had no criminal history, imposition of maximum

       Court of Appeals of Indiana | Memorandum Decision 79A02-1703-CR-606 | September 15, 2017             Page 8 of 9
[20]   Accordingly, I concur in Judge Friedlander’s conclusion that McCain’s

       maximum forty-year sentence is inappropriate and should be revised to the

       advisory sentence of thirty years.




       sentence on each count was not inappropriate given the heinous circumstances of the offenses), trans. denied;
       see also Grimes v. State, No. 31A01-1609-CR-2190, ___ N.E.2d ___ (Ind. Ct. App. 2017) (affirming defendant’s
       111-year sentence despite his lack of criminal history).

       Court of Appeals of Indiana | Memorandum Decision 79A02-1703-CR-606 | September 15, 2017          Page 9 of 9
