MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Nov 20 2018, 7:46 am

court except for the purpose of establishing                                   CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                      Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                     Attorney General of Indiana
Madison, Indiana
                                                        Angela Sanchez
                                                        Assistant Section Chief, Criminal
                                                        Appeals
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Joshua Bergen,                                          November 20, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-522
        v.                                              Appeal from the Decatur Superior
                                                        Court
State of Indiana,                                       The Honorable Matthew D.
Appellee-Plaintiff.                                     Bailey, Judge
                                                        Trial Court Cause No.
                                                        16D01-1606-F3-449



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-522 | Nobember 20, 2018                   Page 1 of 9
[1]   Joshua Bergen appeals his sentence for promotion of human trafficking of a

      minor as a level 3 felony. He raises one issue which we revise and restate as

      whether his sentence is inappropriate in light of the nature of the offense and his

      character. We affirm.


                                      Facts and Procedural History

[2]   During the weekend of Memorial Day 2016, eleven-year-old M.H. was on her

      Instagram account where she was followed by “KILLERCLOUD92,” who was

      Bergen. Appellant’s Appendix Volume II at 13. Bergen asked her if she

      wanted to be in a contest where she could win $500. M.H. agreed when Bergen

      asked her for a photo of herself. The conversation continued, and Bergen told

      her that she was losing the contest and he wanted her to send more photos.

      Bergen sent photos of other females including a photo of a female M.H.

      believed was younger than her showing her belly area as examples and said

      they were also in the contest. M.H. sent Bergen additional photos of herself in

      swimwear. Bergen asked for nude photos, and M.H. sent him a nude photo.

      Bergen told M.H. that she had won some money in the contest and he wanted

      to know how to deliver it. M.H. did not want to tell Bergen where she lived

      and told him she lived near Circle K. Bergen told her that he could leave the

      money in an abandoned house he knew to be near the area. M.H. then told

      him where she lived. Bergen told M.H. that he wanted to meet with her and

      that, if she did not meet him, he would share the nude photos of her on

      Instagram. Bergen later told her that he wanted to meet with her to “hook up”

      and that, if she did not, he would share the nude photos of her on Instagram.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-522 | Nobember 20, 2018   Page 2 of 9
      Id. at 14. M.H. knew that Bergen was referring to having sex as “hooking up.”

      Id. A part of the conversation follows:


                 [Bergen:] I’ll make a deal. 500 for the full nude or $1000 to hook
                 up for awhile

                 [M.H.:] I am 13 turning 14 that’s illegal and gross

                 [Bergen:] It’s only illegal if you get caught


      State’s Exhibit 1.1 Bergen also threatened to share the nude photos of her

      unless she deleted the Instagram conversation from her account. M.H. then

      notified her mother who sent a message to Bergen using M.H.’s account stating

      that she was going to call the police. Bergen responded by stating that M.H.

      would be in more trouble than him if police were contacted.


[3]   On June 1, 2016, the police executed a search warrant for the examination of

      Bergen’s cell phone and other devices. Bergen spoke to police and indicated

      that he had attempted to obtain pictures of other girls but this was the first time

      he had actually received a nude photo. When asked how many times he

      attempted “to con somebody into nude photographs of somebody [he] thought

      was under the age of eighteen,” Bergen answered: “It’s been off and on over the

      years . . . .” Transcript Volume II at 19.




      1
          M.H. testified that she was eleven and not thirteen at that time.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-522 | Nobember 20, 2018   Page 3 of 9
[4]   On June 3, 2016, the State charged Bergen under cause number 16D01-1606-

      F3-449 (“Cause No. 449”) with: Count I, human trafficking of a minor as a

      level 3 felony; Count II, child solicitation as a level 5 felony; Count III,

      obstruction of justice as a level 6 felony; Count IV, obstruction of justice as a

      level 6 felony; and Count V, intimidation as a class A misdemeanor. On

      December 22, 2016, the State filed a second amended information charging

      Bergen with: Count I, attempted child molesting as a level 1 felony; Count II,

      promotion of human trafficking of a minor as a level 3 felony; Count III,

      promotion of human trafficking of a minor as a level 3 felony; Count IV, child

      solicitation as a level 5 felony; Count V, possession of child pornography as a

      level 5 felony; Count VI, obstruction of justice as a level 6 felony; Count VII,

      obstruction of justice as a level 6 felony; and Count VIII, intimidation as a class

      A misdemeanor.


[5]   On January 16, 2018, the parties filed a plea agreement in which Bergen agreed

      to plead guilty in Cause No. 449 to Count III, promotion of human trafficking

      of a minor as a level 3 felony, and the State agreed to dismiss the remaining

      charges. The plea agreement provided that Bergen would be sentenced in

      Cause No. 449 at the discretion of the court subject to a cap of twelve years on

      any executed sentence. In the agreement, Bergen also agreed to plead guilty in

      cause number 16D01-1708-F5-811 (“Cause No. 811”) to a lesser included

      charge of battery as a level 6 felony, and the agreement provided that he would

      be sentenced in Cause No. 811 to two years suspended to probation consecutive

      to the sentence in Cause No. 449.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-522 | Nobember 20, 2018   Page 4 of 9
[6]   On February 23, 2018, the court held a sentencing hearing.2 Greensburg City

      Police Detective Stephen Barnes testified that Bergen mentioned a second

      person he attempted to contact after this incident, that she stated her age in an

      interview which he recalled to be fifteen years, and that she recognized the idea

      of a contest as a “ruse to get her to take nude photos . . . .” Id. at 33. M.H.

      testified that she was thirteen years old and that she was eleven when Bergen

      first messaged her on Instagram. She testified that she had to go to counseling

      for almost a year, felt that she could not trust anyone, “lost a lot” of her

      confidence, “missed a lot of school,” and had “been less active in social there.”

      Id. at 51. M.H.’s mother testified and, when asked to describe the changes in

      M.H.’s behavior since the events took place, she answered that M.H. had lost a

      lot of confidence, was not as social as she used to be, did not hang out with her

      friends as much, was “not interested in a whole lot anymore,” and was “a lot

      more uncomfortable in her skin.” Id. at 68.


[7]   Bergen stated that what he did was wrong, there was no excuse for it, he was

      sorry, and he was a good person who made a bad choice. The court admitted

      letters from Bergen’s friends and family. Bergen’s counsel recommended the

      advisory sentence of nine years with three years served in incarceration, three

      years on home detention, and three years of probation. The prosecutor

      recommended the maximum sentence under the plea agreement.




      2
          The record indicates that a guilty plea hearing was held but it does not include a transcript of the hearing.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-522 | Nobember 20, 2018                        Page 5 of 9
[8]   The court entered judgment of conviction on Count III, promotion of human

      trafficking of a minor as a level 3 felony. The court discussed Bergen’s lack of

      criminal history and stated: “Mr. Bergen’s own words that he had been doing

      this off and on through the years I think take the significance away from that

      mitigating circumstance and make it to be one considered of more low weight

      than ordinarily would be given.” Id. at 124. The court observed that Bergen’s

      plea was entered after a significant amount of time had passed since the charges

      were filed and that he received a significant benefit. The court gave Bergen’s

      cooperation with the police low weight because he was detained at that point.

      The court observed that Bergen had a difficult childhood and terrible

      circumstances with his mother but it did not see any connection “whatsoever to

      that and the actions that result in him being here today” and did not consider

      his childhood to be a mitigating circumstance. Id. at 125. The court stated that

      it would give Bergen “the benefit of the doubt on [his remorse] and consider

      him to be remorseful.” Id. The court found the following aggravators: the fact

      that the victim was less than twelve years of age, the harm suffered by M.H.,

      and uncharged misconduct. The court found that the aggravating

      circumstances significantly outweighed the mitigating circumstances.


[9]   The court sentenced Bergen to twelve years executed in the Department of

      Correction and ordered the sentence to be served consecutive to the sentence in

      Cause No. 811. The court dismissed the remaining counts.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-522 | Nobember 20, 2018   Page 6 of 9
                                                   Discussion

[10]   The issue is whether Bergen’s sentence is inappropriate in light of the nature of

       the offense and his character. Bergen argues that his “conduct, while

       admittedly reprehensible, met the level of conduct proscribed by the legislature,

       but no more.” Appellant’s Brief at 13. He asserts that there was no evidence

       that the impact to M.H. was extraordinary or beyond that anticipated by the

       legislature. He also points to the fact he is a high school graduate, his work

       history, the death of his mother and aunt, and his lack of criminal history and

       drug use. The State argues that the sentence is not inappropriate and asserts

       that Bergen’s course of conduct proves he is not an upstanding citizen who

       made a poor decision, that he preyed on M.H.’s naiveté and threatened her,

       and that the effects on M.H. may never go away.


[11]   Ind. 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 find] that the

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

       of the offender.” Under this rule, the burden is on the defendant to persuade

       the appellate court that his or her sentence is inappropriate. Childress v. State,

       848 N.E.2d 1073, 1080 (Ind. 2006).


[12]   Ind. Code § 35-50-2-5 provides in part that a person who commits a level 3

       felony shall be imprisoned for a fixed term of between three and sixteen years,

       with the advisory sentence being nine years.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-522 | Nobember 20, 2018   Page 7 of 9
[13]   Our review of the nature of the offense reveals that Bergen told M.H. about a

       contest in which she could win $500, told her she was losing the contest after

       she sent a photo of herself, sent photos of other females to M.H., and asked her

       for nude photos. M.H. sent Bergen a nude photo. Bergen admits on appeal to

       threatening to publish the photos if M.H. did not engage in sex with him but

       asserts that he only intended the threat as a joke. He also concedes that he

       deleted his Instagram account to try to hide his communication with M.H. and

       that M.H. reported that he threatened to publish the photos on Instagram if she

       did not delete the conversation history from her Instagram.


[14]   Our review of the character of the offender reveals that Bergen pled guilty to

       promotion of human trafficking of a minor as a level 3 felony in exchange for

       the dismissal of Count I, attempted child molesting as a level 1 felony, Count II,

       promotion of human trafficking of a minor as a level 3 felony, Count IV, child

       solicitation as a level 5 felony, Count V, possession of child pornography as a

       level 5 felony, Count VI, obstruction of justice as a level 6 felony, Count VII,

       obstruction of justice as a level 6 felony, and Count VIII, intimidation as a class

       A misdemeanor. Although Bergen was initially charged on June 3, 2016, he

       did not plead guilty until over one year and seven months later on January 16,

       2018. The presentence investigation report (“PSI”) indicates that Bergen has no

       criminal history. We observe that the trial court pointed to “Bergen’s own

       words that he had been doing this off and on through the years.” Transcript

       Volume II at 124. Detective Barnes testified that Bergen mentioned a second

       person he attempted to contact after this incident, that she stated her age in an


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-522 | Nobember 20, 2018   Page 8 of 9
       interview which he recalled to be fifteen years, and that she recognized the idea

       of a contest as a “ruse to get her to take nude photos . . . .” Id. at 33. Bergen

       also pled guilty to “the lesser included charge of Battery, a Level 6 felony” in

       Cause No. 811. Appellant’s Appendix Volume II at 66. The PSI indicates that

       Bergen graduated from high school in 2012 and reported working fifty to sixty

       hours per week at his most recent employer from 2015 until his arrest in 2016.


[15]   After due consideration, we conclude that Bergen has not sustained his burden

       of establishing that his sentence is inappropriate in light of the nature of the

       offense and his character.


                                                   Conclusion

[16]   For the foregoing reasons, we affirm Bergen’s sentence.


[17]   Affirmed.


       Altice, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-522 | Nobember 20, 2018   Page 9 of 9
