      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                            FILED
      regarded as precedent or cited before any                                  Mar 23 2020, 10:51 am
      court except for the purpose of establishing
                                                                                       CLERK
      the defense of res judicata, collateral                                     Indiana Supreme Court
                                                                                     Court of Appeals
      estoppel, or the law of the case.                                                and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      R. Brian Woodward                                        Curtis T. Hill, Jr.
      Office of the Lake County Public                         Attorney General of Indiana
      Defender – Appellate Division
                                                               Justin F. Roebel
      Crown Point, Indiana                                     Supervising Deputy Attorney
                                                               General
                                                               Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Roger P. Orich,                                          March 23, 2020
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               19A-CR-2394
              v.                                               Appeal from the Lake Superior
                                                               Court
      State of Indiana,                                        The Honorable Samuel L. Cappas,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               45G04-1809-F5-195



      Mathias, Judge.


[1]   Roger P. Orich (“Orich”) pleaded guilty in Lake Superior Court to one count of

      Level 5 felony possession of child pornography and was sentenced to five years,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2394 | March 23, 2020                      Page 1 of 18
      with four years to be served in the Department of Correction (“DOC”) and one

      year in community corrections. Orich appeals and presents three issues, which

      we restate as:


               I.       Whether the trial court abused its discretion by denying Orich’s
                        request to remove copies of the charging information and the
                        probable cause affidavit from the presentence investigation report;

               II.      Whether the trial court abused its discretion by considering
                        aggravating factors that were not supported by the record; and

               III.     Whether the trial court overlooked mitigating factors that were
                        clearly supported by the record.


[2]   We affirm.


                                   Facts and Procedural History
[3]   The facts, as admitted by Orich at his guilty plea hearing, are that he collected

      images depicting children under the age of twelve displaying their genitals,

      uncovered breasts, and being fondled. Orich also admitted that these images

      had no literary, artistic, political, or scientific value. On September 21, 2018, the

      State charged Orich with Level 5 felony possession of child pornography and

      Level 6 felony possession of child pornography. On September 10, 2019, Orich

      pleaded guilty to both charges.1




      1
        The trial court “merged” the Level 6 felony conviction with the Level 5 felony charge for purposes of
      sentencing and entered judgment of conviction only on the Level 5 felony.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2394 | March 23, 2020                    Page 2 of 18
[4]   At the subsequent sentencing hearing, Indiana State Police detective Vicki

      Maxwell (“Detective Maxwell”) testified regarding the investigation of Orich.

      She explained that the case began when she received a tip from the National

      Center for Missing and Exploited Children that someone had uploaded pictures

      to the Internet that depicted child pornography. Further investigation

      determined that the person who had uploaded the pictures was Orich. Detective

      Maxwell learned that, in 1991, Orich had been charged with battery and child

      molesting against his adopted daughter but convicted only of battery. In 1993,

      he was charged with, but found not guilty, of molesting the same victim. Orich

      had also been arrested in 1981 for exposing himself to school children.


[5]   Detective Maxwell also explained that, when the police executed the warrant to

      search Orich’s residence, they found various items, including “naked posters of

      women on the walls, anime. Anime children were on his sheets.” Tr. p. 23.

      They also found a chair with a painting of a nude woman tied to the chair with

      a gag-ball in her mouth, sex toys, women’s lingerie, and dolls. She explained

      that all of the items appeared to be sexual in nature. In the nightstand next to

      Orich’s bed the police found pictures of child pornography. She also testified

      that, during the search of Orich’s home, the police found DVDs containing

      numerous image files of child pornography and a hard drive containing over

      340,000 images of pornography, including images of adult pornography;

      bondage; sexual torture; child pornography; virtual pornography of adults,

      children, and infants; children in “seductive” poses; infants with their genitals




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2394 | March 23, 2020   Page 3 of 18
      exposed; children bathing; children using the toilet; and sexual acts with child

      dolls.


[6]   A search of an external hard drive found in Orich’s home revealed 4,790

      pornographic images. Some of the images depicted the worst forms of child

      sexual assault, including young children being raped vaginally and anally by

      adults. The police submitted the images found in Orich’s collection to the

      National Center for Missing and Exploited Children, who identified 366 images

      as known images of child pornography involving scores of known child victims.

      A search of Orich’s computer also revealed that he had used an internet search

      engine to look for several disturbing terms, including “daughter yells no daddy,

      stop daddy, violent rape, 3D dad f**king baby son, 3D incest sex, 3D kidnap

      little girl torture, 3D little girls dead abused.” Tr. p. 26. The search engine had

      also been used to look for images of bestiality.


[7]   At the sentencing hearing, Orich presented the testimony of psychologist

      Robert Coyle (“Dr. Coyle”), who began treating Orich in January 2019 after he

      had been charged in the present case. Dr. Coyle testified that Orich had a

      hoarding disorder and that his collection of child pornography was a “small

      part” of the items he collected, including such innocuous items as comic books.

      Tr. p. 52. Dr. Coyle testified that Orich had an average IQ of 94 but had a lower

      level of cognitive functioning, which he attributed to a childhood injury and

      chronic alcohol abuse. On cross-examination, however, Dr. Coyle admitted

      that most of the information he had regarding Orich had been self-reported by



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2394 | March 23, 2020   Page 4 of 18
      Orich. He also admitted that Orich had underreported the magnitude and

      nature of his pornography collection.


[8]   At the conclusion of the sentencing hearing, the trial court found as mitigating

      that Orich had pleaded guilty, that he had expressed remorse, and that

      incarceration would cause an undue hardship on Orich due to his mental health

      issues. The trial court also noted that Orich had led an apparently law-abiding

      life for twenty years. The trial court found as aggravating Orich’s prior criminal

      history and his pattern of inappropriate behavior involving children. The trial

      court also found as aggravating the quantity of images Orich possessed and the

      horrific nature of the abuse depicted. The trial court noted that Orich

      underreported his conduct to Dr. Coyle. The trial court sentenced Orich to five

      years, with four years to be served in the DOC and one year to be served in

      community corrections. Orich now appeals.


                                    I. Presentence Investigation Report

[9]   Orich first claims that the trial court erred by denying his request to remove

      copies of the charging information and the probable cause affidavit from the

      presentence investigation report (“PSIR”). In the present case, the charging

      information provided:


              COUNT I
              [POSSESSION OF CHILD PORNOGRAPHY (a Level 5
              Felony)]

              Vicki Maxwell, upon oath, says that on or about September 19,
              2018, in the County of Lake, State of Indiana, Roger Paul Orich
              did knowingly or intentionally possess or access with intent to
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2394 | March 23, 2020   Page 5 of 18
               view pictures or photographs that depicts or describes sexual
               conduct by a child who appears to be less than eighteen (18)
               years of age and that lacks serious literary, artistic, political or
               scientific value and the child who is depicted or described is less
               than twelve (12) years of age contrary to I.C. 35-42-4-4(d) and
               I.C. 35-42-4-4(e)(1) and against the peace and dignity of the State
               of Indiana.


               COUNT II
               [POSSESSION OF CHILD PORNOGRAPHY (a Level 6
               Felony)]

               Vicki Maxwell, upon oath, says that on or about September 19,
               2018, in the County of Lake, State of Indiana, Roger Paul Orich
               did knowingly or intentionally possess or access with intent to
               view pictures or photographs that depicts or describes sexual
               conduct by a child who appears to be less than eighteen (18)
               years of age and that lacks serious literary, artistic, political or
               scientific value contrary to I.C. 35-42-4-4(d) and against the
               peace and dignity of the State of Indiana.


       Appellant’s App. p. 10.


[10]   The probable cause affidavit described the execution of the search warrant at

       Orich’s home and detailed some of the items found during the search.

       Specifically, it described fourteen photos of child pornography found near

       Orich’s bed, which included depictions of children from the age of five through

       sixteen in various sexual situations, including exposing their genitals, buttocks,

       and breasts. One of these photos depicted a three-to-five-year-old child holding

       a man’s penis; and another depicted a four-to-six-year-old child with a man’s

       penis in her vagina. Six other pictures were found that depicted young girls


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2394 | March 23, 2020   Page 6 of 18
       between the ages of seven to twelve in their underwear and in sexually

       suggestive poses.


[11]   The probable cause affidavit further stated that the police found 691 images

       containing child pornography on various electronic devices in Orich’s home.

       The victims depicted in these images ranged in age from infants to adolescents.

       The images depicted young boys and girls in underwear or bathing suits, in

       sexually suggestive poses. Others depicted nude children, and some had been

       altered to put cartoon anime faces on the children. Others depicted young girls

       giving and receiving oral sex from adult men or having sex with adult men. The

       affidavit then gave a detailed description of six of these images, which included

       a young girl with a man’s penis in her mouth, another young girl licking a

       man’s penis, a girl with what appeared to be semen on her, another of a baby

       with a penis in her mouth, another with a young girl with a penis in front of her

       mouth, and one of a baby with her genitals exposed. Id. at 11–12.


[12]   At the sentencing hearing, Orich asked that the trial court “excise” the charging

       information and the probable cause affidavit from the PSIR. Tr. p. 73. The trial

       court denied this request, noting that the DOC uses the PSIR in determining

       placement. Orich now claims that the trial court erred by denying his request.


[13]   In addressing Orich’s claim, we note that decisions regarding the admission of

       evidence at a sentencing hearing are entrusted to the discretion of the trial court.

       Couch v. State, 977 N.E.2d 1013, 1016 (Ind. Ct. App. 2012), trans. denied. The

       Indiana Rules of Evidence, other than those regarding privileges, do not apply


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2394 | March 23, 2020   Page 7 of 18
       at sentencing hearings. Ind. Evidence Rule 101(d)(2). We have explained before

       that:


                 [t]he rationale for the relaxation of evidentiary rules at sentencing
                 is that in a trial the issue is whether a defendant is guilty of
                 having engaged in certain criminal conduct. Rules of evidence
                 narrowly confine the trial contest to evidence that is strictly
                 relevant to the crime charged. At sentencing, however, the
                 evidence is not confined to the narrow issue of guilt. The task is
                 to determine the type and extent of punishment. This
                 individualized sentencing process requires possession of the
                 fullest information possible concerning the defendant's life and
                 characteristics.


       Thomas v. State, 562 N.E.2d 43, 47–48 (Ind. Ct. App. 1990).


[14]   Indiana Code section 35-38-1-8(a) provides that, with certain exceptions for a

       person convicted of a Level 6 felony,2 “a defendant convicted of a felony may

       not be sentenced before a written presentence report is prepared by a probation

       officer and considered by the sentencing court.” See also Dickenson v. State, 835

       N.E.2d 542, 555 (Ind. Ct. App. 2005) (“The only reason to file a PSI[R] is to

       provide information to the court for use at individualized sentencing.”), trans.

       denied.


[15]   The content of a PSIR is controlled by Indiana Code section 35-38-1-9, which

       first describes the presentence investigation as consisting of “the gathering of


       2
         Indiana Code section 35-38-1-8(c) provides that a trial court may sentence a person convicted of a Level 6
       felony without considering a written PSIR. If, however, a defendant convicted of a Level 6 felony is
       sentenced to the DOC or a community corrections program, then the probation officer must prepare a report
       to be sent to the DOC.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2394 | March 23, 2020                  Page 8 of 18
       information with respect to . . . the circumstances attending the commission of

       the offense [and] . . . the convicted person’s history of delinquency or

       criminality, social history, employment history, family situation, economic

       status, education, and personal habits.” Id. at § 9(b)(1), (2). The investigation

       must also gather information regarding “the impact of the crime upon the

       victim,” and whether the convicted person is in a licensed or certified

       profession, or employed, or previously employed, as a teacher. Id. at § 9(b)(3),

       (4). The presentence investigation must include: “(1) any matters the court

       directs to be included; (2) any written statements submitted to the prosecuting

       attorney by a victim under IC 35-35-3; (3) any written statements submitted to

       the probation officer by a victim; and (4) preparation of the victim impact

       statement required under section 8.5 of this chapter,” and may include “any

       matter that the probation officer conducting the investigation believes is

       relevant to the question of sentence.” Id. at § 9(c).


[16]   Once a PSIR is prepared, a trial court must, prior to sentencing, either “advise

       the defendant or his counsel and the prosecuting attorney of the factual contents

       and conclusions of the [PSIR]” or “provide the defendant or his counsel and the

       prosecuting attorney with a copy of the [PSIR].” Ind. Code § 35-38-1-12(a). If

       the defendant is sentenced to a term of imprisonment, the PSIR must be sent to

       the DOC.


[17]   Thus, under the statutes governing PSIRs, there is no requirement that a PSIR

       must include the charging information or probable cause affidavit. But there is

       also nothing that prohibits the inclusion of these items in a PSIR. To the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2394 | March 23, 2020   Page 9 of 18
       contrary, a PSIR must include “the circumstances attending the commission of

       the offense,” I.C. § 35-38-1-9(b)(1), and may include “any matter that the

       probation officer conducting the investigation believes is relevant to the

       question of sentence.” Id. at § 9(c). Thus, if the probation officer believes the

       charging information or probable cause affidavit to be relevant, they may be

       included in the PSIR. We therefore cannot say that the trial court abused its

       discretion by denying Orich’s request to excise the charging information and

       probable cause affidavit from the PSIR.


[18]   Furthermore, the charging information and probable cause affidavit were

       already a part of the trial court’s record. And the testimony of Detective

       Maxwell at the sentencing hearing detailed the circumstances of Orich’s

       possession of child pornography. We therefore fail to see how the inclusion of

       the charging information or the probable cause affidavit in the PSIR prejudiced

       Orich beyond the information that was already in the trial court’s record.


[19]   Orich nevertheless claims that this court has held before that, simply because a

       defendant acknowledges that the information in a PSIR is correct, does not

       mean that the facts contained in the PSIR may be used to enhance a sentence.

       See Appellant’s Br. at 9 (citing Vela v. State, 832 N.E.2d 610, 613–14 (Ind. Ct.

       App. 2005)). Vela was decided after our supreme court held that Blakely v.

       Washington, 542 U.S. 296 (2004), applied to Indiana’s old “presumptive”

       sentencing scheme. See Smylie v. State, 823 N.E.2d 679 (Ind. 2005). At the time

       Vela was decided, any fact—other than the fact of a prior conviction or one

       admitted to by the defendant—that was used to enhance a sentence had to be

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2394 | March 23, 2020   Page 10 of 18
       found beyond a reasonable doubt by the jury. See Vela, 832 N.E.2d at 613.

       Thus, what the Vela court held was that a defendant’s act of admitting that the

       information in a PSIR was correct was not equivalent to admitting to the facts

       contained therein for purposes of Blakely and Smylie.3


[20]   Shortly after Vela was decided, our General Assembly abandoned the old

       “presumptive” sentencing scheme and adopted the current “advisory”

       sentencing scheme, under which a trial court may sentence a defendant within

       the statutory sentencing range regardless of the presence of aggravating or

       mitigating facts. See Anglemyer v. State, 868 N.E.2d 482, 488 (Ind. 2007), clarified

       on reh’g, 875 N.E.2d 218 (citing Ind. Code § 35-38-1-7.1(d)). Accordingly, the

       holding in Vela, which applied to the prior sentencing scheme, does not apply

       here.


                               II. Aggravating and Mitigating Circumstances

[21]   Orich also claims that the trial court abused its discretion in its identification of

       aggravating and mitigating circumstances. Sentencing decisions are entrusted to

       the sound discretion of the trial court, and we review the trial court’s decision

       only for an abuse of this discretion. Anglemyer, 868 N.E.2d at 490. A trial court

       abuses its discretion when its sentencing decision is “clearly against the logic

       and effect of the facts and circumstances before the court, or the reasonable,



       3
        This holding was not shared by other panels of this court. See Sullivan v. State, 836 N.E.2d 1031, 1036 (Ind.
       Ct. App. 2005); Carmona v. State, 827 N.E.2d 588, 596–97 (Ind. Ct. App. 2005) (both holding that a
       defendant’s confirmation of the accuracy of a PSIR, when given an opportunity to contest it, amounts to an
       admission of information contained in the report for Blakely purposes).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2394 | March 23, 2020                    Page 11 of 18
       probable, and actual deductions to be drawn therefrom.” Id. There are several

       ways in which a trial court may abuse its discretion, including: failing to enter a

       sentencing statement at all, articulating reasons in a sentencing statement that

       are not supported by the record, omitting reasons in a sentencing statement that

       are clearly supported by the record, or articulating reasons that are improper as

       a matter of law. Id. at 490–91. However, the relative weight the trial court

       assigns to various aggravators or mitigators is no longer subject to review for an

       abuse of discretion. Id. at 491.


[22]   Orich argues that the trial court abused its discretion by considering certain

       factors as aggravating. He first claims that there was insufficient evidence to

       support the following findings of the trial court in its sentencing order:


               1. The defendant has had prior contact with the criminal justice
                  system. The Court finds that in 1981, the defendant was
                  arrested for “flashing” school children. Further, in 1991, the
                  defendant was charged with Battery and Child Molesting his
                  daughter. In 1993, the defendant was once again charged with
                  Battery and Child Molesting of his daughter. The 1991
                  molesting resulted in a conviction for Battery. The Court finds
                  that there [is] also uncharged conduct where the defendant
                  was reported to the Department of Child Welfare Services for
                  allegedly fondling his daughter in 1986;

               2. The Court finds the defendant to have a pattern of
                  inappropriate behavior with children, which reflects adversely
                  on the defendant’s character;

               3. In several reports, the defendant admitted touching his
                  daughter[.]



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2394 | March 23, 2020   Page 12 of 18
       Appellant’s App. p. 88. Contrary to Orich’s claims, there was ample evidence to

       support these findings.


[23]   Detective Maxwell testified to the following facts: her investigation of Orich

       revealed that he had been arrested in 1981 for exposing himself to school

       children; he was arrested and charged for battery and child molesting in 1991

       and was convicted of battery; he was arrested again for child molesting his

       daughter in 1993 but found not guilty; and he had been investigated by child

       welfare services in 1986 for fondling his daughter and admitted to sexual

       misconduct with his daughter to the investigators. Thus, there was evidence

       before the court to support the trial court’s findings.


[24]   To the extent that Orich claims that the trial court could not consider these

       incidents as aggravating because they did not result in criminal convictions, he

       is mistaken. It is true that a history of arrests, without more, does not establish

       the historical fact that a defendant committed a criminal offense, and may not

       be properly considered as evidence of criminal history; however, an arrest

       record, especially a lengthy one, may indicate that a defendant has not been

       deterred from criminal activity even after extensive contact with the criminal

       justice system. Vermillion v. State, 978 N.E.2d 459, 468 (Ind. Ct. App. 2012)

       (citing Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005)). “Such information may

       be relevant to the trial court’s assessment of the defendant’s character in terms

       of the risk that he will commit another crime.” Id.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2394 | March 23, 2020   Page 13 of 18
[25]   Here, Orich was repeatedly arrested for sexual misconduct involving children.

       The trial court could properly consider this in determining Orich’s sentence. See

       id.; see also Carter v. State, 711 N.E.2d 835, 841 (Ind. 1999) (holding that trial

       court did not abuse its discretion by considering evidence at sentencing hearing

       that defendant had attempted to molest his three-year-old sister a few weeks

       before murdering another child).


[26]   Orich also claims that the trial court erred by relying upon other aggravators

       that were not supported by the record. Specifically:


               4.    The defendant gave a statement wherein he said that the
                     child pornography did not arouse his sexual desires and
                     reported [the] same to Dr. Coyle. However, the detective
                     testified that sexual toys were found in the defendant’s
                     home, which the Court presumes were used for their
                     intended purposes;

                                                      ***

               10. Several items searched for or downloaded by the defendant
                   are heinous such as a six (6) year old boy being penetrated
                   while crying. Some searches found on the defendant’s
                   computer were of “dead and abused children.”

               11. The Court finds that in Dr. Coyle’s report, the defendant
                   seriously under reported, what the Court assumes to be an
                   addiction to pornography, to Dr. Coyle because he said part
                   of the his [sic] total collection of various types of
                   pornography were mostly “cartoonish” in nature, with some
                   disrobed children in photographs who were engaging in
                   various sexual acts that rarely involve “coitus,” which is
                   clearly a misrepresentation of the content that was found at
                   the defendant’s home.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2394 | March 23, 2020   Page 14 of 18
       Appellant’s App. pp. 88–89.


[27]   Orich claims that the finding No. 4 “is not aggravating at all and is in fact a

       non-sequitur.” Appellant’s Br. at 14. He contends that there was no evidence

       linking the child pornography found in his home, his sexual desires, or the sex

       toys found in his home. We think the trial court was well within its discretion,

       as the finder of fact at a sentencing hearing, to make a reasonable inference that

       Orich collected child pornography to arouse or satisfy his sexual desires. This is

       especially so given his prior history of sexual behavior with children, his

       disturbing internet searches, and his collection of sexual toys.


[28]   Orich claims that finding No. 10 is “simply not supported by the record.” Id. at

       15. This is incorrect. Detective Maxwell specifically testified that images and

       videos found in Orich’s possession included a video of a young child 4 being

       anally penetrated while crying. Tr. p. 29. She also testified that the search of

       Orich’s computer revealed that he had used a search engine to look for terms

       including “3D incest sex, 3D kidnap little girl torture, 3D little girls dead

       abused.” Tr. p. 26. Thus, the trial court’s finding is well supported by the

       record.


[29]   Despite this, Orich claims that the trial court “misinterpreted” these searches as

       searches for real-life depictions, whereas, he claims, they were merely searches



       4
        According to Detective Maxwell, this child was a “unknown white female” approximately four to six years
       old. Tr. p. 29. The trial court’s sentencing order states that this child was a “boy.” Appellant’s App. p. 89.
       This minor discrepancy is not grounds for reversal, as the fact remains that Orich was in possession of a
       video depicting a horrific sexual assault of a young child.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2394 | March 23, 2020                   Page 15 of 18
       for virtual images. Again, we disagree. First, the fact that Orich searched for

       “3D images” does not necessarily mean that he was interested only in virtual

       images; it is well known that even real-life photographs and videos can be

       captured and viewed in 3D. Moreover, even assuming that Orich was interested

       only in virtual images, the fact that Orich searched for such vile terms is

       indicative of the depth of his depravity and his prurient interest in violent sex

       acts involving children. The trial court properly considered such circumstances

       as aggravating.


[30]   Lastly, Orich claims that there was no evidence to support the trial court’s

       conclusion that Orich had a pornography addiction. This argument borders on

       frivolous. Given both the staggering amount and disturbing nature of the

       pornography found in Orich’s possession, the trial court could reasonably

       conclude that Orich had an obsession with or an addiction to pornography.


[31]   Orich also claims that the trial court abused its discretion by failing to “properly

       consider” his mental health issues as a mitigating factor. Mental illness is not

       necessarily a significant mitigating factor. Townsend v. State, 45 N.E.3d 821, 831

       (Ind. Ct. App. 2015) (citing Ousley v. State, 807 N.E.2d 758, 762 (Ind. Ct. App.

       2004)), trans. denied. Instead, mental illness may be a mitigating factor under

       certain circumstances, such as when the evidence demonstrates longstanding

       mental health issues or when the jury finds the defendant mentally ill. Id. The

       mitigating weight to be given to a defendant’s mental illness depends on several

       factors, including:



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2394 | March 23, 2020   Page 16 of 18
               (1) the extent of the defendant’s inability to control his or her
               behavior due to the disorder or impairment; (2) overall
               limitations on functioning; (3) the duration of the mental illness;
               and (4) the extent of any nexus between the disorder or
               impairment and the commission of the crime.


       Lopez v. State, 869 N.E.2d 1254, 1259 (Ind. Ct. App. 2007) (citing Biehl v. State,

       738 N.E.2d 337, 340 (Ind. Ct. App. 2000), trans. denied), trans. denied.


[32]   Here, there was some evidence that Orich had suffered a traumatic brain injury

       and that he suffered from mental health issues. The trial court specifically noted

       that Orich had attempted suicide in the past, and Dr. Coyle testified that Orich

       had a hoarding disorder. The trial court recognized these facts as mitigating but

       did not assign them significant mitigating weight. Specifically, the trial court

       stated that imprisonment would be a hardship on Orich because he has suffered

       traumatic “brain injury and has attempted suicide several times in the past[.]”

       Appellant’s App. p. 88. The trial court was also not persuaded by Dr. Coyle’s

       testimony, noting that Orich had significantly underreported the nature and

       quantity of his child pornography collection:


               You have been seeking counseling with Dr. Coyle. Although I’m
               sure it is helpful, I’m not sure that it was geared specifically to the
               issues that were brought forth today. On Page 3 [of his report],
               Dr. Coyle says that you admit you had child pornography as
               total – as a part of your total collection of various types of porn,
               but said it was mostly cartoonish in nature with some disrobed
               children in photographs that were engaged in various sex acts
               that rarely involved coitus. The evidence today presented by the
               State would belie that. So I don’t know that Dr. Coyle had an


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2394 | March 23, 2020   Page 17 of 18
               accurate depiction of why it is that you should have been there,
               but you did seek treatment.


       Tr. pp. 85–86.


[33]   Accordingly, this is not a case where the trial court wholly overlooked the

       defendant’s mental illness. Instead, the trial court recognized Orich’s mental

       health issues but assigned them little mitigating weight. The trial court also

       considered Dr. Coyle’s testimony but gave it little weight because it was based

       on Orich’s own reports of his behavior, in which he seriously underreported the

       nature and scope of his child pornography collection. On appeal, we may not

       re-assess the trial court’s decision to assign this mitigator little weight. See

       Anglemyer, 868 N.E.2d at 491. We therefore cannot say that the trial court

       abused its discretion by failing to consider Orich’s mental health issues as a

       significant mitigating factor.


                                                 Conclusion
[34]   The trial court did not abuse its discretion by overruling Orich’s objection to the

       inclusion of the charging information and probable cause affidavit in the

       presentence investigation report. Nor did the trial court abuse its discretion in

       its identification of aggravating and mitigating factors. Accordingly, we affirm

       the judgment of the trial court.


[35]   Affirmed.


       Kirsch, J., and Bailey, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2394 | March 23, 2020   Page 18 of 18
