MEMORANDUM DECISION
                                                                             FILED
Pursuant to Ind. Appellate Rule 65(D),                                  Sep 20 2018, 9:08 am
this Memorandum Decision shall not be
                                                                             CLERK
regarded as precedent or cited before any                                Indiana Supreme Court
                                                                            Court of Appeals
court except for the purpose of establishing                                  and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Steven E. Ripstra                                        Curtis T. Hill, Jr.
Jacob P. Wahl                                            Attorney General of Indiana
Ripstra Law Office
Jasper, Indiana                                          Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Nicholas R. Hedrick,                                     September 20, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-762
        v.                                               Appeal from the Pike Circuit Court
                                                         The Honorable Jeffrey L.
State of Indiana,                                        Biesterveld, Judge
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         63C01-1707-F1-463



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-762 | September 20, 2018                Page 1 of 11
[1]   Nicholas R. Hedrick appeals his sentence for two counts of child molesting.

      Hedrick raises two issues which we revise and restate as:


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

           II.    Whether his sentence is inappropriate in light of the nature of
                  the offense and the character of the offender.

      We affirm.


                                      Facts and Procedural History

[2]   During the spring of 2014, Hedrick fondled or touched his five year-old

      daughter, E.H., with the intent to arouse or satisfy his own sexual desires. On

      July 21, 2017, Hedrick fondled or touched a seven year-old child, J.H., with the

      intent to arouse or satisfy his own sexual desires.


[3]   On July 31, 2017, the State charged Hedrick with: Count I, child molesting of

      E.H., as a class A felony; Count II, child molesting of J.H., as a level 1 felony;

      Count III, child molesting of E.H., as a class C felony; Count IV, child

      molesting of J.H, as a level 4 felony; Count V, incest as a class B felony; and

      Count VI, neglect of a dependent as a class D felony. On December 11, 2017,

      Hedrick and the State entered into a plea agreement pursuant to which he

      agreed to plead guilty to Counts III and IV. The plea agreement indicates that

      the sentences for these counts were “left ‘Open to the Court’s discretion’ and

      that each count [was] to run concurrently.” Appellant’s Appendix Volume 2 at

      39. Hedrick pled guilty on the same day and the court accepted the plea

      agreement. The State dismissed all of the other charges.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-762 | September 20, 2018   Page 2 of 11
[4]   At sentencing, Hedrick stated that he was diagnosed with a learning disability

      and quit school at age sixteen to obtain a job and that he maintained manual

      labor employment in factories continuously from the time he left school until

      his arrest. According to his testimony, Hedrick began smoking marijuana when

      he was “about thirteen,” was drinking and smoking marijuana “full-time” when

      he was sixteen, and began using methamphetamine daily when he was

      seventeen or eighteen, and all three “pretty much” daily until he was twenty-

      three. Transcript at 29. He stated that, when he was arrested, his alcohol

      consumption was a pint of bourbon per day, that he planned on smoking his

      entire life, and that, “[b]efore now,” he had never planned on quitting. Id. at

      39. He stated “[y]es” after his counsel noted that he had a number of arrests,

      answered affirmatively each time after being asked if he had a “number of

      driving while suspended’s,” “a marijuana possession or two,” and “a

      furnishing,” and responded that he had to travel to work when requested to

      explain his arrests for driving while suspended. Id. at 28.


[5]   Hedrick testified that he spread his daughter’s vagina and “that’s when she

      asked me, daddy what are you doing.” Id. at 37. He testified that J.H. was a

      daughter of his close friends, that they occasionally trusted him with her care,

      and that J.H. trusted him. When the prosecutor asked “what’s unspeakable

      about this crime,” Hedrick replied “[j]ust the thought of, you know, harming a

      child” and agreed when corrected that he meant two children. Id. He answered

      affirmatively when asked whether he “told Deputy Killian [that he] had an

      erection” when touching E.H.’s vagina and a partial erection when touching


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-762 | September 20, 2018   Page 3 of 11
      J.H.’s vagina and stated, after some additional questioning, that he found

      himself erect and “then through lack of self-control I touched my daughter.” Id.

      at 41. When the prosecutor questioned whether he had promised the court that

      this will never happen again, Hedrick answered affirmatively and stated, “I plan

      on changing my life.” Id. at 42. The prosecutor then asked, “[c]hanging your

      impulses toward young children,” and Hedrick answered in part by stating “it

      was not like I was looking for it” and “I was under the influence.” Id. During

      the recross-examination, the following exchange occurred between the

      prosecutor and Hedrick:


              [Prosecutor]: Isn’t it true that in 2014 after that happened you
              ended up admitting to your friends, [A.H and D.H.], that you
              had touched your daughter inappropriately and that was going to
              be the last time. Didn’t you tell them that?

              [Hedrick]: Yes.

              [Prosecutor]: And fortunately for you, they didn’t report it to
              anybody, did they?

              [Hedrick]: No.

              [Prosecutor]: Until after their daughter got molested by you.
              Isn’t that true?

              [Hedrick]: Yes.


      Id. at 43-44.


[6]   The presentence investigation report (“PSI”), in the summary of legal history

      section, states in part:


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-762 | September 20, 2018   Page 4 of 11
              As an adult, [Hedrick] has a criminal history involving nine (9)
              misdemeanor convictions and two (2) felony convictions which
              includes [sic] the instant offense. The misdemeanors are as
              follows: Contributing to the Delinquency of a Minor (A/Misd.),
              two (2) Counts of Possession of Marijuana (A/Misd.), five (5)
              Counts of Driving While Suspended (A/Misd.) and Possession
              of Paraphernalia (C/Misd.). . . . As an adult, [Hedrick] has been
              placed on probation six (6) times. During the duration of
              probation, there were five (5) Petitions to Revoke Probation filed.
              [Hedrick] completed probation satisfactorily three (3) times, one
              (1) was closed unsatisfactorily and one (1) was revoked and the
              suspended sentence was ordered executed. At the time of the
              instant offense, [Hedrick] was on probation in Dubois County.
              [Hedrick] has an active warrant in Dubois County for the
              revocation of probation.


      Appellant’s Appendix Volume 2 at 48. According to the PSI, Hedrick used or

      abused other drugs including heroin, inhalents, caffeine tablets, LSD/acid,

      morphine, Xanax, Oxycontin, Mushrooms, and Hydrocodone; he had been

      ordered by a court to attend substance abuse treatment at Southern Hills but

      quit attending counseling sessions and never completed treatment; and he

      reported during the PSI interview that he would drink and use marijuana at

      work. The PSI also indicated that Hedrick’s overall risk assessment using the

      Indiana risk assessment system placed him in the high risk to reoffend category.


[7]   The trial court found that Hedrick had been in positions of trust and of having

      care, custody or control of the children. After finding that the harm, injury, loss

      or damage suffered by the pair was significant and greater than the elements

      necessary to prove the commission of the offenses, the court noted the young

      age of the victims, “[e]ven though the age is considered an element of the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-762 | September 20, 2018   Page 5 of 11
      offense,” and observed that the lives of E.H. and J.H. “will forever be changed”

      because of Hedrick’s actions. Transcript at 51. It also found that Hedrick had a

      history of criminal or delinquent behavior, that the prior lenient treatment

      which had been afforded him had not been successful, and that he had violated

      the conditions of his last probation. Id. The court observed that Hedrick

      described that he was “under the influence and didn’t care and . . . lost control”

      and stated that it “does consider the . . . amount of time between the offenses to

      be particularly troubling in this matter.”1 Id. The court also found that Hedrick

      accepted responsibility for his actions and had pled guilty and it stated that the

      “one (1) mitigating factor is far outweighed by the aggravating factors.” Id.

      The court sentenced Hedrick to eight years for his conviction of child molesting

      as a class C felony and twelve years for his conviction of child molesting as a

      level 4 felony and ordered the sentences to be served concurrently.


                                                    Discussion

                                                           I.

[8]   The first issue is whether the trial court abused its discretion in sentencing

      Hedrick. We review the sentence for an abuse of discretion, which occurs if the

      decision is “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.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on




      1
       The court’s January 20, 2018 sentencing order states: “Court considers the period of time between the
      multiple offenses in this matter.” Appellant’s Appendix Volume II at 19.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-762 | September 20, 2018               Page 6 of 11
       reh’g, 875 N.E.2d 218 (Ind. 2007). A trial court abuses its discretion if it: (1)

       fails “to enter a sentencing statement at all;” (2) enters “a sentencing statement

       that explains reasons for imposing a sentence—including a finding of

       aggravating and mitigating factors if any—but the record does not support the

       reasons;” (3) enters a sentencing statement that “omits reasons that are clearly

       supported by the record and advanced for consideration;” or (4) considers

       reasons that “are improper as a matter of law.” Id. at 490-491. If the trial court

       has abused its discretion, we will remand for resentencing “if we cannot say

       with confidence that the trial court would have imposed the same sentence had

       it properly considered reasons that enjoy support in the record.” Id. at 491.

       The relative weight or value assignable to reasons properly found, or those

       which should have been found, is not subject to review for abuse of discretion.

       Id.


[9]    A single aggravating circumstance may be sufficient to enhance a sentence.

       Hackett v. State, 716 N.E.2d 1273, 1278 (Ind. 1999) (citing Angleton v. State, 714

       N.E.2d 156, 160 (Ind. 1999)). “Generally, the nature and circumstances of a

       crime is a proper aggravating circumstance.” Gomillia v. State, 13 N.E.3d 846,

       853 (Ind. 2014) (citing McCann v. State, 749 N.E.2d 1116, 1120 (Ind. 2001)).

       When a trial court improperly applies an aggravator but other valid aggravating

       circumstances exist, a sentence enhancement may still be upheld. Hackett, 716

       N.E.2d at 1278 (citing Shields v. State, 699 N.E.2d 636, 639 (Ind. 1998)).


[10]   Hedrick argues that the trial court improperly found two aggravating factors:

       the harm, loss, and damage suffered by the victims was greater than what was

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-762 | September 20, 2018   Page 7 of 11
       needed to prove the elements of the offense, and “the gap of time between the

       offenses.” Appellant’s Brief at 11. He argues that no additional harm, loss or

       damage to the victims was alleged “beyond what is inherent in such devious

       behavior,” that no evidence was presented that the harm suffered was

       “exceptional for a child molesting case,” and that the fact that E.H. was his

       daughter had been addressed in the “care, custody, or control” aggravator. Id.

       at 8, 11. He further contends that it is not clear how the gap in time between

       the offenses aggravates the crime given that “[t]he allegations are from two

       events, with two victims.” Id. The State responds that the two sentencing

       considerations were valid under the circumstances. It contends that the facts

       that E.H.’s “own father would do such a thing to her” and that a trusted family

       friend sexually molested J.H. will affect each of the victims throughout their

       lives, and that it argued at sentencing that Hedrick “was highly likely to re-

       offend because he had already done so” and “[b]ecause nothing had changed”

       in his lifestyle in the time between the two offenses. Appellee’s Brief at 13-14.


[11]   Even if the court considered improper aggravators, other valid aggravating

       circumstances, which Hedrick does not challenge, justify the sentence

       enhancement. We note that the trial court observed that the lives of E.H. and

       J.H. “will forever be changed” because of Hedrick’s actions and found that he

       had been in positions of trust and of having care, custody or control of the

       victims. Id. at 51. We also note Hedrick’s continued substance abuse and

       observe the court’s findings that he had a history of criminal or delinquent

       behavior, that the prior lenient treatment which had been afforded him had not


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-762 | September 20, 2018   Page 8 of 11
       been successful, and that he had violated the conditions of his last probation.

       We conclude that other valid aggravating circumstances, which Hedrick does

       not challenge, justify the sentence enhancement and, accordingly, we cannot

       say that the trial court abused its discretion in sentencing.


                                                         II.

[12]   The second issue is whether Hedrick’s sentence is inappropriate in light of the

       nature of the offense and his character. 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).


[13]   Hedrick argues that the trial court’s sentence was excessive because he pled

       guilty to two separate instances with two victims, no additional harm was

       found “to raise the severity” of his actions, and he does not have a prior history

       of violent or sex crimes involving children. Appellant’s Brief at 8. In essence,

       he contends that the record does not present this case as “one of the worst of the

       worst” cases of child molesting or warrant the maximum penalty. Id. at 9. The

       State argues that the sentence imposed is not inappropriate in light of both the

       nature of the offenses and Hedrick’s character.


[14]   Our review of the nature of the offenses reveals that Hedrick molested five year-

       old E.H. and seven year-old J.H. According to his testimony, he found himself


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-762 | September 20, 2018   Page 9 of 11
       erect when he touched E.H., his daughter. Three years after he had shared with

       J.H.’s parents that he molested E.H. and told them that was going to be the last

       time, he molested J.H.


[15]   As for his character, Hedrick pled guilty and left sentencing to the discretion of

       the trial court. The plea agreement indicated that Counts III and IV were to

       run concurrently, and the State dismissed two counts of child molesting as class

       A and level 1 felonies, one count of incest as a class B felony, and one count of

       neglect of a dependent as a class D felony. The PSI indicates that he used or

       abused multiple drugs and never completed court-ordered substance abuse

       treatment. His testimony at the sentencing hearing indicates that when he was

       arrested, his alcohol consumption was a pint of bourbon per day, that he

       planned on smoking his entire life, and that, “[b]efore now,” he had never

       planned on quitting. Id. at 39. Although he does not have a prior history of

       violent or sex crimes involving children, the PSI reveals that Hedrick has been

       placed on probation six times, has had five petitions to revoke probation filed,

       that he was on probation in Dubois County, and had an active warrant for the

       revocation of probation. The PSI also indicates that his overall risk assessment

       score using the Indiana risk assessment system places him in the high risk to

       reoffend category.


[16]   After due consideration, we conclude that Hedrick has not sustained his burden

       of establishing that his aggregate sentence of twelve years is inappropriate in

       light of the nature of the offenses and his character.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-762 | September 20, 2018   Page 10 of 11
                                                   Conclusion

[17]   For the foregoing reasons, we affirm Hedrick’s sentence.


[18]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-762 | September 20, 2018   Page 11 of 11
