                                                                         FILED
                                                                    Jun 17 2019, 8:39 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Jack Kenney                                                Curtis T. Hill, Jr.
Stacy R. Uliana                                            Attorney General of Indiana
Bargersville, Indiana
                                                           Tiffany A. McCoy
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Nathaniel Hale,                                            June 17, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-2920
        v.                                                 Appeal from the Hamilton
                                                           Superior Court
State of Indiana,                                          The Honorable Steven R. Nation,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           29D01-1703-F1-2048



Najam, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-2920 | June 17, 2019                            Page 1 of 18
                                         Statement of the Case
[1]   Nathaniel Hale appeals his convictions for five counts of child molesting, as

      Level 1 felonies, following a jury trial. 1 Hale presents the following issues for

      our review:


               1.       Whether the State presented sufficient evidence to support
                        his convictions.

               2.       Whether the trial court abused its discretion when it
                        sentenced him.

               3.       Whether his sentence is inappropriate in light of the nature
                        of the offenses and his character.


[2]   We affirm.


                                   Facts and Procedural History
[3]   In 2016, Hale became engaged to S.F. Hale moved into S.F.’s home, where she

      lived with her then-ten-year-old daughter, K.F. One night in September, Hale

      went into K.F.’s bedroom while she was sleeping. K.F. heard him enter, but

      she pretended to be asleep. Hale reached under the blanket on K.F.’s bed and

      put his hand inside K.F.’s pajama pants and underwear. Hale moved his hand

      and fingers “up and down or in circular motions” on her “private parts,” which

      she later explained referred to her “vagina,” and that it “hurt [K.F.] a lot.” Tr.

      Vol. 2 at 207-08. This incident lasted approximately three to six minutes before


      1
        Hale was also convicted of two counts of child molesting, as Level 4 felonies, but he does not appeal those
      convictions.

      Court of Appeals of Indiana | Opinion 18A-CR-2920 | June 17, 2019                                Page 2 of 18
      Hale left the bedroom. About a week later, Hale entered K.F.’s bedroom again

      while she was sleeping, and he used his fingers to go “up or down or [in]

      circular motions” on her vagina. Id. at 210.


[4]   A week or so after that incident, Hale again entered K.F.’s bedroom while she

      was sleeping, and he touched her “on [her] private parts” under her underwear

      “doing the same motions” as before. Id. at 212. Hale also took K.F.’s hand

      and put her hand on his penis “and made [her] hand go up and down with his

      hand.” Id. After approximately ten minutes, Hale left K.F.’s bedroom.


[5]   One night, K.F. fell asleep on a couch in the living room. Hale sat down on the

      couch next to her and touched K.F.’s vagina under her clothing, and he put his

      hand on her hand and made her hand move up and down on his penis. While

      Hale was touching K.F., he asked her whether it felt good and whether she

      wanted to see his penis. K.F. pretended to be asleep, but she eventually got up

      and told Hale that she had to go to the bathroom. K.F.’s hands felt wet after

      touching Hale’s penis, so she washed them.


[6]   On another occasion in early January 2017, K.F. asked Hale to play a game,

      and the two were sitting on Hale’s bed in his bedroom. K.F. was sitting with

      her legs crossed in front of her when Hale began moving his fingers up and

      down her leg. Hale eventually began touching K.F.’s “private parts on the

      outside of [her] pants,” and K.F. got off of the bed to “get away from that.” Id.

      at 218. They stopped playing the game, and K.F. sat down again on the bed.

      K.F. said she was tired, and she lay down on the bed. At that point, Hale put


      Court of Appeals of Indiana | Opinion 18A-CR-2920 | June 17, 2019       Page 3 of 18
      his hands inside K.F.’s pants and touched her vagina with “up and down” and

      “circular” motions, and he made her touch his penis. Id. at 219. After several

      minutes, Hale left the bedroom, and K.F. fell asleep.


[7]   One day or so later, when K.F. came home from school, S.F. told her that she

      and Hale were “taking a break” from their engagement and that Hale “had left”

      their house for an indefinite period of time. Id. at 220. K.F. felt like it “was a

      good time” to tell her mother about what Hale had done to her over the past

      several months. Id. After hearing about the molestations, S.F. contacted law

      enforcement, and S.F. and K.F. went to stay at K.F.’s grandparents’ house. On

      January 11, K.F. met with a forensic interviewer to discuss the molestations.


[8]   The State charged Hale with seven counts of child molesting, five as Level 1

      felonies and two as Level 4 felonies. At trial, then-twelve-year-old K.F.

      described each of the molestations, and a portion of her videorecorded forensic

      interview was played for the jury. The jury found Hale guilty as charged. The

      trial court entered judgment of conviction accordingly and sentenced Hale to

      thirty years for each Level 1 felony conviction (Counts 1-5) and six years for

      each Level 4 felony conviction (Counts 6 and 7). And the court ordered as

      follows:


              • Counts 1, 2, and 3 shall be served concurrently but
              consecutive[] to Counts 4 and 5, and to Counts 6 and 7.

              • Counts 4 and 5 shall be served concurrently but consecutive[]
              to Counts 1 through 3, and to Counts 6 and 7.



      Court of Appeals of Indiana | Opinion 18A-CR-2920 | June 17, 2019          Page 4 of 18
                • Counts 6 and 7 shall be served [concurrently but] consecutive[]
                to Counts l through 3, and to Counts 4 and 5.


       Thus, the trial court imposed an aggregate term of sixty-six years. This appeal

       ensued.


                                       Discussion and Decision
                                  Issue One: Sufficiency of the Evidence

[9]    When reviewing a claim of insufficient evidence to sustain a conviction, we

       consider only the probative evidence and reasonable inferences supporting the

       verdict. Meehan v. State, 7 N.E.3d 255, 257 (Ind. 2014).


                “It is the fact-finder’s role, not that of appellate courts, to assess
                witness credibility and weigh the evidence to determine whether
                it is sufficient to support a conviction. Appellate courts affirm
                the conviction unless no reasonable fact-finder could find the
                elements of the crime proven beyond a reasonable doubt. It is
                therefore not necessary that the evidence overcome every
                reasonable hypothesis of innocence. [T]he evidence is sufficient
                if an inference may reasonably be drawn from it to support the
                verdict.”


       Id. (quoting Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007)). Further, it is

       well settled that the testimony of a sole child witness is sufficient to sustain a

       conviction for molestation. Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind.

       2012).


[10]   To prove the five counts of child molesting, as Level 1 felonies, as charged, the

       State was required to show that on five occasions Hale, who was at least

       Court of Appeals of Indiana | Opinion 18A-CR-2920 | June 17, 2019                 Page 5 of 18
       twenty-one years old, performed “other sexual conduct” with K.F., who was

       under the age of fourteen. Ind. Code § 35-42-4-3(a)(1) (2018). To prove “other

       sexual conduct” as charged here, the State was required to show that Hale used

       his hand or finger to penetrate the sex organ of K.F. I.C. § 35-31.5-2-221.5.

       Our Supreme Court recently held that “proof of the slightest penetration of the

       sex organ, including penetration of the external genitalia, is sufficient to demonstrate

       a person performed other sexual []conduct with a child.” Boggs v. State, 104

       N.E.3d 1287, 1289 (Ind. 2018) (emphasis added).


[11]   Hale contends that the State presented insufficient evidence to prove that his

       hand or finger penetrated the sex organ of K.F. In particular, Hale maintains

       that the evidence is insufficient to show penetration because: K.F., who was

       twelve years old at the time of trial, “had the capability of describing any

       penetration by Hale’s fingers or hand if it had occurred, but she did not”; “the

       record is devoid of any medical or physical evidence of penetration”; and, while

       K.F. described pain after the molestations, she did not attribute that pain to

       penetration of her genitalia. Appellant’s Br. at 18. Hale acknowledges that

       child witnesses are not required to give a detailed anatomical description of

       penetration, but he asserts that “K.F.’s vague and equivocal testimony here fell

       far short of meeting the element of penetration[.]” Id. at 19. We cannot agree.


[12]   At trial, K.F. testified in relevant part as follows:


               Q: Okay. [During the first incident,] was [Hale’s] hand inside
               your pants or inside your underwear, or both?



       Court of Appeals of Indiana | Opinion 18A-CR-2920 | June 17, 2019             Page 6 of 18
        A: Both. It was inside both.

        Q: Okay. And what did you feel?

        A: I felt that [Hale’s] hand was moving and like, almost like up
        and down or like circular motions.

        Q: And where was it moving up and down or in circular
        motions?

        A: My private parts.

                                                 ***

        Q: Is there another word that you use for your private parts?

        A: Yes.

        Q: What is that word?

        A: Vagina.

        Q: And when the hand was moving up and down or in a circle
        on your vagina, what did that feel like?

        A: It hurt a lot.

                                                 ***

        Q: Okay. And that second time when [Hale] touch[ed] you on
        your vagina, what did you feel [him] touch you with?

        A: A hand, like [his] fingers.

        Q: Okay. And what were [his] hand or fingers doing that second
        time?


Court of Appeals of Indiana | Opinion 18A-CR-2920 | June 17, 2019          Page 7 of 18
        A: It felt like they had been going up or down or circular
        motions.

        Q: And when that was happening, how did that feel that second
        time?

        A: It hurt still.

                                                 ***

        Q: Okay. And what happened that third time?

        A: It started out the same, and then he made me touch him.

                                                 ***

        Q: And when he worked his way into your pants, where did he
        touch you that third time?

        A: On my private parts.

        Q: On your private parts. And what was he touching you with
        on your private parts that third time?

        A: His hands.

        Q: And what was his hand doing?

        A: It was doing the same motions.

        Q: Okay. And how did it feel that third time?

        A: It hurt still.

                                                 ***

        Q: And what happened[ the fourth time]?

Court of Appeals of Indiana | Opinion 18A-CR-2920 | June 17, 2019     Page 8 of 18
        A: It was the same thing where he touched me and then made
        me touch him.

        Q: Okay. Can you tell us about when he touched you that time
        on the couch?

        A: It was the same feeling and it felt like the same movements as
        well.

        Q: How was he touching you?

        A: It was just his hands.

        Q: And where was his hand touching you?

        A: On my private part.

        Q: And was it touching you on the outside of your clothes or the
        inside of your clothes?

        A: The inside.

        Q: And what was his hand doing when it was touching your
        private parts?

        A: It was going again in the same motions as before.

        Q: And how did that feel?

        A: It hurt again.

                                                 ***

        Q: And what happened [the fifth time]?

        A: And that time I had, he touched me and made me touch him.


Court of Appeals of Indiana | Opinion 18A-CR-2920 | June 17, 2019       Page 9 of 18
               Q: Okay. And how did he touch you?

               A: It was in the same way where it felt like he was going up and
               down in a circular motion inside of my pants.

               Q: And how did that feel?

               A: It hurt again.

               Q: Okay. And you said it felt like he was going up and down in
               a circular motion. Where was he touching you that time?

               A: In my private parts.

               Q: And what was he touching you with?

               A: His hand.

       Tr. Vol. 2 at 207-08, 210-12, 214-15, 218-19.


[13]   At trial, the State also played for the jury a portion of K.F.’s forensic interview,

       which included the following:


               Q: Okay. Okay. And when he’s touching you on your vagina,
               tell me what is he touching you with?

               A: His fingers.

               Q: Fingers, okay. And tell me, are his fingers on top of the
               clothes or are they underneath the clothes?

               A: Underneath.

               Q: Underneath? Okay. And tell me are his fingers on the inside
               or the outside of your vagina?


       Court of Appeals of Indiana | Opinion 18A-CR-2920 | June 17, 2019         Page 10 of 18
               A: Uh, I think—I don’t know for sure, because I try to keep my
               eyes closed but I think, it feels like he’s trying to find something.

                                                        ***

               Q: Okay, thank you. And I heard you say that it hurts when he
               touches your vagina and you’ll go to the bathroom afterwards
               and it hurts to use the restroom. And tell me, I heard you say
               he’ll use his fingers, yeah. Tell me, does he use one finger or two
               fingers? Do you know?

               A: Um, his whole hand will end up like down there but it will
               only end up being, it will be like one finger. So he’ll just look like
               this but his whole hand is down there.

               Q: Tell me what it feels like when he’s using the one finger?

               A: It either feels like he’s going up and down or like in circles,
               and like pressing down really hard and it really hurts.

       Id. at 239, 241.


[14]   In sum, K.F. testified that, on five separate occasions, Hale touched her vagina

       with his finger or hand using an “up and down” or “circular” motion that felt

       like he was “trying to find something.” Id. at 207, 239. While K.F. did not

       know whether Hale’s finger had penetrated her vagina, again, penetration of the

       vaginal canal is not required to prove Level 1 felony child molesting as charged

       here. Boggs, 104 N.E.3d at 1289. The State need only have proven penetration

       of K.F.’s external genitalia. And it would have been physically impossible for

       Hale to touch any part of K.F.’s vagina without having first penetrated her




       Court of Appeals of Indiana | Opinion 18A-CR-2920 | June 17, 2019            Page 11 of 18
       vulva, or external genitalia. 2 We conclude that a reasonable fact-finder could

       have determined from the evidence that Hale penetrated K.F.’s external

       genitalia, and we affirm his five convictions for child molesting, as Level 1

       felonies.


                             Issue Two: Abuse of Discretion in Sentencing

[15]   Hale also contends that the trial court abused its discretion when it sentenced

       him. Sentencing decisions lie within the sound discretion of the trial court.

       Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). An abuse of discretion

       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.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct.

       App. 2014) (citation omitted), trans. denied.


[16]   A trial court abuses its discretion in sentencing if it does any of the following:


               (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.”




       2
         Stedman’s Medical Dictionary defines “vagina” in relevant part as the genital canal in the female extending
       from the uterus to the vulva. Stedman’s Medical Dictionary 1682 (25th ed. 1990). “Vulva” is defined in
       relevant part as the external genitalia of the female. Id. at 1730.

       Court of Appeals of Indiana | Opinion 18A-CR-2920 | June 17, 2019                              Page 12 of 18
       Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-491 (Ind.), clarified on reh’g

       other grounds, 875 N.E.2d 218 (Ind. 2007)).


[17]   The sentencing range for a Level 1 felony is twenty years to forty years, with an

       advisory sentence of thirty years. I.C. § 35-50-2-4. And the sentencing range

       for a Level 4 felony is two years to twelve years, with an advisory sentence of

       six years. I.C. § 35-50-2-5.5. Here, at sentencing, the trial court identified two

       aggravators: the number of molestations that occurred over the course of four

       months, and Hale’s violation of his position of trust with K.F. And the court

       identified two mitigators: Hale’s lack of a significant criminal history, and the

       hardship that Hale’s incarceration would impose on his dependents. The court

       found that the aggravators outweighed the mitigators and imposed sentence as

       follows: thirty years for each Level 1 felony conviction and six years for each

       Level 4 felony conviction, with some of the sentences to run concurrently and

       others to run consecutively for a total aggregate sentence of sixty-six years

       executed.


[18]   Hale asserts that the trial court abused its discretion when it identified an

       improper aggravator and when it did not identify as mitigators his military

       service, disability, and employment history. We address each contention in

       turn.


[19]   Hale maintains that the trial court abused its discretion when it identified as an

       aggravator “the extended time over which the violation of the law occurred.”

       Tr. Vol. 3 at 176. Hale asserts that that factor is improper “as a matter of law


       Court of Appeals of Indiana | Opinion 18A-CR-2920 | June 17, 2019         Page 13 of 18
       because it covers exactly the offense[s] for which Hale stands convicted and it is

       not supported by the record.” Appellant’s Br. at 32. In particular, Hale states

       that each information charged him with child molesting that occurred between

       September 1, 2016, and January 7, 2017. Thus, he contends that the trial court

       relied on material elements of the offenses as an aggravator, which is

       prohibited. See Gomillia v. State, 13 N.E.3d 846, 852-53 (Ind. 2014).


[20]   However, the State points out that, when Hale objected to this aggravator, the

       trial court clarified that its “comments were based upon the [number] of

       occurrences that happened during that period of time[.]” Tr. Vol. 3 at 178.

       And the State maintains that that aggravator was proper because a trial court

       may consider the particularized circumstances of the factual elements as

       aggravating factors. See McElroy v. State, 865 N.E.2d 584, 589-90 (Ind. 2007).

       We agree with the State. This court has previously held that a trial court

       properly found aggravating that the defendant had molested his daughter

       several times within one month. Hart v. State, 829 N.E.2d 541, 544 (Ind. Ct.

       App. 2005). The aggravator underscores the deliberate nature of Hale’s crimes,

       which were not limited to a single incident but manifested a habitual pattern of

       conduct. The trial court did not abuse its discretion when it identified this

       aggravator.


[21]   Hale also contends that the trial court abused its discretion when it did not find

       mitigating his military service, disability, and employment. The finding of

       mitigating circumstances is within the discretion of the trial court. Rascoe v.

       State, 736 N.E.2d 246, 248-49 (Ind. 2000). An allegation that the trial court

       Court of Appeals of Indiana | Opinion 18A-CR-2920 | June 17, 2019        Page 14 of 18
       failed to identify or find a mitigating circumstance requires the defendant to

       establish that the mitigating evidence is both significant and clearly supported

       by the record. Id. at 249. The trial court is not obligated to accept the

       defendant’s contentions as to what constitutes a mitigating circumstance. Id.


[22]   Hale emphasizes his “extensive” military service over the course of a decade,

       including tours in Iraq and Afghanistan, his physical and mental health issues

       related to his service, and his honorable discharge. Appellant’s Br. at 35.

       However, military service is not necessarily a mitigating circumstance. Harmon

       v. State, 4 N.E.3d 209, 218 (Ind. Ct. App. 2014), trans. denied. Given the nature

       of Hale’s crimes, which reflect conduct especially incompatible with that

       expected of a member of our military, we cannot say that the trial court abused

       its discretion when it declined to adopt this proffered mitigator.


[23]   Finally, Hale asserts that his employment in the military and, since his

       discharge, as a personal trainer warrants mitigating weight. However, as this

       court has previously stated, “many people are gainfully employed,” and “a

       defendant’s employment is not necessarily a mitigating factor.” Holmes v. State,

       86 N.E.3d 394, 399 (Ind. Ct. App. 2017), trans. denied. We cannot say that the

       trial court abused its discretion when it declined to adopt this proffered

       mitigator. Hale has not demonstrated any abuse of discretion by the trial court

       in imposing sentence.




       Court of Appeals of Indiana | Opinion 18A-CR-2920 | June 17, 2019           Page 15 of 18
                               Issue Three: Inappropriateness of Sentence

[24]   Finally, Hale asserts that his sixty-six-year aggregate sentence is inappropriate

       in light of the nature of the offenses and his character. Indiana Appellate Rule

       7(B) provides that “[t]he 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.” This Court has recently held that “[t]he advisory sentence is

       the starting point the legislature has selected as an appropriate sentence for the

       crime committed.” Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017).

       And the Indiana Supreme Court has explained that:


               The principal role of appellate review should be to attempt to
               leaven the outliers . . . but not achieve a perceived “correct”
               result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
               2008). Defendant has the burden to persuade us that the
               sentence imposed by the trial court is inappropriate. [Anglemyer,
               868 N.E.2d at 494].


       Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).


[25]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment “should

       receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we

       regard a sentence as inappropriate at the end of the day turns on “our sense of

       the culpability of the defendant, the severity of the crime, the damage done to

       others, and myriad other facts that come to light in a given case.” Id. at 1224.

       The question is not whether another sentence is more appropriate, but rather

       Court of Appeals of Indiana | Opinion 18A-CR-2920 | June 17, 2019         Page 16 of 18
       whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,

       268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless

       overcome by compelling evidence portraying in a positive light the nature of the

       offense (such as accompanied by restraint, regard, and lack of brutality) and the

       defendant’s character (such as substantial virtuous traits or persistent examples

       of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[26]   Hale concedes that his offenses “are serious and deserve punishment.”

       Appellant’s Br. at 27. But he maintains that his offenses “fall[] on the fringes of

       Indiana’s Level 1 felony child molesting statute, which typically involves far

       more intrusive sexual abuse” and “a minimum concurrent sentence should have

       been imposed.” Id. at 28. However, as the State points out, Hale, who had a

       position of trust with K.F., molested her on multiple occasions over the course

       of four months. He violated the safety of K.F.’s bedroom and molested her

       while she was trying to sleep. And K.F.’s statement at Hale’s sentencing

       hearing clearly set out the myriad ways that the molestations have negatively

       impacted K.F.’s young life. We cannot say that Hale’s sentence is

       inappropriate in light of the nature of the offenses.


[27]   Hale contends that his sentence is inappropriate in light of his character because

       he: “has led a significantly law-abiding life”; he is “in college and on track to

       graduate with honors”; his military service includes having received multiple

       medals and an honorable discharge; and he has maintained employment

       despite his partial disability. Id. at 28-29. However, Hale’s criminal history,

       while relatively minor, does not reflect a good character. In 1999, when he was

       Court of Appeals of Indiana | Opinion 18A-CR-2920 | June 17, 2019        Page 17 of 18
       about fifteen years old, Hale was adjudicated a delinquent for charges of

       possession of marijuana and visiting a common nuisance. Hale’s adult criminal

       history began in 2002 and consists of eight misdemeanor convictions, including

       convictions for resisting law enforcement and trespass, and he violated his

       probation twice. Finally, we agree with the State’s assessment that the offenses

       “were not isolated incidents of poor decision-making; they were predatory acts

       by a man who intentionally abused a relationship of trust” with a ten-year-old

       girl. Appellee’s Br. at 24. We cannot say that Hale’s aggregate sentence of

       sixty-six years is inappropriate in light of the nature of the offenses and his

       character.


[28]   Affirmed.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-2920 | June 17, 2019         Page 18 of 18
