FOR PUBLICATION


ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

FREDERICK VAIANA                              GREGORY F. ZOELLER
Indianapolis, Indiana                         Attorney General of Indiana

                                              RICHARD C. WEBSTER
                                              Deputy Attorney General
                                              Indianapolis, Indiana

                                                                      Apr 25 2014, 8:47 am
                               IN THE
                    COURT OF APPEALS OF INDIANA

MARVIN GARNER,                                )
                                              )
      Appellant-Defendant,                    )
                                              )
              vs.                             )      No. 49A02-1310-CR-834
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                    APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Lisa Borges, Judge
                           Cause No. 49G04-1004-FA-28313


                                    April 25, 2014

                             OPINION – FOR PUBLICATION

PYLE, Judge
                               STATEMENT OF THE CASE

          Marvin Garner (“Garner”) appeals his aggregate sentence of sixty years for his

convictions for four counts of Class A felony child molesting.1

          We affirm.

                                           ISSUE

          Whether Garner’s sentence is inappropriate pursuant to Indiana Appellate
          Rule 7(B).

                                           FACTS

          Garner met T.A. (“Mother”) in 2001 at a Salvation Army rehabilitation facility,

and in 2002 they began dating. At the time, Garner was paraplegic. He could not use his

body from the waist down and, as a result, was impotent and confined to a wheelchair.

However, in 2003, he received a penile implant and regained his ability to engage in

sexual intercourse.

          That same year, Garner, Mother, and Mother’s four minor children moved in

together. Mother had two sons—Dr.V. and Dv.V.—and two daughters—A.A. and T.V.

A.A. was born in 1993, and T.V. was born in 1997. Garner, Mother, and the four

children first lived together on Sangster Avenue in Indianapolis in 2003 and then moved

to Yandes Street in Indianapolis in 2004. By the time Mother and Garner moved to

Yandes Street, they were no longer dating, although they continued to live together.

Mother started to date someone else and also worked two jobs, so she was frequently

gone from home. When she was away, she paid Garner to babysit the four children.


1
    Ind. Code § 35-42-4-3.
                                              2
       One day in 2004, when T.V. was seven years old, Garner showed her his penis

while they were watching television. At the time, the other three children were outside

and Mother was at work. According to T.V., Garner then put his penis away because “he

thought the boys were coming back in.” (Tr. 20).

       One night later in 2004, T.V. and A.A. were lying down in their room when

Garner told them to come to his room. At the time, T.V. was still around seven years old,

and A.A. was around ten or eleven years old. When the girls went to Garner’s room, they

found that he had taken off his pants and underwear. At Garner’s orders, A.A. took off

her pants and underwear, got on top of him, and had intercourse with him. After a while,

Garner asked T.V. to take off her pants and underwear, and then he also had intercourse

with her.

       On another night, Garner came to the girls’ room when everyone was asleep and

told them to come to his room. Thereafter, the same progression of events occurred.

When the girls arrived in Garner’s room, he had moved to the bed and taken off his pants

and underwear so that his penis was showing. He told A.A. to take off her pants and

underwear and then he had intercourse with her. Then, he repeated the same actions with

T.V. At trial, the State asked A.A. how many times “something like this . . . occur[red]”

and A.A. replied “[i]t was a lot,” although she could not remember details about each

time. (Tr. 66). T.V. testified that Garner touched her inappropriately ten times, although

she could not remember details about each time, either. A.A. also testified about another

incident in 2005 when Garner made her put his penis in her mouth. At the time, Garner

was sitting in his wheelchair with his clothes on but his penis sticking out.

                                              3
       In 2005, Mother moved residences, and A.A. and T.V. did not have any further

incidents with Garner. However, they did not tell anyone about Garner’s actions until

2009, when A.A. told a child protection services caseworker.

       Subsequently, on April 8, 2010, the State charged Garner with seven counts of

Class A felony child molesting. The trial court held a bench trial on August 12, 2013. At

the conclusion of the State’s evidence, the trial court granted Garner’s motion to dismiss

Counts VI and VII. At the conclusion of the trial, the court found Garner guilty of four

counts of Class A felony child molesting and not guilty of one count. On September 17,

2013, it held a sentencing hearing and sentenced Garner to thirty (30) years for Counts I,

III, and V, which it ordered to run concurrently. The trial court also sentenced Garner to

thirty (30) years for Count IV, which was his molestation conviction relating to A.A., and

ordered the sentence for Count IV to run consecutively to the sentence for Count I, which

was Garner’s molestation conviction relating to T.V.         In total, Garner received an

aggregate sentence of sixty (60) years, although the trial court provided that he could

serve twenty (20) of those years in community corrections on home detention. Garner

now appeals. Additional facts will be provided as necessary.

                                        DECISION

       On appeal, Garner asks that we revise his sentence under Appellate Rule 7(B)

based on the nature of his offense and his character. Essentially, Garner argues that we

should take into account his age of 68 years and his physical infirmities. As stated above,

Garner is paraplegic. In addition, after his confinement to the Marion County Jail,

Garner fell, as a result of which he broke his hip and leg and lost 70% of his vision in one

                                             4
of his eyes. He argues that the trial court should have given more weight to these factors

when sentencing him because it is not likely that he will live to the end of his sentence.

To the extent that Garner is asking us to reweigh the evidence, we will not address his

argument as the relative weight or value given to mitigating circumstances is not subject

to our review. See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on

reh’g, 875 N.E.2d 218 (Ind. 2007). However, we will review whether his sentence was

appropriate under Appellate Rule 7(B).

       While sentencing decisions rest within the sound discretion of the trial court, a

reviewing court may revise a sentence pursuant to Appellate Rule 7(B) if, “after due

consideration of the trial court’s decision,” it finds that the sentence is inappropriate in

light of the nature of the offense and the character of the offender. Id. at 493; Childress

v. State, 848 N.E.2d 1073, 1079-80 (Ind. 2006) (quoting Ind. App. R. 7(B)). This Court

is not required to use “great restraint,” but we nevertheless exercise deference to a trial

court’s sentencing decision, both because Appellate Rule 7(b) requires that we give “due

consideration” to that decision and because we recognize the unique perspective a trial

court has when making decisions. Stewart v. State, 866 N.E.2d 858, 865-66 (Ind. Ct.

App. 2007). The “principal role of appellate review should be to attempt to leaven the

outliers and identify some guiding principles for trial courts and those charged with

improvement of the sentencing statutes, but not to achieve a perceived ‘correct’ result in

each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).

       Garner argues that his aggregate sentence is excessive and asks us to order his

sentences to be served concurrently, rather than consecutively. He quotes the Indiana

                                             5
Supreme Court’s opinion in Cardwell, in which the Supreme Court stated that appellate

courts should “focus on the forest-the aggregate sentence-rather than the trees-

consecutive or concurrent, number of counts, or length of the sentence of any individual

count.” Id. at 1225. He contends that here we should, similarly, look at the length of the

total sentence rather than the number of counts or whether they should be served

concurrently.

      The sentencing range for a Class A felony is twenty to fifty years, with an

advisory sentence of thirty years. Accordingly, the trial court sentenced Garner to the

advisory sentence for each of his four counts, although his aggregate sentence is sixty

years because the trial court ordered him to serve his sentences for Counts I and IV

consecutively. The trial court also provided that Garner could serve twenty years of his

aggregate sentence in community corrections on home detention, rather than in the

Department of Correction.

      Even when we examine Garner’s aggregate sentence, we cannot find that the trial

court’s sentence was inappropriate.     In Cardwell, the Supreme Court elaborated on

factors we should consider when evaluating a defendant’s sentence.           It stated that

“whether we regard a sentence as appropriate 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 factors that come to light in a given case.” Id. at 1224. The Court also

noted that “[w]hether the counts involve one or multiple victims is highly relevant to the

decision to impose consecutive sentences if for no other reason than to preserve potential



                                            6
deterrence of subsequent offenses. Similarly, additional criminal activity directed to the

same victim should not be free of consequences.” Id. at 1225.

       Here, both of the above factors are relevant to the nature of Garner’s offense. His

offenses were committed against multiple victims and against the same victims

repeatedly. A.A. and T.V. collectively testified about at least four specific incidents and

stated that there had been others, although they could not remember the details. Further,

as the trial court noted, it is significant that both victims were very young when the

offenses occurred and that Garner was in a position of trust with them as their babysitter.

It is clear that Garner abused this position of trust. Finally, the trial court noted that it

believed “the impact on the victims is serious and long lasting.” (Tr. 234). The trial

court stated that it came to this conclusion based on what it “learned from them during

the trial and their demeanor throughout the trial. How difficult it was for them to relate to

[the trial court] some pretty devastating things that had happened to them.” (Tr. 234).

Based on these factors, we conclude that the nature of Garner’s offense was very serious.

       Further, we do not see any reason to revise Garner’s sentence due to his character.

Garner’s abuse of his position of trust was demonstrative of his lack of character. In

addition, Garner has a long criminal history. Even though Garner apparently disputed

some of this history, the trial court noted “but you can[not] dispute that you do have

contact with the criminal justice system.” (Tr. 231). While we recognize that Garner’s

age and infirmities are relevant, they are not so persuasive that we can overlook these

negative aspects of his character.



                                             7
      For all of the above reasons, we conclude that the trial court’s sentence was

appropriate, and we decline to revise it under Appellate Rule 7(B).

      Affirmed.

FRIEDLANDER, J., and MATHIAS, J., concur.




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