ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger                                    Gregory F. Zoeller
Appellate Public Defender                                 Attorney General of Indiana
Crown Point, Indiana
                                                          Gary R. Rom
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana




                                                                         FILED
______________________________________________________________________________
                                                                      Dec 19 2012, 10:12 am

                                           In the                             CLERK
                             Indiana Supreme Court
                                                                            of the supreme court,
                                                                            court of appeals and
                                                                                   tax court



                            _________________________________

                                    No. 45S04-1212-CR-687
JOHN KIMBROUGH, III,
                                                          Appellant (Defendant below),

                                              v.

STATE OF INDIANA,
                                                      Appellee (Plaintiff below).
                            _________________________________

                   Appeal from the Lake Superior Court, No. 45G04-1011-FA-48
                             The Honorable Kathleen Sullivan, Judge
                             _________________________________

      On Petition To Transfer from the Indiana Court of Appeals, No. 45A04-1106-CR-328
                           _________________________________


                                      December 19, 2012


Rucker, Justice.
       Defendant John W. Kimbrough was convicted of multiple counts of child molesting and
sentenced to an aggregate term of eighty years. Concluding the trial court abused its sentencing
discretion the Court of Appeals remanded this cause with instructions to impose an aggregate
term of forty years. We grant transfer and affirm the judgment of the trial court.


                                 Facts and Procedural History


       The facts most favorable to the verdicts follow. Mother and Kimbrough began dating in
January 2009. Later that summer, Mother introduced Kimbrough to her children, including her
daughters, J.L. born January 2003 and A.D. born July 2004. The couple and children began to
function as a family, even staying at hotels together to allow the children to swim in the hotel
pools. Kimbrough often drove the girls to school and helped with their homework. In the spring
of 2010, the relationship ended. Nonetheless Mother continued to allow Kimbrough to take the
children to school because they loved Kimbrough and Mother trusted him.


       The evidence showed that in October 2010, Mother observed that J.L. “seemed as if she
was hiding something” or “as if she was scared.” Tr. at 105. A.D. reluctantly told Mother that
her vagina hurt and the girls eventually stated that Kimbrough had touched them both
inappropriately. On October 30, 2010, law enforcement was contacted. That same day, both
girls were taken to the emergency room of the local hospital where a physician—Dr. Kathryn
Watts—examined each child. Later that same evening Kimbrough was arrested. On November
5, 2010, the State charged Kimbrough with four counts of child molesting as Class A felonies
and two counts of child molesting as Class C felonies.


       A jury trial began on May 5, 2011, during which both A.D. and J.L. testified regarding
specific encounters with Kimbrough. A.D. testified that she had a front and a back private part
and said that she called her private part a “cootie cat” but she didn’t have a name for
Kimbrough’s private part.     Tr. at 178. A.D. testified that while they stayed at the hotels
Kimbrough stuck his private part in her front cootie cat and her backside and he would lick her
cootie cat. She later detailed that Kimbrough put his private part in her cootie cat while they
were present in the basement of Kimbrough’s home. A.D. said that when Kimbrough touched



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her, she told Kimbrough to stop and he responded, “No.” Tr. at 204. A.D. also testified that her
sister was always with her when these acts occurred and that she saw Kimbrough stick his
private part into her sister’s cootie cat as well.


          J.L. testified that Kimbrough touched her in her private part and in the back with his
private part more than once. She also said that he put his finger in her private part and he put his
private part in her private part. She identified the female pubic area from sketches as the female
private part and identified a drawing that she made, which she characterized as a picture of
Kimbrough’s private part. J.L. testified that these touchings occurred at the hotel and in the
basement of Kimbrough’s home.


          Dr. Watts also testified at trial noting that during her examination of the two girls she
found a small break in J.L.’s hymen, which may have resulted from sexual assault. Dr. Watts
further explained that she had discovered redness around A.D.’s vaginal openings and
approximately a one-centimeter tear in A.D.’s hymen. Dr. Watts explained that such tears are
not unusual but these types of openings may result from sexual abuse. Dr. Watts also stated that
penetration may cause redness around the vaginal openings. In addition, Dr. Watts testified as to
the composition of the female sex organ. According to Dr. Watts:

                 [t]he female sex organ is many parts that we would consider. Goes
                 all the way from the outer labia. In the vaginal lips is what . . .
                 people would call them in the lay terms all the way up into the
                 uterus. So the vaginal vault, the clitoris. It is all that area, outside
                 and internal.

Tr. at 310. She also testified that “[t]he female organs make up the entire female genitalia.” Tr.
at 310.


          During final instructions the trial court advised the jury: “‘[f]emale sex organ’ includes
any part of the female sex organ, including the vaginal vault, labia and[/]or the external
genitalia.” App. at 72. At the conclusion of a four-day trial, the jury found Kimbrough guilty as
charged on all counts. Apparently due to double jeopardy concerns the trial court merged the
Class C felonies into the Class A felonies and entered judgments of conviction on the Class A



                                                     3
felonies only. Running some of the sentences concurrently and others consecutively, the trial
court sentenced Kimbrough to an aggregate term of eighty years. Kimbrough appealed raising
the following rephrased issues: (1) was the evidence sufficient to sustain the convictions, (2) did
the trial court err in instructing the jury on the definition of female sex organ, and (3) did the trial
court abuse its discretion in sentencing Kimbrough.


       In an unpublished memorandum decision, the Court of Appeals affirmed Kimbrough’s
convictions.   However, a divided panel concluded the trial court abused its discretion in
sentencing Kimbrough and remanded this cause to the trial court with instructions to impose an
aggregate term of forty years. See Kimbrough v. State, No. 45A04-1106-CR-328, slip op. at 10-
11 (Ind. Ct. App. March 21, 2012). We grant transfer thereby vacating the decision of the Court
of Appeals.    See Appellate Rule 58(A).         We address Kimbrough’s sentencing claim and
summarily affirm that portion of the Court of Appeals’ decision concerning Kimbrough’s
remaining claims. Additional facts are set forth below as necessary.


                                             Discussion


       In Anglemyer v. State this Court emphasized that subject to the review and revise
authority afforded by Indiana Appellate Rule 7(B) “sentencing decisions rest within the sound
discretion of the trial court and are reviewed on appeal only for an abuse of discretion.” 868
N.E.2d 482, 490 (Ind. 2007), (citation omitted), clarified on other grounds on reh’g 875 N.E.2d
218. The Court gave a few examples for ways in which a trial court may abuse its discretion: (1)
failing to enter a sentencing statement, (2) entering a sentencing statement that explains reasons
for imposing the sentence but the record does not support the reasons, (3) the sentencing
statement omits reasons that are clearly supported by the record and advanced for consideration,
or (4) the reasons given in the sentencing statement are improper as a matter of law. Anglemyer,
868 N.E.2d at 490-91. We noted, however, that because of the then new statutory scheme “the
trial court no longer has any obligation to ‘weigh’ aggravating and mitigating factors against
each other when imposing a sentence” and thus “a trial court can not now be said to have abused
its discretion in failing to ‘properly weigh’ such factors.” Id. at 491. The Court continued, “this
is so because once the trial court has entered a sentencing statement, which may or may not



                                                   4
include the existence of aggravating and mitigating factors, it may then ‘impose any sentence
that is . . . authorized by statute; and . . . permissible under the Constitution of the State of
Indiana.’” Id. at 491 (quoting I.C. § 35-38-1-7.1(d)).


       In this case, on appeal Kimbrough argued the trial court abused its discretion in
sentencing him because (1) the trial court considered the age of the victims even though an
element of the offense was that the victims were under the age of fourteen, and (2) the trial court
considered that the offenses were committed on multiple occasions.             On this latter point
Kimbrough contends there was no evidence to support this factor. Citing his lack of criminal
history Kimbrough requested that the reviewing court “recognize that his mitigating
circumstances outweighed aggravating ones and remand with instructions to enter a lesser
sentence.” Br. of Appellant at 14.


       Addressing Kimbrough’s sentencing claim the Court of Appeals correctly noted that even
where the age of the victim is an element of the offense, the very young age of a child can
support an enhanced sentence as a particularized circumstance of the crime. See Buchanan v.
State, 767 N.E.2d 967, 971 (Ind. 2002) (finding it proper for a trial court to rely upon the age of a
victim of child molesting when the trial court noted that victim was of particularly “tender
years”). Here the trial court noted the victims were approximately five and seven years of age
when the molestations first began to occur. The Court of Appeals also correctly pointed out that
the evidence supported the conclusion that the molestations occurred over a nearly two-year
period between January 2009 and October 2010.            In sum the Court of Appeals correctly
concluded that the trial court did not abuse its discretion in the finding of aggravating factors.
Thus, in Anglemyer terms, the trial court entered a reasonably detailed sentencing statement that
explained the trial court’s reasons for imposing the sentence and the record supported those
reasons. See Anglemyer 868 N.E.2d at 490. However, asserting a “duty . . . to ‘correct
sentencing errors, sua sponte, if necessary,’” Kimbrough, No. 45A04-1106-CR-328, slip op. at
10 (quoting Comer v. State, 839 N.E.2d 721, 726 (Ind. Ct. App. 2005) (noting trial court abused
its sentencing discretion by relying on an aggravating factor not supported by the record)), and
observing that lack of criminal history is a substantial mitigating factor, the Court of Appeals
majority determined that the trial court abused its discretion by imposing an eighty-year



                                                 5
sentence. Although declaring that it was “[f]ocusing on the appropriateness of the sentence and
not the weight given to individual aggravating or mitigating factors,” Kimbrough, No. 45A04-
1106-CR-328, slip op. at 10, the majority nonetheless concluded “the existence of this substantial
mitigating factor” justified a forty-year aggregate sentence and remanded this cause to the trial
court “to enter an order imposing the sentence outlined above.” Id.


       We disagree with our colleagues for several reasons. First, it is certainly true that a trial
court may abuse its discretion where the sentencing statement omits reasons that are clearly
supported by the record and advanced for consideration. See Anglemyer, 868 N.E.2d at 490-91.
But in this case the trial court’s sentencing statement did not omit consideration of Kimbrough’s
lack of a criminal history. Instead the statement specifically noted as a mitigating factor that
Kimbrough “has no history of delinquency or criminal activity.” App. at 94. Thus, even
assuming without deciding that in this post-Anglemyer era appellate courts have a “duty . . . to
correct sentencing errors, sua sponte,” Comer, 839 N.E. 2d at 726, we fail to see how the
sentence here was erroneous on grounds that the trial court omitted a reason supported by the
record. Second, by describing Kimbrough’s lack of criminal history as a “substantial mitigating
factor,” and remanding this case with instructions to impose a reduced sentence, the Court of
Appeals majority implicitly suggested the trial court should have given greater weight to this
factor. But Anglemyer makes clear that when imposing a sentence a trial court “no longer has
any obligation to ‘weigh’ aggravating and mitigating factors against each other” and thus “a trial
court can not now be said to have abused its discretion in failing to ‘properly weigh’ such
factors.” Anglemyer, 868 N.E.2d at 491. Here, the trial court did in fact weigh aggravating and
mitigating factors giving more weight to three aggravators than the sole mitigator. And the trial
court cannot be said to have abused its discretion in so doing. See id. Thus on this ground the
trial court also did not abuse its discretion in imposing Kimbrough’s sentence.


       This brings us to the Court of Appeals’ declaration that it was “focusing on the
appropriateness of the sentence.” Although not cited by the majority, this language implicates
Indiana Appellate Rule (7)(B) which provides “[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.” Even



                                                  6
though a trial court may have acted within its lawful discretion in determining a sentence, Article
7, Sections 4 and 6 of the Indiana Constitution “authorize[ ] independent appellate review and
revision of a sentence imposed by the trial court.” Buchanan, 767 N.E.2d at 972. This appellate
authority is implemented through Rule (7)(B). First, we agree with Judge Mathias who in
dissent noted “a request for sentence revision under Appellate Rule (7)(B) is not truly a claim of
sentencing error. Rather, it is a request for [the] court to exercise its constitutional authority to
revise a lawfully entered sentence.” Kimbrough, No. 45A04-1106-CR-328, slip op. at 14 n.3
(citation omitted). Further, and importantly, in his brief before the Court of Appeals Kimbrough
did not seek sentencing revision, did not cite to or rely upon Appellate Rule (7)(B) and thus said
nothing about the nature of the offenses or his character. As we have declared “a defendant must
persuade the appellate court that his or her sentence has met this inappropriateness standard of
review.” Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Here Kimbrough made no
attempt to do so. “When a defendant requests appellate review and revision of a criminal
sentence pursuant to authority derived from Article 7, Sections 4 or 6 of the Indiana Constitution
. . . the reviewing court is presented with the issue of whether to affirm, reduce, or increase the
sentence.”    McCullough v. State, 900 N.E.2d 745, 750 (Ind. 2009) (emphasis added).
Kimbrough made no such request and therefore there was no issue in this regard to be considered
by a reviewing court.


       In summary, because the trial court correctly entered its sentencing statement in
compliance with the dictates of Anglemyer and because the “appropriateness” of a sentence has
no bearing on whether a sentence is erroneous, the trial court did not abuse its discretion in
imposing Kimbrough’s sentence. Further, Kimbrough did not seek review and revision of his
sentence under Indiana Appellate Rule (7)(B).1




1
  We note in passing that in his dissent Judge Mathias also observed that Kimbrough advanced no
argument under Appellate Rule 7(B) and thus he would not have reached the issue of the appropriateness
of Kimbrough’s sentence. Nonetheless, Judge Mathias undertook a thorough analysis of the nature of
Kimbrough’s offenses and his character and concluded that Kimbrough’s sentence was not inappropriate.
See Kimbrough, No. 45A04-1106-CR-328, slip op. at 13, 15-17.


                                                  7
                                          Conclusion


       We affirm the judgment of the trial court.


Dickson, C.J., and David, Massa and Rush, JJ., concur.




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