Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

ANTHONY C. LAWRENCE                              GREGORY F. ZOELLER
Anderson, Indiana                                Attorney General of Indiana

                                                 J.T. WHITEHEAD
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana
                                                                               FILED
                                                                           Jun 20 2012, 8:53 am

                              IN THE
                                                                                  CLERK
                    COURT OF APPEALS OF INDIANA                                 of the supreme court,
                                                                                court of appeals and
                                                                                       tax court




RONNIE D. INABNITT,                              )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 33A01-1110-CR-517
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE HENRY SUPERIOR COURT
                        The Honorable E. Edward Dunsmore, Judge
                              Cause No. 33D01-1005-FA-6



                                       June 20, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          Ronnie D. Inabnitt appeals his two convictions of class A felony Child Molesting1

and the seventy-year sentence imposed thereon. Specifically, Inabnitt argues that the trial

court abused its discretion in admitting his police statement into evidence. Inabnitt also

argues that the trial court erred in sentencing him because it relied on improper

aggravating circumstances in imposing consecutive sentences and that his sentence was

inappropriate given the nature of the offenses, and his character. Inabnitt requests that we

find that the trial court erred in admitting the statement and remand the case for a new

trial that excludes this evidence or, in the alternative, that we revise his sentence to an

aggregate term of thirty-five years.

          Concluding that the trial court did not err in admitting the police statement into

evidence but that Inabnitt’s sentence is inappropriate, we affirm in part the trial court’s

judgment and revise Inabnitt’s sentence to thirty-five years.

                                           FACTS

          Inabnitt and Crystal Reece were married in August 1995. Their daughter, K.I.,

was born in October 1998. In the summer of 2009, when K.I. was ten years old, Reece

was in the hospital for a week because of a serious infection. Thirty-six-year-old Inabnitt

was at home with K.I.         One night while Inabnitt was watching pornography on a

computer, K.I. walked into the room. Inabnitt asked her to touch his penis. Inabnitt then

placed his penis in K.I.’s mouth and subsequently had sexual intercourse with her.


1
    Ind. Code § 35-42-4-3.


                                              2
       K.I. wrote a note to her mother explaining what her father had done to her and

placed it in her jewelry box for Reece to discover. K.I. knew that her mother would find

the note because Reece frequently borrowed jewelry from K.I. Reece found the note

approximately one month after she was released from the hospital. When Reece asked

K.I. if what she had written was true, K.I. confirmed that it was. Reece then confronted

Inabnitt, who admitted what he had done.

       Reece did not immediately contact the police department or leave Inabnitt because

she was scared that K.I. might be taken away from her. Reece eventually left Inabnitt in

March or April 2010. Also at that time, Reece told her brother-in-law what had happened

to K.I. and asked him to talk to her mother, Patricia Baesman, about it. When Baesman

learned what had happened, she immediately contacted child protective services and took

K.I. to the Newcastle Police Department. K.I. spoke with Detective Andrew Hood, who

was assigned to her case. Detective Hood also spoke with Reece.

       On May 9, 2010, Detective Hood dispatched two officers to Inabnitt’s residence

on a “welfare check” call. Tr. p. 458. The officers asked Inabnitt if he would be willing

to come to the station to speak with a detective, and Inabnitt responded that he had no

problem speaking to one of the detectives. One of the officers transported Inabnitt back

to the police station. Inabnitt was not under arrest and he was not handcuffed. The

officer drove Inabnitt in a marked police car, but the car did not have back seat locks or a

glass screen between the front and back seats.



                                             3
       When they arrived at the station, the officer introduced Inabnitt to Detective Hood.

The detective retrieved some work supplies from his office and walked back to an

interview room with Inabnitt. The detective did not lock the door to the interview room,

and Inabnitt was free to leave whenever he wished. Detective Hood asked Inabnitt if he

wanted to speak to him. Inabnitt initially responded, “I don’t know – No.” State’s

Exhibit 4. Inabnitt subsequently agreed to talk to the detective. Detective Hood then

read Inabnitt his Miranda rights, and Inabnitt signed a waiver of rights form indicating

that he understood those rights and was willing to make a statement. The detective also

told Inabnitt that the interview was being recorded.

       Inabnitt initially denied touching K.I. He later asked what was going to happen to

him that day. Detective Hood explained that Inabnitt would be able to return home. The

detective further explained that if a warrant was issued, the detective would contact

Inabnitt and give him enough time to get the money together so that he could bond out of

jail. Inabnitt eventually admitted that he had had sexual intercourse with his daughter.

At the conclusion of the interview, a police officer gave Inabnitt a ride home.

       The State subsequently charged Inabnitt with two counts of class A felony child

molesting, two counts of class B felony incest, and one count of class C felony child

molesting. While Inabnitt was in jail awaiting trial, he wrote Reece a letter stating that if

she and K.I. would help him get out of jail, he would make sure the family had its own

home in one year. He also promised to pay all of the utilities and make sure that Reece

always had a car to drive. Inabnitt further promised to take on two or three jobs to make

                                             4
sure everyone’s dreams came true. Inabnitt explained that if K.I. would help him, he

would owe her his life. He asked K.I. to write a letter explaining that she made up the

molestation allegations. Reece was to pretend she found the letter in K.I.’s sock drawer,

and send it to Inabnitt’s lawyer and the trial court judge. Inabnitt further explained that

the judge or prosecutor would want to meet with K.I. to be sure she wrote the letter.

Although the judge or prosecutor might intimidate K.I., Inabnitt explained that there was

nothing either one of them could do to K.I. for changing her story. According to Inabnitt,

the whole case was based on K.I.’s statement, and if she changed her story, the case was

over. He also told Reece to tell K.I. that if he was convicted of the charges, Reece might

be charged with neglect. Lastly, Inabnitt enclosed a sample letter of the one he asked K.I.

to write.

       Before trial, Inabnitt moved to suppress his statement to Detective Hood. Inabnitt

contended that the interview was a custodial interrogation and that he invoked his right to

remain silent at the beginning of the interview. The trial court denied the motion, and

Inabnitt’s statement was admitted into evidence at trial. Also, at trial, K.I. testified that

Inabnitt asked her to massage and suck his penis. Inabnitt’s penis was soft when K.I.

began. However, after K.I. put her hands and mouth on Inabnitt’s penis, it became harder

and bigger. Inabnitt then placed his penis in K.I.’s vagina and moved it around inside

her. K.I. further explained that white fluid with a smell came out of Inabnitt’s penis.

Reece testified that Inabnitt admitted to her that he had had sexual intercourse with K.I.

Reece further testified that K.I. had been in counseling for over a year. She also sleeps

                                             5
with a light on, locks the bedroom door, and will not let anyone in her room. She is very

emotional and carries around a “huge amount of rage and anger.” Tr. p. 749. Her fear is

that people at school will find out what happened. Family members do not mention

Inabnitt’s name when they are at home. The letter that Inabnitt sent Reece from jail was

also admitted into evidence.

      A jury convicted Inabnitt of all five counts. The trial court vacated the incest and

class C felony child molesting convictions on double jeopardy grounds. In sentencing

Inabnitt on the remaining two class A felony convictions, the trial court found the

following nine aggravating circumstances: 1) Inabnitt’s criminal history, which included

one felony conviction, a class A misdemeanor conviction for domestic battery, and other

misdemeanor convictions; 2) the victim was ten years old; 3) the harm suffered by the

victim was significant and greater than the elements necessary to prove the offense as

evidenced by the victim’s emotional and personal harm that has required professional

counseling and would continue to require professional counseling to acquire skills to

recover and experience emotional and mental healing on a personal basis; 4) Inabnitt, as

K.I.’s biological father, violated a position of trust with the victim; 5) the offenses

occurred while K.I.’s mother was hospitalized, leaving aid for the victim unavailable; 6)

Inabnitt attempted to persuade Reece and the victim to recant their pre-trial statements

and provided them with hand-written templates from jail to assist the family in

accomplishing this goal; 7) there are no grounds excusing or justifying the crimes; 8)

Inabnitt’s character and attitude indicate he is likely to offend again; and 9) although

                                           6
imprisonment would result in a hardship to Inabnitt’s dependents, not imprisoning

Inabnitt would result in a greater hardship.

       In addition, the trial court found the following mitigating factors: 1) Inabnitt

cooperated by giving a statement to police admitting the crimes; 2) Inabnitt had

undocumented substance abuse problems; and 3) Inabnitt had a troubled childhood.

After reviewing the aggravating and mitigating factors, the trial court sentenced Inabnitt

to thirty-five years for each of the two convictions for class A child molesting. The court

further ordered the sentences to run consecutively, for an aggregate sentence of seventy

years. Inabnitt appeals his conviction and sentence.

                             DISCUSSION AND DECISION

                                    I. Police Statement

       Inabnitt first argues that the trial court erred in admitting his police statement into

evidence.   Specifically, he contends that when Detective Hood asked Inabnitt if he

wanted to speak to the detective, Inabnitt’s initial response, “I don’t know – No,”

constituted an invocation of his right to remain silent during custodial interrogation

requiring further questioning to cease pursuant to Miranda v. Arizona, 384 U.S. 436

(1966). The State responds that Inabnitt was not in custody at the time he responded to

the detective’s question and therefore Miranda does not apply.

       At the outset, we note that although Inabnitt filed a motion to suppress the

challenged evidence, he proceeded to trial after the motion was denied. Thus, the sole

claim now is whether the trial court abused its discretion in admitting the statement into

                                               7
evidence. See Chiszar v. State, 936 N.E.2d 816, 824 (Ind. Ct. App. 2010), trans. denied.

An abuse of discretion occurs if a decision is clearly against the logic and effect of the

facts and circumstances before the court. Id.

       The requirements of Miranda do not apply beyond coercive custodial

interrogation. Zook v. State, 513 N.E.2d 1217, 1221 (Ind. 1987). In determining whether

a person was in custody, the ultimate inquiry is simply whether there is a formal arrest or

restraint on freedom of movement of the degree associated with a formal arrest. Luna v.

State, 788 N.E.2d 832, 833 (Ind. 2003). We make this determination by examining

whether a reasonable person in similar circumstances would believe he was not free to

leave. Id. We examine all the circumstances surrounding an interrogation, and are

concerned with objective circumstances, not upon the subjective views of the

interrogating officers or the subject being questioned. Id. In order to conclude that the

defendant was indeed seized at the time of the statement, we must find that the officer by

means of physical force or show of authority, in some way restrained the liberty of a

citizen. Id.

       Here, Inabnitt expressly and voluntarily agreed to accompany the officers to the

police station to speak with a detective.       Inabnitt rode unrestrained in the officer’s

vehicle. Inabnitt waited for the detective to retrieve some work supplies from his office

and then walked back to an interview room with him. At no point was Inabnitt searched

or handcuffed, and Detective Hood did not lock the door to the interview room. Based on

the foregoing, we conclude that a reasonable person in Inabnitt’s position would not have

                                            8
believed that his liberty was being restrained or that he was in police custody. Miranda

therefore did not apply, and the trial court did not abuse its discretion in admitting

Inabnitt’s statement into evidence.2

                                              II. Sentence

        Inabnitt also argues that the trial court erred in sentencing him. He specifically

argues that the trial court relied on improper aggravating factors in imposing consecutive

sentences and that his seventy-year sentence is in appropriate in light of the nature of the

offense, and his character. We address each of his contentions in turn.

        Sentencing decisions rest within the sound discretion of the trial court. Anglemyer

v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. With the

exception of our authority to review sentences under Indiana Appellate Rule 7(B), as long

as a defendant’s sentence is within the statutory range, we review it only for an abuse of

discretion. Id. Circumstances under which a trial court may be found to have abused its

discretion include: 1) failing to enter a sentencing statement, 2) entering a sentencing

statement that includes reasons not supported by the record, 3) entering a sentencing

statement that omits reasons clearly supported by the record, or 4) entering a sentencing

statement that includes reasons that are improper as a matter of law. Id. at 490-91.

Although the reasons or omission of reasons given for choosing a sentence are

2
  As an aside, even if the trial court had erred, any such error would have been harmless. Error in the
admission of evidence is harmless if the improperly admitted evidence is merely cumulative of other
properly admitted evidence. Martin v. State, 736 N.E.2d 1213, 1219 (Ind. 2000). Here, K.I. testified that
her father placed his penis in her mouth and vagina. Reece testified that Inabnitt admitted to her what he
had done to K.I., and we agree with the State that Inabnitt’s jailhouse letter provided further evidence of
his guilt. Inabnitt’s statement is merely cumulative of this evidence.
                                                    9
reviewable on appeal for an abuse of discretion, the weight given to those reasons, i.e. to

particular aggravators or mitigators, is not subject to appellate review. Id. at 491. We

also note that a single aggravating factor may be sufficient to sustain an enhanced

sentence, including consecutive sentences. Owens v. State, 916 N.E.2d 913, 917 (Ind. Ct.

App. 2009).

       As a preliminary matter, we note that Inabnitt’s challenges to the weight assigned

to the aggravating factors are not viable arguments on appeal. See Anglemyer, 868

N.E.2d at 491. Inabnitt also challenges the validity of several of the aggravating factors.

For example, he first contends that the victim’s age was not of tender years and should

not have been considered an aggravating factor.

       In some instances, the “tender age” of a victim in a child molesting case may be

considered an aggravating factor as a particularized circumstance of the crime. Edrington

v. State, 909 N.E.2d 1093, 1097 (Ind. Ct. App. 2009). For example, in Hamilton v. State,

955 N.E.2d 723, 726 (Ind. 2011), where the victim was nine years old, our Supreme

Court noted that the victim’s age suggests a sliding scale in sentencing, as younger ages

of victims tend to support harsher sentences. Here, the victim was only ten years old.

The trial court did not abuse its discretion in considering the victim’s age as an

aggravating factor.

       Inabnitt also argues that the trial court erred in finding as an aggravating factor

that the harm suffered by K.I. was significant and greater than the elements necessary to

prove the offense as evidenced by the victim’s emotional and personal harm that has

                                            10
required professional counseling and would continue to require professional counseling.

Inabnitt is correct that the emotional and psychological effects of a crime are

inappropriate aggravating factors unless the impact, harm, or trauma is greater than that

usually associated with the crime. See Thompson v. State, 793 N.E.2d 1046, 1053 (Ind.

Ct. App. 2003).     Here, however, the trial court’s sentencing statement and Reece’s

testimony supports this aggravating factor. Specifically, Reece testified that K.I. has

been in counseling for a year. She still sleeps with a light on, locks the door, and does

not want anyone coming into her room because she does not feel safe and secure.

According to Reece, K.I. still carries a huge amount of anger and rage. She has frequent

outbreaks, and is afraid that people at school will find out what happened to her. Based

on the foregoing, the evidence supports a finding that the impact, harm, or trauma to K.I.

is greater than that usually associated with the crime.

       Lastly, Inabnitt argues that the trial court erred in considering as an aggravating

factor that Inabnitt’s character and attitude indicated that he was likely to offend again.

Specifically, according to Inabnitt, “there is little in the record to support the aggravating

factor that he is likely to commit another crime.” Appellant’s Br. p. 25. However, our

review of the record reveals that Inabnitt has a prior criminal history. In addition, he

encouraged his wife and daughter to perjure themselves so that the charges against him

would be dropped. He even enclosed a sample letter of the one he asked K.I. to write

recanting her allegations. This evidence clearly supports the trial court’s aggravating



                                             11
factor that Inabnitt’s character and attitude indicated that he was likely to offend again.

The trial court did not err in considering this aggravating factor.

       Inabnitt also contends that his sentence is inappropriate in light of the nature of the

offenses, and his character. Indiana Appellate Rule7(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. The defendant bears the burden of persuading us that the

sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

       The Indiana Supreme Court has repeatedly revised a defendant’s aggregate

sentence stemming from multiple episodes of child molesting of a single victim and

ordered the sentences on each count to run concurrently. For example, in Monroe v.

State, 886 N.E.2d 578 (Ind. 2008), Monroe was convicted of five counts of class A felony

child molesting. The trial court sentenced him to twenty-two years on each count with

two years suspended to probation and ordered the sentences to be served consecutively

for an aggregate sentence of 100 years.    In considering the nature of the offense on

appeal, the Indiana Supreme Court noted that Monroe was in a position of trust with his

victim and molested the child repeatedly for over two years. Id. at 580. However, the

Court also observed that the five counts were identical and involved the same child. Id.

Regarding Monroe’s character, the Court noted that although he had a prior criminal

history, all of his convictions were driving related, so his criminal history did not justify

the imposition of consecutive sentences. Id. Based on these facts and circumstances, the

                                             12
Supreme Court concluded that the nature of the offenses and Monroe’s character

warranted enhanced, but not consecutive, sentences.      Id. at 581. The Supreme Court

revised Monroe’s sentence to a maximum fifty-year term for each of the five counts, but

ordered that they be served concurrently. Id.

      Similarly, in Harris v. State, 897 N.E.2d 927 (Ind. 2008), Harris was convicted of

two counts of class A felony child molesting and sentenced to consecutive fifty-year

terms. On appeal, the Indiana Supreme Court noted that Harris had occupied a position

of trust with the eleven-year-old victim and had committed multiple uncharged acts of

sexual misconduct that occurred over a period of time. However, as in Monroe, the Court

observed that the two counts of child molesting were identical and involved sexual

intercourse with the same child.     Although Harris had a prior criminal record, the

Supreme Court emphasized that he had no prior sex offenses in his record and concluded

that his criminal history was not a significant aggravator. Id. at 930. Based on the facts

and circumstances of the case, the Supreme Court held that consecutive sentences were

not warranted and revised Harris’ sentence to two concurrent fifty-year terms. Id.

      In Rivers v. State, 915 N.E.2d 141 (Ind. 2009), Rivers was convicted of two

counts of class A felony child molesting for molesting his seven- or eight-year-old niece

on two occasions. The trial court sentenced him to consecutive thirty-year terms. In

examining his character on appeal, the Indiana Supreme Court noted that Rivers had no

criminal history, maintained steady employment, and served as a father figure to the

victim for a number of years before committing his crimes. Id. at 143. Regarding the

                                           13
nature of the offenses, the Court observed that Rivers twice molested the victim in a

relatively short period of time and there was no other sexual misconduct on Rivers’s part.

Id. at 144. Based on these facts and circumstances, the Supreme Court concluded that

Rivers’s thirty-year sentences should run concurrently rather than consecutively. Id.

       More recently, in Pierce v. State, 949 N.E.2d 349 (Ind. 2011), Pierce was

convicted of three counts of class A felony child molesting and one count of class C

felony child molesting. The trial court sentenced Pierce to forty years for each of the

class A felony convictions and four years for the class C felony conviction and ordered

the sentences to run consecutively for a total aggregate sentence of 124 years. When

reviewing the nature of the nature of the offenses on appeal, our Supreme Court again

noted that three counts of class A felony child molesting were identical and involved the

same victim. Id. at 352. Regarding Pierce’s character, the Supreme Court noted that

Pierce’s prior class C felony child molesting conviction occurred eight years before the

instant offenses. Id. Based upon these facts and circumstances, the Supreme Court

concluded that four consecutive sentences were not justified and revised Pierce’s

sentence to eighty years. Id. at 353.

       Here, Inabnitt was convicted of two counts of class A felony child molesting and

was sentenced to thirty-five years for each conviction to be served consecutively, for an

aggregate sentence of seventy years. His two convictions stem from a single occurrence

of molestation in which Inabnitt initially placed his penis in his ten-year-old daughter’s

mouth and subsequently had sexual intercourse with her.         These acts are heinous.

                                           14
However, based on the similarities in the facts of this case and the facts of the cases

discussed above that were decided by our Supreme Court, we are constrained to find that

Inabnitt’s sentence is inappropriate in light of the nature of the offenses and the character

of the offender and to order the sentences to run concurrently. Accordingly, we order

Inabnitt to serve an aggregate sentence of thirty-five years in the Department of

Correction. See Laster v. State, 918 N.E.2d 428, 434-35 (Ind. Ct. App. 2009) (revising

consecutive advisory sentences to concurrent enhanced sentences where the defendant

committed multiple acts of molestation against one child).

       We affirm in part the judgment of the trial court and revise Inabnitt’s sentence to

thirty-five years.

KIRSCH, J., and BROWN, J., concur.




                                             15
