MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                         FILED
this Memorandum Decision shall not be                               May 23 2016, 8:33 am

regarded as precedent or cited before any                                CLERK
                                                                     Indiana Supreme Court
court except for the purpose of establishing                            Court of Appeals
                                                                          and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Victoria L. Bailey                                      Gregory F. Zoeller
Marion County Public Defender                           Attorney General
Indianapolis, Indiana
                                                        Jesse R. Drum
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Larry Fulbright,                                        May 23, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1407-CR-449
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Lisa Borges, Judge
Appellee-Plaintiff                                      Trial Court Cause No.
                                                        49G04-1106-FA-4640



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-449| May 23, 2016            Page 1 of 6
                                           Case Summary
[1]   On his twenty-seventh birthday, Larry Fulbright, high on heroin, put his penis

      in his three-year-old niece’s mouth while his four-year-old nephew looked on.

      He pled guilty to Class A felony child molesting and Class D felony conducting

      a performance harmful to minors and was sentenced to an aggregate term of

      thirty years. Fulbright appeals, arguing that his advisory sentence for child-

      molesting is inappropriate in light of the nature of the offense and his character.

      Because he has failed to persuade us that his sentence is inappropriate, we

      affirm.


                               Facts and Procedural History
[2]   In June 2011, Fulbright was living with his brother, K.F., who had two

      children, a three-year-old girl, Ky.F., and a four-year-old boy, Ko.F. On June

      29, K.F. sent the children into Fulbright’s room to pick up their toys while he

      went into the bathroom. Fulbright, who was high on heroin at the time,

      followed the children into his room, pulled down his shorts, and put his penis in

      Ky.F.’s mouth while Ko.F. watched. When K.F. came out of the bathroom, he

      found Fulbright sitting on the bed with his shorts around his ankles. The

      children immediately told their father what Fulbright had done.

[3]   K.F. reported the molesting to the Indianapolis Metropolitan Police

      Department. During a brief investigation, Fulbright admitted putting his penis

      in his three-year-old niece’s mouth. The State charged him with Class A felony

      child molesting and Class D felony conducting a performance harmful to

      Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-449| May 23, 2016   Page 2 of 6
      minors. He pled guilty to both counts without a plea agreement, and the trial

      court held a sentencing hearing.

[4]   At the sentencing hearing, Fulbright’s history of autism and drug abuse was

      presented. Fulbright was diagnosed with autism when he was in the first grade

      and placed in special-education classes. He also developed a significant drug

      habit while in school and, at the time of these crimes, was using up to two

      grams of heroin a day as well as regularly using marijuana. Despite his autism

      and addictions, Fulbright graduated from high school with a 3.5 grade point

      average and held a job that paid $800 per week.


[5]   At the conclusion of the sentencing hearing, the court found the following

      mitigating factors: Fulbright had no criminal history; he accepted responsibility

      by pleading guilty; and he expressed remorse. And the court found multiple

      aggravating factors: the victims were under twelve years old; the effect on the

      victims was lasting and profound; Fulbright was in a position of trust with the

      victims; and he was using two grams of heroin a day. The court sentenced

      Fulbright to concurrent terms of thirty years for child molesting and 910 days

      for conducting a performance harmful to minors.

[6]   Fulbright now appeals his sentence.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-449| May 23, 2016   Page 3 of 6
                                        Discussion and Decision
[7]   Fulbright contends that his thirty-year sentence for child molesting is

      inappropriate and asks us to revise it to twenty years.1 Appellant’s Br. p. 13-14.

      Indiana Appellate Rule 7(B) provides that this 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.” King v. State, 894 N.E.2d 265, 267 (Ind. Ct.

      App. 2008). On appeal, the “defendant must persuade the appellate court that

      his or her sentence has met the inappropriateness standard of review.” Rice v.

      State, 6 N.E.3d 940, 946 (Ind. 2014).


[8]   In evaluating “the nature of the offense, the advisory sentence is the starting

      point the Legislature has selected as an appropriate sentence for the crime

      committed.” Abbott v. State, 961 N.E.2d 1016, 1019 (Ind. 2012). Here, the trial

      court sentenced Fulbright to the advisory term of thirty years for Class A felony

      child molesting. See Ind. Code § 35-50-2-4. As Fulbright concedes, the nature

      of his offense is “serious.” Appellant’s Br. p. 9. He “put his penis in his [three]-

      year[-]old niece’s mouth while his [four]-year[-]old nephew watched.” Id. In

      addition, Fulbright violated a position of trust.

[9]   Nevertheless, Fulbright argues that his sentence should be reduced below the

      advisory term because this was an isolated incident and he did not physically




      1
          Fulbright does not argue that his 910-day sentence for the Class D felony is inappropriate.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-449| May 23, 2016                 Page 4 of 6
       injure his niece or nephew. Fulbright relies on Sanchez v. State, 938 N.E.2d 720

       (Ind. 2010), for support. In Sanchez, the Indiana Supreme Court concluded that

       Sanchez’s sentence, which included enhanced and consecutive terms, was

       inappropriate because he did not use force or physically injure the victims, and

       the incidents were isolated, rather than repeated, behavior. Unlike Sanchez,

       Fulbright was sentenced to the advisory term. Notably, our Supreme Court did

       not revise Sanchez’s sentence for any count to below the advisory term.

       Therefore, we are not persuaded that the lack of physical injury or the fact that

       this appears to be an isolated incident make the advisory term inappropriate in

       this case. The nature of the offense supports Fulbright’s sentence.


[10]   Turning to character, we examine “the offender’s life and conduct.”

       Washington v. State, 940 N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied.

       Fulbright argues that he should be given a lesser sentence because he accepted

       responsibility for what he did and expressed remorse, he has no criminal

       history, and he is autistic. While we agree that Fulbright accepted

       responsibility and expressed remorse for his actions, we also note that there

       were witnesses to the molesting. Moreover, even though this is his first

       conviction, Fulbright admitted to using illegal drugs daily.

[11]   As to Fulbright’s argument that his autism makes his sentence inappropriate,

       there are several considerations that bear on the weight, if any, which should be

       given to mental disorders in sentencing: (1) the extent of the defendant’s

       inability to control his or her behavior due to the disorder or impairment; (2)

       overall limitations on functioning; (3) the duration of the mental disorder; and

       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-449| May 23, 2016   Page 5 of 6
       (4) the extent of any nexus between the disorder or impairment and the

       commission of the crime. Id. at 1223 (citing Krempetz v. State, 872 N.E.2d 605,

       615 (Ind. 2007)). We note that autism has not prevented Fulbright from

       carrying out other basic obligations—he graduated from high school and held a

       well-paying job for five years. Fulbright himself acknowledges that his autism

       “does not excuse his criminal conduct.” Appellant’s Br. p. 13. The record

       indicates that Fulbright was capable of controlling his behavior and he did not

       have significant limitations on his functioning, and he has not presented

       evidence of a nexus between his autism and child molesting. Therefore, we

       accord Fulbright’s condition little weight in our analysis of his character.

[12]   Fulbright has not persuaded us that his child-molesting sentence is

       inappropriate in light of the nature of the offense or his character, and thus we

       decline to revise it under Indiana Appellate Rule 7(B).

[13]   Affirmed.

       Barnes, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-449| May 23, 2016   Page 6 of 6
