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:

WILLAM A. GRAY                                   GREGORY F. ZOELLER
New Albany, Indiana                              Attorney General of Indiana

                                                 JAMES B. MARTIN
                                                 Deputy Attorney General

                                                                               FILED
                                                 Indianapolis, Indiana

                                                                           Feb 08 2012, 9:56 am
                               IN THE
                    COURT OF APPEALS OF INDIANA                                    CLERK
                                                                                 of the supreme court,
                                                                                 court of appeals and
                                                                                        tax court




LESLIE E. FOREMAN,                               )
                                                 )
       Appellant- Defendant,                     )
                                                 )
              vs.                                )       No. 22A04-1108-CR-467
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee- Plaintiff,                      )


                     APPEAL FROM THE FLOYD SUPERIOR COURT
                          The Honorable Susan L. Orth, Judge
                            Cause No. 22D01-1104-FD-720




                                      February 8, 2012



               MEMORANDUM DECISION - NOT FOR PUBLICATION




ROBB, Chief Judge
                                 Case Summary and Issues

        Leslie E. Foreman pleaded guilty to child solicitation as a Class D felony and

indecent exposure as a Class A misdemeanor. The trial court sentenced him to three

years executed for child solicitation, consecutive to one year of supervised probation for

indecent exposure. He raises two issues, which we restate as whether the trial court

abused its discretion in finding that Foreman was in a position having the care, custody,

or control of the victim; and whether his sentence is inappropriate. Concluding that the

trial court did not abuse its discretion and his sentence is not inappropriate, we affirm.

                               Facts and Procedural History

        In March 2011, an Indiana mother and father discovered their seven-year-old

daughter‟s sexually inappropriate drawings. Their daughter explained her drawings by

describing what “Papa Wolf” showed her.           In an interview with police, the child

identified “Papa Wolf” as Foreman and told police that while visiting with Foreman, who

was a grandfather figure to the child, he showed her his penis, showed her a pornographic

magazine and movie, and masturbated in front of her. Appellant‟s Addendum to App. at

13. The child also reported that Foreman touched her vaginal area over her clothing.

        Foreman admitted to these actions and pleaded guilty to one count of child

solicitation as a Class D felony and one count of indecent exposure as a Class A

misdemeanor. At the close of the sentencing hearing, the trial court stated, in pertinent

part:

        I also, uh, find to be an aggravating factor subsection (A)(4)(8) [of Indiana
        Code section 35-38-1-7.1], that the Defendant in this case was in a position
        of having the care, custody and control of [the child]. Uh, that he was in
        the role of the grandfather figure. That the mother had testified here today
        that she trusted him with her life and more. Uh, and she did do that, she
                                              2
       trusted her [sic] with her own daughter‟s life and her daughter‟s well being.
       Uh, and Mr. Foreman, I find that you took advantage of this trust
       relationship to the detriment of a seven year old child. So I find that, uh,
       trust position to also be an aggravating factor here today.

Transcript at 22.

       The trial court also considered the child-victim‟s tender age to be an aggravating

factor, and found the following as mitigating factors: lack of criminal history, poor

health, admission of guilt, and a substantially law-abiding life. The trial court sentenced

Foreman to three years executed for child solicitation, consecutive to one year of

supervised probation for indecent exposure. Foreman now appeals his sentence.

                                 Discussion and Decision

                                 I. Abuse of Discretion

       A trial court may abuse its discretion by failing to enter a sentencing statement,

entering findings of aggravating and mitigating factors unsupported by the record,

omitting factors clearly supported by the record and advanced for consideration, or giving

reasons that are improper as a matter of law. Anglemyer v. State, 868 N.E.2d 482, 490-

91 (Ind. 2007), clarified on reh‟g. 875 N.E.2d 218 (2007).          “When one or more

aggravating circumstances cited by the trial court are invalid, the court on appeal must

decide whether the remaining circumstance or circumstances are sufficient to support the

sentence imposed.” Cotto v. State, 829 N.E.2d 520, 525 (Ind. 2005). If we cannot say

with confidence that the trial court would have imposed the same sentence without

considering the improper aggravating circumstance or circumstances, remand for

resentencing may be the appropriate remedy. Anglemyer, 868 N.E.2d at 491.




                                            3
       Foreman argues the trial court abused its discretion in relying on Foreman‟s

position having care, custody, and control of the child as an aggravating circumstance. In

support of this argument, Foreman refers us to the child‟s mother‟s statements that she

did not give permission for the child to stay alone with Foreman and that – so far as the

mother was aware – another adult was always present when the child was around

Foreman.

       A defendant‟s commission of an offense while he or she “was in a position having

care, custody, or control of the victim of the offense” is a valid aggravating circumstance.

Ind. Code § 35-38-1-7.1(a)(8). For this aggravating circumstance to apply, the statute

does not require a parent or guardian to give explicit consent for the defendant to be in a

position having care, custody, or control of the victim at the time the offense was

committed. Here, the child‟s mother turned the child over to another adult for the night,

with knowledge that Foreman might be present and have contact with the child.

Apparently this had occurred before with the mother‟s consent. On the date of the

offenses the child‟s mother expected Foreman to continue teaching the child about the

Native American community as he has done in the past. According to the mother,

Foreman and the child have also eaten dinner together, watched movies together, and

“spen[t] time together.” Tr. at 10. The mother testified that she knew Foreman had

contact with her child and that she trusted him with respect to her child. Id. This

evidence in the record supports the trial court‟s finding of Foreman‟s position having

care, custody, or control of the child as an aggravating factor.

       Although the child‟s mother did not expressly consent for the child to stay that

dreadful night with Foreman alone, she did turn her child over to another adult, who then
                                              4
turned the child over to Foreman. In other words, whether the child‟s mother was aware

or not, Foreman was placed in a position having care, custody, and control of the child.

       Further, Foreman‟s position of trust as an aggravating factor is not put into

question by the cases to which he refers us. Foreman first refers us to Tyler v. State, 903

N.E.2d 463 (Ind. 2009). In Tyler, our supreme court addressed this issue in the context

of determining whether the sentence was inappropriate – so its analysis is inapposite to

our discussion here. In addition to addressing a different legal issue, the facts of Tyler

are notably distinguishable. The supreme court concluded that the defendant was not in a

position of trust where the defendant did not seek opportunities to supervise the children

he molested or to establish a position of trust or confidence with them. Id. at 469. By

contrast, here the record reveals Foreman‟s regular contact with the child victim, and

unlike the defendant in Tyler, the record shows that Foreman did seek to establish a

position of trust with the child and her mother before he committed these offenses.

Foreman also refers us to Phelps v. State, 914 N.E.2d 283 (Ind. Ct. App. 2009), in which

we agreed with the State, which conceded on appeal that the defendant was not in a

position of control over the children he molested. Foreman‟s offenses do not at all

resemble the conduct of the defendant in Phelps, who assented to the explicit requests of

three teenage boys to show them a pornographic movie and to join them in masturbating.

       In any event, we may uphold a sentence where a single aggravating factor supports

it, so long as we can say with confidence that the trial court would have imposed the

same sentence without considering invalid aggravators. Anglemyer, 868 N.E.2d at 491.

Here the trial court validly identified the victim‟s tender age as an aggravating

circumstance for both counts. “[E]xtreme youth” can support an enhanced sentence even
                                            5
where the age of the victim is an element of the offense. Brown v. State, 760 N.E.2d 243,

246 (Ind. Ct. App. 2002), trans. denied. Child solicitation as a Class D felony involves a

victim under fourteen years of age. Here, Foreman‟s victim was only seven. “[I]n 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) (citations omitted), trans. denied.

       As to indecent exposure, the age of the ill-fated viewers of one‟s indecent

exposure is not an element of the offense. See Ind. Code § 35-45-4-1. Reprehensible as

the offense is, it strikes us as especially so when committed before a seven-year-old child.

Based on our review of the record, we can say with confidence that the trial court would

have imposed the same sentence even if it did not consider Foreman‟s position of trust.

       The trial court did not abuse its discretion in sentencing Foreman.

                                 II. Inappropriate Sentence

       This court has authority to revise a sentence “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.” Ind. Appellate Rule 7(B). We may

“revise sentences when certain broad conditions are satisfied,” Neale v. State, 826 N.E.2d

635, 639 (Ind. 2005), and we recognize the advisory sentence “is the starting point the

legislature has selected as an appropriate sentence for the crime committed.” Weiss v.

State, 848 N.E.2d 1070, 1072 (Ind. 2006). When examining the nature of the offense and

the character of the offender, we may look to any factors appearing in the record. Spitler

v. State, 908 N.E.2d 694, 696 (Ind. Ct. App. 2009), trans. denied. The burden is on the


                                              6
defendant to demonstrate that his sentence is inappropriate. Childress v. State, 848

N.E.2d 1073, 1080 (Ind. 2006).

       Foreman was sentenced to three years executed for child solicitation as a Class D

felony consecutive to one year of supervised probation for indecent exposure as a Class A

misdemeanor. The sentencing range for a Class D felony is six months to three years,

and the advisory sentence is one and one-half years. Ind. Code § 35-50-2-7. The

sentence for a Class A misdemeanor shall not exceed one year. Ind. Code § 35-50-3-2.

       As to the nature of the offense, we are drawn to several factual details. First, and

again, the child‟s extreme youth.      That the child later drew inappropriate pictures

stemming from Foreman‟s conduct demonstrates the strength of the impact of his

deplorable conduct.    We recognize that Foreman admitted guilt and pleaded guilty.

However, we consider more heavily that Foreman‟s conduct has seriously affected the

child. Following Foreman‟s unlawful conduct the child began to have outbursts and

trouble in school, she did not feel safe, she would spontaneously vomit, she would not

sleep well at night, she began wetting her bed, she is too uncomfortable to be medically

examined by male physicians, and at the time of trial she was undergoing counseling.

Prior to these offenses both the child and her mother considered Foreman to be a

grandfather figure to the child. See Tr. at 6-7. Considering this impact, likely at least in

part due to Foreman‟s pseudo-familial relationship with the child, we conclude that the

nature of the offense does not make a sentence of three-years executed and one year of

probation inappropriate.

       As to Foreman‟s character, we begin by acknowledging, as the trial court did, that

he lived a substantially law-abiding life, that he largely lacks a criminal history, and that
                                             7
he is in poor health. In the context of this case, it is notable that when describing his own

background in preparation of the Pre-Sentencing Investigation report, Foreman admitted

that he had a pending check deception case and an outstanding warrant. His knowledge

of an outstanding warrant without turning himself in and the check deception charge are

consistent with his conduct in this case, in which he breached the trust of the child, her

mother, and the other adult to whom the child‟s mother entrusted the child. While we

sympathize with Foreman‟s poor physical health, our review of sentences for

inappropriateness is an “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). For this reason, we conclude that his sentence is not

inappropriate in light of the nature of his offenses and character.

                                         Conclusion

       The trial court did not abuse its discretion in sentencing Foreman, and his sentence

is not inappropriate.

       Affirmed.

NAJAM, J., and VAIDIK, J., concur.




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