MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Oct 05 2017, 8:23 am
court except for the purpose of establishing                             CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
estoppel, or the law of the case.                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
David W. Stone IV                                        Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         Matthew B. MacKenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael French,                                          October 5, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A02-1608-CR-1778
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable David A. Happe,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause Nos.
                                                         48C04-1511-FA-1874
                                                         48C04-1511-FC-2003



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1778 | October 5, 2017       Page 1 of 13
[1]   Michael French appeals his convictions for two counts of Class A Felony Child

      Molesting,1 one count of Class B Felony Incest,2 three counts of Class C Felony

      Incest,3 and five counts of Class C Felony Child Molesting.4 French argues that

      the trial court erred in denying his motion to sever and that the sentence

      imposed by the trial court was erroneous and inappropriate in light of the

      nature of the offenses and his character. Finding no error, we affirm.


                                                       Facts
[2]   French is the father of K.F., born in July 1995; A.F., born in February 1999;

      H.F., born in July 2001; and C.F., born in December 2007. All the girls are

      half-sisters except for A.F. and H.F., who share the same parents. While

      growing up, K.F. lived predominantly with her mother, though she frequently

      saw and spent overnights with French. H.F. also lived predominantly with her

      mother, though she would visit French on weekends. The events in question

      occurred between July 23, 2001, and August 16, 2013, in several different

      residences.


[3]   The first incident took place in July 2001, when K.F. was six years old, while

      she was visiting French’s Alexandria trailer. K.F. awoke early one morning to




      1
       Ind. Code § 35-42-4-3(a). All the charged offenses occurred before the criminal code revision in 2014.
      Accordingly, all charged offenses are under the prior code sections.
      2
          Ind. Code § 35-46-1-3(a).
      3
          I.C. § 35-42-4-3(b).
      4
          I.C. § 35-46-1-3(a).


      Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1778 | October 5, 2017           Page 2 of 13
      discover French rubbing her bare genitals with his foot. K.F. testified that while

      rubbing her, French was holding H.F. (an infant) while then-toddler A.F. stood

      next to him. French asked K.F. if she would like to be woken up like that every

      morning and, although she replied in the negative, he continued to touch K.F.’s

      bare genitals with his hands on numerous other occasions.


[4]   The incidents escalated when K.F. was ten years old while she was visiting

      French’s Elwood home. At this residence, K.F. slept by herself downstairs. On

      one occasion, K.F. woke up in the middle of the night to discover French sitting

      at the edge of her bed, attempting to pull her to the edge of the bed. After

      overcoming his daughter’s resistance, French undressed her and performed oral

      sex on her. K.F. testified that this happened on several other occasions, along

      with continued touching and rubbing of her genitals. K.F. also testified that

      around this time, French began providing her alcohol and that, at some point,

      he convinced her to take two pills for her anxiety.


[5]   French’s actions again escalated at his Frankton trailer when K.F. was thirteen.

      K.F. awoke on the floor, without her pants, while French was on top of her.

      French inserted his penis into her vagina, and after K.F. began to yell, he

      covered her mouth to prevent her from waking others in the trailer. In total,

      K.F. estimated that French had intercourse with her five to six times over a

      three-year period. Additionally, K.F. testified that French never wore condoms

      and that he ejaculated at least once.




      Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1778 | October 5, 2017   Page 3 of 13
[6]   When K.F. turned fifteen and entered high school, she was living full-time at

      French’s Washington Street house to gain more independence and because of

      disagreements with her mother. By this point, French regularly gave her

      alcohol. K.F. testified that she drank in part because it “numbed” her and that

      she was drinking “[a] lot.” Tr. Vol. II p. 167-68. When K.F. was sixteen,

      French challenged her and his then-wife to a drinking contest on a school night,

      during which K.F. consumed at least thirteen shots of whiskey—enough to

      make K.F. vomit and cause his wife to pass out. French then removed K.F.’s

      pants and had intercourse with her.


[7]   French’s acts were not limited to K.F. H.F., his third daughter, is

      approximately six years younger than K.F. When H.F. was seven and visiting

      the Elwood house, French began to touch her in a similar fashion to her older

      half-sister. He would wake her up by rubbing her genitals with his hands, both

      outside and inside her clothing.


[8]   When H.F. was in the sixth grade and visiting her father at his Alexandria

      apartment, French removed her from a bed she was sharing with A.F. and took

      her to his bedroom. He put her in his bed and began rubbing her genitals, but

      she fled to the bathroom to cry and then went back to her room. French then

      returned to his daughters’ room, picked H.F. back up, and took her back to his

      room to rub her again. On another occasion in the same apartment, H.F. was

      sleeping on the downstairs couch and French rubbed her genitals on the outside

      and inside of her clothing.



      Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1778 | October 5, 2017   Page 4 of 13
[9]    Both K.F. and H.F. developed mental health issues over this time. K.F.

       became anxious and was afraid to be alone, while H.F.’s mother testified that

       H.F. began to isolate and cut herself. During this entire period, K.F. repeatedly

       told her father that his actions made her feel “gross,” that she wanted him to

       stop, and that she would tell on him if he did not stop. Id. at 181-82. French

       would respond by threatening that if he went to jail, she would never be able to

       see her sisters again and that it would ruin everyone’s lives. When K.F. turned

       twenty, her concern for her younger sisters finally drove her to tell family

       members what had happened. Eventually, both K.F. and H.F. spoke to the

       police.


[10]   French was arrested and charged in two separate causes in November 2015.

       With respect to K.F., he was charged with two counts of Class A felony child

       molesting, one count of Class B felony incest, two counts of Class C felony

       child molesting, and three counts of Class C felony incest. With respect to

       H.F., he was charged with three counts of Class C felony child molesting. On

       February 4, 2016, the trial court granted the State’s motion for a joint trial. On

       May 2, 2016, French filed a motion to sever; following a hearing on May 16,

       2016, the trial court denied the motion. French renewed his motion for

       severance at the start of the trial, but the trial court denied the motion.


[11]   French’s jury trial took place from June 14 through 17, 2016; the jury ultimately

       found French guilty as charged. On July 11, 2016, the trial court sentenced

       French as follows:



       Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1778 | October 5, 2017   Page 5 of 13
           • Forty years for each count of Class A felony child molesting, to be served
             consecutively;
           • Eight years for two counts of Class C felony incest, to be served
             concurrently with the Class A felony sentence;
           • Eight years for two counts of Class C felony child molesting, to be served
             concurrently with the Class A felony sentence; and
           • Five years for each of the three remaining counts of Class C felony child
             molesting, to be served consecutively to each other and to the Class A
             felonies.5

       Therefore, French received an aggregate term of ninety-five years

       imprisonment. He now appeals.


                                      Discussion and Decision
                                            I.       Motion to Sever
[12]   French first alleges that the trial court erred by denying his motion to sever the

       charges. Two or more offenses may be joined in the same charging information

       in two instances: (1) if the offenses “are of the same or similar character,” or (2)

       if the offenses “are based on the same conduct or on a series of acts connected

       together or constituting parts of a single scheme or plan.” Ind. Code § 35-34-1-

       9(a). The standard of review for a motion to sever will vary by the reason the

       charges were joined:


                Where the offenses have been joined solely because they are of the
                same or similar character, a defendant is entitled to severance as



       5
        The sole count of Class B felony incest was merged with the first count of Class A felony child molesting.
       One of the counts of Class C felony incest was merged with the second count of Class A felony child
       molesting.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1778 | October 5, 2017           Page 6 of 13
               a matter of right. Ind. Code § 35–34–1–11(a) (2008). The trial
               court thus has no discretion to deny such a motion, and we will
               review its decision de novo. Jackson v. State, 938 N.E.2d 29, 36
               (Ind. Ct. App. 2010). But where the offenses have been joined
               because the defendant’s underlying acts are connected together,
               we review the trial court’s decision for [error]. Craig v. State, 730
               N.E.2d 1262, 1265 (Ind. 2000).


       Pierce v. State, 29 N.E.3d 1258, 1264 (Ind. 2015) (emphasis original). “To

       determine whether offenses warrant joinder [when the offenses were joined

       because the underlying acts were connected together], we ask whether the

       operative facts establish a pattern of activity beyond mere satisfaction of the

       statutory elements.” Id. at 1266.


[13]   The trial court found that the offenses were properly joined and French was not

       entitled to severance because French’s underlying acts were connected.

       Specifically, the trial court noted that: (1) there was a common familial

       relationship; (2) there was an overlap in time between the offenses; (3) there

       was a common narrative linking the offenses against one victim to another; and

       (4) there was an “interconnected investigation.” Tr. Vol. II p. 21-22.


[14]   Initially, we note that the charges were clearly connected by French’s

       exploitation of his position of trust as a father and a custodial adult. See Ennik

       v. State, 40 N.E.3d 868, 876 (Ind. Ct. App. 2015) (quoting Pierce, 29 N.E.3d at

       1266) (“It is well established that offenses can ‘be linked by a defendant’s efforts

       to take advantage of his special relationship with the victims.’”), trans. denied; see

       also Turnpaugh v. State, 521 N.E.2d 690, 692 (Ind. 1988) (finding child


       Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1778 | October 5, 2017   Page 7 of 13
       molestation charges were sufficiently connected where victims were sisters who

       were overnight guests); Pierce, 29 N.E.3d at 1266-67 (finding that causes at issue

       were connected by defendant’s “exploitation” of his position of trust).


[15]   Furthermore, the incidents were connected by French’s victims, his method,

       and an overlap in time. See Pierce, 29 N.E.3d at 1266 (finding that the

       defendant’s actions were also connected “by his victims, his method, and his

       motive”). French’s victims were both his biological daughters. French’s

       methods were largely identical—he usually initiated his assaults by rubbing his

       daughters’ genitalia while they were sleeping. Finally, the crimes overlapped in

       location, at least in part, because K.F. and H.F. both testified that they were

       molested at the Elwood house. Accordingly, the trial court did not err in

       denying French’s motion to sever.


                                              II. Sentencing

                                       A. Aggravating Factors
[16]   French argues that the trial court erred because it found aggravating factors that

       were not supported by the record. In reviewing the trial court’s finding of

       aggravating and mitigating factors, we note that “[s]entencing decisions are

       within the sound discretion of the trial court.” Coy v. State, 999 N.E.2d 937, 946

       (Ind. Ct. App. 2013). We will reverse only “if the decision is ‘clearly against

       the logic and effect of the facts and circumstances before the court, or the

       reasonable, probable, and actual deductions to be drawn therefrom.’” Id.

       (quoting Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007)). A trial court may

       Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1778 | October 5, 2017   Page 8 of 13
       err if it enters or finds aggravating factors that are not supported by the record

       or if “the sentencing statement omits reasons that are clearly supported by the

       record and advanced for consideration . . . .” Anglemyer, 868 N.E.2d at 490-91.


[17]   In the present case, the sentencing order listed five aggravating factors:


           • “Multiple victims involved,”
           • “Number of counts for which the jury found the defendant responsible,”
           • The period of time “over which this abuse occurred,”
           • “Facilitated the commission of the crimes by giving at least one of the
             victims drugs and alcohol,” and
           • “Abused position of trust.”

       Appellant’s App. Vol. II p. 26-29. The record from the sentencing hearing also

       reveals that the trial court considered French’s threats to K.F. as an aggravating

       factor and his limited criminal history as a mitigating factor. French contends

       that the record does not support the findings that he threatened H.F. or that he

       gave one of his daughters drugs and alcohol in the facilitation of his crimes.


[18]   Assuming solely for argument’s sake that the trial court erred in the

       consideration of the challenged factors, we cannot say that French would be

       entitled to resentencing. See, e.g., Sargent v. State, 875 N.E.2d 762, 769 (Ind. Ct.

       App. 2007) (“If the factors are not supported by the record . . . then remand for

       resentencing may be the appropriate remedy if we cannot say with confidence

       that the trial court would have imposed the same sentence had it properly

       considered reasons that enjoy support in the record.”). Here, the trial court

       gave great weight to several aggravating factors that are amply supported by the

       evidence and are not challenged by French: (1) the abuse was prolonged and
       Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1778 | October 5, 2017   Page 9 of 13
       occurred over the span of approximately twelve years; (2) French abused

       multiple victims; (3) there were so many counts for which the jury found

       French responsible; and (4) French victimized his own daughters, thereby

       abusing a position of trust and power.


[19]   Considering the gravity and the number of unchallenged aggravating factors

       and the lack of any compelling mitigating factors, we believe that the trial court

       would have imposed the same sentence even if the challenged factors had been

       omitted. We decline to reverse on this basis.


                                            B. Appropriateness
[20]   Finally, French contends that his sentence should be amended because it was

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

       Appellate Rule 7(B) provides that we may revise a sentence 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.” We must “conduct [this] review with substantial deference . . . to

       the trial court’s decision—since the ‘principal role of [our] review is to attempt

       to leaven the outliers,’ and not to achieve a perceived ‘correct’ sentence . . . .”

       Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014) (quoting Chambers v. State, 989

       N.E.2d 1257, 1259 (Ind. 2013)) (internal citations omitted).


[21]   French was sentenced on nine convictions. The sentencing options and

       outcomes for each conviction are as follows:



       Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1778 | October 5, 2017   Page 10 of 13
           • He was convicted of two Class A felonies. For each of these convictions,
             he faced a sentence of twenty to fifty years, with an advisory term of
             thirty years. Ind. Code § 35-50-2-4(a). He received a forty-year term for
             each offense, to be served consecutively.
           • He was sentenced on seven Class C felonies. For each of these
             convictions, he faced a sentence of two to eight years, with an advisory
             term of four years. I.C. § 35-50-2-6(a). For four of the counts—those
             corresponding to his crimes against K.F.—the trial court imposed four
             eight-year sentences to be served concurrently with the second Class A
             felony. For the final three counts—those corresponding to his crimes
             against H.F.—the trial court imposed three five-year sentences, to be
             served consecutively to each other and to the Class A felonies.

       Thus, the trial court imposed an aggregate term of ninety-five years. Had the

       trial court imposed maximum, fully consecutive terms on all counts, French

       would have received an aggregate term of 156 years imprisonment.


[22]   With respect to the nature of French’s offenses, French intentionally and

       repeatedly victimized his daughters, beginning when they were as young as six

       and seven years old, for more than a decade. French exploited his position of

       trust as a father and an overnight custodian on numerous occasions and against

       multiple victims—readily distinguishing these facts from the caselaw he cites.

       See Hamilton v. State, 955 N.E.2d 723, 727 (Ind. 2011) (stating that a “harsher

       sentence is also more appropriate when the defendant has violated a position of

       trust that arises from a particularly close relationship between the defendant and

       the victim”). Further, despite K.F.’s pleas for him to stop on several occasions,

       French responded with threats and continued abuse. French’s actions have

       already produced tangible consequences for K.F. and H.F., and they will

       almost certainly have long-term repercussions as they enter adulthood.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1778 | October 5, 2017   Page 11 of 13
[23]   With respect to French’s character, he has been convicted of two misdemeanor

       traffic offenses: driving while suspended and an operating while intoxicated

       charge on which he violated his probation. French argues that he is not the

       worst offender; however, it is undisputed that he did not receive the maximum

       term on any conviction to be served consecutively. E.g., Evans v. State, 725

       N.E.2d 850, 851 (Ind. 2000) (noting that maximum sentences are “generally

       most appropriate for the worst offenders”). French also willingly exposed his

       other daughters to his crimes: K.F. testified that her then-toddler sister A.F.

       witnessed French rub K.F.’s genitals with his foot and that he did so while

       holding newborn H.F. Further, French admitted during cross-examination that

       during the pendency of this matter, he told a friend that he hoped someone

       would kill the prosecutor, and he solicited his friend to “dig up dirt” on the

       prosecutor. Tr. Vol. IV p. 13-14.6 Finally, French does not deny that he

       regularly provided K.F. with alcohol or that he encouraged her to consume it.

       Through his actions and words over the course of more than a decade, French

       has demonstrated that he shows little respect for the well-being of his daughters

       and an inability or unwillingness to conform his behavior to the rule of law.


[24]   In sum, we do not find the sentence imposed by the trial court to be

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




       6
        He also admitted to saying “I hope somebody kills them both[.]” Tr. Vol. IV p. 14. The State contends that
       French was referring to K.F. and H.F. French makes no mention of it in his brief. It is unclear in the record
       who French meant by “them.” Regardless, it does not shed a favorable light on his character.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1778 | October 5, 2017         Page 12 of 13
[25]   The judgment of the trial court is affirmed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1778 | October 5, 2017   Page 13 of 13
