MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                            FILED
regarded as precedent or cited before any                   Jun 09 2017, 9:15 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Gregory L. Fumarolo                                      Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Contrell Hambright,                                      June 9, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1612-CR-2947
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D04-1606-F4-47



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2947 | June 9, 2017    Page 1 of 7
                                Case Summary and Issue
[1]   Following a bench trial, Contrell Hambright was convicted of child molesting, a

      Level 4 felony, and the trial court sentenced him to twelve years in the Indiana

      Department of Correction. Hambright raises one issue on appeal: whether his

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

      Concluding his sentence is not inappropriate, we affirm.



                            Facts and Procedural History
[2]   On January 14, 2016, Hambright visited Kristina Russell’s home. Russell lived

      with her two daughters, K.H. and P.R. Hambright is the father of K.H. but not

      P.R. Hambright spent the evening with Russell, K.H., and P.R. Russell

      mentioned she was donating plasma in the morning and Hambright asked if he

      could spend the night and watch the children while Russell was gone. Russell

      agreed. Russell, K.H., and P.R. had separate bedrooms. When they withdrew

      to their rooms for the night, Hambright fell asleep on the living room couch.


[3]   Russell left early the next morning to donate plasma. After Russell left,

      Hambright entered K.H.’s room, where K.H. was laying on her bed on her

      stomach. Hambright began massaging K.H.’s buttocks over her pajama pants.

      Hambright then pulled down K.H.’s pajama pants and underwear and

      continued massaging her buttocks. Soon after, Hambright placed his leg over

      K.H.’s leg such that his “private area” touched her buttocks. Transcript,

      Volume 2 at 19. Hambright tried to “go down farther, closer to [K.H.’s] private


      Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2947 | June 9, 2017   Page 2 of 7
      area, but [K.H.] kept [her] legs tightly shut.” Id. K.H. screamed out for P.R.

      When P.R. did not respond, K.H. started crying. Hambright asked K.H. what

      was wrong and K.H. did not respond. Hambright continued pushing toward

      K.H.’s private area for another five minutes before leaving the room.


[4]   K.H. immediately texted Russell to ask when she was coming home. Russell

      responded she was on her way. K.H. locked herself in the bathroom and called

      Russell to ask if she and P.R. could go outside. Russell approved. K.H. and

      P.R. waited outside until Russell arrived, at which point K.H. told Russell she

      wanted Hambright to leave and not visit anymore. Russell asked what was

      wrong and K.H. informed Russell that Hambright touched her inappropriately.

      Russell took K.H. to the hospital and Child Advocacy Center, where a sexual

      assault examination was performed. Perineum and external genital swabs

      taken from K.H. and samples from K.H.’s underwear tested positive for

      seminal fluid matching Hambright’s DNA profile.


[5]   The State charged Hambright with child molesting, a Level 4 felony. At trial,

      Hambright claimed he had no memory of the events because he blacked out

      from smoking marijuana and spice, and ingested Xanax and OxyContin hours

      before entering K.H.’s room. He also reported being diagnosed with a learning

      disability in 1989 and bipolar disorder in 2013. The trial court found

      Hambright guilty as charged.


[6]   At the sentencing hearing, the trial court rejected Hambright’s proffered

      mitigating factors of diminished mental capacity and voluntary intoxication.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2947 | June 9, 2017   Page 3 of 7
      The trial court stated there was “no credible evidence in the record that support

      either of those as being a mitigator or causing the offense.” Tr., Vol. 2 at 91.

      As aggravating factors, the trial court noted the following: Hambright’s criminal

      history, including one juvenile adjudication, eight misdemeanors, and five prior

      felony convictions; Hambright’s failed rehabilitation efforts, including having

      suspended sentences revoked twice and probation revoked three times;

      Hambright committed the present offense while serving a sentence on home

      detention; and Hambright held a position of trust since the victim was his

      daughter. The trial court also noted Hambright has eight children with seven

      different women and owed $10,000 in child support arrearage. The trial court

      sentenced Hambright to twelve years in the Department of Correction. This

      appeal ensued.



                                 Discussion and Decision
                                     I. Standard of Review
[7]   Indiana Appellate Rule 7(B) provides, “The 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.” Whether we regard a sentence as

      inappropriate turns on “our sense of the culpability of the defendant, the

      severity of the crime, the damage done to others, and myriad other factors that

      come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.



      Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2947 | June 9, 2017   Page 4 of 7
       2008). It is the defendant’s burden to persuade this court that his or her

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


                                   II. Hambright’s Sentence
[8]    The trial court found Hambright guilty of child molesting, a Level 4 felony.

       The sentencing range for a Level 4 felony is two to twelve years, with an

       advisory sentence of six years. Ind. Code § 35-50-2-5.5. Hambright contends

       his twelve-year sentence is inappropriate because he is not the “worst of the

       worst” offenders. Brief of Appellant at 13.


[9]    Our supreme court has observed that “maximum possible sentences are

       generally most appropriate for the worst offenders.” Buchanan v. State, 767

       N.E.2d 967, 973 (Ind. 2002) (citation omitted). However, “[d]espite the nature

       of any particular offense and offender, it will always be possible to identify or

       hypothesize a significantly more despicable scenario.” Id. Therefore, when

       evaluating the appropriateness of the sentence, we should “concentrate less on

       comparing the facts of this case to others, whether real or hypothetical, and

       more on focusing on the nature, extent, and depravity of the offense for which

       the defendant is being sentenced, and what it reveals about the defendant’s

       character.” Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans.

       denied.


[10]   As to the nature of the offense, Hambright admits “the fondling of one’s own

       child is a ‘horrendous’ offense,” but points to his voluntary intoxication to

       explain how he could commit such an offense. Br. of Appellant at 17.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2947 | June 9, 2017   Page 5 of 7
       However, as the trial court noted, Hambright provided no credible evidence in

       regard to his intoxication. Hambright molested his own daughter, and

       continued to do so for five minutes after she screamed for her sister and began

       crying. With these facts in mind, we cannot say Hambright’s sentence is

       inappropriate in light of the nature of his offense.


[11]   As to the character of the offender, Hambright argues his criminal history,

       while extensive, mostly consists of driving and substance abuse offenses.

       Hambright also contends his mental health and history of substance abuse

       should be considered.


[12]   “The significance of a defendant’s criminal history varies based on the gravity,

       nature and number of prior offenses as they relate to the current offense.”

       Harris v. State, 897 N.E.2d 927, 930 (Ind. 2008). At age thirty-two, Hambright’s

       criminal history is lengthy, including a juvenile adjudication for marijuana

       possession in 2001, three misdemeanor driving convictions for driving without

       a license from 2003 to 2004, a misdemeanor conviction for criminal trespass in

       2004, a felony conviction for being an habitual traffic violator in 2006, a

       misdemeanor conviction for carrying a handgun without a license in 2010, a

       misdemeanor conviction for resisting law enforcement in 2011, a felony

       conviction for possession of a controlled substance in 2012, a felony conviction

       for domestic battery committed in the presence of a child in 2013, a felony

       conviction for operating a motor vehicle after the forfeiture of his license for life

       and a misdemeanor conviction for possession of marijuana in 2015, and a

       felony conviction for failure to return to lawful detention in 2016. Although

       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2947 | June 9, 2017   Page 6 of 7
       Hambright’s criminal history includes no sex offenses, his criminal behavior has

       increased in depravity from driving offenses to domestic battery to the current

       offense of child molesting.


[13]   Further, Hambright owes $10,000 in child support arrearage despite only being

       ordered to pay child support for four of his eight children, all of whom live with

       their mothers. Hambright held a position of trust as K.H.’s father and violated

       that trust by touching her inappropriately. Hambright’s failure to act as a father

       and appropriately care for his children reflects poorly on his character. In sum,

       Hambright’s sentence is not inappropriate in light of the nature of the offense

       and his character.



                                               Conclusion
[14]   We conclude Hambright’s sentence is not inappropriate and we therefore affirm

       his sentence.


[15]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1612-CR-2947 | June 9, 2017   Page 7 of 7
