MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                  Sep 20 2017, 6:20 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
Mark A. Bates                                            Curtis T. Hill, Jr.
Crown Point, Indiana                                     Attorney General of Indiana

                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Reginald Anthony Tate,                                   September 20, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A04-1705-CR-998
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Salvador Vasquez,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         45G01-1608-F1-6



Altice, Judge.


                                         Case Summary


Court of Appeals of Indiana | Memorandum Decision 45A04-1705-CR-998 | September 20, 2017           Page 1 of 9
[1]   Reginald Anthony Tate appeals the thirty-year sentence imposed following his

      plea of guilty to child molesting as a Level 1 felony. Tate raises the following

      issues for our review:


              1. Did the trial court abuse its discretion in admitting evidence at
              the sentencing hearing of allegations that Tate had sexually
              abused other children years before the offense in this case?


              2. Did the trial court abuse its discretion by considering
              improper aggravating circumstances and overlooking significant
              mitigating circumstances?


              3. Is Tate’s thirty-year advisory sentence inappropriate in light of
              the nature of the offense and his character?


[2]   We affirm.


                                       Facts & Procedural History


[3]   Tate dated N.D. for nine years and was considered part of her family. Tate

      sometimes babysat for N.D.’s younger siblings, including twelve-year-old S.C.

      On August 11, 2016, while entrusted with S.C.’s care, Tate engaged S.C. in

      sexual intercourse, penetrating her vagina with his finger and his penis. S.C.

      told her mother what Tate had done to her, and the police were contacted. S.C.

      underwent a rape kit examination, and Tate’s DNA was located on an anal

      swab, an external genital swab, and a speculum swab.


[4]   On August 12, 2016, the State charged Tate under cause number 45G01-1608-

      F1-6 (Cause No. F1-6) with Level 1 felony child molesting and Level 4 felony

      Court of Appeals of Indiana | Memorandum Decision 45A04-1705-CR-998 | September 20, 2017   Page 2 of 9
      child molesting. Tate was subsequently charged under cause number 45G01-

      1609-F4-33 (Cause No. F4-33) with Level 4 felony child molesting, two counts

      of Level 5 felony criminal confinement, Level 5 felony battery, Level 6 felony

      strangulation, Level 6 felony battery, and Class A misdemeanor battery. The

      charges in Cause No. F4-33 all related to prior incidents between Tate and S.C.


[5]   On March 1, 2017, Tate entered into a plea agreement whereby he pled guilty

      to Level 1 felony child molesting under Cause No. F1-6. In return, the State

      agreed to dismiss the Level 4 felony child molesting count charged under Cause

      No. F1-6 and to dismiss Cause No. F4-33 in its entirety. The State also agreed

      that Tate’s sentence would be capped at the thirty-year advisory sentence for a

      Level 1 felony.


[6]   A sentencing hearing was held on April 5, 2017, at which the State offered

      evidence over Tate’s objection that Tate had allegedly sexually abused other

      children years earlier. Specifically, the State introduced police reports and a

      written statement from C.D.W., one of the alleged victims, who stated that

      Tate had used threats and physical violence to force him and two other juvenile

      males to perform oral sex on one another on multiple occasions. No charges

      had been filed relating to these allegations. The trial court ultimately sentenced

      Tate to thirty years executed in the Department of Correction. In pronouncing

      Tate’s sentence, the trial court made it clear that it attributed “no weight

      whatsoever” to the allegations involving C.D.W. Sentencing Transcript at 44.

      Tate now appeals.



      Court of Appeals of Indiana | Memorandum Decision 45A04-1705-CR-998 | September 20, 2017   Page 3 of 9
                                          Discussion & Decision


                               1. Admission of Evidence at Sentencing


[7]   Tate first argues that the trial court abused its discretion in admitting evidence

      of the allegations involving C.D.W. On appeal, Tate argues that the evidence

      was irrelevant and unduly prejudicial. We disagree. The admission of evidence

      at a sentencing hearing is at the discretion of the trial court. Couch v. State, 977

      N.E.2d 1013, 1016 (Ind. Ct. App. 2012), trans. denied. Ind. Evidence Rule

      101(d)(2) specifically provides that the Rules of Evidence, other than those

      regarding privileges, do not apply in sentencing hearings.

              The rationale for the relaxation of evidentiary rules at sentencing
              is that in a trial the issue is whether a defendant is guilty of
              having engaged in certain criminal conduct. Rules of evidence
              narrowly confine the trial contest to evidence that is strictly
              relevant to the crime charged. At sentencing, however, the
              evidence is not confined to the narrow issue of guilt. The task is
              to determine the type and extent of punishment. This
              individualized sentencing process requires possession of the
              fullest information possible concerning the defendant’s life and
              characteristics.


      Thomas v. State, 562 N.E.2d 43, 47-48 (Ind. Ct. App. 1998). Our Supreme

      Court has held that uncharged crimes may properly be considered at a

      sentencing hearing. Carter v. State, 711 N.E.2d 835, 841 (Ind. 1999) (finding no

      abuse of discretion in the trial court’s consideration at the sentencing hearing of

      evidence that the defendant had attempted to molest his three-year-old sister a

      few weeks before murdering another child).

      Court of Appeals of Indiana | Memorandum Decision 45A04-1705-CR-998 | September 20, 2017   Page 4 of 9
[8]   For these reasons, we cannot conclude that the trial court’s admission of

      evidence of the other allegations against Tate was an abuse of discretion. In

      any event, even if the trial court had abused its discretion in this regard, we

      would deem the error harmless. The trial court clearly stated that it attributed

      “no weight whatsoever” to the allegations concerning C.D.W. Sentencing

      Transcript at 44. In light of the trial court’s statement, we are unpersuaded by

      Tate’s bald assertion that the trial court “had to have been influenced by this

      evidence[.]” Appellant’s Brief at 8.


                           2. Aggravating and Mitigating Circumstances


[9]   Tate next argues that the trial court abused its discretion in finding aggravating

      and mitigating circumstances. 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. So long as the sentence is within the statutory

      range, it is subject to review only for an abuse of discretion. Id. A trial court

      may abuse its sentencing discretion in a number of ways, including entering a

      sentencing statement that includes aggravating factors that are unsupported by

      the record or by omitting mitigating factors that are both significant and clearly

      supported by the record. Id. at 490-91, 493. Even if the trial court is found to

      have abused its discretion in sentencing the defendant, “the sentence will be

      upheld if it is appropriate in accordance with Indiana Appellate Rule 7(B).”

      Felder v. State, 870 N.E.2d 554, 558 (Ind. Ct. App. 2007) (citing Windhorst v.

      State, 868 N.E.2d 504, 507 (Ind. 2007)).



      Court of Appeals of Indiana | Memorandum Decision 45A04-1705-CR-998 | September 20, 2017   Page 5 of 9
[10]   Tate first argues that the trial court abused its discretion by considering his

       criminal history to be an aggravating circumstance. This argument is meritless.

       A defendant’s history of criminal or delinquent behavior is a statutory

       aggravating factor. See Ind. Code § 35-38-1-7.1(a)(2). Tate’s real argument is

       that the trial court attributed too much weight to his criminal history. It is well

       settled, however, that the relative weight assigned to properly found aggravating

       and mitigating factors is not subject to review for an abuse of discretion.

       Anglemyer, 868 N.E.2d at 491.


[11]   Tate also argues that the trial court abused its discretion by failing to find his

       remorse to be a significant mitigating factor. Although Tate claimed to be

       remorseful, the trial court was in no way obligated to accept Tate’s statements

       as sincere. See Hape v. State, 903 N.E.2d 977, 1002-03 (Ind. Ct. App. 2009)

       (explaining that “our review of a trial court’s determination of a defendant’s

       remorse is similar to our review of credibility judgments: without evidence of

       some impermissible consideration by the trial court, we accept its

       determination”), trans. denied. The trial court did not abuse its discretion in this

       regard. In any event, even if the trial court had abused its discretion in

       identifying mitigating and aggravating circumstances, reversal would not be

       warranted because, as we explain below, his thirty-year advisory sentence is not

       inappropriate.


                                         3. Inappropriate Sentence




       Court of Appeals of Indiana | Memorandum Decision 45A04-1705-CR-998 | September 20, 2017   Page 6 of 9
[12]   Finally, Tate argues that his thirty-year advisory sentence was inappropriate in

       light of the nature of his offense and his character. Article 7, section 4 of the

       Indiana Constitution grants our Supreme Court the power to review and revise

       criminal sentences. See Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014), cert.

       denied, 135 S.Ct. 978 (2015). Pursuant to Ind. Appellate Rule 7, the Supreme

       Court authorized this court to perform the same task. Cardwell v. State, 895

       N.E.2d 1219, 1224 (Ind. 2008). Per App. R. 7(B), we may 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.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R.

       7). “Sentencing review under Appellate Rule 7(B) is very deferential to the trial

       court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “Such deference

       should prevail unless overcome by compelling evidence portraying in a positive

       light the nature of the offense (such as accompanied by restraint, regard, and

       lack of brutality) and the defendant’s character (such as substantial virtuous

       traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d

       111, 122 (Ind. 2015).


[13]   The determination of 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.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell, 895

       N.E.2d at 1224). Moreover, “[t]he principal role of such review is to attempt to

       leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). It is


       Court of Appeals of Indiana | Memorandum Decision 45A04-1705-CR-998 | September 20, 2017   Page 7 of 9
       not our goal in this endeavor to achieve the perceived “correct” sentence in

       each case. Knapp, 9 N.E.3d at 1292. Accordingly, “the question under

       Appellate Rule 7(B) is not whether another sentence is more appropriate; rather,

       the question is whether the sentence imposed is inappropriate.” King v. State,

       894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in original).


[14]   In order to assess the appropriateness of a sentence, we first look to the

       statutory range established for the classification of the relevant offense. Tate

       was convicted of child molesting as a Level 1 felony, the sentencing range for

       which is twenty to forty years, with an advisory sentence of thirty years. Tate

       received the thirty-year advisory sentence. When a defendant has received the

       advisory sentence, he faces a “particularly heavy burden” in persuading this

       court that the sentence is inappropriate.1 Fernbach v. State, 954 N.E.2d 1080,

       1089 (Ind. Ct. App. 2011), trans. denied.


[15]   The nature of the offense in this case does not support appellate sentence

       revision. Tate argues that “there was nothing especially egregious” about his

       offense. Appellant’s Brief at 12. We strongly disagree. Tate had dated S.C.’s

       older sister for nine years and was considered a part of the family. Tate had

       known S.C. since she was in diapers. Thus, Tate violated a significant position

       of trust when he molested S.C. Moreover, there was evidence presented that




       1
        Although Tate received the advisory sentence, he asks us to analyze his appropriateness argument as if he
       had received the maximum sentence because he received the maximum allowed under the plea agreement.
       We decline to do so. Tate’s plea agreement does nothing to change the fact that he ultimately received the
       advisory sentence for the offense of which he was convicted.

       Court of Appeals of Indiana | Memorandum Decision 45A04-1705-CR-998 | September 20, 2017         Page 8 of 9
       Tate had repeatedly molested S.C. and physically abused her. In her victim

       impact statement, S.C. related an incident in which Tate choked her to keep her

       quiet, and when she expressed suicidal thoughts, he handed her a knife and told

       her to do it. Unsurprisingly, S.C. has been seriously traumatized. She

       indicated that she never feels safe, even in her own home, and she is no longer

       able to trust others. Tate’s offense was nothing short of heinous.


[16]   Nor does Tate’s character warrant a lesser sentence. Tate has a significant and

       violent criminal history. In 1999, when he was seventeen years old, Tate was

       charged with attempted murder and aggravated battery and waived into adult

       court. He ultimately pled guilty but mentally ill to aggravated battery and was

       sentenced to five years. Although this was his only felony conviction prior to

       the current offense, Tate amassed several misdemeanor convictions over the

       next sixteen years, including multiple battery convictions. Moreover, Tate’s

       abuse of S.C. reflects extremely negatively on his character. In sum, Tate has

       fallen far short of convincing us that his advisory sentence is inappropriate.


[17]   Judgment affirmed.


[18]   Baker, J. and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A04-1705-CR-998 | September 20, 2017   Page 9 of 9
