MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                              Aug 24 2016, 10:39 am

regarded as precedent or cited before any                               CLERK
court except for the purpose of establishing                        Indiana Supreme Court
                                                                       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
P. Jeffrey Schlesinger                                   Gregory F. Zoeller
Public Defender                                          Attorney General of Indiana
Crown Point, Indiana
                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Charles Alan Keel,                                       August 24, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A03-1601-CR-153
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Salvador Vasquez,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         45G01-1503-F5-13



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1601-CR-153 | August 24, 2016       Page 1 of 9
[1]   Charles Keel appeals his conviction for Level 5 Felony Sexual Misconduct with

      a Minor and his four-year sentence imposed by the trial court.1 Keel argues that

      the trial court erred by admitting certain evidence and by failing to find certain

      mitigators, and that Keel’s sentence was inappropriate in light of the nature of

      the offense and his character. Finding no error and that the sentence is not

      inappropriate, we affirm.


                                                     Facts
[2]   On February 27, 2015, fifteen-year-old K.S. and her two younger sisters were

      staying overnight with her cousin, Kathleen Spargo, in Spargo’s trailer. Keel

      and Spargo were in a romantic relationship and had a baby together. The night

      of February 27, Keel and the baby were also in the trailer.


[3]   The trailer had two bedrooms. Spargo slept in one bedroom, and the baby and

      K.S.’s youngest sister slept in the other. K.S. and her other sister slept in the

      living room, with K.S. on one side of the couch and her sister on the floor.

      Keel was on the other side of the couch. K.S. watched television until she fell

      asleep. She was awakened in the middle of the night when she felt a hand

      inside of her pants, on her vagina. She did not see whose hand it was. When

      she moved and closed her legs, she felt the waistband of her leggings snap back




      1
          Ind. Code § 35-42-4-9(b)(1).


      Court of Appeals of Indiana | Memorandum Decision 45A03-1601-CR-153 | August 24, 2016   Page 2 of 9
      on her stomach. K.S. did not say anything and pretended to stay asleep. She

      then turned to her side. After a couple minutes, she felt a hand on her buttocks.


[4]   K.S. then sat up and said that she had to use the bathroom. She asked Keel

      whether anyone else was awake, and he said no. She went to the bathroom,

      where she locked herself in and started crying. K.S. then went to Spargo’s

      bedroom and asked Spargo whether she could use Spargo’s phone. K.S. took

      the phone back to the bathroom, where she locked herself in again, and called

      her father. She told her father that she needed him to come get her

      immediately. She told him that she was at Spargo’s house and that Keel had

      touched her. K.S.’s father could hear that K.S. was panicky on the phone.


[5]   K.S.’s father called K.S.’s grandmother and told her that K.S. needed to be

      picked up because he did not know Spargo’s address, but the grandmother did.

      K.S.’s father also called 911. The police told him to meet them at a nearby gas

      station. When K.S.’s grandmother arrived at the trailer, she entered and yelled

      for K.S. K.S. left the bathroom. Her grandmother gathered the children and

      took them to her car. Keel yelled obscenities at her. K.S.’s grandmother drove

      the children to meet their father and the police at the gas station.


[6]   On March 2, 2015, the State charged Keel with Level 5 felony sexual

      misconduct with a minor. Following Keel’s November 23 and 24, 2015, jury

      trial, the jury found him guilty as charged. On December 16, 2015, the trial

      court sentenced Keel to four years of incarceration. Keel now appeals.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1601-CR-153 | August 24, 2016   Page 3 of 9
                                   Discussion and Decision
                                   I. Admission of Evidence
[7]   Keel first argues that evidence relating to the effects of his crime on K.S. should

      not have been admitted. A trial court has broad leeway regarding the

      admission of evidence. Smith v. State, 889 N.E.2d 836, 839 (Ind. Ct. App.

      2008). We will reverse only if the decision is clearly against the logic and effect

      of the facts before the trial court. Figures v. State, 920 N.E.2d 267, 271 (Ind. Ct.

      App. 2010).


[8]   Indiana Evidence Rule 402 provides that relevant evidence is generally

      admissible and irrelevant evidence not admissible. Under Indiana Evidence

      Rule 401, “[e]vidence is relevant if (a) it has any tendency to make a fact more

      or less probable than it would be without the evidence; and (b) the fact is of

      consequence in determining the action.”


[9]   Here, Keel objected to testimony from K.S.’s father and grandmother about

      how K.S.’s behavior changed following the incident, arguing that their

      testimony generated sympathy for K.S. but “did not make it more or less likely

      that the offense had occurred.” Appellant Br. p. 7. We disagree; the trial court

      could have reasonably found that the changes in K.S.’s behavior after her visit

      to Spargo’s trailer had at least some tendency to make it more probable that an

      incident happened there. In other words, the trial court did not err by finding

      that the evidence was relevant.



      Court of Appeals of Indiana | Memorandum Decision 45A03-1601-CR-153 | August 24, 2016   Page 4 of 9
[10]   Keel further argues that even if the evidence was relevant, the trial court should

       not have admitted it because it was unfairly prejudicial. 2 Specifically, Keel

       argues that the testimony at issue aroused the jury’s sympathy for the victim

       and allowed the jury to convict Keel based on that sympathy.


[11]   Under Indiana Evidence Rule 403, relevant evidence may be excluded “if its

       probative value is substantially outweighed by a danger of . . . unfair

       prejudice[.]” The trial court uses its discretion when evaluating whether to

       admit or exclude the evidence, and it looks for danger that the jury will

       substantially overestimate the value of the evidence or that the evidence will

       arouse or inflame the jury’s passions or sympathies. Duvall v. State, 978 N.E.2d

       417, 428 (Ind. Ct. App. 2012).


[12]   Here, we find that the probative value of the testimony regarding K.S.’s

       changed behavior is not substantially outweighed by the danger of unfair

       prejudice. The probative value of the father’s and grandmother’s testimony was

       significant in that it corroborated K.S.’s testimony about Keel’s criminal act.

       Although the testimony might have aroused additional sympathy from the jury,

       we find that any such sympathy would be only slightly greater than what the

       jury may already have had for a teenager who testified about her own scared

       reaction to the incident. Therefore, we find that the probative value of this




       2
         The State argues that Keel waived this argument because his objections at trial did not specifically mention
       the allegedly prejudicial nature of the evidence. We decline to resolve this issue on the basis of waiver.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1601-CR-153 | August 24, 2016               Page 5 of 9
       evidence is not substantially outweighed by any prejudicial effect and that the

       trial court did not err by admitting it.


                                      II. Mitigating Factors
[13]   Keel next argues that the trial court erred by declining to find his gainful

       employment and any possible hardship to his four children as mitigating

       factors. Sentencing lies within the discretion of the trial court. A trial court

       may impose any sentence authorized by statute and must provide a sentencing

       statement that gives a reasonably detailed recitation of the trial court’s reasons

       for imposing a particular sentence. Anglemyer v. State, 868 N.E.2d 482, 490

       (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). If a defendant alleges

       that the trial court failed to find a mitigating factor, the defendant must establish

       that the mitigating evidence is significant and clearly supported by the record.

       Id. The trial court is not required to accept a defendant’s arguments as to what

       constitutes a mitigating factor, nor is it required to explain why it did not find a

       factor to be mitigating. Sherwood v. State, 749 N.E.2d 36, 38 (Ind. 2001); Page v.

       State, 878 N.E.2d 404, 408 (Ind. Ct. App. 2007).


[14]   Keel asserts that his role as the sole financial supporter for his children and the

       undue hardship they would face because of his incarceration are clearly

       supported by the record. We disagree. Although Keel stated that he was

       gainfully and steadily employed, employment is not necessarily a significant

       mitigating factor. See Newsome v. State, 797 N.E.2d 293, 301 (Ind. Ct. App.

       2003) (“Many people are gainfully employed such that this would not require


       Court of Appeals of Indiana | Memorandum Decision 45A03-1601-CR-153 | August 24, 2016   Page 6 of 9
       the trial court to note it as a mitigating factor[.]”). Keel also did not present

       evidence on how he financially supported his children, nor did he present

       evidence as to whether they lived with him. Rather, he stated that although he

       was not ordered to pay child support to his spouse, he still tried to “help out”

       when he could. Tr. p. 243. He failed to explain how his children would suffer

       undue hardship because of his incarceration or how the advisory sentence of

       three years would bring a lesser risk of undue hardship to his children than the

       four-year sentence actually imposed. See Battles v. State, 688 N.E.2d 1230, 1237

       (Ind. Ct. App. 1997) (holding that the difference between advisory and imposed

       sentences do not necessarily create additional hardships on children). Under

       these circumstances, we find no error in the trial court’s decision not to find

       these mitigators.


                                        III. Appropriateness
[15]   Keel also argues, pursuant to Indiana Appellate Rule 7(B), that the four-year

       sentence imposed by the trial court is inappropriate in light of the nature of the

       offense and his character. Rule 7(B) provides that this Court may revise a

       sentence if it is inappropriate in light of the nature of the offense and the

       character of the offender. We must “conduct [this] review with substantial

       deference and give ‘due consideration’ 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).

       Court of Appeals of Indiana | Memorandum Decision 45A03-1601-CR-153 | August 24, 2016   Page 7 of 9
[16]   Keel was convicted of a Level 5 felony, for which he faced a sentence of one to

       six years, with an advisory term of three years. Ind. Code § 35-50-2-6. Keel

       received a four-year sentence.


[17]   As for the nature of Keel’s offense, the record demonstrates that Keel touched

       K.S. inappropriately while she was asleep on the couch. At the time, Keel was

       thirty-two years old and K.S. was fifteen years old. K.S. was staying at her

       cousin’s trailer for the night, where she felt safe, and Keel violated the trust that

       he had as an adult in a position to care for K.S. and her sisters. Keel argues that

       there is no “evidence of penetration or any physical injury of any sort to justify

       a greater sentence,” appellant’s br. p. 10, but such an argument minimizes the

       impact his actions had on the victim. Following the incident, K.S.’s behavior

       changed; she withdrew from her family, struggled in school, became less

       trustful, and started to see a therapist.


[18]   With respect to Keel’s character, the record demonstrates that Keel has a

       criminal history consisting of four misdemeanor convictions. Keel argues that

       the remorse he expressed at his sentencing hearing is a substantial mitigating

       circumstance, but it is apparent that Keel’s apology was self-serving because it

       was immediately followed by his plea for a lenient sentence. Tr. p. 247. The

       trial court was not required to find him remorseful or, if it did, it was not

       required to find him sufficiently remorseful to reflect positively on his character

       or warrant a more lenient sentence. Chambliss v. State, 746 N.E.2d 73, 79 (Ind.

       2001). The trial court was in the best position to observe Keel’s demeanor and

       determine whether his remorse was genuine; it found that his character is highly

       Court of Appeals of Indiana | Memorandum Decision 45A03-1601-CR-153 | August 24, 2016   Page 8 of 9
       manipulative and dishonest. In sum, we find that the four-year sentence

       imposed by the trial court is not inappropriate in light of the nature of the

       offenses and Keel’s character.


[19]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Najam, J., concur.




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