MEMORANDUM DECISION
                                                                    FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                    Feb 15 2017, 9:29 am

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




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Leanna Weissmann                                         Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                    Attorney General of Indiana
                                                         Ellen H. Meilaender
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Thomas Maxfield,                                         February 15, 2017

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         16A01-1608-CR-1970
        v.                                               Appeal from the Decatur Circuit
                                                         Court

State of Indiana,                                        The Honorable Timothy Day, Judge
                                                         Trial Court Cause No. 16C01-1512-
Appellee-Plaintiff.
                                                         FA-772




Riley, Judge.




Court of Appeals of Indiana | Memorandum Opinion 16A01-1608-CR-1970 | February 15, 2017   Page 1 of 8
                            STATEMENT OF THE CASE
[1]   Appellant-Defendant, Thomas Maxfield (Maxfield), appeals his sentence for

      two Counts of child molesting, Class A felonies, Ind. Code § 35-42-4-3(a)(1).


[2]   We affirm.


                                                   ISSUE
[3]   Maxfield raises one issue on appeal, which we restate as: Whether Maxfield’s

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


                  FACTS AND PROCEDURAL HISTORY
[4]   B.C.C., born on March 10, 1992, and M.J.B., born on October 12, 1992, were

      childhood friends living in Franklin County, Indiana. B.C.C.’s mother was

      married to Maxfield between 1995 and 1998. During that time, B.C.C. became

      closely bonded with Maxfield and he viewed him as a father figure. In 2001,

      after his divorce from B.C.C.’s mother, Maxfield moved to a trailer in

      Greensburg, Indiana. Even after the divorce, B.C.C. remained close to

      Maxfield and he would visit Maxfield. M.J.B. would accompany B.C.C.

      during the visits. On one evening, when the boys were around nine years old,

      Maxfield instructed them to touch each other’s penises as Maxfield masturbated

      himself.


[5]   Maxfield thereafter moved to another trailer in Decatur County, Indiana, and

      B.C.C. and M.J.B. continued to visit him. M.J.B. specified that he would sleep

      on the couch, and B.C.C. would sleep with Maxfield in the bed. M.J.B.

      Court of Appeals of Indiana | Memorandum Opinion 16A01-1608-CR-1970 | February 15, 2017   Page 2 of 8
      thought this was odd considering B.C.C. had his own bed in the trailer. While

      living in Decatur County, Maxfield again instructed M.J.B. and B.C.C. to

      touch each other’s penises while he masturbated. On another occasion,

      Maxfield directed B.C.C. and M.J.B. to perform anal sex with each other while

      he masturbated in the bed. M.J.B. stated that Maxfield’s proposal to have them

      engage in anal sex “didn’t work because they were too young and didn’t really

      understand.” (Appellant’s App. Vol. II, p. 9). At times during his sexual

      encounters with B.C.C. and M.J.B., Maxfield had difficulties in getting an

      erection and would become frustrated. B.C.C. and M.J.B. thought this was

      funny and they would laugh and snicker at Maxfield. Other sexual encounters

      consisted of M.J.B. performing oral sex on Maxfield several times, Maxfield

      touching M.J.B. and B.C.C. sexually over ten times, and M.J.B. watching

      Maxfield perform oral sex on B.C.C. The record shows that M.J.B. and B.C.C.

      were between nine and twelve years old when Maxfield resided in Decatur

      County.


[6]   When M.J.B. and B.C.C. were about twelve years old, Maxfield relocated to

      Ripley County, Indiana. Maxfield was renting a space upstairs in his nephew’s

      home. M.J.B. and B.C.C. continued visiting Maxfield. While living in Ripley

      County, on several occasions, Maxfield touched the boys’ penises, and he

      masturbated while observing M.J.B. and B.C.C touch each other’s penises.

      According to M.J.B., most of the sexual encounters happened in the evening

      with the lights on since Maxfield enjoyed watching. When M.J.B. and B.C.C.

      were about thirteen years old, Maxfield moved back to Franklin County,


      Court of Appeals of Indiana | Memorandum Opinion 16A01-1608-CR-1970 | February 15, 2017   Page 3 of 8
      Indiana. Maxfield continued to sexually abuse M.J.B. and B.C.C. On several

      occasions, Maxfield touched M.J.B.’s and B.C.C.’s penises; Maxfield

      performed oral sex on M.J.B. and B.C.C.; M.J.B. performed oral sex on

      Maxfield; and Maxfield ejaculated in M.J.B.’s mouth which “upset him and

      made him sick.” (Appellant’s App. Vol. II, p. 11). Maxfield’s had about thirty

      to forty sexual encounters with B.C.C. and M.J.B. in Franklin County.


[7]   M.J.B. lost contact with B.C.C. when he turned sixteen years old. Over the

      July 4th weekend in 2015, M.J.B. found the courage to disclose Maxfield’s

      sexual abuse to his family. On August 19, 2015, Officer Kip Main (Officer

      Main) of the Batesville Police Department interviewed M.J.B., who is now an

      adult and serving in the U.S. Army. During the interview, M.J.B. reiterated

      Maxfield’s sexual abuse on him and on B.C.C. On November 20, 2015, Officer

      Main located B.C.C. in Ohio, and B.C.C. confirmed M.J.B.’s sexual abuse

      allegations. On November 23, 2015, Officer Main located Maxfield, who was

      now sixty years old, at his place of employment. Maxfield ultimately confessed

      to sexually abusing M.J.B and B.C.C. Maxfield claimed that when B.C.C. was

      about ten years old, he caught him and M.J.B. touching each other sexually.

      Maxfield admitted that he watched B.C.C. and M.J.B. masturbate; B.C.C. and

      M.J.B. watched him masturbate; B.C.C. and M.J.B. masturbated him; he

      masturbated B.C.C., but he could not recall if he masturbated M.J.B.; he

      performed oral sex on B.C.C. and M.J.B.; he received oral sex from B.C.C. and

      M.J.B.; and he watched B.C.C. and M.J.B. perform oral sex on each other.

      Maxfield admitted to about ninety sexual encounters with the boys.


      Court of Appeals of Indiana | Memorandum Opinion 16A01-1608-CR-1970 | February 15, 2017   Page 4 of 8
[8]    On December 4, 2015, the State filed an Information, charging Maxfield with

       two Counts of child molesting, Class A felonies, on B.C.C. and M.J.B. On

       June 28, 2016, Maxfield pled guilty as charged in exchange for concurrent

       sentences. Sentencing was left open to the trial court. On July 28, 2016, the

       trial court accepted Maxfield’s guilty plea, and thereafter conducted a

       sentencing hearing. After hearing the evidence, the trial court sentenced

       Maxfield to concurrent sentences of thirty years on each Count, to be executed

       in the Indiana Department of Correction.


[9]    Maxfield now appeals. Additional facts will be provided as necessary.


                           DISCUSSION AND DECISION
[10]   Maxfield argues that his sentence is inappropriate in light of his offenses and

       character. Indiana Appellate Rule 7(B) provides that we “may revise a sentence

       authorized by statute 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.” The burden is on Maxfield to persuade the

       appellate court that his sentence is inappropriate. Childress v. State, 848 N.E.2d

       1073, 1080 (Ind. 2006). “Ultimately the length of the aggregate sentence and

       how it is to be served are the issues that matter.” Cardwell v. State, 895 N.E.2d

       1219, 1224 (Ind. 2008). Whether we regard a sentence as appropriate at the end

       of the day turns on our sense of the culpability of Maxfield, the severity of the

       crime, the damage done to others, and a myriad of other considerations that

       come to light in a given case. Id.


       Court of Appeals of Indiana | Memorandum Opinion 16A01-1608-CR-1970 | February 15, 2017   Page 5 of 8
[11]   The advisory sentence is the starting point the legislature has selected as an

       appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,

       1019 (Ind. 2012). A person who commits a Class A felony faces a sentence of

       twenty to fifty years, with the advisory sentence being thirty years. I.C. § 35-50-

       2-4. The plea agreement provided that sentencing would be left open, however,

       sentences to both Counts would run concurrently. In this case, the trial court

       sentenced Maxfield to the advisory thirty years on each Count with both

       sentences to run concurrently.


[12]   Our review of the nature of the offenses reveals that Maxfield used his position

       of trust to sexually molest B.C.C. and M.J.B. from age nine to about age

       sixteen. During his interview, Maxfield confessed to Officer Main that he had

       about ninety sexual encounters with B.C.C. and M.J.B. from 2001 to 2005. At

       the sentencing hearing, Officer Main testified that when he interviewed B.C.C.

       and M.J.B., they both explained to him “how this has affected their entire life,

       the decisions that they have made, relationships that they have, [] or had

       difficulty with, and that it has basically plagued them their entire life.” (Tr. Vol.

       II, p. 25). B.C.C. reported in his victim impact statement that his biological

       father left when he was two years old. The deep psychological effect of

       Maxfield’s sexual exploitation was exhibited in B.C.C.’s letter where he

       indicated that Maxfield saved his life, gave him a family that he never had, and

       taught him everything he needed to learn from a father. Despite the

       molestation, B.C.C. noted that Maxfield “changed [his] life for the better” and

       that “[he] never told [Maxfield] no or tried to stop him because as a child


       Court of Appeals of Indiana | Memorandum Opinion 16A01-1608-CR-1970 | February 15, 2017   Page 6 of 8
       growing up in a broken home he made me feel like I was loved.” (Appellant’s

       App. Vol. II, pp. 57-58). M.J.B. was not as forbearing as B.C.C. in his victim

       impact statement and he stated that “Maxfield has greatly impacted my life by

       ruining my childhood, and affecting my marriage from issues stemming from

       abuse as a child.” (Appellant’s App. Vol. II, p. 54). In the instant case, one

       victim was his step-son, and the other was his step-son’s friend. As noted,

       B.C.C. grew an attachment to Maxfield and viewed him as the father figure. It

       is apparent from the record that B.C.C.’s mother and M.J.B.’s parents trusted

       Maxfield enough to allow the boys to visit Maxfield; however, during their

       many visits, Maxfield sexually molested the boys for his own sexual

       gratification.


[13]   Turning to character, we examine “the offender’s life and conduct.”

       Washington v. State, 940 N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied.

       While Maxfield does not have any prior convictions, the record shows that he

       did not live a law-abiding life. Maxfield admitted to Officer Main that he had

       molested two other boys in Ohio when he was a Boy Scouts leader. Again,

       there, he was in a position of trust as a Boy Scouts leader and he took

       advantage of that position for his own sexual satisfaction. See Simmons v. State,

       746 N.E.2d 81, 93 (Ind. Ct. App. 2001) (indicating that when considering

       criminal history, the trial court can look to felony convictions, misdemeanor

       convictions and other prior criminal activity which has not been reduced to a

       conviction but which does indicate a prior criminal history).




       Court of Appeals of Indiana | Memorandum Opinion 16A01-1608-CR-1970 | February 15, 2017   Page 7 of 8
[14]   To the extent that Maxfield is seeking to have his sentence reduced from the

       advisory to the minimum allowable sentence of twenty years, we note that the

       sheer number of Maxfield’s sexual encounters with B.C.C. and M.J.B. over the

       years makes his behavior egregious, therefore supporting not just an advisory

       sentence, but a maximum sentence. See Newsome v. State, 797 N.E.2d 293, 300

       (Ind. Ct. App. 2003) (holding that repeated molestations occurring over a

       period of time can be an aggravating factor supporting the maximum

       enhancement). Here, instead of sentencing him to the maximum sentence of

       fifty years, the trial court was lenient in sentencing sixty-one-year-old Maxfield

       to serve an advisory thirty-year sentence on each Count.


[15]   Given the nature of Maxfield’s offenses and character, we cannot say that he

       has demonstrated that the concurrent thirty-year sentence for his two Counts of

       child molesting, Class A felonies, was inappropriate. Thus, we decline to revise

       Maxfield’s sentence.


                                           CONCLUSION
[16]   Based on the foregoing, we conclude that Maxfield’s sentence is appropriate in

       light of his offenses and character.


[17]   Affirmed.


[18]   Crone, J. and Altice, J. concur




       Court of Appeals of Indiana | Memorandum Opinion 16A01-1608-CR-1970 | February 15, 2017   Page 8 of 8
