MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                                Dec 29 2017, 9:48 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.


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Scott L. Barnhart                                       Curtis T. Hill, Jr.
Brooke Smith                                            Attorney General of Indiana
Keffer Barnhart LLP
                                                        Michael Gene Worden
Indianapolis, Indiana                                   Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Fredrick Ulysses Rogers,                                December 29, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        82A01-1708-CR-1888
        v.                                              Appeal from the
                                                        Vanderburgh Circuit Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     David D. Kiely, Judge
                                                        The Honorable
                                                        Carl A. Heldt, Senior Judge
                                                        Trial Court Cause No.
                                                        82C01-1701-F1-111



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1888 | December 29, 2017         Page 1 of 7
[1]   Fredrick Ulysses Rogers (“Rogers”) pleaded guilty to three counts of Level 1

      felony child molesting,1 two counts of Level 4 felony child molesting,2 one

      count of Level 5 felony child exploitation,3 four counts of Level 6 felony

      performing sexual conduct in the presence of a minor,4 and two counts of Level

      6 felony dissemination of matter harmful to minors5 and was sentenced to forty

      years executed. Rogers appeals his sentence and raises the following issue for

      our review: whether his sentence was inappropriate in light of the nature of the

      offense and the character of the offender.


[2]   We affirm.


                                      Facts and Procedural History
[3]   In 2016, Rogers, who was forty-two years old when he was sentenced, was

      living with his girlfriend, K.B., and her twelve-year-old daughter, S.B.

      Beginning at the end of the school year in spring 2016, and continuing until

      December 2016, Rogers engaged in numerous sex acts and other sexual

      conduct with S.B. Some of the sex acts and sexual conduct occurred with

      K.B.’s participation. These acts included K.B. making S.B. masturbate Rogers

      while Rogers would have videos of people engaging in sexual acts playing on




      1
          See Ind. Code § 35-42-4-3(a).
      2
          See Ind. Code § 35-42-4-3(b).
      3
          See Ind. Code § 35-42-4-4(b)(1).
      4
          See Ind. Code § 35-42-4-5(c)(1).
      5
          See Ind. Code § 35-49-3-3(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1888 | December 29, 2017   Page 2 of 7
      the television, K.B. filming S.B. while she engaged in these sexual acts, K.B.

      directing S.B. to perform oral sex, K.B. making S.B. watch while K.B. had sex

      with Rogers, and Rogers making S.B. watch pornographic videos, including the

      ones of S.B. engaging in acts with Rogers. K.B. engaged in these acts involving

      her child because she feared Rogers, and because Rogers and she used

      methamphetamine and marijuana.


[4]   On January 6, 2017, the State charged Rogers with twelve counts, including

      three counts of Level 1 felony child molesting, two counts of Level 4 felony

      child molesting, one count of Level 5 felony child exploitation, four counts of

      Level 6 felony performing sexual conduct in the presence of a minor, and two

      counts of Level 6 felony dissemination of matter harmful to minors. On June

      30, 2017, Rogers pleaded guilty as charged to all twelve counts, with the

      stipulation that he would not be treated as a credit restricted felon. The

      probable cause affidavit was incorporated in the guilty plea hearing as the

      factual basis for the guilty plea. Tr. Vol. II at 12.


[5]   On July 26, 2017, a sentencing hearing was held, during which the State

      presented members of S.B.’s family who testified regarding how Rogers’s

      actions had affected S.B. and their entire family. The State also admitted a

      letter from S.B. informing the trial court how Rogers’s actions had affected her.

      S.B.’s letter stated that she feared Rogers because he had threatened to kill her

      and her mother. Id. at 50. In his testimony at sentencing, Rogers admitted that

      he committed all of the charged offenses. Id. at 37. Rogers also claimed that he

      never threatened S.B. or K.B., that it was K.B.’s idea for him to commit the sex

      Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1888 | December 29, 2017   Page 3 of 7
      acts with S.B., and that he would not have committed the offenses if not for his

      drug problem. Id. at 38-40. Rogers also offered an apology to S.B. for what he

      had done to her. Id. at 40-41. As to his sentence, Rogers argued that, because

      K.B. received a sentence of thirty years for her guilty plea, he should not receive

      a sentence greater than what she received. Id. at 52.


[6]   In sentencing Rogers, the trial court noted that he was a high risk to reoffend,

      that he had expressed some remorse for his actions, and that he had pleaded

      guilty. Id. at 58. The trial court took notice of Rogers’s criminal record, which

      included two felony convictions and several misdemeanor convictions. Id. It

      also found that the sexual acts perpetrated by Rogers in this case were ongoing

      acts perpetrated against S.B. over a period of seven or eight months. Id. The

      trial court sentenced Rogers to forty years for each of his convictions for Level 1

      felony child molesting, to nine years for each of his convictions for Level 4

      felony child molesting, to four years for his conviction for Level 5 felony child

      exploitation, to two years for each of his convictions for Level 6 felony

      performing sexual conduct in the presence of a minor, and to two years for each

      of his convictions for Level 6 felony dissemination of matter harmful to minors.

      The trial court ordered all of the sentences to be served concurrently, for a total

      executed sentence of forty years. Rogers now appeals his sentence.


                                     Discussion and Decision
[7]   Pursuant to Indiana Appellate Rule 7(B), this Court “may revise a sentence

      authorized by statute if, after due consideration of the trial court’s decision, the


      Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1888 | December 29, 2017   Page 4 of 7
      Court finds that the sentence is inappropriate in light of the nature of the offense

      and the character of the offender.” Our Supreme Court has explained that the

      principal role of appellate review should be to attempt to leaven the outliers, not

      to achieve a perceived correct result in each case. Brown v. State, 52 N.E.3d 945,

      954 (Ind. Ct. App. 2016) (citing Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

      2008)), trans. denied. We independently examine the nature of Rogers’s offenses

      and his character under Appellate Rule 7(B) with substantial deference to the

      trial court’s sentence. Satterfield v. State, 33 N.E.3d 344, 355 (Ind. 2015). “In

      conducting our review, we do not look to see whether the defendant’s sentence

      is appropriate or if another sentence might be more appropriate; rather, the test

      is whether the sentence is ‘inappropriate.’” Barker v. State, 994 N.E.2d 306, 315

      (Ind. Ct. App. 2013), trans. denied. The defendant bears the burden of

      persuading us that his sentence is inappropriate. Brown, 52 N.E.3d at 954.


[8]   Rogers contends that his forty-year sentence is inappropriate in light of the

      nature of his offense and his character. Specifically, he asserts that the nature of

      his offenses was “no more egregious than the ‘typical’ offense contemplated by

      the legislature” and that the offenses were perpetrated with K.B.’s participation

      and acquiescence.” Appellant’s Br. at 7. Rogers argues that K.B. received a

      thirty-year sentence for her offenses, and his forty-year sentence is, therefore,

      inappropriate in light of the nature of the offense. As to his character, Rogers

      points to the fact that he had accepted responsibility for his actions nearly from

      the beginning of the investigation and that he pleaded guilty to every count with

      which he was charged and saved the State and the trial court resources and

      Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1888 | December 29, 2017   Page 5 of 7
       time. He also argues that he apologized to S.B. and saved her from having to

       testify at trial by pleading guilty and that in light of his character his sentence is

       inappropriate.


[9]    “As to the nature of the offense, the advisory sentence is the starting point the

       legislature has selected as an appropriate sentence for the crime committed.”

       Kunberger v. State, 46 N.E.3d 966, 973 (Ind. Ct. App. 2015). In the present case,

       the following sentencing ranges are applicable. The advisory sentence for a

       Level 1 felony is thirty years, with a range of between twenty and forty years.

       Ind. Code § 35-50-2-4(b). The advisory sentence for a Level 4 felony is six

       years, with a range of between two and twelve years. Ind. Code § 35-50-2-5.5.

       The advisory sentence for a Level 5 felony is three years, with a sentencing

       range of between one and six years. Ind. Code § 35-50-2-6(b). The advisory

       sentence for a Level 6 felony is one year, with a sentencing range of between six

       months and two and a half years. Ind. Code § 35-50-2-7(b). Here, Rogers

       received the maximum sentence for his Level 1 felony convictions, and for the

       other convictions, he received sentences that were above the advisory sentence

       but less than the maximum sentence for those levels of felonies, with all of his

       sentence running concurrently.


[10]   The nature of the offense is found in the details and circumstances of the

       commission of the offense and the defendant’s participation. Croy v. State, 953

       N.E.2d 660, 664 (Ind. Ct. App. 2011). In the present case, the various sex acts

       perpetrated on S.B. were numerous and occurred over a span of seven to eight

       months. The acts were particularly egregious in that some were done in

       Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1888 | December 29, 2017   Page 6 of 7
       conjunction with S.B.’s mother, K.B., due to K.B.’s fear of Rogers.

       Additionally, Rogers was living in the home with S.B. at the time the acts

       occurred and was effectively acting as her step-father and, therefore, violated a

       position of trust in perpetrating these crimes. We, therefore, conclude that

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


[11]   “The character of the offender is found in what we learn of the offender’s life

       and conduct.” Croy, 953 N.E.2d at 664. As to Rogers’s character, the evidence

       showed that he has a substantial criminal history that included two felony

       convictions and several misdemeanor convictions. Rogers also admitted to a

       lengthy history of substance abuse that he had made no effort to treat.

       Additionally, Rogers’s violation of the position of trust that he held with S.B. is

       also telling of his poor character. Although Rogers argues that his guilty plea

       saved the State from expending the time and resources needed for a trial and

       saved S.B. from the trauma of testifying, his guilty plea was merely a pragmatic

       decision because the State’s case against him was overwhelming, particularly

       after K.B. pleaded guilty and agreed to testify against him. We, therefore,

       conclude that Rogers’s sentence is not inappropriate in light of his character.

       We affirm his forty-year sentence.


[12]   Affirmed.


[13]   Bailey, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-1888 | December 29, 2017   Page 7 of 7
