      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                                         FILED
      this Memorandum Decision shall not be                                      Nov 26 2018, 6:21 am
      regarded as precedent or cited before any
                                                                                     CLERK
      court except for the purpose of establishing                               Indiana Supreme Court
                                                                                    Court of Appeals
      the defense of res judicata, collateral                                         and Tax Court

      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Mark A. Bates                                           Curtis T. Hill, Jr.
      Lake County Public Defender Office –                    Attorney General of Indiana
      Appellate Division                                      James B. Martin
      Crown Point, Indiana                                    Deputy Attorney General
                                                              Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Dino Orville French,                                    November 26, 2018
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              18A-CR-766
              v.                                              Appeal from the Lake Superior
                                                              Court
      State of Indiana,                                       The Honorable Diane Ross
      Appellee-Plaintiff.                                     Boswell, Judge
                                                              Trial Court Cause No.
                                                              45G03-1408-FA-24



      Mathias, Judge.


[1]   Following a jury trial in Lake Superior Court, Dino Orville French (“French”)

      was convicted of Class A felony child molesting and sentenced to an executed


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-766 | November 26, 2018                   Page 1 of 20
      term of forty years. French appeals and presents four issues, which we restate

      as:

               I.       Whether the trial court abused its discretion when it granted the
                        State’s motion to amend the charging information during trial to
                        change the date range of the offense;

               II.      Whether the victim’s testimony was sufficient to support French’s
                        conviction;

               III.     Whether the trial court abused its discretion in sentencing French;
                        and

               IV.      Whether French’s forty-year sentence is inappropriate in light of
                        the nature of the offense and the character of the offender.


      We affirm.


                                   Facts and Procedural History

[2]   The victim in this case, A.W.,1 was born in February 1997. When A.W. was an

      infant, her mother, E.G., became friends with French, who was born in 1938.

      A.W. saw French almost every day of her young life, and she considered him to

      be a father figure. French was a frequent caregiver to A.W. and her siblings; he

      would take them fishing, to the movie theater, and even occasionally with him

      on his plumbing jobs. When the children were slightly older, French would

      watch the children after they got home from school until their mother got

      home. French, however, betrayed the trust E.G. placed in him.



      1
       French’s brief refers to the victim as A.S., which represents her married name. The State refers to her as
      A.W., which represents her name at the time of the offense. We do the same.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-766 | November 26, 2018                   Page 2 of 20
[3]   When A.W. was only three or four years old, French began to sexually molest

      her. These repeated molestations included fondling of A.W.’s genitals, insertion

      of his fingers into her vagina, oral sex, and anal sex. By the time A.W. was a

      sophomore in high school, she was struggling with anxiety, depression, and

      suicidal ideations. She informed a school social worker about the molestation.

      She also told her mother, E.G., that French had molested her and that E.G.’s

      current boyfriend had touched her buttocks. E.G. defended her boyfriend.


[4]   On August 29, 2014, the State charged French with two counts of Class A

      felony child molesting, naming A.W. as the victim.2 The first count alleged that

      French knowingly or intentionally performed or submitted to sexual intercourse

      with A.W. between February 28, 2001 and February 27, 2008, and the second

      count alleged that French knowingly or intentionally performed or submitted to

      deviate sexual conduct with A.W. between February 28, 2001 and February 27,

      2008.3


[5]   A jury trial was held on November 28–29, 2017. On the second day of trial, the

      State moved to amend the two counts against French by alleging that the

      conduct in the first count took place between February 28, 2000 and February

      27, 2008, and that the conduct charged in the second count took place between



      2
        The information also charged French with six counts of Class A felony child molesting, naming A.W.’s
      older sister as the victim. The charges involving A.W.’s sister were later severed, and the instant appeal arises
      from the trial of the charges involving A.W. only.
      3
        The State filed an amended information on March 17, 2017, charging French with only two counts
      involving A.W.’s older sister; the charges involving A.W. were renumbered but remained the same in
      substance.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-766 | November 26, 2018                    Page 3 of 20
      February 28, 2001 and February 27, 2009. The trial court granted the State’s

      motion over French’s objection. At the conclusion of trial, the jury found

      French not guilty of the count alleging molestation by sexual intercourse, but

      guilty on the count alleging molestation by deviate sexual conduct. At a

      sentencing hearing held on February 27, 2018, the trial court sentenced French

      to forty years of incarceration. French now appeals.

                                 I. Amendment of Charging Information

[6]   French first argues that the trial court erred by permitting the State to amend

      the charging information during trial. We conclude that French has forfeited

      this argument. If a defendant believes that an amendment to the charging

      information is prejudicial, he must request a continuance to further evaluate

      and prepare his case in light of the amendment. Miller v. State, 753 N.E.2d 1284,

      1288 (Ind. 2001); Haak v. State, 695 N.E.2d 944, 951 n.5 (Ind. 1998). Failing to

      request a continuance results in waiver of the issue on appeal. Haymaker v. State,

      667 N.E.2d 1113, 1114 (Ind. 1996); Daniel v. State, 526 N.E.2d 1157, 1162 (Ind.

      1988). Although French did object to the State’s motion to amend the charging

      information, he did not seek a continuance. Under Miller, Haak, and Haymaker,

      French failed to preserve this claim of error.4 Nevertheless, some cases from this


      4
        French argues that he could not seek a continuance because the State moved to amend the charging
      information during trial. But the Miller court noted the requirement to request a continuance during a
      discussion about the amendment of a charging information to conform to the evidence presented during trial.
      See id. at 1288; see also Lisenby v. State, 493 N.E.2d 780, 782 (Ind. 1986) (finding no error for the trial court to
      permit the State to amend charging information on the morning of trial where defendant did not request a
      continuance); Wilson v. State, 931 N.E.2d 914, 918 (Ind. Ct. App. 2010) (holding that defendant’s failure to
      request continuance waived any appellate claim regarding the trial court’s ruling permitting State to amend
      the charging information the day before trial), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-766 | November 26, 2018                       Page 4 of 20
      court have held that a defendant does not have to request a continuance to

      preserve a claim that the trial court permitted an untimely substantive

      amendment to a charging information. See Gibbs v. State, 952 N.E.2d 214, 223

      (Ind. Ct. App. 2011) (citing Fuller v. State, 875 N.E.2d 326, 331–32 (Ind. Ct.

      App. 2007)), trans. denied. As explained below, the amendment to the charging

      information in the present case was not substantive, and we do not consider

      these cases controlling. More importantly, even if French had properly

      preserved this issue, French would not prevail.


[7]   “A charging information may be amended at various stages of a prosecution,

      depending on whether the amendment is to the form or to the substance of the

      original information.” Erkins v. State, 13 N.E.3d 400, 405 (Ind. 2014) (quoting

      Fajardo v. State, 859 N.E.2d 1201, 1203 (Ind. 2007)). Indiana Code section 35-

      34-1-5(a) provides that an information “may be amended on motion by the

      prosecuting attorney at any time because of any immaterial defect[.]”

      Immaterial defects include spelling and grammatical errors, the misjoinder of

      parties, the failure to state the time or place of the offense where such

      information is not of the essence of the offense, or “any other defect which does

      not prejudice the substantial rights of the defendant.” I.C. § 35-34-1-5(a)(1), (2),

      (7), (9).


[8]   In opposition to amendments of form, an information “may be amended in

      matters of substance . . . by the prosecuting attorney, upon giving written notice

      to the defendant at any time” up to thirty days prior to the omnibus date where

      the defendant is charged with a felony or “before the commencement of trial”

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-766 | November 26, 2018   Page 5 of 20
       “if the amendment does not prejudice the substantial rights of the defendant.”

       I.C. § 35-34-1-5(b)(1), (2).

[9]    The amendment statute further provides, “[u]pon motion of the prosecuting

       attorney, the court may, at any time before, during, or after the trial, permit an

       amendment to the . . . information in respect to any defect, imperfection, or

       omission in form which does not prejudice the substantial rights of the

       defendant.” I.C. § 35-34-1-5(c) (emphasis added). Accordingly, “[a]n

       amendment of substance is not permissible after trial has commenced, and after

       trial has begun, only amendments to fix defects, imperfections, or omission in

       form are permitted, so long as the substantial rights of the defendant are not

       prejudiced. Blythe v. State, 14 N.E.3d 823, 828 (Ind. Ct. App. 2014).


[10]   Whether an amendment to a charging information is a matter of substance or

       form is a question of law, which we review de novo. Erkins, 13 N.E.3d at 405.

       “A defendant’s substantial rights ‘include a right to sufficient notice and an

       opportunity to be heard regarding the charge; and, if the amendment does not

       affect any particular defense or change the positions of either of the parties, it

       does not violate these rights.’” Id. (quoting Gomez v. State, 907 N.E.2d 607, 611

       (Ind. Ct. App. 2009), trans. denied). Ultimately, the question is whether the

       defendant had a reasonable opportunity to prepare for and defend against the

       charges. Id. at 405–06. An amendment is one of form and not substance if a

       defense under the original information would be equally available after the

       amendment and the accused’s evidence would apply equally to the information

       in either form, and an amendment is one of substance only if it is essential to

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-766 | November 26, 2018   Page 6 of 20
       making a valid charge of the crime. Bennett v. State, 5 N.E.3d 498, 514 (Ind. Ct.

       App. 2014), trans. denied.


[11]   It is well settled that “time is not of the essence in the crime of child molesting.”

       Barger v. State, 587 N.E.2d 1304, 1307 (Ind. 1992). As explained in Barger:


               It is difficult for children to remember specific dates, particularly
               when the incident is not immediately reported as is often the
               situation in child molesting cases. The exact date becomes
               important only in limited circumstances, including the case
               where the victim’s age at the time of the offense falls at or near
               the dividing line between classes of felonies.


       Id.


[12]   In the present case, under the first amended charging information, the

       molestation was alleged to have occurred when A.W., who was born in

       February 1997, was between four and eleven years of age. Under the charging

       information as amended at trial, the molestation was alleged to have occurred

       when A.W. was between three and eleven years of age under the first count,

       and when she was between four and twelve years of age under the second

       count. Accordingly, under either version of the charging information, A.W.’s

       age was not “at or near the dividing line” of fourteen that distinguishes the

       crime of child molesting from the crime of sexual misconduct with a minor.

       Compare Ind. Code § 35-42-4-3(a) (defining the crime of child molesting as

       performing or submitting to sexual intercourse or deviate sexual conduct with a

       child under fourteen years of age), with Ind. Code § 35-42-4-9(a) (defining crime

       of sexual misconduct with a minor as performing or submitting to sexual
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-766 | November 26, 2018   Page 7 of 20
       intercourse or deviate sexual conduct with a child at least fourteen years of age

       but less than sixteen years of age).5 The amendment of the charging information

       was therefore one of form, not substance, and was permissible at any time. See

       Baber v. State, 870 N.E.2d 486, 492 (Ind. Ct. App. 2007) (holding that

       amendment of charging information to alter the dates when the molestation

       occurred were not amendments of substance because the victim’s age of either

       six or seven at the time of the offenses was neither at nor near the “dividing

       line” of fourteen), trans. denied.


[13]   It is also of note that French did not assert any alibi defense. To the contrary,

       French’s defense was that he simply did not commit the crimes alleged against

       him. This defense was available to him under the information as amended at

       trial. See id. (noting that defendant did not assert an alibi defense that would

       have been affected by the amendment of the dates in the charging information

       but instead denied that he committed the offenses, a defense that was still

       available under the amended information) (citing Lacy v. State, 438 N.E.2d 968,

       972 (Ind. 1982) (recognizing an alibi defense as the “kind of situation which

       would make an amendment as to the date of the offense material by depriving




       5
        We refer, of course, to the versions of the statute that were in effect when French committed his crimes.
       Although these statutes underwent some emendation during the relevant time period of 2000 to 2009, none
       of these changes altered the “dividing line” age of fourteen that distinguishes the crimes of child molesting
       and sexual misconduct with a minor.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-766 | November 26, 2018                  Page 8 of 20
       the defendant of a defense”); Taylor v. State, 614 N.E.2d 944, 947 (Ind. Ct. App.

       1993) (applying Lacy in context of a charge of child molesting), trans. denied).6


                                           II. Incredible Dubiosity

[14]   French next argues that the evidence presented by the State was insufficient to

       support his conviction because A.W.’s testimony was incredibly dubious. Our

       standard of review on claims of insufficient evidence is well settled:

               When reviewing a claim that the evidence is insufficient to
               support a conviction, we neither reweigh the evidence nor judge
               the credibility of the witnesses; instead, we respect the exclusive
               province of the trier of fact to weigh any conflicting evidence. We
               consider only the probative evidence supporting the verdict and
               any reasonable inferences which may be drawn from this
               evidence. We will affirm if the probative evidence and reasonable
               inferences drawn from the evidence could have allowed a
               reasonable trier of fact to find the defendant guilty beyond a
               reasonable doubt.


       Harrison v. State, 32 N.E.3d 240, 247 (Ind. Ct. App. 2015), trans. denied (citing

       McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)). Moreover, it has long been

       held that the uncorroborated testimony of a victim is sufficient to support a

       conviction for child molesting. Carter v. State, 31 N.E.3d 17, 30 (Ind. Ct. App.

       2015) (citing Morrison v. State, 462 N.E.2d 78, 79 (Ind. 1984)).




       6
         French also argues that the amendment deprived him of the right to prepare a defense because his trial
       counsel had no time to investigate whether French had an alibi for the time added by the amendment to the
       information. But, as noted above, French did not request a continuance, which would have permitted him to
       investigate any such defenses.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-766 | November 26, 2018              Page 9 of 20
[15]   French does not deny that A.W.’s testimony, if believed, was sufficient to

       support his conviction. He argues instead that A.W.’s testimony was unworthy

       of credit, citing the “incredible dubiosity” rule. Under the incredible dubiosity

       rule, an appellate court may impinge upon the fact-finder’s assessment of

       witness credibility if the sole witness’s “testimony at trial was so ‘unbelievable,

       incredible, or improbable that no reasonable person could ever reach a guilty

       verdict based upon that evidence alone.’” Carter v. State, 44 N.E.3d 47, 52 (Ind.

       Ct. App. 2015) (quoting Moore v. State, 27 N.E.3d 749, 751 (Ind. 2015)).

       Incredible dubiosity is a difficult, but not impossible, standard to meet and

       requires ambiguous, inconsistent testimony that runs counter to human

       experience. Id. (citing Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001)).


[16]   French argues that A.W.’s testimony was incredibly dubious because she

       claimed that some of the molestations occurred when others were in the same

       house or even in the same room. However, it is not uncommon for child

       molesting to occur when other people are in the home or even in the same

       room. French also complains that A.W.’s testimony was inherently unreliable

       because she reported that her mother’s boyfriend touched her buttocks but did

       not report similar conduct by French. But this does not make her testimony

       inherently unbelievable. Moreover, A.W. did eventually report French’s

       molestation. Lastly, French claims that A.W.’s testimony regarding French

       performing anal intercourse on her is unreliable because she did not complain

       of any pain or bleeding, but only “overwhelming” pressure. Tr. Vol. 3, pp. 152–

       53. We note, however, that A.W. testified that French only placed the tip of his


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-766 | November 26, 2018   Page 10 of 20
       penis into her rectum. That A.W. did not experience pain or injury does not

       mean that no reasonable person could believe her testimony. Simply put,

       A.W.’s testimony was not incredibly dubious.


[17]   Because A.W.’s testimony was not incredibly dubious, any inconsistencies in

       her testimony were for the jury to consider in determining her credibility, and

       we will not invade the province of the jury by reweighing the evidence or

       reconsidering A.W.’s credibility. In short, the evidence was sufficient to support

       French’s convictions.

                                III. Abuse of Sentencing Discretion

[18]   French next argues that the trial court abused its discretion when it imposed a

       forty-year sentence on French’s Class A felony conviction. The sentencing

       range for a Class A felony is twenty to fifty years, with thirty years being the

       advisory sentence. Ind. Code § 35-50-2-4(a).


       A. Standard of Review

[19]   Sentencing decisions are entrusted to the sound discretion of the trial court.

       Grimes v. State, 84 N.E.3d 635, 643 (Ind. Ct. App 2017), trans. denied (citing

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

       218). Thus, we review the trial court’s sentencing decision only for an abuse of

       that discretion. Id. A trial court abuses its discretion when its sentencing

       decision is “clearly against the logic and effect of the facts and circumstances

       before the court, or the reasonable, probable, and actual deductions to be drawn

       therefrom.” Id. As explained by our supreme court in Anglemyer, there are
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-766 | November 26, 2018   Page 11 of 20
       several ways a trial court may abuse its discretion, including: (1) failing to enter

       a sentencing statement at all; (2) articulating reasons in a sentencing statement

       that are not supported by the record; (3) omitting reasons in a sentencing

       statement that are clearly supported by the record; or (4) articulating reasons

       that are improper as a matter of law. 868 N.E.2d at 490–91; accord Grimes, 84

       N.E.3d at 643–44.


       B. Failure to Find Mitigating Circumstances

[20]   French claims that the trial court abused its discretion by failing to find any

       mitigating circumstances. The determination of mitigating circumstances is

       within the discretion of the trial court. Townsend v. State, 45 N.E.3d 821, 830–31

       (Ind. Ct. App. 2015), trans. denied. A trial court is not required to accept a

       defendant’s arguments as to what constitutes a mitigating factor, nor is a trial

       court required to give the same weight to proffered mitigating factors as does a

       defendant. Id. at 830. A trial court does not abuse its discretion by failing to find

       a mitigating factor where that claim is highly disputable in nature, weight, or

       significance. Id. at 830–31. An allegation that a trial court abused its discretion

       by failing to identify or find a mitigating factor requires the defendant on appeal

       to establish that the mitigating evidence is significant and clearly supported by

       the record. Id. at 831.


[21]   The first mitigating factors that French claims the trial court improperly

       overlooked is French’s advanced age and frail health. However, it has long been

       held that that age is neither a statutory nor a per se mitigating factor. Monegan v.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-766 | November 26, 2018   Page 12 of 20
       State, 756 N.E.2d 499, 504 (Ind. 2001) (citing Sensback v. State, 720 N.E.2d

       1160, 1164 (Ind. 1999)). With regard to his health, it does appear that French

       suffered from several physical ailments, which is not uncommon for someone

       of his age. But French does not explain how his ailments had anything to do

       with his crimes. See Wooley v. State, 716 N.E.2d 919, 931 (Ind. 1999) (finding no

       error in trial court’s failure to consider defendant’s seizure disorder as a

       mitigating circumstance where there was no showing that his disorder affected

       his behavior or reduced his responsibility for his crime). Nor does French claim

       that his physical problems cannot be adequately addressed during incarceration.

       Cf. Moyer v. State, 796 N.E.2d 309, 314 (Ind. Ct. App. 2003) (holding that trial

       court abused its discretion by failing to find defendant’s lymphoma as a

       mitigating factor where the defendant testified at length regarding the medical

       hardships that he would endure if incarcerated and where record reflected that

       defendant's illness required constant medical attention and frequent tracheal

       cleanings and sterile catheters, which the prison could not regularly provide).

[22]   Even if French had received a minimum sentence, he would still have to spend

       several years in prison and be treated while incarcerated. And to the extent that

       his prosecution and conviction have had an adverse impact on his health,

       French can blame no one but himself and his deviant behavior for this. The trial

       court certainly did not have to consider this as a mitigating factor. Moreover,

       despite French’s age and considerable physical problems, these issues did not

       impede his ability to repeatedly molest his young victim. We therefore conclude




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-766 | November 26, 2018   Page 13 of 20
       that the trial court did not abuse its discretion by failing to consider either

       French’s age or his physical condition as significant mitigating factors.

[23]   French next claims that the trial court should have considered as mitigating that

       his crimes are unlikely to reoccur. In so arguing, French notes the collateral

       consequences of his conviction, i.e., that he will be required to register as a sex

       offender and not be around children. But this would be the case regardless of

       the length of French’s sentence.7 Although the pre-sentence investigation report

       indicates that French is at a moderate risk to reoffend, this does not by itself

       mean that the trial court was required to find that French was unlikely to

       reoffend or consider this as a mitigating factor, as there was evidence that

       French’s molestation of A.W. took place over the course of several years and

       was not an isolated incident. See Ware v. State, 816 N.E.2d 1167, 1178 (Ind. Ct.

       App. 2004) (holding that trial court did not abuse its discretion not to find as

       mitigating that defendant’s crimes were the result of circumstances unlikely to

       recur where he engaged in ongoing sexual relationship with minor for several

       months and his crime was not an isolated incident).


[24]   French also contends that the trial court should have considered as mitigating

       that his last prior conviction was in 1971. While the fact that French was not

       convicted of any crimes since 1971 is laudable, it does not erase the fact that he

       had many serious convictions prior to this date. Moreover, French sexually


       7
         To the extent that French claims that these collateral consequences are themselves mitigating, we disagree.
       These restrictions are merely prophylactic measures to mitigate the chance that French might repeat his
       criminal behavior.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-766 | November 26, 2018                Page 14 of 20
       abused A.W. for an extended period during the latter part of this time. Thus,

       the trial court was not required to consider this long period of conviction-free

       time as a mitigating factor. See Robinson v. State, 775 N.E.2d 316, 321 (Ind.

       2002) (holding that trial court properly attached no mitigating weight to

       defendant’s minor criminal history consisting of one misdemeanor possession

       of marijuana conviction and some traffic infractions); Townsend v. State, 860

       N.E.2d 1268, 1272 (Ind. Ct. App. 2007) (holding that trial court was not

       required to consider defendant’s relatively minor and unrelated criminal history

       as a mitigating circumstance), trans. denied.


       C. Aggravating Circumstances

[25]   French also claims that the trial court abused its discretion in considering

       certain factors as aggravating. The trial court found five aggravating factors: (1)

       the defendant’s prior criminal history; (2) the nature and circumstances of the

       crime; (3) the acts occurred over an extended period of time when A.W. was

       between the ages of four and eleven years old; (4) French held a position of trust

       as a family friend and was referred to by A.W. as “Uncle Dino”; and (5) French

       had custody and care of A.W. on several occasions. Appellant’s App. p. 212.

[26]   On appeal, French argues that the last four aggravating factors are “variations

       on two themes: the nature and circumstances of the crime, and violation of a

       position of trust.” Appellant’s Br. at 20. But even if we agree with French, the

       most he has established is that the trial court should have counted these four

       aggravators as two. He does not claim that these circumstances are improper


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-766 | November 26, 2018   Page 15 of 20
       aggravators.8 It is well established that even a single aggravating circumstance

       may be sufficient to support an enhanced sentence. Baumholser v. State, 62

       N.E.3d 411, 417 (Ind. Ct. App. 2016), trans. denied. Indeed, abusing a position

       of trust is, by itself, a valid aggravator that may support the imposition of even

       the maximum sentence. Id. (citing Hart v. State, 829 N.E.2d 541, 544 (Ind. Ct.

       App. 2005)).


[27]   “When a trial court improperly applies an aggravator but other valid

       aggravating circumstances exist, a sentence enhancement may still be upheld.”

       Id. (quoting Hackett v. State, 716 N.E.2d 1273, 1278 (Ind. 1999)). The question is

       whether we are confident the trial court would have imposed the same sentence

       even if it had not found the improper aggravator. Id. Here, we are confident

       that, even if the trial court should have listed only two aggravators, it would

       have imposed the same sentence.


[28]   Similarly, even if a trial court has abused its discretion in sentencing a

       defendant, we need not remand for resentencing if we conclude that the trial

       court’s sentence is not inappropriate. Williams v. State, 997 N.E.2d 1154, 1165

       (Ind. Ct. App. 2013); Shelby v. State, 986 N.E.2d 345, 370 (Ind. Ct. App. 2013),

       trans. denied; Chappell v. State, 966 N.E.2d 124, 134 n.10 (Ind. Ct. App. 2012),




       8
         Even if he did, he would be incorrect. See Caraway v. State, 959 N.E.2d 847, 850 (Ind. Ct. App. 2011)
       (noting that, although a trial court may not use a material element of the offense as an aggravating factor, it
       may find the particular nature and circumstances of the offense to be aggravating), trans. denied; Edrington v.
       State, 909 N.E.2d 1093, 1097 (Ind. Ct. App. 2009) (noting that violation of a position of trust is a valid
       aggravating factor), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-766 | November 26, 2018                   Page 16 of 20
       trans. denied. As discussed below, we conclude that French’s sentence is not

       inappropriate.

                                         IV. Appellate Rule 7(B)

[29]   Lastly, French claims that his forty-year executed sentence is inappropriate.

       Even if a trial court acts within its statutory discretion in imposing a sentence,

       Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent

       appellate review and revision of a sentence imposed by the trial court. Trainor v.

       State, 950 N.E.2d 352, 355–56 (Ind. Ct. App. 2011), trans. denied (citing

       Anglemyer, 868 N.E.2d at 491). This authority is implemented through Indiana

       Appellate Rule 7(B), which provides that the court on appeal “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.”

[30]   Although we may revise a sentence on appeal, we must and should exercise

       deference to a trial court's sentencing decision, because Rule 7(B) requires us to

       give “due consideration” to that decision and because we understand and

       recognize the unique perspective a trial court brings to its sentencing decisions.

       Id. Although we have the power to review and revise sentences, the principal

       role of appellate review should be to attempt to leaven the outliers and identify

       some guiding principles for trial courts and those charged with improvement of

       the sentencing statutes, but not to achieve what we perceive to be a “correct”

       result in each case. Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App.

       2011) (citing Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)), trans. denied.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-766 | November 26, 2018   Page 17 of 20
[31]   Under Appellate Rule 7(B), the appropriate question is not whether another

       sentence is more appropriate; rather, the question is whether the sentence

       imposed is inappropriate. Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct. App.

       2007). When we review the appropriateness of a sentence, we consider “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,

       895 N.E.2d at 1224. The defendant has the “burden to persuade us that the

       sentence imposed by the trial court is inappropriate.” Shell v. State, 927 N.E.2d

       413, 422 (Ind. Ct. App. 2010) (citing Anglemyer, 868 N.E.2d at 494).


[32]   Here, French was convicted of a Class A felony. As noted above, the sentencing

       range for a Class A felony is twenty to fifty years, with thirty years being the

       advisory sentence. I.C. § 35-50-2-4(a). The trial court imposed a forty-year

       sentence, which is ten years above the advisory but also ten years below the

       maximum. With this in mind, we consider the nature of French’s offense and

       French’s character.


[33]   The nature of French’s offense is heinous. He repeatedly molested a young girl

       whose family had placed their trust in French. Indeed, A.W. testified that

       French was a role model. But French abused this position of trust in one of the

       vilest ways. Nothing about the nature of French’s offense persuades us that his

       forty-year sentence is inappropriate.

[34]   The same is true for French’s character, as evidenced by his extensive criminal

       history. French emphasizes that his last conviction was decades ago, in 1971.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-766 | November 26, 2018   Page 18 of 20
       Again, we laud French for this long period of crime-free life. But the evidence

       presented at trial showed that French began to molest A.W. in 2001, and these

       molestations were not exposed until years later. Moreover, French’s prior

       convictions were relatively serious: misdemeanor and felony theft, auto theft,

       and assault with the intent to kill.


[35]   French argues that his forty-year sentence might as well be the maximum

       sentence in that, given his advanced age and physical infirmity, he will probably

       die in prison. But, as French was almost eighty years old at the time of

       sentencing,9 this would most likely hold true even if French had been sentenced

       to the minimum term of twenty years. We do not consider French’s sentence

       inappropriate based on his age. See Rolston v. State, 81 N.E.3d 1097, 1106 (Ind.

       Ct. App. 2017) (affirming maximum thirty-year sentence imposed on sixty-year-

       old defendant even though it would mean that the defendant would most likely

       die in prison), trans. denied.


[36]   Considering both the nature of the offense and the character of the offender,

       and giving due consideration to the trial court’s sentencing decision, we are

       unable to conclude that French’s forty-year sentence is inappropriate.10




       9
         French was born on September 1, 1938 and was sentenced on February 27, 2018, approximately six months
       from his eightieth birthday.
       10
         The cases French cites in his reply brief to support his claim that his sentence is inappropriate are
       distinguishable. Cardwell, 895 N.E.2d at 1226, where the court revised a thirty-four-year sentence to one of
       seventeen years, did not involve a conviction for child molesting, and the defendant’s criminal history
       consisted only of misdemeanors. Prickett v. State, 856 N.E.2d 1203, 1209–10 (Ind. 2006), where the court
       reduced a forty-year sentence to thirty, involved a defendant who had a minor criminal history and who
       committed one incident of child molesting with a thirteen-year-old victim. In Mishler v. State, 894 N.E.2d

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-766 | November 26, 2018                 Page 19 of 20
                                                    Conclusion

[37]   The trial court did not err by granting the State’s motion to amend the charging

       information during trial. French did not preserve this claim of error by failing to

       request a continuance. Even if he had preserved this claim, the amendment was

       one of form and could have been made at any time. We further conclude that

       the victim’s testimony was not incredibly dubious, and therefore, that testimony

       was sufficient to support French’s conviction for Class A felony child

       molesting. Lastly, the trial court did not abuse its discretion in the identification

       of aggravating and mitigating factors when determining French’s sentence, and

       even if it did, no remand is required because we do not find French’s forty-year

       sentence to be inappropriate in light of the nature of the offense and the

       character of the offender.


[38]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       1095, 1104 (Ind. Ct. App. 2008), where the court reduced a fifty-year-sentence to one of thirty-eight years,
       involved the maximum sentence, and the defendant had a criminal history that consisted only of
       misdemeanors. Here, French’s criminal history, although remote, includes prior felony convictions.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-766 | November 26, 2018                  Page 20 of 20
