      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                                   FILED
      this Memorandum Decision shall not be                               Sep 28 2016, 6:11 am

      regarded as precedent or cited before any                                CLERK
                                                                           Indiana Supreme Court
      court except for the purpose of establishing                            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
      Steven E. Ripstra                                        Gregory F. Zoeller
      Ripstra Law Office                                       Attorney General of Indiana
      Jasper, Indiana                                          Monika Prekopa Talbot
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Brent Kraay,                                             September 28, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               19A05-1601-CR-125
              v.                                               Appeal from the Dubois Circuit
                                                               Court
      State of Indiana,                                        The Honorable Mark R.
      Appellee-Plaintiff.                                      McConnell, Judge
                                                               Trial Court Cause No.
                                                               19C01-1505-FA-317



      Mathias, Judge.


[1]   Brent Kraay (“Kraay”) was convicted in Dubois Circuit Court of two counts of

      Class A felony child molesting, two counts of Class C felony child molesting,


      Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016     Page 1 of 19
      and one count of Class D felony conducting a performance harmful to minors.

      The trial court sentenced Kraay to an aggregate term of thirty years of

      incarceration. Kraay appeals and presents three issues, which we renumber and

      restate as the following four issues:

          I.   Whether the State presented evidence sufficient to support Kraay’s
               convictions;

          II. Whether the statute defining the crime of Class A felony child molesting
              is unconstitutionally vague;

          III. Whether the trial court erred by denying Kraay’s motion to sever the
               charges involving Kraay’s two daughters; and

          IV. Whether Kraay’s thirty-year sentence is inappropriate.

[2]   We affirm.

                                    Facts and Procedural History

[3]   Kraay married M.R. in 1999, and the marriage produced three daughters: N.K.,

      born in September 1999; M.K., born in 2001; and J.K., born in 2005. Kraay and

      M.R. were divorced in 2005, after which M.R. and the children moved to

      Noblesville, and Kraay remained in the former marital residence in Dubois

      County.

[4]   M.R. later remarried but divorced her second husband when it was discovered

      that he had sexually molested N.K. Kraay later married V.J., who had two

      children from a previous relationship. After the divorce, Kraay’s children would

      visit him once every two to three months.




      Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016   Page 2 of 19
[5]   During one of these visitations with Kraay, N.K. mentioned to him and V.J.

      that she had been having dreams of a sexual nature.1 Allegedly concerned that

      his daughter might be sexually active, Kraay decided to perform a physical

      check of N.K. to determine if she was still a virgin. Kraay had N.K. lie down on

      a bed and remove her pants and underwear. He then manipulated N.K.’s

      genitalia, held open her labia and checked to see if her hymen was still intact.

      As he did so, he placed his finger in N.K.’s vagina and touched her hymen.


[6]   On another occasion, Kraay decided to talk to N.K. and M.K. about sex. He

      took the girls into his bedroom and exposed his penis to the girls, explaining

      that he wanted to tell them about “the boys’ parts.” Tr. p. 67. He instructed the

      girls to touch his penis, which they did. Kraay then touched his penis and

      ejaculated in the girls’ presence. He told them that the ejaculate was “sperm”

      and was used to make a baby. Tr. p. 74. He also had the girls expose their

      genital area so he could talk about their “parts” too. Tr. p. 67. N.K. testified

      that Kraay looked at her genitals and “showed how a baby was born.” Id. N.K.

      explained that Kraay saw that N.K. “had too much white stuff,”2 and wiped her

      vagina with a towel. Id. She also testified that Kraay “used his pointer finger . . .

      and took some of our white stuff out.” Id. at 91. M.K. too testified that her

      father reached inside her, although she was unsure as to whether her pants were




      1
       Initially, N.K. told her stepmother that she was “having sex with little boys.” Tr. p. 114. It was later
      determined that N.K. was referring to dreams she had been having, not actual sexual intercourse. Id. at 115.
      2
        It is unclear precisely what this “white stuff” refers to. However, as explained infra, M.K. was later treated
      for a yeast infection.

      Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016             Page 3 of 19
      down at the time. Tr. pp. 100-01. Kraay also demonstrated how men and

      women have sex, using N.K., but both had their pants up at this time. After he

      was done, Kraay instructed the girls not to tell their mother what he had done.


[7]   During another incident, M.K. complained to her stepmother V.J. that her

      private area was itching and burning. V.J. told Kraay about this and suggested

      that they go to the hospital. Kraay gave several reasons why they should not go

      to the hospital and insisted on looking at M.K. himself. Kraay, V.J., and M.K.

      went into the bedroom, where Kraay instructed M.K. to remove her pants. He

      then held open M.K.’s labia and asked V.J. to look inside. V.J. stated that it

      looked like M.K. had a yeast infection and gave her some medicine.

[8]   The girls’ mother, M.R., at first had no reason to suspect any inappropriate

      behavior. Though M.K. did tell her mother at one point that she had seen her

      father’s penis, M.R. assumed she had accidentally seen her father in the

      bathroom. However, during the 2012-13 Christmas break, Kraay informed his

      ex-wife that he had checked N.K. to see if she was still a virgin. N.K. was in

      therapy due to the previous molestation by her former stepfather, and in

      February of 2013, N.K. told her therapist what Kraay had done.

[9]   During the subsequent investigation by Indiana Department of Child Services

      (“DCS”) investigator Jessica Hernandez, Hernandez spoke with Kraay, his wife

      V.J., and his ex-wife, M.R. During a telephone interview, Kraay admitted that

      he and V.J. were “educating” his daughters about sex and that he wanted to

      make sure that their hymens were intact. Tr. p. 37. Kraay stated that he used a


      Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016   Page 4 of 19
       wash cloth to wash off the vaginal area of one of his daughters and that some

       mucus may have transferred to his finger. Kraay also admitted that he showed

       his daughters his penis and that he had looked at M.K.’s breasts to see if she

       wore the right size bra. During a subsequent face-to-face interview, Kraay told

       Hernandez that he had inserted his finger into his daughters’ vaginas but again

       claimed that he did so for educational purposes and did not know that this was

       wrong. This time, he further admitted that he had shown his penis to the girls.


[10]   The matter was then referred to the police. During a police interrogation, Kraay

       again admitted that he had checked N.K. to see if her hymen was still intact.

       Although he denied sticking his finger inside N.K., he admitted that he pointed

       at her hymen and may have touched it. He also admitted that N.K. was “not

       lying.” Ex. Vol., State’s Ex. 4. He also admitted that he had checked M.K. to

       see if she had a yeast infection, that he had shown both girls his penis, and that

       pre-seminal fluid may have come out of his penis. He claimed that he exposed

       himself for “educational” purposes and to “kill the curiosity.” Id.


[11]   On May 4, 2015, the State charged Kraay with two counts of Class A felony

       child molesting, two counts of Class C felony child molesting, and Class D

       felony conducting a performance harmful to minors. On July 17, 2015, Kraay

       filed a motion to dismiss, based in part on the alleged vagueness of the statutes

       under which he was charged. The trial court denied this motion on July 31,

       2015. On August 6, 2015, the State amended the charging information to add

       two more counts of Class C felony child molesting. A jury trial was held on

       November 17 and 19, 2015. After the State had presented its case-in-chief,

       Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016   Page 5 of 19
       Kraay moved for a directed verdict based again, in part, on the alleged

       vagueness of the child molesting statute. The trial court denied this motion. At

       the conclusion of the trial, the jury found Kraay guilty of two counts of Class A

       felony child molesting, two counts of Class C felony child molesting, and one

       count of Class D felony conducting a performance harmful to minors. On

       December 21, 2015, the trial court sentenced Kraay to thirty years on both

       Class A felony convictions, four years on both Class C felony convictions, and

       one and one-half years on the Class D felony conviction. The trial court ordered

       all sentences to be served concurrently, for an aggregate term of thirty years.

       Kraay now appeals.

                                     I. Sufficiency of the Evidence

[12]   Kraay first claims that the State failed to present sufficient evidence to support

       his convictions. Our standard of review in reviewing claims of insufficient

       evidence is well settled: we neither reweigh the evidence nor judge the

       credibility of the witnesses, and we consider only the evidence most favorable to

       the verdict and the reasonable inferences that can be drawn from this evidence.

       Knight v. State, 42 N.E.3d 990, 993 (Ind. Ct. App. 2015). We will not disturb the

       jury’s verdict if there is substantial evidence of probative value to support it. Id.

       As an appellate court, we respect the jury’s exclusive province to weigh

       conflicting evidence. Id.


[13]   It is also well settled that a conviction for child molesting may stand on the

       uncorroborated testimony of a minor witness. Smith v. State, 779 N.E.2d 111,

       115 (Ind. Ct. App. 2002). The unfamiliarity of a young victim with anatomical
       Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016   Page 6 of 19
       terms does not make her incompetent to testify when the facts are explained in

       simple or childlike language which the judge and jury can understand. Id.


[14]   Kraay argues that his two convictions for Class A felony child molesting were

       not supported by sufficient evidence. The information charging Kraay alleged

       that he “did knowingly or intentionally perform deviate sexual conduct with a

       child under the age of fourteen years, to-wit, by penetrating the female sex

       organ of [M.K. and N.K.] with his finger.” Appellant’s App. pp. 34-35. This

       tracks the relevant statute, which defines Class A felony child molesting as “a

       person at least twenty-one years of age” who, with a child under fourteen years

       of age, “performs or submits to sexual intercourse or deviate sexual conduct.”

       Ind. Code § 35-42-4-3(a)(1).3

[15]   Kraay briefly argues that there was no proof of intercourse. This is beside the

       point, as Kraay was not charged with committing child molesting by having

       sexual intercourse. Instead, the State alleged that he performed deviate sexual

       conduct on N.K. and M.K. At the time relevant to this appeal, “deviate sexual

       conduct” was defined as “an act involving . . . the penetration of the sex organ

       or anus of a person by an object.” See Ind. Code § 35-31.5-2-94(2) (2013).4




       3
        We refer to the versions of the statutes in effect at the time Kraay committed his crimes: 2012 and 2013. See
       Appellant’s App. pp. 34-35 (alleging that Kraay committed his crimes between January 1, 2012 and February
       18, 2013).
       4
         Effective July 1, 2014, our General Assembly repealed the statute defining deviate sexual conduct and
       replaced it with Indiana Code section 35-31.5-2-221.5, which similarly defines “other sexual conduct” as “an
       act involving . . . the penetration of the sex organ or anus of a person by an object.”

       Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016          Page 7 of 19
[16]   Kraay argues that there was no proof that he committed deviate sexual conduct

       because the evidence that he penetrated his daughters’ sex organs was

       insufficient. We disagree. First, for purposes of defining deviate sexual conduct,

       a finger is an “object.” Simmons v. State, 746 N.E.2d 81, 86 (Ind. Ct. App. 2001).

       Moreover, with regard to the element of penetration, a detailed anatomical

       description of penetration is unnecessary. Smith, 779 N.E.2d at 115. Instead,

       proof of the slightest penetration is sufficient to sustain convictions for child

       molesting, as the statute does not require that the vagina be penetrated, only

       that the female sex organ, which includes the external genitalia, be penetrated.

       Id. Thus, a conviction for child molesting will be sustained when it is apparent

       from the circumstances and the victim’s limited vocabulary that the victim

       described an act which involved penetration of the sex organ. Id.


[17]   Here, N.K. testified that Kraay penetrated her sex organ with his finger.

       Specifically, she testified that Kraay placed his finger “inside” her when he was

       checking to see if she was still a virgin. Tr. p. 66. The DCS investigator testified

       that Kraay admitted to her that he placed his finger in N.K.’s vagina. Kraay

       also admitted during police interrogation that he touched his daughter’s hymen

       when he was performing his alleged virginity check.5 From this evidence, the

       jury could readily conclude that Kraay penetrated N.K.’s sex organ with his

       finger. Thus, the State adequately established that Kraay performed deviate




       5
         See Ex. Vol., State’s Ex. 4 at 23:21 – 23:24 (video recording of police interview of Kraay, with Kraay
       stating, “I think I actually did touch it [N.K.’s hymen].”).

       Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016           Page 8 of 19
       sexual conduct on N.K. sufficient to support his conviction for Class A felony

       child molesting.

[18]   The same is true with regard to M.K., who testified that Kraay touched her

       genitalia. M.K. testified that Kraay touched her private part with his finger and

       took some “white stuff” out. When later asked to clarify whether Kraay

       “reach[ed] inside, did he do that?” M.K. responded, “To me, oh, yeah.” Tr. p.

       100. Again, this is sufficient to prove that Kraay’s finger penetrated M.K.’s sex

       organ. Thus, there was evidence from which the jury could reasonable infer that

       Kraay committed Class A felony child molesting by penetrating M.K.’s sex

       organ with his finger.

[19]   Kraay also claims that there was no evidence of any sexual intent on his part

       when he touched N.K. and M.K. However, with regard to the two counts of

       Class A felony child molesting, the State was not required to prove any sexual

       intent. Our supreme court has held: “the elements of the crime of child

       molesting under Ind. Code § 35-42-4-3(a) do not include the intent to arouse or

       satisfy sexual desires.” D’Paffo v. State, 778 N.E.2d 798, 801 (Ind. 2002).


[20]   The D’Paffo court explained its holding as follows:


               We believe that the structure of Ind. Code § 35-42-4-3 and of the
               other crimes in the sex crimes chapter of the criminal code are
               best understood to include the “intent to arouse or satisfy sexual
               desires” element only where it is expressly set forth. What is at
               stake here is whether the Legislature meant to criminalize all
               sexual intercourse and deviate sexual conduct with children or
               only that performed with intent to arouse or satisfy sexual

       Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016   Page 9 of 19
               desires. We think it more likely that the Legislature meant to
               criminalize such conduct performed, for example, to perpetrate
               revenge or to coerce a parent to take some type of action, in
               addition to conduct performed to arouse or satisfy sexual desires.


       Id.


[21]   Acknowledging that its holding appeared to criminalize medical and personal

       hygiene procedures involving penetration, the D’Paffo court set forth an

       important limitation on the scope of criminal liability under the child molesting

       statute:


               It is well established that conviction of child molesting requires
               the State to prove beyond a reasonable doubt criminal intent on
               the part of the defendant. Where the evidence warrants an
               inference that an alleged penetration of the sex organ or anus of a
               person by an object was in furtherance of a bona fide medical or
               personal hygiene-related examination or procedure, we believe that [a]
               defendant would be entitled to an appropriate instruction as to
               criminal intent.


       Id. at 802 (emphases added).


[22]   Here, the jury was instructed regarding the requirement of intent on the part of

       Kraay and that it was a defense to the crime “if you believe that the penetration

       by an object was in furtherance of a bona fide medical or person hygiene-related

       examination or procedure.” Appellant’s App. p. 130. The jury obviously

       rejected this claim, and with good reason. The jury also heard evidence that

       Kraay made his daughters touch his penis and ejaculated in front of them. This



       Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016   Page 10 of 19
       severely undermines his claim that he was merely checking his daughters’

       genitalia for appropriate medical or personal hygiene reasons.

[23]   We similarly reject Kraay’s claim that the evidence was insufficient to support

       his two convictions for Class C felony child molesting, both of which were

       based on Kraay having M.K. and N.K. touch his penis. See Appellant’s App. p.

       41. Unlike a conviction for child molesting based on deviate sexual conduct, a

       conviction for Class C felony child molesting based on fondling or touching

       does require that the State prove that the defendant acted with the intent to

       arouse or gratify the sexual desires of either the defendant or the child. See I.C. §

       35-42-4-3(b) (“[a] person who, with a child under fourteen (14) years of age,

       performs or submits to any fondling or touching, of either the child or the older

       person, with intent to arouse or to satisfy the sexual desires of either the child or

       the older person, commits child molesting, a Class C felony.”); see also D’Paffo,

       778 N.E.2d at 800-01 (noting the sexual desire intent requirement in subsection

       (b) of the child molesting statute).

[24]   Here, Kraay told his daughters to touch his penis, and Kraay subsequently

       masturbated and ejaculated in their presence. This adequately establishes that

       he acted with the intent to arouse or satisfy his own sexual desires. In short, the

       State presented evidence sufficient to support all of Kraay’s convictions.6




       6
        Kraay presents no cogent argument regarding the sufficiency of the evidence supporting his conviction for
       Class D felony conducting a performance harmful to minors.

       Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016       Page 11 of 19
                                                    II. Vagueness

[25]   Kraay also claims that subsection 3(a) of the child molesting statute, because it

       requires no sexual intent on the part of a defendant, is unconstitutionally

       vague.7 When a statute is challenged as unconstitutional, we start with a

       presumption that the statute is constitutional. Baumgartner v. State, 891 N.E.2d

       1131, 1136 (Ind. Ct. App. 2008). The burden is on the defendant to rebut this

       presumption. Id. When addressing a claim that a statute is impermissibly vague,

       we must resolve all reasonable doubts in favor of the statute’s constitutionality.

       Id. We will not conclude that a statute is unconstitutionally vague so long as

       individuals of ordinary intelligence would comprehend it adequately to inform

       them of the proscribed conduct. Id. “The statute need only inform the

       individual of the generally proscribed conduct; it need not list with exactitude

       each item of prohibited conduct.” Id.


[26]   A statute may also be impermissibly vague if its terms invite arbitrary or

       discriminatory enforcement. Id. There must be something in the criminal statute

       in question to indicate where the line is to be drawn between trivial and

       substantial things, so that erratic arrests and convictions for trivial acts and

       omissions will not occur. Id. However, a statute is void for vagueness only if it

       is vague as applied to the precise circumstances of the present case; the




       7
        Because Kraay filed a pre-trial motion to dismiss on grounds of vagueness, he has preserved this issue for
       appeal. See Slone v. State, 912 N.E.2d 875, 878 (Ind. Ct. App. 2009) (noting that the failure to file a proper
       motion to dismiss raising a constitutional challenge to a criminal statute generally waives the issue on
       appeal), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016           Page 12 of 19
       defendant is not at liberty to devise hypothetical situations which might

       demonstrate vagueness. Id.


[27]   Kraay claims that the child molesting statute is vague because it is unclear as to

       what acts are criminalized and what acts are not. We disagree. The statutory

       language itself is straightforward and unambiguous: “a person who, with a

       child under fourteen (14) years of age, performs or submits to . . . deviate sexual

       conduct commits child molesting.” I.C. § 35-42-4-3(a). And deviate sexual

       conduct is clearly defined as “an act involving . . . the penetration of the sex

       organ or anus of a person by an object.” Ind. Code § 35-31.5-2-94(2) (2013).

       Thus, anyone who penetrates the sex organ or anus of a child under the age of

       fourteen with an object commits child molesting. See D’Paffo, 778 N.E.2d at

       801-02. We do not find this to be vague.


[28]   Kraay attempts to introduce vagueness into the statute by arguing that it is

       uncertain to whom the “bona fide medical or personal hygiene-related

       examination or procedure” exception or defense set forth in D’Paffo is available.

       See Appellant’s Br. p. 18 (“Do Kraay’s actions fit within the medical/personal

       hygiene exceptions? If they do, are some or all other family members excluded

       from the exceptions? Are the defenses available only to doctors? Nurses?

       Physician assistants? Therapists? Emergency personnel? Teachers?”). We need

       not decide these hypotheticals. See Baumgartner, 891 N.E.2d at 1136. The proper

       question is whether the statute is vague as applied to the precise circumstances

       of the present case. Id. We think not.



       Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016   Page 13 of 19
[29]   The “bona fide medical or personal hygiene” defense was considered and

       rejected by the jury in the present case. Kraay had no bona fide reason to place

       his fingers in his daughters’ sex organs. The fact that the jury rejected his

       defense does not render the statute unconstitutionally vague.

                                                III. Severance

[30]   Kraay next argues that the trial court erred in denying his motion to sever the

       charges against him. Specifically, he claims that the charges involving N.K.

       should have been severed from the charges involving M.K.


[31]   Under the controlling statute:


               Two (2) or more offenses may be joined in the same indictment
               or information, with each offense stated in a separate count,
               when the offenses:
               (1) are of the same or similar character, even if not part of a
               single scheme or plan; or

               (2) are based on the same conduct or on a series of acts
               connected together or constituting parts of a single scheme or
               plan.

       Ind. Code § 35-34-1-9(a).

[32]   Furthermore, if “two (2) or more offenses have been joined for trial in the same

       indictment or information solely on the ground that they are of the same or

       similar character, the defendant shall have a right to a severance of the

       offenses.” Ind. Code § 35-34-1-11(a) (emphases added).




       Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016   Page 14 of 19
[33]   Thus, if two or more offenses have been joined solely under subsection 9(a)(1),

       then the defendant has the right to severance, but if the offenses were joined

       under subsection 9(a)(2), the defendant is not entitled to severance. See Pierce v.

       State, 29 N.E.3d 1258, 1265 (Ind. 2015). Subsection 9(a)(1) refers to the nature

       of the charged offenses, whereas subsection 9(a)(2) refers to the operative facts

       underlying those charges. Id.


[34]   In some instances, crimes that are of the same or similar character may also be

       based a series of connected acts. Id. To determine whether offenses warrant

       joinder under subsection (9)(a)(2), courts should ask whether the operative facts

       establish a pattern of activity beyond mere satisfaction of the statutory elements.

       Id. It is well-settled that a common modus operandi and motive can sufficiently

       link crimes committed on different victims. Id. But establishing the defendant’s

       unique method of committing the crimes is not the exclusive way of showing

       his acts are connected together. Id. Offenses can also be linked by a defendant's

       efforts to take advantage of his special relationship with the victims. Id. A

       common relationship between the defendant and the victims may even result in

       an interconnected police investigation into the crimes, producing overlapping

       evidence. Id.


[35]   In the present case, Kraay argues that the charges against him were joined

       solely on the ground that they were of the same or similar character and that he

       was therefore entitled to severance of the charges as a matter of right. The State

       claims that Kraay’s charges were joined because they were “based on the same

       conduct or on a series of acts connected together or constituting parts of a single

       Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016   Page 15 of 19
       scheme or plan” under subsection 9(a)(2) and that Kraay is not entitled to

       severance. We agree with the State.

[36]   Kraay’s claim that the charges against him were of the same or similar

       character has some merit. However, we cannot say that the offenses were joined

       solely on that ground, which would require severance. As in Pierce, “the

       incidents here share much more than their criminal category.” 29 N.E.3d at

       1266. Indeed, as in Pierce, Kraay was not charged with unrelated child

       molestations; they were connected by his victims, his method, and his motive.

       See id. Kraay exploited his position as a caregiving father by molesting his own

       daughters. See id. (noting that defendant exploited his position of a trusted

       grandfather or great uncle by molesting young female family members in his

       care). N.K.’s allegations against her father initiated the investigation which

       uncovered the molestation against both girls. See id. (noting that allegations

       made by one victim led police to identify other victims). As in Pierce, much of

       the evidence overlapped, as at least one of the incidents occurred when both

       girls were present. See id. Kraay’s method was also fairly consistent: he framed

       his molestation as “educational” or health-related. See id. His motive was also

       apparent: to fulfill his deviant sexual desires. To quote the court in Pierce, “[w]e

       decline to require separate trials as of right where the defendant committed the

       same crime, in substantially the same way, against similar victims.” Id.


[37]   Thus, the charges against Kraay were not joined solely because they were of a

       same or similar character. They were also joined because they were based on the

       same conduct or on a series of acts connected together or constituting parts of a

       Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016   Page 16 of 19
       single scheme or plan. Accordingly, Kraay did not have a right to severance, and

       the trial court did not err in denying his motion to sever the offenses.

                                                IV. Sentencing

[38]   Lastly, Kraay claims that his thirty-year aggregate sentence is inappropriate.

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

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

       appellate review and revision of that sentence. Trainor v. State, 950 N.E.2d 352,

       355-56 (Ind. Ct. App. 2011). This authority is implemented via Indiana

       Appellate Rule 7(B), which provides that an appellate court “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.” However, “we must and

       should exercise deference to a trial court's sentencing decision, both 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. at 355-56.


[39]   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 a perceived ‘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)). The burden is on the


       Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016   Page 17 of 19
       defendant to persuade us that his sentence is inappropriate. Trainor, 950 N.E.2d

       at 356 (citing Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007)).


[40]   Kraay was convicted of two counts of Class A felony child molesting. The

       sentencing range for a Class A felony is twenty to fifty years, with the advisory

       sentence being thirty years. Ind. Code § 35-50-2-4. The trial court sentenced

       Kraay to the thirty-year advisory sentence on both Class A felony convictions

       and ordered all sentences to be served concurrently, for an aggregate term of

       thirty years. Because the advisory sentence is the starting point our General

       Assembly has selected as an appropriate sentence for the crime committed, the

       defendant bears a particularly heavy burden in persuading us that his sentence

       is inappropriate when the trial court imposes the advisory sentence. Trainor, 950

       N.E.2d at 356.


[41]   The nature of Kraay’s offenses support the trial court’s decision to impose the

       advisory sentence of thirty years. Kraay inserted his finger into two of his

       daughters’ sex organs under the pretense of “education” or medical examination.

       He not only exposed his penis to the girls, but he told them to touch it and

       ejaculated while they were watching, telling them that this “sperm” was used to

       make babies. He then demonstrated how to have sex with N.K. That there was

       no apparent physical harm to his daughters does not lessen that Kraay betrayed

       the trust of his daughters and abused his position of authority over them.

[42]   Kraay’s character also does nothing to persuade us that his advisory sentence is

       inappropriate. Although Kraay does not have an extensive criminal history, the


       Court of Appeals of Indiana | Memorandum Decision 19A05-1601-CR-125 | September 28, 2016   Page 18 of 19
       facts surrounding his prior conviction for criminal trespass, as revealed by the

       testimony of the victim of the trespass at the sentencing hearing, demonstrate

       Kraay’s deviant character. The victim of Kraay’s prior trespass conviction

       explained that Kraay had sexually harassed her and even grabbed her breasts

       and buttocks. Despite being told that she was not interested in Kraay’s

       advances, Kraay went into the victim’s home and rummaged through the

       drawers containing her underwear.


[43]   Giving due deference to the trial court’s sentencing decision, and considering the

       nature of Kraay’s offenses and his character, we conclude that Kraay has not met

       his burden of showing that his thirty-year aggregate sentence is inappropriate.

                                                  Conclusion

[44]   The State presented sufficient evidence to support Kraay’s convictions, and the

       child molesting statute is not unconstitutionally vague as applied to the facts of

       this case. Because the charges against Kraay were not joined solely on the

       grounds that they were of the same or similar character, Kraay was not entitled

       to severance of the charges. Also, Kraay’s thirty-year aggregate sentence is not

       inappropriate in light of the nature of the offense and the character of the

       offender.

[45]   Affirmed.


       Vaidik, C.J., and Barnes, J., concur.




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