Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                  Jan 14 2015, 9:22 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

CARA SCHAEFER WIENEKE                              GREGORY F. ZOELLER
Wieneke Law Office, LLC                            Attorney General of Indiana
Plainfield, Indiana
                                                   RICHARD C. WEBSTER
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                                IN THE
                     COURT OF APPEALS OF INDIANA

MICHAEL BROWN,                                     )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )        No. 84A04-1407-CR-337
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                       APPEAL FROM THE VIGO SUPERIOR COURT
                           The Honorable David R. Bolk, Judge
                             Cause No. 84D03-1212-FC-3781


                                        January 14, 2015

                MEMORANDUM DECISION - NOT FOR PUBLICATION

DARDEN, Senior Judge
          Michael Brown appeals his two-year executed sentence to be served in the

Department of Correction for Class D felony disseminating a matter harmful to minors.1

Specifically, he contends that his sentence is inappropriate because he was ordered to serve

it at the Department of Correction rather than on home detention.

          We affirm.

          The sole issue for our review is whether Brown’s executed sentence to the DOC is

inappropriate.

          In July 2012, seven-year-old B.M. was observed kissing and inappropriately

touching another girl at her daycare. When confronted by a daycare worker, B.M.

explained that Brown, who was her mother’s thirty-nine-year-old boyfriend, had done

those things to her and had shown her movies about them as well. The daycare worker told

B.M.’s mother what had happened, and B.M.’s mother notified the police. B.M. told the

police interviewer that Brown had shown her pornographic movies and inappropriately

touched her.

          The State charged Brown with child molesting as a Class C felony and

dissemination of matter harmful to minors as a Class D felony. Brown agreed to plead

guilty to the Class D felony, and the State agreed to dismiss the Class C felony and limit

the executed portion of Brown’s sentence to two years. Under the terms of the plea

agreement, the parties were free to argue placement.

          Evidence at the hearing revealed that Brown has an extensive criminal history that

includes eleven misdemeanor convictions and six felony convictions, which include



1
    Ind. Code § 35-49-3-3 (2006).
                                              2
convictions for possession of methamphetamine as a Class D felony, obstructing justice as

a Class D felony, two counts of forgery as Class C felonies, dealing methamphetamine as

a Class B felony, and non-support of a dependent child as a Class C felony. His prior

sentences have included time in both jail and prison as well as terms of both formal and

informal probation. Brown has also had multiple probation violations filed against him

over the years. The evidence also revealed that the victim was under the age of twelve and

that Brown held a position of trust with the victim.

       At the hearing, the State argued that Brown should be ordered to serve the executed

portion of his sentence at the Department of Correction. Brown, on the other hand, argued

that said placement creates an undue hardship and he should be placed on home detention

so that he could continue to support his family. The trial court ordered Brown to serve his

executed sentence at the Department of Correction, and he appeals.

       Brown’s sole argument is that his executed sentence is inappropriate because he was

ordered to serve it at the Department of Correction rather than on home detention. Article

VII, section 4 of the Indiana Constitution authorizes independent appellate review of

sentences. Rice v. State, 6 N.E.3d 940, 946 (Ind. 2014). This review is implemented

through Indiana Appellate Rule 7(B), which states that we may revise a sentence, even if

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

inappropriate in light of the nature of the offense and the character of the offender. In

determining whether a sentence is inappropriate, this Court looks at 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 v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).


                                               3
Brown bears the burden on appeal of persuading us that his sentence is inappropriate. See

Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

       The location where a sentence is to be served is an appropriate focus for our review

and revise authority. King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). We note,

however, that it will be quite difficult for a defendant to prevail on a claim that the

placement of his sentence is inappropriate. Id. at 267. This is because the question under

Appellate Rule 7(B) is not whether another sentence is more appropriate. Id. at 268.

Rather, the question is whether the sentence imposed is appropriate. Id. A defendant

challenging the placement of a sentence must convince us that the placement is itself

inappropriate. Id.

       As to the nature of the offense, thirty-nine-year-old Brown showed a pornographic

video to his girlfriend’s seven-year-old daughter. As to the character of the offender, we

note that the significance of a criminal history in assessing a defendant’s character is based

on the gravity, nature and number of prior offenses in relation to the current offense. Moss

v. State, 13 N.E.3d 440, 447 (Ind. Ct. App. 2014), trans. denied. Here, Brown has an

extensive criminal history that includes eleven misdemeanor convictions and six felony

convictions as well as several probation violations. Clearly, Brown has not reformed his

criminal behavior despite his numerous contacts with the criminal justice system, and his

history of probation violations indicates that he is a poor candidate for home detention.

Considering the nature of the offense and Brown’s character, Brown has not met his burden

of persuading this Court that serving his sentence at the Department of Correction is

inappropriate.


                                              4
      Affirmed.

KIRSCH, J., and BARNES, J., concur.




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