      MEMORANDUM DECISION                                                  FILED
      Pursuant to Ind. Appellate Rule 65(D), this                     Feb 23 2018, 5:59 am

      Memorandum Decision shall not be regarded as                         CLERK
      precedent or cited before any court except for the               Indiana Supreme Court
                                                                          Court of Appeals
      purpose of establishing the defense of res judicata,                  and Tax Court

      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Yvette M. LaPlante                                       Curtis T. Hill, Jr.
      Keating & LaPlante, LLP                                  Attorney General of Indiana
      Evansville, Indiana
                                                               Jesse R. Drum
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Michael Leroy Thomas, Jr.,                               February 23, 2018

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               82A05-1708-CR-1826
              v.                                               Appeal from the Vanderburgh
                                                               Circuit Court.
                                                               The Honorable David D. Kiely,
      State of Indiana,                                        Judge.
      Appellee-Plaintiff.                                      Trial Court Cause No.
                                                               82C01-1611-F4-6592




      Barteau, Senior Judge


                                       Statement of the Case
[1]   Michael Leroy Thomas, Jr., appeals the sentence the trial court imposed after

      he pled guilty to three counts of sexual misconduct with a minor, all Level 5

      felonies. We affirm.

      Court of Appeals of Indiana | Memorandum Decision 82A05-1708-CR-1826 | February 23, 2018   Page 1 of 7
                                                    Issues
[2]   Thomas raises two issues, which we restate as:

              I.       Whether the trial court abused its discretion at sentencing.
              II.      Whether the sentence is inappropriate in light of the nature
                       of the offense and the character of the offender.

                               Facts and Procedural History
[3]   L.D., a fifteen-year-old, reported that her father’s best friend, Thomas, had

      molested her. At the time, L.D. was dating Thomas’ son. She stated that

      Thomas touched her breasts and vagina and inserted his finger into her vagina

      on approximately twenty occasions. During subsequent police questioning,

      Thomas admitted that he touched L.D.’s breasts and vagina four times, most

      recently in his truck while he drove her to a doctor’s appointment. At the

      police officer’s request, Thomas wrote a letter to L.D. and her family

      apologizing for his misconduct. He wrote to his friend, “I betrayed your trust.”

      Tr. Vol. IV, State’s Ex. 1.


[4]   The State charged Thomas with five counts of sexual misconduct with a minor,

      one as a Level 4 felony and four as Level 5 felonies. The parties executed a plea

      agreement. According to the agreement, the State would dismiss the Level 4

      felony and one of the Level 5 felonies, and Thomas would plead guilty to the

      remaining three Level 5 felonies. The parties further agreed Thomas would

      serve the sentences for the three felonies concurrently, and his total sentence

      would be capped at six years.



      Court of Appeals of Indiana | Memorandum Decision 82A05-1708-CR-1826 | February 23, 2018   Page 2 of 7
[5]   The trial court accepted the plea agreement. At the sentencing hearing, the

      court stated:

              The Court notes that the IRAS indicates the defendant is a low
              risk to re-offend. The Court notes that the defendant did plead
              guilty, and the Court notes that the defendant has no prior
              criminal history, and that he is a military veteran. The Court
              notes that the victim in this case had just turned fifteen; the Court
              notes that one of these instances occurred when the defendant
              was taking the victim to a doctor’s appointment.

      Tr. Vol. II, pp. 18-19.


[6]   The court sentenced Thomas to five years with one year suspended to probation

      on each count, to be served concurrently for an aggregate executed sentence of

      four years. This appeal followed.


                                   Discussion and Decision
                                       I. Sentencing Discretion
[7]   Thomas argues that the trial court should not have imposed a five-year sentence

      because the trial court failed to identify any valid aggravating circumstances. In

      general, sentencing decisions rest within the sound discretion of the trial court

      and are reviewed on appeal only for an abuse of discretion. Anglemyer v. State,

      868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007). An

      abuse of discretion occurs where the trial court’s decision is clearly against the

      logic and effect of the facts and circumstances before it, or the reasonable,

      probable, and actual deductions to be drawn therefrom. Moyer v. State, 83

      N.E.3d 136, 141 (Ind. Ct. App. 2017), trans. denied.


      Court of Appeals of Indiana | Memorandum Decision 82A05-1708-CR-1826 | February 23, 2018   Page 3 of 7
[8]    In general, when a trial court imposes a sentence for a felony, the court must

       include a reasonably detailed recitation of the reasons for imposing the

       sentence. Anglemyer, 868 N.E.2d at 490. One way in which a trial court abuses

       its discretion at sentencing is by finding aggravating or mitigating circumstances

       that are unsupported by the record. Id. The weight a trial court gives to

       aggravating or mitigating circumstances is not subject to appellate review.

       Weedman v. State, 21 N.E.3d 873, 893 (Ind. Ct. App. 2014), trans. denied.


[9]    Thomas argues the trial court, in noting Thomas molested L.D. while taking

       her to the doctor, erroneously determined he abused a position of trust. It is

       unclear that the trial court determined that Thomas breached a position of trust.

       The court did not use that phrase while imposing the sentence, noting instead

       only that Thomas molested L.D. while he took her to the doctor. A trial court

       can consider the facts and circumstances of the crime as an aggravating

       circumstance so long as the trial court does not consider facts needed to prove

       the elements of the offense. Hall v. State, 870 N.E.2d 449, 464 (Ind. Ct. App.

       2007), trans. denied.


[10]   Thomas’ act of molesting L.D. while taking her to a doctor’s appointment is a

       valid aggravating factual circumstance of the crime. He took advantage of

       L.D.’s temporary isolation from family and home to abuse her while she was in

       his truck.


[11]   Second, if the trial court treated Thomas’ molestation of L.D. as a breach of

       trust, there is sufficient record to support such a conclusion. The General


       Court of Appeals of Indiana | Memorandum Decision 82A05-1708-CR-1826 | February 23, 2018   Page 4 of 7
       Assembly has noted that it is an aggravating circumstance that the defendant

       “was in a position having care, custody, or control of the victim of the offense.”

       Ind. Code § 35-38-1-7.1 (2015). As a panel of this court has stated:

               The position of trust aggravator is frequently cited by sentencing
               courts where an adult has committed an offense against a minor
               and there is at least an inference of the adult’s authority over the
               minor. Moreover, this aggravator applies in cases where the
               defendant has a more than casual relationship with the victim
               and has abused the trust resulting from that relationship.

       Rodriguez v. State, 868 N.E.2d 551, 555 (Ind. Ct. App. 2007).


[12]   In this case, Thomas was not a mere acquaintance to L.D. To the contrary, he

       was her father’s best friend and the stepfather of her boyfriend. On at least one

       occasion, L.D.’s parents placed her in Thomas’ care by having him take her to

       the doctor. Thomas admitted as much by acknowledging in a letter to L.D.’s

       family that he violated his friend’s trust. We conclude Thomas was in a

       position of trust as to the victim, and the trial court did not abuse its sentencing

       discretion. See Hines v. State, 856 N.E.2d 1275, 1281 (Ind. Ct. App. 2006) (trial

       court properly cited defendant’s abuse of a position of trust as an aggravating

       factor; defendant molested victim while she was staying overnight at his house),

       trans. denied.


                                II. Appropriateness of Sentence
[13]   Thomas next argues that the Court should exercise its constitutional power to

       review his sentence and reduce it to three years. Even when a trial court has

       acted within its sentencing discretion, article VII, section 6 of the Indiana


       Court of Appeals of Indiana | Memorandum Decision 82A05-1708-CR-1826 | February 23, 2018   Page 5 of 7
       Constitution authorizes this court to review and revise sentences. This

       authority is implemented through Indiana Appellate Rule 7(B), which provides

       that we “may revise a sentence authorized by statute if, after due consideration

       of the trial court’s decision, [we find] that the sentence is inappropriate in light

       of the nature of the offense and the character of the offender.”


[14]   As we conduct our review, we consider not only the aggravators and mitigators

       found by the trial court, but also any other factors appearing in the record.

       Walters v. State, 68 N.E.3d 1097, 1101 (Ind. Ct. App. 2017), trans. denied. The

       appellant must demonstrate that the sentence is inappropriate. Id.


[15]   The advisory sentence for a Level 5 felony is three years, with a maximum

       sentence of six years and a minimum sentence of one year. Ind. Code § 35-50-

       2-6 (2014). The court imposed a sentence of five years with one year suspended

       to probation for each count, to be served concurrently for an aggregate executed

       sentence of four years. His total sentence is thus well below both the statutory

       maximum of eighteen years and the six-year maximum sentence negotiated in

       the plea agreement.


[16]   We start with the nature of the offense. Thomas was familiar to L.D. for two

       reasons: he was her father’s best friend, and he was her boyfriend’s stepfather.

       Thomas took advantage of those close ties to repeatedly abuse L.D. Although

       he pled guilty to only three Level 5 felonies, he admitted to molesting her on a

       fourth occasion as well. According to L.D., Thomas molested her as many as




       Court of Appeals of Indiana | Memorandum Decision 82A05-1708-CR-1826 | February 23, 2018   Page 6 of 7
       twenty times. On one of the occasions, Thomas assaulted her in his truck while

       he was entrusted with taking her to a doctor’s appointment.


[17]   Turning to the character of the offender, Thomas was forty-seven (47) years old

       at sentencing. He has no prior criminal history and is a veteran. These positive

       character traits are outweighed by his repeated molestations of fifteen-year-old

       L.D. In his letter to L.D. and her family, he acknowledged he was aware his

       conduct was wrong, but he continued to commit crimes against L.D. anyway.

       Tr. Vol. IV, State’s Ex. 1 (“I tried not to let this happen.”). Thomas has failed

       to demonstrate that his slightly aggravated sentence is inappropriate.


                                                Conclusion
[18]   For the reasons stated above, we affirm the judgment of the trial court.


[19]   Affirmed.


       Riley, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A05-1708-CR-1826 | February 23, 2018   Page 7 of 7
