MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                           Jul 07 2016, 8:36 am

court except for the purpose of establishing                            CLERK
                                                                    Indiana Supreme Court
the defense of res judicata, collateral                                Court of Appeals
                                                                         and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Erin L. Berger                                           Gregory F. Zoeller
Evansville, Indiana                                      Attorney General of Indiana
                                                         Karl Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Bruce W. Powell,                                         July 7, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         87A01-1512-CR-2160
        v.                                               Appeal from the Warrick Circuit
                                                         Court
State of Indiana,                                        The Honorable Greg A. Granger,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         87C01-1504-F5-133



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 87A01-1512-CR-2160 | July 7, 2016         Page 1 of 7
                                  Case Summary and Issue
[1]   Bruce Powell pleaded guilty to child solicitation, a Level 5 felony, and

      dissemination of matter harmful to minors, a Level 6 felony. The trial court

      ordered Powell to serve an aggregate sentence of seven years in the Department

      of Correction. Powell appeals his sentence, raising two issues, one of which we

      find dispositive: whether his sentence is inappropriate in light of the nature of

      the offenses and his character.1 Concluding Powell’s sentence is not

      inappropriate, we affirm.



                             Facts and Procedural History
[2]   Powell is O.S.B.’s uncle. On April 7, 2015, twelve-year-old O.S.B. disclosed

      Powell had asked her to touch his penis and had attempted to view

      pornographic material with her on several occasions. O.S.B.’s father called the

      police, and the State charged Powell with two counts of child solicitation and

      two counts of dissemination of matter harmful to minors. Thereafter, the State

      moved to amend the charging information by adding five counts—three counts

      of solicitation and two counts of dissemination. The trial court permitted the

      amendment and dismissed the charges the State initially filed.




      1
        Powell also raises the issue of whether he waived the right to appeal his sentence. Because we conclude his
      sentence is not inappropriate, we need not address the waiver issue.

      Court of Appeals of Indiana | Memorandum Decision 87A01-1512-CR-2160 | July 7, 2016               Page 2 of 7
[3]   Powell pleaded guilty to one count of child solicitation as a Level 5 felony and

      one count of dissemination of matter harmful to minors as a Level 6 felony. In

      exchange, the State dismissed the remaining charges. The agreement left

      sentencing to the trial court’s discretion. During the sentencing hearing, the

      trial court did not find any factors to be mitigating and considered the following

      factors aggravating: (1) the significant harm suffered by the victim; (2) Powell’s

      criminal history, consisting of prior convictions for public nudity and failure to

      stop after an accident; (3) that Powell was in a position of trust in relation to the

      victim; and (4) that the victim was less than twelve years old when Powell

      exposed her to pornographic material. Concluding the aggravators outweighed

      the absence of mitigators, the trial court sentenced Powell to five years for

      solicitation and two years for dissemination, to be served consecutively, for an

      aggregate sentence of seven years. This appeal followed.



                                 Discussion and Decision
                                     I. Standard of Review
[4]   Powell contends his sentence is inappropriate in light of the nature of the

      offenses and his character. Indiana Appellate Rule 7(B) provides, “The 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.” The defendant

      bears the burden of persuading this court that his or her sentence is

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

      Court of Appeals of Indiana | Memorandum Decision 87A01-1512-CR-2160 | July 7, 2016   Page 3 of 7
      we regard a sentence as inappropriate turns on “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). We “focus on the forest—the aggregate sentence—rather than the

      trees—consecutive or concurrent, number of counts, or length of the sentence

      on any individual count” in reviewing a defendant’s sentence. Id. at 1225. The

      question is not whether another sentence is more appropriate, but rather

      whether the sentence imposed in inappropriate. King v. State, 894 N.E.2d 265,

      268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless

      overcome by compelling evidence portraying in a positive light the nature of the

      offense (such as accompanied by restraint, regard, and lack of brutality) and the

      defendant’s character (such as substantial virtuous traits or persistent examples

      of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).


                                  II. Inappropriate Sentence
[5]   As to the nature of the offense, the advisory sentence is the starting point the

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

      Childress, 848 N.E.2d at 1081. Powell pleaded guilty to child solicitation, a

      Level 5 felony, and dissemination of matter harmful to minors, a Level 6

      felony. A Level 5 felony carries a possible sentence of one to six years, with an

      advisory sentence of three years. Ind. Code § 35-50-2-6(b). A Level 6 felony

      carries a possible sentence of six months to two and one-half years, with an

      advisory sentence of one year. Ind. Code § 35-50-2-7(b). The trial court



      Court of Appeals of Indiana | Memorandum Decision 87A01-1512-CR-2160 | July 7, 2016   Page 4 of 7
      sentenced Powell to five years for solicitation and two years for dissemination,

      to be served consecutively, for an aggregate sentence of seven years.


[6]   We conclude the nature of the offenses supports the sentence the trial court

      imposed. We first note O.S.B. was only twelve years old when Powell asked

      her to touch his penis. She was only eleven years old when he attempted to

      view pornographic material with her. See Hamilton v. State, 955 N.E.2d 723,

      727 (Ind. 2011) (stating “younger ages of victims tend to support harsher

      sentences”). Second, Powell is O.S.B.’s uncle. He held a position of trust with

      respect to the victim and her family, and he violated that trust. See id. (noting a

      harsher sentence is also appropriate where the defendant has violated a position

      of trust arising from a close family relationship). Prior to her disclosure, O.S.B.

      visited Powell’s house on regular basis. On several occasions Powell picked her

      up from school or on her way home from school. Now, O.S.B. is scared to

      walk home from school and has difficulty trusting others. During sentencing,

      O.S.B.’s father stated he is “afraid to let her around anyone” because he trusted

      Powell. Transcript at 31. He also described the impact of Powell’s

      inappropriate advances:

              It has really been hard on [O.S.B.] I mean [O.S.B.] was the type
              [of] child never scared of anything and now she is scared of so
              many things. . . . I work late some nights and she is home by
              herself or with her brothers and she’s worried to be home by
              herself and she never was. I mean she was worried about
              nothing.


      Id. at 32-33.

      Court of Appeals of Indiana | Memorandum Decision 87A01-1512-CR-2160 | July 7, 2016   Page 5 of 7
[7]   As to Powell’s character, we are troubled by his persistent failure to take

      responsibility for his actions. Although Powell eventually entered into a plea

      agreement with the State, he first attempted to explain away his behavior. The

      detective assigned to the case recalled Powell “minimized what he had done”

      by offering alternative explanations and excuses. Id. at 35. At one point during

      an interview with the detective, Powell stated O.S.B. viewed the pornographic

      material on accident when she picked up litter blowing through a field. At

      another point, Powell stated he gave O.S.B. a movie depicting nudity but

      denied the movie was pornographic. Powell also claimed he suffers from a

      pornography addiction. He stated a television show caused him to fantasize

      about rape and obsess over the idea of controlling another human being. In a

      letter to O.S.B. and her father, Powell characterized the “whole situation” as

      “stupid” and expressed his hope that “time will heal this” because “you are the

      only family I have[.]” State’s Exhibit 1. He stated he does not blame O.S.B’s

      father for “hating” him because he “would be so pissed off” if “it was [his child]

      instead of [O.S.B.]” Id. Similarly, Powell repeatedly told O.S.B. prior to her

      disclosure that she could not tell anyone about his requests because “then he

      would go to prison.” Tr. at 20. Instead of recognizing the harm he inflicted on

      O.S.B., Powell casts himself as the victim.


[8]   Based on the foregoing, we conclude both the nature of the offenses and

      Powell’s character support the sentence the trial court imposed.



                                              Conclusion
      Court of Appeals of Indiana | Memorandum Decision 87A01-1512-CR-2160 | July 7, 2016   Page 6 of 7
[9]    Powell’s sentence is not inappropriate in light of the nature of the offenses and

       his character. We therefore affirm his sentence.


[10]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 87A01-1512-CR-2160 | July 7, 2016   Page 7 of 7
