MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              FILED
this Memorandum Decision shall not be                           Sep 23 2016, 8:55 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
Steven Knecht                                            Gregory F. Zoeller
Vonderheide & Knecht, P.C.                               Attorney General of Indiana
Lafayette, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael R. Clark,                                        September 23, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A02-1511-CR-2064
        v.                                               Appeal from the Tippecanoe
                                                         Circuit Court
State of Indiana,                                        The Honorable Thomas H.
Appellee-Plaintiff.                                      Milligan, Senior Judge
                                                         Trial Court Cause No.
                                                         79C01-1412-F1-2



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1511-CR-2064 | September 23, 2016   Page 1 of 6
                                Case Summary and Issue
[1]   Following a jury trial, Michael Clark was convicted of child molesting as a

      Level 1 felony. The trial court sentenced Clark to thirty-five years in the

      Indiana Department of Correction, with five years suspended to probation.

      Clark appeals his sentence, raising the sole issue of whether his sentence is

      inappropriate in light of the nature of the offense and his character. Concluding

      his sentence is not inappropriate, we affirm.



                            Facts and Procedural History
[2]   M.R. was born in 2005 and lives in Otterbein, Indiana, with her mother,

      brother, and mother’s boyfriend. M.R. is deaf in one ear, which causes her to

      have difficulty speaking. At school, M.R. is enrolled in special needs courses

      for some, but not all, of her classes.


[3]   In July 2014, eight-year-old M.R. was playing outside near her home. M.R.

      observed a cat in the street, thought it was in danger of being struck by a car,

      and picked it up. The cat scratched M.R. on her chest, and she began to bleed.

      A neighbor, later identified as forty-two-year-old Clark, saw the scratch and

      invited M.R. inside his home to apply medicine. M.R. initially declined,

      preferring to follow her mother’s rule not to enter a stranger’s house. However,

      Clark insisted, assuring her it was okay. Once inside, he placed medicine on

      M.R.’s chest, rubbed her legs near her thighs, and told her she was pretty.

      Clark then asked M.R. if she wanted to play, to which she agreed, and he took


      Court of Appeals of Indiana | Memorandum Decision 79A02-1511-CR-2064 | September 23, 2016   Page 2 of 6
      her into his bedroom. Clark laid M.R. on his bed, lifted up her skirt, and

      performed oral sex on M.R. M.R. repeatedly told Clark stop. Afterwards,

      M.R. went home sobbing and immediately told her mother what happened.


[4]   The State charged Clark with child molesting as a Level 1 felony. Following a

      second trial,1 the jury found Clark guilty of child molesting as charged. At

      sentencing, the trial court found no mitigating factors and found as aggravating

      factors Clark’s criminal history and history of substance abuse, his violations of

      pretrial release and probation conditions, and the physical and mental

      limitations of the victim. The trial court sentenced Clark to thirty-five years in

      the Indiana Department of Correction, with five of those years suspended to

      probation.



                                       Discussion and Decision
[5]   Clark contends that his thirty-five-year sentence is inappropriate in light of the

      nature of his offense and his character. Indiana Rule of Appellate Procedure

      7(B) gives appellate courts the authority to revise a defendant’s sentence 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




      1
          Clark’s first jury trial resulted in a hung jury and mistrial.


      Court of Appeals of Indiana | Memorandum Decision 79A02-1511-CR-2064 | September 23, 2016   Page 3 of 6
      (Ind. 2006). “[S]entencing is principally a discretionary function in which the

      trial court’s judgment should receive considerable deference.” Cardwell v. State,

      895 N.E.2d 1219, 1222 (Ind. 2008). It is not for the reviewing court “to achieve

      a perceived ‘correct’ result in each case,” but “[t]he principal role of appellate

      review should be to attempt to leaven the outliers.” Id. at 1225. Whether 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.” Id. at 1224.


[6]   The advisory sentence is the starting point the legislature has selected as an

      appropriate sentence for the crime committed. Anglemyer v. State, 868 N.E.2d

      482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). Clark was

      convicted of child molesting as a Level 1 felony. See Ind. Code § 35-42-4-

      3(a)(1). The statutory sentencing range for a Level 1 felony is twenty to forty

      years, with an advisory sentence of thirty years. Ind. Code § 35-50-2-4(b).

      Based upon its identification of several aggravating and no mitigating factors,

      the trial court imposed a thirty-five year sentence; thirty years executed and five

      years suspended to probation.


[7]   As to the nature of the offense, Clark’s actions were abhorrent. Clark asserts his

      actions “were no worse than those involved in any other case of this kind,” he

      was not in a position of trust with M.R., and she suffered no physical injuries as

      a result of the molestation. Brief of Appellant at 10. However, Clark neglects

      to acknowledge he preyed upon an eight-year-old child with special needs,

      taking advantage of her vulnerability while injured in order to entice her into

      Court of Appeals of Indiana | Memorandum Decision 79A02-1511-CR-2064 | September 23, 2016   Page 4 of 6
      his home. Once inside the home, Clark sexually molested M.R., causing her to

      run home in tears. Further, his actions have left a psychological impact on

      M.R. At the sentencing hearing, M.R.’s mother’s boyfriend testified M.R.

      used to be an energetic and playful young girl, who enjoyed playing outside.

      Now, M.R. suffers from nightmares and is terrified to be alone outside the

      home.


[8]   Turning to Clark’s character, we examine “the offender’s life and conduct.”

      Washington v. State, 940 N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied.

      Clark argues a reduction of his sentence is warranted because of his limited

      criminal history. As Clark notes, his criminal history contains no prior sexual

      crimes and is thus unrelated to his present conviction. Prickett v. State, 856

      N.E.2d 1203, 1209 (Ind. 2006) (noting the significance of a defendant’s criminal

      history varies based on the gravity, nature, and number of prior offenses as they

      relate to the current offense). However, it does demonstrate a history of alcohol

      abuse and a disregard for the law. The presentence investigation report, as

      noted by the trial court, reveals Clark has multiple convictions for operating a

      vehicle while intoxicated, as well as failures to comply with conditions of

      probation and pretrial release. Clark has been arrested three times for operating

      a vehicle while intoxicated (“OWI”), once each year from 2012 to 2014. While

      on pretrial release in 2014, Clark failed to report for two drug screenings and

      tested positive for alcohol at another. In addition, this child molesting incident

      occurred while Clark was on pretrial release for his second OWI offense. It is

      Clark’s burden to convince this court his sentence is inappropriate, and given


      Court of Appeals of Indiana | Memorandum Decision 79A02-1511-CR-2064 | September 23, 2016   Page 5 of 6
       the nature of his offense and his character, we cannot say the moderately

       enhanced thirty-five-year sentence imposed by the trial court is inappropriate.



                                               Conclusion
[9]    Clark’s sentence is not inappropriate in light of the nature of the offense and his

       character. We therefore affirm his sentence.


[10]   Affirmed.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1511-CR-2064 | September 23, 2016   Page 6 of 6
