MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               FILED
regarded as precedent or cited before any                      May 25 2017, 8:41 am
court except for the purpose of establishing
                                                                    CLERK
the defense of res judicata, collateral                         Indiana Supreme Court
                                                                   Court of Appeals
estoppel, or the law of the case.                                    and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
David W. Stone IV                                       Curtis T. Hill, Jr.
Anderson, Indiana                                       Attorney General of Indiana
                                                        Ellen M. Meilaender
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Theodore Lincoln Jones,                                 May 25, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        48A02-1612-CR-2814
        v.                                              Appeal from the Madison Circuit
                                                        Court
State of Indiana,                                       The Honorable Mark K. Dudley,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        48C06-1508-F1-1352



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1612-CR-2814 | May 25, 2017     Page 1 of 8
                                       Statement of the Case
[1]   Theodore Jones (“Jones”) appeals the sentence imposed after he pled guilty

      without a plea agreement to Level 1 felony child molesting1 and Level 5 felony

      child exploitation.2 He specifically contends that (1) the trial court abused its

      discretion by failing to consider his proposed mitigating factors; and (2) the

      forty-year sentence imposed for his Level 1 felony child molesting conviction is

      inappropriate in light of the nature of the offense and his character. Because we

      conclude that the trial court did not abuse its discretion in failing to consider

      Jones’ proposed mitigating circumstances and that his sentence is not

      inappropriate, we affirm.


[2]   We affirm.


                                                    Issues
                  1. Whether the trial court abused its discretion in failing to
                  consider Jones’ proposed mitigating factors.


                  2. Whether Jones’ sentence is inappropriate in light of the nature
                  of the offense and his character.




      1
          IND. CODE § 35-42-4-3.
      2
          I. C. § 35-42-4-4.


      Court of Appeals of Indiana | Memorandum Decision 48A02-1612-CR-2814 | May 25, 2017   Page 2 of 8
                                                     Facts
[3]   In August 2014, fifty-seven-year-old Jones took sexually explicit photographs

      and videos of his twenty-one-month old granddaughter, L.J. (“L.J.”). Some of

      the photographs depicted L.J. on a mattress drinking a bottle with her vagina

      exposed. In one photograph, L.J. was playing with a dildo or vibrator. Other

      photographs showed Jones using his fingers to spread L.J.’s vagina. The videos

      depicted Jones rubbing the outside of L.J.’s vagina with his finger, inserting his

      finger into her vagina, and moving his finger in and out of her vagina. Jones

      also filmed himself forcing L.J. to move her hand back and forth on his penis.


[4]   One year later, in August 2015, Jones’ son found the photos and videos of his

      daughter on Jones’ computer and contacted the police. Jones was charged with

      Level 1 felony child molesting and Level 5 felony child exploitation. He pled

      guilty without a plea agreement in October 2015.


[5]   Evidence presented at Jones’ November 2016 sentencing hearing revealed that

      his criminal history included a misdemeanor conviction for driving under the

      influence in 1991. Jones’ wife testified that Jones was in poor health.

      Specifically, she explained that he suffered from diabetes, high blood pressure,

      high cholesterol, back problems, depression, and gangrene of his genitals.

      Jones testified that his physician had told him that he “probably [would not] see

      seventy (70).” (Tr. 39). Jones also presented evidence that he had worked at

      General Motors for twenty years until he became disabled.




      Court of Appeals of Indiana | Memorandum Decision 48A02-1612-CR-2814 | May 25, 2017   Page 3 of 8
[6]   Following the sentencing hearing, the trial court found the following

      aggravating circumstances: (1) there were multiple counts; (2) Jones had

      violated a position of trust; and (3) the nature and circumstances of the offenses.

      The trial court further found the following mitigating circumstances: (1) Jones

      had pled guilty saving the State the time and cost of trial; and (2) Jones had led

      a law-abiding life for twenty-three years. The trial court then sentenced Jones

      to forty (40) years for the Level 1 felony and six (6) years for the Level 5 felony.

      The court further ordered the sentences to run concurrently for a total executed

      sentence of forty (40) years. Jones now appeals his sentence.


                                                  Decision
[7]   Jones argues that (1) the trial court abused its discretion by failing to consider

      his proposed mitigating factors; and (2) the forty-year sentence imposed for his

      Level 1 felony child molesting conviction is inappropriate in light of the nature

      of the offense and his character. We address each of his contentions in turn.


      1. Abuse of Discretion

[8]   Sentencing decisions are within the sound discretion of the trial court.

      Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

      218. However, a trial court may be found to have abused its sentencing

      discretion in a number of ways, including: (1) failing to enter a sentencing

      statement; (2) entering a sentencing statement that explains reasons for

      imposing a sentence where the record does not support the reasons; (3) entering

      a sentencing statement that omits reasons that are clearly supported by the


      Court of Appeals of Indiana | Memorandum Decision 48A02-1612-CR-2814 | May 25, 2017   Page 4 of 8
       record and advanced for consideration; and (4) entering a sentencing statement

       in which the reasons given are improper as a matter of law. Id. at 491. The

       weight given to those reasons, i.e., to particular aggravators or mitigators, is not

       subject to appellate review. Id.


[9]    Jones argues that the trial court abused its discretion because it did not find his

       age, his health, and his twenty years as a productive member of society to be

       mitigating factors. A trial court is not obligated to accept a defendant’s claim as

       to what constitutes a mitigating circumstance. Rascoe v. State, 736 N.E.2d 246,

       249 (Ind. 2000). A trial court has discretion to determine whether the factors

       are mitigating, and it is not required to explain why it does not find the

       defendant’s proffered factors to be mitigating. Haddock v. State, 800 N.E.2d 242,

       245 (Ind. Ct. App. 2003). A claim that the trial court failed to find a mitigating

       circumstance requires the defendant to establish that the mitigating evidence is

       both significant and clearly supported by the record. Anglemyer, 868 N.E.2d at

       493.


[10]   Jones first contends that the trial court abused its discretion because it failed to

       find that his age was a mitigating factor. In support of his contention, Jones

       directs us to Dockery v. State, 504 N.E.2d 291 (Ind. Ct. App. 1987). There, the

       trial court found no mitigating factors. Id. at 297. On appeal, this Court

       pointed out that Dockery was seventy-six years old and remanded the case to

       the trial court for a proper consideration of mitigating factors. Here, Jones was

       fifty-seven years old at the time of the offense, which is almost twenty years

       younger than Dockery was. Dockery is therefore simply not persuasive. The

       Court of Appeals of Indiana | Memorandum Decision 48A02-1612-CR-2814 | May 25, 2017   Page 5 of 8
       trial court did not abuse its discretion in failing to find Jones’ age was a

       mitigating factor.


[11]   Jones next contends that the trial court abused its discretion because it failed to

       find that his health was a mitigating factor. Henderson v. State, 848 N.E.2d 341,

       344 (Ind. Ct. App. 2006) is instructive. Henderson, who suffered from

       depression, anxiety, diabetes, acid reflux, bladder prolapse, hyperthyroidism,

       hypertension, and arthritis in her left shoulder, argued on appeal that the trial

       court had erred in failing to find that her health was a mitigating factor. Id. at

       344. However, this Court concluded that Henderson did not present any

       evidence demonstrating that her medical conditions would be untreatable

       during incarceration or would render incarceration a hardship. Id.

       Accordingly, we concluded that the trial court did not err in failing to consider

       Henderson’s health to be a mitigating factor. Id. Here, Jones suffers from

       diabetes, high blood pressure, high cholesterol, back problems, depression, and

       gangrene of his genitals. However, as in Henderson, Jones has presented no

       evidence demonstrating that his medical conditions would be untreatable

       during incarceration or would render incarceration a hardship. The trial court

       did not abuse its discretion in failing to consider Jones’ health to be a mitigating

       factor.


[12]   Jones also argues that the trial court abused its discretion because it failed to

       consider as a mitigating circumstance that he “had been a productive member

       of society, working in a General Motors plant for [twenty] years before he

       because disabled . . . .” (Jones’ Br. 10). This Court has previously held that

       Court of Appeals of Indiana | Memorandum Decision 48A02-1612-CR-2814 | May 25, 2017   Page 6 of 8
       the trial court did not abuse its discretion in failing to find that defendant’s

       history as a working, productive member of society was a significant mitigating

       factor where the defendant failed to provide a detailed work history,

       performance reviews, or attendance records. See Bennett v. State, 787 N.E.2d

       938, 948 (Ind. Ct. App. 2003), trans. denied. Jones has also failed to provide

       such information. The trial court did not abuse its discretion in failing to

       consider as a mitigating factor that Jones was a productive member of society

       who had worked at General Motors for twenty years.


       2. Inappropriate Sentence

[13]   Jones argues that the forty-year sentence for his Level 1 felony child molesting

       conviction is inappropriate. Indiana Appellate Rule 7(B) 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. The defendant bears the

       burden of persuading this Court that his sentence is inappropriate. Childress v.

       State, 848 N.E.2d 1073, 1080 (Ind. 2006). 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.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).


[14]   When determining whether a sentence is inappropriate, we acknowledge that

       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.

       Here, Jones was convicted of Level 1 felony child molesting. The sentencing

       Court of Appeals of Indiana | Memorandum Decision 48A02-1612-CR-2814 | May 25, 2017   Page 7 of 8
       range for a Level 1 felony child molesting conviction when the defendant is at

       least twenty-one years old and the victim is less than twelve years old is

       between twenty (20) and fifty (50) years, with an advisory sentence of thirty (30)

       years. See I.C. § 35-50-2-4(c)(1). Here, the trial court sentenced Jones to forty

       (40) years, which is ten (10) years less than the maximum sentence and ten (10)

       years more than the advisory sentence.


[15]   With regard to the nature of the offense, Jones took sexually explicit

       photographs and videos of his twenty-one-month-old granddaughter, L.J. The

       videos showed Jones rubbing the outside of L.J.’s vagina, inserting his finger

       into her vagina, and moving his finger in and out of her vagina. Jones also

       filmed himself forcing L.J. to move her hand back and forth on his penis.


[16]   With regard to his character, Jones violated the trust of his wife, son, and

       granddaughter. Based on the nature of the offense and his character, Jones has

       failed to persuade this Court that his forty-year sentence for Level 1 felony child

       molesting is inappropriate.


[17]   Affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1612-CR-2814 | May 25, 2017   Page 8 of 8
