MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any
                                                                           Nov 30 2017, 8:33 am
court except for the purpose of establishing
the defense of res judicata, collateral                                         CLERK
                                                                            Indiana Supreme Court
estoppel, or the law of the case.                                              Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Randy M. Fisher                                         Curtis T. Hill, Jr.
Deputy Public Defender                                  Attorney General of Indiana
Leonard, Hammond, Thoma & Terrill
                                                        Lyubov Gore
Fort Wayne, Indiana                                     Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Matthew C. Foster,                                      November 30, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        02A03-1703-CR-632
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable John F. Surbeck,
Appellee-Plaintiff.                                     Jr., Judge
                                                        Trial Court Cause No.
                                                        02D05-1508-FB-10



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1703-CR-632 | November 30, 2017         Page 1 of 23
                                   Case Summary and Issues
[1]   Following a jury trial, Matthew Foster was convicted of sexual misconduct

      with a minor, a Class B felony; sexual misconduct with a minor, a Class C

      felony; child exploitation, a Class C felony; and possession of child

      pornography, a Level 6 felony. The trial court sentenced Foster to an aggregate

      term of fourteen years to be executed at the Indiana Department of Correction.

      Foster now appeals his convictions,1 raising three issues for our review which

      we restate as: (1) whether the evidence was sufficient to support his convictions

      of two counts of sexual misconduct with a minor; (2) whether the trial court

      abused its discretion in sentencing Foster; and (3) whether Foster’s sentence is

      inappropriate in light of the nature of his offenses and his character.

      Concluding the evidence was sufficient, the trial court did not abuse its

      discretion, and the sentence was not inappropriate, we affirm.



                                Facts and Procedural History
[2]   The facts most favorable to the verdict reveal that in early 2010, Foster, who

      was then twenty-eight years old, began a sexual relationship with J.D., then

      fourteen years old. J.D. eventually moved in with Foster and the two lived

      together for five years. In January 2015, J.D. moved out and disclosed the




      1
          Foster does not appeal his convictions of child exploitation or possession of child pornography.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1703-CR-632 | November 30, 2017                Page 2 of 23
      relationship during an unrelated meeting with Victim’s Assistance in Fort

      Wayne, Indiana. Law enforcement was notified and an investigation ensued.


[3]   On August 3, 2015, the State charged Foster with four counts of sexual

      misconduct with a minor, Class B felonies; sexual misconduct with a minor, a

      Class C felony; and neglect of a dependent, a Class D felony. In February

      2016, Foster was additionally charged with child exploitation, a Class C felony,

      and possession of child pornography, a Level 6 felony. Prior to trial, the State

      dismissed the charge of neglect of a dependent.


[4]   At trial, the State presented evidence that in 2009, Foster was a twenty-eight-

      year-old veteran who recently returned from a tour of duty in Iraq. Foster had

      a three-year-old child, C.F., who lived with Foster’s parents while he was on

      active duty. Upon his return from Iraq, Foster moved into his grandfather’s

      house in Monroeville, Indiana, and resumed caring for C.F. For extra help,

      Foster often employed a teenager, Angel Wolfcale, to babysit C.F.


[5]   J.D., then a fourteen-year-old2 freshman in high school, lived with her mother,

      Jennifer Bragg, and sister, J.B. Jennifer’s job required her to work late into the

      night and J.D. and J.B. were often left unsupervised. The family moved

      frequently, occasionally stayed at friends’ homes, and were in-and-out of hotel

      rooms.




      2
          J.D. was twenty-one years old at the time of trial.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1703-CR-632 | November 30, 2017   Page 3 of 23
[6]   J.D. testified that in late January or early February 2010, her friend, Wolfcale,

      invited her to help babysit C.F. at Foster’s home. J.D. agreed, and Foster drove

      the girls to his home where they learned that rather than babysit C.F., they

      would “hang out and party.” Transcript, Volume 1 at 49. That night, Foster

      and J.D. ended up “kissing and then touching.” Id. at 51. The two then had no

      contact until Foster found J.D. on Facebook and they began communicating

      electronically. This communication carried on for “a while” and the two

      discussed “sexual things.” Id. at 52-53. The next time J.D. saw Foster was in

      March 2010, when she told her mother that she was going to babysit C.F. at

      Foster’s home. According to J.D., that night was the first time the two had

      sexual intercourse and she later told her sister, J.B., and her friend, Elizabeth

      Newbauer, that she was having sexual intercourse with Foster.


[7]   J.D. kept a notebook in which she wrote class notes, notes about Foster, and

      “doodles.” Id. at 61-62. In a note dated March 8, 2010, J.D. wrote about

      loving Foster and placed their names inside of a heart. Another note, to J.D.

      from a friend, stated:


              no I’m not gonna [sic] tell on you cause [sic] you will get in
              trouble & matt would go to jail & i would get in trouble for not
              saying anything about it when i found out. you really think i
              would tell?


      State’s Exhibit 1. J.D. also wrote about having sex with Foster multiple times

      over spring break of her freshman year and about marrying Foster.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1703-CR-632 | November 30, 2017   Page 4 of 23
[8]    Throughout the rest of her freshman year, J.D. would see Foster three to five

       times per week, often engaging in sexual intercourse. These visits occurred

       under the guise of J.D. babysitting for C.F., or Foster purporting to pick up J.D.

       for school when the two were in fact returning to Foster’s home. The sexual

       relationship continued throughout the summer and in June 2010, J.D.

       celebrated her fifteenth birthday at Foster’s home. On August 1, 2010, shortly

       after J.D.’s fifteenth birthday, Foster and J.D. were photographed kissing with

       Foster’s hand on J.D.’s buttocks.


[9]    Following a turbulent freshman year, J.D. began expressing to Foster and her

       mother, Jennifer, that she wanted to transfer schools. The high school in

       Foster’s district was smaller than the high school J.D. attended and Foster saw

       an opportunity to get more help with C.F., who was now four years old, so he

       sought temporary guardianship of J.D. Jennifer agreed, reasoning that “it was

       a better place for [J.D.].” Tr., Vol. 1 at 146. Foster presented Jennifer with the

       paperwork necessary for him to obtain temporary guardianship on August 17,

       2010. Foster and Jennifer then enrolled J.D. in the school in Foster’s district

       and J.D. moved in with Foster soon thereafter. J.D. struggled at her new high

       school and she withdrew herself sometime in November or December 2010,

       planning to finish online. During this time, J.D. and Foster spoke about

       keeping their relationship secret until J.D. turned eighteen years old.


[10]   J.D. testified that for approximately the next year, she did not have much

       contact with anyone other than Foster. They continued having sexual

       intercourse “[e]very day, probably.” Tr., Vol. 1 at 77. The two also performed

       Court of Appeals of Indiana | Memorandum Decision 02A03-1703-CR-632 | November 30, 2017   Page 5 of 23
       oral sex on each other, Foster inserted his fingers into J.D.’s vagina, and they

       engaged in anal sex on more than one occasion. J.D.’s sister, J.B., would visit

       occasionally. J.B. testified that she witnessed J.D. and Foster kissing and

       holding hands, and she saw Foster’s hand on J.D.’s leg. J.B. testified that one

       night when she was sleeping over at Foster’s house, she heard moaning coming

       from Foster’s bedroom as though Foster and J.D. were having sexual

       intercourse.


[11]   The State also admitted into evidence photographs, a video, and J.D.’s

       notebook obtained from Foster’s home during the service of a search warrant.

       There were several nude photographs of J.D. and in one photograph, taken on

       November 1, 2010, J.D. and Foster are nude, kissing in Foster’s bathroom. In

       another, J.D. is performing oral sex on Foster. The video, dated July 18, 2012,

       just after J.D.’s seventeenth birthday, showed J.D. and Foster having sexual

       intercourse.


[12]   The jury found Foster guilty of one count of sexual misconduct with a minor as

       a Class B felony; sexual misconduct with a minor as a Class C felony; child

       exploitation; and possession of child pornography. The jury found Foster not

       guilty of one count of sexual misconduct with a minor as a Class B felony and

       was unable to reach a verdict on the remaining two counts of sexual

       misconduct with a minor as Class B felonies. The State later dismissed the

       charges on which the jury did not reach a verdict.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1703-CR-632 | November 30, 2017   Page 6 of 23
[13]   Foster’s sentencing was held on March 6, 2017. Foster presented the testimony

       of members of his family as well as the testimony of fellow soldiers with whom

       he served. After hearing testimony from the witnesses and that of Foster

       himself, the trial court stated:


               I have heard all of the aggravating and mitigating circumstances
               proposed by respective counsel and have considered each and
               every one of them, have not necessarily accepted each of them.
               Specifically I will note the Defendant’s honorable service to our
               country. It’s one of those anomalies that I’m not quite sure what
               to do with it. He’s entitled to some credit for his service and
               placing himself in harms [sic] way to protect the country, which
               includes protecting its laws. I have heard how he served as a
               significant role model to a number of his folks. He had an
               opportunity to serve as a role model to a vulnerable child, and I
               picked those words carefully, to a vulnerable child and chose not
               to do so. Chose instead to pursue his own passions above her
               interest. I guess I’m not surprised that some folks consider her to
               be a manipulator, but I’m not convinced that I’ve heard evidence
               of that beyond the fact that she was vulnerable and in need of
               support, as some of you were who spoke for him, and he
               provided that support for each of you, but not for her. And I’m
               making these remarks – I’ve pretty much arrived at a sentence in
               my head, but I would hope to explain what I have seen from an
               impartial perspective. I know you all are in support of your
               friend, and I respect that. One of the things I’ve noted, and I
               don’t mean to cause an issue for her going forward, but it’s very
               clear based upon the testimony of the lady who received very
               good advise [sic] about how to handle a sexual problem in the
               military that you were well aware of sexual proprieties while at
               the same time violating them very seriously. There is a criminal
               history, it’s not outrageous, it’s a long way from being clear
               however.



       Court of Appeals of Indiana | Memorandum Decision 02A03-1703-CR-632 | November 30, 2017   Page 7 of 23
       Sentencing Transcript at 35-36.


[14]   The trial court sentenced Foster to ten years for Class B felony sexual

       misconduct with a minor, four years for Class C felony sexual misconduct with

       a minor, four years for child exploitation, and one year for possession of child

       pornography. The court ordered Foster’s four year sentence for child

       exploitation be served consecutively to his ten year sentence for sexual

       misconduct with a minor and the remaining four year and one year sentences to

       be served concurrently. All told, Foster received a fourteen year executed

       sentence.3 Foster now appeals.



                                       Discussion and Decision
                                         I. Sufficiency of Evidence
[15]   Foster contends the State presented insufficient evidence to support his

       convictions of sexual misconduct with a minor. Foster does not allege that the

       State failed to meet its burden regarding any of the underlying elements of the

       crimes; rather, Foster alleges that J.D.’s testimony was uncorroborated and so




       3
           We note at sentencing, the trial court stated:
                So we’re talking about an executed sentence of fourteen (14) years, and a further suspended
                sentence of four (4) years. If my arithmetic is correct we’re talking about eighteen (18) years,
                fourteen (14), and four (4).
       Sentencing Tr. at 37. The correct sentence as imposed by the trial court is fourteen years executed with
       no period suspended for an aggregate total of fourteen years executed. This error in calculation went
       uncorrected on the record at the sentencing hearing. However, the correct aggregate total is reflected
       in the Judgment of Conviction and the parties’ briefs on appeal.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1703-CR-632 | November 30, 2017               Page 8 of 23
       inherently improbable and equivocal that the incredible dubiosity rule should

       apply.


                                       A. Standard of Review
[16]   Our standard of review for sufficiency claims is well settled. When evaluating a

       sufficiency of the evidence claim, we consider only the probative evidence and

       reasonable inferences most favorable to the verdict. Love v. State, 73 N.E.3d

       693, 696 (Ind. 2017). We do not assess the credibility of the witnesses and we

       do not reweigh the evidence. Id. We will only reverse if no reasonable fact-

       finder could find the elements of the crimes proven beyond a reasonable doubt.

       Id.


                      B. Incredible Dubiosity of J.D.’s Testimony
[17]   The incredible dubiosity rule allows an appellate court to impinge upon the fact-

       finder’s assessment of witness credibility when the testimony at trial was so

       “unbelievable, incredible, or improbable that no reasonable person could ever

       reach a guilty verdict based upon that evidence alone.” Moore v. State, 27

       N.E.3d 749, 751 (Ind. 2015). Our supreme court has explained the incredible

       dubiosity rule requires there be: “1) a sole testifying witness; 2) testimony that is

       inherently contradictory, equivocal, or the result of coercion; and 3) a complete

       absence of circumstantial evidence.” Id. at 756.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1703-CR-632 | November 30, 2017   Page 9 of 23
[18]   Foster admits he had sexual intercourse with J.D. but denies that it ever

       occurred before J.D.’s sixteenth birthday.4 Foster attempts to invoke the

       incredible dubiosity rule regarding J.D.’s testimony and emphasizes there was

       no DNA evidence, no medical records of injuries, and no eye-witnesses of

       anything other than the undisputed fact that J.D. lived at his home.


[19]   Our application of the incredible dubiosity rule could end where it begins: the

       requirement that there be but a “sole testifying witness.” Id. at 757 (noting

       application of the incredible dubiosity rule “has been restricted to cases where

       there is a single testifying witness”). Here, J.D. was not the sole testifying

       witness. Rather, the State presented testimony from three other witnesses:

       J.D.’s sister, J.B.; J.D.’s friend, Newbauer; and J.D.’s mother, Jennifer.


[20]   Although J.D. was the only eyewitness to the underlying sexual acts, as is

       common in cases involving sexual crimes, two witnesses, J.B. and Newbauer,

       corroborated important aspects of J.D.’s testimony. See id. at 757-58 (holding

       that the incredible dubiosity rule does not apply where there are corroborating

       witnesses). J.B. and Newbauer both testified that J.D. had discussed her sexual

       relationship with Foster during J.D.’s freshman year. Tr., Vol. 1 at 162; 135.




       4
           Indiana Code section 35-42-4-9 (2007) provides:

                (a) A person at least eighteen (18) years of age who, with a child at least fourteen (14) years of
                    age but less than sixteen (16) years of age, performs or submits to sexual intercourse or
                    deviate sexual conduct commits sexual misconduct with a minor, a Class C felony.
                    However, the offense is:
                    (1) a Class B felony if it is committed by a person at least twenty-one (21) years of age;
                ***

       Court of Appeals of Indiana | Memorandum Decision 02A03-1703-CR-632 | November 30, 2017              Page 10 of 23
       J.B. testified that she saw J.D. and Foster together on numerous occasions and

       witnessed kissing, holding hands, and Foster’s hand on J.D.’s leg. “[T]hey did

       pretty much everything together. They never really left each other’s side.” Id.

       at 162. J.B. also described how, on one occasion where she spent the night at

       Foster’s home, she heard “moaning,” leading her to believe Foster and J.D.

       were “having sex.” Id. at 163.


[21]   Foster’s claims also fail the second factor of the incredible dubiosity rule, which

       is: “whether the witness’ testimony is inherently improbable, contradictory, or

       coerced, resulting in the testimony being incredibly dubious.” Moore, 27 N.E.3d

       at 758. Foster claims that J.D.’s testimony was contradicted and often

       unbelievable. In support of his argument, Foster cites to two examples

       surrounding Foster and J.D.’s initial meeting. First, Foster contends that J.D.

       testified that they met at a “Super Bowl party in February of 2010[,]” while

       Foster’s brother, Kevin, testified that this meeting took place on Saturday,

       January 30, 2010. Brief of Appellant at 24. Second, Foster alleges that J.D.’s

       testimony regarding their initial meeting is unreliable because she admitted she

       was extremely intoxicated, became ill, and that she could not remember much

       from that night. Again, Foster points to Kevin’s testimony that Foster was

       never alone with J.D.


[22]   We find Foster’s arguments to be unconvincing and largely irrelevant. First, we

       note these are not inconsistencies in J.D.’s testimony but contradictions with

       Foster’s testimony or that of his brother. Second, whether the initial meeting

       between J.D. and Foster happened in late January or early February 2010 and

       Court of Appeals of Indiana | Memorandum Decision 02A03-1703-CR-632 | November 30, 2017   Page 11 of 23
       whether the party was a “Super Bowl party” or just a run-of-the-mill underage

       drinking party supervised by a twenty-eight-year-old, bears little weight on the

       substance of J.D.’s testimony. Third and finally, these examples are largely

       collateral and do not involve crimes for which Foster was convicted.


[23]   As for Foster’s allegation that J.D.’s testimony was unbelievable, a panel of this

       court has explained that in cases where we have found testimony to be

       inherently improbable or of incredible dubiosity, the cases involved either: 1)

       situations where the facts as alleged could not have happened as described by

       the victim and are inconsistent with the laws of nature or human experiences;

       or 2) the witness was so equivocal about the act charged that his or her

       uncorroborated and coerced testimony was riddled with doubt about its

       trustworthiness. Rose v. State, 36 N.E.3d 1055, 1061-62 (Ind. Ct. App. 2015).


[24]   J.D.’s testimony does not satisfy either category. First, nothing in J.D.’s

       testimony was inconsistent with the laws of nature or human experience.

       Although J.D.’s allegations should be outside the realm of possibility, this court

       knows all too well that such allegations are both entirely possible and altogether

       too common. See id. at 1062 (noting “our case law is replete with horrid

       examples of children being sexually abused by adults”).


[25]   Second, J.D.’s testimony was unequivocal. J.D. testified that she engaged in

       sexual intercourse with Foster for the first time when she was fourteen years old

       and that she continued to see Foster three to five times a week, often doing

       “sexual things.” Tr., Vol. 1 at 58. J.D. testified that in 2011, when she was


       Court of Appeals of Indiana | Memorandum Decision 02A03-1703-CR-632 | November 30, 2017   Page 12 of 23
       fifteen years old, the two would have sex “[e]very day, probably[,]” while the

       two lived together. Id. at 77. J.D. also testified that during this time the two

       performed oral sex on each other, Foster inserted his fingers into J.D.’s vagina,

       and they engaged in anal sex on more than one occasion.


[26]   Next, Foster contends that J.D.’s testimony is unbelievable because she took

       more than five years to report the crimes and did so only while dealing with

       authorities on an unrelated matter. Foster emphasizes that J.D. only recently

       told her mother of their sexual relationship, that neither J.B. or Newbauer told

       anyone in authority of J.D.’s relationship, and that while J.D.’s testimony was

       vague on dates, times, and events, his own testimony was very detailed.


[27]   Foster’s arguments on this point do not render J.D.’s testimony unbelievable or

       incredibly dubious. Given the nature of J.D.’s relationship with Foster and the

       fact that she loved and cared for him, there is nothing unusual about J.D.’s

       disclosure of the relationship only after their separation. Cf. Baumholser v. State,

       62 N.E.3d 411, 415 (Ind. Ct. App. 2016) (discussing admissibility of expert

       witness’ testimony that victims of child molestation have a propensity to “delay

       disclosure of the event”), trans. denied. Similarly, there is nothing unusual about

       J.D.’s delayed disclosure of the relationship to her mother, whom she admitted

       to lying to repeatedly about Foster. Put simply, the jury was free to believe or

       disbelieve the testimony as it saw fit. McClendon v. State, 671 N.E.2d 486, 488

       (Ind. Ct. App. 1996).




       Court of Appeals of Indiana | Memorandum Decision 02A03-1703-CR-632 | November 30, 2017   Page 13 of 23
[28]   Finally, we address the third factor of the incredible dubiosity rule: “a complete

       absence of circumstantial evidence.” Moore, 27 N.E.3d at 756. A photograph

       electronically dated prior to J.D.’s sixteenth birthday shows Foster kissing J.D.

       with his hand on her buttocks and another depicts Foster and J.D. nude, kissing

       in Foster’s bathroom. J.D.’s notebook, found in Foster’s home, contained

       notes dated as early as March 2010 where J.D. wrote about loving Foster and

       placed their names inside of a heart. Other notes spoke of the two having sex

       multiple times over spring break of J.D.’s freshman year, of J.D. loving Foster,

       and that J.D. was aware of the illegality of Foster’s acts. This, of course, is not

       all of the circumstantial evidence introduced by the State but the incredible

       dubiosity rule requires “a complete absence” of such evidence. Id. That is not

       the case presented here and “where there is circumstantial evidence of an

       individual’s guilt, reliance on the incredible dubiosity rule is misplaced.” Id. at

       759.


[29]   In sum, the incredible dubiosity rule does not apply to the case before us.

       Therefore, Foster’s arguments regarding the sufficiency of the evidence can only

       be interpreted as an invitation to reweigh the evidence and judge the credibility

       of witnesses. We must decline Foster’s invitation. See Wright v. State, 828

       N.E.2d 904, 906 (Ind. 2005).




       Court of Appeals of Indiana | Memorandum Decision 02A03-1703-CR-632 | November 30, 2017   Page 14 of 23
                                             II. Sentencing
                                         A. Abuse of Discretion
[30]   Foster next alleges the trial court abused its discretion in his sentencing. Subject

       to the appellate courts’ review and revise power, sentencing decisions are within

       the sound discretion of the trial court and we review 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 if the decision is “clearly

       against the logic and effect of the facts and circumstances before the court, or

       the reasonable, probable, and actual deductions to be drawn therefrom.” Id.


[31]   In Anglemyer, our supreme court explained:


               One way in which a trial court may abuse its discretion is failing
               to enter a sentencing statement at all. Other examples include
               entering a sentencing statement that explains reasons for
               imposing a sentence—including a finding of aggravating and
               mitigating factors if any—but the record does not support the
               reasons, or the sentencing statement omits reasons that are
               clearly supported by the record and advanced for consideration,
               or the reasons given are improper as a matter of law.


       Id. at 490-91.


[32]   Specifically, Foster argues because the trial court failed to clearly identify which

       mitigating factors it accepted, we must assume the trial court rejected them all.

       Foster contends the following mitigating factors were presented on his behalf at

       sentencing: 1) Foster’s remorse; 2) Foster’s difficult childhood and abuse; 3)

       Foster’s full-time employment; 4) hardship on Foster’s son as the result of

       Court of Appeals of Indiana | Memorandum Decision 02A03-1703-CR-632 | November 30, 2017   Page 15 of 23
       extended incarceration; and 5) Foster’s history of mental health issues. See Br.

       of Appellant at 27-28.


[33]   The trial court is not required to accept a defendant’s arguments as to what

       constitutes a mitigating factor or to give a mitigating factor the same weight as a

       defendant does. Page v. State, 878 N.E.2d 404, 408 (Ind. Ct. App. 2007), trans.

       denied. “An allegation that the trial court failed to identify or find a mitigating

       factor 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.

       Here, although the written sentencing order does not elaborate on the trial

       court’s findings, the trial court made a lengthy oral statement at the sentencing

       hearing. See Corbett v. State, 764 N.E.2d 622, 631 (Ind. 2002) (noting that in

       reviewing a sentencing decision, we may consider both the written sentencing

       order and the oral sentencing statement). The trial court stated that it had

       “heard all of the aggravating and mitigating circumstances proposed by

       respective counsel and ha[d] considered each and every one of them, [but] ha[d]

       not necessarily accepted each of them.” Sentencing Tr. at 35. Although a

       blanket assertion by the trial court that it has heard and considered all

       aggravating and mitigating factors will not always survive appellate review, we

       are satisfied that the trial court did not abuse its discretion in sentencing Foster.


[34]   We begin by noting that we disagree with Foster’s claim that because the trial

       court failed to clearly identify which mitigating factors it accepted, we must

       assume it rejected them all. The trial court did recognize Foster’s military

       service as a mitigating factor and noted Foster’s “honorable service to our

       Court of Appeals of Indiana | Memorandum Decision 02A03-1703-CR-632 | November 30, 2017   Page 16 of 23
       country[,]” and his service as a “significant role model to a number of his

       folks.” Sentencing Tr. at 35. Indeed, by all accounts Foster’s military service

       was exemplary and we, of course, commend Foster for his service. That said,

       Foster’s military service lacks a direct mitigating link to the crimes committed

       and, as this court has previously noted, while a defendant’s military service may

       be assigned mitigating weight, it is not necessarily a significant mitigating

       factor. Massey v. State, 955 N.E.2d 247, 260 (Ind. Ct. App. 2011).


[35]   Next, Foster contends the trial court abused its discretion by not recognizing his

       remorse as a mitigating factor. Our supreme court has held that a trial court’s

       determination of remorse is similar to a determination of credibility. Pickens v.

       State, 767 N.E.2d 530, 535 (Ind. 2002). Thus, a reviewing court will accept a

       trial court’s determination regarding remorse where there is no evidence of

       impermissible considerations by the trial court. Stout v. State, 834 N.E.2d 707,

       711 (Ind. Ct. App. 2005), trans. denied. Here, Foster only accepted responsibility

       for two counts, child exploitation and possession of child pornography. He

       adamantly denied the conduct for which he was convicted of sexual misconduct

       with a minor. Although Foster expressed remorse that J.D. had to “endure this

       process[,]” Sentencing Tr. at 33, that is not the same as accepting responsibility

       for his actions. Regardless, the trial court is in the best position to judge the

       sincerity of a defendant’s remorseful statements. Stout, 834 N.E.2d at 711.

       Accordingly, we cannot say the trial court abused its discretion in declining to

       find Foster’s remorse to be a mitigating circumstance.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1703-CR-632 | November 30, 2017   Page 17 of 23
[36]   Foster also proposes that his difficult childhood should have been considered a

       mitigating factor. Foster presented evidence through his own testimony that he

       suffered from physical, verbal, and mental abuse by several family members as

       a child. As Foster himself admits, a difficult childhood may warrant little, if

       any, mitigating weight. Rose v. State, 810 N.E.2d 361, 366 (Ind. Ct. App. 2004).

       Given the limited evidence put forth by Foster and the factor’s limited

       mitigating weight, we cannot say the trial court erred by rejecting this proffered

       mitigating factor.


[37]   Similarly, Foster contends the trial court erred by failing to find his history of

       mental health issues as a mitigating factor. We disagree. Foster presented

       evidence that he had been diagnosed with Post-Traumatic Stress Disorder, Bi-

       Polar Disorder, and had suffered a traumatic brain injury as the result of an

       IED explosion in Afghanistan. In Weeks v. State, our supreme court explained

       that when considering the mitigating force of a defendant’s mental health issue,

       a reviewing court should consider the inability of the defendant to control his

       behavior, any limited function, the duration of the illness, and the nexus

       between the illness and the crimes committed. 697 N.E.2d 28, 30 (Ind. 1998).

       Here, Foster offered no evidence concerning any of the foregoing

       considerations and simply proffered the diagnoses at sentencing. See

       Sentencing Tr. at 4-5. In light of Foster’s perfunctory argument and his burden

       to establish mitigating evidence, we are not persuaded that the trial court

       abused its discretion.




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[38]   Foster also alleges that his employment was an appropriate, but overlooked,

       mitigating factor. As discussed above, the trial court considered Foster’s

       military service as a mitigating factor and Foster advances essentially the same

       arguments regarding his employment, highlighting his mobilizations and

       deployments. Having already found a mitigating factor using the same facts,

       the trial court need not do so twice and did not abuse its discretion in declining

       to do so.


[39]   Finally, Foster contends the trial court abused its discretion by failing to find

       the undue hardship to his dependent as a mitigating circumstance. Specifically,

       Foster alleges C.F. will experience an undue hardship as the result of his

       extended incarceration because C.F. will be forced to grow up without the

       benefit of his father or mother. We acknowledge C.F.’s unfortunate situation

       but ultimately conclude the trial court did not abuse its discretion in rejecting

       Foster’s argument. As we have previously held, a trial court is not required to

       find a defendant’s incarceration would result in undue hardship upon his

       dependents. Allen v. State, 743 N.E.2d 1222, 1237 (Ind. Ct. App. 2001), trans.

       denied. The record reveals that C.F. spent a significant period of time with

       Foster’s parents while Foster served in the military and Foster often relied on

       others to care for C.F. Furthermore, “this mitigator can properly be assigned

       no weight when the defendant fails to show why incarceration for a particular

       term will cause more hardship than incarceration for a shorter term.” Weaver v.

       State, 845 N.E.2d 1066, 1074 (Ind. Ct. App. 2006), trans. denied. Here, Foster




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       failed to establish why his period of incarceration would cause more undue

       hardship than a somewhat shorter period.


[40]   In sum, we conclude that the trial court did not abuse its discretion in

       sentencing Foster and properly considered all the circumstances. Rather than

       overlooking the proposed mitigating factors, it is clear to us that the trial court

       determined the factors were insignificant and they therefore did not influence

       the sentence imposed. See Anglemyer, 868 N.E.2d at 493. The trial court also

       found significant aggravating circumstances which are unchallenged on appeal:

       1) Foster’s manipulation of a vulnerable child; 2) Foster’s awareness of sexual

       proprieties; and 3) Foster’s criminal history. Accordingly, the trial court did not

       abuse its discretion.


                                    B. Inappropriate Sentence
[41]   Foster also contends his aggregate sentence of fourteen years in the Indiana

       Department of Correction is inappropriate in light of the nature of the offenses

       and his character. The Indiana Constitution authorizes us to review and revise

       criminal sentences. Ind. Const. art. 7, §§ 4, 6. 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.” We must “conduct [this] review with substantial deference and give

       ‘due consideration’ to the trial court’s decision—since the ‘principal role of

       [our] review is to attempt to leaven the outliers,’ and not to achieve a perceived


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       ‘correct’ sentence.” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014) (citations

       omitted), cert. denied, 135 S.Ct. 978 (2015).


[42]   The defendant bears the burden of persuading us that his or her sentence is

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

       consider “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).


[43]   “[T]he advisory sentence is the starting point the Legislature has selected as an

       appropriate sentence for the crime committed.” Anglemyer, 868 N.E.2d at 494.

       Foster received the advisory sentence for all four of his convictions. Only two

       of his sentences were ordered to run consecutively for an aggregate term of

       fourteen years executed. Notably, this sentence is significantly shorter than the

       maximum of thirty-eight and one-half years of incarceration he could

       potentially have received for his convictions. See Ind. Code §§ 35-50-2-5(a); 35-

       50-2-6(a); 35-50-2-7.


[44]   Seemingly, Foster’s only argument regarding the nature of his offense is that he

       is “certainly not the most culpable offender that the Indiana Court of Appeals

       scrutinized under this statute.” Br. of Appellant at 34. While likely true, we

       nonetheless find Foster’s actions reprehensible and exceedingly disturbing. Due

       to the circumstances surrounding Foster’s relationship with J.D., her

       vulnerability, their difference in age and maturity, and the frequency and




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       duration of their sexual relationship, we find absolutely nothing about the

       nature of Foster’s offenses to render his advisory sentences inappropriate.


[45]   Turning to the character of the defendant, we again find nothing to render

       Foster’s sentence inappropriate. First, even a minor criminal record reflects

       poorly on a defendant’s character. Rutherford v. State, 866 N.E.2d 867, 874 (Ind.

       Ct. App. 2007). Here, Foster had more than a minor criminal record,

       accumulating a juvenile record, as well as several misdemeanors and two prior

       felony convictions for residential entry and theft as an adult. Second, Foster

       presented testimony from several friends, family members, and fellow soldiers.

       Their testimony paints a picture of a mentor, a role model, and a caring,

       compassionate man. We do not diminish Foster’s military service and, as

       noted above, commend him for it. However, we must agree with the trial

       court’s view that Foster had the opportunity to serve as a role model to a

       vulnerable child and he chose instead to pursue his own passions. We find

       Foster’s apparent disregard for the law perplexing given his upstanding military

       service, but nonetheless must acknowledge that his lengthy inappropriate

       relationship with a minor—a relationship he knew was inappropriate given his

       discussions with J.D. about keeping it secret—reflects poorly on his character.


[46]   Finally, Foster’s failure to accept responsibility for his actions also reflects

       poorly on his character. Although he makes much of the fact that he admitted

       to possession of child pornography and child exploitation, he did so only in

       light of nearly irrefutable evidence while adamantly denying conduct relating to

       his two convictions of sexual misconduct with a minor. Considering Foster’s

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       criminal history and his failure to accept responsibility, nothing about Foster’s

       character is sufficient to render his sentence inappropriate.



                                              Conclusion
[47]   We conclude the incredible dubiosity rule is inapplicable to the facts presented

       and the evidence is sufficient to support Foster’s convictions of sexual

       misconduct with a minor. The trial court did not abuse its discretion in

       sentencing Foster and his sentence was not inappropriate in light of the nature

       of his offenses or his character. Accordingly, we affirm in all respects.


[48]   Affirmed.


       Riley, J., and Pyle, J., concur.




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