Pursuant to Ind.Appellate Rule 65(D), this

                                                               FILED
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of                             Mar 27 2012, 9:25 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
                                                                    CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
                                                                         tax court




ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:
DONALD J. EVANS                                GREGORY F. ZOELLER
Valparaiso, Indiana                            Attorney General of Indiana

                                               KATHERINE MODESITT COOPER
                                               Deputy Attorney General
                                               Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

KEVIN K. COTTON,                                  )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )     No. 64A03-1107-CR-334
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                    APPEAL FROM THE PORTER SUPERIOR COURT
                         The Honorable William E. Alexa, Judge
                           Cause No. 64D02-0911-FA-12164


                                     March 27, 2012

            MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                             STATEMENT OF THE CASE

       Appellant-Defendant, Kevin K. Cotton (Cotton), appeals his conviction and

sentence for two Counts of child molesting, Class C felonies, Ind. Code § 35-42-4-3(b).

       We affirm.

                                         ISSUES

       Cotton raises three issues on appeal, two of which we find dispositive and which

we restate as follows:

       (1) Whether the State produced sufficient evidence to prove beyond a reasonable

          doubt that he committed child molesting; and

       (2) Whether the trial court‟s sentence was appropriate in light of the nature of his

          offense and his character.

                         FACTS AND PROCEDURAL HISTORY

       Cotton and C.R. (Mother) are the biological parents of A.R., who was twelve years

old at the time of trial, and B.R., who was ten years old at the time of trial. Cotton was

never married to Mother and did not have legal visitation rights with A.R. and B.R.,

although A.R. and B.R. stayed with Cotton approximately every other weekend between

2004 and 2009 through an unofficial arrangement between their parents.

       In late April or early May of 2009, A.R.‟s friend A.F. spent the night with A.R. at

Cotton‟s house. That evening, the two girls took a bath together, and A.R. told A.F. to

keep her bra and underwear on in case Cotton came into the bathroom. While they were


                                            2
in the bathtub, Cotton came into the room, took off his clothes, and asked if he could join

them. Subsequently, he left the bathroom, but he only did so at A.R.‟s insistence.

       Two weeks later, A.F. again spent the night with A.R. at Cotton‟s house. A.F. and

A.R. were on the couch watching television when Cotton grabbed some pebbles that were

decorating a nearby candle and put them down his pants. He told A.R. to get them out,

but she refused to do so. Cotton took the pebbles out of his pants himself but then

grabbed either his cigarette or a lighter and told A.F. to “follow the light” as he circled it

around his penis, which was hanging out of his pants. (Transcript p. 224). A.R. told

Cotton to leave, and he went into the bedroom where B.R. was sleeping. B.R. woke to

find Cotton touching her with his penis between her legs. She told Cotton that she

needed to use the bathroom and then she spent the remainder of the night on the couch

with A.R. and A.F.

       That same weekend, Cotton took A.R.‟s stuffed animal named “Chuck” and

rubbed his penis against it while wearing his clothes, saying that he was going to

“„F[***] Chuck.‟” (Tr. p. 144). Cotton then asked A.R. to “come be Chuck.” (Tr. p.

225). A.R. refused, so Cotton told B.R. to “come be Chuck.” (Tr. p. 225). Cotton

tickled and “hump[ed]” both A.R. and B.R. while they had their clothes on, then tickled

A.F. and tried to “hump” her, too. (Tr. p. 143). In response, A.F. told him not to touch

her, kicked him, and ran out of the room.

       After this second sleepover, Cotton told Mother that he did not want A.F. spending

the night at his house anymore. Mother told A.F.‟s father what Cotton had said, and on

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June 21, 2009, A.F.‟s father discussed the issue with Cotton because he was worried that

A.F. was misbehaving. A.F.‟s father became suspicious when Cotton told him that it had

“nothing to do with [A.F.].” (Tr. p. 178). As a result, he asked A.F. if she had ever done

anything that would cause Cotton to ask her not to visit, and she told him that she had

not. He also asked her if anything strange had ever happened at Cotton‟s house, and A.F.

told him about the events of her two sleepovers. After hearing her account, A.F.‟s father

called Mother and told her what A.F. had revealed to him. Together, A.F.‟s father and

Mother took A.F., A.R., and B.R. to the Porter County Police Department and reported

the incidents.

       On November 30, 2009, the State filed an Information charging Cotton with two

Counts of child molesting as Class A felonies, I.C. § 35-42-4-3(a)(1), and three Counts of

child molesting as Class C felonies, I.C. § 35-42-4-3(b). That same day, the State also

filed an Information charging Cotton with being a repeat sexual offender, I.C. § 35-50-2-

14. On May 3-4, 2011, a jury trial was held. At trial, A.R. testified that over the years of

visiting her father, he had touched her private parts with his fingers on multiple

occasions, touched her breasts, and made her rub his penis. She also testified that on

occasions Cotton had attempted to penetrate her vagina and anus with his penis and

finger, but had stopped when she told him that it hurt. Similarly, B.R. testified that on

multiple occasions, Cotton had touched her private parts, made her rub his penis, and

rubbed his penis between her legs. At the conclusion of the evidence, the jury found



                                             4
Cotton guilty of two Counts of child molesting as Class C felonies and of being a repeat

sex offender, but not guilty of the remaining charges.

       On June 3, 2011, the trial court held a sentencing hearing and sentenced Cotton to

eight years for each of his convictions for child molesting and four years for being a

repeat sex offender, with sentences to be served consecutively, for an aggregate sentence

of twenty years executed. As aggravating circumstances, the trial court noted that: (1)

Cotton had an extensive criminal history; (2) the victims were less than 12 years of age at

the time the offenses were committed; (3) Cotton had recently violated conditions of his

probation in at least three separate cases; and (4) Cotton was in the position of having the

care, custody, and control of the victims. The trial court did not find any mitigating

circumstances.

       Cotton now appeals. Additional facts will be provided as necessary.

                                      DISCUSSION

                              I. Sufficiency of the Evidence

       On appeal, Cotton argues that the State did not present sufficient evidence to prove

beyond a reasonable doubt that he committed the child molesting offenses.            When

reviewing a sufficiency of evidence claim, this court does not reweigh the evidence or

judge the credibility of the witnesses. Perez v. State, 872 N.E.2d 208, 213 (Ind. Ct. App.

2007), trans. denied. In addition, we only consider the evidence most favorable to the

verdict and reasonable inferences stemming from that evidence. Id. We will only reverse



                                             5
a conviction when reasonable persons would not be able to form inferences as to each

material element of the offense. Id. at 212-13.

       In order to establish that Cotton committed child molesting as a Class C felony,

the State was required to prove beyond a reasonable doubt that he “with a child under

fourteen (14) years of age, perform[ed] or submit[ted] to any fondling or touching, of

either the child or [himself], with intent to arouse or to satisfy the sexual desires of either

the child or [himself].” I.C. § 35-42-4-3(b). Mere touching alone is not sufficient to

constitute the crime of child molesting. Davis v. State, 956 N.E.2d 726, 730 (Ind. Ct.

App. 2011). The State must also prove beyond a reasonable doubt that the act of

touching was accompanied by the specific intent to arouse or satisfy sexual desires. Id.

The intent element may be established by circumstantial evidence and inferred “from the

actor‟s conduct and the natural and usual sequence to which such conduct usually

points.” Id. (quoting Pedrick v. State, 593 N.E.2d 1213, 1220 (Ind. Ct. App. 1992), reh’g

denied).

       Cotton does not clearly develop his argument concerning this issue, but essentially

asserts that because the jury acquitted him of his Class A felony charges, which were

based on the same underlying facts as his Class C felony charges, there was not sufficient

evidence for the jury to convict him of his Class C felony charges either. Preliminarily,

we note that inconsistent jury verdicts are not subject to appellate review. Beattie v.

State, 924 N.E.2d 643, 649 (Ind. 2010). The supreme court has previously commented

that “[w]hen a jury returns logically inconsistent verdicts, such a result could mean that it

                                              6
misunderstood its instructions. But it is more likely that the jury chose to exercise lenity,

refusing to find the defendant guilty of one or more additionally charged offenses, even if

such charges were adequately proven by the evidence. Such right of a criminal jury to

decline to convict is well recognized.” Id. at 648. In other words, an acquittal of one

charge does not necessarily mean that there is insufficient evidence to support a

conviction on a related charge. See id. Accordingly, “[t]he evaluation of whether a

conviction is supported by sufficient evidence is independent from and irrelevant to the

assessment of whether two verdicts are contradictory and irreconcilable.” Id. Thus, we

will examine the sufficiency of the evidence supporting Cotton‟s Class C child molesting

convictions independently from his Class A charges.

       Here, both of Cotton‟s victims were under fourteen years of age, and they both

testified that Cotton rubbed his fingers on their private areas, rubbed his penis between

their legs and made them place their hands on his penis and rub it until “white stuff

[came] out.” (Tr. p. 255). A.R. also testified that on separate occasions Cotton attempted

to insert his finger and penis into her vagina and anus and only stopped when she

protested that it hurt. In light of such testimony, we conclude that the State presented

sufficient evidence to prove that Cotton fondled and touched children under the age of

fourteen and did so to satisfy his sexual desires. Thus, there was sufficient evidence to

support his convictions for child molestation.

                 II. Nature of the Offense and Character of the Offender



                                             7
         Next, Cotton argues that the trial court inappropriately sentenced him in light of

the nature of his offense and his character. Under Indiana Appellate Rule 7(B), this 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. Childress v. State, 848 N.E.2d 1073, 1079-80

(Ind. 2006). Although this court is not required to use “great restraint,” we nevertheless

exercise deference to a trial court‟s sentencing decision, both because Appellate Rule

7(B) requires that we give “due consideration” to that decision and because we recognize

the unique perspective a trial court has when making decisions. Stewart v. State, 866

N.E.2d 858, 865-66 (Ind. Ct. App. 2007). The “principal role of appellate review should

be to attempt to leaven the outliers, and identify some guiding principles for trial courts

and those charged with improvement of the sentencing statutes, but not to achieve a

perceived „correct‟ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

2008).

         We recognize that the sentencing range for a Class C felony is two years to eight

years, with an advisory sentence of four years. I.C. § 35-30-2-6. In addition, the trial

court may sentence a defendant found to be a repeat sexual offender to “a fixed term that

is the advisory sentence for the underlying offense.” I.C. § 35-50-2-14. As the trial court

sentenced Cotton to eight years for each of his Class C felony Counts, as well as four

years for being a repeat sexual offender, it sentenced him to the maximum possible

statutory penalty for his offenses.

                                              8
       With respect to the nature of Cotton‟s offense, we note that Cotton molested his

daughters over a lengthy period of time, starting when they were very young. A.R., for

instance, was in second grade when Cotton first molested her.           In addition, these

molestations occurred during Cotton‟s visits with his daughters when he was in the

position of having their care, custody, control, and trust. Finally, Cotton threatened his

daughters not to tell about the abuse, stating that he would “hurt [them] and [their

family]” and would “take [them] away from [their] mom.” (Tr. p. 60). Cotton told B.R.

never to tell about the molestations because he would go to jail and she would never be

able to see him. In light of these circumstances, we find that the trial court did not

misjudge that the nature of Cotton‟s offense justified the maximum statutory sentence.

       With respect to Cotton‟s character, it is clear from his criminal history that he has

very little respect for the law. Cotton has prior felony convictions for sexual battery and

resisting law enforcement, as well as ten misdemeanor convictions for consuming alcohol

as a minor, battery, operating while intoxicated, resisting law enforcement, and carrying a

handgun without a license, among others, and multiple probation violations. Cotton

argues that much of the information provided in the pre-sentence investigation report

(PSI) was out of date because it was taken from a 2005 PSI, but he admitted at the

sentencing hearing that the information in the PSI was correct and that no changes,

corrections, or additions needed to be made. In addition, we find it especially significant

that this is not Cotton‟s first sexual offense, and the victim of his prior sexual battery



                                             9
offense was also a girl under the age of fourteen. Accordingly, we determine that the trial

court also appropriately sentenced Cotton in light of his character.1

                                            CONCLUSION

        Based on the foregoing, we conclude that (1) the State produced sufficient

evidence to prove beyond a reasonable doubt that Cotton committed two Counts of child

molesting as Class C felonies; and (2) the trial court properly sentenced Cotton in light of

the nature of his offense and his character.

        Affirmed.

FRIEDLANDER, J. and MATHIAS, J. concur




1
  Cotton also asserts that the trial court failed to consider his history of drug and alcohol abuse; family
history of molestation; and prescription for psychotropic drugs as mitigating factors when it sentenced
him. However, Cotton does not support his argument with citations to any legal authorities or to the parts
of the Record on which he relies, as required by Ind.Appellate Rule 46(A)(8)(a). He also failed to raise
these issues at sentencing and is thus precluded from raising them on appeal. See Anglemyer v. State, 868
N.E.2d 482, 492 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007). Therefore, we deem his
argument waived.


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