MEMORANDUM DECISION
                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                            Dec 21 2016, 8:29 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
David M. Payne                                          Gregory F. Zoeller
Marion, Indiana                                         Attorney General of Indiana
                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

William D. Funderburgh III,                             December 21, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        27A05-1604-CR-867
        v.                                              Appeal from the Grant Superior
                                                        Court
State of Indiana,                                       The Honorable Dana J.
Appellee-Plaintiff.                                     Kenworthy, Judge
                                                        Trial Court Cause No.
                                                        27D02-1405-FA-10



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-867 | December 21, 2016   Page 1 of 17
                                          Statement of the Case
[1]   William D. Funderburgh III (“Funderburgh”) appeals his sentence imposed

      following his guilty plea to Class A felony child molesting.1 Funderburgh

      appeals his sentence, arguing that the trial court erred in its consideration of

      aggravators and mitigators and that his fifty-year sentence is inappropriate.

      Concluding that the trial court did not abuse its discretion when sentencing

      Funderburgh and that Funderburgh has failed to show that his sentence is

      inappropriate, we affirm his sentence.


[2]   We affirm.


                                                        Issues2
             1. Whether the trial court abused its discretion when sentencing
             Funderburgh.

             2. Whether Funderburgh’s sentence is inappropriate pursuant to
             Indiana Appellate Rule 7(B).




      1
       IND. CODE § 35-42-4-3(a)(1) (2006). We note that under the current version of the child molesting statute,
      which took effect in 2014, Class A felony child molesting is now a Level 1 felony. Because Funderburgh
      committed his offense in 2005-2006, we will apply the statute in effect at that time.
      2
        Funderburgh sets forth his appellate argument as solely a challenge to the inappropriateness of his sentence.
      However, interspersed in his inappropriate sentencing argument, Funderburgh challenges the three
      aggravators found by the trial court as well as the trial court’s decision to reject his proffered mitigators.
      Because a challenge to aggravating and mitigating factors is to be reviewed under a different standard of
      review than an inappropriate sentencing challenge, we will review these arguments separately.

      Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-867 | December 21, 2016            Page 2 of 17
                                                     Facts
[3]   Between September 2005 and September 2006, Funderburgh, who was then

      thirty-four years old, engaged in sexual intercourse with M.M., who was the

      eight-year-old daughter of Funderburgh’s live-in girlfriend.


[4]   Several years later, once M.M. had moved in with her grandmother, M.M.

      reported what Funderburgh had done to her. Thereafter, on November 5, 2013,

      the Marion Police Department questioned Funderburgh regarding the child

      molesting allegations against him. Initially, Funderburgh denied all the

      allegations. He told police that he “wanted to take a polygraph to clear himself

      of the allegations.” (App. 153).


[5]   Three days later, on November 8, 2013, Funderburgh returned to the police

      station for the scheduled polygraph. Funderburgh then signed a “Polygraph

      Waiver Form” and an “Agreement of Stipulation of Polygraph Examination,”

      in which he agreed that the results of the polygraph could be used against him

      in any action that would arise from charges filed against him. (App. 75, 78).

      The police videotaped Funderburgh as he was interviewed before the polygraph

      examination, during the polygraph examination, and after the examination.

      During the post-polygraph interview, Funderburgh stated that he thought of

      M.M. as his daughter. When officers asked if he could explain why the

      polygraph showed that he was being deceptive about the question of whether

      his bare penis had touched M.M.’s bare vagina, Funderburgh first stated that,

      when he lived with M.M., her mother, and her siblings, they used to walk

      naked around the house and that his penis might have touched M.M.’s vagina
      Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-867 | December 21, 2016   Page 3 of 17
      when he walked by her. He later stated that there had been only one contact

      that had occurred, and he blamed it on M.M. Specifically, Funderburgh stated

      that when he was sitting on the toilet having a bowel movement with an erect

      penis, and M.M. straddled his lap. He later stated that his penis became erect

      after M.M. sat on him.


[6]   In 2014, the State charged Funderburgh with three counts of Class A felony

      child molesting. Specifically, Count 1 alleged that Funderburgh had engaged in

      sexual intercourse with M.M.; Count 2 alleged that Funderburgh had

      performed deviate sexual conduct on M.M.; and Count 3 alleged that

      Funderburgh had M.M. perform deviate sexual conduct on him.


[7]   Prior to trial, Funderburgh’s counsel filed a motion in limine, seeking to

      exclude evidence of the polygraph examination and results. The trial court held

      a hearing on Funderburgh’s motion, and the State introduced, as State’s Exhibit

      1, the DVD of Funderburgh’s November 8, 2014 interviews and polygraph

      examination.3 The trial court reviewed the videotape of Funderburgh’s pre-

      polygraph interview, his polygraph examination, and his post-polygraph

      interview; determined that Funderburgh had knowingly waived his right to

      counsel prior to the polygraph examination; and denied Funderburgh’s limine

      motion.




      3
          The transcript of this limine hearing is not included in the record on appeal.


      Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-867 | December 21, 2016   Page 4 of 17
[8]    On January 26, 2016, the day of Funderburgh’s jury trial, Funderburgh entered

       an agreement to plead guilty to Count 1 in exchange for the dismissal of Counts

       2 and 3.4 The parties also agreed that sentencing would be open to the trial

       court’s discretion. The factual basis for Funderburgh’s offense was laid by

       Funderburgh’s admission to the facts alleged in the charging information for

       Count 1.


[9]    At Funderburgh’s sentencing hearing, the State asked the trial court to take

       judicial notice of the State’s Exhibit 1 from the limine hearing, which was the

       DVD of Funderburgh’s November 8, 2014 interviews and polygraph

       examination. The trial court granted the State’s request.


[10]   The State also had M.M. present her victim impact statement. When making

       this statement, M.M. stated that Funderburgh “raped” her in the bathroom

       when she was eight years old. (Tr. 45). She further explained that

       Funderburgh had “sexual intercourse with [her] in the bathroom after everyone

       ha[d] gone to sleep.” (Tr. 46). M.M. further stated that Funderburgh had

       molested her “repeatedly” and explained that it was multiple times a week over




       4
         It appears that the plea agreement was an oral, not a written plea agreement. We note that INDIANA CODE
       § 35-35-3-3(a) requires that a plea agreement on a felony charge be made “in writing” and “before the
       defendant enters a plea of guilty.” Recently, we explained that “‘[t]he purpose behind [INDIANA CODE § 35-
       35-3-3] is to insure that a defendant does not base his guilty plea upon certain promises made by the
       prosecutor where the judge has in fact not accepted the [S]tate’s recommendation.’” Gil v. State, 988 N.E.2d
       1231, 1234 n.2 (Ind. Ct. App. 2013) (quoting Davis v. State, 418 N.E.2d 256, 260 (Ind. Ct. App. 1981)).
       However, we also explained that “failure to reduce an agreement to writing need not itself be deemed a
       sufficient ground for rejection” of a defendant’s guilty plea. Gil, 988 N.E.2d at 1234 n.2 (quoting Centers v.
       State, 501 N.E.2d 415, 417-18 (Ind. 1986)).



       Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-867 | December 21, 2016           Page 5 of 17
       multiple months. (Tr. 46). Additionally, M.M. stated that Funderburgh had

       forced her to watch “sex position guide videos” and to look at “porn

       magazines.” (Tr. 54). She further stated that she had been seeing a therapist

       for a few years and that Funderburgh’s actions still affected her.


[11]   M.M.’s grandmother (“Grandmother”) also presented a statement during the

       sentencing hearing. Apparently, around 2006 or 2007, the Department of Child

       Services had removed M.M. from her mother’s home and placed her in foster

       care, where she remained for approximately two years. Thereafter, M.M.

       moved in with her grandparents. Grandmother stated that when M.M. moved

       in with her, she “knew something unusual had happened to M.[M.]” and that,

       at that time, M.M. would crawl into a small space, get into a fetal position,

       cover herself with a blanket, and “sob[.]” (Tr. 59). Grandmother further stated

       that M.M. had been in therapy for almost four years before she was able to

       reveal that Funderburgh had molested her. Additionally, Grandmother stated

       that Funderburgh had stolen M.M.’s “childhood and innocence” and caused

       her to feel shame and have low self-worth. (Tr. 60).


[12]   When Funderburgh made a statement, he “apologize[d] for what had happened

       with all of this” and then stated that he wanted to have a jury trial instead of a

       sentencing hearing. (Tr. 73). The trial court told Funderburgh that he had his

       chance to have a jury trial and had decided to plead guilty and that the court

       would proceed with sentencing.




       Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-867 | December 21, 2016   Page 6 of 17
[13]   The State argued that, taking into consideration Funderburgh’s polygraph

       examination and interviews, his statements made to the probation officer as

       part of the presentence investigation report (“PSI”), and M.M.’s sentencing

       statements, it was clear that Funderburgh blamed M.M. for the molestation.

       The State requested that the trial court impose a fifty-year sentence.


[14]   During the sentencing hearing, Funderburgh’s counsel asked the trial court to

       consider certain mitigating factors, including his difficult childhood of physical

       and emotional abuse. His counsel also referenced the DVD from

       Funderburgh’s November 2013 police interview and stated that the video

       showed that Funderburgh was “embarrass[ed]” by “what had happened

       here[.]” (Tr. 76). Additionally, Funderburgh’s counsel argued that

       Funderburgh was not in a position of trust with M.M. Counsel acknowledged

       that Funderburgh had a relationship with M.M.’s mother and lived with her,

       but he argued that there was no position of trust because Funderburgh had

       never married M.M.’s mother. Funderburgh’s counsel requested that the trial

       court impose a thirty-year sentence with ten years suspended to probation.


[15]   When sentencing Funderburgh, the trial court acknowledged that Funderburgh

       had pled guilty and noted that he had received “some consideration” for it

       because the State had dismissed two other Class A felony charges. (Tr. 80).

       The trial court noted that Funderburgh had five misdemeanor convictions.

       Specifically, in June 2000, Funderburgh was convicted in Wisconsin of criminal

       damage to property/use of a dangerous weapon and disorderly conduct. In

       January 2001, he was convicted in Wisconsin of battery (domestic abuse

       Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-867 | December 21, 2016   Page 7 of 17
       related) and two counts of disorderly conduct. The trial court found the

       following aggravating circumstances: (1) Funderburgh’s criminal history,

       which the trial court found to be “a moderate aggravating factor[;]” (2) the age

       of the victim, which the trial court found to be “a moderate aggravating factor”

       because M.M. was “an eight year old little girl[;]” and (3) Funderburgh’s

       position of “care, custody[,] and control” of the victim, which the trial court

       found to be “a very strong aggravating factor[.]” (Tr. 80-81). The trial court

       also noted that Funderburgh “minimize[d] his own responsibility[] and

       blame[d] the victim for initiating his victimization of her[,]” and it found

       Funderburgh’s “statements and attitude on this point to be incredible and

       disturbing.” (App. 181).


[16]   The trial court imposed a fifty (50) year sentence for Funderburgh’s Class A

       child molesting conviction and ordered it be served in the Department of

       Correction. Funderburgh now appeals.


                                                   Decision
[17]   On appeal, Funderburgh contends that: (1) the trial court erred in it

       consideration of aggravating and mitigating circumstances; and (2) his sentence

       is inappropriate. We will review each argument in turn.


       1. Abuse of Discretion


[18]   Funderburgh suggests that the trial court erred by finding the three aggravating

       circumstances and by rejecting his proffered mitigating circumstances.


       Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-867 | December 21, 2016   Page 8 of 17
[19]   Sentencing decisions rest 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 (Ind. 2007). So long as the sentence is within the statutory range, it is

       subject to review only for an abuse of discretion. Id. An abuse of discretion

       will be found where 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. A trial court may abuse its discretion in

       a number of ways, including: (1) failing to enter a sentencing statement at all;

       (2) entering a sentencing statement that includes aggravating and mitigating

       factors that are unsupported by the record; (3) entering a sentencing statement

       that omits reasons that are clearly supported by the record; or (4) entering a

       sentencing statement that includes reasons that are improper as a matter of law.

       Id. at 490–91.


[20]   Funderburgh suggests that the trial court’s use of his criminal history as an

       aggravating circumstance was erroneous because he had only misdemeanor

       convictions and was not on probation at the time of the current offense.

       Funderburgh’s challenge to the trial court’s aggravator is nothing more than a

       request to review the weight that the trial court applied to this aggravating

       factor, which we will not do. See Anglemyer, 868 N.E.2d at 491 (explaining that

       relative weight given to aggravating and mitigating factors is not subject to

       review). Thus, we conclude that the trial court did not abuse its discretion by

       considering Funderburgh’s criminal history as an aggravating factor.




       Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-867 | December 21, 2016   Page 9 of 17
[21]   Next, Funderburgh’s challenges the trial court’s determination that the victim’s

       age was an aggravating circumstance. Specifically, he contends that such an

       aggravator was improper because the age of the victim is an element of his

       offense.


[22]   Generally, where the age of the victim is a material element of the crime, the

       age of the victim may not be used as an aggravating circumstance. Kien v. State,

       782 N.E.2d 398, 414 (Ind. Ct. App. 2003) (citing Stewart v. State, 531 N.E.2d

       1146, 1150 (Ind. 1988)), reh’g denied, trans. denied. “However, the trial court

       may properly consider the particularized circumstances of the material elements

       of the crime” to be an aggravating factor. Id. (citing Stewart, 531 N.E.2d at

       1150). For example, a trial court may properly consider as aggravating the age

       of the victim when the trial court considers that the victim was of a “tender

       age.” Id. (citing Stewart, 531 N.E.2d at 1150 and Buchanan v. State, 767 N.E.2d

       967, 971 (Ind. 2002)). Stated differently, we have held that a trial court may

       properly consider the victim’s age as an aggravating factor where “the youth of

       the victim is extreme.” Reyes v. State, 909 N.E.2d 1124, 1128 (Ind. Ct. App.

       2009).


[23]   In Reyes, the defendant was convicted of Class A felony child molesting after he

       had sexual intercourse with a nine year old. Id. at 1126. At sentencing, the trial

       court found the victim’s age to be an aggravating circumstance. Id. at 1128. On

       appeal, we rejected Reyes’ contention “that the trial court [had] abused its

       discretion in concluding that the molestation of a nine year old [was] extreme.”

       Id. We explained that “[a]lthough the trial judge could have been more specific

       Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-867 | December 21, 2016   Page 10 of 17
       in tying the victim’s age to the particular nature and circumstances of the

       offenses, [the court] did refer to the victim’s age in conjunction with the

       molestation that occurred over a period of years.” Id. Thus, we held that the

       trial court had not abused its discretion by considering the victim’s age as an

       aggravating circumstance. Id.


[24]   Here, the trial court noted that M.M. was under the statutory age required for

       Funderburgh’s child molesting conviction. When sentencing Funderburgh, the

       trial court also commented that M.M. was “an eight year old little girl[,]” and it

       stated that it was taking into consideration M.M.’s victim impact statement and

       the effects that Funderburgh’s crime had on M.M. (Tr. 81). As a result, it is

       clear that the trial court’s finding concerning M.M.’s age was linked to the

       particular circumstances of this case, namely the profound impact it had on her

       young life. Therefore, the trial court did not abuse its discretion by identifying

       M.M.’s age as an aggravating circumstance. See, e.g., Reyes, 909 N.E.2d at 1128

       (finding no error in the trial court’s use of the nine-year-old victim’s age as an

       aggravating circumstance).


[25]   Lastly, we turn to Funderburgh’s contention that the position of trust and care

       aggravator is “not supported by the record.” (Funderburgh’s Br. 15). In regard

       to this aggravating circumstance, we have explained as follows:


               The position of trust aggravator is frequently cited by sentencing
               courts where an adult has committed an offense against a minor
               and there is at least an inference of the adult’s authority over the
               minor. Moreover, this aggravator applies in cases where the
               defendant has a more than casual relationship with the victim

       Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-867 | December 21, 2016   Page 11 of 17
               and has abused the trust resulting from that relationship. This is
               usually the case where the defendant is the victim’s mother,
               father or stepparent . . . . Generally, cohabitation arrangements
               of nearly any character between adults do in fact, and should,
               establish a position of trust between the adults and minors living
               or staying together.

       Rodriguez v. State, 868 N.E.2d 551, 555 (Ind. Ct. App. 2007).


[26]   Here, Funderburgh was the boyfriend of M.M.’s mother and living in the same

       house with M.M.’s family. The State argues that “the combination of

       cohabitation, the intimate relationship between Funderburgh and M.M.’s

       mother, and his statement that he considered M.M. as his daughter shows that

       he was in a position of care, custody, or control over M.M.” (State’s Br. 15-16).

       We agree. Indeed, the trial court specifically noted that “the evidence

       support[ed] [the position of trust aggravator] based upon the testimony . . .

       heard here as well as the video of the defendant’s own statements.” (Tr. 80-81).

       Accordingly, the trial court did not abuse its discretion by considering this

       aggravating circumstance. See, e.g., Hines v. State, 856 N.E.2d 1275, 1281 (Ind.

       Ct. App. 2006) (finding no abuse of discretion where the trial court considered

       the defendant’s position of trust with the victim to be an aggravating

       circumstance), trans. denied.


[27]   As with Funderburgh’s challenges to his aggravators, we also find without merit

       his challenge to the trial court’s rejection of his proffered mitigating

       circumstances. Funderburgh contends that the trial court should have




       Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-867 | December 21, 2016   Page 12 of 17
       considered his difficult childhood and psychological conditions of depression,

       bipolar disorder, and anger control as mitigating circumstances.


[28]   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

       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.


[29]   As for Funderburgh’s proposed difficult childhood mitigating factor, he has not

       shown that the trial court abused its discretion by refusing to assign mitigating

       weight to this factor where he “never established why his past victimization led

       to his current behavior.” Hines, 856 N.E.2d at 1283 (finding no abuse of

       discretion where the trial court’s rejected the defendant’s childhood history

       mitigator). See also Coleman v. State, 741 N.E.2d 697, 700 (Ind. 2000)

       (explaining that evidence of a “difficult childhood warrants little, if any,

       mitigating weight”), reh’g denied, cert. denied; Loveless v. State, 642 N.E.2d 974,

       976-77 (Ind. 1994) (trial court was not obligated to consider the defendant’s

       “overwhelmingly difficult” childhood as a mitigating circumstance).


[30]   Similarly, Funderburgh has failed to show that the trial court abused its

       discretion by finding that his psychological conditions were not entitled to

       mitigating weight where Funderburgh failed to show a nexus between any such

       conditions and his crime. See Corralez v. State, 815 N.E.2d 1023, 1026 (Ind. Ct.

       App. 2004) (explaining that “in order for a mental history to provide a basis for


       Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-867 | December 21, 2016   Page 13 of 17
       establishing a mitigating factor, there must be a nexus between the defendant’s

       mental health and the crime in question”). Accordingly, the trial court did not

       abuse its discretion by refusing to assign mitigating weight to his proposed

       mitigating factors.


       2. Inappropriate Sentence


[31]   Funderburgh contends that his fifty-year year sentence for his Class A child

       molesting conviction is inappropriate. He requests this Court to reduce his

       sentence to the advisory term of thirty years.


[32]   We may revise a sentence if it is inappropriate in light of the nature of the

       offense and the character of the offender. Ind. Appellate Rule 7(B). The

       defendant has the burden of persuading us that his sentence is inappropriate.

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a

       Rule 7(B) 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). Whether a sentence is

       inappropriate ultimately turns on “the culpability of the defendant, the severity

       of the crime, the damage done to others, and a myriad of other factors that

       come to light in a given case.” Id. at 1224.


[33]   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.

       Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-867 | December 21, 2016   Page 14 of 17
       Here, Funderburgh pled guilty to Class A felony child molesting. A Class A

       felony has a range of twenty (20) to fifty (50) years with an advisory sentence of

       thirty (30) years. I.C. § 35-50-2-4. The trial court imposed the maximum term

       of fifty (50) years for Funderburgh’s Class A felony conviction.


[34]   Funderburgh focuses much of his appellate argument on a discussion of other

       inappropriate sentencing cases, trying to compare them to and distinguish them

       from the facts and sentence in his case. However, we have explained that “[i]n

       analyzing such [inappropriate sentencing] claims, we [should] ‘“concentrate

       less on comparing the facts of [the case at issue] to others, whether real or

       hypothetical, and more on focusing on the nature, extent, and depravity of the

       offense for which the defendant is being sentenced, and what it reveals about

       the defendant’s character.”’” Guzman v. State, 985 N.E.2d 1125, 1134 (Ind. Ct.

       App. 2013) (quoting Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008)

       (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. denied),

       trans. denied)).


[35]   Turning to the nature of Funderburgh’s Class A felony child molesting offense,

       we note that Funderburgh forced the eight-year-old daughter of his girlfriend to

       engage in sexual intercourse with him. According to the victim’s statement

       during the sentencing hearing, Funderburgh had “sexual intercourse with [her]

       in the bathroom after everyone ha[d] gone to sleep[,]” and he did so

       “repeatedly” over multiple months. (Tr. 46). As the trial court noted,

       Funderburgh’s act of having sex with M.M. was all the more heinous because

       he was in a position of trust with her.

       Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-867 | December 21, 2016   Page 15 of 17
[36]   Turning to Funderburgh’s character, we acknowledge that Funderburgh pled

       guilty; however, he did so on the day of trial and in exchange for the dismissal

       of two other Class A felony charges. See Wells v. State, 836 N.E.2d 475, 479

       (Ind. Ct. App. 2005) (explaining that “a guilty plea does not rise to the level of

       significant mitigation where the defendant has received a substantial benefit

       from the plea or where the evidence against him is such that the decision to

       plead guilty is merely a pragmatic one”), trans. denied. We also note that

       Funderburgh has a criminal history consisting of five misdemeanor convictions.

       The PSI reveals that, in June 2000, he was placed on probation for one year

       from his use of a dangerous weapon and disorderly conduct convictions and

       that, within that probationary period, he committed three additional offenses

       (battery and two counts of disorderly conduct) in November 2000 and was

       sentenced for them in January 2001. Funderburgh attempts to minimize his

       criminal history by arguing that he did not have any prior felony convictions

       and that his last conviction was somewhat remote in time. We find, however,

       that his prior criminal history reflects poorly on his character. Additionally, as

       the trial court noted, Funderburgh “minimize[d] his own responsibility[] and

       blame[d] the victim for initiating his victimization of her.” (App. 181). This

       too reflects poorly on his character.




       Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-867 | December 21, 2016   Page 16 of 17
[37]   Funderburgh has not persuaded us that his fifty-year sentence for his Class A

       felony child molesting conviction is inappropriate. Therefore, we affirm the

       trial court’s sentence.5


[38]   Affirmed.


       Baker, J., and Mathias, J., concur.




       5
         To the extent that Funderburgh challenges the results of the probation department’s risk assessment
       instruments, we note that the “scores on a probation department’s risk assessment instrument ‘are not intended to
       serve as aggravating or mitigating circumstances nor to determine the gross length of sentence[.]’” Bratcher v. State,
       999 N.E.2d 864, 872 (Ind. Ct. App. 2013) (quoting Malenchik v. State, 928 N.E.2d 564, 575 (Ind. 2010)), trans.
       denied. “Instead, these ‘offender assessment instruments are appropriate supplemental tools for judicial
       consideration at sentencing’ and can be used by the trial court ‘in formulating the manner in which a sentence is to
       be served.’” Id. (quoting Malenchik, 928 N.E.2d at 575).




       Court of Appeals of Indiana | Memorandum Decision 27A05-1604-CR-867 | December 21, 2016                 Page 17 of 17
