MEMORANDUM DECISION                                                         FILED
                                                                       Apr 28 2016, 5:52 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Andrew J. Sickmann                                       Gregory F. Zoeller
Boston Bever Klinge Cross & Chidester                    Attorney General of Indiana
Richmond, Indiana
                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Earl D. Napier,                                          April 28, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         89A04-1510-CR-1654
        v.                                               Appeal from the Wayne Superior
                                                         Court
State of Indiana,                                        The Honorable Gregory A. Horn,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         89D02-1403-FA-8



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 89A04-1510-CR-1654 | April 28, 2016           Page 1 of 8
                                       Statement of the Case

[1]   Earl Napier appeals his sentence following his convictions for four counts of

      child molesting, two as Class A felonies and two as Class C felonies. Napier

      raises two issues for our review:

              1.       Whether the trial court abused its discretion when it
                       sentenced him.

              2.       Whether the trial court erred when it imposed consecutive
                       sentences.


      We affirm.


                                 Facts and Procedural History

[2]   Between February of 2013 and February of 2014, sisters A.T. and S.T.—aged

      six and nine at that time, respectively—would often stay the night at their

      grandmother’s, Shondia Napier’s (“Shondia”), house. Napier was Shondia’s

      husband, and a step-grandfather to both A.T. and S.T. Since Shondia would

      often work the night shift, it was not unusual for A.T. and S.T. to stay alone

      with Napier.


[3]   On those occasions, Napier repeatedly molested both A.T. and S.T. Napier put

      his finger in A.T.’s and S.T.’s vaginas and touched their buttock. Napier also

      touched and bit S.T.’s breasts. These incidents normally occurred at night

      when Napier slept in bed between A.T. and S.T., and when they were sitting in

      a rocking chair. Both A.T. and S.T. asked Napier to stop. Napier said he

      Court of Appeals of Indiana | Memorandum Decision 89A04-1510-CR-1654 | April 28, 2016   Page 2 of 8
      would “try to remember,” but he never did stop. Tr. at 259. During this time

      period, A.T. and S.T.’s mother, Annie Ashwell, noticed that A.T. suffered from

      “a lot of nightmares, bed wetting, . . . [and] temper tantrums,” while S.T.

      became “[m]ore emotional . . . [and] stayed to herself a lot more.” Id. at 192.


[4]   On February 8, 2014, A.T. and S.T. told Ashwell about the sexual abuse. S.T.

      finally told her mother about the abuse because S.T. believed she would “go to

      hell” if she did not tell the truth. Id. at 259-60. Ashwell confronted Napier

      about these allegations, but he denied them. Ashwell reported the incidents to

      the police.


[5]   On February 10, both A.T. and S.T. went to the Justice and Advocacy Center

      for Youth House for forensic interviews, where they both disclosed that Napier

      had repeatedly molested them. On February 12, Detective Thomas Legear of

      the Richmond Police Department questioned Napier. Napier did not admit to

      any wrongdoing.


[6]   On March 12, the State charged Napier with the following: count I, child

      molesting, as a Class A felony; count II, child molesting, as a Class C felony;

      count III, child molesting, as a Class A felony; and count IV, child molesting,

      as a Class C felony. A jury found Napier guilty as charged, and the trial court

      entered judgment accordingly. At a sentencing hearing on September 8, 2015,

      the trial court found the following aggravating circumstances:

              (1) there were multiple acts of child molesting against two
              victims; (2) the young age of the victims; (3) the multiple acts of
              child molestation were crimes of violence; (4) Napier, as
      Court of Appeals of Indiana | Memorandum Decision 89A04-1510-CR-1654 | April 28, 2016   Page 3 of 8
              grandfather of the victims, was in a position of trust, custody and
              control over the victims; and (5) the crimes against each victim
              were committed in the presence of the other victim.


      The trial court also found the following mitigating circumstances: (1) Napier

      was sixty-two years old with no prior criminal history; (2) Napier had

      significant health concerns; and (3) imprisonment would result in financial

      hardship to Napier and his family.


[7]   The court sentenced Napier to thirty years for count I, four years for count II,

      thirty years for count III, and four years for count IV, with counts I and II

      running concurrently, and counts III and IV running concurrently. The court

      ordered that count I was to be served consecutive with count III, for an

      aggregate sentence of sixty years, for “same reasons that the Court has found

      certain aggravating circumstances.” Tr. at 428. The trial court stated: “In

      particular, we’re dealing with a crime of violence. These were multiple acts that

      took place[,] the jury found[,] over a period of a year and we’re talking about

      separate children.” Id. This appeal ensued.


                                     Discussion and Decision

[8]   Napier contends that the trial court decision was inappropriate for failing to

      consider mitigating factors and by imposing consecutive sentences. Article VII,

      Sections 4 and 6 of the Indiana Constitution authorize independent appellate

      review and revision of a sentence through Indiana Appellate Rule 7(B), which

      provides that a court “may revise a sentence authorized by statute if, after due


      Court of Appeals of Indiana | Memorandum Decision 89A04-1510-CR-1654 | April 28, 2016   Page 4 of 8
       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.” Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007) (citing Anglemyer v.

       State, 868 N.E.2d 482, 491 (Ind. 2007)). Here, however, Napier’s argument is

       focused entirely on whether the trial court abused its discretion in sentencing

       him. This Court has made clear that there is a separate argument and analysis

       for an inappropriate sentence and abuse of discretion claim. See King v. State,

       894 N.E.2d 265, 267 (Ind. Ct. App. 2008) (“[A]n inappropriate sentence

       analysis does not involve an argument that the trial court abused its discretion

       in sentencing the defendant.”). Napier alludes to an Indiana Appellate Rule

       7(B) argument using relevant wording such as “inappropriate” and “character”

       at points in his brief but makes no cogent argument in support of revision of his

       sentence under the standards of Appellate Rule 7(B). Without a valid Appellate

       Rule 7(B) argument, the inappropriateness standard does not apply here.


[9]    Our standard of review is well settled. Sentencing decisions rest within the

       sound discretion of the trial court. Anglemyer, 868 N.E.2d at 490. 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.


[10]   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

       Court of Appeals of Indiana | Memorandum Decision 89A04-1510-CR-1654 | April 28, 2016   Page 5 of 8
       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. Because the trial court no longer

       has any obligation to weigh aggravating and mitigating factors against each

       other when imposing a sentence, a trial court cannot now be said to have

       abused its discretion in failing to properly weigh such factors. Id. at 491.


[11]   Napier first contends that the trial court abused its discretion when it did not

       identify certain mitigating factors. When an allegation is made that the trial

       court failed to find a mitigating factor, the defendant is required to establish that

       the mitigating evidence is both significant and clearly supported by the record.

       Id. at 493. However, 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). “If the trial court does not find the existence of a

       mitigating factor after it has been argued by counsel, the trial court is not

       obligated to explain why it has found that the factor does not exist.” Anglemyer,

       868 N.E.2d at 493 (citation omitted).


[12]   Napier contends that the trial court failed to account for the mitigating evidence

       of his age or testimony from his family and friends regarding his good

       character. Concerning Napier’s age, he contends that, in effect, he has been

       given a life sentence since he would not complete his sixty-year sentence until

       he is 120 years old. As such, Napier contends that his current age should be

       taken into account as a non-statutory mitigating factor. However, the trial

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       court considered Napier’s age and declined to find it to be a mitigating factor.

       Specifically, the trial court stated, “[c]ertainly one who is sixty plus years of age

       would have the background and experience to know that this is absolutely a

       horrendous crime.” Tr. at 427. The trial court did not abuse its discretion

       when it rejected Napier’s age as a mitigating factor.


[13]   Concerning the positive testimony pertaining to Napier’s character, he contends

       that the trial court overlooked this testimony when determining his sentence.

       Those witnesses testified that they did not believe Napier sexually molested

       A.T. and S.T. But, again, a trial court is not obligated to explain why it has

       rejected a proffered mitigator. See Anglemyer, 868 N.E.2d at 493. The trial

       court had ample evidence of Napier’s bad character in addition to the positive

       character evidence. The trial court did not abuse its discretion in declining to

       consider the positive testimony from Napier’s family and friends as a mitigating

       factor.


[14]   Finally, Napier contends that the trial court abused its discretion when it did

       not identify an aggravator to support the imposition of consecutive sentences.

       In order to impose consecutive sentences, the trial court must find at least one

       aggravating circumstance. Marcum v. State, 725 N.E.2d 852, 864 (Ind. 2002).

       The trial court may find aggravating factors for purposes of the length of a

       sentence and then find an additional, free-standing aggravator justifying the

       imposition of consecutive sentences, e.g., Lopez v. State, 869 N.E.2d 1254, 1258

       (Ind. Ct. App. 2007), trans. denied, or find that one of the same aggravators used

       in determining the length of the sentence justifies imposing consecutive

       Court of Appeals of Indiana | Memorandum Decision 89A04-1510-CR-1654 | April 28, 2016   Page 7 of 8
       sentences, Frentz v. State, 875 N.E.2d 453, 472 (Ind. Ct. App. 2007), trans.

       denied. When imposing a consecutive sentence, the trial court must provide a

       “reasonably detailed recitation of the trial court’s reasons for imposing a

       particular sentence.” Anglemyer, 868 N.E.2d at 490.


[15]   Here, the trial court based its rationale for imposing consecutive sentences for

       counts I and III on the “same reasons that the Court has found certain

       aggravating circumstances,” Tr. at 428, for purposes of the length of the

       sentence. This is permissible. Frentz, 875 N.E.2d at 472. Additionally, our

       supreme court has held that consecutive sentences are proper when a defendant

       commits multiple crimes against multiple victims. See Serino v. State, 798

       N.E.2d 852, 857 (Ind. 2003) (“[W]hen the perpetrator commits the same

       offense against two victims, enhanced and consecutive sentences seem

       necessary to vindicate the fact that there were separate harms and separate acts

       against more than one person.”). As the trial court explained in the instant

       case, “[t]hese were multiple acts that took place . . . over a period of a year and

       we’re talking about separate children.” Tr. at 428. Thus, Napier has failed to

       demonstrate that the trial court abused its discretion in his sentencing.


[16]   Affirmed.


       Riley, J., and May, J., concur.




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