MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                               Oct 30 2019, 9:33 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Tiffany A. McCoy
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James Andrew Freeman,                                    October 30, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1065
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable John T. Roach,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         84D01-1806-F1-2178



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1065 | October 30, 2019                 Page 1 of 7
                                       Statement of the Case

[1]   James Freeman (“Freeman”) appeals the sentence imposed after he pled guilty

      to Level 1 felony attempted child molesting1 and Level 4 felony child

      molesting.2 Freeman argues that his sentence is inappropriate in light of the

      nature of the offense and his character. Concluding that Freeman’s sentence is

      not inappropriate, we affirm his sentence.


[2]   We affirm.


                                                     Issue

                              Whether Freeman’s sentence is inappropriate.


                                                     Facts

[3]   Freeman lived with his ex-girlfriend, her two children, including her daughter,

      S.T. (“S.T.”), and her new boyfriend. Freeman and his ex-girlfriend had lived

      together off and on for seven years. On June 15, 2018, Freeman and S.T., who

      was six years old at the time, went to the back bedroom of the home to lie down

      and watch a movie. At some point, S.T. stated that she was tired and asked

      Freeman if she could go to sleep. Freeman laid behind S.T. so the two were




      1
          IND. CODE § 35-42-4-3.
      2
          Id.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1065 | October 30, 2019   Page 2 of 7
      facing the same direction. Freeman then pulled his and S.T.’s pants down and

      attempted to insert his penis into S.T.’s anus.


[4]   The next day, S.T. informed her mother what Freeman had attempted. S.T.’s

      mother and other family members confronted Freeman about the incident.

      Freeman stated that voices inside his head told him to touch S.T. He then

      admitted that he knew what he was doing when he touched S.T. and that since

      everyone already thought he was a child molester, he wanted to prove them

      right. S.T.’s mother then reported the incident to the police and took S.T. to

      the hospital.


[5]   A deputy from the Vigo County Sheriff’s Office went to the hospital and

      interviewed S.T. and her family members. During a subsequent interview with

      the Department of Child Services, S.T. stated that Freeman was “able to get his

      ‘no-no’ between her butt cheeks” but that she did not believe he was “able to get

      his ‘no-no’ into her ‘butt-hole.’”3 (App. 17). S.T. also underwent a sexual

      assault examination. The State then charged Freeman with Level 1 felony

      attempted child molesting and Level 4 felony child molesting.


[6]   In October 2018, Freeman filed a “Motion for Psychiatric Evaluation[,]” which

      the trial court granted. The trial court ordered two doctors to perform a

      competency evaluation of Freeman. (App. 35). After receiving both reports,




      3
       When asked during the interview what she meant by “no-no,” S.T. pointed to the male genital area of a
      male drawing.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1065 | October 30, 2019               Page 3 of 7
      the trial court found that Freeman had “the ability to understand the

      proceedings and assist in his defense.” (App. 63). Soon thereafter, Freeman

      pled guilty as charged. Under the terms of the plea agreement, the State agreed

      to dismiss a pending check fraud case. The plea agreement left sentencing open

      “except that the counts [would] run concurrent and [Freeman] [would] not be

      sentenced to a term of imprisonment greater than 35 years.” (App. 69).


[7]   At the sentencing hearing, the State called two detectives, one from the Indiana

      State Police and the other from the Vigo County Sheriff’s Office, to testify about

      a child pornography investigation that involved Freeman. The witnesses

      described Facebook conversations they observed between Freeman and another

      Facebook user. During the conversations with the other Facebook user,

      Freeman: (1) discussed molesting children; (2) received child pornography; (3)

      discussed sending child pornography in return; (4) sent non-pornographic

      photos of S.T; and (5) bragged about how much S.T. enjoyed the sexual acts he

      described.4 Later, the State read two victim impact statements written by S.T.’s

      mother and grandmother detailing the negative effects Freeman’s crime had

      had on S.T. and her family. Specifically, S.T.’s mother and grandmother

      explained that S.T. is afraid to be alone, has major trust issues, and suffers from

      bowel and stomach issues.




      4
       The State agreed not to file charges against Freeman for the child pornography and instead used the details
      of the investigation during argument for sentencing as an aggravating factor.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1065 | October 30, 2019                  Page 4 of 7
[8]   The trial court then found both mitigating and aggravating factors present. The

      trial court identified the following mitigating factors: (1) Freeman’s mental

      health issues; and (2) his acceptance of responsibility. The trial court identified

      the following aggravators: (1) the harm to the victim; (2) the fact that Freeman

      enjoyed a position of trust and had care, custody or control over S.T.; and (3)

      Freeman’s prior criminal history and delinquent behavior, including the fact

      that he was on probation when he committed the instant offense. The trial

      court found that the aggravators outweighed the mitigators and necessitated an

      aggravated sentence. The trial court then merged the Level 4 felony into the

      Level 1 felony for double jeopardy reasons and sentenced Freeman to thirty-five

      (35) years in the Department of Correction. Freeman now appeals.


                                                  Decision

[9]   Freeman argues that his sentence of thirty-five years is inappropriate. “This

      Court 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 7(B)

      ‘appropriateness’ inquiry is a discretionary exercise of the appellate court’s

      judgment, not unlike the trial court’s discretionary sentencing determination.”

      Knapp v. State, 9 N.E.3d 1274, 1291-92 (Ind. 2014), cert. denied. “On appeal,

      though, we conduct that 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 correct

      sentence.” Id. at 1292 (internal quotation marks, internal bracket, and citation

      omitted). “Appellate Rule 7(B) analysis is not to determine whether another
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1065 | October 30, 2019   Page 5 of 7
       sentence is more appropriate but rather whether the sentence imposed is

       inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (internal

       quotation marks and citation omitted), reh’g denied. The defendant has the

       burden of persuading the appellate court that his sentence is inappropriate.

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a

       sentence as inappropriate turns on the “culpability of the defendant, the severity

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

       light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).


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

       the advisory sentence is the starting point the General Assembly has selected as

       an appropriate sentence for the crimes committed. Childress, 848 N.E.2d 1081.

       Here, Freeman pled guilty to a Level 1 felony and a Level 4 felony. The trial

       court merged Freeman’s Level 4 felony conviction into his Level 1 felony

       conviction. The sentencing range for a Level 1 felony is “for a fixed term of

       between twenty (20) and fifty (50) years, with the advisory sentence being thirty

       (30) years.” I.C. § 35-50-2-4. The trial court sentenced Freeman to thirty-five

       (35) years. Accordingly, the trial court imposed an aggravated sentence five

       years above the advisory sentence.


[11]   This Court has recognized that the nature of the offense is found in the details

       and circumstances of the commission of the offense and the defendant’s

       participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). As Freeman

       himself acknowledges, the nature of his offense is “one of the most serious

       offenses that can be committed[.]” (Freeman’s Br. 7). Here, Freeman

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1065 | October 30, 2019   Page 6 of 7
       attempted to molest his ex-girlfriend’s six-year-old daughter while he thought

       she was asleep. In addition, Freeman was in a position of trust over S.T. and

       violated that trust. Freeman’s offense had a devastating effect on S.T., who,

       according to her mother and grandmother, suffers from his actions in a variety

       of ways. See Lasley v. State, 510 N.E.2d 1340, 1342 (Ind. 1987) (sexual

       victimization of children often leaves permanent psychological damage that is

       more devastating than physical injuries).


[12]   When considering the character of the offender prong of our inquiry, one

       relevant consideration is the defendant’s criminal history. Rutherford v. State,

       866 N.E.2d 867, 874 (Ind. Ct. App. 2007). Here, Freeman’s prior convictions

       for fraud and domestic battery reflect poorly on his character. See Id. (any

       criminal history reflects poorly on a person’s character). Additionally, Freeman

       was on probation for his domestic battery offense at the time he committed the

       instant offense. Moreover, we disagree with Freeman’s assertion that his

       mental health issues require revision of his sentence. The trial court was aware

       of Freeman’s mental health when it sentenced him and considered it a

       mitigating factor. Accordingly, Freeman has failed to persuade us that the

       nature of the offense or his character makes his sentence inappropriate.

       Therefore, we affirm the sentence imposed by the trial court.


[13]   Affirmed.


       Robb, J., and Mathias, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1065 | October 30, 2019   Page 7 of 7
