FOR PUBLICATION

ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

MICHAEL FRISCHKORN                           GREOGORY F. ZOELLER
Frischkorn Law LLC                           Attorney General of Indiana
Fortville, Indiana
                                             KATHERINE MODESITT COOPER
                                             Deputy Attorney General
                                             Indianapolis, Indiana

                                                                           FILED
                            IN THE                                    Nov 14 2012, 9:06 am

                  COURT OF APPEALS OF INDIANA
                                                                               CLERK
                                                                             of the supreme court,
                                                                             court of appeals and
                                                                                    tax court



CLINTON COUCH,                               )
                                             )
     Appellant-Defendant,                    )
                                             )
            vs.                              )       No. 48A04-1204-CR-181
                                             )
STATE OF INDIANA,                            )
                                             )
     Appellee-Plaintiff.                     )


                  APPEAL FROM THE MADISON CIRCUIT COURT
                      The Honorable Dennis D. Carroll, Judge
                         Cause No. 48C06-1112-FA-2195



                                 November 14, 2012

                            OPINION - FOR PUBLICATION

BRADFORD, Judge
       Twenty-eight-year-old Clinton Couch befriended thirteen-year-old D.K., giving

assurances that he wanted to be a “big brother” to D.K., who had recently lost a sister. Far

from being a brother to D.K., Couch was, in fact, “grooming” him to be a victim, and it was

not long before Couch propositioned D.K. and began molesting him. Over the course of

several months, Couch anally penetrated D.K. with his penis and fellated him. Couch made

D.K. to do the same to him, to devastating effect. D.K., formerly a “happy-go-lucky” boy,

began committing crimes and engaging in self-destructive behavior, hoping that incarceration

or death would finally free him from Couch’s abuse. Couch also took pornographic

photographs of D.K., subjected him to physical violence, threatened to make him

“disappear,” and was in possession of over one thousand articles of child pornography.

       Finally, the day after Thanksgiving, D.K.’s mother was warned by another of Couch’s

victims to keep her son away from him, and, although D.K. was now safe from further abuse,

his innocence is irretrievably lost and he is taking two anti-depressants and will be in long-

term counseling. Couch ultimately pled guilty to five counts of Class A felony child

molesting, Class C felony child exploitation, and Class D felony possession of child

pornography, and the trial court sentenced him to an aggregate sentence of ninety-one years

of incarceration. Couch contends that his sentence is inappropriately harsh and that the trial

court abused its discretion in admitting, at sentencing, the testimony of two other alleged

victims. We affirm.




                                              2
                       FACTS AND PROCEDURAL HISTORY

       In July of 2011, twenty-eight-year-old Couch befriended thirteen-year-old D.K. after

meeting D.K. through D.K.’s babysitter. D.K.’s sister had died approximately one year

previously, and Couch presented himself as a “big brother figure” to D.K., telling him

(according to D.K.’s father), “‘Hey, you know[,] your sister’s deceased and I’ll be your

brother.’” Tr. p. 37. D.K. did, in fact, think of Couch as a brother, and Couch also

befriended D.K.’s parents. Couch would take D.K. out for bowling or pizza and over to

Couch’s parents’ home to swim.

       One day, Couch asked D.K. if he had ever had a blow job. When D.K. replied that he

had not, Couch fellated him against his wishes. Between July and late November of 2011,

Couch performed anal sex on D.K.; fellated D.K. against his wishes; caused D.K. to perform

fellatio and attempt anal sex on him; and took pictures of D.K. naked, including poses where

his penis was visible and another where D.K. spread his buttocks to show his anus. Couch

and D.K. exchanged between five and eight “blow jobs[.]” Tr. p. 9. Couch downloaded the

images of D.K. onto his computer and had D.K. wear a blue thong, wrestling singlet, and

“butt plug[,]” which Couch also wore. Tr. p. 9. D.K. witnessed child pornography on

Couch’s computer. At times when swimming, Couch “would come up to [D.K.] and just like

kick [him] real hard and it didn’t feel good at all.” Tr. p. 48. Couch told D.K. at times that

he would make him “disappear[.]” Tr. p. 49. Once, Couch tied D.K. with a rope and threw

him into the swimming pool.



                                              3
       After a few months of spending time with Couch, D.K.’s behavior had changed for the

worse, to say the least. D.K. became disruptive, began breaking into cars in an attempt to be

arrested and committed to juvenile detention, flew into rages, told others that he wanted to

kill himself, and did in fact attempt suicide at least once. On “Black Friday” of 2011,

seventeen-year-old J.M. approached D.K.’s mother in a Walmart and told her, “I hear that

[Couch is] hanging out with [D.K.] and I need to tell you something because he is not a good

guy” and “[Couch] is a bad guy. He molests children.” Tr. pp. 30, 34.

       The Indiana State Police were soon contacted, and met with D.K. on November 25,

2011. On November 26, 2011, State Police executed a search warrant at Couch’s residence,

recovering over one thousand examples of child pornography, wrestling singlets, and “butt

plugs[.]” Tr. p. 62. Among the photographs recovered, one depicts a juvenile male being

anally penetrated by an adult male, another depicts one juvenile male fellating a second while

being anally penetrated by a third, and a third photograph depicts a juvenile male urinating on

another. State’s Exs. 1, 2, 3.

       On December 1, 2011, the State charged Couch with five counts of Class A felony

child molesting,1 Class C felony child exploitation,2 Class D felony intimidation, and Class D

felony possession of child pornography. 3 On February 27, 2012, in exchange for not filing

charges related to other alleged victims who had come forward, Couch plead guilty to five



       1
           Ind. Code § 35-42-4-3 (2011).
       2
           Ind. Code § 35-42-4-4(b) (2011).
       3
           Ind. Code § 35-42-4-4(c).
                                              4
counts of Class A felony child molesting, Class C felony child exploitation, and Class D

felony possession of child pornography.

       On March 22, 2012, the trial court held a sentencing hearing. Among others, J.M. and

fourteen-year-old A.B. testified for the State. J.M. testified that he and Couch had engaged

in frequent fellation of each other when J.M. was between the ages of ten and fourteen. A.B.,

who is related to Couch by marriage, testified that, beginning when he was thirteen, Couch

“was always asking to perform oral sex and for [A.B.] to give him oral sex … every time we

were alone and his parents weren’t at his house.” Tr. p. 59. A.B. testified that this occurred

approximately ten to fifteen times. Couch objected to the above testimony on the basis that it

should not be usable to support a finding that multiple victims were an aggravating

circumstance, but conceded that it was relevant for character purposes. The trial court found,

as aggravating circumstances, Couch’s violation of trust, the repeated sexual assaults of a

particularly vulnerable child, the pattern of depravity Couch has exhibited, and that the

victim “will spend the rest of his life reliving from time to time these assaults and trying to

move on[.]” Tr. p. 93. The trial court found, as mitigating circumstances, Couch’s lack of

criminal record, his guilty plea, and the “good parts” of his life as described by his family.

Tr. p. 93. The trial court sentenced Couch to forty years of incarceration for each child

molesting conviction, eight years for child exploitation, and three years for possession of

child pornography. The trial court ordered child molesting Counts I through III to be served

concurrently with one another but consecutive to Counts IV and V, which would also be

served concurrently with one another; the child exploitation sentence to be served

                                              5
consecutively to the child molesting sentences; and the possession of child pornography

sentence to be served consecutively with the others, for an aggregate sentence of ninety-one

years of incarceration.

                              DISCUSSION AND DECISION

  I. Whether the Trial Court Abused its Discretion in Admitting Certain Evidence

       Couch claims that the trial court abused its discretion in admitting the testimony of

J.M. and A.B. The admission of testimony at a sentencing hearing is at the discretion of the

court. Rabadi v. State, 541 N.E.2d 271, 277 (Ind. 1989). “Indiana Evidence Rule 101(c)

explicitly states that the rules of evidence, other than those with respect to privileges, ‘do not

apply in … [p]roceedings relating to … sentencing, probation, or parole.’” Hines v. State,

856 N.E.2d 1275, 1281 (Ind. Ct. App. 2006), trans. denied.

       Couch’s argument in this regard is essentially that the admission of J.M.’s and A.B.’s

testimony amounts to a circumvention of his plea agreement because the trial court allegedly

used their testimony to enhance his sentences and order some of them to be served

consecutively. See, e.g., Roney v. State, 872 N.E.2d 192, 201 (Ind. Ct. App. 2007) (“If a trial

court accepts a plea agreement under which the State agrees to drop or not file charges, and

then uses facts that give rise to those charges to enhance a sentence, it in effect circumvents

the plea agreement.”), trans. denied. There is, however, no indication in the record that the

trial court did this. The trial court did not find that Couch’s uncharged conduct was an

aggravating circumstance warranting the imposition of enhanced and consecutive sentences,

and, indeed, did not even mention it in imposing sentence. Although Couch claims that the

                                                6
evidence in question “poisoned the well and led to the trial court sentencing Couch more

harshly[,]” this is pure conjecture supported by nothing in the record. Appellant’s Br. p. 11.

Couch has failed to establish that the trial court abused its discretion in this regard.

                     II. Whether Couch’s Sentence is Inappropriate

       We “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.” Ind. Appellate Rule 7(B). “Although appellate

review of sentences must give due consideration to the trial court’s sentence because of the

special expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B) is an

authorization to revise sentences when certain broad conditions are satisfied.” Shouse v.

State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations and quotation marks

omitted). “[W]hether we regard a sentence as appropriate at the end of the day turns on our

sense of 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). In addition to the “due consideration” we are required to give to the

trial court’s sentencing decision, “we understand and recognize the unique perspective a trial

court brings to its sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.

App. 2007). As previously mentioned, the trial court sentenced Couch to an aggregate

ninety-one years of incarceration.

       The nature of Couch’s crimes was particularly egregious. Couch chose a particularly

vulnerable victim who was already dealing with the recent loss of a sibling and, in exploiting

                                                7
that weakness to satisfy his depraved desires, compounded the tragedy exponentially. Instead

of acting as a “big brother” to D.K. in a time of need, Couch betrayed D.K.’s trust and

violated him in the vilest possible fashion, on multiple occasions fellating or sodomizing him

or causing D.K. to perform those acts on him. As if this were not bad enough, Couch

violated D.K. further by taking pornographic images of him, did physical violence to him,

and suggested that he might “disappear.” We have a difficult time imagining how a person

could violate a person worse than Couch did D.K.

       The effect of Couch’s crimes on D.K. has been profound. A few months into his

relationship with Couch, D.K., a formerly “well-mannered” and “happy-go-lucky” boy,

became disruptive and self-destructive. Tr. pp. 29, 37. D.K. committed crimes in an attempt

to be taken away from Couch, threatened to kill himself “just to get away from [Couch,]” and

had to be put in a facility called the Anderson Center when he actually attempted suicide. Tr.

p. 43. D.K. will “probably be in counseling for a very long time” and is currently taking two

anti-depressants, Welbutrin and Prozac. Tr. p. 31. The nature of Couch’s offenses fully

justifies his sentence.

       As for Couch’s character, we cannot say that we see much in the record to recommend

it. Couch’s character is that of a sexual predator who preys on the vulnerable, and, in this

case, he chose an exceptionally vulnerable victim. Couch also indirectly contributed to the

exploitation and molestation of perhaps hundreds of other children, being in possession of

over one thousand articles of child pornography. Couch’s argument in this regard is

essentially that his lack of prior criminal history and guilty plea warrant a significant sentence

                                                8
reduction. We cannot agree. We do not put much stock in Couch’s lack of criminal history,

given evidence that he serially molested at least one other boy and attempted to serially

molest a third.4 Couch also admitted that he had been collecting child pornography, a

criminal activity, for “several years.” Tr. p. 84. Under the circumstances, we also cannot say

that Couch’s guilty plea warrants a sentence reduction.

        Finally, the record as a whole, in our view, supports the conclusion that Couch’s guilty

plea was a pragmatic decision, as opposed to reflecting a true acceptance of responsibility for

his crimes. Couch’s guilty plea was given in exchange for assurances that no other charges

would be brought against him related to his alleged abuse of others, presumably including, if

not necessarily limited to, J.M. and A.B. A.B.’s testimony would have supported ten to

fifteen Class A felony charges, and J.M.’s apparently would have supported many more.5

Couch also seems to lack an understanding of his crimes and the damage he has caused,

referring to them at sentencing as “a mistake” and a “wrong decision.” Tr. p. 78. Finally,

Couch’s claim at sentencing that “what [he] did was not something [he] could control” fatally

undercuts any argument that he accepts responsibility for his actions. Couch has failed to

establish that his ninety-one year sentence is inappropriate.

        We affirm the judgment of the trial court.


        4
            As previously mentioned, while Couch objected that evidence from J.M. and A.B. regarding prior
molestation and attempted molestation could not be used by the trial court to enhance his sentence, he
conceded that it was relevant as it related to his character. Essentially, this means that while the trial court
might have been restricted in how it was able to use the evidence, we are not prevented from considering how
it illustrates Couch’s character in our appellate consideration of the appropriateness of his sentence.
        5
           Although J.M. was not clear as to how many times he and Couch had fellated each other, he testified
that they had done so frequently over a four-year period.
                                                       9
ROBB, C.J., and BAKER, J., concur.




                                     10
