                                                                 FILED
MEMORANDUM DECISION                                         Aug 05 2016, 7:10 am

                                                                 CLERK
Pursuant to Ind. Appellate Rule 65(D),                       Indiana Supreme Court
                                                                Court of Appeals
this Memorandum Decision shall not be                             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
Scott H. Duerring                                       Gregory F. Zoeller
South Bend, Indiana                                     Attorney General of Indiana

                                                        Richard C. Webster
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Darnell L. Parks,                                       August 5, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        20A03-1602-CR-290
        v.                                              Appeal from the Elkhart Circuit
                                                        Court
State of Indiana,                                       The Honorable Terry C.
Appellee-Plaintiff                                      Shewmaker, Judge
                                                        Trial Court Cause No.
                                                        20C01-1410-FD-865



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1602-CR-290 | August 5, 2016   Page 1 of 6
                                         Statement of the Case
[1]   Darnell Parks appeals his sentence following his conviction for child

      solicitation, as a Class D felony. Parks presents a single issue for our review,

      namely, whether his sentence is inappropriate in light of the nature of the

      offense and his character. We affirm.


                                  Facts and Procedural History
[2]   On June 30, 2013, Parks’ then-twelve-year-old daughter C.P. spent the night at

      Parks’ apartment with two of her siblings. During the early morning hours of

      July 1, Parks was looking at C.P.’s Facebook account1 and saw a photo of a

      boy’s penis that someone had sent to C.P. by private message. Parks woke C.P.

      and said, “Why is this boy sending you a picture of his thing[?]” Tr. at 42.

      C.P. responded, “I don’t know.” Id. Parks left the room, but he returned and

      slapped C.P. C.P. started crying.


[3]   Parks and C.P. went into a bedroom. Parks then said to C.P., “when boys send

      you these kind of things, it makes it seem like you want to have sex with

      somebody.” Id. And Parks said that she “need[ed] to stop . . . letting people

      send pictures and stuff like that” to her. Id. at 47. C.P. agreed. Parks told C.P.

      that “boys [would think that she is] like 16 or 17, and they would try to get with




      1
        C.P. had been using Parks’ phone to look at her Facebook page the evening before and had left the page
      open.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1602-CR-290 | August 5, 2016            Page 2 of 6
      [her].” Id. C.P. told Parks that she told boys her real age, but that they “don’t

      listen.” Id.


[4]   Parks then told C.P. to “lay up on the bed” so he could “stick [his] private part

      up inside of [her].” Id. at 47-48. Parks had his “hands in his pants” as he said

      that, and he was “moving his hand.” Id. at 48. Parks told C.P. that “he had sex

      with [C.P.’s mother] a whole bunch of times” and “it didn’t hurt her[.]” Id. at

      49. C.P. told Parks that she did not “want to hear that.” Id. Parks then asked

      C.P. whether he could “lick [her] private part.” Id. at 50. C.P. said, “Why

      would you want to do that? You’re my dad.” Id. Parks responded that “when

      people send pictures like that then it makes him want . . . to do that to [C.P.]”

      Id. Parks then asked C.P. if she wanted to leave the bedroom, and she said yes.

      So C.P. left and returned to the other room and went to sleep on the couch.


[5]   The next morning, Parks asked C.P. to help him with something on the

      computer, and she agreed. Parks told C.P. not to tell anyone what had

      happened in the bedroom that night. C.P. told him that she would not tell

      anyone about it. But a short time later, C.P. was walking to a nearby store with

      her sister and brother, and she told them what Parks had said to her the night

      before. One of them then called a friend of the family, who came and picked

      them all up. C.P. later told her grandmother about the incident, and her

      grandmother contacted the police.




      Court of Appeals of Indiana | Memorandum Decision 20A03-1602-CR-290 | August 5, 2016   Page 3 of 6
[6]   The State charged Parks with child solicitation, as a Class D felony. A jury

      found him guilty as charged. The trial court entered judgment accordingly and

      sentenced Parks to three years executed. This appeal ensued.


                                    Discussion and Decision
[7]   Parks contends that his sentence is inappropriate in light of the nature of the

      offense and his character. Article 7, Sections 4 and 6 of the Indiana

      Constitution “authorize[] independent appellate review and revision of a

      sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind.

      Ct. App. 2007) (alteration original). This appellate authority is implemented

      through Indiana Appellate Rule 7(B). Id. Revision of a sentence under Rule

      7(B) requires the appellant to demonstrate that his sentence is inappropriate in

      light of the nature of his offenses and his character. See Ind. Appellate Rule

      7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess

      the trial court’s recognition or non-recognition of aggravators and mitigators as

      an initial guide to determining whether the sentence imposed was

      inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006).

      However, “a defendant must persuade the appellate court that his or her

      sentence has met th[e] inappropriateness standard of review.” Roush, 875

      N.E.2d at 812 (alteration original).


[8]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

      sentence to the circumstances presented, and the trial court’s judgment “should

      receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222, 1224


      Court of Appeals of Indiana | Memorandum Decision 20A03-1602-CR-290 | August 5, 2016   Page 4 of 6
       (Ind. 2008). The principal role of appellate review is to attempt to “leaven the

       outliers.” Id. at 1225. Whether we regard a sentence as inappropriate 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 facts that

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


[9]    Parks first contends that the nature of the offense does “not establish any

       serious degree of heinous circumstances surrounding the commission of the

       illegal act” to support the three-year sentence. Appellant’s Br. at 5. In essence,

       Parks maintains that nothing about the nature of the offense supports more than

       the advisory sentence. We cannot agree. Parks asked his twelve-year-old

       daughter, with whom he was in a position of trust, to have sexual intercourse

       with him and, when she declined, to allow him to perform oral sex on her.

       Those facts, without more, are especially heinous. We hold that Parks’

       sentence is not inappropriate in light of the nature of the offense.


[10]   Next, Parks contends that his sentence is inappropriate in light of his character.

       Parks acknowledges that, given his extensive criminal history, “the facts may be

       a bit more problematic” for him on this prong. Id. Parks maintains that his

       “four prior felony convictions . . . date back at least six years to twelve years

       previous to the instant offense” and “are completely dissimilar to the instant

       offense.” Id. at 6. Accordingly, Parks asserts that his criminal history does not

       justify the three-year sentence. Again, we cannot agree.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1602-CR-290 | August 5, 2016   Page 5 of 6
[11]   As the State points out, Parks’ criminal history includes two misdemeanor

       convictions, three probation violations, and the following felony convictions:

       Class B felony “Delivery or Finance of Cocaine” in 2002; Class D felony

       possession of cocaine in 2006; Class B felony dealing in cocaine in 2008; and

       Class C felony leaving the scene of an accident causing death in 2012.

       Appellant’s App. at 87. The length and substance of Parks’ criminal history

       reflect a poor character. We also note that Parks was on home detention at the

       time of the instant offense. And, again, Parks was in a position of trust over his

       daughter C.P. We cannot say that Parks’ sentence is inappropriate in light of

       his character.


[12]   Affirmed.


       Vaidik, C.J., and Baker, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1602-CR-290 | August 5, 2016   Page 6 of 6
