                                                              Aug 21 2013, 5:32 am

FOR PUBLICATION



ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

MATTHEW D. ANGLEMEYER                         GREGORY F. ZOELLER
Marion County Public Defender                 Attorney General of Indiana
Indianapolis, Indiana
                                              KATHERINE MODESITT COOPER
                                              Deputy Attorney General
                                              Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

RODNEY MELTON,                                )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )      No. 49A02-1212-CR-1008
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                   APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Carol J. Orbison, Judge
                   The Honorable Anne Flannelly, Master Commissioner
                           Cause No. 49G04-1203-FC-17439



                                   August 21, 2013


                             OPINION - FOR PUBLICATION


BROWN, Judge
      Rodney Melton appeals his conviction and sentence for dissemination of matter

harmful to minors as a class D felony and his sentence for child molesting as a class C

felony. Melton raises three issues which we consolidate and restate as:

      I.     Whether the evidence is sufficient to sustain Melton’s conviction for
             dissemination of matter harmful to minors; and

      II.    Whether Melton’s sentence is inappropriate in light of the nature of
             the offense and the character of the offender.

We affirm.

                       FACTS AND PROCEDURAL HISTORY

      Melton was the boyfriend of Gloria Davis and lived with her and her two children,

one of whom was C.D., born on September 19, 2000. C.D. called Melton “Keno or

daddy.” Transcript at 46. One day in January 2012, C.D. was awakened by Melton

sucking on her chest and touching her chest with his hands. C.D. told Melton to stop, and

Melton “was like no” and then Melton said “you better stop before I kill you.” Id. at 49.

C.D. felt like she “just better listen to him.” Id. Davis then came upstairs and asked

Melton what he was doing, and Melton said that he was waking C.D. C.D. did not tell

Davis what had happened because she was scared and shocked.

      Later that month, N.J., who was born on January 26, 1997 and was the daughter of

one of Davis’s friends, spent time at Davis’s house. One morning, N.J., was sleeping on

the couch in the living room and woke up to discover that Melton was rubbing her arms,

legs, and chest. N.J. described the touching as “[s]exually” and “just like to entice me

kind of.” Id. at 29. N.J. was confused and looked around but did not see anyone other

than Melton. N.J. asked Melton why he was touching her, and Melton stated: “It’s okay.


                                            2
We won’t get caught.” Id. at 30. Melton then lay on a mattress which was in front of the

couch in the living room and told N.J. to sit next to him. N.J. sat on the couch and waited

for Davis to return home. Melton then started to look at pornographic videos on his

phone and showed them to N.J. In the first video, a man and a woman were having sex.

The second video was of Melton and Davis in which Davis was performing oral sex on

Melton. N.J. asked Melton where Davis and her children were, and Melton stated that

they were gone, they would be back later, and that “it’s okay.” Id. at 32. Melton then

“kind of like tried to tell [N.J.] to come next to him and stuff and then he pulled his penis

out of his pants” and began masturbating. Id. at 33. N.J. did not go next to Melton and

told him: “I’m ready to go. Where’s – where’s my mom. Where’s [Davis].” Id. at 33.

Melton then “kind of brushed it off,” went in the kitchen, and said “everything’s okay,”

and N.J. went upstairs. Id. at 34.

       At some point, Davis returned to the house, but N.J. did not tell her what happened

because she did not feel that Davis would handle the situation correctly. Davis’s children

eventually came home from school. When N.J.’s mother came to the house, N.J. told

Davis’s children what had happened, and C.D. told N.J. “other stuff that happened to

her.” Id. at 35. N.J. decided to tell an adult and told C.D.’s eighteen-year-old cousin.

N.J. then told her mother that Melton had touched her, and Davis called the police.

       On March 15, 2012, the State charged Melton with child molesting as a class C

felony and dissemination of matter harmful to minors as a class D felony.1 The jury

found Melton guilty as charged.


       1
          The charge of child molesting as a class C felony related to C.D., and the charge of
dissemination of matter harmful to minors related to Melton’s conduct with N.J.
                                              3
         The court found Melton’s history of mental health issues and the facts that he had

been diagnosed as bipolar and suffered from depression as mitigating factors. The court

found Melton’s position of trust with C.D. and to a lesser extent with N.J., “that this

happened in the home with another minor present,” that Melton threatened to kill C.D. if

she disclosed the offense, and Melton’s criminal history, including the fact that he had

previously been sentenced to probation which was revoked, as aggravating factors. Id. at

175. The court found that the aggravators outweighed the mitigators and sentenced

Melton to eight years for child molesting as a class C felony and three years for

dissemination of matter harmful to minors as a class D felony. The court ordered the

sentences to be served consecutive to each other for an aggregate sentence of eleven

years.

                                              I.

                                      A. DISCUSSION

         The first issue is whether the evidence is sufficient to sustain Melton’s conviction

for dissemination of matter harmful to minors. When reviewing the sufficiency of the

evidence needed to support a criminal conviction, we neither reweigh evidence nor judge

witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider

only the evidence supporting the judgment and any reasonable inferences that can be

drawn from such evidence.” Id. We will affirm if there is substantial evidence of

probative value such that a reasonable trier of fact could have concluded the defendant

was guilty beyond a reasonable doubt. Id.




                                              4
      The offense of dissemination of matter harmful to minors is governed by Ind.

Code § 35-49-3-3, which provides that “a person who knowingly or intentionally . . .

engages in or conducts a performance before minors that is harmful to minors . . .

commits a Class D felony.” Ind. Code § 35-49-1-7 defines “performance” as “any play,

motion picture, dance, or other exhibition or presentation, whether pictured, animated, or

live, performed before an audience of one (1) or more persons.” Ind. Code § 35-49-2-2

provides:

      A matter or performance is harmful to minors for purposes of this article if:

      (1)    it describes or represents, in any form, nudity, sexual conduct,
             sexual excitement, or sado-masochistic abuse;

      (2)    considered as a whole, it appeals to the prurient interest in sex
             of minors;

      (3)    it is patently offensive to prevailing standards in the adult
             community as a whole with respect to what is suitable matter
             for or performance before minors; and

      (4)    considered as a whole, it lacks serious literary, artistic,
             political, or scientific value for minors.

The State charged that Melton “did knowingly or intentionally engage in, or conduct, a

performance before minors that is harmful to minors specifically: Showing pornography

to N.J. and/or showing N.J. his penis.” Appellant’s Appendix at 23. Thus, to convict

Melton of dissemination of matter harmful to minors as a class D felony, the State needed

to prove that Melton knowingly or intentionally engaged in or conducted a performance

by showing pornography to N.J. and/or showing N.J. his penis and that such act was

harmful to minors.



                                            5
       Without citation to the record, Melton argues that he was in his own private

residence when he engaged in the conduct at issue. He asserts that “[b]ecause [his] acts

occurred in a private area, he did not engage in a ‘performance,’ and his conviction must

be reversed,” relying on Riffel v. State, 549 N.E.2d 1084 (Ind. Ct. App. 1990), trans.

denied, and Low v. State, 580 N.E.2d 737 (Ind. Ct. App. 1991). Appellant’s Brief at 12.

       In Riffel, the State charged Luke Riffel with Count II, conducting a performance

harmful to a minor,2 Count III, obscene performance,3 and Count IV, obscene

performance. 549 N.E.2d at 1085. The alleged incidents took place during Riffel’s

visitation period with his five-year-old son M.R. at the camping trailer residence of

Riffel. Id. at 1085-1086. With respect to Count IV, the State alleged that Riffel stuck his

finger in Tina Cramer’s vagina and then placed his finger before the nose of M.R. and

told M.R. to smell his finger. Id. at 1085. This Court found that the charges in Counts II

and III rested entirely upon the repudiated statements of M.R. and that accordingly the

evidence was insufficient to sustain the convictions on Counts II and III. Id. at 1088.

The Court then sua sponte addressed whether the facts alleged in Count IV constituted an

obscene performance, and reviewed Ind. Code § 35-49-1-7 which defines performance

and the statutes related to obscene performances.4 Id. The Court indicated that it was


       2
           Ind. Code § 35-49-3-3(4).
       3
           Ind. Code § 35-49-3-2.
       4
          Specifically, the Court reviewed Ind. Code § 35-49-3-2 and Ind. Code § 35-49-2-1. 549 N.E.2d
at 1088. At that time, Ind. Code § 35-49-3-2 provided: “A person who knowingly or intentionally
engages in, participates in, manages, produces, sponsors, presents, exhibits, photographs, films, or
videotapes any obscene performance commits a Class A misdemeanor. However, the offense is a Class D
felony if the obscene performance depicts or describes sexual conduct involving any person who is or
appears to be under sixteen (16) years of age.” Ind. Code § 35-49-2-1 provided: “A matter or
performance is obscene for purposes of this article if: (1) the average person, applying contemporary
                                                  6
“[e]ver mindful that criminal statutes are to be construed strictly against the State and

may not be enlarged by construction, implication, or intendment beyond the fair meaning

of the language used.” Id. The Court held “the purpose of those statutes, and the

legislative intent revealed by the language used, is to prohibit obscene performances of a

theatrical, show, or entertainment nature, performed live, or on film or video, before an

audience, and not to ban an act in a private setting, no matter how disgusting, such as the

act charged against Riffel in Count IV.” Id. at 1088. The Court also observed: “Riffel’s

conduct may or may not have constituted some other offense, a matter we need not

decide. The crucial issue is that it did not constitute an obscene performance as defined

by Indiana statutes. We may not expand the statutory definition.” Id. Judge Hoffman

dissented and stated:

        If the legislature had intended that the obscene performance statute not
        apply to those obscene performances done in a private setting, it could have
        so limited the statute. Likewise, the legislature could have confined the
        statute to only those obscene performances of a theatrical, show, or
        entertainment nature. However, the legislature did not restrict the statute in
        these ways and thus, it applies to obscene performances in private settings.

Id. at 1089-1090 (Hoffman, J., dissenting).

        In Low, members of the Carmel Police Department were engaged in the

investigation of suspected prostitution activity in Hamilton County. 580 N.E.2d at 738.

As part of the investigation, the Department rented two adjoining rooms in a hotel. Id.

Working undercover, Officer Roger Conn telephoned the “Yes, We Do” escort service

and requested an escort. Id. Rose Low arrived at the hotel and eventually performed a

community standards, finds that the dominant theme of the matter or performance, taken as a whole,
appeals to the prurient interest in sex; (2) the matter or performance depicts or describes, in a patently
offensive way, sexual conduct; and (3) the matter or performance, taken as a whole, lacks serious literary,
artistic, political, or scientific value.”
                                                    7
“bed dance” whereby the officer lay on the bed in his underwear while she danced over

him and exposed her breasts. Id. Low then inserted her finger in her vagina, and Officer

Conn gave a code phrase which tipped the officers listening in the adjoining room to

come in and make the arrest. Id. At the close of the State’s evidence, Low moved to

dismiss the charge of obscene performance, and the court denied the motion. Id. Low

was convicted of obscene performance under Ind. Code § 35-49-3-2. Id.

       On appeal, Low argued that she was not engaging in a “performance” within the

meaning of the statute. Id. at 739. This Court observed that the decision in Riffel was

“clearly based upon the fact that Riffel’s conduct occurred in a private forum, rather than

a public forum” and held:

       Low correctly points out that if the statute is not narrowly construed,
       conduct similar to the acts in this case occurring between consenting
       married adults would fall within the purview of the statute. We may give a
       narrow construction to statutes to save them from nullification if the
       construction does not establish a new or different policy basis and is
       consistent with legislative intent. State v. Downey (1985), Ind., 476 N.E.2d
       121, 123, reh’g denied. The construction of the obscene performance
       statute in Riffel is consistent with the clear intent of the legislature. To
       hold differently in the present case might allow the extension of the
       proscriptive reach of the statute to conduct which is constitutionally
       protected. Eisenstadt v. Baird (1972), 405 U.S. 438, 453, 92 S. Ct. 1029,
       1038, 31 L.Ed.2d 349; Stanley v. Georgia (1969), 394 U.S. 557, 568, 89 S.
       Ct. 1243, 1249-1250, 22 L.Ed.2d 542; Griswold v. Connecticut (1965) 381
       U.S. 479, 485, 85 S. Ct. 1678, 1682, 14 L.Ed.2d 510.

Id. at 739-740 (footnotes omitted). The Court concluded that the trial court erred in

denying Low’s motion to dismiss, as conduct such as that charged and proved by the

State, when it occurs in a private setting, does not violate Indiana Code § 35-49-3-2, and

reversed Low’s conviction for obscene performance. Id.



                                            8
      The State argues that as Low “did not involve an appeal from a conviction for

dissemination of matter harmful to minors, those same policy considerations are not

present in this case.” Appellee’s Brief at 10. The State also contends that “[w]hile

Melton suggests that Riffel stands for the proposition that a person can commit whatever

vile acts he or she desires in front of a minor so long as those acts are committed in a

private setting, this Court has more recently declined to interpret Riffel in such a broad

fashion” and cites Sloan v. State, 794 N.E.2d 1128 (Ind. Ct. App. 2003), trans. denied.

Id. at 11. The State’s position is that Melton’s act of removing his penis from his pants

and masturbating in front of N.J. constituted an exhibition or presentation performed

before an audience of one or more persons, and that Melton’s acts “may have been done

in a private setting – i.e., the home that he shared with C.D.’s mother – but they were not

done in private.    Indeed, he showed pornography and masturbated in front of an

audience: fourteen-year-old N.J.” Id. The State also alleges that Melton did not enjoy

any expectation of privacy when he engaged in these acts but instead encouraged N.J. to

sit next to him while he viewed pornographic videos and gratified himself. The State

further maintains that Melton should not escape criminal liability simply because he

committed the crime inside his home instead of in public, and that there is no statutory

requirement that the exhibition or presentation be performed in public.

      In Sloan, John Sloan broke into the home of Melissa Holt where eight-year-old

A.R., the daughter of Holt’s boyfriend, was sleeping on the couch. 794 N.E.2d at 1130.

A.R. awoke when she felt someone pull down her underwear. Id. She saw a man on the

couch exposing and manipulating his penis. Id. The man then left the room, and A.R.


                                            9
went to tell her father, but the intruder was no longer in the home. Id. Holt noticed that a

window had been removed in the room where A.R. had been sleeping. Id. Fingerprints

taken from the window matched Sloan’s fingerprints. Id.

       The State charged Sloan with burglary and conducting a performance harmful to

minors. Id. After the State presented its evidence, Sloan moved for a directed verdict

and argued that the acts he was alleged to have committed did not constitute a

“performance” as defined by statute. Id. The trial court denied the motion, and the jury

found Sloan guilty as charged, but the trial court entered judgment of conviction only as

to the burglary. Id.

       On appeal, Sloan argued that the trial court erred in denying his motion for a

directed verdict. Id. at 1131. In discussing Sloan’s argument, this Court observed that

“[b]ecause the trial court did not enter a judgment of conviction upon Count II, the only

issue before us is whether the evidence is sufficient to sustain Sloan’s Burglary

conviction.” Id. at 1132. The Court held that the question of whether Sloan engaged in a

performance is relevant to the burglary conviction in that conducting a performance

harmful to minors was the felony which Sloan allegedly intended to commit when he

broke and entered the home. Id. The Court clarified that the question was not precisely

whether Sloan actually engaged in a performance, but whether he intended to conduct

such a performance when he broke and entered the home. Id. The Court discussed Riffel

and Low and held:

             If we were to read Riffel and Low broadly, we might agree with
       Sloan that what he did inside the Holt home, and what he intended to do
       when he broke into the house, was not a “performance” within the meaning
       of the statute because it did not take place “in public.” However, we

                                            10
       perceive a subtle yet substantial difference between the factual situations
       present in Riffel and Low and the case at bar. In Riffel, the defendant’s
       conduct was done in his own private residence. 549 N.E.2d at 1086. In
       Low, although the conduct at issue did not occur in a private residence, it
       did take place in a hotel room which had been rented by the police. 580
       N.E.2d at 738. In both cases, the incidents took place in private areas in
       which the participants had a right to be. This is not so in the present
       situation.

              Here, Sloan violated the privacy of Ms. Holt and her guests by
       breaking into the home. The privacy interests with which the Riffel and
       Low courts were so concerned are therefore not implicated by Sloan’s
       actions. A defendant may not avail himself of the privacy of another by
       breaking and entering into the other’s home. To accept Sloan’s argument
       would be to allow him to benefit and seek refuge in the privacy of the home
       which he had invaded. We will not do so. Here, the evidence reveals that
       Sloan broke into the Holt home and pulled down A.R.’s underwear. Sloan
       then sat on the couch and exposed and manipulated his penis. This was an
       exhibition or presentation performed before an audience of one or more
       persons. See I.C. § 35-49-1-7. We do not read Riffel and Low to hold that
       a “performance” must be done in public, and to the extent that they suggest
       otherwise, we respectfully disagree. So long as the conduct at issue was
       not done in private, we hold that it may constitute a performance.

               Of course, if something is done in private, it usually follows that it
       was not done in public. Here, however, we are presented with a perhaps
       unusual situation; although Sloan’s acts were not done in public, neither
       were they done in the privacy of his own home or any place where he had a
       right to be. We therefore hold that the actions Sloan engaged in inside a
       home into which he broke and entered constituted a performance, and from
       this the jury could reasonably infer that when Sloan broke and entered the
       home, he intended to commit the felony of conducting a performance
       harmful to minors. The evidence is sufficient to support Sloan’s conviction
       for Burglary, and the trial court did not err in denying his motion for a
       directed verdict.

Id. at 1134.

                                  B. DECISION

       To the extent that Melton cites Low, we find that case distinguishable. As pointed

out by the State, Low did not involve an appeal from a conviction for dissemination of


                                            11
matter harmful to minors. Rather, Low involved two adults in a hotel room and a charge

of an obscene performance under Ind. Code § 35-49-3-2. With respect to Riffel, we

observe that the discussion in Riffel related to engaging in an obscene performance and

not dissemination of matter harmful to minors.                   To the extent that the majority’s

discussion of a performance in Riffel suggests that a performance involved in a charge of

dissemination of matter harmful to minors must occur in public, we disagree. As pointed

out by Judge Hoffman in his dissent in Riffel, there is no requirement in the statute

defining performance that the performance take place in public. 549 N.E.2d at 1089

(Hoffman, J., dissenting). Rather, the statute provides that a “performance” is “any play,

motion picture, dance, or other exhibition or presentation, whether pictured, animated, or

live, performed before an audience of one (1) or more persons.” Ind. Code § 35-49-1-7

(emphasis added). We are also mindful that the legislature listed defenses to prosecution

for dissemination of matter or conducting performance harmful to minors in Ind. Code §

35-49-3-4 and did not mention that merely being in a private place is a defense.5


      5
          Ind. Code § 35-49-3-4 provides in part:

      (a)       It is a defense to a prosecution under section 3 of this chapter for the defendant to
                show:

                (1)     that the matter was disseminated or that the performance was
                        performed for legitimate scientific or educational purposes;

                (2)     that the matter was disseminated or displayed to or that the
                        performance was performed before the recipient by a bona fide
                        school, museum, or public library that qualifies for certain
                        property tax exemptions under IC 6-1.1-10, or by an employee of
                        such a school, museum, or public library acting within the scope
                        of the employee’s employment;

                (3)     that the defendant had reasonable cause to believe that the minor
                        involved was eighteen (18) years old or older and that the minor
                        exhibited to the defendant a draft card, driver’s license, birth
                                                    12
Accordingly, we conclude that the evidence was sufficient to sustain Melton’s conviction

for dissemination of matter harmful to minors as a class D felony.

                                                     II.

                                           A. DISCUSSION

        The next issue is whether Melton’s sentence is inappropriate in light of the nature

of the offense and the character of the offender.6 Ind. Appellate Rule 7(B) provides that


                         certificate, or other official or apparently official document
                         purporting to establish that the minor was eighteen (18) years old
                         or older; or

                (4)      that the defendant was a salesclerk, motion picture projectionist,
                         usher, or ticket taker, acting within the scope of the defendant’s
                         employment and that the defendant had no financial interest in
                         the place where the defendant was so employed.

        (b)     Except as provided in subsection (c), it is a defense to a prosecution under
                section 3 of this chapter if all the following apply:

                (1)      A cellular telephone, another wireless or cellular
                         communications device, or a social networking web site was
                         used to disseminate matter to a minor that is harmful to minors.

                (2)      The defendant is not more than four (4) years older or younger
                         than the person who received the matter that is harmful to
                         minors.

                (3)      The relationship between the defendant and the person who
                         received the matter that is harmful to minors was a dating
                         relationship or an ongoing personal relationship. For purposes of
                         this subdivision, the term “ongoing personal relationship” does
                         not include a family relationship.

                (4)      The crime was committed by a person less than twenty-two (22)
                         years of age.

                (5)      The person receiving the matter expressly or implicitly
                         acquiesced in the defendant’s conduct.
        6
          Melton argues that the trial court abused its discretion by not considering his drug and alcohol
abuse as a mitigator and finding “that this happened in the home with another minor present” and his
criminal history as aggravators. Transcript at 175. However, “even if the trial court is found to have
abused its discretion in the process it used to sentence the defendant, the error is harmless if the sentence
imposed was not inappropriate.” Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007), trans.
                                                    13
we “may revise a sentence authorized by statute if, after due consideration of the trial

court’s decision, [we find] that the sentence is inappropriate in light of the nature of the

offense and the character of the offender.” Under this rule, the burden is on the defendant

to persuade the appellate court that his or her sentence is inappropriate. Childress v.

State, 848 N.E.2d 1073, 1080 (Ind. 2006).

        Our review of the nature of the offense reveals that Melton awakened C.D., who

called Melton “Keno or daddy” and was the daughter of his girlfriend, by sucking on her

chest and touching her chest with his hands. Transcript at 46. When C.D. asked Melton

to stop, Melton “was like no” and then Melton said “you better stop before I kill you.”

Id. at 49. While N.J., the daughter of Davis’s friend, was staying over at Davis’s house,

Melton woke her up by rubbing her arms, legs, and chest. N.J. asked Melton why he was

touching her, and Melton stated: “It’s okay. We won’t get caught.” Id. at 30. Melton

then laid on the mattress which was in front of the couch in the living room and told N.J.

to sit next to him. Melton then started to look at pornographic videos on his phone and

showed them to N.J. In the first video, a man and a woman were having sex. The second


denied; see also Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007) (holding that in the absence of a
proper sentencing order, we may either remand for resentencing or exercise our authority to review the
sentence pursuant to Ind. Appellate Rule 7(B)), reh’g denied; Shelby v. State, 986 N.E.2d 345, 370 (Ind.
Ct. App. 2013) (holding that “even if the trial court did abuse its discretion by failing to consider the
alleged mitigating factor of residual doubt, this does not require remand for resentencing”), trans. denied.
Accordingly, we need not discuss Melton’s contentions that the court abused its discretion in sentencing
him if we determine that his sentence is not inappropriate.

         Melton also cites Article 1, Section 18 of the Indiana Constitution and argues that the judicial
branch should seek to follow this legislative goal in its sentencing pronouncements. To the extent that
Melton suggests that his sentence violates Article 1, Section 18 of the Indiana Constitution, which
provides that “[t]he penal code shall be founded on the principles of reformation, and not of vindictive
justice,” we note that the Indiana Supreme Court has held that “particularized, individual applications are
not reviewable under Article 1, Section 18 because Section 18 applies to the penal code as a whole and
does not protect fact-specific challenges.” Ratliff v. Cohn, 693 N.E.2d 530, 542 (Ind. 1998), reh’g
denied.
                                                    14
video was of Melton and Davis in which Davis was performing oral sex on Melton.

When N.J. asked Melton where Davis and her children were, Melton stated that they

were gone, they would be back later, and that “it’s okay.” Id. at 32. Melton then “kind of

like tried to tell [N.J.] to come next to him and stuff and then he pulled his penis out of

his pants” and began masturbating. Id. at 33. N.J. did not go next to Melton and told

him: “I’m ready to go. Where’s – where’s my mom. Where’s [Davis].” Id. Melton then

“kind of brushed it off,” went into the kitchen, and said “everything’s okay.” Id. at 34.

       Our review of the character of the offender reveals that, according to the

presentence investigation report (“PSI”), Melton was twenty-two years old at the time of

sentencing and had a lengthy criminal history. He admitted to using marijuana, cocaine,

and ecstasy on a daily basis. Melton is bipolar and suffers from depression. As a

juvenile, in 2004 a true finding was entered against Melton for “Motor Vehicle –

Unlawful – 2 Year (Misdemeanor).” PSI at 4. In 2005, a true finding was entered

against Melton for “Unlawful Driving Away” as a felony and receiving and concealing

stolen property as a felony. Id. As an adult, Melton has convictions for possession of

“Marijuana / Hash Oil / Hashish / Salvia / Synthetic Cannabinoid” in 2008; carrying a

concealed weapon as a felony and receiving stolen property as a felony in 2009; and

felony theft and misdemeanor carrying a handgun without a license in 2011. Id. at 5. In

2010, Melton was charged with two counts of criminal confinement as class B felonies,

two counts of robbery resulting in bodily injury as class B felonies, and carjacking as a

class B felony, but these counts were dismissed.        In 2011, Melton’s probation was

revoked after a violation was filed alleging that he failed to report to probation as


                                            15
directed, failed to maintain a verifiable address, and failed to make a good faith effort

toward paying court ordered fees. In April 2012, Melton was charged with rape as a class

A felony, two counts of criminal deviate conduct as class A felonies, two counts of

criminal confinement as class B felonies, robbery resulting in bodily injury as a class B

felony, and intimidation as a class D felony, and these charges were pending at the time

the PSI was completed.

                                      B. DECISION

       After due consideration of the trial court’s decision, including Melton’s serious

and escalating criminal history despite his young age, and the depravity of the offenses,

we cannot say that the sentence imposed by the trial court is inappropriate in light of the

nature of the offense and the character of the offender. See Leffingwell v. State, 810

N.E.2d 369, 372 (Ind. Ct. App. 2004) (focusing on the nature, extent, and depravity of the

offense and what it reveals about the defendant’s character, and holding that the trial

court’s decision to impose the maximum sentence of eight years for child molesting as a

class C felony was not inappropriate).

                                     CONCLUSION

       For the foregoing reasons, we affirm Melton’s conviction for dissemination of

matter harmful to minors as a class D felony and his aggregate sentence.

       Affirmed.

NAJAM, J., and MATHIAS, J., concur.




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