MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Dec 31 2019, 7:41 am
regarded as precedent or cited before any
                                                                              CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
James Harper                                             Curtis T. Hill, Jr.
Valparaiso, Indiana                                      Attorney General of Indiana
                                                         Josiah J. Swinney
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Thomas K. Jackson,                                       December 31, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-796
        v.                                               Appeal from the LaPorte Superior
                                                         Court
State of Indiana,                                        The Honorable Michael Bergerson,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         46D01-1704-F3-367



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019                  Page 1 of 27
                                                  Case Summary

[1]   Thomas Jackson appeals his convictions and sentence for three counts of rape,

      Level 3 felonies. We affirm.


                                                         Issues

[2]   Jackson raises three issues for our review, which we restate as:


               I.       Whether the evidence was sufficient to convict Jackson of
                        rape.


               II.      Whether the trial court abused its discretion in sentencing
                        Jackson.


               III.     Whether Jackson’s sentence is inappropriate in light of the
                        nature of the offense and Jackson’s character.


                                                          Facts

[3]   Twenty-five-year old K.S. 1 is the daughter of W.S. (“Father”) and Ki.S.

      (“Mother”). K.S. is “moderately, mentally handicapped.” Tr. Vol. III p. 102.

      Mother and Father have legal guardianship over K.S., and they anticipate

      having guardianship over K.S. for the remainder of her life. According to

      Belinda Hubert, a clinical psychologist, testing revealed that K.S. is in “the

      moderately intellectually handicap functioning, which means about two percent

      of the population has lower scores than her.” Id. at 101-02. K.S.’s “social




      1
        K.S. was twenty-five years old at the time of the second trial in December 2018; the facts of this case begin
      in 2013, when K.S. would have been approximately twenty years old.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019                    Page 2 of 27
      functioning” demonstrates that her “mental age” is “about 11 to 13 at the

      higher end,” and K.S.’s “working memory reasoning” level, which relates to

      achievement in school, is “about the age of an eight-year-old.” Id. at 103.


[4]   K.S.’s disabilities are manifested in many ways, including: (1) Mother and

      Father remind K.S. each morning to complete routine hygiene tasks; (2) K.S.

      cannot read or write; (3) K.S. does not have a driver’s license; (4) K.S. cannot

      recall her phone number to give it out to friends; (5) K.S.’s favorite television

      shows are cartoons; and (6) K.S. cannot play games on her own because she

      does not understand how to play. Moreover, Mother and Father only leave

      K.S. unsupervised for short intervals of time—no longer than two hours—and

      K.S. is only allowed to use the microwave after asking Mother and Father what

      buttons to press after an incident where K.S. almost burnt down the house by

      using the stove.


[5]   Previously, K.S. attended Paladin, where she participated in art and computer

      classes, participant assistant care, community integration, and light assembly

      line work as prevocational work. 2 K.S. now attends Respite, which hosts group

      meetings and functions, approximately four times a week. 3 K.S. has

      participated in services, including: “job readiness skills,” “[a]cademic base




      2
       Participants at Paladin, who are considered below fifty percent productivity in the workforce, are given the
      opportunity to participate in work for pay.
      3
        Respite “gives the parents relief from continued care giving,” and “[participants] can do any type of activity
      in the community,” in addition to having a “Respite home.” Tr. Vol. II p. 184.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019                    Page 3 of 27
      services,” and “behavioral services.” Tr. Vol. II p. 185. K.S. also has

      participated in Special Olympics.


[6]   K.S. has friends, whom she occasionally visits or speaks to on the phone, and

      she has gone out on a date with one of her friends, “C.,” twice. C. is a “little

      more high functioning” than K.S., and a group of friends went together to

      watch movies. Id. at 102. K.S. also went on a date with another man she met

      at Paladin; these dates, however, were always supervised, with the exception of

      one outing, which Mother and Father were uncertain was supervised. While

      K.S. was working at Opportunity Enterprises, a service much like Paladin, a

      man named “S.” asked K.S. to marry him. S. did not attend subsequent dates

      arranged between K.S. and S., and nothing ever came of the couple’s

      “engagement.”


[7]   K.S.’s knowledge of sexual intercourse and its potential consequences was

      extremely limited. K.S. “received the discussion about the birds and the bees”

      and about “birth control.” Id. at 154. K.S. was permitted to attend “Thunder

      Down Under” with Mother and Mother’s friends when she was twenty-one

      years old. 4 Id. at 156. Mother spoke to K.S. about sex and purchased a vibrator

      for K.S. because K.S. touched herself inappropriately in public and at home.


[8]   In 2013, J.S., K.S.’s cousin (“Cousin”) began hosting regular weekend cookouts

      approximately every other week. Attendees at these parties regularly included



      4
          According to Mother, “Thunder Down Under” is a “male strip show.” Tr. Vol. II p. 234.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019            Page 4 of 27
       Jackson, who was Cousin’s neighbor, Father, Mother, and K.S. The parties

       were “mostly adult parties,” and alcohol was served. Id. at 118. K.S. drank

       alcohol at these parties. K.S. also announced her previous engagement to S. at

       one of Cousin’s parties. Father told a group at the party that the engagement

       was “not really that simple” because there was no ring, and Father was

       uncertain whether S. actually asked K.S. to marry him. Id. at 162.


[9]    Jackson, a police officer, befriended Mother and Father at these parties, and, at

       one party, Father introduced Jackson to K.S. because K.S. “thought cops were

       really cool,” and has “always idolized the police officers or fire fighters. . . .”

       Id. at 121, 127. Father told Jackson that K.S. is going to “act” and “look

       normal, but she is mentally retarded.” Id. at 121-22. Similarly, Mother told

       Jackson that K.S. is “mentally retarded” and cannot “read or write or do any of

       the things that normal people her age would be doing.” Id. at 248. Jackson

       also asked Father and Mother if K.S. was capable of having sexual intercourse;

       Father responded that it “would be possible,” and Mother told Jackson that

       K.S. “is a woman” and “has all her parts,” so she is physically capable of doing

       so. Id. at 124, 249.


[10]   At one of the parties, Jackson asked Mother if he could take K.S. out for coffee

       or ice cream. While Mother and Father initially declined, they ultimately

       agreed as they believed Jackson was “trying to be a nice person.” Id. at 125.

       Jackson told Mother that Jackson “wanted to make [K.S.] feel like she had a

       friend too.” Tr. Vol. III p. 3. K.S. and Jackson went on outings—for coffee,

       ice cream, or a ride to the beach—two or three times a month, sometimes with

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019   Page 5 of 27
       large gaps of time between the outings. Jackson texted Mother for permission

       to take K.S. out on each occasion.


[11]   After one of their outings, Jackson notified Mother that he asked K.S., after she

       dropped food in her lap, if Jackson could “kiss Rachel,” which is the word K.S.

       uses for her vagina. Tr. Vol. II p. 128. Jackson told Mother that K.S.

       responded, “no,” and “giggled”; Mother and Father’s impression was that

       Jackson was trying to make a joke. Id. at 131.


[12]   On March 5, 2017, Officer Troy Webb, with the Westville Police Department,

       was patrolling the Prairie Meadow Park in Westville when Webb observed a

       van parked in the park. Officer Webb approached the van and did not see

       anyone in the front of the van; however, Officer Webb could hear movement in

       the back of the van. Officer Webb knocked on the window and asked the

       individuals to come to the front of the van. A few minutes later, Jackson

       appeared in the driver’s seat. Shortly after, K.S. appeared in the passenger seat

       with her shirt only “three quarters” of the way on properly. Id. at 62. K.S. told

       Officer Webb that she and Jackson were “friends” and were “just hanging out

       and talkin[g]” in the van; Officer Webb instructed Jackson and K.S. that they

       should leave the park, which they did. Id. at 63.


[13]   K.S. told Mother about the encounter, and Mother reported the incident to the

       police. Officer Brian Piergalski, with the LaPorte County Sheriff’s Office, led

       the investigation and requested that K.S. receive a medical exam. Officer




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019   Page 6 of 27
       Piergalski’s investigation revealed that Jackson and K.S. had sexual intercourse

       on other occasions, including at a hotel and twice in a park in LaPorte County.


[14]   Based on the investigation, the State charged Jackson with four counts of rape,

       Level 3 felonies, under Indiana Code Section 35-42-4-1, on April 24, 2017;

       amended charges were filed on September 18, 2017. Pursuant to the amended

       charging information, Counts I and II alleged that Jackson had sexual

       intercourse with K.S.; Count III alleged that Jackson “placed his penis in the

       mouth of K.S.”; and Count IV alleged that Jackson “placed his penis into the

       anus of K.S.” Appellant’s App. Vol. II pp. 48-49.


[15]   Jackson’s first jury trial took place from March 27 through April 3, 2018, after

       which the jury found Jackson not guilty of Count I, but was unable to reach a

       verdict on Counts II, III, and IV; the trial court declared a mistrial on these

       counts. Jackson’s second jury trial on Counts II, III, and IV, took place from

       December 17, through 21, 2018. 5


[16]   At the second trial, K.S. testified that sexual intercourse occurs when “two

       people get together.” Tr. Vol. III p. 215. K.S. testified that the individuals’

       “private parts” touch, and when asked to elaborate what the “private parts” are,

       K.S. described them as the parts “where they use the bathroom.” Id. at 217.




       5
        At the second jury trial, the Counts were changed to Counts I, II, and III; however, for simplicity, we will
       continue with the original numbering of counts.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019                  Page 7 of 27
       K.S. testified she knew what birth control was but did not know what a condom

       was.


[17]   As to Jackson specifically, K.S. testified that Jackson always made plans with

       K.S. through Mother and that she did not call Jackson herself. K.S. testified

       that, when Jackson took her to the hotel, her interaction with Jackson “started

       getting weird” and felt “kind of awkward.” Id. at 225. After they went in the

       hotel room, Jackson started “making [her] do weird things.” Id. at 226.

       Jackson would then touch her “down there,” where she “peed at,” and would

       use “the same part of [Jackson’s] body that he uses to pee” to touch K.S.’s

       “butt” and mouth. Id. at 228. After the incident at the hotel, Jackson told K.S.

       not to tell anyone because Jackson could lose his job. K.S.’s testimony revealed

       that “all of those things” that happened at the hotel happened at the park twice.

       Id. at 230. When asked if K.S. ever told Jackson she did not want to have

       sexual intercourse, K.S. testified: “I didn’t want [to], he knew I had special

       needs so I couldn’t agree to anything.” Id. at 231.


[18]   Jackson’s testimony at the prior jury trial was played for the jury. The

       transcript of Jackson’s testimony revealed Jackson’s position that: (1) Mother

       told Jackson that K.S. was “special,” which Mother further elaborated as K.S.

       having “a learning disability” and not “retarded”; (2) Jackson knew that K.S.

       “had a crush” on Jackson; (3) Mother once told Jackson that K.S. would “jump

       [his] bones” if they were left alone; (4) Mother was the one who started the

       outings by encouraging K.S. to ask Jackson for a ride in his car; (5) parents did

       not give Jackson any limitations on what should or should not occur when out

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019   Page 8 of 27
       with K.S.; and (6) when Father discussed K.S.’s prior engagement, Jackson did

       not get the impression it was a joke, and instead, that Mother and Father

       seemed “sort of excited” about it. Conf. Ex. pp. 50-52, 75. Jackson also

       testified that K.S. drank alcohol at the parties and that he contacted Mother

       because K.S. told Jackson that her phone “was a pay-per-minute kind of thing,”

       so Jackson should text Mother when he was on his way to get K.S. Id. at 60.

       Jackson did concede, however, that he “noticed [K.S.’s] speech was different,”

       and that K.S. would snort and stutter when she got excited. Id. at 83.


[19]   Jackson testified that, when he took K.S. to the hotel for the first time, he and

       K.S. did not have a discussion prior, but “given [K.S.’s] prior experience,

       [Jackson] assume[d] that she knew what was gonna happen.” Id. at 62.

       Jackson elaborated that the “prior experience” was K.S.’s participation in

       “adult activities.” Id. at 63. Once they were in the hotel, according to Jackson,

       K.S. “kissed [him] back” and “participat[ed] as much as [Jackson] was.” Id. at

       64. Moreover, Jackson explained, K.S. “didn’t act confused,” and when asked

       if she was okay, K.S. said, “yeah, . . . I’m fine.” Id. at 65. Jackson testified that

       he asked K.S. several other times if K.S. wanted to stop which, according to

       Jackson, K.S. “never did.” Id. at 68. Jackson admitted to having sexual

       intercourse, anal sex, and oral sex with K.S.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019   Page 9 of 27
[20]   At the end of the State’s presentation of its evidence, Jackson moved for

       dismissal. 6 Jackson argued that the State failed to prove the incidents occurred

       in LaPorte County and that the State failed to prove Jackson had knowledge of

       K.S.’s inability to consent. The trial court denied the motion.


[21]   Jackson then called three witnesses who often attended Cousin’s parties in his

       defense. The witnesses testified as follows: Father never indicated that K.S.

       was “retarded”; K.S. was very social with everyone at the party; K.S. “fit in”

       with the group; K.S. “would do any thing (sic) to garter (sic) [Jackson’s]

       attention”; and K.S. discussed her boyfriends and “having had sex with guys.”

       Tr. Vol. IV pp. 23, 25, 31, 39.


[22]   The jury found Jackson guilty of Counts II, III, and IV. At sentencing, the trial

       court found as mitigators Jackson’s lack of criminal history and that Jackson is

       categorized as a low risk to reoffend. The trial court found as aggravators: (1)

       “the scope and magnitude of the criminal conduct over several years”; (2)

       Jackson’s lack of character; (3) Jackson’s violation of a position of trust; (4)

       Jackson’s lack of remorse; and (5) the imposition of a reduced sentence would

       depreciate the seriousness of the crime. Appellant’s App. Vol. III p. 27. The

       trial court sentenced Jackson to twelve years each on Counts II, III, and IV, to




       6
         Jackson moved for “involuntary dismissal,” which is governed by Indiana Trial Rule 41(B). Tr. Vol. III p.
       245. This rule, however, applies “in an action tried by the court without a jury.” Ind. Trial Rule 41(B).
       Indiana Trial Rule 50(A), which governs judgment on the evidence or a directed verdict, applies “in a case
       tried before a jury” and is applicable here. The trial court denied “Defendant’s Motion for Directed Verdict.”
       Tr. Vol. III p. 246.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019                Page 10 of 27
       run consecutively to one another, resulting in thirty-six years fully executed at

       the Department of Correction (“DOC”).


                                                    Analysis

                                           I.       Sufficient Evidence

[23]   Jackson argues the evidence is insufficient to sustain his convictions for rape.

       When there is a challenge to the sufficiency of the evidence, “[w]e neither

       reweigh evidence nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204,

       210 (Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 1985), cert.

       denied). Instead, “we ‘consider only that evidence most favorable to the

       judgment together with all reasonable inferences drawn therefrom.’” Id.

       (quoting Bieghler, 481 N.E.2d at 84). “We will affirm the judgment if it is

       supported by ‘substantial evidence of probative value even if there is some

       conflict in that evidence.’” Id. (quoting Bieghler, 481 N.E.2d at 84); see also

       McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018) (holding that, even though

       there was conflicting evidence, it was “beside the point” because that argument

       “misapprehend[s] our limited role as a reviewing court”). Further, “[w]e will

       affirm the conviction unless no reasonable fact-finder could find the elements of

       the crime proven beyond a reasonable doubt.” Love v. State, 73 N.E.3d 693, 696

       (Ind. 2017) (citing Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)).


[24]   Indiana Code Section 35-42-4-1(a)(3) requires the State to prove beyond a

       reasonable doubt that Jackson “knowingly or intentionally ha[d] sexual

       intercourse with [K.S.] or knowingly or intentionally cause[d K.S.] to perform


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019   Page 11 of 27
       or submit to other sexual conduct” when K.S. “is so mentally disabled or

       deficient that consent to sexual intercourse or other sexual conduct . . . cannot

       be given.” “Other sexual conduct,” as defined in Indiana Code Section 35-

       31.5-2-221.5, as applies here, means an act involving: “(1) the sex organ of one

       (1) person and the mouth or anus of another person.”


[25]   Jackson does not dispute that he engaged in sexual intercourse and other sexual

       conduct with K.S. In fact, he admitted to having sexual intercourse, anal sex,

       and oral sex with K.S. Rather, Jackson argues that the evidence is insufficient

       to demonstrate that K.S. is so mentally disabled or deficient that consent could

       not be given or, alternatively, that Jackson was aware of such an incapacity.


[26]   This Court has defined “mentally disabled or deficient” as having “subnormal

       intelligence or mental disease or defect.” Ball v. State, 945 N.E.2d 252, 257

       (Ind. Ct. App. 2011). The meaning of the phrase “has been expanded for

       purposes of those statutes to include not only a victim with lower-than-normal

       intelligence, but also a victim who was highly intoxicated, and a victim who

       had unknowingly ingested eight Xanax.” Id. (internal citations omitted). The

       “mental disability or deficiency” prong of the statute “primarily exists to

       prevent abuse of persons in our society who, by reason of mental disability, are

       unable to protect themselves from sexual abuse.” Id. The defendant “must be

       aware of a high probability that the victim is mentally disabled and unable to

       consent to sexual intercourse.” Bozarth v. State, 520 N.E.2d 460, 464 (Ind. Ct.

       App. 1988).



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019   Page 12 of 27
[27]   Jackson contends that K.S. was able to make adult decisions—such as drink

       alcohol, get a tattoo, and engage with other adults—and was aware and

       possessed knowledge of sexual intercourse and its potential consequences.

       Jackson also argues that he was unaware of K.S.’s inability to consent because

       the evidence merely demonstrates that Jackson “was aware that K.S. was an

       (sic) learning-disabled adult woman who engaged in adult activities and had a

       history of dating other adult men.” Appellant’s Br. p. 21.


[28]   Jackson’s argument is nothing more than a request for us to reweigh the

       evidence, which we cannot do. See Gibson, 51 N.E.3d at 210. The jury was

       presented with testimony that K.S. has the cognitive abilities of, at most, a

       thirteen-year-old. Moreover, the jury was presented with Jackson’s testimony

       regarding his understanding of K.S.’s disability as well as the testimony of

       Mother and Father, who claim to have told Jackson the nature of K.S.’s

       disability, which demonstrated K.S.’s inability to consent. It was within the

       province of the jury to decide which witness to believe, and the jury had

       sufficient evidence to reach its guilty verdicts. See, e.g., Bozarth, 520 N.E.2d at

       463-64 (holding that the evidence was sufficient to demonstrate the victim’s

       mental disability and the defendant’s knowledge of the mental disability where

       the twenty-one-year-old victim “was mildly retarded with a mental age of

       approximately 10 years old and an I.Q. of between 50 to 70,” the victim’s

       disability was “obvious,” and the defendant made fun of the victim).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019   Page 13 of 27
                                  II.     Abuse of Discretion in Sentencing

[29]   Jackson next argues that the trial court abused its discretion in sentencing by

       finding aggravators that are unsupported by the record and by failing to explain

       why the aggravating factors justified a consecutive sentence. Sentencing

       decisions rest within the sound discretion of the trial court. Anglemyer v. State,

       868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).

       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.


[30]   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

       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. If a trial court abuses its

       discretion by improperly considering an aggravating circumstance, we need to

       remand for resentencing only “if we cannot say with confidence that the trial

       court would have imposed the same sentence had it properly considered

       reasons that enjoy support in the record.” Anglemyer, 868 N.E.2d at 491.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019   Page 14 of 27
                                             A. Aggravating Factors

[31]   Jackson contends that four of the five aggravators identified by the trial court

       are improper. First, we note that Jackson does not challenge the aggravator

       that he violated a position of trust in having the care, custody, and control of

       K.S. See Appellant’s Br. p. 25 (“The trial court found five mitigating factors,

       and, as [Jackson] has argued above, four of them were improper or entitled to

       minimal weight.”). The trial court remarked:


               Notwithstanding his position as a Michigan City Police Officer,
               as a human being the defendant had a duty to protect a person
               with obvious cognitive disabilities, who had been entrusted to his
               care, custody and control. In doing so, the defendant
               transgressed a boundary of sickening proportions. The
               Defendant’s abuse of that trust is shocking to the conscience of
               the court.


       Appellant’s App. Vol. II p. 27.


[32]   The trial court also found “the scope and magnitude of the criminal conduct

       over several years” and Jackson’s lack of character as aggravating factors. Tr.

       Vol. IV p. 152. In discussing these aggravators, the trial court noted that

       Jackson abused K.S. “over the course of several years” and that Jackson

       repeatedly lied to many people about his relationship with K.S. Id. Although

       Jackson challenges these aggravators, we view these aggravators as

       considerations of the nature and circumstances of the offense. Our Supreme

       Court has held that “the nature and circumstances of a crime is a proper




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019   Page 15 of 27
       aggravating circumstance.” Gomillia v. State, 13 N.E.3d 846, 853 (Ind. 2014).

       The trial court did not abuse its discretion by considering these aggravators.


[33]   Next, the trial court found Jackson’s lack of remorse as an aggravator. Jackson

       argues this aggravator is improper because he expressed remorse for his actions.

       “A trial court may consider as an aggravator the defendant’s lack of remorse.”

       Sloan v. State, 16 N.E.3d 1018, 1027 (Ind. Ct. App. 2014). A trial court’s

       determination of a defendant’s remorse is similar to a determination of

       credibility. Holmes v. State, 86 N.E.3d 394, 400 (Ind. Ct. App. 2017), trans.

       denied. Without evidence of some impermissible consideration by the trial

       court, we accept its determination as to remorse. Id. The credibility of

       Jackson’s remorse was for the trial court to determine. The trial court found

       such remorse to be lacking, and we cannot say the trial court abused its

       discretion.


[34]   Even if the remaining aggravator was erroneous, we do not need to remand for

       resentencing, as we are confident that the trial court likely would have imposed

       the same sentence here based on its obvious finding that these aggravators were

       significant. See Bisard v. State, 26 N.E.3d 1060, 1071 (Ind. Ct. App. 2015)

       (finding “violation of public trust” was an appropriate aggravator when the

       defendant was a police officer); see also Collins v. State, 643 N.E.2d 375, 382 (Ind.

       Ct. App. 1994) (holding “[t]he fact that [the defendant] had previously been a

       police officer was a valid consideration in determining aggravating

       circumstances”); see also Edrington v. State, 909 N.E.2d 1093, 1101 (Ind. Ct. App.

       2009) (finding the position of trust aggravator appropriate for a child molesting

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019   Page 16 of 27
       defendant when the defendant lived in the same neighborhood, knew the

       victim’s father since they were young, and had friends in common with the

       victim’s father). The trial court’s sentencing statement supports the conclusion

       that, even with exclusion of one of the aggravating factors, Jackson would have

       received the same sentence. See Anglemyer, 868 N.E.2d at 491; see also Gleason v.

       State, 965 N.E.2d 702, 712 (Ind. Ct. App. 2012) (“One valid aggravator alone is

       enough to enhance a sentence or to impose it consecutive to another.”).


                                            B. Consecutive Sentences

[35]   Jackson next argues that the trial court abused its discretion because it failed to

       explain why a consecutive sentence was warranted and because the aggravators

       and mitigators are in equipoise. The trial court’s order on the imposition of

       consecutive sentences states:


               The Court further finds that the sentences of imprisonment shall
               be served consecutively to each other as each criminal act was
               independent of the other and cannot be reasonably considered as
               a single episode of criminal conduct.


       Appellant’s App. Vol. III pp. 28-29.


[36]   First, we decline to use our authority to change Jackson’s sentences from

       consecutive to concurrent. As a panel of our Court held in Lewis v. State, 31

       N.E.3d 539, 543 (Ind. Ct. App. 2015):


               While a single aggravator may be used both to enhance a
               sentence and impose consecutive sentences, . . . the trial court’s
               brief sentencing statement here lacks specificity. But we need not

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019   Page 17 of 27
               remand for sentencing because the rationale for consecutive
               sentences is apparent on the face of the record.


       Id. Here, we agree with Jackson that the trial court’s statement regarding the

       imposition of consecutive sentences lacked specificity. The trial court’s reasons,

       however, can be gathered from its conclusion that the aggravators far outweigh

       the mitigators and its statement regarding Jackson’s independent crimes. Four

       of the trial court’s aggravators were proper, and “[a] single aggravating

       circumstance may be sufficient to support the imposition of consecutive

       sentences.” Gross v. State, 22 N.E.3d 863, 870 (Ind. Ct. App. 2014).

       Accordingly, the trial court did not abuse its discretion in imposing consecutive

       sentences.


[37]   Next, Jackson cites Hoeppner v. State, 918 N.E.2d 695 (Ind. Ct. App. 2009), to

       support his argument that the aggravators and mitigators are in equipoise,

       which we regard as a challenge to the weight afforded to the mitigating and

       aggravating factors. This argument is unavailing. See Anglemyer, 868 N.E.2d at

       491 (holding “[b]ecause the trial court no longer has any obligation to weigh

       aggravating and mitigating factors against each other when imposing a

       sentence, unlike the pre-Blakely statutory regime, a trial court can not now be

       said to have abused its discretion in failing to properly weigh such factors”)

       (internal quotations omitted).


[38]   Moreover, Hoeppner is distinguishable because, unlike the circumstances here,

       where the trial court found the aggravators far outweigh the mitigators, in


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019   Page 18 of 27
       Hoeppner, the trial court “found the aggravator and mitigator to be in balance.” 7

       Hoeppner, 918 N.E.2d at 699. Here, the trial court’s sentencing statement

       clearly indicates that, even with one possibly improper aggravator, the trial

       court did not consider the aggravators and mitigators to be in equipoise. The

       trial court’s limitation, at that point, was to enter a sentence authorized by

       statute. See Richardson v. State, 906 N.E.2d 241, 243 (Ind. Ct. App. 2009)

       (“[O]nce the trial court has entered a sentencing statement, . . . it may then

       impose any sentence that is . . . authorized by statute; and . . . permissible under

       the Constitution of the State of Indiana.” (quotations and citations omitted)).

       Based on the foregoing, the trial court did not abuse its discretion in sentencing

       Jackson.


                                            III.     Inappropriate Sentence

[39]   Finally, we address whether Jackson’s sentence is inappropriate. Jackson asks

       that we review and revise his sentence pursuant to Indiana Appellate Rule 7(B),

       which provides that 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.” The defendant bears the burden to persuade this court that his or her




       7
         Still, on review, our Court found that, “In effect, the trial court found the nature and circumstances of the
       crime . . . as an aggravator supporting consecutive sentences.” Hoppner, 918 N.E.2d at 699. Accordingly, our
       Court found the two aggravators and one mitigator were no longer in equipoise, warranting consecutive
       sentences.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019                 Page 19 of 27
       sentence is inappropriate. Wilson v. State, 966 N.E.2d 1259, 1266 (Ind. Ct. App.

       2012) (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)), trans. denied.


[40]   In Indiana, trial courts can tailor an appropriate sentence to the circumstances

       presented; the trial court’s judgment receives “considerable deference.” Sanders

       v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017) (quoting Cardwell v. State, 895

       N.E.2d 1219, 1222 (Ind. Ct. App. 2008)), trans. denied. In conducting our

       review, we do not look to see whether the defendant’s sentence is appropriate or

       “if another sentence might be more appropriate; rather, the question is whether

       the sentence imposed is inappropriate.” Sanders, 71 N.E.3d at 844 (citing King

       v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008)).


[41]   We look to the statutory range established for the classification of the offense.

       The jury found Jackson guilty of three Level 3 felonies. The sentence for a

       Level 3 felony ranges from three years to sixteen years, with an advisory

       sentence of nine years. Ind. Code § 35-50-2-5(b). Here, the trial court imposed

       twelve years on each count, to be served consecutively, for an aggregate

       sentence of thirty-six years.


[42]   First, we consider the nature of Jackson’s offenses. In our consideration,

       Jackson urges us to review Eckelbarger v. State, 51 N.E.3d 169 (Ind. 2016), and

       Walker v. State, 747 N.E.2d 536 (Ind. 2001), to find that Jackson’s three offenses

       were “similar” and, accordingly, to revise his sentences to run concurrently

       instead of consecutively. Appellant’s Br. p. 28. In Eckelbarger, our Supreme

       Court held:


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019   Page 20 of 27
        We have previously observed that consecutive sentences are not
        appropriate when the State sponsors a series of virtually identical
        offenses. Consistent with this precedent, the trial court in this
        case ordered the sentences on Counts I and II to be served
        concurrently. This same reasoning informs our deliberation and
        collective sentiment that, under the particular circumstances of
        this case, the sentences for Counts III and IV (dealing in
        methamphetamine by manufacture and possession of
        precursors)—convictions supported by evidence seized pursuant
        to a search warrant procured based on the dealing
        methamphetamine by delivery counts—should be served
        concurrently to the sentences on Counts I and II.


Eckelbarger, 51 N.E.3d at 170 (quotations and citations omitted). Similarly, in

Walker, our Supreme Court held:


        Walker was convicted on two counts of child molestation for
        performing oral sex on a six-year-old boy. Crimes against
        children are particularly contemptible. The trial court found a
        number of aggravating circumstances, including committing the
        crime while on probation and fleeing the jurisdiction. Still, the
        trial court did not find a history of criminal behavior. Moreover,
        the two separate counts of child molestation were identical and
        involved the same child. Additionally, there was no physical
        injury. Although the absence of physical injury does not bar an
        enhanced sentence, this is some distance from being the worst
        offense or the most culpable offender. While the aggravating
        circumstances warranted an enhanced sentence, Walker’s
        aggregate sentence of eighty years is manifestly unreasonable.


Id. at 538 (quotations and citations omitted). Accordingly, in both cases, our

Supreme Court found the sentences should be served concurrently instead of

consecutively.


Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019   Page 21 of 27
[43]   We do not believe such a revision is warranted here. First, Eckelbarger involves

       repeated controlled buys; not the type of offense before us. Second, as to

       Walker, even though Jackson’s conduct involved the same victim, the evidence

       presented is that the nature of Jackson’s offense was that Jackson raped K.S., a

       person incapable of consenting, in three different ways over a period of several

       years. Jackson asked K.S.’s parents for permission to spend time with K.S.

       under the guise of being her friend and regularly communicated with Mother to

       set up the meetings with K.S.—an action traditionally taken when a child is

       involved. Jackson also asked Mother and Father if K.S. had a disability and

       whether K.S. could have sexual intercourse. Jackson’s conduct demonstrated

       his knowledge that K.S. was unable to consent; still, Jackson continued to

       pursue K.S. sexually.


[44]   Next, we examine Jackson’s character. Fifty-three-year-old Jackson, who was

       married and a police officer at the time of his meetings with K.S., asked Mother

       and Father to spend time with K.S. under the pretense of being K.S.’s friend

       and wanting to support her. Moreover, Jackson knew K.S. admired police

       officers and manipulated that admiration to rape K.S. After taking K.S. on

       outings and spending time with K.S., Jackson took K.S. to a hotel and to a park

       and raped her. Jackson engaged in sex acts with K.S. multiple times over

       several years. Although Jackson has no prior criminal convictions, Jackson

       took on a position of trust, not just as a police officer but as a friend of K.S. and

       her family, and abused that position. Finally, Jackson persisted with K.S.,

       despite knowing his actions were wrong, as demonstrated by his request that


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019   Page 22 of 27
       she not share the encounters with others because he may lose his job. This does

       not reflect well on Jackson’s character. Jackson’s sentence is not inappropriate.


                                                  Conclusion

[45]   There was sufficient evidence to support Jackson’s convictions. The trial court

       did not abuse its discretion in sentencing Jackson, and Jackson’s sentence is not

       inappropriate. We affirm.


[46]   Affirmed.


       Altice, J., concurs.


       Brown, J., concurs in part and dissents in part with opinion.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019   Page 23 of 27
                                                 IN THE
           COURT OF APPEALS OF INDIANA

       Thomas K. Jackson,                                       December 31, 2019
       Appellant-Defendant,                                     Court of Appeals Case No.
                                                                19A-CR-796
               v.                                               Appeal from the LaPorte Superior
                                                                Court
       State of Indiana,                                        The Honorable Michael Bergerson,
       Appellee-Plaintiff.                                      Judge
                                                                Trial Court Cause No.
                                                                46D01-1704-F3-367




       Brown, Judge, concurring in part and dissenting in part.

[47]   I concur with the majority that the evidence is sufficient to sustain Jackson’s

       convictions. I respectfully dissent from the majority’s conclusion that Jackson’s

       aggregate 36-year fully-executed sentence was not inappropriate in light of the

       nature of the offenses and his character. Jackson was convicted of three counts

       of rape of K.S. as level 3 felonies. At sentencing, the prosecutor recommended

       consecutive advisory sentences totaling 27 years and did not object to a “split

       sentence” with part of that time non-executed. Transcript Volume IV at 150.

       See Ind. Code § 35-50-2-5 (nine-year advisory sentence for a level 3 felony). The

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019     Page 24 of 27
       trial court imposed three consecutive and fully-executed aggravated sentences

       of twelve years for a total sentence of thirty-six years. The presentence

       investigation report provides that Jackson’s overall risk assessment score using

       the Indiana risk assessment tool places him in the low risk to reoffend category,

       and he scored in the low risk/needs category in each of the seven measured

       domains. In addition, a psychosexual assessment report provides that, using

       the Static-99 risk assessment as a measure, Jackson “scored a 1, which is

       considered to be in the low range of risk to be reconvicted for a sexual offense,”

       and using the McGrath Cummings Sex Offender Progress Scale, Jackson

       “scored an 8, which is in the low risk range to re-offend.” Appellant’s

       Appendix Volume III at 21. The report recommended that Jackson “receive

       the benefit of split sentencing” with a period of incarceration and “a long period

       of probation so that he may benefit from a sex offender program.” Id. at 22.


[48]   Jackson was born in January 1966 and, prior to these offenses, he had been a

       police officer for twenty-eight years and had no criminal history. It is

       significant that Jackson had no history of criminal activity for many years, a

       factor that generally comments favorably on a defendant’s character, especially

       when there is no such activity for a substantial time. See Ind. Code § 35-38-1-

       7.1(b)(6) (providing the court may consider, as a mitigating circumstance, that a

       “person has no history of delinquency or criminal activity, or the person has led

       a law-abiding life for a substantial period before commission of the crime”).

       “The statute appropriately encourages leniency toward defendants who have

       not previously been through the criminal justice system. Such mitigation is


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019   Page 25 of 27
       especially appropriate for a defendant . . . who has lived a law-abiding life for

       decades.” Biehl v. State, 738 N.E.2d 337, 339 (Ind. Ct. App. 2000) (noting

       Indiana Supreme Court opinions recognizing the significance of a lack of

       criminal history in sentencing), trans. denied.


[49]   Additionally, Indiana’s sentencing system is founded upon principles of

       reformation and not vindication, see Ind. Const. art. I § 18, and, as such, “where

       reasonably possible, sentencing orders should distinguish between first

       offenders and repeat offenders.” Bluck v. State, 716 N.E.2d 507, 514 (Ind. Ct.

       App. 1999). A lengthy prison term for an offender who had no criminal record

       for decades and has been determined to be a low risk to reoffend does not

       reflect the goals of reformation or rehabilitation. 8


[50]   After due consideration, and in light of his lack of a prior criminal record for

       decades and the determination that he is a low risk to reoffend, I would revise

       Jackson’s aggregate 36-year sentence pursuant to Ind. Appellate Rule 7(B). See

       Walker v. State, 747 N.E.2d 536, 538 (Ind. 2001) (revising two consecutive




       8
         See Does v. Snyder, 834 F.3d 696, 704 (6th Cir. 2016) (noting the “significant doubt cast by recent empirical
       studies” on statements in McKune v. Lile, 536 U.S. 24 (2002), and Smith v. Doe, 538 U.S. 84 (2003), that the
       risk of recidivism posed by sex offenders is frightening and high); Ira M. Ellman & Tara Ellman, “Frightening
       and High”: The Supreme Court’s Crucial Mistake About Sex Crime Statistics, 30 CONST. COMMENT. 495, 503-504
       (2015) (summarizing the results of various studies, some suggesting the risk of recidivism within five years for
       low-risk sex offenders is similar to that of non-sex offenders and that sex offenders who have not reoffended
       after fifteen years are not high-risk for doing so regardless of their offense or initial risk assessment, and others
       suggesting that sex offenders are less likely to commit a new felony of any kind after release than other
       released felons); Patrick A. Langan, Erica L. Schmitt, & Matthew R. Durose, Bureau of Justice Statistics,
       Recidivism of Sex Offenders Released From Prison in 1994, at 1-2 (Nov. 2003), https://www.bjs.gov/content/
       pub/pdf/rsorp94.pdf (last visited December 9, 2019) (stating that, with respect to rearrests for any kind of
       crime, sex offenders were rearrested at a lower rate, 43 percent, than non-sex offenders, 68 percent).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019                      Page 26 of 27
enhanced sentences to concurrent sentences where the defendant did not have a

history of criminal behavior, there was no physical injury, and the two separate

counts of child molestation for performing oral sex were identical and involved

the same child) 9; see also Harris v. State, 897 N.E.2d 927, 930 (Ind. 2008)

(revising two consecutive enhanced sentences to concurrent sentences where

the two counts of child molestation were identical and involved the same child

and citing Walker); Monroe v. State, 886 N.E.2d 578, 579-581 (Ind. 2008)

(revising five consecutive sentences to concurrent sentences where the

defendant molested the victim repeatedly over two years and his prior

convictions were all driving-related offenses); cf. Bass v. State, 947 N.E.2d 456,

459 (Ind. Ct. App. 2011) (finding the defendant’s sentence of concurrent terms

of seven years with two years suspended for child molesting and attempted

child molesting as class C felonies was not inappropriate where the defendant

preyed on his girlfriend’s younger sister and violated a position of trust in

separate incidents and did not have an extensive criminal history), trans. denied.




9
 The majority finds that Walker, in which the Court noted the counts were identical, is distinguishable
because Jackson committed his offenses in three different ways. I would not find that Jackson’s offenses
against K.S. were so dissimilar that Walker is distinguishable.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-796 | December 31, 2019               Page 27 of 27
