      MEMORANDUM DECISION                                                      FILED
                                                                          May 09 2016, 8:32 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as                             CLERK
                                                                           Indiana Supreme Court
      precedent or cited before any court except for the                      Court of Appeals
                                                                                and Tax Court
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Mark A. Foster                                           Gregory F. Zoeller
      Foster, O’Daniel, Hambidge & Lynch,                      Attorney General of Indiana
      LLP
                                                               Larry D. Allen
      Evansville, Indiana
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Derrick E. Hampsch,                                      May 9, 2016

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               42A01-1510-CR-1682
              v.                                               Appeal from the Knox Superior
                                                               Court.
                                                               The Honorable Jeffrey L.
      State of Indiana,                                        Biesterveld, Special Judge.
      Appellee-Plaintiff.                                      Cause No. 42D01-1410-FC-29




      Friedlander, Senior Judge

[1]   Derrick E. Hampsch appeals the sentence the trial court imposed on his

      conviction of sexual misconduct with a minor, a Class C felony. We affirm in

      part, reverse in part, and remand.




      Court of Appeals of Indiana | Memorandum Decision 42A01-1510-CR-1682 | May 9, 2016           Page 1 of 10
[2]   Hampsch worked as a youth minister at a church in Vincennes, Indiana. He

      was married with three children. In 2009, when he was twenty-six, thirteen-

      year-old G.D. was a member of his youth group. Her parents met privately

      with Hampsch to inform him G.D. had a crush on him, expecting he would

      deal with it appropriately.


[3]   Instead, Hampsch had sexually-oriented conversations with G.D. via Facebook

      over a period of several months. Hampsch and his wife had a joint Facebook

      account, but Hampsch secretly created a separate account to exchange sexually

      explicit messages with G.D. using that account’s private messaging function.

      He also exchanged sexually explicit text messages with her. In addition,

      Hampsch had lunch with his youth group members at their schools. During

      lunch visits to G.D.’s school, he frequently sat next to her and rubbed her leg.


[4]   In the fall of 2009, Hampsch took G.D. into a storage room at the church and

      fondled her breasts. In April 2010, Hampsch took his youth group to a church

      conference in Madison County, Indiana. He arranged for G.D., who had by

      then turned fourteen, to meet him in a private room after everyone had gone to

      sleep. Hampsch inserted his finger into G.D.’s vagina while he made her fondle

      his penis.


[5]   On April 30, 2010, Hampsch and G.D. were at their church in Vincennes.

      Hampsch had G.D. come into his office and locked the door. He then made

      G.D. fondle his penis.




      Court of Appeals of Indiana | Memorandum Decision 42A01-1510-CR-1682 | May 9, 2016   Page 2 of 10
[6]    In June 2010, Hampsch and other adults from the church took the youth group

       to an event in Illinois. After all of the children had gone to sleep, Hampsch and

       G.D. met in secret, where he digitally penetrated her vagina and required her to

       fondle his penis.


[7]    The record demonstrates Hampsch had inappropriate discussions with another

       youth group member. A church member discovered that Hampsch had sent her

       daughter flirty texts that made her daughter “feel violated, confused, dirty,

       ashamed, and very broken hearted.” Id. at 70.


[8]    After several years, G.D. disclosed Hampsch’s sexual abuse to her mother, who

       contacted the authorities. The State began this case by charging Hampsch with

       sexual misconduct with a minor, a Class C felony, in relation to the April 30,

       2010 incident where he made G.D. fondle his penis in his office.


[9]    The State opened a separate criminal case against Hampsch in Madison

       County, charging him with sexual misconduct with a minor as a Class B felony

       for his acts against G.D. at the April 2010 church conference. He pleaded

       guilty as charged in that case, without any concessions from the State, and

       received a twenty-year sentence. The Court affirmed his sentence in that case.

       Hampsch v. State, Case No. 48A05-1507-CR-979 (Ind. Ct. App. Feb. 26, 2016),

       trans. pending.


[10]   Meanwhile, in this case Hampsch also pleaded guilty as charged, again without

       any concessions from the State. The trial court accepted the guilty plea. Prior



       Court of Appeals of Indiana | Memorandum Decision 42A01-1510-CR-1682 | May 9, 2016   Page 3 of 10
to his misconduct with G.D., Hampsch had no criminal record. At sentencing,

the trial court identified aggravating and mitigating factors as follows:

        The Court having entered Judgment of Conviction in this cause,
        having considered the Pre-Sentence Investigation and the
        arguments and evidence of counsel, now makes the following
        findings: In way of aggravating factors, the Court determines
        that the Defendant was in a position having care, custody,
        control of the victim. Being a clergy member creates a special
        trust. The family in this case trusted you. The victim trusted
        you. You took this duty upon yourself and you became a clergy
        member. The Court also finds that the harm, injury, loss or
        damage suffered by the victim of this offense was significant and
        greater than the elements necessary to prove the commission of
        the offense. The Court’s experience and the victim’s letter tell me
        that the victim will carry this stigma of the offense for the rest of
        her life and that her relationships with men, with her church,
        with her family will be affected forever, far beyond these
        Courthouse doors. By way of mitigating factors, the Court does
        find that the Defendant pled guilty, accepted responsibility for his
        actions. He saved the victim from going through a trial and
        saved the Court’s time and resources. The Court also notes that
        by way of mitigating factors, that prior to this, this Defendant has
        no history of delinquency or criminal activity, prior to this
        offense and the offense previously stated in the other county. In
        way of consecutivity [sic], the Court finds that this is not the part
        of a single episode of criminal conduct as argued, that these are
        two separate instances, separate and distinct although the
        conduct is similar, but the time, the place, the location, the
        distance make these separate and distinct instances. The Court
        finds that in way of mitigating factors, that this is a hardship
        created by the Defendant’s actions. It’s a substantial hardship,
        but it’s not an undue hardship.




Court of Appeals of Indiana | Memorandum Decision 42A01-1510-CR-1682 | May 9, 2016   Page 4 of 10
       Tr. pp. 29-30. The court sentenced Hampsch to six years, to be served

       consecutively to his twenty-year sentence from Madison County. This appeal

       followed.


[11]   Hampsch raises two categories of sentencing challenges. He claims: (1) the

       trial court abused its discretion in the course of identifying aggravating and

       mitigating factors; and (2) his sentence is inappropriate in light of the nature of

       the offense and the character of the offender. We conclude the trial court did

       not abuse its sentencing discretion, and Hampsch’s six-year sentence is not

       inappropriate, but it is inappropriate in light of the nature of the offense and the

       character of the offender for Hampsch to serve this sentence consecutively with

       the twenty-year sentence from Madison County.


                                                        1.
[12]   In general, sentencing decisions are left to the sound discretion of the trial court,

       and we review the trial court’s decision only for an abuse of discretion. Singh v.

       State, 40 N.E.3d 981 (Ind. Ct. App. 2015), trans. denied. 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. Bisard v. State, 26 N.E.3d 1060 (Ind. Ct.

       App. 2015), trans. denied. 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


       Court of Appeals of Indiana | Memorandum Decision 42A01-1510-CR-1682 | May 9, 2016   Page 5 of 10
       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.


[13]   Hampsch argues the trial court gave insufficient weight to the mitigating

       factors, specifically, his lack of a criminal history, his guilty plea, and the

       hardship that his family will experience during his incarceration. A trial court

       does not have an obligation to explicitly weigh aggravating and mitigating

       factors when imposing a sentence. Id. As a result, the relative weight a trial

       court assigns to aggravating and mitigating circumstances is not subject to

       appellate review. J.S. v. State, 928 N.E.2d 576 (Ind. 2010).


[14]   Next, Hampsch claims the trial court overlooked mitigating factors. A trial

       court must consider the mitigating factors presented by a defendant, but a

       finding of mitigating circumstances is discretionary, not mandatory. Harlan v.

       State, 971 N.E.2d 163 (Ind. Ct. App. 2012). The trial court is not obligated to

       credit the facts in the way the defendant suggests they should be credited. Id.


[15]   Hampsch argues he demonstrated his crime was the result of circumstances

       unlikely to recur, which is a statutory mitigating circumstance. See Ind. Code §

       35-38-1-7.1(b)(2) (West, Westlaw 2008). In support of his argument, he points

       to a report from an expert who examined him and concluded he is not a

       pedophile. Other evidence in the record weighs against a conclusion that his

       crime is unlikely to recur. Hampsch groomed G.D. over several months and

       molested her several times over several more months. He had ample

       opportunity to stop, but he continued his misconduct. Further, the record


       Court of Appeals of Indiana | Memorandum Decision 42A01-1510-CR-1682 | May 9, 2016   Page 6 of 10
       reflects inappropriate text messages with another girl. We cannot conclude

       Hampsch’s proposed mitigating factor is clearly supported by the record. See

       Harlan, 971 N.E.2d 163 (trial court did not err by rejecting claim crime was

       unlikely to recur; defendant repeatedly molested victim over a period of time

       without stopping).


[16]   Hampsch next contends the trial court overlooked another statutory

       circumstance: he is likely to respond affirmatively to probation or short-term

       imprisonment. Ind. Code § 35-38-1-7.1(b)(7). He again points to the report by

       his expert witness, asserting a lengthy sentence is unnecessary to reform his

       conduct. In contrast to the expert witness’s report, the record demonstrates

       Hampsch molested G.D. over a number of months, ending his conduct only

       when G.D. left the state, and then hid his misconduct for a number of years.

       He also engaged in inappropriate conduct with other another girl in his youth

       group, sending flirty texts to her. Under these circumstances, his claimed

       mitigator is not clearly supported by the record.


[17]   Finally, Hampsch argues the court should have found as a mitigating factor that

       his character and attitude indicate he is unlikely to commit another crime. Ind.

       Code § 35-38-1-7.1(b)(8). We disagree. He did not admit to his crime against

       G.D. until he was confronted with it years later. Further, although Hampsch

       presented himself as remorseful and reformed at sentencing, numerous letters

       submitted in support of G.D. indicated Hampsch has a deceptive personality

       and excels at manipulating others. We cannot conclude this mitigator is clearly



       Court of Appeals of Indiana | Memorandum Decision 42A01-1510-CR-1682 | May 9, 2016   Page 7 of 10
       supported by the record. For these reasons, the trial court did not abuse its

       discretion in sentencing Hampsch.


                                                        2.
[18]   Hampsch asserts his sentence is too long and should not be served

       consecutively to his twenty-year sentence from Madison County. Pursuant to

       Indiana Appellate Rule 7(B), we may revise a sentence otherwise authorized by

       statute “if, after due consideration of the trial court’s decision, the Court finds

       that the sentence is inappropriate in light of the nature of the offense and the

       character of the offender.” The principal purpose of this review is to leaven the

       outliers rather than to achieve a “correct” result in each case. Hunt v. State, 43

       N.E.3d 588, 590 (Ind. Ct. App. 2015), trans. denied.


[19]   Whether a sentence is inappropriate ultimately turns on the culpability of the

       defendant, the severity of the crime, the damage done to others, and myriad

       other factors that come to light in a given case. Corbally v. State, 5 N.E.3d 463

       (Ind. Ct. App. 2014). The defendant bears the burden of persuading the

       appellate court that his or her sentence is inappropriate. Id.


[20]   At the time Hampsch committed his offense, a Class C felony was punishable

       by a maximum sentence of eight years and a minimum sentence of two years,

       with an advisory sentence of four years. Ind. Code § 35-50-2-6 (West, Westlaw

       2005). The trial court sentenced Hampsch to an enhanced sentence of six years,

       to be served consecutively to his twenty-year sentence from Madison County.



       Court of Appeals of Indiana | Memorandum Decision 42A01-1510-CR-1682 | May 9, 2016   Page 8 of 10
[21]   The nature of the offense justifies the enhanced six-year sentence. Hampsch

       groomed G.D. for sexual conduct over a period of months, sending her sexually

       explicit messages and secretly touching her during lunchtime visits to her

       school. G.D.’s parents informed Hampsch that she had a crush on him, and he

       used that information to take advantage of her. In addition, Hampsch was in a

       position of authority over G.D. as a religious leader and the supervisor of her

       youth group. Hampsch’s misconduct had a profoundly negative impact upon

       G.D.


[22]   Although the nature of the offense supports an enhanced sentence, we cannot

       conclude that the nature of the offense requires Hampsch to serve his sentence

       for this offense consecutively to his sentence from Madison County for B felony

       sexual misconduct with a minor. Hampsch committed both offenses in similar

       circumstances, less than a month apart, and both involved the same victim.

       Both offenses equally involved an abuse of Hampsch’s position of authority

       over G.D., and both contributed to the trauma she experienced. But for the

       crimes occurring in different counties, the trial court may well have ordered the

       sentences to be served concurrently.


[23]   The character of the offender also supports a conclusion that Hampsch should

       serve his sentences concurrently. He has no prior criminal record and pleaded

       guilty as charged without any concessions from the State, sparing G.D. the

       additional trauma of testifying in front of a jury.




       Court of Appeals of Indiana | Memorandum Decision 42A01-1510-CR-1682 | May 9, 2016   Page 9 of 10
[24]   Based on our consideration of the record, Hampsch’s six-year sentence is not

       inappropriate in light of the nature of the offense and the character of the

       offender, but considering all factors, serving this sentence consecutively with

       the Madison County sentence is outside the range of appropriate results. See

       Carter v. State, 31 N.E.3d 17 (Ind. Ct. App. 2015) (finding consecutive sentences

       inappropriate and directing that two of the three sentences be served

       concurrently), trans. denied.


[25]   For the foregoing reasons, we affirm the trial court’s judgment in part, reverse

       in part, and remand with instructions to issue a revised sentencing order

       directing that Hampsch’s sentence in this case will be served concurrently with

       the sentence from Madison County in Lower Cause Number 48C03-1410-FB-

       1943.


[26]   Judgment affirmed in part, reversed in part, and remanded with instructions.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 42A01-1510-CR-1682 | May 9, 2016   Page 10 of 10
