                                                                 FILED
MEMORANDUM DECISION                                         Jun 30 2016, 9:39 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jonathan D. Harwell                                      Gregory F. Zoeller
Harwell Legal Counsel LLC                                Attorney General of Indiana
Indianapolis, Indiana
                                                         Katherine Modesitt Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Donald Richardson,                                       June 30, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1510-CR-1633
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Sheila A. Carlisle,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G03-1405-FA-26793



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1633| June 30, 2016    Page 1 of 10
                                       Statement of the Case
[1]   Donald Richardson appeals his convictions for two counts of sexual

      misconduct with a minor, as Class A felonies; sexual misconduct with a minor,

      as a Class B felony; and criminal confinement, as a Class B felony; following a

      jury trial. Richardson presents the following issues for our review:

              1.      Whether the trial court abused its discretion when it
                      denied his motion to correct error based upon alleged
                      newly discovered evidence.

              2.      Whether the trial court abused its discretion when it
                      sentenced him.

              3.      Whether his sentence is inappropriate in light of the nature
                      of the offenses and his character.


      We affirm.


                                 Facts and Procedural History
[2]   During the evening of April 16, 2013, A.H., who was fifteen years old and eight

      months pregnant, was walking alone on a street in Indianapolis when a man

      later identified as Richardson ran up from behind her wielding a knife. A.H.

      attempted to run from Richardson, but she fell down. Richardson caught up to

      A.H. and grabbed her. A.H. started crying and asked Richardson not to hurt

      her because she was pregnant. Richardson told her to “shut up” and he forced

      her behind some bushes. Tr. at 208.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1633| June 30, 2016   Page 2 of 10
[3]   Richardson, still wielding the knife, told A.H. to pull down her pants, which

      she did. Richardson then told A.H. to lie down, which she did, and he

      proceeded to “put his tongue on [her] vagina.” Id. at 209. Then he pulled

      down his pants and told A.H. to “suck his penis,” and she unwillingly

      complied. Id. at 209-10. At some point, Richardson rubbed his penis with his

      own hand and achieved an erection. Richardson then told A.H. to “get up and

      bend over.” Id. at 211. Richardson “put his penis in [her] vagina.” Id. After a

      time, Richardson “got up and pulled up his pants, and he told [A.H.] to let

      [him] see [her] phone.” Id. at 212. She gave him her phone, and he “threw it.”

      Id. Richardson then ran from the scene.


[4]   A.H. got up, pulled up her pants, and found her phone. A.H. then walked to

      her mother-in-law’s house, and she explained to her mother-in-law, R.G., what

      had happened. R.G. telephoned A.H.’s mother, and an ambulance transported

      A.H. to a nearby hospital. At the hospital, a sexual assault nurse administered

      a rape kit, which involved swabbing A.H.’s vagina and anus. And the nurse

      observed an abrasion to A.H.’s right inner thigh and redness on her left knee.


[5]   A.H. talked to Indianapolis Metropolitan Police Department Detective David

      Everman and described where the rape had occurred. In the course of the

      ensuing investigation, A.H. worked with a sketch artist to create a composite

      sketch of Richardson. After unsuccessful leads based on the sketch, detectives

      “were able to develop [Richardson] as a suspect” in A.H.’s rape. Id. at 486.

      A.H. was unable to recognize him from photo arrays, but, after Richardson’s

      arrest, Richardson confessed to the rape. And forensic testing revealed the

      Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1633| June 30, 2016   Page 3 of 10
      presence of Richardson’s DNA in samples taken from A.H.’s vaginal/cervical

      swabs, external genital swabs, and A.H.’s underwear.1


[6]   The State charged Richardson with six counts of sexual misconduct with a

      minor, as Class A felonies; two counts of sexual misconduct with a minor, as

      Class B felonies; criminal confinement, as a Class B felony; intimidation, as a

      Class C felony; and criminal mischief, as a Class B misdemeanor. A jury found

      Richardson guilty of four counts of sexual misconduct with a minor, as Class A

      felonies; two counts of sexual misconduct with a minor, as Class B felonies; and

      criminal confinement, as a Class B felony.2 But the trial court entered judgment

      of conviction as follows: two counts of sexual misconduct with a minor, as

      Class A felonies; sexual misconduct with a minor, as a Class B felony; and

      criminal confinement, as a Class B felony. And the trial court sentenced

      Richardson to an aggregate executed term of sixty years.


[7]   Following trial, on August 27, 2015, Richardson filed a motion to correct error

      alleging that he “was denied a fair trial and was denied his Constitutional Right

      to effectively confront and cross-examine the witness because it was not

      discovered until after sentencing that John Wells wrote a letter of confession to




      1
       It is unclear from the parties’ briefs and the record whether Richardson confessed to the crimes before the
      DNA testing, and it is also unclear how Richardson became a suspect.
      2
          The State dismissed the intimidation charge.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1633| June 30, 2016               Page 4 of 10
this Court in the letter file marked July 6, 2015.” Appellant’s App. at 85. In

particular, in his motion, Richardson describes Wells’ letter as follows:


          The Confession explains how John Wells stole a used condom
          from the home of the Defendant on the date of the crime and
          used it in the assault on the victim resulting in the condom
          breaking and depositing semen on the victim. The Confession
          admits that John Wells is not circumcised.[3]


Id. at 86. The trial court denied that motion, finding and concluding in relevant

part as follows:

          5. From the Defendant’s motion and trial counsel’s affidavit, it
          appears that no efforts have been made to verify the authenticity
          of the letter or any of the information provided within. Nor does
          it appear that any effort has been made to interview, depose
          and/or obtain an affidavit from John Wells. As Mr.
          Wells is the sole basis for the Defendant’s Motion to Correct
          Error, a supporting affidavit from him is required to comply with
          Trial Rule 59(H). The affidavit of trial counsel does not satisfy
          the supporting affidavit requirement. See Joy v. State, 460 N.E.2d
          551 (Ind. Ct. App. 1984). Further, an affidavit based upon
          hearsay is insufficient to support a Motion to Correct Error. See
          Lemont v. State, 168 Ind. App. 496 (Ind. Ct. App. 1974); Jewell v.
          State, 624 N.E.2d 38 (Ind. Ct. App. 1993).

          6. WHEREFORE, inasmuch as the Defendant’s Motion to
          Correct Error does not comply with Indiana Trial Rule 59(H),
          the Defendant has failed to satisfy the 9-part test which is a
          prerequisite to obtaining a new trial in this case. There has been
          no showing that any information outside the record is worthy



3
    A.H. described her assailant’s penis as uncircumcised.


Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1633| June 30, 2016   Page 5 of 10
              of credit, would be available upon retrial[,] or that it would likely
              produce a different result. Therefore, the Motion to Correct
              Error based upon newly discovered evidence is hereby DENIED.


      Id. at 92. This appeal ensued.


                                     Discussion and Decision
                                  Issue One: Motion to Correct Error

[8]   Richardson first contends that the trial court abused its discretion when it

      denied his motion to correct error alleging that newly discovered evidence

      warranted a new trial. In order to obtain relief because of newly discovered

      evidence, the defendant must show that (1) the evidence has been discovered

      since the trial; (2) it is material and relevant; (3) it is not cumulative; (4) it is not

      merely impeaching; (5) it is not privileged or incompetent; (6) due diligence was

      used to discover it in time for trial; (7) the evidence is worthy of credit; (8) it can

      be produced on a retrial of the case; and (9) it will probably produce a different

      result. Webster v. State, 699 N.E.2d 266, 269 (Ind. 1998). The movant has the

      burden of showing that the newly discovered evidence meets all nine

      prerequisites for a new trial. Id. We will reverse the denial of a motion to

      correct error based on newly discovered evidence only for an abuse of

      discretion. Id. Although determining the credibility of witnesses is normally

      the function of the jury, when ruling on a motion for new trial based on newly

      discovered evidence the trial court must assess the credibility of any proffered

      new evidence. Id.



      Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1633| June 30, 2016   Page 6 of 10
[9]   Richardson maintains that the alleged newly discovered evidence “meets all

      nine (9) requirements” to warrant a new trial. Appellant’s Br. at 12. But

      Richardson’s contentions amount to a request that we reassess the evidence,

      which we will not do. The trial court concluded that the alleged newly

      discovered evidence failed to satisfy the final three prongs set out in Webster,

      namely, (7) the evidence is worthy of credit; (8) it can be produced on a retrial

      of the case; and (9) it will probably produce a different result. 699 N.E.2d at

      269. Regarding the “worthy of credit” prong, Richardson avers only that “[t]he

      evidence is worthy of credit as it has sufficient indicia of reliability that John

      Wells risked facing a more serious sentence and charges by admitting to this

      offense.” Appellant’s Br. at 12. Richardson does not address the trial court’s

      conclusion that Richardson had not made any showing that the letter allegedly

      written by a man named John Wells was authentic, and he does not contest the

      court’s conclusion that his attorney’s affidavit was insufficient to satisfy the

      supporting affidavit requirement of Trial Rule 59(H). And Richardson alleges,

      without any reference to evidence in the record, that “[t]he letter and the actual

      assailant, John Wells, can be produced upon retrial.” Appellant’s Br. at 12.

      And with regard to the final prong, Richardson states, without more, that

      “there can be no doubt on the enormous probable impact the confession would

      have upon retrial[.]” Id. Richardson has not demonstrated that the trial court

      abused its discretion when it denied his motion to correct error.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1633| June 30, 2016   Page 7 of 10
                            Issue Two: Abuse of Discretion in Sentencing

[10]   Richardson next contends that the trial court abused its discretion when it

       sentenced him. As our supreme court has made clear:


               sentencing decisions rest within the sound discretion of the trial
               court and are reviewed on appeal only for an abuse of
               discretion. . . . An abuse of discretion occurs if 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.


               One way in which a trial court may abuse its discretion is failing
               to enter a sentencing statement at all. Other examples include
               entering a sentencing statement that explains reasons for
               imposing a sentence—including a finding of aggravating and
               mitigating factors if any—but the record does not support the
               reasons, or the sentencing statement omits reasons that are
               clearly supported by the record and advanced for consideration,
               or the reasons given are improper as a matter of law. Under
               those circumstances, remand for resentencing may be the
               appropriate remedy 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 v. State, 868 N.E.2d 482, 490-91 (Ind. 2007) (internal quotation marks

       and citations omitted), clarified on reh’g, 875 N.E.2d 218.


[11]   Richardson maintains that the trial court abused its discretion when it

       considered A.H.’s young age as an aggravating factor. Richardson is correct

       that, in general, when the victim’s age comprises a material element of a crime,

       it may not also support an enhanced sentence. Reynolds v. State, 575 N.E.2d 28,


       Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1633| June 30, 2016   Page 8 of 10
32 (Ind. Ct. App. 1991). However, a trial court may properly consider the

particularized circumstances of the factual elements, including a victim’s age, as

aggravating circumstances. See Stewart v. State, 531 N.E.2d 1146, 1150 (Ind.

1988). Here, at sentencing, the trial court stated in relevant part as follows:


        The crime that you’ve been convicted of, sir, are the type of
        offenses that are a woman’s worst nightmare. That she would be
        on a street alone at night and have someone run up behind her
        with a knife and put it to her throat, drag her behind a building,
        make her take her clothes off so that he could force sexual
        intercourse on her and other sex acts on her body is troubling
        enough. But you did this to a 15-year-old girl who was pregnant
        at the time.

        And the evidence, first of all, indicates that she was at least eight
        months pregnant at the time and that you were told she was
        pregnant. But nonetheless, even if you weren’t, there would be
        no way you wouldn’t have been able to figure that out when you
        attacked her.

        The Court also does recognize that being pregnant and being 15
        years old and going through that situation is traumatic enough.
        Being pregnant and—at that age is traumatic enough. But to
        have to experience this while you’re so close to delivering a child
        adds another whole level of trauma that apparently is hard for
        her to recover from.


Tr. at 660-61. We hold that the trial court did not improperly consider A.H.’s

age as an aggravator but, rather, appropriately considered her age as part of the

particularized circumstances of the crimes as an aggravator. If anything, the

trial court stressed A.H.’s advanced pregnancy as a particularly egregious factor



Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1633| June 30, 2016   Page 9 of 10
       supporting an enhanced sentence more than her youth. The trial court did not

       abuse its discretion when it sentenced Richardson.


                                       Issue Three: Appellate Rule 7(B)

[12]   Finally, Richardson contends that his sentence is inappropriate in light of the

       nature of the offenses and his character. However, Richardson has not

       presented cogent argument under Appellate Rule 7(B). In particular, rather

       than addressing the nature of the offenses and his character, Richardson merely

       argues that the trial court failed to give enough mitigating weight to certain

       proffered mitigators.4 Richardson has waived review of his sentence under

       Appellate Rule 7(B).


[13]   Affirmed.


       Robb, J., and Crone, J., concur.




       4
         We note that it is well settled that the trial court “no longer has any obligation to ‘weigh’ aggravating and
       mitigating factors against each other when imposing a sentence, . . . [and] a trial court cannot now be said to
       have abused its discretion in failing to ‘properly weigh’ such factors.” Anglemyer, 868 N.E.2d at 491. Thus,
       even if Richardson had made this argument in the context of an alleged abuse of discretion, we would not
       address it.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1633| June 30, 2016               Page 10 of 10
