MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                               Jul 14 2020, 9:24 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
R. Thomas Lowe                                            Curtis T. Hill, Jr.
Lowe Law Office                                           Attorney General
New Albany, Indiana
                                                          Josiah Swinney
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Erica D. Hemmingway,                                      July 14, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-1204
        v.                                                Appeal from the
                                                          Washington Circuit Court
State of Indiana,                                         The Honorable
Appellee-Plaintiff                                        Larry W. Medlock, Judge
                                                          Trial Court Cause No.
                                                          88C01-1708-FA-535



Vaidik, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1204 | July 14, 2020                   Page 1 of 8
                                           Case Summary
[1]   Erica D. Hemmingway appeals her sentence of thirty-eight years with three

      years suspended to probation for molesting her five-year-old son, arguing it is

      inappropriate. We affirm.



                            Facts and Procedural History
[2]   During the summer of 2007, twenty-three-year-old Hemmingway lived with her

      five-year-old son, C.C.; her one-year-old daughter; and her then-husband. Also

      during this summer, Hemmingway used meth and marijuana.


[3]   One day that summer, while her husband was at work, Hemmingway smoked

      marijuana and felt a “sex urge.” Appellant’s App. Vol. II p. 112. As her

      daughter slept, Hemmingway told C.C. to walk over to her. She pulled down

      her pants and told C.C. to place his foot on her genitals. She then “inserted

      [C.C.’s] foot inside her vagina” and moved “up and down” on C.C.’s inserted

      foot “until she had an orgasm.” Id. at 112-13. Hemmingway thought that if she

      did this with her young son, then “nobody would know about it.” Id. at 112.


[4]   For ten years, the offense went unreported. But in June 2017, fifteen-year-old

      C.C. was at a juvenile residential facility when he disclosed to an employee

      what his mother did to him when he was five years old. The police interviewed

      Hemmingway, and she admitted it.


[5]   The State charged Hemmingway with Class A felony child molesting and Class

      B felony incest. While she was incarcerated, Hemmingway wrote a letter to the
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1204 | July 14, 2020   Page 2 of 8
      trial court alleging that C.C. had lied when he disclosed what happened to him

      and that she had lied when she admitted to police she did it. However,

      Hemmingway later pled guilty to Class A felony child molesting in exchange

      for the dismissal of the incest charge and a sentence cap of forty years.


[6]   At the sentencing hearing, evidence was presented that although Hemmingway

      did not have an adult criminal history, she had a juvenile adjudication in 2000

      (when she was sixteen years old) for what would be Class C felony child

      molesting if committed by an adult. According to the PSI, Hemmingway, “on

      different occasions,” took her five-year-old nephew’s “hands, feet and penis and

      had him put them in her vagina. She also licked his penis.” Appellant’s App.

      Vol. II p. 85. Hemmingway was placed on probation and underwent

      counseling.


[7]   In addition, Hemmingway admitted that she lied when she wrote the letter to

      the trial court. The court found three aggravators: (1) Hemmingway did not

      lead a law-abiding life for a substantial period before this offense, as she used

      marijuana and meth1; (2) C.C. was less than twelve years old—“[a] mere

      child”—at the time of the offense; and (3) Hemmingway was in a position of

      trust with C.C. Id. at 126; Tr. p. 37. The court found two mitigators:




      1 The trial court listed this as an aggravator in its written order; however, based on the court’s oral sentencing
      statement, it appears the court was explaining why it wasn’t finding it as a mitigator as opposed to finding it
      as an aggravator. Defense counsel argued that one mitigator was that Hemmingway did not “have any adult
      convictions and has led a substantially law abiding life.” Tr. p. 29. In rejecting this mitigator, the trial court
      stated, “I will acknowledge that you have no recorded adult criminal history. But on the other hand, that
      doesn’t mean that you’ve led a law abiding life. You . . . acknowledged that you’ve used meth, marijuana
      and particularly the meth.” Id. at 36. Regardless, our inappropriate-sentence analysis is not affected.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1204 | July 14, 2020                          Page 3 of 8
      Hemmingway accepted responsibility and was remorseful. Finding that the

      aggravators outweighed the mitigators, the court sentenced Hemmingway to

      thirty-eight years, with thirty-five years to serve and three years suspended to

      probation.


[8]   Hemmingway now appeals her sentence.



                                 Discussion and Decision
[9]   Hemmingway contends that her sentence of thirty-eight years with three years

      suspended to probation is inappropriate and asks us to revise it under Indiana

      Appellate Rule 7(B) to thirty years, with twenty years to serve and ten years

      suspended to probation. Appellate Rule 7(B) provides that an appellate court

      “may revise a sentence 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.” “Whether a

      sentence is inappropriate ultimately turns on the culpability of the defendant,

      the severity of the crime, the damage done to others, and a myriad of other

      factors that come to light in a given case.” Thompson v. State, 5 N.E.3d 383, 391

      (Ind. Ct. App. 2014) (citing Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.

      2008)). Because we generally defer to the judgment of trial courts in sentencing

      matters, defendants must persuade us that their sentences are

      inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind. Ct. App. 2016).




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1204 | July 14, 2020   Page 4 of 8
[10]   A person who commits a Class A felony shall be imprisoned for a fixed term of

       between twenty to fifty years, with an advisory sentence of thirty years. Ind.

       Code § 35-50-2-4(a). Hemmingway’s plea agreement called for a sentencing cap

       of forty years, and the trial court sentenced her to an above-advisory term of

       thirty-eight years with three years suspended to probation.


[11]   As for the nature of the offense, Hemmingway claims that “on the spectrum of

       child molesting as an A felony, [her] act falls into the least offensive.”

       Appellant’s Br. p. 12. Without deciding where Hemmingway’s offense falls on

       the child-molesting spectrum, we find that the facts of this case are disturbing.

       Hemmingway molested her five-year-old son by inserting his foot in her vagina

       to satisfy her sexual urge. See Hamilton v. State, 955 N.E.2d 723, 727 (Ind. 2011)

       (noting that “[t]he younger the victim, the more culpable the defendant’s

       conduct” and that “[a] harsher sentence is . . . more appropriate when the

       defendant has violated a position of trust that arises from a particularly close

       relationship between the defendant and the victim, such as a parent-child . . .

       relationship”).


[12]   Even if the offense by itself does not justify an above-advisory sentence, the

       offense and Hemmingway’s character do. Although this is Hemmingway’s first

       adult conviction, when she was sixteen years old she had her five-year-old

       nephew put his hands, feet, and penis in her vagina. Despite counseling,

       Hemmingway—seven years later and high on marijuana—molested her five-

       year-old son in a similar manner. In addition, although Hemmingway admitted



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1204 | July 14, 2020   Page 5 of 8
       to police she molested her son, she later wrote a letter to the trial court accusing

       her son of lying about it.


[13]   Hemmingway directs us to three child-molesting cases where our appellate

       courts revised the defendants’ sentences. See Hamilton, 955 N.E.2d 723; Sanchez

       v. State, 938 N.E.2d 720 (Ind. 2010); Mishler v. State, 894 N.E.2d 1095 (Ind. Ct.

       App. 2008). However, these cases are distinguishable and do not support

       reducing Hemmingway’s thirty-eight-year sentence.


[14]   In Hamilton, the trial court sentenced the defendant to the maximum term of

       fifty years for one count of Class A felony child molesting for forcing his nine-

       year-old step-granddaughter to perform oral sex on him. On appeal, our

       Supreme Court revised the defendant’s sentence to thirty-five years because (1)

       the defendant wasn’t in a parent or stepparent relationship with the victim, (2)

       the victim, although young, was not of “tender years”; and (3) although the

       defendant had two convictions, they were “far removed in time from his current

       offense and unrelated to sexual misconduct in general.” Hamilton, 955 N.E.2d

       at 728. Here, the trial court sentenced Hemmingway to thirty-eight years, not

       the maximum term. In addition, Hemmingway molested her own son, who was

       just five years old, and engaged in a similar sex act with her five-year-old

       nephew seven years before this offense.


[15]   In Sanchez, the trial court sentenced the defendant to eighty years for three

       counts of Class A felony child molesting (forty years for each count, with two of

       the counts running consecutively) for digitally penetrating his two


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1204 | July 14, 2020   Page 6 of 8
       stepdaughters. 938 N.E.2d at 721. Our Supreme Court found that although the

       record “warrant[ed] imposing enhanced sentences,” it did not “support[]

       imposing consecutive sentences” in part because the defendant had an

       unrelated criminal history consisting of driving offenses. Id. at 722, 723. The

       Court revised the defendant’s sentence to thirty years for two of the counts and

       forty years for the third count, to be served concurrently, for an aggregate term

       of forty years. Sanchez does not support Hemmingway’s claim that her thirty-

       eight-year sentence should be revised given that she engaged in a similar sex act

       with her five-year-old nephew seven years before this offense.


[16]   Finally, in Mishler, the trial court sentenced the defendant to concurrent terms

       of fifty years for two counts of Class A felony child molesting for digitally

       penetrating and performing oral sex on his fiancée’s daughter when she was in

       second and fourth grade. This Court revised the defendant’s sentence to thirty-

       eight years, which is the same sentence that Hemmingway received. Even

       though the defendant molested the victim twice, Mishler doesn’t support

       reducing Hemmingway’s thirty-eight-year sentence given she molested her own

       son when he was just five years old. Hemmingway has failed to convince us

       that her thirty-eight-year sentence, which is two years below the cap she agreed

       to, is inappropriate and should be revised.2




       2
        Hemmingway takes issue with two of the aggravators: (1) she did not lead a law-abiding life for a
       substantial period of time before this offense due to her marijuana and meth use and (2) C.C. was less than
       twelve years old at the time of the offense. However, a trial court’s finding of aggravators and mitigators is


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1204 | July 14, 2020                        Page 7 of 8
[17]   Affirmed.


       May, J., and Robb, J., concur.




       reviewed only for an abuse of discretion, see Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007), clarified on
       reh’g, 875 N.E.2d 218 (Ind. 2007), and Hemmingway has not made an abuse-of-discretion argument. The
       State argues that Hemmingway waived this issue. See Appellee’s Br. p. 14. Hemmingway filed a reply brief
       but did not respond to the State’s waiver argument. Accordingly, we will not review the propriety of those
       aggravators.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1204 | July 14, 2020                         Page 8 of 8
