MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                       Feb 26 2016, 8:54 am
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
Lawrence M. Hansen                                        Gregory F. Zoeller
Hansen Law Firm, LLC                                      Attorney General of Indiana
Noblesville, Indiana
                                                          Larry D. Allen
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Derrick Hampsch,                                         February 26, 2016

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A05-1507-CR-979
        v.                                               Appeal from the Madison Circuit
                                                         Court.
                                                         The Honorable Thomas Newman,
State of Indiana,                                        Jr., Judge.
Appellee-Plaintiff.                                      Cause No. 48C03-1410-FB-1943




Friedlander, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 48A05-1507-CR-979 | February 26, 2016   Page 1 of 14
[1]   Derrick Hampsch appeals the twenty-year sentence the trial court imposed for
                                                                                                                 1
      Hampsch’s conviction of sexual misconduct with a minor, a Class B felony.

      We affirm.


[2]   Hampsch worked for a church in Knox County. He was a youth minister, and

      G.D., a thirteen-year-old, was a member of his youth group. G.D.’s parents

      informed Hampsch that G.D. had a crush on him, expecting that he would

      address the matter appropriately. Hampsch began paying “special attention” to

      G.D. Tr. p. 37. When he came to school to have lunch with members of his

      youth group, he sat next to G.D. and put his knee against her leg. On other

      occasions, he hugged her and squeezed her shoulders in a way “that might not

      have seemed out of place to other people but they were personal to [G.D.].” Id.

      at 39. In addition, Hampsch communicated daily with G.D. via Facebook’s

      private messaging application. He had a joint Facebook account with his wife,

      but he created a secret account to communicate with G.D.


[3]   Hampsch also gave G.D. special treatment. He encouraged her to sing with the

      church band and praised her for leading a youth group program in which the

      group’s members called elderly people to talk with them.




      1
        Ind. Code section 35-42-4-9 (West, Westlaw 2007). The version of the governing statute, i.e., Ind. Code §
      35-42-4-9, in effect at the time this offense was committed classified it as a Class B felony. This statute has
      since been revised and in its current form reclassifies the offense as a Level 4 felony. See Ind. Code § 35-42-4-
      9 (West, Westlaw current with all 2015 First Regular Session of the 119th General Assembly legislation
      effective through June 28, 2015). The new classification, however, applies only to offenses committed on or
      after July 1, 2014. See id. Because this offense was committed prior to that date, it retains the former
      classification.

      Court of Appeals of Indiana | Memorandum Decision 48A05-1507-CR-979 | February 26, 2016             Page 2 of 14
[4]   Hampsch’s conduct made G.D. feel “loved and desirable” and “more special

      than all of the other kids in the youth group.” Id. at 42. As a result, G.D. felt

      as though she fell in love with Hampsch.


[5]   In April 2010, Hampsch and his youth group traveled to a church in Madison

      County, Indiana to attend a conference. G.D., who had turned fourteen, was

      part of the group. After everyone else had gone to sleep, Hampsch and G.D.

      met in a large closet. Hampsch inserted his finger into G.D.’s vagina and made

      her fondle his penis.


[6]   Hampsch continued to have sexual contact with G.D. after they returned to

      Knox County. On one occasion, Hampsch and G.D. were at a church camp.

      He arranged for them to meet in the offices of another church, where they

      fondled each other. On yet another occasion, Hampsch interrupted G.D. while

      she was making calls to the elderly from church, led her into a pantry, and
                                        2
      removed her shirt and bra.


[7]   Hampsch’s sexual activities with G.D. caused her to feel shame and anxiety.

      She felt like she “let it happen” and that it was her fault. Id. at 42. She

      experienced nightmares and had trouble eating. Later, she realized Hampsch

      had used his position of authority to manipulate her when she was “at an




      2
       Hampsch has a pending appeal arising from an act of sexual misconduct with G.D. in Knox County.
      Hampsch v. State, 42A01-1510-CR-1682.

      Court of Appeals of Indiana | Memorandum Decision 48A05-1507-CR-979 | February 26, 2016    Page 3 of 14
       incredible [sic] fragile time in [her] life” and she was looking for her “place in

       the world.” Id. at 45.


[8]    At the time of Hampsch’s sentencing hearing, five years after his criminal act,

       G.D. still felt “violated and uncomfortable” when an older man touched her.

       Id. at 46. For several years, she had difficulty allowing her father to hug her. In

       addition, G.D. took steps to ensure that she was never alone with an older man.

       She stated that she no longer had confidence in church employees because she

       found herself wondering “if they are truly who they say they are.” Id. She

       sought counseling to deal with ongoing feelings of shame and believed the

       emotional trauma Hampsch caused would always be with her.


[9]    The current case began when G.D. learned from others that Hampsch was

       under investigation “for having inappropriate relationships with girls from

       youth [group]” and spoke with the police. Id. at 45. G.D. was aware Hampsch

       had communicated with another teenage girl and had told the girl to delete his

       messages to her.


[10]   The State charged Hampsch with one count of B felony sexual misconduct with

       a minor for his acts involving G.D. at the church conference in Madison

       County. Hampsch and the State executed a plea agreement. Hampsch agreed

       to plead guilty as charged, and the sentence would be left to the trial court’s

       discretion. The court accepted the plea agreement and scheduled a sentencing

       hearing.




       Court of Appeals of Indiana | Memorandum Decision 48A05-1507-CR-979 | February 26, 2016   Page 4 of 14
[11]   At sentencing, the trial court identified the following mitigating factors: (1)

       Hampsch’s lack of a criminal record; (2) Hampsch’s remorse; (3) Hampsch’s

       guilty plea; (4) hardship to Hampsch’s three children; and (5) Hampsch’s intent

       to serve others in the future by opening an orphanage in Honduras. The court

       identified the following aggravating factors: (1) Hampsch’s explanation that he

       seduced G.D. because he was upset that his wife was having an affair; (2)

       Hampsch’s “repeated conduct with the victim,” Id. at 61; and (3) Hampsch’s

       abuse of his position of trust as a youth minister, which damaged G.D.

       “probably for the rest of their [sic] life.” Id. Concluding that “the aggravating

       circumstances greatly out weight [sic] the mitigating circumstances,” the court

       sentenced Hampsch to twenty years. Id. This appeal followed.


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

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

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

       nature of the offense and the character of the offender.


                                                         1.
[13]   Hampsch argues that the trial court overlooked numerous mitigating factors

       during sentencing. Sentencing decisions rest within the sound discretion of the

       trial court and are reviewed on appeal only for an abuse of discretion. Barnhart

       v. State, 15 N.E.3d 138 (Ind. Ct. App. 2014). An abuse of discretion occurs if

       the decision is clearly against the logic and effect of the fact and circumstances

       before the court, or the reasonable, probable and actual deductions to be drawn


       Court of Appeals of Indiana | Memorandum Decision 48A05-1507-CR-979 | February 26, 2016   Page 5 of 14
       therefrom. Westlake v. State, 987 N.E.2d 170 (Ind. Ct. App. 2013). A trial court

       may abuse its discretion by failing to enter a sentencing statement, entering a

       sentencing statement that explains reasons for imposing a sentence which the

       record does not support, omitting reasons that are clearly supported by the

       record and advanced for consideration, or giving reasons that are improper as a

       matter of law. Id.


[14]   An allegation that the trial court failed to identify or find a mitigating factor

       requires the defendant to establish that the mitigating evidence is both

       significant and clearly supported by the record. Id. A trial court is not

       obligated to accept the defendant’s argument as to what constitutes a mitigating

       factor. Rogers v. State, 958 N.E.2d 4 (2011).


[15]   Hampsch claims the trial court overlooked his lack of a criminal record, the

       hardship to his dependents that will result from his incarceration, and his guilty

       plea. We disagree. The trial court identified those factors as mitigating

       circumstances. To the extent Hampsch asserts that the trial court should have

       given greater weight to those factors, we note that trial courts have no

       obligation to explicitly weigh aggravating and mitigating factors. Williams v.

       State, 997 N.E.2d 1154 (Ind. Ct. App. 2013). Consequently, the weight a trial

       court assigns to each factor is not reviewable for abuse of discretion. Id.


[16]   Next, Hampsch claims he accepted responsibility for his crime and the court

       should have found his acceptance to be a mitigating factor. The record

       demonstrates otherwise. Although Hampsch pleaded guilty, which often


       Court of Appeals of Indiana | Memorandum Decision 48A05-1507-CR-979 | February 26, 2016   Page 6 of 14
       demonstrates acceptance of responsibility, he also attempted to blame his

       criminal conduct on emotional turmoil resulting from his wife’s affair.

       Furthermore, as Hampsch told the court, he “misinterpreted a girl’s crush on

       me.” Tr. p. 49. The record does not clearly support his claim that he accepted

       responsibility, and the trial court did not abuse its discretion in rejecting this

       mitigating factor.


[17]   Hampsch further argues that the trial court should have considered that he is

       likely to respond positively to probation or short-term imprisonment. The

       record reflects that Hampsch groomed G.D. over a period of months, engaged

       in sexual misconduct with her on several occasions, and after their relationship

       ended, concealed his crimes for four years. The record further indicates that on

       one occasion, when the parents of an eighteen-year-old asked Hampsch to

       counsel her in private about sexual morality, he asked her “if she liked giving

       blowjobs.” Appellant’s Confidential App. p. 39. He told her, “I love them!”

       Id. In addition, Hampsch told another church member that he had influence

       over the member’s granddaughter and could “turn her against [the member].”

       Id. at 48. G.D. told the court that she knew Hampsch had sent messages to

       another girl and had told the girl to delete the messages. Finally, a girl in the

       youth group received inappropriate texts from Hampsch that left her feeling

       “violated, confused, dirty, ashamed, and very broken hearted.” Id. at 45.

       Based on this record, the court was within its discretion to determine that a

       lengthy sentence was necessary for Hampsch to change his criminal conduct

       and refrain from illegal activities with teenage girls.


       Court of Appeals of Indiana | Memorandum Decision 48A05-1507-CR-979 | February 26, 2016   Page 7 of 14
[18]   Hampsch also claims the court ignored the following factors: (1) the crime was

       the result of circumstances unlikely to recur; and (2) Hampsch’s character and

       attitude indicate that he is unlikely to commit another crime. Hampsch did not

       present these mitigating factors to the trial court. Failure to present mitigating

       factors to the trial court waives consideration of the factors on appeal. Bryant v.

       State, 984 N.E.2d 240 (Ind. Ct. App. 2013), trans. denied.


[19]   Hampsch has failed to demonstrate that the trial court abused its discretion in

       identifying aggravating and mitigating circumstances.


                                                         2.
[20]   Hampsch argues that his twenty-year sentence is inappropriate because he is not

       the “worst of the worst.” Appellant’s Br. p. 22. Article VII, section four of the

       Indiana Constitution authorizes Indiana’s appellate courts to review and revise

       sentences. That authority is carried out through Indiana Appellate Rule 7(B),

       which allows an appellate court to revise a sentence that is 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.”


[21]   The principal role of appellate review under Rule 7(B) is to attempt to leaven

       the outliers, not to achieve a perceived “correct” result in each case. Garner v.

       State, 7 N.E.3d 1012, 1015 (Ind. Ct. App. 2014). Thus, the key question is not

       whether another sentence is more appropriate, but whether the sentence

       imposed in the instant case is inappropriate. Williams, 997 N.E.2d 1154.

       Court of Appeals of Indiana | Memorandum Decision 48A05-1507-CR-979 | February 26, 2016   Page 8 of 14
[22]   It is the defendant’s burden to persuade us that the sentence is inappropriate.

       Id. Whether a sentence is inappropriate depends upon the culpability of the

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

       other circumstances that are present in a given case. Harman v. State, 4 N.E.3d

       209 (Ind. Ct. App. 2014), trans. denied. Thus, when assessing the nature of the

       offense and the character of the offender, we may look to any factors appearing

       in the record. Thompson v. State, 5 N.E.3d 383 (Ind. Ct. App. 2014).


[23]   “When considering the nature of the offense, the advisory sentence is the

       starting point to determine the appropriateness of a sentence.” Johnson v. State,

       986 N.E.2d 852, 856 (Ind. Ct. App. 2013). At the time Hampsch committed his

       crime, the advisory sentence for a Class B felony was ten years, with a

       maximum sentence of twenty years and a minimum sentence of six years. Ind.

       Code § 35-50-2-5 (West, Westlaw 2005). The trial court imposed the maximum

       sentence of twenty years.


[24]   Turning to the nature of the offense, Hampsch began grooming a thirteen-year-

       old for sexual intimacy. G.D. was at a fragile point in her life and looked to

       Hampsch, her church’s youth group leader, for guidance as she navigated

       through adolescence. G.D.’s parents advised Hampsch that she had a crush on

       him, hoping that he would address her feelings in an appropriate manner.


[25]   Instead, Hampsch singled G.D. out for special treatment and communicated

       with her through a private messaging system that he hid from his wife. He

       hugged and touched her in ways that made her feel desired and special.


       Court of Appeals of Indiana | Memorandum Decision 48A05-1507-CR-979 | February 26, 2016   Page 9 of 14
       Hampsch also manipulated G.D. through her youth and her religious faith to

       make her feel as though she was in love with him. Ultimately, during a church

       trip where fourteen-year-old G.D. was separated from her family, Hampsch

       arranged for G.D. to meet him in a closet after everyone else had fallen asleep.

       He inserted his finger in her vagina and made her fondle his penis. She told the

       police that she was “caught by surprise” by his actions because she was

       unaware that there was sexual conduct other than “kissing and sex.”

       Appellant’s Confidential App. p. 19.


[26]   Hampsch violated his position of trust as a supervisory adult and a religious

       leader with respect to G.D. In addition, his crime had severe deleterious effects

       upon G.D. above and beyond what might be expected of a minor who was

       sexually and emotionally abused. While their relationship was ongoing, she felt

       shame and anxiety and had trouble eating and sleeping. G.D. was still in

       counseling five years later and reported that she did not trust older men and

       avoided being alone with them. She expects to carry the trauma with her

       throughout her life.


[27]   Hampsch claims that his sentence will place an undue hardship on his family.

       Many persons convicted of serious crimes have one or more children, and

       absent special circumstances, trial courts are not required to find that

       imprisonment will result in undue hardship. Reese v. State, 939 N.E.2d 695 (Ind.

       Ct. App. 2011), trans. denied. Although Hampsch’s wife will have to go back to

       work to support the family, the record is devoid of special circumstances that



       Court of Appeals of Indiana | Memorandum Decision 48A05-1507-CR-979 | February 26, 2016   Page 10 of 14
       would pose an unusually severe hardship to their children and render his

       sentence inappropriate.


[28]   Turning to the character of the offender, Hampsch was a married thirty-four-

       year-old father of three at the time of sentencing. He correctly notes that he has

       no criminal record, but his lack of a formal record is more than offset by his

       grooming of, and repeated sexual contact with, G.D. In addition, the record

       reflects that Hampsch had inappropriate, private communications with other

       teenage girls in his care. Under these circumstances, it is difficult to dismiss his

       misconduct with G.D. as an isolated incident unlikely to recur.


[29]   Hampsch expressed remorse at his sentencing hearing, but he had kept silent

       about his crime for four years, leaving G.D. to suffer in silence under the effects

       of his misconduct. Furthermore, although Hampsch accepted responsibility for

       his crime to a certain extent by pleading guilty, he also tried to blame his wife’s

       affair for his misconduct.


[30]   Hampsch has failed to demonstrate that his twenty-year sentence is

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


[31]   For the reasons stated above, we affirm the judgment of the trial court.


[32]   Judgment affirmed.


       Kirsch, J., concurs.


       Brown, J., dissents with separate opinion.


       Court of Appeals of Indiana | Memorandum Decision 48A05-1507-CR-979 | February 26, 2016   Page 11 of 14
                                                  IN THE
            COURT OF APPEALS OF INDIANA

       Derrick Hampsch,                                          Court of Appeals Case No.
                                                                 48A05-1507-CR-979
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Brown, Judge, dissenting.

[33]   I respectfully dissent from the majority opinion that Hampsch’s sentence is not

       inappropriate in light of the nature of the offense and his character. Hampsch

       was convicted of a class B felony and was sentenced to twenty years executed in

       the Department of Correction, which was the maximum sentence the trial court

       was able to impose. Hampsch argues that he is not the “worst of the worst” of

       offenders. Amended Appellant’s Brief at 22. The Indiana Supreme Court has

       determined that the maximum possible sentence should be reserved for the

       worst offenders and offenses. See Buchanan v. State, 767 N.E.2d 967, 974 (Ind.

       2002). This court has stated that, in determining whether a case is among the

       very worst of offenses and a defendant among the very worst offenders, “[w]e

       should concentrate less on comparing the facts of this case to others, whether

       real or hypothetical, and more on focusing on the nature, extent, and depravity

       Court of Appeals of Indiana | Memorandum Decision 48A05-1507-CR-979 | February 26, 2016   Page 12 of 14
       of the offense for which the defendant is being sentenced, and what it reveals

       about the defendant’s character.” Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct.

       App. 2002).


[34]   While Hampsch violated his position of trust to commit the offense and the

       victim suffers from emotional trauma, the offense did not involve the use of

       violence and did not result in any physical injuries. Moreover, Hampsch pled

       guilty in this cause pursuant to a plea agreement which left sentencing open to

       the court, and the presentence investigation report (“PSI”) shows that, other

       than the pending case in Knox County, Hampsch had no prior criminal history.

       The PSI further provides that then thirty-four year old Hampsch, is the father of

       three children, then ages five, eight, and nine years old, and that he is at a low

       risk to reoffend under the Indiana Risk Assessment System Community

       Supervision Tool.


[35]   For the foregoing reasons, I would find Hampsch’s sentence is inappropriate

       and reduce his sentence to the advisory term of ten years. See Francis v. State,

       817 N.E.2d 235, 238-239 (Ind. 2004) (concluding with respect to the

       defendant’s conviction for child molesting as a class A felony that a sentence of

       thirty years, rather than the maximum fifty-year sentence imposed by the trial

       court, was the appropriate sentence in light of the nature of the offense and the

       character of the offender where the defendant’s criminal history was minimal,

       the age of the victim had been taken into account to an extent by the class of the

       felony, and the defendant pled guilty); Asher v. State, 790 N.E.2d 567, 572 (Ind.

       Ct. App. 2003) (holding that the defendant was not “the very worst offender”

       Court of Appeals of Indiana | Memorandum Decision 48A05-1507-CR-979 | February 26, 2016   Page 13 of 14
because of his lack of criminal history and reducing the defendant’s maximum

sentence of three years for child seduction as a class D felony to a term of one

year); cf. Kocielko v. State, 938 N.E.2d 243, 255-256 (Ind. Ct. App. 2010)

(holding that the defendant’s maximum sentence of twenty years for sexual

battery as a class B felony was not inappropriate where the defendant

sodomized the victim and, after several days of pain, the victim was required to

seek medical treatment for an anal fissure; the defendant had an extensive

criminal history, had violated probation on numerous occasions, and was on

probation at the time of the offense; and, once incarcerated, the defendant

threatened to kill the victim and her mother), reh’g granted on other grounds, 943

N.E.2d 1282 (Ind. Ct. App. 2011), trans. denied.




Court of Appeals of Indiana | Memorandum Decision 48A05-1507-CR-979 | February 26, 2016   Page 14 of 14
