MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            May 23 2019, 10:39 am
court except for the purpose of establishing                              CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr.                                  Curtis T. Hill, Jr.
Deputy Public Defender                                  Attorney General of Indiana
Fort Wayne, Indiana
                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Jared L. Haynes,                                        May 23, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-2657
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable Frances C. Gull,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        02D05-1804-F1-5



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2657 | May 23, 2019                  Page 1 of 18
                                             Case Summary
[1]   A jury convicted Jared L. Haynes of level 1 felony rape of a severely disabled

      woman. He appeals his conviction, challenging the admissibility of certain

      statements to medical providers and information provided by a sign language

      interpreter. He also appeals his forty-year executed sentence, claiming that it is

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

      challenging his designation as a credit-restricted felon. Finding that the trial

      court erred by including an entry listing Haynes as a credit-restricted felon, we

      remand with instructions to correct that error. In all other respects, we affirm.


                                 Facts and Procedural History
[2]   A.F. is a young adult who was diagnosed with cerebral palsy shortly after her

      birth. She was declared incompetent by a court and is under the guardianship

      of her sister, Trista Morrow, with whom she lives. She has an IQ of 40, the

      overall developmental skills of a five-year-old, and the communication skills of

      a three-year-old. Her left hand is completely deformed due to the cerebral

      palsy, and she communicates primarily through sign language, cooing noises,

      and the limited printing of letters/words.


[3]   Haynes has been best friends with A.F.’s father for decades and was always

      known by A.F. and Morrow as “Uncle Jared.” Tr. Vol. 2 at 145-46. He has

      known the sisters for their entire lives and helped A.F. learn to walk. His

      involvement with the family decreased as the sisters grew, but they continued to

      see him approximately every other month or at family gatherings.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2657 | May 23, 2019   Page 2 of 18
[4]   In April 2018, Haynes was homeless and asked Morrow if he could sleep at her

      house, take a shower, and do laundry. She agreed, and he slept on the sofa

      while she worked the midnight shift. The next morning, when Haynes left, he

      told her that he would contact her later in the day. He did, and she agreed to

      feed him dinner at her house. When Haynes arrived at 7:00 p.m., he told

      Morrow that he was going to run to the gas station two blocks from her house

      to buy a soda. He asked if he could take twenty-eight-year-old A.F. with him,

      and Morrow agreed, expecting them to return in about five minutes.


[5]   Haynes did not take A.F. to the gas station. Instead, he took her to a park,

      stopped his pickup, bound her hands, and removed her clothing. He penetrated

      her vagina and, despite her objections, continued to perform sexual intercourse

      until he ejaculated and she bled. He pointed what appeared to be a handgun at

      her head and threatened to kill both her and Morrow if she told anyone.


[6]   Meanwhile, Morrow became concerned about A.F. and texted Haynes.

      Though initially he did not respond, Haynes later texted Morrow and indicated

      that he and A.F. were still at the gas station. Morrow continued to wait, and

      when Haynes and A.F. still did not return, she called Haynes, who told her that

      he had taken A.F. for ice cream. He indicated that he would have A.F. home

      in fifteen to twenty minutes. When another twenty minutes elapsed, the

      increasingly concerned Morrow texted Haynes, who failed to respond. She

      then called him, and he said that they were “right around the corner” and

      abruptly ended the call. Id. at 152. By this time, A.F. had missed her 8:00 p.m.

      dose of anti-seizure medication, so Morrow sent Haynes a text indicating that

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2657 | May 23, 2019   Page 3 of 18
      A.F. needed to take her medication. When he failed to respond, she texted him

      that she was calling the police. She attempted to call him again, but his phone

      went straight to voicemail.


[7]   After a total of three and a half hours, Morrow saw Haynes circle the block

      twice. Haynes eventually stopped, shoved A.F. out of his truck, and “raced out

      of there … like a bat out of hell.” Id. at 158, 187. The disheveled A.F. was

      crying and shaking as she tried to communicate to Morrow what Haynes had

      done to her. Her pants were twisted and bloody, her bra was unfastened, her

      shoes were untied, and her sock was missing. Her wrists were red, and she

      indicated to Morrow that Haynes had tied her hands.


[8]   Shortly after the police arrived, A.F. was transported by ambulance to a local

      hospital. After her initial treatment, she was transferred to a sexual assault

      center. An independent sign language interpreter was called in to facilitate

      communication between A.F. and medical personnel. Sexual assault nurse

      Sarah Coburn performed a medical examination, and swabs of A.F.’s genitals

      and anus were sent to the Indiana State Police Laboratory. The DNA test

      results were consistent with Haynes’s DNA. Police subsequently searched

      Haynes’s truck pursuant to a search warrant. The search produced rope, a ball

      of twine and cords, two machetes, and a pistol that turned out to be a BB gun.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2657 | May 23, 2019   Page 4 of 18
[9]   The State charged Haynes with level 1 felony rape and level 3 felony rape.

      During his jury trial, the trial court admitted, over his hearsay objection, 1 Nurse

      Coburn’s testimony and medical examination notes, some of which include

      A.F.’s statements as communicated to Coburn by the sign language interpreter.

      These notes, read into evidence by Coburn, read as follows:


                Patient communicates by using sign language, ASL interpreter
                present. “He drove over, just me and him drive around. He tied
                my wrist. Shoelace. He pulled my pants down. He smacked me
                in the face.” I clarified patient points to right cheek. Patient then
                again is stating through the interpreter, “I pushed him. I asked
                him to drive me home. I talked. He put his finger on my mouth.
                I told him don’t. He had a gun under the seat. He pushed me.
                He said he would get us soda, but we didn’t. He took my pants
                off and underwear.” She – again I clarified and she denied that a
                condom was used. She clarifies penis in vagina. “It was big.
                Kissed my cheek and forehead, kissed neck,” patient clarified by
                pointing to right neck. Positive ejaculation. “I saw Sam pull up
                in the car. Jared said he would shoot me and Trista in the head.
                Jared got out of the car and kicked me and pushed me out of the
                car. He said, ‘Come on.’ He pointed the gun at my stomach.
                When we got home, he took the shoelace off. He smoked and he
                tried to give it to me. I was in the front seat of the truck. I was
                on my back and he was on my stomach. He pulled off by the
                river.” And then I clarified with A.F. and she indicated that she
                had vaginal pain and vaginal bleeding.


      Tr. Vol. 3 at 31-32.




      1
          Haynes also objected on grounds of bolstering. He does not appeal his bolstering claim.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2657 | May 23, 2019                  Page 5 of 18
[10]   The jury convicted Haynes as charged. At sentencing, the trial court merged

       the level 3 felony conviction into the level 1 felony conviction and sentenced

       Haynes to forty years executed. Haynes now appeals his conviction and

       sentence. Additional facts will be provided as necessary.


                                      Discussion and Decision

       Section 1 – Haynes waived consideration of his claim that the
       trial court erred in admitting A.F.’s statements to her medical
                provider through a sign language interpreter.
[11]   Haynes challenges the trial court’s admission of A.F.’s statements to Nurse

       Coburn, made through a sign language interpreter, during her sexual assault

       examination. We review evidentiary rulings for an abuse of discretion resulting

       in prejudicial error. Williams v. State, 43 N.E.3d 578, 581 (Ind. 2015). An abuse

       of discretion occurs when the trial court’s ruling is either clearly against the

       logic and effect of the facts and circumstances before it or the court

       misinterprets the law. Id. In determining whether improperly admitted

       evidence has prejudiced the defendant, we assess the probable impact of that

       evidence on the jury in light of all the other properly admitted evidence. Id. If

       independent, properly admitted evidence of guilt supports the conviction, the

       error is harmless. Id.


[12]   During Haynes’s trial, the State introduced Nurse Coburn’s testimony

       concerning A.F.’s medical history as well as her medical examination notes that

       included statements by A.F. during her medical examination at the sexual

       assault treatment center. Haynes objected on hearsay grounds. Hearsay is an
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2657 | May 23, 2019   Page 6 of 18
out-of-court statement offered to prove the truth of the matter asserted. Ind.

Evidence Rule 801(c). Hearsay is generally inadmissible, subject to certain

exceptions. Ind. Evidence Rule 802; Harrison v. State, 32 N.E.3d 240, 254 (Ind.

Ct. App. 2015), trans. denied. “One such exception generally permits statements

made for the purpose of medical diagnosis or treatment to be admitted into

evidence, even when the declarant is available. Ind. Evidence Rule 803(4).”

VanPatten v. State, 986 N.E.2d 255, 260 (Ind. 2013). Rule 803(4) requires that

the statements be “made by a person seeking medical diagnosis or treatment;”

who made the statement “for—and reasonably pertinent to—medical diagnosis

and treatment; … and [whose statement] describes medical history; or past or

present symptoms, pain, or sensations; their inception; or their general cause.”

This exception is based on the “belief that the declarant’s self-interest in

obtaining proper medical treatment makes such a statement reliable enough for

admission at trial.” VanPatten, 986 N.E.2d at 260. In other words, the medical

diagnosis and treatment exception is predicated on the notion that “people are

unlikely to lie to their doctors because doing so might jeopardize their

opportunity to be made well.” Id. In analyzing the admissibility of statements

under this exception, we employ a two-step analysis: (1) “is the declarant

motivated to provide truthful information in order to promote diagnosis and

treatment;” and (2) “is the content of the statement such that an expert in the

field would reasonably rely on it in rendering diagnosis or treatment.” Id.

(quoting McClain v. State, 675 N.E.2d 329, 331 (Ind. 1996)).




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2657 | May 23, 2019   Page 7 of 18
[13]   Haynes concedes the second prong and challenges only the first, claiming that

       the State failed to establish that A.F. was motivated to be truthful in order to

       promote treatment or diagnosis. See VanPatten, 986 N.E.2d at 260 (to establish

       the first prong, “the declarant must subjectively believe that he was making the

       statement for the purpose of receiving medical diagnosis or treatment.”) The

       VanPatten court explained that while determining subjective belief is relatively

       simple with adult declarants, the determination is much more difficult where

       the declarant is a young child and might lack the ability to link truthful

       responses with medical treatment. Id. at 261. In such cases, the proponent

       must present foundational evidence to affirm that the child understood the

       medical provider’s role. Id.


[14]   Haynes analogizes A.F. to a young child, due to her severe developmental

       disabilities, and now argues that her statements were inadmissible without an

       additional foundation to show that she had the ability to understand the link

       between truthful answers and medical treatment. “[A]n objection asserting a

       lack of adequate foundation must be made at the time the foundation is being

       laid.” Marlatt v. State, 715 N.E.2d 1001, 1002 (Ind. Ct. App. 1999). Haynes

       made no such objection at trial. As such, he has waived this claim for review.

       Id. 2




       2
          Even so, we note the State’s observation that as a twenty-eight-year-old adult with a lifetime of health
       issues, A.F. “would inevitably have had extensive experience speaking to medical professionals, making her
       unlike most small children to which the concerns that motivated VanPatten’s requirements apply.” Appellee’s
       Br. at 18. We agree that A.F. does not fit neatly into the category of a child declarant for purposes of

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2657 | May 23, 2019                   Page 8 of 18
              Section 2 – Haynes has failed to demonstrate that the
             admission of the sign language interpreter’s statements
                         constituted fundamental error.
[15]   Haynes also contends that he was denied his constitutional right to confront

       and cross-examine the sign language interpreter, who did not testify at trial.

       Because he failed to object on this basis at trial, he now raises it as fundamental

       error. “[A] claim waived by a defendant’s failure to raise a contemporaneous

       objection can be reviewed on appeal if the reviewing court determines that a

       fundamental error occurred.” Delarosa v. State, 938 N.E.2d 690, 694 (Ind. 2010)

       (citation omitted). Fundamental error is an extremely narrow exception to the

       waiver rule and exists only where the trial court’s errors are so prejudicial that

       they make a fair trial impossible. Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014).

       The fundamental error doctrine “applies only when the error constitutes a

       blatant violation of basic principles, the harm or potential for harm is

       substantial, and the resulting error denies the defendant fundamental due

       process.” Covey v. State, 929 N.E.2d 813, 819 (Ind. Ct. App. 2010).

       “Fundamental error is meant to permit appellate courts a means to correct the

       most egregious and blatant trial errors that otherwise would have been

       procedurally barred[.]” Ryan, 9 N.E.3d at 668 (citation and quotation marks

       omitted). “[T]he mere fact that a constitutional right is implicated is




       VanPatten’s first-prong analysis under Evidence Rule 803(4). Finally, we note that the record includes
       sufficient independent, properly admitted evidence to support Haynes’s guilt.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2657 | May 23, 2019                     Page 9 of 18
       insufficient to satisfy the fundamental error rule.” Hollingsworth v. State, 987

       N.E.2d 1096, 1099 (Ind. Ct. App. 2013), trans. denied.


[16]   Here, Haynes asserts that he was denied his constitutional right to confront and

       cross-examine the sign language interpreter, who did not testify at trial. 3 The

       Sixth Amendment to the United States Constitution states in pertinent part, “In

       all criminal prosecutions, the accused shall enjoy the right … to be confronted

       with the witnesses against him.” Witnesses are those “who bear testimony,”

       which is “a solemn declaration or affirmation made for the purpose of

       establishing or proving some fact.” Crawford v. Washington, 541 U.S. 36, 51

       (2004). “The Sixth Amendment prohibits the introduction of testimonial

       statements by a non-testifying witness unless the witness is ‘unavailable to

       testify, and the defendant had had a prior opportunity for cross-examination.’”

       Ward v. State, 50 N.E.3d 752, 757 (Ind. 2016) (quoting Crawford, 541 U.S. at

       54). In Davis v. Washington, the U.S. Supreme Court explained that in making

       the determination as to whether statements are testimonial, the court must

       analyze the “primary purpose” of those statements:


               Statements are nontestimonial when made in the course of police
               interrogation under circumstances objectively indicating that the
               primary purpose of the interrogation is to enable police assistance
               to meet an ongoing emergency. They are testimonial when the
               circumstances objectively indicate that there is no such ongoing
               emergency, and that the primary purpose of the interrogation is



       3
         He cites both the Sixth Amendment and Article 1, Section 13 of the Indiana Constitution but indicates that
       his federal and state arguments are based on the same reasoning.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2657 | May 23, 2019                   Page 10 of 18
               to establish or prove past events potentially relevant to later
               criminal prosecution.


       547 U.S. 813, 822 (2006). Although the Davis court specifically reserved the

       question of whether statements to persons other than law enforcement officers

       would raise similar Confrontation Clause concerns, the U.S. Supreme Court

       later extended the Confrontation Clause’s reach to include statements to

       persons other than law enforcement, subject to the primary purpose test. Ward,

       50 N.E.3d at 757-759 (citing Davis, 547 U.S. at 823 n.2); see Ohio v. Clark, ___

       U.S. ___, 135 S. Ct. 2173 (2015) (emphasizing that statements to nurses,

       doctors, and other non-law enforcement persons are much “less likely to be

       testimonial” and that courts must evaluate challenged statements in context to

       ensure conversation is not primarily to create out-of-court substitute for trial

       testimony).


[17]   Here, the challenged statements were made by A.F. to Nurse Coburn through

       the sign language interpreter in the context of a medical examination. Nurse

       Coburn testified at trial and was subject to cross-examination. Throughout the

       reading of her medical examination notes, Nurse Coburn repeatedly indicated

       that she sought clarification of what A.F. was saying through the interpreter.

       See Tr. Vol. 3 at 31-32 (“I clarified patient points …. again I clarified …. She

       clarifies penis in vagina …. Patient clarified by pointing …. then I clarified with

       A.F. and she indicated that she had vaginal pain and vaginal bleeding.”). The

       interpreter was not part of the police force. Nor was she employed by the

       sexual assault center. Rather, she was from an independent organization and

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2657 | May 23, 2019   Page 11 of 18
       was simply called in to relay what A.F. communicated to her via sign language.

       In other words, the interpreter was merely a conduit, not unlike a court

       reporter, who simply records what he/she hears. As such, the interpreter

       provided no information of her own and did not create an out-of-court

       substitute for trial testimony. See Clark, 135 S. Ct. at 2180. Her information

       therefore was nontestimonial.


[18]   Moreover, we note that the information that the interpreter provided, and

       Nurse Coburn recorded, was consistent with and corroborated by the testimony

       of A.F. and other witnesses, most notably Morrow, who observed and

       communicated directly with A.F. immediately after the rape and who had a

       lifetime of experience interpreting A.F.’s signs. Thus, the interpreter’s

       statements were cumulative of properly admitted evidence, and her absence

       from trial did not make a fair trial impossible. As such, Haynes has failed to

       meet his burden of demonstrating fundamental error. Therefore, we affirm his

       conviction.


           Section 3 – Haynes has failed to meet his burden of
       demonstrating that his sentence is inappropriate in light of the
                  nature of his offense and his character.
[19]   Haynes asks that we review and revise his sentence pursuant to Indiana

       Appellate Rule 7(B), which states that we “may revise a sentence authorized by

       statute if, after due consideration of the trial court’s decision, [this] Court finds

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

       character of the offender.” When a defendant requests appellate review and

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2657 | May 23, 2019   Page 12 of 18
       revision of his sentence, we have the power to affirm or reduce the sentence.

       Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010). In conducting our review, our

       principal role is to leaven the outliers, focusing on the length of the aggregate

       sentence and how it is to be served. Bess v. State, 58 N.E.3d 174, 175 (Ind.

       2016); Foutch v. State, 53 N.E.3d 577, 580 (Ind. Ct. App. 2016). This allows for

       consideration of all aspects of the penal consequences imposed by the trial court

       in sentencing, i.e., whether it consists of executed time, probation, suspension,

       home detention, or placement in community corrections, and whether the

       sentences run concurrently or consecutively. Davidson v. State, 926 N.E.2d

       1023, 1025 (Ind. 2010). We do “not look to see whether the defendant’s

       sentence is appropriate or if another sentence might be more appropriate;

       rather, the test is whether the sentence is ‘inappropriate.’” Foutch, 53 N.E.3d at

       581 (quoting Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans.

       denied (2014)). The defendant bears the burden of persuading this Court that his

       sentence meets the inappropriateness standard. Bowman v. State, 51 N.E.3d

       1174, 1181 (Ind. 2016).


[20]   In considering the nature of Haynes’s offense, “the advisory sentence is the

       starting point the Legislature has selected as an appropriate sentence.” Green v.

       State, 65 N.E.3d 620, 637-38 (Ind. Ct. App. 2016), trans. denied (2017). When

       determining the appropriateness of a sentence that deviates from an advisory

       sentence, we consider whether there is anything more or less egregious about

       the offense as committed by the defendant that “makes it different from the




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2657 | May 23, 2019   Page 13 of 18
       typical offense accounted for by the legislature when it set the advisory

       sentence.” Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011).


[21]   The trial court sentenced Haynes to the maximum term of forty years for level 1

       felony rape. See Ind. Code § 35-50-2-4(b) (level 1 felony carries sentencing

       range of twenty to forty years, with thirty-year advisory term). “Maximum

       sentences are generally reserved for the worst offenders, but this category

       encompasses a considerable variety of offenses and offenders.” Bethea v. State,

       964 N.E.2d 255, 268 (Ind. Ct. App. 2012), aff’d. in relevant part by Bethea v. State,

       983 N.E.2d 1134 (2013). “Our standard is not whether a worse offender could

       be imagined, but instead focuses ‘on the nature, extent, and depravity of the

       offense for which the defendant is being sentenced, and what it reveals about

       the defendant’s character.’” Id. at 269 (quoting Wells v. State, 904 N.E.2d 265,

       274 (Ind. Ct. App. 2009), trans. denied).


[22]   The nature of Haynes’s offense is gut-wrenching. Under the pretense of taking

       the severely disabled A.F. to the gas station for a soda, “Uncle Jared” took her

       to a remote location, bound her palsied hands, pointed a gun at her, 4 and

       threatened to kill her and her sister if she told anyone. She did not have the

       physical ability even to scream as he violently raped her and caused her to

       suffer vaginal tears and serious pain. But the physical pain was only part of the

       trauma. The emotional damage to the vulnerable twenty-eight-year-old victim



       4
         The fact that the gun turned out to be a BB gun is inconsequential, as it was similar in appearance to a real
       handgun and accomplished its purpose of frightening the victim into submission.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2657 | May 23, 2019                      Page 14 of 18
       with the cognitive ability of a five-year-old and communication ability of a

       three-year-old has been pronounced and protracted. A.F.’s note to Haynes, in

       which she did her best to describe her thoughts and emotions, underscores her

       intense fear and confusion that ensued. State’s Ex. 3. Morrow, her sister and

       guardian, described the devastating effect of the rape on A.F.’s demeanor.

       Though severely disabled from childhood, A.F. had managed to maintain a

       joyful disposition. After the life-altering rape, she repeatedly had nightmares

       about Haynes. She panicked when she saw a pickup truck similar to Haynes’s

       or heard noises similar to those made by his truck. She became deathly afraid

       not only to go outside but even to see the outside from the windows of her home.

       She was overcome and fled the courtroom when Haynes made direct eye

       contact with her during sentencing. Simply put, the nature of Haynes’s offense

       is among the worst of the worst and does not militate toward a shorter sentence.


[23]   Likewise, Haynes’s character does not militate toward a shorter sentence. We

       conduct our review of his character by engaging in a broad consideration of his

       qualities. Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on other

       grounds on reh’g, 11 N.E.3d 571. “When considering the character of the

       offender, one relevant fact is the defendant’s criminal history.” Garcia v. State,

       47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied (2016). Haynes

       maintains that because his criminal record includes no prior sexual offenses, he

       deserves a shorter sentence with a portion suspended. His criminal history

       comprises four misdemeanor convictions, including battery with bodily injury,

       disorderly conduct, and two convictions for operating while suspended, as well


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2657 | May 23, 2019   Page 15 of 18
       as two felony convictions for nonsupport of a dependent. As of the October

       2018 date of the presentence investigation report, Haynes had two pending

       felony nonsupport causes in another county. He has twice failed to respond to

       more lenient sentencing options, with one probation revocation and one

       modification from probation to work release. His repeated failure to pay his

       child support obligations for several of his children underscores his disregard for

       the law and his children.


[24]   Criminal history notwithstanding, we find Haynes to be an opportunist who

       breached his position of trust and took advantage of kindnesses offered him by

       A.F.’s family. Haynes claims that he lacked a particularly close relationship to

       A.F., such as that of a parent and child, and that therefore his violation of trust

       did not rise to the point of meriting a harsher sentence. See Hamilton v. State,

       955 N.E.2d 723, 727 (Ind. 2011) (harsher sentence is more appropriate when

       violation of trust arises from particularly close relationship between defendant

       and victim such as parent-child relationship). We disagree. The record shows

       that for decades Haynes was a close friend of A.F.’s father, so close that A.F.

       and Morrow referred to him as their uncle. 5 He helped A.F. learn to walk when

       she was two years old. At one point, when he was experiencing hard times,

       Morrow paid for his cell phone and service. When he was homeless and asked

       for help, Morrow fed him and allowed him to stay at the home that she shared




       5
         Haynes subsequently characterized the sex as merely consensual sex between two people who wanted to
       marry. This claim belies his argument that he did not have a particularly close relationship with A.F.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2657 | May 23, 2019               Page 16 of 18
       with A.F. Because A.F. was essentially helpless, Morrow did not entrust her to

       others to go places. She entrusted A.F. to Haynes’s care for a quick trip for a

       soda, and Haynes repaid her kindnesses by betraying A.F.’s and her family’s

       trust in an egregious way. Haynes was keenly aware of A.F.’s limitations and

       brutally took advantage of her frail and palsied body. As a result, A.F.’s joyful

       outlook turned into a protracted nightmare. In terms of victim impact, this is

       among the worst of the worst.


[25]   Moreover, we believe Haynes’s statement in allocution to be reflective of his

       true character. In that statement, he repeatedly called A.F. and her family liars.

       He accused the family of making A.F. “hate and mistrust” him and said, “may

       the curse of God be on every one of you. That is my remorse.” Tr. Vol. 3 at

       219. As the trial court observed, “A.F. could no more string together a lie than

       she could speak coherently. She is tremendously compromised.” Id. at 221.

       Haynes’s attempts at projecting are grotesque.


[26]   In sum, Haynes has failed to meet his burden of demonstrating that his forty-

       year sentence is inappropriate in light of the nature of his offense and his

       character. Accordingly, we affirm his sentence.


            Section 4 – The trial court erred in designating Haynes a
                             credit-restricted felon.
[27]   Finally, we address Haynes’s assertion that the trial court erred in including the

       following entry in the judgment of conviction: “defendant is a credit restricted

       felon.” Appealed Order at 1. Haynes correctly asserts that he does not meet


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2657 | May 23, 2019   Page 17 of 18
       the definition of a credit-restricted felon under Indiana Code Section 35-31.5-2-

       72. The State concedes the error. As such, we remand with instructions to

       correct the error.


[28]   Affirmed and remanded.


       Bradford, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2657 | May 23, 2019   Page 18 of 18
