                                                                      Aug 28 2013, 5:54 am
Pursuant to Ind. Appellate Rule 65(D),
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:

DEREK W. STEELE                                     GREGORY F. ZOELLER
Deputy Public Defender                              Attorney General of Indiana
Kokomo, Indiana
                                                    ANGELA N. SANCHEZ
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

TERESA SMITH,                                       )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 34A04-1303-CR-131
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE HOWARD SUPERIOR COURT
                         The Honorable George A. Hopkins, Judge
                             Cause No. 34D04-1208-FA-140



                                         August 28, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
      Following her guilty plea to criminal deviate conduct1 as a Class B felony, Teresa

Smith (“Smith”) appeals her fourteen-year executed sentence.

      We affirm.

                          FACTS AND PROCEDURAL HISTORY

      Smith often babysat her friend’s son, D.H., and was responsible for babysitting

him on a particular day in the summer of 2012. D.H. was six years old at the time.

While Smith was babysitting D.H. at her residence, Troy Kavis (“Kavis”) came to visit.

In addition to being D.H.’s maternal grandfather, Kavis was in a romantic relationship

with Smith.      With D.H. in the same room, Smith and Kavis began having sexual

intercourse. At some point, Smith began kissing D.H. on his neck and chest, then

performed oral sex on D.H. Kavis also had D.H. perform oral sex on him.

      On August 31, 2012, the State charged Smith with one count of child molesting 2 as

a Class A felony, and pursuant to a plea agreement, Smith pleaded guilty to one count of

criminal deviate conduct as a Class B felony. On March 1, 2013, the trial court sentenced

Smith to the Department of Correction (“DOC”) for fourteen years executed. Smith now

appeals.

                                DISCUSSION AND DECISION

      Smith contends that her sentence was inappropriate in light of the nature of the

offense and her character. She further argues that the trial court did not give proper




      1
          See Ind. Code § 35-42-4-2.
      2
          See Ind. Code § 35-42-4-3.

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consideration to the hardship that an extended period of incarceration would cause on her

family.

       We may revise a sentence after careful review of the trial court’s decision if we

conclude that the sentence is inappropriate based on the nature of the offense and the

character of the offender. Ind. Appellate Rule 7(B). “Under this rule, the burden is on

the defendant to persuade the appellate court that his or her sentence is inappropriate.”

McMahon v. State, 856 N.E.2d 743, 749 (Ind. Ct. App. 2006) (citing Childress v. State,

848 N.E.2d 1073, 1080 (Ind. 2006)). Even if the trial court followed the appropriate

procedure in arriving at its sentence, the appellate court still maintains a constitutional

power to revise a sentence it finds inappropriate. Hope v. State, 834 N.E.2d 713, 718

(Ind. Ct. App. 2005). Nevertheless, the reviewing court “must and should exercise

deference to a trial court’s sentencing decision, both because Rule 7(B) requires us to

give ‘due consideration’ to that decision and because we understand and recognize the

unique perspective a trial court brings to its sentencing decisions.” Stewart v. State, 866

N.E.2d 858, 866 (Ind. Ct. App. 2007).

       Smith contends that the trial court erred because it did not give proper

consideration to her character, the nature of the crime, and the hardship the sentence

would cause on her family. Appellant’s Br. at 2. To the extent Smith is arguing that the

trial court did not give proper weight to aggravating and mitigating factors, we cannot

review a sentence on such a basis. See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.

2007) (“The relative weight or value assignable to reasons properly found or those which

should have been found is not subject to review for abuse.”). We may only consider

                                            3
whether a sentence is inappropriate based on the nature of the offense and the character

of the offender. See id.

       In support of her character, Smith notes that she is remorseful, accepts

responsibility for her actions, and that she is now regularly attending both church and

counseling sessions, taking active steps to prevent future deviant behavior. She also

notes that she has long been responsibly caring for her aging mother. Smith observes that

she has no prior criminal history, that “leniency is encouraged toward defendants who

have not previously been through the criminal justice system,” and that it does not appear

that any leniency was afforded her because her co-defendant, who has a criminal record,

received the same sentence. Filice v. State, 886 N.E.2d 24, 39 (Ind. Ct. App. 2008).

       Although Smith did not have a formal criminal record at the time of the incident,

her behavior nevertheless was not isolated. Smith admitted to allowing D.H. to place his

hands and mouth on her breasts on two other occasions. Her admission demonstrates that

the offense was not one mistake or sudden lapse of judgment, but a pattern of abuse and

molestation that reveal her disregard for the impact of her behavior.       Furthermore,

Smith’s son had been previously convicted of sexually assaulting D.H. Although her

son’s actions were certainly not Smith’s own, the trial court found incredible Smith’s

claim that she was not aware that D.H. was the victim of the assault, when she had

attended her son’s trial, spoken with D.H.’s mother about her son’s conviction, and

known D.H. for his entire life. Smith’s repeated abuse of D.H., which she carried out

from a position of trust and with knowledge of D.H.’s prior victimization, ultimately



                                            4
demonstrates that a sentence of fourteen years is not inappropriate in light of her

character.

       As to the nature of the offense, Smith contends that her sentence should be

reduced because her actions were “not the most heinous case of sexual abuse of a minor,”

as the encounter was brief and “was not an example of repeated forceful abuses

committed against the victim.” Appellant’s Br. at 4. Nevertheless, Smith’s actions

caused profoundly harmful damage to D.H.’s development and behavior. D.H. has

struggled in school, developed angry and violent tendencies, exhibited increasingly

solitary and despondent behavior, and has demonstrated outward expressions of his

sexual confusion—all foreseeable consequences of Smith’s repeated actions, particularly

given her knowledge of yet other preexisting mental struggles D.H. faced at the time.

       Smith has failed to demonstrate that the trial court’s sentence was inappropriate.

       Affirmed.

ROBB, C.J., concurs.

RILEY, J., dissents with separate opinion.




                                             5
                              IN THE
                    COURT OF APPEALS OF INDIANA

TERESA SMITH,                                     )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )    No. 34A04-1303-CR-131
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


RILEY, Judge, dissenting

       I respectfully disagree with the majority to affirm the trial court’s sentencing

decision. Based on the record before me, I do not believe a fourteen year sentence to be

appropriate in light of Smith’s character and nature of the offense. The record reflects

that although Smith has no prior criminal history, she received the same sentence as her

co-defendant who has a criminal record. This court has held that “leniency is encouraged

towards defendants who have not previously been through the criminal justice system.”

Beck v. State, 790 N.E.2d 520, 522 (Ind. Ct. App. 2003). As such, I would reduce

Smith’s sentence and impose a ten-year executed sentence, the advisory term for a Class

B felony.




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