MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Dec 19 2018, 8:13 am
court except for the purpose of establishing                             CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Steven E. Ripstra                                       Curtis T. Hill, Jr.
Ripstra Law Office                                      Attorney General of Indiana
Jasper, Indiana
                                                        Angela N. Sanchez
                                                        Caryn N. Szyper
                                                        Deputy Attorneys General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Douglas L. Leistner,                                    December 19, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-491
        v.                                              Appeal from the
                                                        Dubois Circuit Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     Nathan A. Verkamp, Judge
                                                        Trial Court Cause No.
                                                        19C01-1611-F1-951



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-491 | December 19, 2018             Page 1 of 26
[1]   Douglas L. Leistner (“Leistner”) was convicted after a jury trial of two counts

      of child molesting,1 each as a Level 1 felony, and one count of public

      voyeurism2 as a Class A misdemeanor and was sentenced to a forty-year

      aggregate sentence in the Indiana Department of Correction. Leistner appeals

      and raises the following restated issues for our review:


                 I.       Whether the trial court abused its discretion when it
                          allowed the State to amend the charging information in
                          order to change the dates on which the crimes were alleged
                          to have occurred;


                 II.      Whether Leistner’s two convictions for child molesting
                          violate double jeopardy or were barred by the continuous
                          crime doctrine;


                 III.     Whether the trial court abused its discretion when it
                          declined to give Leistner’s proposed final jury instructions
                          regarding an uncharged offense; and


                 IV.      Whether Leistner’s forty-year sentence is inappropriate in
                          light of the nature of the offense and the character of the
                          offender.


      The State raises the following issue on cross-appeal:




      1
          See Ind. Code § 35-42-4-3(a)(1).
      2
          See Ind. Code § 35-45-4-5(d).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-491 | December 19, 2018   Page 2 of 26
               V.       Whether the trial court erred when it found that Leistner
                        was not a sexually violent predator.


[2]   We affirm in part, reverse in part, and remand.


                                    Facts and Procedural History
[3]   Leistner and Tracy Erwin (“Tracy”) began a relationship in 2005 and lived

      together in Leistner’s home in Jasper, Indiana. Tracy’s daughter, C.E., who

      was born in 2002, also lived with them in the home. Tracy and C.E. moved out

      of Leistner’s home on May 5, 2016, when she and Leistner ended their

      relationship.


[4]   In the spring of 2015,3 Leistner took C.E. mushroom hunting. When they

      returned home afterwards, Leistner told C.E. and his son, who had also gone

      with them, to check their bodies for ticks. Tr. Vol. 2 at 72-74, 119, 121. Later

      that night, Leistner entered C.E.’s bedroom and asked her if she had checked

      for ticks. Id. at 83; State’s Ex. 3. Leistner then told C.E. that he was going to

      check her body for ticks. Tr. Vol. 2 at 83-84; State’s Ex. 3. He pulled on her t-

      shirt and looked down her shirt. Tr. Vol. 2 at 84; State’s Ex. 3. He also looked at

      her legs and around the edge of her panties and told her that she had a tick “on

      her butt.” Tr. Vol. 2 at 83; State’s Ex. 3. He then “started looking and touching




      3
       Tracy testified that it was in 2015 or possibly 2014, that she “was not exactly positive when it was,” but that
      she believed it was about one year before she moved out of Leistner’s home, which she knew occurred on
      May 5, 2016, because she checked the lease on her apartment to confirm the date. Tr. Vol. 2 at 70-72. The
      video taken on that day was date stamped May 9, 2015. State’s Ex. 3.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-491 | December 19, 2018                   Page 3 of 26
      [her] in [her] private areas” with his hands. Tr. Vol. 2 at 83. Leistner used his

      hands to touch her legs and “butt hole area,” and for several minutes, he used

      his fingers to touch and manipulate the area around C.E.’s vagina and her anus,

      penetrating both her sex organ and her anus during his supposed search for

      ticks. Tr. Vol. 2 at 83-84; State’s Ex. 3. Leistner used his phone to record himself

      doing this to C.E. Tr. Vol. 2 at 84, 124-25; State’s Ex. 3. C.E. never saw a tick

      that day, and she was not aware that Leistner was recording her and did not

      give him permission to do so. Tr. Vol. 2 at 86.


[5]   In 2016, Nathan Leistner (“Nathan”), Leistner’s nephew, was living in

      Leistner’s home and found an SD card on top of the refrigerator. On the SD

      card, Nathan found a video of Leistner and C.E. that he recognized as being

      recorded inside C.E.’s bedroom in Leistner’s home. Id. at 63-64. After viewing

      the video, Nathan took the SD card to the police. Id. at 64.


[6]   On November 3, 2016, the State charged Leistner with two counts of Level 1

      felony child molesting, three counts of Level 6 felony voyeurism, and one count

      of Class A misdemeanor public voyeurism. As originally filed, the charging

      information alleged, in pertinent part:


              Count 1: On or about May 9, 2015 in Dubois County, State of
              Indiana, . . . Leistner, a person of at least twenty-one (21) years
              of age, did knowingly or intentionally perform or submit to other
              sexual conduct as defined in Indiana Code Section 35-31.5-2-
              221.5 with a child under the age of fourteen years (14), to-wit:
              the defendant penetrated with his finger the female sex organ of
              C.E., whose date of birth is . . . 2002.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-491 | December 19, 2018   Page 4 of 26
              Count 2: On or about May 9, 2015 in Dubois County, State of
              Indiana, . . . Leistner, a person of at least twenty-one (21) years
              of age, did knowingly or intentionally perform or submit to other
              sexual conduct as defined in Indiana Code Section 35-31.5-2-
              221.5 with a child under the age of fourteen years (14), to-wit:
              the defendant penetrated with his finger the anus of C.E., whose
              date of birth is . . . 2002.


              ....


              Count 6: On or about May 9, 2015 in Dubois County, State of
              Indiana, . . . Leistner, without the consent of C.E. and with
              intent to peep at the private area of C.E., did knowingly or
              intentionally peep at the private area of C.E. and recorded an
              image by means of a camera.


      Appellant’s App. Vol. 2 at 10-11.


[7]   On October 18, 2017, a week before Leister’s trial was scheduled to begin, the

      State filed a motion to amend the charges to allege that the crimes were

      committed “on or between July 13, 2012 and May 5, 2016.” Id. at 114-16, 125-

      26. The trial court granted the motion the same day. The amended charges

      were filed the following day, and a hearing was held to advise Leistner of the

      new charges. Id. at 7, 125-26. At that hearing, after the charges had been

      amended and the amended charges read to Leistner, his counsel stated, “I guess

      we would object officially just for the record.” Tr. Vol. 2 at 27. He further

      stated that “changing those dates does kind of change how we would prepare

      for the matter since it opens up those dates.” Id. The trial court acknowledged




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-491 | December 19, 2018   Page 5 of 26
      Leistner’s position but ordered that the case would proceed to trial on the

      amended charges. Id.


[8]   A jury trial occurred on October 24 and 25, 2017, and evidence was heard on

      the two counts of Level 1 felony child molesting and on one count of Class A

      misdemeanor public voyeurism, which were the counts with C.E. as the victim.

      On the morning of the second day of trial, the State again moved to amend the

      charging information. Id. at 108. It sought to amend the dates of the offenses

      to allege that they occurred “on or between July 1, 2014 and May 5, 2016.”

      Appellant’s App. Vol. 2 at 146-47. Leistner objected to the amendment based on

      the fact that he had prepared for trial and argued on the first day of trial based

      on the understanding of the existing date range contained in the amendment of

      October 18. Tr. Vol. 2 at 108. The trial court granted the amendment and

      found that time was not an essential element of the charged offenses and that it

      did not believe the amended dates altered Leistner’s defense in any way and

      might actually benefit him by narrowing the alleged time period. Id. at 108-09.

      The trial court then read the amended charges to Leistner and ensured that he

      understood them before continuing with the trial. Id. at 109-10.


[9]   During the trial, Leistner requested that the jury be instructed on the offense of

      child molesting by touching or fondling a child with the intent to arouse or

      satisfy the sexual desire of the child or the defendant as a Level 4 felony. Id. at

      132-34; Appellant’s App. Vol. 2 at 142-45. The State objected, asserting that the

      Level 4 felony offense is not a lesser-included offense of child molesting by

      other sexual conduct as charged in this case because the Level 4 felony offense

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-491 | December 19, 2018   Page 6 of 26
       requires the proof of elements not required by the greater charge. Tr. Vol. 2 at

       133. Leistner argued that the State had opened the door to the instruction by

       presenting evidence about his intent regarding whether he intended to check

       C.E. for ticks or touched her for sexual purposes. Id. at 134. The State

       expressed doubt that it was possible for the State to open the door to instruction

       on an uncharged offense or that the trial court had the authority to instruct on

       the offense, which was not previously charged. Id. After this argument, the

       trial court found that Level 4 felony child molesting was not a factually or

       inherently included offense and denied Leistner’s request for the jury

       instruction. Id. at 134-35.


[10]   At the conclusion of the trial, the jury found Leistner guilty of two counts of

       Level 1 felony child molesting and one count of Class A misdemeanor public

       voyeurism. At sentencing, the trial court found as aggravating factors,

       Leistner’s criminal history, that he had recently violated community corrections

       and probation conditions, that the harm to the victim was significant and

       greater than necessary to prove the offense, and that he had violated a position

       of trust he held with C.E. Id. at 194-95. The trial court gave the last factor the

       greatest weight. Id. at 195. The trial court found no mitigating factors and

       specifically declined to find as mitigating that Leistner’s incarceration would

       cause an undue hardship to his dependents because Leistner had admitted that

       he was unemployed and using drugs prior to his arrest. Id. at 197.


[11]   The trial court imposed a forty-year sentence for each of Leistner’s Level 1

       felony child molesting convictions and one year for his Class A misdemeanor

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-491 | December 19, 2018   Page 7 of 26
       public voyeurism conviction. The trial court ordered the sentences to run

       concurrently for a total executed sentence of forty years. After pronouncing the

       sentence, the trial court declined to find Leistner to be a sexually violent

       predator, stating that it was “not inclined to find . . . Leistner a sexually violent

       predator as recommended by probation, in that I don’t believe he qualifies

       pursuant to that definition.” Id. at 197. Leistner now appeals, and the State

       cross-appeals.


                                      Discussion and Decision

                         I.      Amendment of Charging Information
[12]   Leistner argues that the trial court erred when it allowed the State to amend the

       charging information to change the dates on which the crimes were alleged to

       have occurred. On November 3, 2016, the State originally charged Leistner,

       and all the pertinent charges alleged that the offense occurred on May 9, 2015.

       Appellant’s App. Vol. 2 at 10-11. On October 18, 2017, a week before Leister’s

       trial was scheduled to begin, the trial court granted the State’s motion to amend

       the pertinent charges to allege that the crimes were committed “on or between

       July 13, 2012 and May 5, 2016.” Id. at 117, 125-26. On the morning of the

       second day of trial, the State again moved to amend the charging information

       to change the dates of the offenses to allege that they occurred “on or between

       July 1, 2014 and May 5, 2016,” and the trial court granted the motion. Id. at

       146-47; Tr. Vol. 2 at 108-09.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-491 | December 19, 2018   Page 8 of 26
[13]   “‘A charging information may be amended at various stages of a prosecution,

       depending on whether the amendment is to the form or to the substance of the

       original information.’” Erkins v. State, 13 N.E.3d 400, 405 (Ind. 2014) (quoting

       Fajardo v. State, 859 N.E.2d 1201, 1203 (Ind. 2007)), cert. denied, 135 S. Ct. 967

       (2015). Whether an amendment to a charging information is a matter of form

       or substance is a question of law. Id. We review questions of law de novo. Id.

       (citing State v. Moss-Dwyer, 686 N.E.2d 109, 110 (Ind. 1997)).


[14]   Amendments to a charging information are governed by Indiana Code section

       35-34-1-5. Subsection (b) provides, in pertinent part, that “[t]he indictment or

       information may be amended in matters of substance . . . before the

       commencement of trial [,] if the amendment does not prejudice the substantial

       rights of the defendant.” Subsection (c) provides that “[u]pon motion of the

       prosecuting attorney, the court may, at any time before, during, or after the

       trial, permit an amendment to the indictment or information in respect to any

       defect, imperfection, or omission in form which does not prejudice the

       substantial rights of the defendant.”


[15]   A defendant’s substantial rights “include a right to sufficient notice and an

       opportunity to be heard regarding the charge; and, if the amendment does not

       affect any particular defense or change the positions of either of the parties, it

       does not violate these rights.” Gomez v. State, 907 N.E.2d 607, 611 (Ind. Ct.

       App. 2009), trans. denied. Ultimately, the question is whether the defendant had

       a reasonable opportunity to prepare for and defend against the charges. Id.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-491 | December 19, 2018   Page 9 of 26
       (citing Sides v. State, 693 N.E.2d 1310, 1313 (Ind. 1998), abrogated on other

       grounds by Fajardo v. State, 859 N.E.2d. 1201 (Ind. 2007).


[16]   The first challenged amendment occurred about one week before trial, and on

       the next day, at a hearing following the granted amendment, Leistner objected

       “for the record.” Tr. Vol. 2 at 27. However, he did not request a continuance to

       permit him to prepare for any change in his defense allegedly necessitated by

       the amendments. To preserve the issue for appeal, “the defendant must object

       to the request to amend, and if the objection is overruled, must request a

       continuance to prepare a new defense strategy.” Parks v. State, 752 N.E.2d 63,

       65 (Ind. Ct. App. 2001) (citing Haak v. State, 695 N.E.2d 944, 953 n.5 (Ind.

       1998)). A defendant’s failure to request a continuance after a trial court allows

       a pre-trial substantive amendment to the charging information over defendant’s

       objection results in waiver.” Wilson v. State, 931 N.E.2d 914, 918 (Ind. Ct. App.

       2010), trans. denied. Therefore, Leistner waived his claim regarding the first

       challenged amendment to the charging information.


[17]   Waiver notwithstanding, Leistner’s challenges to the amendments are without

       merit. The dates alleged in the charging information were first amended from

       May 9, 2015, which was the date of the time-stamp on the video of the crimes,

       to a range of dates encompassing that date and beginning on January 13, 2012,

       C.E.’s tenth birthday, and ending on May 6, 2016, the date C.E. and her

       mother moved out of Leistner’s home. The second amendment narrowed the

       time period so that it no longer encompassed two different statutes defining the

       offense, and it changed the beginning of the alleged time period forward to the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-491 | December 19, 2018   Page 10 of 26
       effective date of the statute defining child molesting as a Level 1 felony, July 1,

       2014.


[18]   The amendments changing the dates alleged were not amendments of substance

       and could be permitted at any time. An amendment is one of substance if it is

       essential to making a valid charge of the crime. Erkins, 13 N.E.3d at 406 (citing

       Fajardo, 859 N.E.2d at 1207). Indiana Code Section 35-34-1-2(a)(6) only

       requires that the charging information state the “time of the offense as definitely

       as can be done if time is of the essence of the offense.” (emphasis added).

       Generally, “‘time is not of the essence in the crime of child molesting.’” Baber

       v. State, 870 N.E.2d 486, 492 (Ind. Ct. App. 2007) (quoting Barger v. State, 587

       N.E.2d 1304, 1307 (Ind. 1992)), trans. denied. In child molestation cases, time is

       only of the essence if the victim’s age at the time of the offense is near the

       dividing line between classes of felonies. Love v. State, 761 N.E.2d 806, 809

       (Ind. 2002). Therefore, in the present case, the date of the offense was not

       essential to establish a valid charge for child molesting or public voyeurism.


[19]   Because time is not of the essence, the State was “not required to prove the

       offense occurred on the precise date alleged [in the information],” but only that

       the offense was committed within the statute of limitations. Blount v. State, 22

       N.E.3d 559, 569 (Ind. 2014) (citing Neff v. State, 915 N.E.2d 1026, 1032 (Ind.

       Ct. App. 2009), trans. denied). On all of the dates alleged by the State in the

       amended informations, C.E. was under the age of 14, and Leistner admitted at

       trial that she was under the age of fourteen at the time the video was recorded.

       Tr. Vol. 2 at 124.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-491 | December 19, 2018   Page 11 of 26
[20]   Because the amendments were not of substance, they could be made at any

       time as long as they did not prejudice Leistner’s substantial rights. A

       defendant’s substantial rights are not prejudiced if both (a) a defense under the

       original information would be equally available after the amendment, and (b)

       the accused’s evidence would apply equally to the information in either form.

       Gaby v. State, 949 N.E.2d 870, 874 (Ind. Ct. App. 2011). The allegations, the

       evidence, and the theory of the case were the same at all relevant times in this

       case. Despite the amendments, the State consistently alleged that Leistner

       committed the charged offenses on a single day after he had taken C.E.

       mushroom hunting, which only occurred once in her life, and the offenses were

       recorded on a video that was time-stamped May 9, 2015. Appellant’s App. Vol. 2

       at 10-11, 125-26, 146-47; Tr. Vol. 2 at 71, 82, 90, 119. Although Leistner

       challenges the State’s amendments because “the State had all the evidence it

       required to closely approximate the date(s) of any alleged criminal acts no later

       than . . . the date the police received the incriminating video,” Appellant’s Br. at

       17, the same is true for Leistner because he also had the information necessary

       to closely approximate the date of the offenses. The date of the video was

       specified in the “Affidavit for Warrant for Arrest” that was filed with the

       original charges. Appellant’s App. Vol 2 at 16. Leistner was aware of the State’s

       allegations and the evidence against him at all times, and the amendments did

       not change any of this.


[21]   Leistner also asserts that the amendments prejudiced his substantial rights

       because different dates were read to the jury in the preliminary and final


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-491 | December 19, 2018   Page 12 of 26
       instructions. In the preliminary instructions, the charged date range was read to

       the jury as being between January 13, 2012, and May 5, 2016. Tr. Vol. 2 at 49-

       50. The third amendment, which occurred on the second day of trial, shortened

       that period to begin on July 1, 2014, but still end on May 5, 2016, and the final

       instructions reflected that change. Id. at 141-42. Leistner does not explain how

       this prejudiced him. Instead, he merely argues that an amendment made

       during trial was error if it was substantive. However, as discussed above, the

       amendment was not substantive, and there is no reason to find the change in

       preliminary and final instructions itself caused prejudice. The trial court

       explained to the jurors during final instructions that the dates had changed, that

       they need not concern themselves with why the dates had changed, and that

       they should deliberate based only on the allegations in the final instructions. Id.

       at 141. We presume that, when a jury is properly instructed, it followed the

       instructions given to them by the trial court. Weisheit v. State, 26 N.E.3d 3, 20

       (Ind. 2015), cert, denied, 136 S. Ct. 901 (2016).


[22]   The amendments altered the range of dates alleged in the charging information

       only, and at all times the range included the originally charged date of May 9,

       2015. Because time was not of the essence in the charged offenses, the

       amendments changing the dates alleged were not amendments of substance and

       could be permitted at any time. Further, the amendments did not prejudice

       Leistner’s substantial rights as they did not alter the State’s allegations against

       Leistner or his theory of defense. We, therefore, conclude that the trial court

       did not err when it permitted the State to amend the charging information.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-491 | December 19, 2018   Page 13 of 26
                                           II.     Jury Instruction
[23]   Leistner contends that the trial court abused its discretion when it refused to

       give his tendered jury instruction on Level 4 felony child molesting by touching

       or fondling (“the Level 4 felony”). He asserts that instruction should have been

       given because the Level 4 felony is both an inherently and a factually included

       lesser offense of Level 1 felony child molesting by other sexual conduct (“the

       Level 1 felony”). When determining whether the jury should be instructed on a

       lesser included offense of the crime charged, a trial court must perform a three-

       step analysis. Galindo v. State, 62 N.E.3d 1285, 1287 (Ind. Ct. App. 2016).

       First, the statute defining the crime charged must be compared with the statute

       defining the alleged lesser included offense to determine if the alleged lesser

       included offense is inherently included in the crime charged. Id. (citing Wright

       v. State, 658 N.E.2d 563, 566 (Ind. 1995)). Second, if a trial court determines

       that an alleged lesser included offense is not inherently included in the crime

       charged, then it must determine if the alleged lesser included offense is factually

       included in the crime charged. Id. at 1287-88. Third, if a trial court has

       determined that an alleged lesser included offense is either inherently or

       factually included in the crime charged, it must then look at the evidence

       presented in the case by both parties to determine if there is a serious

       evidentiary dispute about the element or elements distinguishing the greater

       from the lesser offense and if, in view of this dispute, a jury could conclude that

       the lesser offense was committed but not the greater. Id. at 1288. It is reversible

       error for a trial court not to give an instruction, when requested, on the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-491 | December 19, 2018   Page 14 of 26
       inherently or factually included lesser offense if there is such an evidentiary

       dispute. Id.


[24]   Here, the trial court concluded that the Level 4 felony was not a lesser-included

       offense of the charged offenses and refused to give Leistner’s tendered

       instruction. Leistner argues that the Level 4 felony is a lesser-included offense

       of the Level 1 felony because it is contained in the same statute. “While child

       molesting by fondling or touching is a lesser offense than child molesting by

       deviate sexual conduct [or penetration] in terms of sentencing, it is neither

       inherently nor factually included in the greater offense and is in fact an entirely

       separate offense.” Adcock v. State, 22 N.E.3d 720, 729 (Ind. Ct. App. 2014)

       (citing Downey v. State, 726 N.E.2d 794, 799 (Ind. Ct. App. 2000), trans. denied),

       trans. denied. The two offenses are not inherently included offenses because

       each offense contains an element not required by the other. Downey, 726

       N.E.2d at 799. Leistner was charged with child molesting by committing other

       sexual conduct and was alleged to have knowingly or intentionally penetrated

       C.E.’s sex organ and her anus with an object, specifically his finger. Appellant’s

       App. Vol. 2 at 10-11; see also Ind. Code § 35-31.5-2-221.5 (defining other sexual

       conduct to mean “an act involving . . . the penetration of the sex organ or anus

       of a person by an object”). A conviction for child molesting by fondling or

       touching would not require proof of penetration by Leistner, but it would

       require proof that he touched C.E. with the intent to arouse or satisfy his or her

       sexual desires, which is an element of specific intent that is not required to

       prove the Level 1 felony. Ind. Code § 35-42-4-3(a) and (c); see also D’Paffo v.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-491 | December 19, 2018   Page 15 of 26
       State, 778 N.E.2d 798, 803 (Ind. 2002) (“We conclude that the elements of the

       crime of child molesting under [Indiana Code section] 35-42-4-3(a) do not

       include the intent to arouse or satisfy sexual desires.”).


[25]   The Level 4 felony is also not a factually included offense of the Level 1 felony.

       The State “can foreclose instruction on an offense that is not inherently

       included but potentially factually included ‘by omitting from a charging

       instrument factual allegations sufficient to charge the lesser offense.’” Downey,

       726 N.E.2d at 799 (quoting Wright, 658 N.E.2d at 570). Here, the State did not

       allege facts in the charging information that would satisfy the elements of the

       Level 4 felony. The charging information did not contain any allegations that

       Leistner had the intent to arouse or satisfy sexual desires, and therefore, the

       Level 4 felony was not factually included in the charged Level 1 felony offense.

       The trial court did not abuse its discretion when it refused to give Leistner’s

       tendered instruction on his claimed lesser-included offense.


                  III. Double Jeopardy; Continuous Crime Doctrine
[26]   Leistner initially argues that his two convictions for Level 1 felony child

       molesting violate double jeopardy. The Indiana Supreme Court has held that

       “two or more offenses are the ‘same offense’ in violation of Article I, section 14

       of the Indiana Constitution, if, with respect to either the statutory elements of

       the challenged crimes or the actual evidence used to convict, the essential

       elements of one challenged offense also establish the essential elements of

       another challenged offense.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999).


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-491 | December 19, 2018   Page 16 of 26
       Leistner focuses his constitutional argument on the actual evidence test. In

       applying this test, a defendant must demonstrate, and a reviewing court must

       conclude, that there is a reasonable possibility that the evidentiary facts used by

       the factfinder to establish the essential elements of an offense for which the

       defendant was convicted or acquitted may also have been used to establish all

       the essential elements of a second challenged offense. Anthony v. State, 56

       N.E.3d 705, 715 (Ind. Ct. App. 2016) (citing Hines v. State, 30 N.E.3d 1216,

       1222 (Ind. 2015)), trans. denied. In determining the facts used by the factfinder

       to establish the elements of each offense, it is appropriate to consider the

       charging information, jury instructions, and arguments of counsel. Id. (citing

       Lee v. State, 892 N.E.2d 1231, 1234 (Ind. 2008); Spivey v. State, 761 N.E.2d 831,

       832 (Ind. 2002)). “The ‘reasonable possibility’ standard ‘requires substantially

       more than a logical possibility’ and ‘turns on a practical assessment of whether

       the jury may have latched on to exactly the same facts for both convictions.’”

       Id. at 716 (quoting Lee, 892 N.E.2d at 1236). The Indiana Double Jeopardy

       Clause is not violated when the evidentiary facts establishing the essential

       elements of one offense also establish only one or even several, but not all, of

       the essential elements of a second offense. Henson v. State, 86 N.E.3d 432, 437

       (Ind. Ct. App. 2017) (citing Spivey, 761 N.E.2d at 833).


[27]   Leistner contends that the actual evidence presented at trial did not establish

       that the essential elements of one Level 1 felony offense may not have also been

       used to establish the essential elements of the second Level 1 felony offense.

       Leistner claims that C.E.’s testimony alters the outcome because she did not

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-491 | December 19, 2018   Page 17 of 26
       specifically testify about the element of penetration; however, he does not

       explain how that would have led the jury to conflate the two distinct charges.

       Appellant’s Br. at 28-29. He also asserts that the trial court’s final instructions

       did not differentiate between the body parts violated and that looking at the

       charging information, instructions, and the State’s argument, there is a

       reasonable possibility that the evidentiary facts used by the jury to establish the

       essential elements of one count of Level 1 felony may also have been used to

       establish the elements of the second count.


[28]   The charging information in this case alleged that in Count I, Leistner did

       knowingly or intentionally perform or submit to other sexual conduct with a

       child under the age of fourteen years by penetrating the female sex organ of

       C.E. with his finger. Count II alleged that Leistner did knowingly or

       intentionally perform or submit to other sexual conduct with a child under the

       age of fourteen years by penetrating the anus of C.E. with his finger. Appellant’s

       App. Vol. 2 at 146-47. At trial, evidence was presented that, after returning from

       mushroom hunting with C.E., Leistner entered C.E.’s bedroom and asked her if

       she had checked for ticks. Id. at 83; State’s Ex. 3. Leistner told C.E. that he was

       going to check her body for ticks, and after looking at her legs and around the

       edge of her panties, Leistner told C.E. that she had a tick “on her butt.” Tr. Vol.

       2 at 83; State’s Ex. 3. He then “started looking and touching [her] in [her]

       private areas” with his hands. Tr. Vol. 2 at 83. Leistner used his hands to touch

       her legs and “butt hole area,” and for several minutes, he used his fingers to

       touch and manipulate the area around C.E.’s vagina and her anus, penetrating


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-491 | December 19, 2018   Page 18 of 26
       both her sex organ and her anus during his claimed search for ticks. Tr. Vol. 2

       at 83-84; State’s Ex. 3. Leistner used his phone to record himself doing this to

       C.E. Tr. Vol. 2 at 84, 124-25; State’s Ex. 3.


[29]   Additionally, contrary to Leistner’s contention, during final instructions the

       trial court specifically instructed the jury on the allegations contained in each

       count. Tr. Vol. 2 at 140-41. The jury was specifically instructed that Count I

       alleged that “Defendant penetrated with his finger, the female sex organ of

       C.E.” and that Count II alleged that “Defendant penetrated with his finger, the

       anus of C.E.” Id. at 140. The State also presented detailed argument regarding

       the element of penetration in each count, specifically clarifying to the jury that

       Count I required that it find that Leistner penetrated C.E.’s sex organ and that

       Count II required that it find that he penetrated C.E.’s anus. Id. at 155-59. The

       State further made clear the distinction between the two charges, stating that,

       “Everything is exactly the same except for, well, what did he penetrate. Count

       I, it was the sex organ of [C.E.]. Count II it’s the anus of [C.E.].” Id. at 158.

       We, therefore, conclude that each offense was established by separate and

       distinct facts. Leistner’s convictions for two counts of Level 1 felony child

       molesting did not violate double jeopardy.


[30]   Leistner next argues that his convictions for two counts of Level 1 felony child

       molesting violate the continuous crime doctrine. He contends that C.E.’s

       testimony established that “Leistner touched her and the offense was

       continuous.” Appellant’s Br. at 30. Leistner maintains that there was no

       evidence that his act of touching C.E. “was ‘terminated by a single act or fact”

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-491 | December 19, 2018   Page 19 of 26
       and that the two acts ‘subsisted for a definite period’” and were successive and

       similar. Id. He, therefore, asserts that his conduct amounted to only a single

       chargeable crime and not two.


[31]   The continuing crime doctrine establishes that actions that are sufficient to

       constitute separate criminal offenses may be so compressed in terms of time,

       place, singleness of purpose, and continuity of action as to constitute a single

       transaction. Pugh v. State, 52 N.E.3d 955, 970 (Ind. Ct. App. 2016) (citing

       Riehle v. State, 823 N.E.2d 287, 296 (Ind. Ct. App. 2005), trans. denied), trans.

       denied. The doctrine involves those instances where a defendant’s conduct

       amounts to only a single, chargeable crime such that the State is prevented from

       charging a defendant twice for the same offense. Id.


[32]   Here, the State charged Leistner with two distinct crimes – one involving the

       penetration of C.E.’s sex organ and one involving the penetration of C.E.’s

       anus. Leistner argues that because both offenses occurred in a relatively short

       period of time and were similar in nature, his continuous actions should prevent

       him from being convicted of two crimes. However, “the purpose of the

       continuing crime doctrine is to prevent the State from charging a defendant

       twice for the same continuous offense.” Firestone v. State, 838 N.E.2d 468, 472

       (Ind. Ct. App. 2005). Even when committed in close succession, two distinct

       sex acts are separate and distinct crimes not subject to the continuous crime

       doctrine. See id. (holding crimes of rape and criminal deviate conduct were not

       continuous but separate and distinct crimes where defendant raped victim then

       forced her to perform oral sex on him afterward). The continuity of Leistner’s

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-491 | December 19, 2018   Page 20 of 26
       actions – penetrating C.E.’s sex organ and her anus in the span of several

       minutes – does not negate that fact that the acts were completely separate

       offenses accomplished by separate actions. The continuous crime doctrine did

       not apply to Leistner’s two child molesting convictions.


                                     IV. Inappropriate Sentence
[33]   Pursuant to Indiana Appellate Rule 7(B), this court “may revise a sentence

       authorized by statute if, after due consideration of the trial court’s decision, the

       [c]ourt finds that the sentence is inappropriate in light of the nature of the

       offense and the character of the offender.” Our Supreme Court has explained

       that the principal role of appellate review should be to attempt to leaven the

       outliers, “not to achieve a perceived ‘correct’ result in each case.” Cardwell v.

       State, 895 N.E.2d 1219, 1225 (Ind. 2008). We independently examine the

       nature of Leistner’s offense and his character under Appellate Rule 7(B) with

       substantial deference to the trial court’s sentence. Satterfield v. State, 33 N.E.3d

       344, 355 (Ind. 2015). “In conducting our review, 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.’” Barker v.

       State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied. Whether a

       sentence is inappropriate ultimately depends upon “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.” Cardwell, 895 N.E.2d at

       1224. Leistner bears the burden of persuading this court that his sentence is

       inappropriate. Id.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-491 | December 19, 2018   Page 21 of 26
[34]   Leistner argues that his sentence is inappropriate in light of the nature of the

       offense and the character of the offender. As to the nature of his offenses,

       Leistner contends that, although heinous, the child molesting offenses do not

       allege facts in excess of those necessary to prove the crime and that the evidence

       does not contain extraordinary circumstances. Appellant’s Br. at 35. As to his

       character, Leistner asserts that the mitigating factors he presented to the trial

       court offset his criminal history and support that his sentence should be revised.

       These mitigating factors include that (1) Leistner suffers from alcohol and drug

       problems, (2) it is not conclusive that he would not affirmatively respond to

       probation or short-term imprisonment, (3) long-term imprisonment will result

       in undue hardship to his children, (4) he has no history of sex-related crimes or

       impermissible sexual acts, and (5) he acknowledged the wrongfulness of his acts

       and expressed remorse.


[35]   When determining whether a sentence is inappropriate, the advisory sentence is

       the starting point the legislature has selected as an appropriate sentence for the

       crime committed. Kunberger v. State, 46 N.E.3d 966, 973 (Ind. Ct. App. 2015);

       Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014). Leistner was

       convicted of two counts of Level 1 felony, and the advisory sentence for a Level

       1 felony conviction is thirty years, with a range of between twenty and forty

       years. Ind. Code § 35-50-2-4(b). Leistner was also convicted of a Class A

       misdemeanor, for which a person shall be imprisoned for a fixed term of not

       more than one year. Ind. Code § 35-50-3-2. Leistner received a sentence of

       forty years for each of his Level 1 felony convictions and a sentence of one year


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-491 | December 19, 2018   Page 22 of 26
       for his Class A misdemeanor conviction, with the sentences ordered to run

       concurrently for an aggregate, executed sentence of forty years.


[36]   As this court has recognized, the nature of the offense is found in the details

       and circumstances of the commission of the offense and the defendant’s

       participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). Here,

       Leistner entered C.E.’s bedroom under the guise of checking her for ticks and

       then proceeded to spend several minutes touching, fondling, and ultimately

       penetrating both her sex organ and her anus. As the trial court found,

       Leistner’s actions were made more egregious by the fact that he exploited the

       position of trust he held with C.E. as he had been a father figure living with her

       since she was three years old. Leistner’s actions in violating C.E. were made

       more horrific in that he recorded his actions without her knowledge or consent.

       We do not find that Leistner’s sentence is inappropriate in light of the nature of

       the offenses.


[37]   The character of the offender is found in what we learn of the offender’s life and

       conduct. Perry, 78 N.E.3d at 13. When considering the character of the

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

       986 N.E.2d 852, 857 (Ind. Ct. App. 2013). The evidence presented at Leistner’s

       sentencing showed that, even though he was only thirty-six years, Leistner had

       an extensive criminal history that included eight misdemeanors convictions and

       one felony conviction. It was also shown that Leistner had used numerous

       illegal drugs, misused and illegally obtained prescription medications, and had

       a history of alcohol-related arrests. Around the time of his crimes in this case,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-491 | December 19, 2018   Page 23 of 26
       he was still drinking alcohol, using methamphetamine and marijuana, and

       abusing opiates and illegally obtained morphine. Appellant’s App. Vol. 2 at 164.

       His history of criminal activity and failure to address his substance abuse

       problems do not reflect well on his character.


[38]   Additionally, as previously stated, this crime involved the violation of a

       position of trust that Leistner held with C.E. The commission of these offenses

       and the violation of the father-figure role that he had played in C.E.’s life since

       she was very young, reflect poorly on Leistner’s character and do not support

       that his sentence is inappropriate. Further, although Leistner claimed to

       appreciate the seriousness of his offenses, in a letter written to the trial court, he

       stated that he has “never harmed a child nor would [he.]” Id. at 153. However,

       his actions of violating C.E. and recording his conduct did harm C.E. We,

       therefore, conclude that in looking at Leistner’s character and the nature of his

       offenses, his sentence is not inappropriate.


                                             V.      Cross-Appeal
[39]   The State cross-appeals and contends that the trial court erred in refusing to find

       Leistner to be a sexually violent predator. The State asserts that the trial court

       could not find that Leistner was not a sexually violent predator because, under

       the applicable statute, the trial court did not have any discretion in making such

       a determination as Leistner meets the statutory definition by operation of law.

       We agree.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-491 | December 19, 2018   Page 24 of 26
[40]   At sentencing, without explaining its reasoning, the trial court stated that it

       would not find Leistner to be a sexually violent predator, stating “I don’t

       believe he qualifies pursuant to that definition.” Tr. Vol. 2 at 197. However,

       under Indiana Code section 35-38-1-7.5, a person who, being at least eighteen

       (18) years of age, commits an offense described in: . . . [Indiana Code section]

       35-42-4-3 as a . . . Level 1 . . . felony . . . is a sexually violent predator.” Ind.

       Code § 35-38-1-7.5(b)(1)(C) (emphasis added). Leistner was convicted of two

       counts of Level 1 felony child molesting under Indiana Code section 35-42-4-3.

       Sexually violent predator status “under Indiana Code section 35-38-1-7.5(b) is

       determined by the statute itself.” Lemmon v. Harris, 949 N.E.2d 803, 815 (Ind.

       2011). It is not the result of a discretionary act by the trial court or by the

       Department of Correction. See id. If a person is convicted of one of the

       enumerated crimes in the statute, he is a sexually violent predator per se, and

       there is no need for a hearing or any other process to determine if he meets the

       statutory definition. See Vickery v. State, 932 N.E.2d 678, 683 (Ind. Ct. App.

       2010) (holding that a defendant who had been convicted of a qualifying crime

       under the statute had no due process right to a hearing to try to prove that he

       did not meet the definition); see also Lemmon, 949 N.E.2d at 808 (stating that the

       legislature had changed the statute from requiring the court to determine

       sexually violent predator status at the sentencing hearing to the automatic

       designation of sexually violent predator status and that at the time the

       defendant was released from prison in December 2007, the sentencing court

       was no longer required to have determined a person’s status as a sexually

       violent predator); Stockert v. State, 44 N.E.3d 78, 82 (Ind. Ct. App. 2015)
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-491 | December 19, 2018   Page 25 of 26
       (finding that, because the defendant was convicted of a qualifying offense, he

       was a sexually violent predator by operation of law), trans. denied.


[41]   Here, Leistner was convicted of two crimes that each qualify him per se as a

       sexually violent predator under the statute. Leistner was convicted of two

       counts of Level 1 felony child molesting. Therefore, he is a sexually violent

       predator by operation of law, and the trial court was required by statute to find

       him as such. Therefore, we conclude that the trial court erred when it refused

       to find Leistner to be a sexually violent predator and remand the case to the

       trial court to correct this error and enter a finding that Leistner is a sexually

       violent predator.4


[42]   Affirmed in part, reversed in part, and remanded.


       Vaidik, C.J., and Riley, J., concur.




       4
         We note that Leistner contends that the State has waived this issue for failure to object to the trial court,
       arguing that “a party may not present an argument or issue on appeal unless the party raised that argument
       or issue before the trial court.” Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004). However, our Supreme
       Court had held that “sound policy and judicial economy favor permitting the State to present claims of illegal
       sentence on appeal when the issue is a pure question of law that does not require resort to any evidence
       outside the appellate record.” Hardley v. State, 905 N.E.2d 399, 403 (Ind. 2009). Here, the State’s claim of
       trial court error in sentencing Leistner is a question of law because the trial court was mandated by statute to
       find Leistner to be a sexually violent predator.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-491 | December 19, 2018                  Page 26 of 26
