MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                             Aug 20 2018, 9:28 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Alexander L. Hoover                                      Curtis T. Hill, Jr.
Law Office of Christopher G. Walter,                     Attorney General of Indiana
P.C.
                                                         Lyubov Gore
Nappanee, Indiana                                        Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Donna M. Adams,                                          August 20, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-886
        v.                                               Appeal from the Marshall Superior
                                                         Court
State of Indiana,                                        The Honorable Robert O. Bowen,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         50D01-1508-F1-5



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-886 | August 20, 2018                 Page 1 of 7
                                          Case Summary
[1]   Donna M. Adams (“Adams”) appeals her sentence following her guilty plea to

      child molesting, as a Level 1 felony.1 On appeal she raises one issue, namely,

      whether her sentence is inappropriate in light of the nature of the offense and

      her character.


[2]   We affirm.



                               Facts and Procedural History
[3]   In September of 2014, Adams was staying at the Economy Inn in Plymouth

      with her then-boyfriend, Donald Irwin, Jr. (“Irwin”), and her then seven-year-

      old daughter, M.A. On one occasion, Adams left the hotel room to do laundry

      and, when she came back, she found M.A. naked with Irwin. Adams asked

      Irwin what was going on, but he would not say anything. Adams then got

      M.A. dressed and took her to M.A.’s father’s house. Adams also “[saw Irwin]

      force himself on [M.A., and saw] him lick [M.A.].” Tr. at 12.


[4]   The weekend after Adams found M.A. naked with Irwin, Adams and Irwin

      picked M.A. up from her father’s house and took her back to the motel room.

      Adams then went out to the store and, when she returned to the motel room,

      Irwin told Adams to “eat [M.A.] out” or else he would kill both Adams and her




      1
          Ind. Code § 35-42-4-3(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-886 | August 20, 2018   Page 2 of 7
      children, M.A. and M.A.’s younger brother, C.A.. Id. at 11. Irwin would not

      allow Adams to have her cellular telephone. Adams then proceeded to perform

      oral sex upon M.A. Adams did not report any of the incidents of the sexual

      abuse of M.A. to the authorities, and she did not obtain any counseling for

      M.A.


[5]   Approximately one year later, M.A. disclosed Adams’s molestation of M.A. to

      M.A.’s paternal aunt, who then reported the incident to M.A.’s father. M.A.’s

      father reported the incident to the police and, following an investigation,

      Adams was charged on August 13, 2015, with child molesting as a Level 1

      felony. In interviews with the police, both M.A. and C.A. “implicated [Adams]

      in inappropriate sexual activity” and did not mention Irwin being present

      during such activity. App. Vol. II at 15. On March 30, 2016, Adams

      submitted a plea agreement under which she pled guilty as charged and her

      maximum sentence was capped at thirty years.


[6]   At Adams’s May 5, 2016, sentencing hearing, the trial court accepted the plea

      agreement and made the following statement:


              I agree that the mitigating circumstances are, you have a clean
              [criminal] record. You’ve led a law-abiding life until this
              incident. I’m going to also state as a mitigating record [sic] just
              based on what has been presented today is that it appears that
              you could have been under duress for a threat against you when
              this occurred. Um, those are the mitigating circumstances.


              The aggravating circumstances are obviously the age of the
              victim, and it was your daughter. It was a violation of one of

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-886 | August 20, 2018   Page 3 of 7
              [the] most sacred trusts that there is and you violated that trust,
              and her life, although, could be damaged forever. Who knows at
              this point.


              Now those balance out which would justify an advisory sentence,
              but I’m going to go a little bit below that. I’m going to go at
              twenty five (25) years somewhere between the minimum
              sentence and the advisory sentence because of the fact that
              there’s been a clean [criminal] record and because of the fact that
              you—you indicate, and it appears that you could have been
              under duress, threat of violence when this occurred, but it’s still
              twenty five (25) years and a fine of a dollar and costs.


      Tr. at 18-19. The trial court also issued its sentencing order in writing. App.

      Vol. II at 97-98. Adams now appeals her sentence.



                                 Discussion and Decision
[7]   Adams contends that her sentence is inappropriate in light of the nature of the

      offense and her character. Article 7, Sections 4 and 6 of the Indiana

      Constitution “authorize[] independent appellate review and revision of a

      sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind.

      Ct. App. 2007) (alteration original). This appellate authority is implemented

      through Indiana Appellate Rule 7(B). Id. Revision of a sentence under Rule

      7(B) requires the appellant to demonstrate that her sentence is inappropriate in

      light of the nature of her offenses and her character. See Ind. Appellate Rule

      7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess

      the trial court’s recognition or non-recognition of aggravators and mitigators as

      an initial guide to determining whether the sentence imposed was
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-886 | August 20, 2018   Page 4 of 7
      inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006).

      However, “a defendant must persuade the appellate court that his or her

      sentence has met th[e] inappropriateness standard of review.” Roush, 875

      N.E.2d at 812 (alteration original).


[8]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

      sentence to the circumstances presented, and the trial court’s judgment “should

      receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222, 1224

      (Ind. 2008). The principal role of appellate review is to attempt to “leaven the

      outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the

      end of the day turns on “our sense of the culpability of the defendant, the

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

      come to light in a given case.” Id. at 1224. The question is not whether another

      sentence is more appropriate, but rather whether the sentence imposed is

      inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).

      Deference to the trial court “prevail[s] unless overcome by compelling evidence

      portraying in a positive light the nature of the offense (such as accompanied by

      restraint, regard, and lack of brutality) and the defendant’s character (such as

      substantial virtuous traits or persistent examples of good character).” Stephenson

      v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[9]   Adams contends that the nature of the offense does not support a twenty-five-

      year sentence. Our analysis of the nature of the offense begins with the

      advisory sentence, which was selected by the legislature as an appropriate

      sentence for the crime committed. Reis v. State, 88 N.E.3d 1099, 1104 (Ind. Ct.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-886 | August 20, 2018   Page 5 of 7
       App. 2017). Here, Adams’s sentence is five years less than the advisory

       sentence and the maximum sentence to which she agreed in her plea

       agreement; this weighs in favor of the appropriateness of the sentence.

       Moreover, when considering the nature of the offense, we look at the

       defendant’s actions in comparison to the elements of the offense. Cannon v.

       State, 99 N.E.3d 274, 280 (Ind. Ct. App. 2018). Child molestation is among the

       most severe and heinous of offenses and, here, the crime was made worse by

       the fact that Adams molested her own daughter, who was only seven years old

       at the time. As the trial court properly recognized, this criminal behavior was a

       violation of the sacred trust between a parent and a child and could cause long-

       term emotional damage to M.A. We cannot say Adams’s sentence was

       inappropriate in light of the nature of the offense.


[10]   Adams also maintains that the sentence is inappropriate in light of her

       character. In support of that claim, she points out that she has no criminal

       history. That is true and the trial court considered that fact as a mitigating

       circumstance. However, Adams witnessed her ex-boyfriend molest her young

       daughter on previous occasions and did nothing about it. She then molested

       her young daughter herself and never reported it to the authorities or sought

       any counseling for her daughter. These facts reflect very poorly on Adams’s

       character. Thus, we cannot say that her sentence is inappropriate in light of her

       character.


[11]   Adams asserts that the minimum twenty-year sentence for her crime would be

       more appropriate given that she acted under duress. First, we note that the trial

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-886 | August 20, 2018   Page 6 of 7
       court did take into consideration the mitigating factor of duress and therefore

       imposed a sentence even lower than the advisory sentence and the maximum

       sentence to which Adams agreed in her plea. We owe deference to the trial

       court’s judgment. Stephenson, 29 N.E.3d at 122. Second, our Rule 7(B) analysis

       does not focus on whether there are more appropriate sentences, only on

       whether the sentence imposed is inappropriate. King, 894 N.E.2d at 268. Thus,

       we focus less upon comparing the facts of a case to others, whether real or

       hypothetical, and more upon the nature, extent, and depravity of the offense for

       which the defendant is being sentenced and what it reveals about her character.

       Anglin v. State, 787 N.E.2d 1012, 1019 (Ind. Ct. App. 2003), trans. denied; see also

       Brown v. State, 760 N.E.2d 243, 248 (Ind. Ct. App. 2002) (“Although one can

       imagine facts that might be worse than those before us here, such does not

       lessen the severity of [defendant’s] conduct or bolster the quality of his character

       by comparison.”), trans. denied.


[12]   Adams’s sentence is not inappropriate given the nature of the offenses and her

       character.


[13]   Affirmed.


       Mathias, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-886 | August 20, 2018   Page 7 of 7
