      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                                    Feb 18 2016, 8:46 am
      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
      Marce Gonzalez, Jr.                                      Gregory F. Zoeller
      Dyer, Indiana                                            Attorney General of Indiana
                                                               Christina D. Pace
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Larry Randolph,                                          February 18, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               45A03-1504-CR-141
              v.                                               Appeal from the Lake Superior
                                                               Court
      State of Indiana,                                        The Honorable Diane R. Boswell,
      Appellee-Plaintiff                                       Judge
                                                               Trial Court Cause No.
                                                               45G03-1305-FA-13



      Mathias, Judge.


[1]   Larry Randolph (“Randolph”) was convicted in Lake Superior Court of two

      counts of Class A felony child molesting, two counts of Class B felony sexual


      Court of Appeals of Indiana | Memorandum Decision 45A03-1504-CR-141 | February 18, 2016          Page 1 of 12
      misconduct with a minor, Class C felony sexual misconduct with a minor, and

      Class C felony child molesting. Randolph was ordered to serve an aggregate

      term of sixty-eight years. Randolph appeals and presents two issues, which we

      restate as:

             I. Whether the evidence was sufficient to support Randolph’s conviction of
                Count II Class A felony child molesting and;

             II. Whether Randolph’s sentence is inappropriate in light of the nature of
                 the offense and the character of the offender.

[2]   We affirm.

                                           Facts and Procedural History


[3]   In 2003, Randolph began dating J.E.’s mother (“Mother”). Randolph met J.E.

      later, in 2005, when she was five years old, after J.E. moved to Champaign,

      Illinois to live with Mother and Randolph. In 2006, Randolph, Mother, and

      J.E. moved to Gary, Indiana to live with J.E.’s grandfather. In March 2007,

      J.E.’s grandfather moved to a house on Tyler Street. J.E.’s grandfather,

      Randolph, Mother, J.E., and J.E.’s cousins, “D” and “J” all resided at the Tyler

      Street home.


[4]   Mother struggled with drug addiction and left J.E. with Randolph on Labor

      Day in 2007, when J.E. was nine years old.1 Randolph and J.E. continued to

      live with J.E.’s grandfather. Randolph became J.E.’s primary caregiver and



      1
          J.E. saw Mother several years after she left, but Mother remains disconnected from J.E.’s life.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1504-CR-141 | February 18, 2016               Page 2 of 12
      raised her as his own daughter. Shortly after Mother left, Randolph made J.E.

      touch his penis when they were alone in his bedroom. J.E. told her cousin “D”

      about the incident.


[5]   In 2009, J.E.’s grandfather, J.E., Randolph, “D”, and “J” moved to another

      home on Pennsylvania Street in Gary, Indiana when J.E. was ten years old.

      One year later, when no one else was home, Randolph came into J.E.’s

      bedroom that she shared with her cousins, put her on top of him, and made J.E.

      hump him. Both J.E. and Randolph were fully clothed during this incident.

      Another time, Randolph forced J.E. to perform oral sex on him in the basement

      of the home, which resulted in J.E. gagging and vomiting in Randolph’s hand.

      On a different occasion while J.E. was watching television with “D” in the

      living room, Randolph told J.E. that he needed to talk to her about something

      school related. J.E. followed Randolph into his bedroom, and he locked the

      door. Randolph took off J.E.’s clothes, pulled down his pants, and then rubbed

      his penis against her vagina. He instructed her to say, “I love you, daddy,”

      which J.E. refused to do. Tr. p. 74-75. J.E. cried and asked Randolph to stop,

      but he continued to rub his penis against her vagina. Tr. p. 75.

[6]   Randolph began dating Pashiana Long (“Long”) while he lived at the

      Pennsylvania Street home. Long, Long’s daughter from a prior relationship,

      and Long’s sister moved into J.E.’s grandfather’s home in 2010. Long and

      Randolph’s daughter was born in January 2012. In February 2012, Randolph

      married Long and bought a house on Maryland Street in Gary, Indiana. J.E.



      Court of Appeals of Indiana | Memorandum Decision 45A03-1504-CR-141 | February 18, 2016   Page 3 of 12
      moved to the Maryland Street home with Randolph, Long, and Long’s other

      children when she was thirteen years old.

[7]   Several more incidents took place at the Maryland Street address. While J.E.

      was in Randolph’s bedroom, Randolph tried to insert his penis into her vagina.

      His penis went in “a little bit.” Tr. p. 79. Another time, J.E. had just exited the

      bathtub, and Randolph came in the bathroom, rubbed his penis against her

      buttocks, pulled down her pants, and attempted to insert his penis into her anus.

      While Randolph was in the bathroom, Long walked into the bathroom but did

      not see what was going on because Randolph claimed that he was “looking for

      something.” Tr. p. 80.

[8]   Throughout the time that J.E. lived at the Maryland Street home, again when

      no one was home, Randolph called J.E.’s breasts “jibblies” and told her that

      they were “juicy” and were getting big and “perky.” Tr. 81. On numerous

      occasions, Randolph would reach under J.E.’s shirt and grab her breasts with

      his hands and suck on her nipples. Id. On another occasion while J.E. and

      Randolph were in the basement sitting on the futon, Randolph performed oral

      sex on J.E.

[9]   On July 20, 2012, when J.E. was fourteen years old, Long went out with her

      sister for the evening and left the children alone with Randolph. J.E.’s cousin,

      “K”, called and asked J.E. if she could spend the night. J.E. told her that she

      could, and Randolph became angry that J.E. did not ask him for permission.

      J.E. went to her room after Randolph scolded her. Randolph then came into


      Court of Appeals of Indiana | Memorandum Decision 45A03-1504-CR-141 | February 18, 2016   Page 4 of 12
       J.E.’s room, pushed her down on the bed, held her arms down so she could not

       move, removed her clothes, and then removed his own clothes. Randolph

       rubbed his penis against her vagina and ejaculated on her bedspread. He then

       instructed J.E. to take her bedspread downstairs so he could wash it.

[10]   J.E. told her cousin, “D”, each time an incident with Randolph occurred, but

       she did not tell anyone else because Randolph threatened that if she told

       anyone what happened that Randolph would go to jail and J.E. would be put in

       foster care. After the July 20, 2012 incident, “D” finally told her mother,

       Carolyn, about what had happened to J.E. On July 22, 2012, J.E. moved out of

       the Maryland Street home and into her Aunt Tamieca’s residence.

[11]   On May 30, 2013, the State charged Randolph with two counts of Class A

       felony child molesting, Class A felony attempted child molesting, two counts of

       Class B felony sexual misconduct with a minor, Class C felony sexual

       misconduct with a minor, and Class C felony child molesting. A jury trial was

       held on August 4, 6, and 7, 2014. The jury found Randolph guilty on all

       charges.


[12]   A sentencing hearing was held on March 20, 2015. The trial court found that

       Randolph was in a position of care and custody of J.E. and the events occurred

       over a prolonged period of time as aggravating circumstances. Randolph’s lack

       of significant prior criminal history was found to be a mitigating circumstance.

       The court entered judgment on all counts except the Class A felony attempted

       child molesting charge. The court ordered Randolph to serve consecutive terms


       Court of Appeals of Indiana | Memorandum Decision 45A03-1504-CR-141 | February 18, 2016   Page 5 of 12
       of twenty years for each Class A felony conviction, ten years for each Class B

       felony conviction, and four years for each Class C felony conviction, for an

       aggregate sixty-eight-year sentence in the Department of Correction. Randolph

       now appeals one of the two Class A felony child molesting convictions and his

       sixty-eight-year aggregate sentence.

                                       I. Sufficiency of the Evidence


[13]   Randolph argues that the Class A felony child molesting conviction resulting

       from Count II of the charging information was not supported by sufficient

       evidence. “Upon a challenge to the sufficiency of evidence to support a

       conviction, a reviewing court does not reweigh the evidence or judge the

       credibility of witnesses, and respects the jury’s exclusive province to weigh

       conflicting evidence. Montgomery v. State, 878 N.E.2d 262, 265 (Ind. Ct. App.

       2007) (quoting McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)). We consider

       only probative evidence and reasonable inferences supporting the verdict. Id.

       We must affirm if the probative evidence and reasonable inferences drawn from

       the evidence could have allowed a reasonable trier of fact to find the defendant

       guilty beyond a reasonable doubt. Id.


[14]   Randolph was charged with performing or submitting to sexual intercourse

       with J.E, a child under fourteen (14) years of age.2 Randolph contends that the




       2
        The Count I, Class A felony child molesting charge alleged that Randolph performed or submitted to
       deviate sexual conduct with J.E.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1504-CR-141 | February 18, 2016      Page 6 of 12
       State failed to meet the sexual intercourse element of Class A felony child

       molesting because there was no proof of penetration. Indiana Code section 35-

       42-4-3(a)3 provides:


               A person who, with a child under fourteen (14) years of age,
               performs or submits to sexual intercourse or deviate sexual
               conduct commits child molesting, a Class B felony. However, the
               offense is a Class A felony if: (1) it is committed by a person at
               least twenty-one (21) years of age;


       Specifically, Randolph argues that the jury was instructed as to the legal

       definition of sexual intercourse as meaning an act that includes any

       penetration of the female sex organ by the male sex organ. Appellant’s

       App. p. 82; Ind. Code § 35-31.5-2-302.


[15]   The State argued at closing that:


               [p]enetration means the slightest amount of the sex organ, not
               just the vagina. The vaginal area is within the sex organ. The
               slightest amount of the sex organ. That includes the vulva, that
               includes the labia minora, the labia majora.


       Tr. p. 320; see Mastin v. State, 966 N.E.2d 197, 202 (Ind. Ct. App. 2012).

       This is a correct statement of the law. See Morales v. State, 19 N.E.3d 292,

       298 (Ind. Ct. App. 2014) (holding that “[p]enetration of the external




       3
         We note that, effective July 1, 2014, the statute was amended. However, because Randolph committed his
       crimes prior to this revision, we refer to the statue in effect at that time.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1504-CR-141 | February 18, 2016      Page 7 of 12
       genitalia, or vulva, is sufficient to support an unlawful sexual intercourse

       conviction”); see also Mastin, 966 N.E.2d at 202 (citing Pasco v. State, 563

       N.E.2d 587, 590 (Ind. 1990)) (holding that “[p]enetration can be inferred

       from circumstantial evidence”).


[16]   A conviction for child molesting may rest solely upon the uncorroborated

       testimony of the victim. Parmley v. State, 699 N.E.2d 288, 291 (Ind. Ct. App.

       1998) (quoting Heeter v. State, 661 N.E.2d 612, 616 (Ind. Ct. App. 1996)). J.E.

       testified at trial that when she was under fourteen years old, living at the

       Pennsylvania Street home, Randolph told her that he needed to speak to her

       about school and instructed her to follow him into his bedroom. Randolph then

       locked the door, took off J.E.’s clothing, pulled down his pants, climbed on top

       of her, and rubbed his penis against her vagina. Tr. p. 74. Randolph argues that

       J.E. also testified that no penetration or intercourse took place at the

       Pennsylvania Street home. However, J.E.’s testimony established that

       penetration occurred when Randolph rubbed his penis against her vagina with

       their clothes off.

[17]   Randolph relies on his own testimony that this incident never occurred. The

       jury has the discretion to weigh J.E.’s credibility against Randolph’s credibility.

       We must respect this discretion. See McHenry, 820 N.E.2d at 126. For all of

       these reasons, we conclude that the State presented sufficient evidence to

       support Randolph’s conviction for Count II Class A felony child molesting.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1504-CR-141 | February 18, 2016   Page 8 of 12
                                         II. Inappropriate Sentence


[18]   Randolph further argues that his sentence is inappropriate in light of the nature

       of the offenses and his character. Under Indiana Appellate Rule 7(B):

               [We] may revise a sentence authorized by statute if, after due
               consideration of the trial court’s decision, the Court finds that the
               sentence is inappropriate in light of the nature of the offense and
               the character of the offender.


       When reviewing a sentence, our principal role is to “leaven the outliers” rather

       than necessarily achieve what is perceived as the “correct” result. Conley v. State,

       972 N.E.2d 864, 876 (Ind. 2012). We do not look to determine if the sentence

       was appropriate; instead we look to make sure the sentence was not

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

       Sentencing is principally a discretionary function in which the trial court’s

       judgment should receive considerable deference. Cardwell v. State, 895 N.E.2d

       1219, 1222 (Ind. 2008) (citing Morgan v. State, 675 N.E.2d 1067, 1072 (Ind.

       1996)). Therefore, the defendant has the burden of persuading us that his

       sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[19]   The advisory sentence is the starting point the legislature has selected as an

       appropriate sentence for the crime committed in assessing the nature of the

       offense. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007). “The ‘character of

       the offender’ portion of the sentence involves consideration of the aggravating



       Court of Appeals of Indiana | Memorandum Decision 45A03-1504-CR-141 | February 18, 2016   Page 9 of 12
       and mitigating circumstances and general considerations.” Clara v. State, 899

       N.E.2d 733, 736 (Ind. Ct. App. 2009).

[20]   Randolph was convicted of Count I, Class A felony child molesting; Count II,

       Class A felony child molesting; Count IV, Class B felony sexual misconduct

       with a minor; Count V, Class B felony sexual misconduct with a minor; Count

       VI, Class C felony sexual misconduct with a minor, and Count VII, Class C

       felony child molesting.4 During the time of Randolph’s offenses, the sentencing

       range for a Class A felony was twenty to fifty years, with thirty years being the

       advisory sentence. See Ind. Code §35-50-2-4. The sentencing range for a Class B

       felony was six to twenty years, with ten years being the advisory sentence. See

       Ind. Code § 35-50-2-5. The sentencing range for a Class C felony was two to

       eight years, with four years being the advisory sentence. See Ind. Code § 35-50-

       2-6.


[21]   The trial court imposed a sentence of twenty years for Count I, twenty years for

       Count II, ten years for Count IV, ten years for Count V, four years for Count

       VI, and four years for Count VII. The trial court ordered that the sentences for

       Counts I, II, IV, V, VI, and VII be served consecutively, for an aggregate

       sentence of sixty-eight years.

[22]   Concerning the nature of the offense, we observe that Randolph sexually

       abused J.E. for a period of five years, starting when J.E. was only nine years



       4
           The trial court did not enter judgment on Count III, Class A attempted child molesting against Randolph.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1504-CR-141 | February 18, 2016          Page 10 of 12
       old. After Mother left, Randolph was J.E.’s primary caregiver and assumed the

       role of J.E.’s father. He violated the position of trust he held with J.E. in

       committing these offenses. Further, Randolph threatened J.E. that if she told

       anyone what had happened that he would go to prison and that she would end

       up in foster care. Mother had already left J.E. when she was nine years old, and

       J.E. was afraid that she would lose contact with her other family members if she

       said anything about any of the incidents. Randolph manipulated J.E. and

       played on her fears to protect himself, which is particularly reprehensible.


[23]   The trial court considered Randolph’s lack of significant criminal history as a

       mitigating factor. Accordingly, the trial court imposed a minimum sentence for

       each of the Class A and B felony charges and an advisory sentence for each

       Class C felony to be served consecutively. In order to impose consecutive

       sentences, the trial court must find at least one aggravating circumstance.

       Rhoiney v. State, 940 N.E.2d 841, 846 (Ind. Ct. App. 2010). Here, the trial court

       noted Randolph’s position of trust and the extended period of time over which

       the offenses were committed as aggravating circumstances. “The same

       aggravating circumstance may be used to both enhance a sentence and justify

       consecutive terms.” Id. Therefore, the trial court’s imposition of four minimum

       sentences and two advisory sentences to be served consecutively for an

       aggregate sentence of sixty-eight years in the Department of Correction was not

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

       offender.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1504-CR-141 | February 18, 2016   Page 11 of 12
                                                   Conclusion


[24]   The State presented sufficient evidence to support Randolph’s Count II Class A

       felony child molesting conviction. Further, Randolph’s aggregate sixty-eight-

       year sentence imposed by the trial court was not inappropriate in light of the

       nature of the offenses and Randolph’s character.

[25]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1504-CR-141 | February 18, 2016   Page 12 of 12
