                                                               FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                        Feb 29 2012, 9:40 am
any court except for the purpose of
establishing the defense of res judicata,
                                                                    CLERK
collateral estoppel, or the law of the                            of the supreme court,
                                                                  court of appeals and
                                                                         tax court
case.

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

DONALD R. SHULER                                GREGORY F. ZOELLER
Barkes, Kolbus & Rife, LLP                      Attorney General of Indiana
Goshen, Indiana
                                                J.T.WHITEHEAD
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

CALVIN J. SPAULDING,                            )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )        No. 20A03-1107-CR-346
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE ELKHART SUPERIOR COURT
                       The Honorable George W. Biddlecome, Judge
                             Cause No. 20D03-0803-FA-23



                                     February 29, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       Calvin J. Spaulding appeals his sentence for three counts of child molesting as

class A felonies and being an habitual offender. Spaulding raises two issues, which we

revise and restate as:

       I.       Whether the trial court abused its discretion in sentencing Spaulding;
                and

       II.      Whether his sentence is inappropriate in light of the nature of the
                offense and the character of the offender.

We affirm.

       The relevant facts follow. Lynn Jones met Spaulding when she was ten years old

and her mother married Spaulding’s father. Spaulding lived primarily with his mother

but visited his father on the weekends. A couple of years later, Jones moved to West

Virginia and did not have much contact with Spaulding. On March 2, 1996, Jones gave

birth to J.K.

       In the summer of 2003, Jones became reacquainted with Spaulding while they

were visiting a mutual sister in Goshen, Indiana. Jones and Spaulding would “do the

weekend thing, races, and do things with the kids,” and “it just progressed into

boyfriend/girlfriend.” Transcript at 452. Spaulding moved in with Jones when J.K. was

seven or eight years old. Spaulding assumed the role of father to J.K., and J.K. called

Spaulding “Papa.” Id. at 375.

       In 2007, Spaulding began to provide eleven-year-old J.K. with cigarettes and

alcohol and told J.K. that if he was going to give her cigarettes and alcohol, then “[J.K.]

would have to do something for him,” but he did not explain what she would have to do.

Id. at 383. A couple of weeks later, J.K. stayed home sick from school with Spaulding

                                              2
while Jones was at work. J.K. was in Jones’s bed when Spaulding came into the room

and lay next to her. Spaulding put his hand on J.K.’s vagina over her clothes and then

moved his hand into her pants and rubbed her vagina with his finger. When J.K. left the

room, Spaulding told her not to tell anybody.

       On another occasion, Spaulding went downstairs and joined J.K. in the basement

while her mother was upstairs. Spaulding gave J.K. cigarettes and told her to remove her

pants and bend over, and Spaulding then inserted his penis into her vagina. At some

point, J.K. told Spaulding that she did not want to do this, and Spaulding told her that he

would stop giving her alcohol and cigarettes.

       On December 1, 2007, J.K. was in her room when Spaulding entered, and without

being asked, J.K. “took off everything because [she] knew what [Spaulding] wanted”

because her mother was gone. Id. at 391. J.K. lay down, and Spaulding took off his

pants, lay down on top of J.K., and inserted his penis into her vagina. Jones called to say

that she was coming home, and Spaulding left J.K.’s room. When Jones returned home,

Spaulding took J.K.’s older sister to a winter dance at her school.

       After Spaulding left, Jones told J.K. to clean her room, and J.K. started screaming

at her mother and slamming doors. Jones asked J.K. what her problem was, and J.K. told

her mother that “[i]f I told you what was going on, it would ruin this family.” Id. at 456.

At some point later and approximately four months after the molestation began, J.K. told

her mother that Spaulding had been molesting her. When Spaulding returned to the

house, Jones started screaming at Spaulding, threw his clothes at him, and told him that

he had to move out, and Spaulding hung his head and said that “he was glad it was out in

                                             3
the open.” Id. at 458. Spaulding left the next day and told Jones that he was going to

turn himself in after he “helped her get [her] car running.” Id. at 464. For the next three

months, Spaulding was allowed to “have contact around [J.K.’s] residence.” Id. at 395.

       In late December, Spaulding called his sister, Shelia Blyly, and told her that he

was going to kill himself. Blyly asked Spaulding if he and his girlfriend had another

fight, and Spaulding replied, “yes, something like that.” Id. at 418. Spaulding also said

that he was tired of hurting the people he loves and told Blyly that he molested J.K. In

March 2008, Blyly went to a wedding reception and saw Spaulding, Jones, and J.K.

together.   Blyly then went home and called the Elkhart Police Department and

subsequently made a report at the police station.

       Elkhart City Police Detective Carlton Dean Conway called Spaulding’s place of

employment. Spaulding called Detective Conway the following day and told Detective

Conway that he “wanted to turn himself in” and that “he was the guilty one.” Id. at 496.

Spaulding then went to the police station and gave Detective Conway a statement.

Specifically, Spaulding told Detective Conway that he molested J.K. and “coerced her

into” “[s]exual intercourse, fellatio, cunnilingus.” Id. at 508, 510. Spaulding “talked

about how he caught [J.K.] stealing cigarette butts, and he used that as an . . . like

dangling a carrot on a stick.” Id. at 510. Spaulding also admitted that others were in the

house when he molested J.K. Spaulding stated that J.K. “didn’t know what she was

doing” and that she “went along with it, because sexual stimulation feels good, you

know.” Id. at 510-511. When Detective Conway asked Spaulding why Jones and he

waited so long before coming in to talk to him, Spaulding “said the reason why was

                                             4
because he was helping [Jones] fix a vehicle,” “they had property that needed to be

returned to friends that they had borrowed from,” “they had some puppies that they were

tending to,” and that “he wanted to reach out to his pastor for spiritual guidance and make

contact with J.K. to ask her for her forgiveness.” Id. at 513.

       On March 24, 2008, the State filed an information charging Spaulding with one

count of child molesting as a class A felony. On April 10, 2008, the State filed an

amended information charging Spaulding with being an habitual offender. On December

30, 2008, Spaulding filed a Motion to Determine Competency, which the court granted

and issued an Order for Mental Examination that same day. On April 23, 2009, after

receiving competency evaluations from two psychiatrists, the court determined that

Spaulding was competent to stand trial. In February 2011, the State filed an amended

information charging Spaulding with two additional counts of child molesting as class A

felonies.

       After a three-day jury trial in March 2011, the jury found Spaulding guilty of three

counts of child molesting as class A felonies, and Spaulding admitted to being an habitual

offender. At sentencing, the court characterized Spaulding as the worst of the worst. The

court found Spaulding’s criminal history, position of trust, and the use of cigarettes and

alcohol to “groom” J.K. as aggravators. Appellant’s Appendix at 148. The court also

“considered the fact that [Spaulding] molested [J.K.] on repeated occasions over an

extended period of time.” Id. The court sentenced Spaulding to fifty years for each count

of child molesting, ordered the sentences to be served concurrently with each other, and



                                             5
enhanced the sentence by thirty years due to the habitual offender finding. Accordingly,

Spaulding was sentenced to an aggregate term of eighty years.

                                             I.

       The first issue is whether the trial court abused its discretion in sentencing

Spaulding.   A trial court abuses its discretion if it: (1) fails “to enter a sentencing

statement at all;” (2) enters “a sentencing statement that explains reasons for imposing a

sentence – including a finding of aggravating and mitigating factors if any – but the

record does not support the reasons;” (3) enters a sentencing statement that “omits

reasons that are clearly supported by the record and advanced for consideration;” or (4)

considers reasons that “are improper as a matter of law.” Anglemyer v. State, 868 N.E.2d

482, 490-491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). If the trial

court has abused its discretion, we will remand for resentencing “if we cannot say with

confidence that the trial court would have imposed the same sentence had it properly

considered reasons that enjoy support in the record.” Id. at 491. However, the relative

weight or value assignable to reasons properly found, or those which should have been

found, is not subject to review for abuse of discretion. Id.

       Spaulding argues that the trial court abused its discretion in failing to identify his

depression as a significant mitigating factor. Spaulding points to the reports following

psychiatric examinations to determine his competency to stand trial. The State argues

that “Spaulding’s depression was not ever put into the record during trial . . . and so the

claim is waived” and that “there is nothing in the record to support treating his alleged



                                              6
depression as a mitigating factor for purposes of appellate review or remand.” Appellee’s

Brief at 11.

       Spaulding did not argue at the sentencing hearing that his alleged mental illness or

depression constituted a mitigating circumstance. As a result, we cannot say that the

court abused its discretion in failing to consider any alleged mental illness as a mitigating

circumstance. See Anglemyer, 868 N.E.2d at 492 (noting that “[a]s our courts have

determined in the past, the trial court does not abuse its discretion in failing to consider a

mitigating factor that was not raised at sentencing”); see also Carter v. State, 711 N.E.2d

835, 838-839 (Ind. 1999) (holding that the trial court did not abuse its discretion in failing

to consider a mitigating circumstance which was not raised at sentencing); Creekmore v.

State, 853 N.E.2d 523, 530 (Ind. Ct. App. 2006) (noting that “if the defendant fails to

advance a mitigating circumstance at sentencing, this court will presume that the factor is

not significant, and the defendant is precluded from advancing it as a mitigating

circumstance for the first time on appeal”), clarified on denial of reh’g, 858 N.E.2d 230.

                                             II.

       The next issue is whether Spaulding’s sentence is inappropriate in light of the

nature of the offense and the character of the offender. Ind. Appellate Rule 7(B) provides

that we “may revise a sentence authorized by statute if, after due consideration of the trial

court’s decision, [we find] that the sentence is inappropriate in light of the nature of the

offense and the character of the offender.” Under this rule, the burden is on the defendant

to persuade the appellate court that his or her sentence is inappropriate. Childress v.

State, 848 N.E.2d 1073, 1080 (Ind. 2006).

                                              7
         Spaulding argues that “the maximum enhancement imposed by the trial court

above the advisory sentence” is inappropriate. Appellant’s Brief at 15. Spaulding argues

that “[t]he nature of these offenses contain nothing particularly outrageous that is above

and beyond what is generally necessary to establish Child Molesting . . . .” Id. Spaulding

points out that all of his prior convictions are for offenses that occurred well over ten

years ago. Spaulding also argues that he “suffered from a depressive disorder, along with

prior diagnoses of mental health issues.” Id. at 17.

         The State points to the impact on J.K. of the offense, the position of trust, that

Spaulding “induced her into having sex with him by providing her with alcohol and

cigarettes,” and that “when J.K. told him she wanted the sex to stop, Spaulding threatened

to cut off her supply of alcohol and cigarettes.” Appellee’s Brief at 15. The State argues

that Spaulding committed the offenses against J.K. multiple times and that he could not

remember how many times he had sex with J.K. The State argues that “given the

frequency of the crimes’ commission, Spaulding could have been, and more than

arguably should have been, sentenced to consecutive sentences.” Id. at 16. The State

also argues that “Spaulding’s depression was not ever put into the record during trial . . .

and so the claim is waived” and that “there is nothing in the record to support treating his

alleged depression as a mitigating factor for purposes of appellate review or remand.” Id.

at 11.

         Our review of the nature of the offense reveals that Spaulding molested his

girlfriend’s eleven-year-old daughter J.K. who had called him “Papa” and had lived with

Spaulding since she was seven or eight years old. Transcript at 375. Spaulding placed

                                             8
his hand on J.K.’s vagina and rubbed her vagina. Spaulding also inserted his penis into

J.K.’s vagina on two separate occasions. Spaulding provided J.K. with cigarettes and

alcohol and later described providing J.K. with cigarettes as “dangling a carrot on a

stick.” Id. at 510. Spaulding also told J.K. not to tell anybody and that he would stop

giving J.K. alcohol and cigarettes when she told him that she did not want to “do this.”

Id. at 395. J.K. testified that Spaulding would give cigarettes or alcohol to her before

asking her to be touched or her submission to being touched. Spaulding decided how

much alcohol J.K. would drink, and J.K. would normally drink “[f]our and a half inches”

worth of flavored vodka. Id. at 389.

       Our review of the character of the offender reveals that Spaulding was born in

1965 and has misdemeanor convictions for three counts of driving while suspended and

one count of operating a motor vehicle with a BAC of .10% or more as a class C

misdemeanor. In 1985, Spaulding was convicted of burglary as a class C felony. In

1990, Spaulding was charged with child molesting as a class C felony, and, in August

1994, was convicted as charged. Spaulding was ordered to serve seven years with four

years suspended, consult a psychiatrist, attend specialized sex offender therapy, and have

no contact with children unless in the presence of an adult related to the child who was

aware of his conviction. In June 1994, Spaulding was charged with child molesting as a

class B felony and was convicted in 1995. Spaulding was ordered to serve ten years in

the Department of Correction and was released in December 2004. The presentence

investigation report indicates that Spaulding has violated probation five times in the past



                                            9
with the most recent violation occurring in October 2005. Spaulding participated in sex

offender treatment while on probation and parole in prior cases.

       After due consideration, of the trial court’s decision, we cannot say that the

sentence imposed by the trial court is inappropriate in light of the nature of the offense

and the character of the offender.

       For the foregoing reasons, we affirm Spaulding’s sentence for three counts of

child molesting as class A felonies and being an habitual offender.

       Affirmed.

MAY, J., and CRONE, J., concur.




                                            10
