      MEMORANDUM DECISION                                                       FILED
      Pursuant to Ind. Appellate Rule 65(D),                               Jul 20 2018, 5:57 am

      this Memorandum Decision shall not be                                     CLERK
                                                                            Indiana Supreme Court
      regarded as precedent or cited before any                                Court of Appeals
                                                                                 and Tax Court
      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
      R. Patrick Magrath                                       Curtis T. Hill, Jr.
      Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
      Madison, Indiana
                                                               Evan M. Comer
                                                               Christina D. Pace
                                                               Deputy Attorneys General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Dennis E. Brewer,                                        July 20, 2018
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               15A01-1709-CR-2181
              v.                                               Appeal from the Dearborn Circuit
                                                               Court
      State of Indiana,                                        The Honorable James D.
      Appellee-Plaintiff.                                      Humphrey, Judge
                                                               Trial Court Cause No.
                                                               15C01-1606-FA-16



      Mathias, Judge.


[1]   Dennis E. Brewer (“Brewer”) pleaded guilty in the Dearborn Circuit Court to

      Class B felony attempted child molesting and Class B felony child molesting.

      Court of Appeals of Indiana | Memorandum Decision 15A01-1709-CR-2181 | July 20, 2018          Page 1 of 8
      Brewer was sentenced to serve an aggregate term of sixteen years, with twelve

      years executed in the Department of Correction (“DOC”) and four years

      suspended to probation. The trial court ordered Brewer to serve his sentence

      consecutive to an eight-year executed sentence imposed in Ohio.1 Brewer

      appeals and raises two issues for our review, which we restate as:


             I.     Whether the trial court abused its discretion when it ordered his
                    sentence to be served consecutive to his sentence imposed in Ohio;
                    and
           II.      Whether Brewer’s sentence is inappropriate in light of the nature of
                    the offense and the character of the offender.

      We affirm.


                                    Facts and Procedural History
[2]   In early 2011, Brewer lived with his girlfriend Brittany (“Brittany”) and her

      family in Aurora, Indiana. Over the course of the next four years, Brewer began

      and continued to engage in inappropriate sexual contact with A.T., Brittany’s

      younger sister. The first incident occurred when A.T. was between eight and ten




      1
        Brewer pleaded guilty in Ohio to two counts of first degree felony rape involving the same victim. Ohio’s
      rape statute provides: “[n]o person shall engage in sexual conduct with another who is not the spouse of the
      offender . . . when . . . [t]he other person is less than thirteen years of age, whether or not the offender knows
      the age of the other person.” Ohio Rev. Code § 2907.02(A)(1)(b).

      Court of Appeals of Indiana | Memorandum Decision 15A01-1709-CR-2181 | July 20, 2018                   Page 2 of 8
      years old.2 A.T. was playing a video game in Brewer’s bedroom, and he fondled

      A.T.’s thigh and her breasts.


[3]   Over the course of four years, on multiple occasions, Brewer showed A.T. his

      penis and convinced her to manually stimulate his penis to the point of

      ejaculation. A.T. also performed fellatio on Brewer, and he touched A.T.’s

      clitoris. A.T. testified that she never reported the incidents because Brewer told

      her that if she did, he would “get in serious trouble with the law.” Tr. p. 59.

      A.T. also felt that nobody in her family would believe her.3 Id.


[4]   In March 2016, Brewer molested A.T. while she was visiting Ohio during her

      spring break. A.T. told a school friend about the past molestation. A.T.’s friend

      reported the incidents to a school administrator, and the incident was reported

      to the police. A.T. told the police that she had been molested by Brewer over a

      dozen times. Id. at 58. On June 1, 2016, Brewer was interviewed by police

      officers at the Delhi Township Police Department, and admitted to molesting

      A.T. Ex. Vol. I, State’s Ex. 2, p. 73. These admissions also resulted in the rape

      charges and convictions in Ohio.


[5]   On June 7, 2016, the State charged Brewer with Class A felony child molesting,

      Class B felony attempted child molesting, and Level 1 felony child molesting.



      2
       There is conflicting testimony regarding A.T.’s age. Brewer testified she was “11, 12.” Ex. Vol. I, State’s
      Ex. 2, p. 75. And A.T. testified she was “about eight or nine.” Tr. p. 53. The trial court found A.T.’s age was
      “eight (8) to ten (10) years of age.” Appellant’s Am. App. Vol II, p. 189.
      3
       The incidents occurred over four years and in two counties: Hamilton County, Ohio, and Dearborn
      County, Indiana.

      Court of Appeals of Indiana | Memorandum Decision 15A01-1709-CR-2181 | July 20, 2018                Page 3 of 8
      On July 25, 2017, Brewer entered into a plea agreement with the State. He

      agreed to plead guilty to Class B felony attempted child molesting and Class B

      felony child molesting. The remaining charge was dismissed. Appellant’s Am.

      App. Vol. II, pp. 114–15.


[6]   At the August 23, 2017 sentencing hearing, the court found as aggravators

      Brewer’s age, the rape conviction in Ohio, evidence of uncharged misconduct,

      the nature and circumstances of the crime, and Brewer’s position of trust with

      A.T. Id. at 211–12. The court considered Brewer’s guilty plea, his expressed

      remorse, and age as mitigating factors. Id. at 212–13. The court then sentenced

      Brewer in pertinent part as follows:


              The defendant shall be sentenced to the Department of
              Correction for classification and confinement for a period of
              sixteen (16) years with four (4) years suspended on each Count;
              said sentences shall be served concurrent with each other and
              consecutive to the sentence imposed in the State of Ohio[.]


      Id. at 214. Brewer now appeals.


                                         I. Consecutive Sentences

[7]   Brewer argues that his sentences for the convictions in Indiana and Ohio should

      be served concurrently because his crimes involved “nearly identical conduct

      that occurred with the same victim.” Appellant’s Br. at 9. However, “[i]t is well

      established that there is no right to serve concurrent sentences for different

      crimes in the absence of a statute so providing, and that concurrent sentences



      Court of Appeals of Indiana | Memorandum Decision 15A01-1709-CR-2181 | July 20, 2018   Page 4 of 8
       may be ordered only when they are to be served at the same institution.” Perry

       v. State, 921 N.E.2d 525, 527 (Ind. Ct. App. 2010).


[8]    In Perry, the defendant pleaded guilty to Class C felony robbery and Class C

       felony reckless homicide. Perry was ordered to serve an aggregate ten-year

       term, which was to be served “consecutive to his previously imposed Michigan

       sentence on unrelated charges.” Id. at 526. Perry appealed claiming “the trial

       court abused its discretion in ordering that his Indiana term [] be served

       consecutive to his Michigan term of incarceration.” Id. at 527. Our court

       observed that it had not found any “controlling precedent authorizing an

       Indiana court to order a sentence to run concurrent with a sentence being

       served in another state[,]” and therefore, we affirmed the trial court’s judgment.

       Id.


[9]    Brewer pleaded guilty to rape in Ohio, and child molestation in Indiana. A.T.

       was the victim of Brewer’s crimes in Indiana and Ohio, but that does not entitle

       Brewer to serve his sentence in Indiana concurrent to his Ohio sentence. For

       the reasons expressed in Perry, we conclude that the trial court properly ordered

       Brewer to serve his sentences consecutively. See id. at 528 (holding that the trial

       court did not abuse its discretion in ordering aggregate sentences to run

       consecutive to previously imposed terms of incarceration).


                                        II. Inappropriate Sentence

[10]   Brewer also argues that his sixteen-year sentence is inappropriate in light of the

       nature of the offense and the character of the offender. Specifically, Brewer

       Court of Appeals of Indiana | Memorandum Decision 15A01-1709-CR-2181 | July 20, 2018   Page 5 of 8
       argues that his sentence is inappropriate because “[t]here was no indication that

       [he] had ever engaged in any similar conduct with any other under aged person

       at any other time.” Appellant’s Br. at 13.


[11]   Indiana Appellate Rule 7(B) provides that “[t]he Court 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.” In conducting our review, “[w]e do not look

       to determine if the sentence was appropriate; instead we look to make sure the

       sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind.

       2012). “[S]entencing 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). Thus, although we have the power to review

       and revise sentences, the principal role of appellate review should be to attempt

       to “leaven the outliers, and identify some guiding principles for trial courts and

       those charged with improvement of the sentencing statutes, but not to achieve a

       perceived ‘correct’ result in each case.” Id. at 1225. It is Brewer’s burden on

       appeal to establish that his sentence is inappropriate. Grimes v. State, 84 N.E.3d

       635, 645 (Ind. Ct. App. 2017), trans. denied.


[12]   When considering the nature of the offense, we observe that “the advisory

       sentence is the starting point the Legislature selected as appropriate for the

       crime committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). Brewer

       pleaded guilty to two Class B felonies and was ordered to serve concurrent

       terms of sixteen years, with twelve years executed in the DOC and four years

       Court of Appeals of Indiana | Memorandum Decision 15A01-1709-CR-2181 | July 20, 2018   Page 6 of 8
       suspended to probation. The advisory sentence for a Class B felony is ten years,

       with a sentencing range of six to twenty years.4 Ind. Code § 35-50-2-5(a).

       Because he pleaded guilty to two Class B felonies, Brewer faced a possible

       maximum sentence of forty years. Therefore, his concurrent sentences of

       sixteen years for each conviction is significantly less than the maximum he

       could have received.


[13]   “[W]hether we regard a sentence as appropriate [] turns on our sense of the

       culpability of the defendant, the severity of the crime, the damage done to

       others, and myriad of other factors that come to light in a given case.” Cardwell,

       895 N.E.2d at 1224. With respect to the nature of the offense here, Brewer took

       advantage of his girlfriend’s younger sister and violated a position of trust. He

       first fondled A.T., who was between eight and ten years old, while she was

       playing a video game in his room. Brewer’s girlfriend caught him showing A.T.

       his penis, and when questioned, Brewer lied stating A.T. had asked to see it.

       Over the course of four years, Brewer convinced A.T. to engage in fellatio,

       manual penis stimulation to ejaculation, and clitoral stimulation. Brewer was

       aware of A.T.’s young age when the molestation began.

[14]   As to his character, Brewer does not have a criminal history unrelated to the

       commission of the offenses against A.T. However, Brewer was in a position of

       trust with A.T. He babysat A.T. on multiple occasions. Brewer not only



       4
         In 2013, the General Assembly changed the classification of criminal offenses from Classes to Levels of a
       felony. Sentencing schemes were adjusted accordingly. See P.L. 158-2013 § 657.

       Court of Appeals of Indiana | Memorandum Decision 15A01-1709-CR-2181 | July 20, 2018               Page 7 of 8
       violated his position of trust over A.T. by touching her inappropriately and

       having her engage in other sexual conduct, but he also attempted to place the

       blame on A.T. When the conduct began, twenty-one-year-old Brewer had

       graduated high school and attended two years of college. A.T. was between the

       ages of eight and ten years old and was afraid to tell anyone about the

       molestation. While Brewer argues that his guilty plea and expression of remorse

       reflect well on his character, his violation of A.T.’s trust is an aggravator that

       more than outweighs his contrite behavior in the face of overwhelming

       evidence.


[15]   The ongoing nature of and numerous molestations more than support the trial

       court’s decision to impose a sixteen-year sentence, with twelve years executed

       in the DOC and four years suspended to probation. For all of these reasons, we

       conclude that Brewer’s sentence is not inappropriate in light of the nature of the

       offense and his character.


                                                 Conclusion
[16]   The trial court did not abuse its discretion when it sentenced Brewer to serve his

       Indiana term consecutive to his Ohio term, and the sentence was not

       inappropriate in light of the nature of the offense and Brewer’s character.


[17]   Affirmed.


       Riley, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A01-1709-CR-2181 | July 20, 2018   Page 8 of 8
