                                                                                FILED
                                                                           Apr 06 2017, 10:26 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                         Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                        Attorney General of Indiana
Madison, Indiana                                           Larry D. Allen
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Aaron D. Murray,                                           April 6, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           36A04-1608-CR-1841
        v.                                                 Appeal from the Jackson Circuit
                                                           Court
State of Indiana,                                          The Honorable Richard W.
Appellee-Plaintiff                                         Poynter, Judge
                                                           Trial Court Cause No.
                                                           36C01-1507-F4-22



Baker, Judge.




Court of Appeals of Indiana | Opinion 36A04-1608-CR-1841 | April 6, 2017                            Page 1 of 10
[1]   Aaron Murray appeals the sentence imposed by the trial court after Murray

      pleaded guilty to three counts of Level 4 Felony Child Molesting,1 arguing that

      the sentence is inappropriate in light of the nature of the offenses and his

      character. Finding that the sentence is not inappropriate, we affirm.


                                                       Facts
[2]   In 2015, forty-one-year-old Murray was employed as a math teacher at

      Seymour Middle School. During the 2014-15 school year, Murray was then-

      twelve-year-old K.B.’s math teacher.2 Until that school year, K.B. had been an

      emotionally stable child who was a good student. During the 2014-15 school

      year, however, K.B. began to experience problems.


[3]   At that same time, K.B. became close to Murray, regularly staying after school

      for help with homework. After it was reported that K.B. was experiencing

      emotional turmoil, Murray spoke to K.B.’s mother and stated that he and his

      wife would spend time with K.B. Murray attended the same church as K.B.

      and her mother, and began sitting with K.B. at church and interacting with her

      there and at school. Murray also began taking K.B. to concerts and to engage

      in volunteer work, and he also began inviting her to stay overnight at his house.

      He regularly sent messages to K.B. and talked with her on the telephone.




      1
          Ind. Code § 35-42-4-3(b).
      2
       The previous school year, Murray had been suspended for at least three months for a previous incident
      about which there are no details in the record.

      Court of Appeals of Indiana | Opinion 36A04-1608-CR-1841 | April 6, 2017                       Page 2 of 10
[4]   In May 2015, Murray began spending even more time with K.B.; often, they

      spent hours at a time alone together. He began transporting K.B. to counseling

      sessions and even recommended to K.B.’s parents that they find a new

      counselor who would allow Murray to sit in on the sessions.


[5]   On June 15, 2015, Murray was alone with K.B. at his residence and kissed her.

      He attempted to use his tongue, but K.B. pulled away, and he apologized.

      Murray told K.B. that he was attached to her. K.B. later reported that this was

      her first kiss. A few days later, Murray left on vacation with his wife, and while

      he was away, he incessantly contacted K.B. through text, video, SnapChat, and

      Facebook messages. He told her that he loved her, that she was beautiful, that

      he needed her, and that it would not be long before they could be together

      again.


[6]   On June 28, 2015, Murray returned from vacation and K.B. went to his house

      to spend the day with him. He kissed K.B. while his wife was in the next room.

      He confessed what had happened to his wife, and she kicked him out of the

      house as a result. In the middle of the night on June 29, 2015, K.B. woke her

      mother and said she was going to talk to Murray outside. K.B. then left with

      Murray, who drove to a parking lot and began kissing her again—this time

      more intimately. When K.B. resisted, Murray told her it was okay. He drove

      her home around 4:00 a.m.


[7]   Later that same day, Murray returned to K.B.’s residence with gifts for K.B.,

      again driving her to a parking lot later that afternoon. Eventually, they drove to


      Court of Appeals of Indiana | Opinion 36A04-1608-CR-1841 | April 6, 2017   Page 3 of 10
      an overlook where he kissed K.B., grabbed her breasts, and massaged his hand

      between her legs outside of her clothes. K.B. was uncomfortable and moved his

      hand away. He also moved her hand to stroke his penis outside of his clothing.

      He later told investigators that he “felt he should take it as far as he could with

      her.” Appellant’s App. Vol. III p. 24.


[8]   K.B.’s friend reported the molestations to K.B.’s parents, who reported it to the

      police. During their investigation, police officers noted that both Murray and

      K.B. had the same Facebook profile picture, which was a picture of the two of

      them. Even after the molestations were disclosed, Murray continued to contact

      K.B. regularly.


[9]   On July 16, 2015, the State charged Murray with three counts of Level 4 felony

      child molesting. A no contact order was put in place that prohibited Murray

      from contacting K.B. Notwithstanding the no contact order, while Murray was

      in jail awaiting trial, he contacted K.B. over fifty times by telephone, totaling

      over twenty hours of talking time. Among other things, the following

      conversations occurred in those phone calls:


           Murray told K.B. he loved her each time they talked.
           Murray said that he had “never stood in the kitchen naked making
            breakfast with anyone before” and that K.B. made him feel comfortable
            while he was naked. State’s Ex. 1.
           Murray discussed watching K.B. run around her house while she was
            naked.
           K.B. reminded Murray that he had asked her to marry him on her
            eighteenth birthday and stated that she had purchased decorative license
            plates to commemorate the engagement.

      Court of Appeals of Indiana | Opinion 36A04-1608-CR-1841 | April 6, 2017   Page 4 of 10
            Murray told K.B., “I miss making you wet,” and later indicated that he
             was stroking himself while talking to her. State’s Ex. 1-2.
            On one occasion, he told K.B., “I just want to strip you naked right now,
             lay you back and get to work on that p***y.” State’s Ex. 1.
            Murray stated that he “would rip [K.B.’s] clothes off right now” if he saw
             her. State’s Ex. 2.
            Murray said that he missed getting “head” from K.B. Id.
            He described an encounter at his father’s car dealership where he made
             K.B. “wet” and said that employees probably had to “use paper towels to
             clean that up.” State’s Ex. 1.
            Murray gave K.B. instructions on how to write him in jail, instructing
             her to sign her letters with his last name.
            Murray required K.B. to recite vows of love on each phone call and told
             her that no one could keep him away from her.

       On April 13, 2016, Murray pleaded guilty as charged in exchange for (1) the

       dismissal of charges pending in another case for Level 6 felony residential entry

       and Class A misdemeanor battery resulting in bodily injury; and (2) the State’s

       agreement not to file new charges on the many violations of the no contact

       order.


[10]   At the June 28, 2016, sentencing hearing, Murray asked the court for an

       “appropriate sentence,” and argued that consecutive terms would not be

       appropriate because of his lack of criminal history. Sentencing Tr. p. 69. The

       State requested a sentence of three consecutive ten-year terms, with two years

       suspended per term, for a total of twenty-four years executed and six years

       suspended to probation. The trial court sentenced Murray to consecutive nine-

       year terms for each of the convictions but suspended six of the nine years on




       Court of Appeals of Indiana | Opinion 36A04-1608-CR-1841 | April 6, 2017   Page 5 of 10
       one count, for an aggregate executed sentence of twenty-one years

       imprisonment. Murray now appeals.


                                     Discussion and Decision
[11]   Murray’s sole argument on appeal is that the sentence is inappropriate in light

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

       provides that this Court may revise a sentence if it is inappropriate in light of

       the nature of the offense and the character of the offender. We must “conduct

       [this] review with substantial deference and give ‘due consideration’ to the trial

       court’s decision—since the ‘principal role of [our] review is to attempt to leaven

       the outliers,’ and not to achieve a perceived ‘correct’ sentence . . . .” Knapp v.

       State, 9 N.E.3d 1274, 1292 (Ind. 2014) (quoting Chambers v. State, 989 N.E.2d

       1257, 1259 (Ind. 2013)) (internal citations omitted).


[12]   Murray was convicted of three Level 4 felonies. For each of these convictions,

       Murray faced a sentence of two to twelve years imprisonment, with an advisory

       term of six years. Ind. Code § 35-50-2-5.5. He received nine years on each

       conviction—slightly elevated above the advisory term but short of the

       maximum term—and suspended six years of one of the terms to probation.

       Ultimately, he received an aggregate executed term of twenty-one years

       imprisonment, far less than the maximum possible term of thirty-six years.


[13]   As for the nature of Murray’s offenses, he aggressively groomed a twelve-year-

       old child over the course of a school year, pursuing her not only at school but

       also at church. He was her math teacher and a leader at church, using those

       Court of Appeals of Indiana | Opinion 36A04-1608-CR-1841 | April 6, 2017   Page 6 of 10
       positions of trust to gain access to her. He was aware that K.B. was having

       emotional problems and exploited that knowledge to further lodge himself in

       her life. Murray eventually found ways of being alone with K.B., often for

       hours at a time. He finally found a way to evolve their relationship into a

       sexual one, going so far as to drive K.B. away from her house in the middle of

       the night. Murray stayed in nearly constant communication with K.B., even

       while vacationing with his wife—and even while incarcerated, in the face of a

       no contact order.


[14]   K.B.’s father stated that K.B. was “broken” as a result of her relationship with

       Murray. Sent. Tr. p. 53. She became suicidal following all of Murray’s phone

       calls from jail and had to receive inpatient psychiatric care. In fact, at the time

       of the sentencing hearing, K.B. had been in an inpatient facility for over six

       months and her family did not know when she would be released. At one

       point, Murray was aware that K.B. was suicidal but continued to call her and

       explicitly talk about sex. We do not find that the abhorrent nature of the

       offenses aids Murray’s argument.


[15]   As for Murray’s character, while it is true that he does not have a prior criminal

       record, he was facing other criminal charges at the time he pleaded guilty to

       child molesting. And he repeatedly and aggressively violated the no contact

       order while incarcerated, calling K.B. over fifty times for a total talking time of

       over twenty hours, even at a time when he knew she was suicidal. In those

       calls, he lewdly discussed sexual acts and his own gratification, using subtle and

       not-so-subtle methods of control to emotionally manipulate the child. Murray

       Court of Appeals of Indiana | Opinion 36A04-1608-CR-1841 | April 6, 2017   Page 7 of 10
       has never taken responsibility for his actions, characterizing the situation as

       something that “happen[ed] to” him and never apologizing for the harm he

       caused to K.B. Id. at 13. Murray’s actions and behavior are repugnant, and we

       do not find that his character aids his argument. If anything, we believe the

       trial court exercised admirable restraint in suspending a portion of Murray’s

       sentence to probation. We do not find the sentence inappropriate in light of the

       nature of the offenses and Murray’s character.


[16]   The judgment of the trial court is affirmed.


       Barnes, J., concurs.
       Crone, J., concurs in result with a separate opinion.




       Court of Appeals of Indiana | Opinion 36A04-1608-CR-1841 | April 6, 2017   Page 8 of 10
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Aaron D. Murray,                                           Court of Appeals Case No.
                                                                  36A04-1608-CR-1841
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff




       Crone, Judge, concurring in result.


[17]   When a criminal defendant requests appellate review and revision of his

       sentence pursuant to Appellate Rule 7(B), “an appellate court has the power to

       affirm, reduce, or increase the sentence.” Akard v. State, 937 N.E.2d 811, 813

       (Ind. 2010) (emphasis added) (citing McCullough v. State, 900 N.E.2d 745, 750

       (Ind. 2009)). In light of Murray’s egregious betrayals of his positions of trust

       with K.B., his dozens of depraved phone calls to his emotionally vulnerable

       victim in violation of a no-contact order, and his utter lack of remorse or

       acceptance of responsibility, if the State had asked us to impose a harsher

       sentence, I would have been inclined to grant that request. While the lack of

       Court of Appeals of Indiana | Opinion 36A04-1608-CR-1841 | April 6, 2017               Page 9 of 10
such a request does not preclude an appellate court's consideration of an

upward sentence revision, it is a significant factor. See id. at 814 (“Although the

defendant's raising of sentence reasonableness on appeal authorizes appellate

consideration of whether the assigned sentence is inappropriately stem or

lenient, we decline to increase the sentence here, particularly in the context of

the State’s request for no greater sentence at trial and its assertion on appeal

that such is an appropriate sentence. These are strong indicators that the trial

court sentence is not inappropriately lenient.”) (emphasis added). At Murray’s

sentencing hearing, the State requested a slightly harsher sentence than that

imposed by the trial court. But because we must conduct an Appellate Rule

7(B) sentencing review with “substantial deference” and give “‘due

consideration’” to the trial court’s decision, Knapp, 9 N.E.3d at 1292, and

because the State did not request a harsher sentence in its appellate brief, I

reluctantly concur in the result reached by my colleagues.




Court of Appeals of Indiana | Opinion 36A04-1608-CR-1841 | April 6, 2017   Page 10 of 10
