                                                                           FILED
                                                                      Jun 21 2017, 8:03 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Leanna Weissmann                                           Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                      Attorney General of Indiana
                                                           Ian McLean
                                                           Supervising Deputy Attorney
                                                           General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Kyle W. Dilts,                                             June 21, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           15A04-1610-CR-2316
        v.                                                 Appeal from the Dearborn
                                                           Superior Court
State of Indiana,                                          The Honorable Jonathan Cleary,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           15D01-1310-FA-22



Pyle, Judge.




Court of Appeals of Indiana | Opinion 15A04-1610-CR-2316 | June 21, 2017                       Page 1 of 15
                                         Statement of the Case
[1]   Kyle W. Dilts (“Dilts”) appeals his sentence for Class A felony child molesting. 1

      Dilts was convicted of two counts of Class A felony child molesting for acts that

      occurred over a period of three years. The trial court sentenced him on one

      conviction and vacated the other. The State successfully appealed the trial

      court’s decision to vacate the second conviction, and we remanded to the trial

      court to sentence Dilts on the second conviction. The trial court did so, and

      Dilts now appeals this second sentence. He argues that the trial court abused its

      discretion when it sentenced him and that his sentence was inappropriate under

      Appellate Rule 7(B) in light of the nature of his offense and his character.

      Because we find that the trial court did not abuse its discretion in sentencing

      Dilts and that Dilts’ sentence was not inappropriate, we affirm his sentence.


[2]   We affirm.


                                                      Issues
              1. Whether the trial court abused its discretion when it sentenced
              Dilts.

              2. Whether Dilts’ sentence was inappropriate in light of the nature
              of his offense and his character.




      1
        IND. CODE § 35-42-4-3. We note that the child molesting statute was amended, effective July 1, 2014, and
      Dilts’ offense would now be considered a Level 1 felony. However, we will apply the version of the statute
      that was in effect when Dilts committed his offense.

      Court of Appeals of Indiana | Opinion 15A04-1610-CR-2316 | June 21, 2017                       Page 2 of 15
                                                         Facts
[3]   We stated the facts underlying Dilts’ convictions in our opinion for his first

      appeal, as follows:

               In 2011, Dilts was separated from his wife, Samantha Dilts
               (“Samantha”), with whom he had a daughter, K.D., born in
               March 2001. At that time, K.D. and Samantha lived in
               Kentucky with K.D.’s siblings and half-siblings, and Dilts lived
               in Aurora, Indiana with his girlfriend, Christie Rutledge
               (“Rutledge”), and her children.

               During the time when Dilts lived in his house in Indiana, he
               inappropriately touched K.D. on multiple occasions when she
               visited him. The first time, which was sometime in 2011, K.D.
               was in the bathroom when Dilts went into the bathroom and
               “started fingering [her]” or touching her in her “vaginal area”
               with his fingers “moving in a circular motion.” ([Trial] Tr. 503,
               504).[2] Dilts, who was wearing no pants and had been
               masturbating, then picked up K.D., put her on his lap with her
               facing out, and “proceeded in fingering [her] again.” ([Trial] Tr.
               505). Dilts then “[p]artial[ly] inserted his penis into K.D.'s
               vagina.” ([Trial] Tr. 506).

               Subsequently, a few weeks later, Dilts again touched K.D. in the
               bathroom at his house in Indiana. Dilts “stuck his hands down
               [K.D.’s] pants[,]” “took all of [her] clothes off[,]” picked her up,
               placed her on his lap as he sat on the toilet, and “inserted his
               penis” into K.D. ([Trial] Tr. 509, 510). At this time, K.D. saw
               and felt that Dilts had a “bump” on his penis. ([Trial] Tr. 510).




      2
        Because Dilts has two transcripts—the transcript from his original trial and the transcript from his second
      sentencing hearing—we will refer to his original trial transcript (which includes his original sentencing
      hearing) as “Trial Tr.,” and we will refer to his second sentencing transcript as “Sentencing Tr.”

      Court of Appeals of Indiana | Opinion 15A04-1610-CR-2316 | June 21, 2017                           Page 3 of 15
           On a third occasion at Dilts’s house, he went into K.D.’s
           bedroom, where she was getting dressed, “pull[ed] [her] pants
           down about halfway” and then “fingered” and “licked” her
           “vaginal area.” ([Trial] Tr. 511). After each molestation, Dilts
           warned K.D. not to tell anyone about what he had done.[3]

           In August 2013, K.D. confided in her friend, T.A., that Dilts had
           molested her. K.D. was “shaky” and “crying.” ([Trial] Tr. 388).
           K.D. told T.A. not to tell anyone. Around that same time,
           T.A.’s mother, Melanie Bowman (“Bowman”), noticed a change
           in K.D.’s demeanor from being a “bubbly kid” to “act[ing]
           strange” and not wanting to go around Bowman’s husband.
           ([Trial] Tr. 400). T.A. eventually told her mother, who then
           informed K.D.’s mother, Samantha, about what Dilts had done.
           Thereafter, K.D.’s allegations were reported to the Indiana
           Department of Child Services (“DCS”) and the Dearborn County
           Sheriff’s Department.

           On August 29, 2013, K.D. spoke to Stephanie Back (“Back”), a
           forensic interviewer with the Child Advocacy Center (“CAC”).
           Detective John Vance (“Detective Vance”) of the Dearborn
           County Sheriff’s Department’s Special Crimes Unit and Teresa
           Patrick (“Patrick”), a family case manager with DCS, were
           present for the CAC interview and listened from a separate room.
           During the interview, then twelve-year-old K.D. disclosed to
           Back that Dilts [had] started to sexually abuse her when she was
           nine years old. K.D. stated that, when she was at Dilts’s house
           in Indiana, he had touched her vagina with his fingers, mouth,
           and penis. Additionally, K.D. alleged that Dilts had molested
           her when they lived in Kentucky and had also molested K.D.’s
           sister. After K.D.’s interview at the CAC, she went to Cincinnati
           Children’s Hospital for a physical examination. Dr. Berkeley
           Bennett (“Dr. Bennett”), who examined K.D., discovered that




3
    Dilts told K.D. that she or her mother “would get hurt” if she tried to report his crimes. (Trial Tr. 513).


Court of Appeals of Indiana | Opinion 15A04-1610-CR-2316 | June 21, 2017                               Page 4 of 15
                 K.D.’s hymen had a “transection” or a “significant tear” that was
                 consistent with sexual abuse.[4] ([Trial] Tr. 718).

                 The following day, on August 30, 2013, Detective Garland
                 Bridges (“Detective Bridges”) went to Dilts’s house and took a
                 recorded statement from him. During that interview, Dilts
                 confirmed that he had a bump on his penis.

                 Sometime after K.D.’s allegations against Dilts, DCS filed a
                 petition alleging that K.D. was a child in need of services
                 (“CHINS”). Dilts was subpoenaed to appear at a CHINS
                 hearing scheduled for September 11, 2013, but he did not appear.
                 At that time, Dilts voluntarily admitted himself to a community
                 mental health facility after he had apparently expressed some
                 suicidal ideation.

                 Shortly thereafter, on October 2, 2013, the State charged Dilts
                 with Count [1], Class A felony child molesting (based on sexual
                 intercourse); and Count [2], Class A felony child molesting
                 (based on deviate sexual conduct). These acts were alleged to
                 have occurred between January 2011 and August 2013.


      Dilts v. State, 49 N.E.3d 617, 619-21 (Ind. Ct. App. 2015), trans. denied.


[4]   The trial court held a jury trial from September 15-18, 2014. At trial, Dilts

      requested that the trial court dismiss Count 2, arguing that:

                 The evidence that’s been presented is that these allegations are—
                 the factual allegations behind the two charging informations are
                 identical and, therefore, having two counts of child molest—the
                 second count is redundant, Your Honor. There’s no evidence
                 that one count is alleged to have occurred at a different time than




      4
          Dr. Bennett noted that this injury was “very unusual and quite significant.” (Trial Tr. 719).


      Court of Appeals of Indiana | Opinion 15A04-1610-CR-2316 | June 21, 2017                            Page 5 of 15
               the other. They are identical in nature, they are identical in time,
               and, therefore, we would ask that Count No. 2 be dismissed.


      Id. at 625. The State argued that the two charges involved the separate acts of

      sexual intercourse and deviate sexual conduct. Id. The trial court denied Dilts’

      request, and the jury subsequently found Dilts guilty of both charges. However,

      at Dilts’ sentencing hearing, the trial court vacated Dilts’ conviction for Count

      2, concluding that “[u]nder the double jeopardy analysis, since it was charged

      during the same period of time, the incidents occurred rather simultaneously.”

      Id. at 626. The trial court then imposed a thirty-six (36) year sentence for Dilts’

      remaining Class A felony child molesting conviction. The mitigating factors

      the court identified were that Dilts did not have a criminal history and that

      incarceration would be a hardship for Dilts’ family. The aggravating factors the

      court identified were the nature of the offense, the position of trust that Dilts

      held with K.D., Dilts’ status as K.D.’s father, and the harm to K.D., which the

      trial court found was greater than required for the elements of the crime. While

      the State had presented evidence at the sentencing hearing that Dilts might also

      have molested K.D.’s sister, the trial court specified in its oral sentencing

      statement that it was not considering those uncharged allegations in sentencing

      Dilts.


[5]   Thereafter, Dilts appealed evidence that had been admitted at trial. The State

      cross-appealed, challenging the trial court’s decision to vacate Dilts’ Count 2

      Class A felony child molesting conviction. We found that Dilts had waived his

      evidentiary arguments by failing to make a timely objection at trial and affirmed

      Court of Appeals of Indiana | Opinion 15A04-1610-CR-2316 | June 21, 2017    Page 6 of 15
      his Count 1 conviction. However, we reversed the trial court’s decision on

      Count 2, determining that the trial court should not have vacated Dilts’ Count 2

      Class A felony child molesting conviction under either the doctrine of double

      jeopardy or the continuous crime doctrine. Specifically, we found that the two

      child molesting convictions were based on distinct statutory elements and

      actual evidence and had occurred on different days. We remanded for the trial

      court to enter a judgment of conviction on Count 2 and to hold a sentencing

      hearing to sentence Dilts for his Count 2 conviction.


[6]   On July 25, 2016, almost two years after Dilts’ trial, the trial court held a

      sentencing hearing on Count 2. At the beginning of the hearing, the trial court

      noted that it had “carefully reviewed the file, and particularly the evidence in

      the jury trial and the sentencing hearing.” (Sentencing Tr. 4). Samantha,

      K.D.’s mother, and Dilts’ brother both testified at the sentencing hearing.


[7]   First, Samantha testified that, since the trial and first sentencing hearing, Dilts

      had been charged with acts of child molesting against a different victim, his

      step-daughter, in Kentucky. She also testified that Dilts’ conduct had continued

      to severely impact K.D. in the time since the trial. Two years later, K.D. still

      could not sleep at night and could not trust anyone. In addition, K.D. had had

      to cope with losing family. She had effectively lost her dad, who had a no-

      contact order in place against her, and many members of Dilts’ family had “cut

      [her] out of their lives.” (Sentencing Tr. 9). K.D. had also been unable to talk

      to Dilts to get any closure as a result of the no-contact order.



      Court of Appeals of Indiana | Opinion 15A04-1610-CR-2316 | June 21, 2017   Page 7 of 15
[8]   Next, Dilts’ brother testified that Dilts had always worked to provide for his

      family and had not had any criminal history before the instant case. He also

      testified that Dilts had started to work as a utility trustee for the prison since his

      incarceration.


[9]   At the conclusion of the sentencing hearing, the trial court sentenced Dilts to

      thirty-six (36) years, all executed, to run consecutively to Dilts’ sentence for

      Count 1. As a basis for its sentence, the trial court stated that it “incorporate[d]

      all the reasons that were articulated in open court” for its sentence on Count 1.

      (Sentencing Tr. 35). However, the trial court also said that its sentence was

      based on “additional facts” mentioned at the sentencing hearing for Count 2.

      (Sentencing Tr. 35). It found as a mitigating factor that Dilts did not have a

      criminal history. As an aggravating factor, the trial court noted that the harm,

      injury, and loss to K.D. were greater than required for the elements of the

      crime. In relation to this factor, the trial court cited Samantha’s testimony that

      K.D. could not trust anyone anymore and stated that it was significant that

      Dilts was K.D.’s father. Specifically, the trial court explained:

              So, obviously, the elephant in the room is the title of dad and you
              know, American society places dad particularly with daughters,
              in a precious role, and you know the old clichés that quote[] the
              son’s first hero, a daughter’s first love, be in life what you want
              your kids to be when they grow up[.] [T]he reason[] daughters
              love their dad[s] the most is there is a[t] least one person in this
              world who would never hurt them. And here we are with sexual
              intercourse combined with oral sex, combined with digital
              penetration.



      Court of Appeals of Indiana | Opinion 15A04-1610-CR-2316 | June 21, 2017     Page 8 of 15
       (Sentencing Tr. 37). Dilts now appeals.


                                                    Decision
[10]   On appeal, Dilts raises two issues: (1) whether the trial court abused its

       discretion when it sentenced him; and (2) whether his sentence was

       inappropriate in light of the nature of his offense and his character. We will

       address each of these issues in turn.


       1. Abuse of Discretion

[11]   First, Dilts asserts that the trial court abused its discretion when it sentenced

       him. Sentencing decisions rest within the sound discretion of the trial court.

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

       218 (Ind. 2007). So long as the sentence is within the statutory range, it is

       subject to review only for an abuse of discretion. Id. We will find an abuse of

       discretion where the decision is clearly against the logic and effect of the facts

       and circumstances before the court or the reasonable, probable, and actual

       deductions to be drawn therefrom. Id. A trial court may abuse its discretion in

       a number of ways, including: (1) failing to enter a sentencing statement at all;

       (2) entering a sentencing statement that includes aggravating and mitigating

       factors that are unsupported by the record; (3) entering a sentencing statement

       that omits reasons that are clearly supported by the record; or (4) entering a

       sentencing statement that includes reasons that are improper as a matter of law.

       Id. at 490–91.




       Court of Appeals of Indiana | Opinion 15A04-1610-CR-2316 | June 21, 2017   Page 9 of 15
[12]   Dilts argues that the trial court abused its discretion when it sentenced him to

       thirty-six (36) additional years on his second count of child molesting because

       the trial court’s sentence for Count 2 was based on the same facts the trial court

       had considered when it sentenced him to thirty-six (36) years for Count 1. He

       contends that, because the trial court had previously found that those facts

       warranted only a thirty-six (36) year sentence, it could not later find that they

       warranted an aggregate seventy-two (72) year sentence.


[13]   Preliminarily, we must note that the trial court’s sentence was within the

       statutory range for a class A felony, which is between twenty (20) to fifty (50)

       years. See I.C. § 35-50-2-4. Also, the trial court was authorized to order that

       Dilts serve his sentences consecutively rather than concurrently, thereby

       increasing his aggregate sentence to seventy-two (72) years. See Gilliam v. State,

       901 N.E.2d 72, 74 (Ind. Ct. App. 2009) (“The decision to impose consecutive

       sentences lies within the discretion of the trial court . . .” and “a single

       aggravating circumstance may justify the imposition of consecutive

       sentences.”); See I.C. § 35-50-1-2 (“The court may order terms of imprisonment

       to be served consecutively even if the sentences are not imposed at the same

       time.”). Dilts acknowledges that his sentence was within the statutory range

       and that the trial court was authorized to order his sentences to be served

       consecutively but nevertheless contends that the trial court should not have

       increased his aggregate sentence based on the same underlying facts that had

       previously warranted a lesser sentence.




       Court of Appeals of Indiana | Opinion 15A04-1610-CR-2316 | June 21, 2017       Page 10 of 15
[14]   However, our review of the record reveals that the trial court did not consider

       the same set of facts for both of his sentences. There is no evidence that the trial

       court considered the facts underlying his Count 2 conviction (his acts of oral sex

       and digital penetration) when it sentenced him on his Count 1 conviction for his

       acts of sexual intercourse. During Dilts’ first sentencing hearing, the trial court

       mentioned that the evidence of the oral sex and digital penetration had been

       introduced at trial, but the court then proceeded to vacate the conviction for

       Count 2.


[15]   Further, additional evidence was introduced at Dilts’ second sentencing hearing

       that was not introduced at his first sentencing hearing, and the trial court noted

       that its sentence for Count 2 was in part based on the “additional facts”

       mentioned at the sentencing hearing for Count 2. (Sentencing Tr. 35).

       Specifically, Samantha testified at the second sentencing hearing and was able

       to give a much more extensive portrait of the impact Dilts’ actions were still

       having on K.D. two years later. She testified that K.D. had lost a large portion

       of her family, who had cut her out of their lives, that K.D. still had trouble

       sleeping, and that K.D. had not been able to recover from the loss of her dad,

       who had not contacted her to express remorse. Also, while Dilts had not been

       charged with molesting an additional victim at the time of the first sentencing

       hearing—and the trial court therefore said at the first hearing that it would not

       consider that uncharged conduct—Dilts had been charged with molesting a




       Court of Appeals of Indiana | Opinion 15A04-1610-CR-2316 | June 21, 2017   Page 11 of 15
       second victim at the time of the second sentencing hearing.5 Therefore, Dilts’

       second sentence was based partially on new facts that were not available at his

       original sentencing hearing. Accordingly, we do not find support for Dilts’

       argument that the trial court increased his aggregate sentence after considering

       the same facts that it had previously held warranted a lesser sentence. Since

       Dilts does not otherwise challenge the trial court’s exercise of its discretion, we

       conclude that the trial court did not abuse its discretion. 6


       2. Inappropriate Sentence

[16]   Next, Dilts argues that his sentence was inappropriate. Under Indiana

       Appellate Rule 7(B), we may revise a sentence if it is inappropriate in light of

       the nature of the offense and the character of the offender. The defendant has

       the burden of persuading us that his sentence is inappropriate. Childress v. State,




       5
         Dilts argues that the trial court did not consider this new circumstance when sentencing him because the
       trial court did not designate it as an aggravating or mitigating factor. However, when Dilts objected to the
       testimony regarding his pending charges for molesting his stepdaughter, the trial court overruled the
       objection, noting that the character of the offender was a central issue of the sentencing hearing and stating
       that it would determine what weight to give the testimony. Accordingly, the trial court considered the
       uncharged conduct when it sentenced Dilts, even if it did not find it to be an aggravator.
       6
         Dilts implies that his increased sentence was a punishment for his decision to appeal his sentence or was a
       result of the trial court’s vindictiveness. He also contends that we should be concerned when a sentence
       increases upon resentencing. As for Dilts’ first argument, his reinstated conviction for Count 2 was a result of
       the State’s cross-appeal, not his appeal, so a sentence on that conviction was not a punishment for his
       decision to appeal; nor has he demonstrated that the trial court was acting vindictively. The United States
       Supreme Court has held that a presumption of vindictiveness only applies where there is a “‘reasonable
       likelihood’ . . . that the increase in sentence is the product of actual vindictiveness on the part of the
       sentencing authority. Where there is no such reasonable likelihood, the burden remains upon the defendant
       to prove actual vindictiveness.” Alabama v. Smith, 490 U.S. 794, 799 (1989) (quoting United States v. Goodwin,
       457 U.S. 368, 373 (1982)) (internal citations omitted). Dilts has not shown that there was actual
       vindictiveness or a reasonable likelihood of vindictiveness. As for Dilts’ second argument that we should be
       concerned when a sentence increases upon resentencing, Dilts’ sentences for his individual offenses did not
       increase. The trial court merely imposed a sentence on a new conviction.

       Court of Appeals of Indiana | Opinion 15A04-1610-CR-2316 | June 21, 2017                           Page 12 of 15
       848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a Rule 7(B) 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.” Cardwell v.

       State, 895 N.E.2d 1219, 1225 (Ind. 2008). Whether a sentence is inappropriate

       ultimately turns on “the culpability of the defendant, the severity of the crime,

       the damage done to others, and a myriad of other factors that come to light in a

       given case.” Id. at 1224.


[17]   When determining whether a sentence is inappropriate, we acknowledge that

       the advisory sentence “is the starting point the Legislature has selected as an

       appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081.

       The sentencing range for Dilts’ offense was between twenty (20) and fifty (50)

       years, with an advisory sentence of thirty (30) years. I.C. § 35-50-2-4.

       Accordingly, Dilts was sentenced to a longer term than the advisory sentence

       but less than the maximum. See id.


[18]   With regard to the nature of his offense, Dilts again argues that the trial court

       should not have raised his aggregate sentence to a total of seventy-two (72)

       years based on the same set of facts that supported a thirty-six (36) year

       conviction. However, as we stated above, there is no evidence that the trial

       court considered the facts supporting Count 2 when it sentenced him on Count

       1. Moreover, the nature of Dilts’ offenses supported his aggregate seventy-two-

       year executed sentence. The evidence presented at trial and at Dilts’ sentencing

       hearings showed that Dilts molested his daughter over a three-year period,

       Court of Appeals of Indiana | Opinion 15A04-1610-CR-2316 | June 21, 2017   Page 13 of 15
       starting when she was nine years old. The impact on K.D. was physically

       severe, as the person who examined her indicated that even though she had

       examined over five hundred suspected abuse victims, K.D.’s injury was “very

       unusual and quite significant.” (Trial Tr. 719). Mentally, the impact was also

       severe as K.D. had to cope, not only with being molested at a young age, but

       also with losing her father and part of her father’s family. As Samantha

       testified, K.D. still has trouble sleeping and trusting people as a result of Dilts’

       actions.


[19]   As for his character, Dilts argues that his prior military service, lack of criminal

       history, good prison behavior, and low risk to reoffend warrant a reduced

       sentence. We do not agree. First, the trial court specifically stated that it did

       not believe that Dilts had a low risk to reoffend. Further, the evidence

       submitted at trial is much more persuasive evidence of Dilts’ character than his

       prior good criminal and civil behavior. The evidence showed that Dilts

       repeatedly abused a vital position of trust with his young daughter, K.D., and

       there are allegations that he also abused his position of trust with his step-

       daughter. In addition, Dilts lied to K.D. and told her that she or her mother

       “would get hurt” if she tried to report his crimes. (Trial Tr. 513). Dilts openly

       showed no remorse for his actions and has prevented K.D. from having the

       contact with him that might provide her with some closure and ability to heal.7




       7
         Dilts argues that the goal of the prison should be to rehabilitate a prisoner “quickly.” (Dilts’ Br. 25). As a
       result, he asserts that “for someone who has never attempted the rehabilitation offered in prison, it is unfair to

       Court of Appeals of Indiana | Opinion 15A04-1610-CR-2316 | June 21, 2017                            Page 14 of 15
[20]   In light of this evidence of the nature of Dilts’ offense and his character, we are

       not persuaded that his sentence was inappropriate.


[21]   Affirmed.


       Baker, J., and Mathias, J., concur.




       assume a lengthy time is needed to mold an offender into a productive, law-abiding citizen.” (Dilts’ Br. 25).
       However, Dilts ignores that there are other traditional aims of punishment, including retribution and
       deterrence, regardless of whether he can be rehabilitated in thirty-six years. See Tyson v. State, 51 N.E.3d 88,
       94 (Ind. 2016).

       Court of Appeals of Indiana | Opinion 15A04-1610-CR-2316 | June 21, 2017                           Page 15 of 15
