MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Mar 14 2019, 6:05 am
court except for the purpose of establishing                                 CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General
J. Michael Sauer                                         Jesse R. Drum
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Steven A. Wright,                                        March 14, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-PC-1850
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Teresa L. Cataldo,
Appellee-Respondent                                      Judge
                                                         Trial Court Cause No.
                                                         20D03-1410-PC-40



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-1850 | March 14, 2019                   Page 1 of 17
                                          Case Summary
[1]   In 2010, Steven A. Wright was convicted of molesting his girlfriend’s seven-

      year-old daughter, and the trial court sentenced him to thirty-five years. He

      later filed a petition for post-conviction relief arguing that his trial and appellate

      attorneys rendered ineffective assistance, and the post-conviction court denied

      relief. We affirm.



                            Facts and Procedural History
[2]   In early 2009, Jennifer Linville and her three children, including her seven-year-

      old daughter K.M., were living with Jennifer’s grandma. Jennifer was

      separated from her husband, who was attending truck-driving school in Texas.

      In late February 2009, Jennifer started dating twenty-two-year-old Wright,

      whom she knew from her childhood. Trial Tr. p. 424. Wright visited Jennifer

      at her grandma’s house “[e]very night.” Id. at 386. One weeknight in the

      middle of March, Jennifer and Wright went out drinking at a bar. Jennifer also

      used methamphetamine and marijuana that night. According to Jennifer, this

      was the first night that Wright spent the night with her. When Jennifer and

      Wright returned to her grandma’s house around midnight, Wright stayed up for

      a little bit and Jennifer went to bed. When Jennifer entered her bedroom, she

      saw K.M. sleeping on the floor. Intoxicated, Jennifer fell asleep.


[3]   When Jennifer woke up the next morning, K.M. was in bed with her and

      Wright was sleeping on the floor where K.M. had been. Jennifer woke up


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1850 | March 14, 2019   Page 2 of 17
      K.M. for school. As K.M. was getting ready for school, she told her mother

      that her underwear was inside out.


[4]   About a month later, on April 11, Jennifer and Wright were watching television

      in her bedroom when K.M. walked in, approached Wright, and said, “Do you

      know how you did something wrong to me? Well, I’m going to do it to you.”

      Id. at 409. K.M. then accused Wright of touching her “private parts,” pointing

      to her vagina to illustrate. Id. Wright denied touching K.M. Stunned, Jennifer

      did not say or do anything.


[5]   The next day, Jennifer asked K.M. about her allegation. Jennifer was

      “bawling” at the time. Id. at 416. K.M. kept telling her mother that “it was

      going to be okay” and wiped away her mother’s tears. Id. “All [K.M.] would

      tell [Jennifer] was that [Wright] touched her private area.” Id. A family

      member reported the molestation to the police several days later, and a

      detective interviewed Jennifer on April 17. During the interview, Jennifer told

      the detective what K.M. had told her:


              [A]t one point in time, [K.M.] said that [Wright] touched over
              clothes, and the next time she said that he put his hands in her
              pants, and then she woke up and her pants were backwards. So I
              went along with the story that he just touched her, because that’s
              what she’s sticking to now.


      P-C Ex. 5 pp. 5-6. Although Jennifer did not tell the detective about her drug

      use, she did tell him that she did not know if K.M.’s allegation was “true” as

      K.M. was “going through this time with, I’m not allowed to talk to no guys or


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1850 | March 14, 2019   Page 3 of 17
      nothing. Her dad is her daddy, because we’re split up.” Id. at 6. Jennifer told

      the detective that she even asked her grandma “what if [K.M.’s] just doing this

      because she doesn’t want me with [Wright]?” Id. Jennifer then told the

      detective about an incident where an older neighbor boy played “a sex game”

      with her younger son, and K.M. started asking Jennifer if her brother was ever

      going to be allowed to see that neighbor boy again. Id. at 6-7. The detective

      asked Jennifer if K.M. would make up the allegation, and Jennifer responded

      that K.M. was “very manipulative.” Id. at 9. But when the detective told

      Jennifer that that “was not what you told me before,” Jennifer retreated, saying

      “I’ve never, ever, ever had any problems with her lying about this, but just since

      this incident, [K.M.] has been kind of real funny about it.” Id.


[6]   In June, the State charged Wright with Class A felony child molesting (deviate

      sexual conduct) and Class C felony child molesting (fondling or touching). A

      jury trial was held in February 2010. K.M. and Jennifer were the only two

      witnesses to testify at trial. K.M., who had since turned eight years old,

      testified that after her mother fell asleep, Wright entered the bedroom and got in

      bed with her mother for a little bit. K.M. was “awake,” but her eyes were

      “closed.” Trial Tr. pp. 346-47. Wright then got out of bed, walked over to

      K.M., “crouched down,” and started rubbing her belly with his hand. Id. at

      343. Wright then started “going down and down and then under.” Id. K.M.

      clarified that “[a]t first he was on top, then he started going under my clothes.”

      Id. at 343-44. Wright also pulled K.M.’s underwear down to her ankles. Id. at

      349. Wright then “rubbed and push[ed]” his finger “in circles” under K.M.’s

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1850 | March 14, 2019   Page 4 of 17
      clothes and “between [her] private.” Id. at 344. K.M. described her “private”

      as where she “pee[s].” Id. K.M. said when she opened her eyes, Wright

      “swoop[ed] his hands behind his back.” Id. at 347. K.M. gave him a “mad

      face” and then “took his spot on the bed.” Id. at 348. Trial counsel cross-

      examined K.M., focusing on whether she was awake or asleep when she was

      touched. Trial counsel did not ask K.M. what she told her mother about the

      incident.


[7]   Jennifer testified about the April 11 incident, when K.M. walked into her

      bedroom and accused Wright of touching her inappropriately. Jennifer

      explained that she did not contact the police because she was “on meth” and

      afraid that “CPS would get involved and take [her] kids away.” Id. at 418. She

      also testified that before the incident, K.M. had not expressed any concern

      about Wright being at the house or that she was angry at Wright because he

      was “taking Daddy’s place.” Id. at 387. Defense counsel cross-examined

      Jennifer but did not ask what she told the detective during her interview,

      namely, that (1) she did not call the police because she did not know if K.M.

      was telling the truth and (2) K.M. was going through a phase where she did not

      want Jennifer talking to any men besides “her daddy.”


[8]   During closing argument, trial counsel highlighted the inconsistencies in K.M.’s

      testimony and speculated that K.M. made up the allegations because she was

      crying out for help. Id. at 465 (“Sometimes when kids say outrageous things or

      things that are not quite true, they are asking for help. They know their

      situation is intolerable. This little girl was watching her mother go to hell in a

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1850 | March 14, 2019   Page 5 of 17
      hand basket.”). The jury found Wright guilty as charged. At the sentencing

      hearing, the trial court identified two mitigators: (1) Wright’s “young age” and

      (2) his lack of felony convictions. Appellant’s Trial App. Vol. I p. 18. The trial

      court identified two aggravators: (1) “a pattern of continuing criminal conduct”

      based on Wright’s eight juvenile adjudications and one misdemeanor

      conviction and (2) Wright occupied a position of trust with K.M., which he

      abused by molesting her. Id. The trial court sentenced Wright to thirty-five

      years for the Class A felony (sentencing range of twenty to fifty years, with an

      advisory sentence of thirty years, Ind. Code § 35-50-2-4(a)) and five years for

      the Class C felony (sentencing range of two to eight years, with an advisory

      sentence of four years, Ind. Code § 35-50-2-6(a)), to be served concurrently.


[9]   Wright appealed to this Court, arguing that K.M.’s testimony was incredibly

      dubious (based, in part, on contradictions in K.M.’s testimony regarding

      whether she was awake or asleep when the touching occurred) and therefore

      insufficient to support his convictions. We found that the evidence was

      sufficient:


              K.M. testified unequivocally that Wright molested her. Asked
              whether “anybody ever touched a part of [he]r body that
              shouldn’t be touched,” K.M. identified Wright and described in
              detail the manner in which Wright had first touched her over her
              clothes, then lifted her dress, moved her panties, and touched her
              vagina with his index finger. The record also reveals that at trial,
              K.M. demonstrated her ability to distinguish between truth and
              lies; characterized lying as “[b]ad” and truth-telling as “[g]ood”;
              and communicated that she understood the significance of a
              sworn oath to tell the truth.

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1850 | March 14, 2019   Page 6 of 17
       Wright v. State, No. 20A03-1004-CR-233 (Ind. Ct. App. Mar. 28, 2011). Wright

       also argued that the trial court committed fundamental error in instructing the

       jury on reasonable doubt. We found no fundamental error but encouraged the

       trial court to use “may” instead of “should” in its reasonable-doubt instruction.

       Id.


[10]   In 2014, Wright filed a pro se petition for post-conviction relief, which was

       amended by counsel in 2017. Wright alleged that his trial and appellate

       attorneys rendered ineffective assistance. Specifically, Wright alleged that his

       trial counsel was ineffective for “fail[ing] to present to the jury evidence that

       conflicted with and impeached the testimony of State’s witnesses” and that his

       appellate counsel was ineffective for failing to argue that the trial court abused

       its discretion by finding as an aggravator that Wright was in a position of trust

       with K.M. Appellant’s P-C App. Vol. II pp. 85-86.


[11]   Jennifer and Wright’s appellate counsel testified at the post-conviction hearing,

       but Wright’s trial counsel did not testify, as he had passed away in 2010.1

       Wright’s attorney asked Jennifer if she remembered telling the detective that “at

       first K.M. said that [Wright] touched her over her clothes,” and Jennifer said



       1
        Wright argues that the post-conviction court “erroneously inferred that the deceased trial counsel would
       have disputed the allegations.” Appellant’s Br. p. 16. He asserts that the missing-witness inference should
       not apply where, as here, the attorney is deceased. While it is true that the post-conviction court recited the
       principle that “[w]hen counsel does not testify at the post conviction hearing, the court may infer that counsel
       would not have corroborated the allegations of ineffectiveness,” Appellant’s P-C App. Vol. II p. 158 (citing
       Culvahouse v. State, 819 N.E.2d 857, 863 (Ind. Ct. App. 2004), trans. denied), the court did so in the context of
       Wright’s argument that trial counsel was ineffective for failing to adequately prepare for trial. Id. Wright,
       however, does not raise this argument on appeal. In other words, the post-conviction court did not apply the
       missing-witness inference to the arguments that Wright raises on appeal.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1850 | March 14, 2019                      Page 7 of 17
no. P-C Tr. p. 13. Wright’s attorney then showed Jennifer a transcript of the

interview.2 After Jennifer reviewed the transcript, the following colloquy

occurred:


         Q        So after reading that . . . do you remember telling [the
                  detective] that at first K.M. said that [Wright] touched her
                  over her clothes?


         A        I do, yes.


         Q        And then the next time K.M. talked to you about it, she
                  said that [Wright] had put his hands in her pants.


         A        Yes.


         Q        And by the time you talked to [the detective], on April
                  17th, during that interview you told him that K.M. was
                  sticking to her original story that [Wright] had just touched
                  over her clothes.


         A        Yes.


         Q        So at least over those first six days, K.M. . . . was giving
                  you inconsistent stories.




2
 Jennifer’s April 2009 interview with the detective was videotaped. A transcript of the interview was later
made for use at the January 2018 post-conviction hearing. P-C Tr. pp. 13-15.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-1850 | March 14, 2019                   Page 8 of 17
               A       No. She was . . . telling me that he had touched her over
                       the clothes, but she wasn’t telling me the whole exact
                       story.


       Id. at 16 (emphasis added).


[12]   Wright’s attorney then asked Jennifer why she did not report the molestation to

       the police. Consistent with her trial testimony, Jennifer responded that she did

       not call the police because she was using methamphetamine and afraid that

       CPS would take her children away. Wright’s attorney then asked Jennifer if

       she gave the detective a different reason, and Jennifer said she did not

       remember. After reviewing the transcript again, Jennifer acknowledged that

       she told the detective that she did not report the molestation because she “didn’t

       know if [K.M.’s allegation] was true or not and [she] really didn’t want it to be

       true.” Id. at 17. Jennifer also acknowledged telling the detective that one

       reason she did not know if K.M.’s allegation was true was “because K.M.

       didn’t want [Jennifer] to even talk to any guys that might take [her father’s]

       place.” Id. at 18. Likewise, Jennifer admitting asking her grandma if K.M.

       made up the allegation because she did not want her to be with Wright. Id.

       Finally, Jennifer admitted that she told the detective that K.M. was “very

       manipulative.” Id. However, Jennifer said she did not know why she told the

       detective that because K.M. “was not a manipulative child.” Id. at 23. Jennifer

       admitted lying when she told the detective that K.M. was manipulative. Id. (in

       response to the State’s question of whether she lied when she told the detective




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1850 | March 14, 2019   Page 9 of 17
       that K.M. was manipulative, Jennifer answered “No. I don’t – it’s not a—I

       mean yeah, she wasn’t manipulative” (emphasis added)).


[13]   The post-conviction court denied relief. Wright now appeals.



                                  Discussion and Decision
[14]   A defendant who files a petition for post-conviction relief has the burden of

       establishing the grounds for relief by a preponderance of the evidence. Hollowell

       v. State, 19 N.E.3d 263, 268-69 (Ind. 2014). If the post-conviction court denies

       relief, and the petitioner appeals, the petitioner must show that the evidence

       leads unerringly and unmistakably to a conclusion opposite that reached by the

       post-conviction court. Id. at 269.


[15]   Wright contends that the post-conviction court should have granted him relief

       because his trial and appellate attorneys rendered ineffective assistance. When

       evaluating such a claim, Indiana courts apply the two-part test set forth

       in Strickland v. Washington, 466 U.S. 668 (1984): whether counsel performed

       deficiently and whether that deficient performance prejudiced the

       defendant. Humphrey v. State, 73 N.E.3d 677, 682 (Ind. 2017). An attorney’s

       performance is deficient if it falls below an objective standard of

       reasonableness—if the attorney committed errors so serious that it cannot be

       said that the defendant had “counsel” as guaranteed by the Sixth

       Amendment. Id. A defendant has been prejudiced if there is a reasonable

       probability that the case would have turned out differently but for counsel’s


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1850 | March 14, 2019   Page 10 of 17
       errors. Id.; see also Middleton v. State, 72 N.E.3d 891 (Ind. 2017). A reasonable

       probability is a probability sufficient to undermine confidence in the outcome.

       Middleton, 72 N.E.3d at 891-92. The standard of review for a claim of

       ineffective assistance of appellate counsel is the same as for trial counsel. Ben-

       Yisaryl v. State, 729 N.E.2d 102, 106 (Ind. 2000), reh’g denied.


                                            I. Trial Counsel
       Wright first contends that his trial counsel was ineffective for failing to impeach

       certain parts of K.M.’s and Jennifer’s testimony. The method of impeaching

       witnesses is a tactical decision and a matter of trial strategy that does not

       amount to ineffective assistance. Kubsch v. State, 934 N.E.2d 1138, 1151 (Ind.

       2010).


                                           A. Impeach K.M.
[16]   Wright first argues that his trial counsel should have impeached K.M.’s

       testimony that Wright touched her under her clothes (which was the basis of the

       Class A felony child-molesting conviction) with her prior statement to her

       mother that Wright “just touched her over her clothes.” Appellant’s Br. p. 19.

       It is well established that a prior inconsistent statement may be used for

       impeachment purposes—that is, not to prove the truth of the matter asserted in

       the prior statement, but rather to persuade the trier of fact that the witness

       should not be believed because her story differed in the past. Martin v. State, 736

       N.E.2d 1213, 1217 (Ind. 2000); 12 Robert L. Miller, Jr., Indiana Practice,

       Indiana Evidence § 613.101 (4th ed. 2016). The prior inconsistent statement is

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1850 | March 14, 2019   Page 11 of 17
       admissible for the limited purpose of impeachment, not as substantive evidence.

       See Humphrey, 73 N.E.3d at 685; 12 Miller, § 613.101.


[17]   The evidence shows that during Jennifer’s April 17, 2009 interview with the

       detective, she relayed what K.M. had told her since first revealing the

       molestation on April 11: “[A]t one point in time, [K.M.] said that [Wright]

       touched over clothes, and the next time she said that he put his hands in her

       pants, and then she woke up and her pants were backwards.” P-C Ex. 5 pp. 5-6

       (emphases added). Wright interprets Jennifer’s statement to mean that K.M.

       originally claimed that Wright only touched her over her clothes but later

       changed her story to be more damaging, that is, to say that he touched her

       under her clothes. Even assuming that K.M.’s original report to her mother

       was inconsistent with her trial testimony that Wright first touched her over her

       clothes and then moved under her clothes, Jennifer testified at the post-

       conviction hearing that K.M. did not give “inconsistent stories” but rather “was

       . . . telling [her] that [Wright] had touched her over the clothes, but she wasn’t

       telling me the whole exact story.” In other words, K.M. slowly let out the story

       over the course of those six days. Given K.M.’s age of seven at the time of the

       molestation and her age of eight at trial, trial counsel no doubt had to make

       strategic decisions about how best to cast doubt on K.M.’s testimony. See Trial

       Tr. p. 464 (during closing argument, trial counsel admitted as much: “If you are

       dealing with children from a defense attorney standpoint, you have got to be

       doggone careful. I do not believe I was rude in any way, shape or form . . . to

       that child.”). Trial counsel did so by pointing out inconsistencies in K.M.’s

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1850 | March 14, 2019   Page 12 of 17
       testimony regarding whether she was awake or asleep when the touching

       occurred. Because it is not uncommon for child-molesting victims to slowly

       reveal what happened to them, we find that it was reasonable trial strategy for

       trial counsel not to ask eight-year-old K.M. if she originally told her mother that

       Wright only touched her over her clothing and later told her that Wright

       touched her under her clothing. Trial counsel was not deficient for not

       impeaching K.M. in this manner.


                                          B. Impeach Jennifer
[18]   Wright next argues that his trial counsel should have impeached Jennifer’s

       “deceptively incomplete” testimony that (1) she did not call the police because

       she was “on meth” and afraid that CPS would take her children away and (2)

       K.M. had not expressed any concern about Wright being at the house or that

       she was angry at Wright for “taking Daddy’s place.” Appellant’s Br. p. 13.

       Wright points out that contrary to her trial testimony, Jennifer told the detective

       that (1) she did not call the police because she did not know if K.M. was telling

       the truth and (2) K.M. was going through a phase where she did not want

       Jennifer talking to any men besides “her daddy.”


[19]   Even assuming that trial counsel was deficient for failing to impeach Jennifer

       on these points, Wright cannot establish prejudice. Jennifer’s prior statements

       to the detective would not have been admissible as substantive evidence at trial.

       Rather, they would have been admissible to prove that Jennifer—not K.M.—




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1850 | March 14, 2019   Page 13 of 17
       should not be believed because her story differed in the past. 3 Although

       Jennifer’s credibility was important, Jennifer was not a witness to the

       molestation, as she was passed out at the time. In addition, Jennifer’s

       credibility was already damaged, as the evidence showed that she was using

       methamphetamine at the time of these events and did take any action when her

       daughter told her that Wright had touched her inappropriately. See Trial Tr. p.

       423 (Jennifer admitting that she did not “handle[] this in an appropriate manner

       that had been in the best interest” of K.M.). Moreover, as we found on direct

       appeal, K.M. “testified unequivocally that Wright molested her.” Jennifer

       corroborated some aspects of K.M.’s testimony. That is, Jennifer testified that

       when she woke up the next day, K.M. was in bed with her and Wright was

       sleeping on the floor where K.M. had been. Jennifer also testified that K.M.

       told her that her underwear was inside out. Based on these things, Wright has

       not established a reasonable probability that the case would have turned out

       differently but for his trial counsel’s alleged errors in not impeaching Jennifer

       on these points.


                                         II. Appellate Counsel
[20]   Wright next contends that his appellate counsel was ineffective for failing to

       argue that the trial court abused its discretion in identifying as an aggravator




       3
         Wright argues that the State opened the door to Jennifer’s prior statements to the detective. Even assuming
       that the State opened the door to the statements, they would have been admissible for impeachment purposes
       only.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1850 | March 14, 2019                  Page 14 of 17
       that he violated a position of trust. Wright argues that this issue was “clearly

       stronger than any issues argued by appellate counsel.” Appellant’s Br. p. 31.


[21]   To show that appellate counsel was ineffective for failing to raise an issue on

       appeal thus resulting in waiver of the issue for collateral review, the defendant

       must overcome the strongest presumption of adequate assistance, and judicial

       scrutiny is highly deferential. Reed v. State, 856 N.E.2d 1189, 1195 (Ind.

       2006). To evaluate the performance prong when appellate counsel has waived

       issues, we apply the following test: (1) whether the unraised issues are

       significant and obvious from the face of the record and (2) whether the unraised

       issues are “clearly stronger” than the raised issues. Id. Ineffective assistance is

       very rarely found in cases where a defendant asserts that appellate counsel

       failed to raise an issue on direct appeal because the decision of what issues to

       raise is one of the most important strategic decisions to be made by appellate

       counsel. Id.


[22]   Wright first notes that the trial court’s sentencing statement contains an error.

       The trial court found as follows: “The court notes that the defendant was the

       caregiver for his victim. As such, he occupied a position of trust with regard to

       this child, and he violated that position of trust by molesting her.” Appellant’s

       Trial App. Vol. I p. 18 (judgment of conviction); see also Trial Tr. p. 505 (oral

       sentencing statement). Wright argues that he was not K.M.’s caregiver. We

       agree that the evidence does not show that Wright was K.M.’s caregiver.

       Notwithstanding this error, the evidence supports the position-of-trust

       aggravator.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1850 | March 14, 2019   Page 15 of 17
[23]   The position-of-trust aggravator is frequently found by sentencing courts where

       an adult has committed an offense against a minor and there is at least an

       inference of the adult’s authority over the minor. Rodriguez v. State, 868 N.E.2d

       551, 555 (Ind. Ct. App. 2007). Such is the case here. That is, Jennifer began

       dating Wright, whom she had known for thirteen years, in late February 2009.

       Wright visited Jennifer “[e]very night.” Trial Tr. p. 386. K.M. lived with

       Jennifer, as K.M.’s father was attending truck-driving school in Texas at the

       time. The molestation happened sometime in mid-March, when Wright was

       spending the night with K.M.’s mother. This evidence supports that Wright

       was in a position of trust with K.M. See Hines v. State, 856 N.E.2d 1275, 1280-

       81 (Ind. Ct. App. 2006) (finding that the defendant was in a position of trust

       with the victim, who was spending the night with the defendant’s daughter at

       the time of the molestation), trans. denied. Because the evidence supports this

       aggravator, this issue is not “clearly stronger” than the issues that appellate

       counsel raised on appeal. Accordingly, appellate counsel was not ineffective for

       failing to raise this issue.4 We therefore affirm the post-conviction court.




       4
         Wright also argues that appellate counsel was ineffective for failing to argue that his thirty-five-year
       sentence was inappropriate. Wright’s argument on this issue, however, is conditioned on the position-of-trust
       aggravator being found invalid. See Appellant’s Br. p. 36 (“Considering that one aggravating factor was
       not supported by the record, the other was of marginal importance, and the two mitigating factors were
       characterized by the trial court as ‘significant,’ a challenge to the appropriateness of Wright’s 35-year
       sentence . . . [was] clearly stronger than the issues that were argued.” (emphasis added)); see also id. at 34 (in
       addressing the nature of the offense, Wright argued: “But Wright was not in a position of trust with K.M., as
       the trial court erroneously found.”). Because the record supports the position-of-trust aggravator, we do not
       address this argument.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1850 | March 14, 2019                     Page 16 of 17
[24]   Affirmed.


       Mathias, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1850 | March 14, 2019   Page 17 of 17
