MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                       FILED
this Memorandum Decision shall not be                             Nov 16 2018, 8:46 am

regarded as precedent or cited before any                              CLERK
                                                                   Indiana Supreme Court
court except for the purpose of establishing                          Court of Appeals
                                                                        and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jennifer A. Joas                                        Curtis T. Hill, Jr.
Madison, Indiana                                        Attorney General of Indiana
                                                        Monika Prekopa Talbot
                                                        Supervising Deputy
                                                        Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Willie C. Napier,                                       November 16, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-591
        v.                                              Appeal from the Ripley Circuit
                                                        Court
State of Indiana,                                       The Honorable Ryan J. King,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        69C01-1609-F1-2



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-591 | November 16, 2018           Page 1 of 12
                               Case Summary and Issues
[1]   Willie C. Napier pleaded guilty to three counts of child molesting, all Level 4

      felonies. He raises two issues for our review which we restate as: 1) whether the

      trial court abused its discretion in identifying aggravating factors; and 2)

      whether Napier’s sentence is inappropriate in light of the nature of the offense

      and the character of the offender. Concluding the trial court did not abuse its

      discretion and Napier’s sentence is not inappropriate, we affirm.



                            Facts and Procedural History
[2]   In August 2016, Indiana State Trooper Kip Main received a report of a possible

      incident of child molesting involving Napier. Napier is the father of two

      children, K.N. and E.N. Napier is divorced and shares joint custody of the

      children with their mother, but the children live with him. At the time of this

      report, K.N. was eleven and E.N. was five. During the investigation, E.N.

      stated to a forensic interviewer that Napier “touched his pee pee and butt with a

      truck and his hand[,]” and that he saw Napier “touch his sibling’s pee pee and

      butt.” Appendix of Appellant, Volume Two at 16. E.N. also stated he had

      seen pictures and movies of naked people while at Napier’s home.


[3]   During Trooper Main’s interview with K.N., K.N. disclosed that Napier would

      “show her videos to learn what ‘humping and stuff’ was.” Id. K.N. recounted

      that she had once licked Napier’s penis after he begged her to do so. K.N. also

      detailed a sexual encounter she had with B.E., her nine-year-old friend who


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-591 | November 16, 2018   Page 2 of 12
      lived in Napier’s building, where she performed oral sex on B.E. in Napier’s

      room while Napier coached her and watched. Id.


[4]   Trooper Main also interviewed B.E. She told him that she would go to

      Napier’s apartment when he was home alone. She said that she would lay on

      Napier’s bed and he would touch his penis to her vagina until she told him to

      stop. B.E. recalled this happening on five separate occasions.


[5]   The State charged Napier with two counts of Level 1 felony child molesting,

      three counts of Level 4 felony child molesting, and one count of Level 3 felony

      vicarious sexual gratification. A jury trial was scheduled for November 28,

      2017. Prior to a jury being empaneled, however, Napier signed a plea

      agreement pursuant to which he pleaded guilty to three counts of Level 4 felony

      child molesting, and the State dismissed the remaining charges. The trial court

      found no mitigating factors and five aggravating factors and sentenced Napier

      to twelve years for each of the three counts, ordering the sentences to run

      consecutively for an aggregate sentence of thirty-six years. Napier now appeals.



                                Discussion and Decision
                         I. Abuse of Discretion in Sentencing
                                      A. Standard of Review
[6]   The determination of a defendant’s sentence rests “within the sound discretion

      of the trial court and [is] reviewed on appeal only for an abuse of discretion.”

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

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-591 | November 16, 2018   Page 3 of 12
      218 (2007). A trial court abuses its discretion when it: (1) fails to enter a

      sentencing statement; (2) enters a sentencing statement that explains reasons for

      imposing a sentence, including aggravating factors, that are not supported by

      the record; (3) enters a sentencing statement that omits reasons that the record

      clearly supports; or (4) considers any reasons that “are improper as a matter of

      law.” Id. at 490-91. If we find a trial court has abused its discretion, we will

      remand for resentencing “if we cannot say with confidence that the trial court

      would have imposed the same sentence had it properly considered reasons that

      enjoy support in the record.” Id. at 491.


                                      B. Aggravating Factors
[7]   Napier contends the trial court abused its discretion by relying on an

      aggravating factor that is not supported by the record. The trial court’s detailed

      sentencing order explains the factors the trial court relied on in determining

      Napier’s sentence, stating:


              III. The aggravating factor(s) are as follows:


              a. Defendant was in a position of care, custody, and control over the
              victims. Defendant violated a position of trust. First, Defendant
              molested his own children. Not only did he fail to protect his
              children but rather he perpetrated sex crimes against them.
              Second, during the offenses, the Defendant had the custody, care,
              and control over these three young children, which he used to
              make the children perform sex acts. The Court finds this to be a
              significant aggravating factor of great weight.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-591 | November 16, 2018   Page 4 of 12
        b. The facts and circumstances of the crime go far beyond that necessary
        to prove Level 4 felony, Child Molests [sic]. Three young victims all
        implicate the Defendant in “other sexual conduct” (oral sex on
        Defendant and oral sex between victims) going far beyond the
        “fondling or touching” behavior contemplated by a Level 4 Child
        Molest. Further, the Court finds it probative and reliable that the
        three children’s statements describing these acts are
        corroboration of one another. The Court finds this to be a
        substantial aggravating factor of great weight.


        c. The offense had a significant impact on at least 2 of the children. The
        Defendant’s children have been in weekly counseling with the
        Community of Mental Health Center for months and continue to
        be in counseling to this day. The victims have ongoing mental
        health needs. The Court considers this an aggravating factor of
        moderate weight.


        d. Defendant’s criminal history is an aggravating factor. Defendant
        has a previous felony conviction and a previous misdemeanor
        conviction. The Court considers this an aggravating factor and
        gives it the appropriate weight due.


        e. The Defendant recently violated the conditions of his release by
        abusing a substance containing alcohol. This is an aggravating factor
        and the Court gives it the appropriate weight due. The Court
        considers this aggravating factor together with all the other
        aggravating factors.


        IV. The mitigating factors are as follows:


        a. The Court did not find any mitigating factors (see below).


        V. Defendant’s guilty plea is not a mitigating factor because
        Defendant already received a significant benefit from his Plea

Court of Appeals of Indiana | Memorandum Decision 18A-CR-591 | November 16, 2018   Page 5 of 12
              Agreement; specifically, the dismissal of the three most serious
              offenses. Defendant’s prison exposure was reduced from over
              one hundred years (100) to thirty-six (36) years. Further, at the
              time the plea agreement was entered, the Court had already
              summonsed a jury and said jury was seated in the Courtroom
              and the three child victims had already been deposed.


      Appellant’s App., Vol. Two at 192-93.


[8]   Napier argues the trial court abused its discretion in finding as an aggravating

      factor that the “offense had a significant impact on at least two (2) of the

      children.” See Appellant’s Brief at 12. Notably, although Napier asserts there

      was “[l]ittle evidence” of this fact, he does not argue there was no evidence in

      the record to support the trial court’s finding. Id. Rather, Napier argues that

      the legislature already considered the emotional and psychological impact on

      victims when it set the advisory sentence for child molesting, and the impact on

      Napier’s victims is “not so distinct from other similarly situated cases as to rise

      to the level of an aggravating circumstance.” Id.


[9]   At the sentencing hearing, Paul Reynolds, the significant other of K.N. and

      E.N.’s mother who lives with them, read a statement on behalf of himself and

      the children’s mother. In the questioning that followed, Reynolds stated that

      K.N. and E.N. were currently undergoing counseling, which had begun with

      weekly sessions but had recently been reduced to every other week. Reynolds

      also stated that “as far as I know,” B.E. had attended counseling but he had no

      personal knowledge of her situation. Transcript, Volume II at 27-28.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-591 | November 16, 2018   Page 6 of 12
[10]   Napier correctly asserts that victim impact is an improper aggravating factor

       where there is nothing in the record to indicate the impact on the victim was

       different than the impact generally experienced by victims of the same crime.

       See McElroy v. State, 865 N.E.2d 584, 590 (Ind. 2007). However, Napier’s

       argument fails to take into account the fact that he pleaded guilty to three

       counts of Level 4 felony child molesting. A person commits Level 4 felony

       child molesting when he “performs or submits to any fondling or touching[.]”

       Ind. Code § 35-42-4-3(b). As the trial court found, the facts and circumstances

       in this case go far beyond the typical Level 4 felony child molesting case. The

       record reflects that Napier engaged in oral sex with his daughter, had his

       daughter perform oral sex on B.E. while he watched and gave her instructions,

       and touched his son inappropriately. The emotional and psychological harm

       inflicted on K.N. and E.N. was exacerbated by the fact that Napier is their

       biological father and as a result of Napier’s actions, K.N. and E.N. are

       participating in frequent counseling sessions. See Ludack v. State, 967 N.E.2d

       41, 48 (Ind. Ct. App. 2012) (explaining that “the acts of sexual molestation pose

       a greater threat of severe, long-lasting emotional harm” when the perpetrator is

       someone close to the victim), trans. denied. As such, we cannot say the trial

       court abused its discretion in identifying this as an aggravating factor.


[11]   Even assuming that the impact on the victims was improperly used as an

       aggravating factor, however, remand for resentencing would only be

       appropriate “if we cannot say with confidence that the trial court would have

       imposed the same sentence had it properly considered reasons that enjoy


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-591 | November 16, 2018   Page 7 of 12
       support in the record.” Sargent v. State, 875 N.E.2d 762, 769 (Ind. Ct. App.

       2007). Additionally, we have held that even if “one aggravating factor is

       improperly applied, the sentence is still valid as long as other valid aggravators

       existed and the invalid aggravator did not play a significant role in the trial

       court’s decision.” Coy v. State, 999 N.E.2d 937, 947 (Ind. Ct. App. 2013)

       (internal quotation marks and alterations omitted).


[12]   It is apparent from the trial court’s sentencing statement that it would have

       imposed the same sentence using only the remaining four aggravating factors.

       First, the trial court primarily focused on and gave the most weight to Napier’s

       violation of his position of trust and the fact that Napier’s offense was

       particularly egregious for a Level 4 felony child molesting. Second, the last

       three aggravating factors, including the impact on the victims, were given less

       significant weight in the trial court’s sentencing. And finally, the trial court

       found no mitigating factors that would serve to lessen Napier’s sentence. For

       all of these reasons, we have confidence the trial court would have imposed the

       same sentence even if the contested aggravating factor was removed from

       consideration. Because Napier did not challenge any of the other aggravating

       factors as improper, we hold that the trial court did not abuse its discretion in

       Napier’s sentencing.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-591 | November 16, 2018   Page 8 of 12
                                   II. Inappropriate Sentence
                                       A. Standard of Review
[13]   “The 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.” Ind. Appellate Rule 7(B). “[T]he question under Appellate Rule

       7(B) is not whether another sentence is more appropriate; rather, the question is

       whether the sentence imposed is inappropriate.” King v. State, 894 N.E.2d 265,

       268 (Ind. Ct. App. 2008). “The principal role of appellate review should be to

       attempt to leaven the outliers . . . but not to achieve a perceived ‘correct’ result

       in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). The

       defendant has the burden to persuade us that the sentence imposed by the trial

       court is inappropriate. Anglemyer, 868 N.E.2d at 494. Deference to the trial

       court’s sentencing decision should prevail unless it can be overcome by

       compelling evidence “portraying in a positive light the nature of the offense

       (such as accompanied by restraint, regard, and lack of brutality) and the

       defendant’s character (such as substantial virtuous traits or persistent examples

       of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).


                                      B. Nature of the Offense
[14]   The nature of the offense refers to a defendant’s actions in comparison with the

       elements of the offense. Cannon v. State, 99 N.E.3d 274, 280 (Ind. Ct. App.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-591 | November 16, 2018   Page 9 of 12
       2018), trans. denied. The nature of the offense can be analyzed by using the the

       advisory sentence as a starting point. Anglemyer, 868 N.E.2d at 494.


[15]   In this case, Napier pleaded guilty to three counts of Level 4 felony child

       molesting and received twelve years for each conviction, to be served

       consecutively. The sentencing range for a Level 4 felony is between two and

       twelve years with an advisory sentence of six years. Ind. Code § 35-50-2-5.5.

       The trial court found that Napier’s offenses warranted the maximum sentence

       of thirty-six years.


[16]   Napier argues that his sentence is inappropriate in light of the nature of his

       offense because nothing in the record makes his case more objectionable than a

       typical child molestation case. He contends that the harm to the children is

       already accounted for in the advisory sentence and that the harm suffered by

       the victims in this case does not make his offense “more egregious than is

       typical.” Appellant’s Br. at 19. Per statute, “a person who . . . performs or

       submits to any fondling or touching, of either the child or the older person, with

       intent to arouse or satisfy the sexual desires of either the child or the older

       person, commits child molesting, a Level 4 felony.” Ind. Code § 35-42-4-3(b).

       As previously stated, Napier’s offense went well beyond just fondling and

       touching the children for sexual gratification and he perpetrated some of his

       crimes against his own children.


[17]   Napier also argues that his maximum sentence is inappropriate because he

       never threatened the children or physically harmed them. Our supreme court


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-591 | November 16, 2018   Page 10 of 12
       has held that “the absence of physical harm is not an automatic mitigating

       circumstance such that it would require a lesser sentence than would otherwise

       be imposed.” Neale v. State, 826 N.E.2d 635, 638 (Ind. 2005). Although Napier

       did not physically threaten or attack the children, he showed them

       pornographic movies, talked about sexual subjects, and normalized sexual acts.

       This conduct indicates he groomed the children in a more subtle, but no less

       effective way to obtain compliance with his wishes. We find nothing about the

       nature of Napier’s offenses rendering his sentence inappropriate.


                                  C. Character of the Offender
[18]   The character of the offender refers to “general sentencing considerations and

       the relevant aggravating and mitigating circumstances.” Cannon, 99 N.E.3d at

       280. “We assess the trial court’s recognition or non-recognition of aggravators

       and mitigators as an initial guide to determining whether the sentence imposed

       was inappropriate.” Stephenson v. State, 53 N.E.3d 557, 561 (Ind. Ct. App.

       2016).


[19]   Napier argues that his character does not warrant a maximum sentence because

       his criminal history is remote and unrelated to the present offense and he has

       been steadily employed. When evaluating the character of the offender, we

       consider his or her criminal history a relevant factor, Sanders v. State, 71 N.E.3d

       839, 844 (Ind. Ct. App. 2017), trans. denied, and “[t]he significance of [a

       defendant’s] criminal history varies based on the gravity, nature, and number of

       prior offenses in relation to the current offense.” Johnson v. State, 986 N.E.2d


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-591 | November 16, 2018   Page 11 of 12
       852, 857 (Ind. Ct. App. 2013). Napier has been previously convicted of one

       Class D felony, maintaining a common nuisance in 2004, and two

       misdemeanors, possession of marijuana in 2004 and operating a vehicle while

       intoxicated in 2009. These offenses are minor in nature and unrelated in time,

       gravity, or nature to his current crimes. Perhaps standing alone, Napier’s

       criminal record would not provide a basis for a maximum sentence. However,

       as we have already discussed above, the nature of Napier’s offenses here was

       particularly egregious. As for his employment, while it is worth noting that

       Napier has a history of stable employment, holding a steady job is not such an

       outstanding character trait that it would outweigh or even compensate for the

       egregious offenses he committed.


[20]   Napier has failed to persuade us that his sentence is inappropriate in light of

       nature of the offense and his character.



                                              Conclusion
[21]   Based on the foregoing, we conclude the trial court did not abuse its discretion

       in sentencing Napier to the maximum sentence based on its finding of multiple,

       proper aggravating factors. We further conclude that Napier’s sentence is not

       inappropriate in light of the nature of his offenses and his character.

       Accordingly, we affirm.


[22]   Affirmed.


       Baker, J., and May, J., concur.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-591 | November 16, 2018   Page 12 of 12
