MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                                Mar 09 2020, 9:28 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Bruce W. Graham                                          Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General of Indiana
                                                         Benjamin J. Shoptaw
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

David Alan Love,                                         March 9, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1844
        v.                                               Appeal from the Tippecanoe
                                                         Circuit Court
State of Indiana,                                        The Honorable Sean M. Persin,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79C01-1804-F1-3



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020                    Page 1 of 21
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, David Love (Love), appeals his convictions and sentence

      for two Counts of child molesting by sexual intercourse, Level 1 felonies, Ind.

      Code § 35-42-4-3(a)(1); and one Count of child molesting by other sexual

      conduct, a Level 1 felony, I.C. § 35-42-4-3(a)(1).


[2]   We affirm.


                                                   ISSUES
[3]   Love presents three issues on appeal which we restate as:


              (1) Whether the prosecutor committed misconduct amounting to
                 fundamental error when she argued to the jury that Love
                 could be convicted based solely on the victims’ testimony;


              (2) Whether the trial court erred in tendering certain final
                 instructions; and


              (3) Whether Love’s sentence is inappropriate in light of the
                 nature of his offenses and his character.


                      FACTS AND PROCEDURAL HISTORY
[4]   Amanda Love (Amanda) is the mother of two daughters, M.B. and D.B., and a

      son, N.B. (collectively, the Children). Amanda divorced the Children’s father

      in 2009. Amanda met Love online in 2012. In March 2013, Amanda moved

      into Love’s mobile home in West Lafayette, Indiana. The Children moved in

      with Amanda and Love in May 2013, when M.B. was seven years old, N.B.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020   Page 2 of 21
      was six years old, and D.B. was four years old. The Children came to call Love

      their dad. Love would care for the Children when Amanda was not at home.

      Amanda has been diagnosed with a learning disability. All three of the

      Children are learning delayed and perform below grade level. The Children

      often do not understand what is being told to them and require multiple

      explanations before comprehending.


[5]   Starting approximately one year after the Children had moved into Love’s

      home, Love began molesting M.B. Love inserted his penis into M.B.’s vagina,

      anus, and mouth. Love subjected M.B. to sexual intercourse multiple times,

      and he had anal intercourse with her on more than one occasion. Love also

      inserted his fingers inside M.B.’s vagina, and he directed M.B. to masturbate

      him. At bedtime, Love would often come into the bedroom that M.B. shared

      with D.B., climb into M.B.’s top bunk, and touch M.B.’s chest and genitals.

      These offenses were an everyday occurrence for M.B., and they often happened

      when Amanda was at work. M.B. did not tell anyone about the offenses

      because she was afraid that she would be in trouble and that Amanda would be

      angry at her. Love would take M.B. for meals alone, tell M.B. that she was

      beautiful, and called her “my love.” (Transcript Vol. IV, p. 24). Love last

      performed sexual intercourse on M.B. when she was twelve years old.


[6]   Starting when N.B. was eight years old, Love subjected N.B. to anal

      intercourse. Although N.B. was unsure how many times it had happened, he

      was sure that it had happened more than once. This would often occur at night

      when N.B. was trying to sleep, and it hurt “really bad.” (Tr. Vol. II, p. 246).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020   Page 3 of 21
      Love had N.B. fellate him, and Love fellated N.B. Love also had N.B.

      masturbate him to ejaculation. N.B. did not report the offenses because he was

      afraid of Love, and Love had told him not to tell. N.B. was eleven years old the

      last time Love molested him.


[7]   Starting when D.B. was around the age of eight, Love began subjecting D.B. to

      vaginal and anal intercourse. This would occur in Love’s bedroom and in

      D.B.’s bedroom when Amanda was not at home. Love also fondled D.B.’s

      chest and buttocks. Love also showed the Children pornography that he

      accessed on his cell phone.


[8]   In March of 2018 when the Children were on spring break, Amanda asked

      M.B. if anyone had ever touched her inappropriately. M.B. became hysterical

      and reported what Love had done. When asked the same question, D.B. also

      disclosed being molested. N.B. initially denied that anything had happened to

      him because he continued to be afraid of Love, but he later reported that Love

      had molested him. Amanda alerted law enforcement after M.B. and D.B. first

      reported. Amanda and the Children did not return to Love’s home. When

      interviewed by law enforcement, Love said that he would cuddle with M.B. in

      her bed and talk to her about sexual matters, among other things. Love also

      related that once in 2016 when he was sleeping with M.B. in her bed, he awoke

      and found M.B. holding his erect penis. According to Love, after this incident,

      he stopped spending time with M.B. in her bed, but later started again at her

      insistence.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020   Page 4 of 21
[9]    On April 4, 2018, the State filed an Information, charging Love with offenses

       against M.B. and D.B.—two Counts of Level 1 felony child molesting, two

       Counts of Level 4 felony child molesting, and two Counts of Level 6 felony

       performing sexual conduct in the presence of a minor. After N.B. reported and

       plea negotiations lapsed, on September 6, 2018, the State filed an amended

       Information, charging Love with three additional Counts of Level 1 felony

       child molesting of M.B., one Count of Class A felony child molesting of M.B.,

       three additional Counts of Level 1 felony child molesting of D.B., three Counts

       of Level 1 felony child molesting of N.B., and one Count of Level 4 felony child

       molesting of N.B. Prior to trial, the trial court granted the State’s motion to

       dismiss two of the Level 1 felony charges of molesting M.B.


[10]   On May 14, 2019, the trial court convened Love’s three-day jury trial. The

       Children testified regarding the offenses. M.B. testified that she had witnessed

       Love touch D.B.’s genitals. D.B. testified that she had witnessed Love subject

       M.B. to sexual intercourse. N.B. related that on one occasion, Love called

       N.B. into M.B.’s bedroom to watch Love subject M.B. to anal intercourse.

       N.B. had also witnessed M.B. resist, attempt to push Love away, and scream in

       pain on another occasion that Love subjected M.B. to sexual intercourse.


[11]   Love’s biological son, C.L., who would visit at Love’s home, related that he

       had observed Love kissing M.B. and D.B. using his tongue, which made C.L.

       uncomfortable. C.L. had also seen M.B. rubbing her foot against Love’s

       testicles, which Love did not always stop her from doing. C.L. observed Love

       playing a game with M.B. and D.B. which involved grabbing the girls’ chest, a

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020   Page 5 of 21
       game that he did not play with C.L. or N.B. Text messages between M.B. and

       Love were admitted into evidence in which the two argued about who loved

       whom more, Love told M.B. “I Will Always Love You,” and, after M.B. sent

       him a selfie, Love responded, “There’s my pretty girl,” and “Wow . . . Tell me

       how you really feel about me[.]” (Exh. 60, Exh. Vol. I, pp. 168-69).


[12]   The State proffered the two following final instructions:


               Proof of “penetration” is sufficient where the slightest
               penetration occurred to the external genitalia of the female sexual
               organ, vagina, or anus.


               When other sexual conduct is charged alleging the penetration of
               the sex organ or anus of a person by an object, the law holds that
               a finger is an “object.”


       (Appellant’s App. Vol. II, pp. 120, 121). Love’s counsel reviewed the proposed

       instructions, and, when asked by the trial court if Love had any objection to the

       State’s proposed instruction, Love’s counsel responded, “No.” (Tr. Vol. IV, p.

       85).


[13]   During her closing argument, the prosecutor remarked twice to the jury that,

       according to Indiana law, it could convict Love based solely on the testimony

       of the victims. The prosecutor also once argued that the jury could convict

       based on the testimony of the victims alone, without referring to the state of the

       law in Indiana. Love’s counsel did not object to this argument or move for a

       mistrial. Love’s counsel argued in his own closing remarks that, when it had no

       physical evidence corroborating the crimes, the State always emphasized that a

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020   Page 6 of 21
       defendant could be convicted solely on a victim’s testimony. Among the trial

       court’s final instructions to the jury were the “proof of penetration” and “finger

       as object” instructions.


[14]   The jury found Love not guilty of the Class A felony child molesting charge as

       to M.B. and not guilty of one of the Level 1 felony child molesting charges as to

       D.B. The jury found Love guilty of the remaining nine Level 1 felonies, two

       Level 4 felonies, and two Level 6 felonies.


[15]   The presentence investigation report filed with the trial court revealed that Love

       had one prior conviction in 2008 for Class A misdemeanor domestic battery. A

       risk assessment done by the probation department placed Love in the low risk

       category to reoffend. Love had graduated from high school and attended some

       college. Love had been employed for seventeen years at the same business, and

       his employer provided a character reference. Love reported previously raising

       six other children without incident, and he reported having no issues with

       substance or alcohol abuse.


[16]   In her letter to the trial court submitted for sentencing, Amanda related that, as

       a result of Love’s offenses, the Children experienced difficulty sleeping, had

       nightmares, and exhibited anger and behavioral issues. Amanda no longer

       trusted anyone with the Children. The whole family was in counseling. M.B.,

       N.B., and D.B. wrote the trial court that they hoped that Love would never be

       free again. M.B. and N.B. felt that Love had ruined their lives, and D.B.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020   Page 7 of 21
       wanted Love to “stay in jail forever so he doesn’t do it to anyone else.”

       (Appellant’s Conf. App. Vol. III, p. 62).


[17]   On July 19, 2019, the trial court conducted Love’s sentencing hearing. Citing

       double jeopardy concerns, the trial court declined to enter judgment of

       conviction on all the jury’s verdicts apart from one Level 1 felony conviction for

       Love having sexual intercourse with M.B., one Level 1 felony conviction for

       Love having sexual intercourse with D.B., and one Level 1 felony conviction

       for Love engaging in other sexual conduct with N.B. involving Love’s penis

       and N.B.’s anus. The trial court found as a significant aggravating

       circumstance that Love had care, custody, and control of the Children during

       the offenses. The trial court also found that the harm to the Children was

       greater than that necessary to accomplish the offenses. The trial court found no

       mitigating circumstances. It specifically rejected Love’s proffered mitigator of

       lack of a criminal history, finding that Love had a criminal conviction and that

       he had not led a law-abiding life due to molesting the Children over an

       extended period of time. The trial court sentenced Love to thirty-three years for

       each of his three convictions, to be served consecutively.


[18]   Love now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                       I. Prosecutor’s Closing Argument

[19]   Love’s first contention is that “the prosecutor committed fundamental error by

       advising the jury in final argument, on at least three occasions, that the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020   Page 8 of 21
       uncorroborated testimony of a victim alone is sufficient to convict.”

       (Appellant’s Br. p. 19). As a general matter, “‘[i]n reviewing a properly

       preserved claim of prosecutorial misconduct, we determine (1) whether the

       prosecutor engaged in misconduct, and if so, (2) whether the misconduct, under

       all of the circumstances, placed the defendant in a position of grave peril to

       which he or she would not have been subjected.’” Jones v. State, 101 N.E.3d

       249, 257 (Ind. Ct. App. 2018) (quoting Cooper v. State, 854 N.E.2d 831, 835

       (Ind. 2006)), trans. denied. Whether a prosecutor’s closing argument amounts to

       misconduct is determined by reference to case law and the Rules of Professional

       Conduct. Id. The gravity of peril resulting from the challenged argument is

       measured by the probable persuasive effect of the misconduct on the jury’s

       decision rather than the degree of the impropriety of the conduct involved. Id.


[20]   To properly preserve a claim of prosecutorial misconduct, a defendant must, at

       the time of the alleged misconduct, request an admonishment or move for a

       mistrial. Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014). Love did neither, so his

       claim is procedurally defaulted. Id. Our standard of review for waived claims

       dictates that “the defendant must establish not only the grounds for

       prosecutorial misconduct but must also establish that the prosecutorial

       misconduct constituted fundamental error.” Id. at 667-68. Fundamental error

       is an extremely narrow exception to waiver, and a defendant faces the heavy

       burden of demonstrating that the alleged error is so prejudicial to his rights that

       it rendered a fair trial impossible. Id. at 668.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020   Page 9 of 21
[21]   Love argues that the prosecutor improperly argued that the jury could convict

       him based solely on the testimony of his victims. In support of his claim, Love

       relies on our supreme court’s decision in Ludy v. State, 784 N.E.2d 459, 462

       (Ind. 2003), in which the court held that it was error for a trial court to instruct

       the jury that a conviction could be based solely on the uncorroborated

       testimony of the victim. Love contends that Ludy is applicable to his case

       because the prosecutor’s argument had the same impact on the jury as would a

       jury instruction.


[22]   However, the trial court gave no such instruction in this case, and our supreme

       court has never held that a prosecutor, whose job it is to focus the jury’s

       attention on the facts and evidence it considers favorable to the State’s case,

       may not argue its interpretation of the law surrounding victim testimony. The

       prosecutor’s statement of the law was correct. See Garner v. State, 777 N.E.2d

       721, 725 (Ind. 2002); Carter v. State, 31 N.E.3d 17, 30 (Ind. Ct. App. 2015),

       trans. denied. In addition, this court has already rejected the very claims that

       Love makes here. See Deaton v. State, 999 N.E. 452, 456 (Ind. Ct. App. 2013)

       (holding that prosecutor’s closing argument that “according to the Indiana

       Supreme Court and the Indiana Court of Appeals” the child molesting victim’s

       uncorroborated testimony was sufficient to convict did not constitute

       misconduct), trans. denied; see also Weis v. State, 825 N.E.2d 896, 904 (Ind. Ct.

       App. 2005) (rejecting Weis’ argument that a prosecutor’s argument about a

       child molesting victim’s testimony had the same impact as a jury instruction

       and noting that the “mere fact that a jury may not be instructed on a certain


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020   Page 10 of 21
       point of law does not lead to the conclusion that argument concerning that

       point of law is also improper.”). Love does not address this legal authority that

       is contrary to his claim. Accordingly, we conclude that Love has failed to

       establish that the prosecutor committed any misconduct, let alone misconduct

       amounting to fundamental error. See Ryan, 9 N.E.3d at 667-68.


                                              II. Jury Instructions

[23]   Next, Love argues that the trial court “committed fundamental error by reading

       two erroneous final instructions”—i.e., one on what constituted sufficient proof

       of penetration and one providing that a finger is an object for purposes of

       determining whether other sexual conduct occurred. (Appellant’s Br. p. 23).

       Jury instruction is a matter within the discretion of the trial court, and we will

       reverse a trial court’s instructional decision only upon an abuse of that

       discretion. Cardosi v. State, 128 N.E.3d 1277, 1284 (Ind. 2019). The purpose of

       jury instructions is to inform the jury of the law applicable to the facts without

       misleading the jury and to enable the jury to comprehend the case clearly so

       that it may arrive at a just, fair, and correct verdict. Isom v. State, 31 N.E.3d

       469, 484 (Ind. 2015). In reviewing a challenge to a jury instruction, we

       consider: (1) whether the instruction is a correct statement of the law; (2)

       whether there was evidence supporting the instruction; and (3) whether the

       substance of the instruction was covered by other instructions given by the trial

       court. Thomas v. State, 61 N.E.3d 1198, 1201 (Ind. Ct. App. 2016), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020   Page 11 of 21
                                 A. Availability of Love’s Instructional Claims

[24]   Before proceeding to the merits of Love’s claim of instructional error, we pause

       to address the extent to which his claims are available for our review. Love

       argues that the trial court erred in giving an instruction that a finger is an object

       for purposes of an allegation of other sexual conduct involving penetration of

       the sex organ of a person by an object. However, the trial court did not enter

       judgment of conviction on any Count of other sexual conduct involving that

       type of penetration. The trial court entered judgment of conviction on two

       Counts of Level 1 felony child molesting by sexual intercourse as to M.B. and

       D.B. The third conviction upon which the trial court entered judgment was for

       Level 1 felony child molesting by other sexual conduct involving Love’s penis

       and N.B.’s anus.


[25]   “Mootness arises when the primary issue within the case has been ended or

       settled or in some manner disposed of, so as to render it unnecessary to decide

       the question involved.” C.J. v. State, 74 N.E.3d 572, 575 (Ind. Ct. App. 2017)

       (quotation omitted), trans. denied. Put another way, when a court is not able to

       render effective relief to a party, the case is deemed moot and subject to

       dismissal. Id. Here, the trial court did not enter judgment of conviction on any

       Count that would implicate this specific claim by Love, and, therefore, there is

       nothing upon which we may render relief. We conclude that Love’s claim

       based on the “finger as object” instruction is moot, and we decline to address it.


[26]   In addition, the State argues that both of Love’s instructional claims are

       unavailable for our review because he invited the error he now challenges. In

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020   Page 12 of 21
       Batchelor v. State, 119 N.E.3d 550, 556 (Ind. 2019), our supreme court recently

       clarified the difference between the doctrine of invited error, which typically

       forecloses our review of a claim, and waiver, which leaves a claim open to

       review for fundamental error. In Batchelor, the trial court summarized the final

       instructions and then asked the parties, “We good?” to which defense counsel

       replied, “Yeah.” Id. at 554. Batchelor raised an appellate claim of instructional

       error, and the State argued that his claim was foreclosed because he had invited

       any error. Id. at 556. The court held that to establish that a defendant invited

       error, there must be some evidence that the appellant’s affirmative actions, as

       part of a deliberate trial strategy, produced the claimed error. Id. at 558. “A

       passive lack of objection, standing alone, is simply not enough.” Id. (quotation

       omitted). The court observed that Batchelor’s counsel had not made a request

       for the challenged instruction and held that defense counsel’s mere act of

       replying “Yeah” to the trial court’s query “We good?” was insufficient to show

       any deliberate trial strategy on his part. Id. at 558-59. Declining to find invited

       error, the court reviewed Batchelor’s claim for fundamental error. Id. at 559.


[27]   Here, it was the State that proposed and relied upon the challenged instructions,

       not Love. In addition, Love’s counsel merely stated that he had no objection to

       the State’s proposed instructions, which we find is the same type of passive lack

       of objection that our supreme court held was insufficient to show invited error

       in Batchelor. Accordingly, we conclude that Love did not invite the error he

       now challenges and that his remaining instructional error claim is subject to

       review for fundamental error, meaning error that “clearly and blatantly violated

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020   Page 13 of 21
       basic principles of due process resulting in undeniable and substantial potential

       for harm” and that made a fair trial impossible. Id. at 559 (quotation omitted).


                                      B. Instruction on Proof of Penetration

[28]   The trial court instructed the jury that


               Proof of “penetration” is sufficient where the slightest
               penetration occurred to the external genitalia of the female sexual
               organ, vagina, or anus.


       (Appellant’s App. Vol. II, p. 172). This is a correct statement of the law, and

       Love does not argue otherwise. See Boggs v. State, 104 N.E.3d 1287, 1289 (Ind.

       2018); Short v. State, 564 N.E.2d 553, 559 (Ind. Ct. App. 1991). The giving of

       the instruction was supported by M.B.’s testimony that she called her genitals

       her “private area,” Love would put Vaseline on his “dick” when he shoved it

       inside her private area, and that it hurt “[w]henever he shoved it inside of [her]”

       (Tr. Vol. II, pp. 109, 129-30); by D.B.’s testimony that she called her genitals

       her “crotch” and that Love put his “dick” inside her crotch (Tr. Vol. II, pp. 184,

       186-87, 205); and by N.B.’s testimony that he called a penis a “wiener,” Love

       would “shove [his wiener] inside of me,” Love shoved his penis inside N.B.’s

       “butt,” and that a butt’s function is you “poop out of it.” (Tr. Vol. II, pp. 226,

       237). Love does not contend on appeal that the challenged instruction was

       covered by another instruction. Thus, we find no error in the trial court’s

       provision of this instruction to the jury. See Thomas, 61 N.E.3d at 1201.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020   Page 14 of 21
[29]   Nevertheless, Love argues that the trial court’s instruction improperly

       emphasized “one particular evidentiary fact, witness or phase of the case”

       without explaining what precisely was being unduly emphasized. (Appellant’s

       Br. p. 24). “Penetration” is part of the definition of sexual intercourse and other

       sexual conduct. See I.C. §§ 35-31.5-2-302; -221.5. The challenged instruction

       did not emphasize any particular fact, witness, or trial phase; rather, it informed

       the jury what type of evidence it could consider in determining whether

       penetration had occurred.


[30]   Love also argues that the instruction was improper because it is derived from

       appellate case law regarding the sufficiency of the evidence to sustain a

       conviction. Citing Drollinger v. State, 408 N.E.2d 1228, 1241 (Ind. 1980), Love

       contends that “[t]he mere fact that certain language or expressions may be used

       in a Court of Appeals decision to analyze sufficiency of the evidence issues,

       does not make the language proper as an instruction to the jury.” (Appellant’s

       Br. p. 25). However, it is also true that “[t]here is no blanket prohibition against

       the use of appellate decision language in jury instructions.” Munford v. State,

       923 N.E.2d 11, 15 (Ind. Ct. App. 2010). There is no statutory definition of

       penetration. In addition, although the preferred practice is to use pattern jury

       instructions, see Lacy v. State, 58 N.E.3d 944, 947 (Ind. Ct. App. 2016), there is

       no pattern instruction on penetration. The instruction given by the trial court

       assisted the jury in comprehending the offenses clearly, whether it came from

       appellate decisions or not. See Isom, 31 N.E.3d at 484.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020   Page 15 of 21
[31]   Love’s last challenge to this instruction is that it was confusing to the jury and

       was unsupported by evidence because there was no expert testimony explaining

       the anatomy of the female sex organ or the anus. Love presents us with no

       legal authority requiring an expert to testify regarding the female anatomy or

       the anus in order to support such an instruction. Indeed, we find little

       likelihood a juror would be confused regarding the anatomy of the anus because

       every human being has personal experience with that part of the body. In

       addition, N.B. testified that the part of his anatomy where Love inserted his

       penis was where you “poop out of[.]” (Tr. Vol. II, p. 237).


[32]   Regarding the female sex organ, at trial, M.B. and D.B. pointed to drawings of

       a girl to identify their own genitals, provided their terms for that area, and

       specifically stated that Love had placed his penis inside that area. In addition,

       the nurse who conducted the girls’ sexual assault exams differentiated between

       the external exam of their genitalia, which were “the parts that you would see

       without touching them at all,” the internal exam of the areas where she would

       “tell the kiddos I am going to use my hands now and I’m just going to open you

       up a little bit,” and the “vaginal cavity.” (Tr. Vol. III, pp. 133-34). A diagram

       of the female sex organ was also admitted during the nurses’ testimony. (Exh.

       57, Conf. Exh. Vol. I, p. 147). This was additional evidence that supported the

       giving of the instruction and aided the jury’s understanding. In short, we find

       no error in the giving of this instruction, let alone the fundamental error that

       Love was required to demonstrate to overcome the effect of his waiver of the

       issue.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020   Page 16 of 21
                                       III. Appropriateness of Sentence

[33]   Love also contends that his sentence is inappropriate given the nature of his

       offenses and his character. “Even when a trial court imposes a sentence within

       its discretion, the Indiana Constitution authorizes independent appellate review

       and revision of this sentencing decision.” Hoak v. State, 113 N.E.3d 1209, 1209

       (Ind. 2019). Thus, we may revise a sentence if, after due consideration of the

       trial court’s decision, we find that the sentence is inappropriate in light of the

       nature of the offense and the character of the offender. Id. The principal role of

       such review is to attempt to leaven the outliers. Cardwell v. State, 895 N.E.2d

       1219, 1225 (Ind. 2008). The defendant bears the burden to persuade the

       reviewing court that the sentence imposed is inappropriate. Robinson v. State, 91

       N.E.3d 574, 577 (Ind. 2018).


                                              A. Nature of the Offenses

[34]   When assessing the nature of an offense, the advisory sentence is the starting

       point that the legislature selected as an appropriate sentence for the particular

       crime committed. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). The trial

       court entered judgment of conviction on three Level 1 felonies for child

       molesting. The sentencing range for a Level 1 felony is between twenty and

       forty years, with the advisory sentence being thirty years. I.C. § 35-50-2-4(b).

       The trial court sentenced Love to a slightly enhanced, thirty-three-year sentence

       for each of the Level 1 felonies, to be served consecutively.


[35]   Love argues that his slightly-enhanced, consecutive sentences are inappropriate

       given the nature of his offenses. When reviewing the nature of an offense, we

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020   Page 17 of 21
       look to the “the details and circumstances of the commission of the offense and

       the defendant’s participation.” Perry, 78 N.E.3d at 13. Love was the person

       who the Children called their dad, and he committed the offenses when Mother

       was not at home and the Children were in his exclusive care. Love betrayed his

       position of trust with the Children in a grievous manner. We have long held

       that “[a]busing a position of trust is, by itself, a valid aggravator which supports

       the maximum enhancement for a sentence for child molesting.” See Hart v.

       State, 829 N.E.2d 541, 544 (Ind. Ct. App. 2005). We find that this factor alone,

       which Love does not argue on appeal was invalid, renders Love’s individual

       sentences, which were three years above the advisory sentence, appropriate. See

       Baumholser v. State, 62 N.E.3d 411, 418 (Ind. Ct. App. 2016) (finding

       defendant’s thirty-two year concurrent sentences for one Level 1 felony and two

       Class C felony child molesting convictions to be appropriate where he abused

       his position of trust with his stepdaughter to molest her on multiple occasions),

       trans. denied.


[36]   Other evidence in the record bolsters our conclusion that the nature of Love’s

       offenses merits the individual sentences imposed. All the Children are

       developmentally delayed, which made them more vulnerable than other

       children. Love began abusing the Children when each was eight years old,

       which was considerably younger than the age of fourteen years old necessary to

       prove the offense. See I.C. § 35-42-4-3(a)(1). Love emotionally manipulated

       M.B. by fostering the perception that they had a romantic relationship. Love

       molested the Children in front of each other, in one instance calling N.B. into


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020   Page 18 of 21
       the room so that N.B. could watch Love anally penetrating M.B. As a result of

       the offenses, the Children have experienced difficulty sleeping, nightmares,

       anger, and behavioral issues. The entire family is in counseling. In sum, we

       find nothing inappropriate about the individual sentences imposed given the

       nature of the offenses.


[37]   We also conclude that consecutive sentences are not inappropriate given that

       there were three victims involved. Consecutive sentences “vindicate the fact

       that there were separate harms and separate acts against more than one

       person.” Serino v. State, 798 N.E.2d 852, 857 (Ind. 2003); see also Upton v. State,

       904 N.E.2d 700, 704 (Ind. Ct. App. 2009) (finding consecutive sentences for

       child molesting offenses appropriate where Upton molested multiple victims),

       trans. denied. Love draws our attention several times to the fact the sentence

       imposed is effectively a “life sentence” for him. (Appellant’s Br. pp. 2, 5, 28,

       30). However, a sentence is not inappropriate merely because it may result in

       the defendant never being free in society again. See, e.g., Wright v. State, 108

       N.E.3d 307, 320-21 (Ind. 2018) (finding Wright’s sixty-year sentence for

       molesting two victims appropriate, even though it “essentially amount[ed] to a

       life-sentence for this thirty-three-year-old credit restricted felon.”).


[38]   Love was forty-three years old when he began molesting M.B., and he was

       forty-nine years old when the trial court imposed its sentence. We note that

       even if the trial court had imposed the minimum sentence of twenty years for

       each of the offenses and ordered them to be served consecutively in recognition

       of the three victims, it would have still resulted in life-long incarceration for

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020   Page 19 of 21
       Love. We are unwilling to discount the suffering of one or more of Love’s

       victims simply because Love did not locate his targets earlier.


                                            B. Character of the Offender

[39]   In addition, upon reviewing a sentence for inappropriateness, we look to a

       defendant’s life and conduct as illustrative of her character. Morris v. State, 114

       N.E.3d 531, 539 (Ind. Ct. App. 2018), trans. denied. Love directs our attention

       to his relative lack of criminal history, his employment record, previous efforts

       at education, lack of alcohol and substance abuse, his contribution to raising

       other children, and the fact that the probation department assessed him as being

       in the low category to re-offend. However, we conclude that Love has failed to

       meet his burden of persuasion on appeal because these factors do not override

       other evidence of Love’s poor character present in the record. Love molested

       the Children over a period of approximately four years, which indicates to us

       that Love did not live a law-abiding life despite the fact that he only had one

       previous conviction for domestic battery. Love essentially used the Children as

       his sexual playthings over a period of years, molesting them at will after each

       turned eight. In addition, many citizens work, complete some college, and

       refrain from the abuse of drugs and alcohol, so we do not find that these factors

       overwhelmingly militate for a reduced sentence. Love’s risk assessment was

       largely based on criminal history, education, and work history, which are

       factors which we have determined do not merit a reduced sentence.

       Accordingly, we decline to revise Love’s sentence due to his character.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020   Page 20 of 21
                                             CONCLUSION
[40]   Based on the foregoing, we conclude that the prosecutor did not commit

       fundamental error in her closing argument, the trial court did not err when

       instructing the jury, and Love’s sentence is not inappropriate given the nature of

       his offenses and his character.


[41]   Affirmed.


[42]   Baker, J. and Brown, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1844 | March 9, 2020   Page 21 of 21
