MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               FILED
regarded as precedent or cited before any                      May 10 2017, 7:49 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
Jeremy K. Nix                                           Curtis T. Hill, Jr.
Huntington, Indiana                                     Attorney General of Indiana

                                                        Christina D. Pace
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Ricky L. Sands,                                         May 10, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        90A02-1610-CR-2309
        v.                                              Appeal from the Wells Circuit
                                                        Court
State of Indiana,                                       The Honorable Kenton W.
Appellee-Plaintiff.                                     Kiracofe, Judge
                                                        Trial Court Cause No.
                                                        90C01-1606-FA-2



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2309 | May 10, 2017     Page 1 of 11
[1]   Ricky L. Sands appeals his sentence for two counts of child molesting as class A

      felonies, two counts of child molesting as class C felonies, dissemination of

      matter harmful to minors as a class D felony, and two counts of contributing to

      the delinquency of a minor as class A misdemeanors. Sands raises two issues

      which we consolidate and restate as whether his sentence is inappropriate in

      light of the nature of his offenses and character. We affirm.


                                      Facts and Procedural History

[2]   Between July 1, 2011, and July 3, 2012, when Sands’s stepson P.P. was either

      twelve or thirteen years of age, Sands placed his penis on P.P.’s mouth, placed

      his mouth on P.P.’s penis, fondled or touched P.P.’s penis with the intent to

      satisfy the sexual desires of P.P. or himself, submitted to P.P. touching his penis

      with the intent to satisfy the sexual desires of P.P. or himself, and showed P.P.

      pornographic movies. On or about June 22, 2016, Sands permitted his

      stepdaughter I.P. and another minor to consume alcohol.


[3]   On June 28, 2016, the State charged Sands with: Count I, child molesting for

      submitting to deviate sexual conduct by P.P. as a class A felony; Count II, child

      molesting for performing deviate sexual conduct with P.P. as class A felony;

      Count III, child molesting for performing fondling and/or touching with P.P.

      as a class C felony; Count IV, child molesting for submitting to fondling and/or

      touching with P.P. as a class C felony; Count V, dissemination of matter

      harmful to minors as a class D felony; Count VI, contributing to the

      delinquency of a minor for aiding I.P. in committing minor consumption of

      alcohol as a class A misdemeanor; and Count VII, contributing to the
      Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2309 | May 10, 2017   Page 2 of 11
      delinquency of a minor for aiding H.L. in committing minor consumption of

      alcohol as a class A misdemeanor. The State also filed a notice of intent to seek

      habitual offender status.


[4]   On June 30, 2016, the trial court held an initial hearing at which, after

      informing Sands of the charges and sentencing ranges, it ordered that Sands

      was to have no contact with P.P., I.P., J.S., R.S., and H.W.1 Sands and the

      State subsequently entered into a written plea agreement pursuant to which

      Sands would enter a plea of guilty to Counts I through VII, all terms of the

      sentence would be left to the court’s discretion, the sentences under Counts I

      through VII would be concurrent with each other, and the habitual offender

      enhancement would be dismissed. On August 24, 2016, the court held a guilty

      plea hearing at which Sands pled guilty consistent with the terms of the plea

      agreement.


[5]   On September 28, 2016, the court held a sentencing hearing at which the court

      admitted into evidence without objection an officer incident report, which the

      prosecutor stated was part of the probable cause affidavit, and a written

      statement of Sands made during the investigation. The officer incident report

      states that P.P. indicated that Sands had been physically and sexually abusive

      and that there had been touching, oral sex, and anal sex. The report states that

      P.P. disclosed that Sands had him wrap his arms around a tree, duct-taped his



      1
       While the charging information and factual basis at the guilty plea hearing refer to “H.L.,” the no contact
      orders identify “H.W.” J.S. and R.S. are Sands’s biological children.

      Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2309 | May 10, 2017               Page 3 of 11
      wrists together, and spanked him with a 2x4, and P.P. also recalled being

      spanked with a belt numerous times. The report indicates that P.P.’s first

      recollection of activity of a sexual nature was when he was approximately ten

      to twelve years old, that Sands showed him pornography, Sands played with

      P.P.’s penis and touched his penis with his hand skin-to-skin, and that this

      occurred more than one time. It also states that, when asked to be more clear

      about the meaning of oral sex, P.P. stated “mouth to penis,” that the oral sex

      began as Sands performing oral sex on P.P., Sands then “wanted something

      back so [P.P.] did it to him,” and that this occurred at two residences. State’s

      Exhibit 1 at 3. P.P. “said that the oral sex performed on him usually ended

      because he would ‘orgasm’ in Sands[’s] mouth and that anal sex occurred one

      time.” Id. at 4.


[6]   The incident report further states that P.P. said that Sands would often provide

      him with alcohol and marijuana, that P.P. “says that Sands will often have

      various men over and spend time with them in the garage,” that Sands “often

      asked [P.P.] to go to ‘have fun’ with him but [P.P] refuses,” and “that Sands has

      shown his video of these men giving Sands a blow job.” Id. P.P. stated that

      Sands had shown him pornography on various computers, that P.P. stated that

      “he is afraid that Sands may have ‘moved onto [I.P.]’ his sister,” Sands had a

      watch with a camera in it which he used to record men performing oral sex on

      him, one time Sands left the watch on a bathroom counter and filmed P.P.’s

      sister, and Sands attempted to show P.P. this video. Id. The report also

      indicates that P.P. stated “Sands has threatened him if he told anyone. Stating


      Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2309 | May 10, 2017   Page 4 of 11
      he would knock his head off and hit him so hard that he won’t wake up until

      after Sands in [sic] out of prison.” Id.


[7]   As to I.P., the report states that I.P. “also discussed how Sands would place his

      hands on her breasts,” “this was always outside her clothing,” “he would place

      his hands on her breasts and move them around but not physically ‘grab’ her

      breasts,” and this has happened more than one time. Id at 6. The report also

      indicates that Sands admitted “to using a watch with a video camera in it to

      record his stepdaughter . . . getting into and out of the shower.” Id. at 7. The

      incident report also indicates that H.W. stated that, when she and I.P. were

      having a sleepover, Sands “left and went and bought them wine” and “was

      aware that they were drinking and at one point was smoking marijuana with in

      [sic] front of them.” Id.


[8]   The written statement of Sands admitted into evidence stated “I at times in the

      past have had sexual contact with my stepson,” “[i]t happened a few times” at

      one residence “and a couple of times at” another residence, and “[w]e have

      touched each other and had oral sex.” State’s Exhibit 2. It also stated “I made

      a video of [I.P.] getting into the shower” and “[a]fter [P.P.] and I watched it, I

      erased it.” Id.


[9]   Beth Webber indicated she had been appointed to be the victim representative,

      and read a letter from P.P. to Sands, stating:

              There is so much to say to you and so little amount of time.
              Things have happened between us. . . . I did not do this, tell on
              you, to get you into trouble or to get out of the house like I was
      Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2309 | May 10, 2017   Page 5 of 11
               accused of. It was going to come out sooner or later. . . . It did
               not help that I was scared. I was afraid what was going to
               happen after I told you no. I was afraid that there was going to
               be another victim. I was scared it was going to be one of my
               siblings. In all honesty, I was scared it was going to happen to
               his sister, I won’t say her name. I was afraid. I was scared of
               you. There was so much I wanted to say to you but I was scared
               to say to in fear of getting hurt. . . . You said what happened was
               a way to get closer but you didn’t see that we were already close.
               Yes, we fought but we lived in the same house. . . . We both
               know what happened was wrong.

       Transcript at 37. Webber testified “[i]t started with physical abuse from the

       time he can remember Mr. Sands coming into his life,” “[t]his victim talked

       about being duct taped” and “about being hit and slammed, being threatened,”

       “[h]e talked extensively about being physically abused, about his head being

       shoved into a wall to the point that it broke the drywall,” “[s]o that is how this

       relationship started and Mr. Sands got power over this child,” and “[t]hen it

       turned into a sexual relationship.” Id. at 38. Webber further testified “[t]his

       child spoke with me about how Mr. Sands plied this child with alcohol and

       drugs as part of getting him to participate in these sex acts” and P.P. has had

       trouble at school, ran away from home frequently, sexually acted out with other

       children, and “still has tremendous anger issues to work out.” Id. at 38-39.


[10]   Sands testified that he was very sorry for his actions and that “[b]ecause of my

       actions I leave behind a broken home, broken stepchildren, broken children,

       broken wife, a broken family” and “[i]t goes deeper than that because it affects a

       former family as well. I’m sorry to have hurt anyone.” Id. at 41. He asked the

       court to “show any leniency that they can simply because of the age of my

       Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2309 | May 10, 2017   Page 6 of 11
       children and because of my age” and that he be placed in a facility where he

       could receive counseling. Id.


[11]   The trial court found the aggravating circumstances included that Sands was

       the victim’s stepfather, threatened to harm the victim if he told anyone about

       the offense, had a history of criminal behavior, was attempting to groom

       another set of victims, provided drugs and alcohol to help facilitate the crimes,

       engaged in a course of physical abuse, secretly recorded I.P. in the bathroom,

       invited the child to participate in sex acts with other men, and robbed the child

       of his childhood. The court found the mitigating circumstances were that

       Sands was the family income provider, he accepted responsibility for his actions

       and pled guilty, and was himself a prior victim. It sentenced Sands to fifty years

       for each of his class A felony convictions, eight years for each of his class C

       felony convictions, three years for his class D felony conviction, and one year

       each for his class A misdemeanor convictions, and ordered that the sentences

       be served concurrently for an aggregate sentence of fifty years. The court also

       indicated that Sands is not a credit restricted felon and ordered him not to have

       contact with P.P., I.P., R.S., J.S., and H.W. during his executed sentence.


                                                   Discussion

[12]   The issue is whether Sands’s aggregate sentence of fifty years is inappropriate in

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

       provides that we “may revise a sentence authorized by statute 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
       Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2309 | May 10, 2017   Page 7 of 11
       offender.” Under this rule, the burden is on the defendant to persuade the

       appellate court that his or her sentence is inappropriate. Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006). Sentencing is principally a discretionary

       function in which the trial court’s judgment should receive considerable

       deference. Hines v. State, 30 N.E.3d 1216, 1225 (Ind. 2015) (citing Cardwell v.

       State, 895 N.E.2d 1219, 1222 (Ind. 2008)). “[A]ppellate review should focus on

       the forest—the aggregate sentence—rather than the trees—consecutive or

       concurrent, number of counts, or length of the sentence on any individual

       count.” Cardwell, 895 N.E.2d at 1225. “[W]hether we regard a sentence as

       appropriate at the end of the day turns on our sense of the culpability of the

       defendant, the severity of the crime, the damage done to others, and myriad

       other factors that come to light in a given case.” Hines, 30 N.E.3d at 1225

       (quoting Cardwell, 895 N.E.2d at 1224). Credit time status may be considered

       by an appellate court exercising its review and revise authority. Sharp v. State,

       970 N.E.2d 647, 650 (Ind. 2012).


[13]   Sands contends the nature of the offenses and his character do not support his

       maximum fifty-year sentence and asserts he has been P.P.’s stepfather since

       P.P. was six years old, “had a positive influence on P.P.’s life for a substantial

       period of time prior to the abuse occurring,” and provided financially for the

       family. Appellant’s Brief at 14. He also notes his last conviction occurred in

       1991, eight years prior to P.P.’s birth.


[14]   We observe that the trial court ordered that Sands’s sentences be served

       concurrently consistent with the plea agreement and noted that Sands is not a

       Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2309 | May 10, 2017   Page 8 of 11
       credit restricted felon.


[15]   Our review of the nature of the offenses reveals that Sands placed his penis on

       his twelve- or thirteen-year old stepson P.P.’s mouth, placed his mouth on

       P.P.’s penis, fondled or touched P.P.’s penis, submitted to P.P. touching his

       penis, showed P.P. pornographic movies, and permitted his stepdaughter I.P.

       and another minor to consume alcohol. Sands’s offenses against P.P. occurred

       numerous times and at defferent locations.


[16]   Our review of the character of the offender reveals that Sands pled guilty and in

       exchange the State agreed to dismiss the habitual offender allegation and that

       the sentences would be served concurrently. The presentence investigation

       report (“PSI”) states Sands was born in 1951 and he pled guilty to two counts of

       receiving stolen property, dealing in marijuana, and possession of marijuana as

       class D felonies in 1989; pled guilty to two counts of theft and to receiving

       stolen property as class D felonies in 1991; and was charged with battery in

       1996, entered a pretrial diversion program, and the case was later dismissed.

       The PSI states that Sands reported he was molested by two different men when

       he was a teenager, that he has four children, two of whom are adults, his son

       J.S. is twelve years old, and his son R.S. is nine years old. Sands reported that

       J.S. and R.S. were removed from the home as a result of his arrest for the

       current offenses, and CHINS proceedings were initiated for P.P., I.P., J.S., and

       R.S. Sands reported he retired in 2008 when the company at which he worked

       closed, he was receiving $649 per month in social security benefits at the time of

       his arrest, and his wife did not work outside the home. The PSI further

       Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2309 | May 10, 2017   Page 9 of 11
       indicates Sands reported he first experimented with marijuana at age twenty-

       five and last smoked in June 2016, described his use as occasional, and

       completed substance abuse treatment in 1991 as a term of his parole. Further,

       the trial court stated it believed there was some indication that Sands was

       attempting to groom another set of victims in the near future.


[17]   After due consideration, and in light of Sands’s position of trust, multiple

       offenses, and concurrent sentences, we conclude that he has not sustained his

       burden of establishing that his aggregate sentence of fifty years is inappropriate

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


[18]   To the extent Sands asserts there is not a nexus between his crime and the trial

       court’s order that he not have contact with his biological children, J.S. and

       R.S., we note Ind. Code § 35-38-1-30 provides for a particular consequence

       upon the commission of a crime. “A sentencing court may require that, as a

       condition of a person’s executed sentence, the person shall refrain from any

       direct or indirect contact with an individual.” Ind. Code § 35-38-1-30.

       Although the statute employs the phrase “an individual” to describe the person

       to be protected, there must necessarily be some nexus between the no contact

       order and the crime for which the defendant is being sentenced. To interpret

       the statute otherwise would result in an absurdity, something which we will

       avoid. See Howe v. State, 25 N.E.3d 210, 214 (Ind. Ct. App. 2015) (“While the

       statutory provision uses the phrase ‘an individual’ to describe the person to be

       protected, there must be some nexus between the no contact order and the

       crime for which the defendant is being sentenced, as to interpret the statute

       Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2309 | May 10, 2017   Page 10 of 11
       otherwise would result in an absurdity, something which we will avoid.”)

       (citation omitted). The record reveals that Sands pled guilty to four counts of

       child molesting, one count of dissemination of matter harmful to minors, and

       two counts of contributing to the delinquency of a minor. The PSI indicates

       that J.S. and R.S., who were twelve and nine years old, respectively, were

       removed from Sands’s home as a result of Sands’s arrest and CHINS

       proceedings were initiated for P.P., I.P., J.S., and R.S. P.P.’s letter, read at

       sentencing, indicated he was “afraid that there was going to be another victim”

       and was “scared it was going to be one of [his] siblings.” Transcript at 37. The

       trial court expressly noted its belief that Sands was attempting to groom another

       set of victims. Based upon the record, we cannot say there was no nexus

       between the crimes for which Sands was sentenced and the order he have no

       contact with J.S. and R.S. and We do not disturb the no contact orders.


                                                   Conclusion

[19]   For the foregoing reasons, we affirm Sands’s sentence.


[20]   Affirmed.


       Vaidik, C.J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2309 | May 10, 2017   Page 11 of 11
