MEMORANDUM DECISION                                               Aug 04 2015, 9:01 am


Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Adam G. Forrest                                          Gregory F. Zoeller
Boston Bever Klinge Cross & Chidester                    Attorney General of Indiana
Richmond, Indiana
                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                             IN THE
    COURT OF APPEALS OF INDIANA

Tony E. Rice,                                            August 4, 2015

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         89A05-1412-CR-556
        v.                                               Appeal from the Wayne Superior
                                                         Court
                                                         Cause No. 89D01-1110-FC-80
State of Indiana,
Appellee-Plaintiff.                                      The Honorable Charles K. Todd, Jr.,
                                                         Judge




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 89A05-1412-CR-556| August 4, 2015      Page 1 of 5
                                             Case Summary
[1]   Tony Rice appeals his twelve-year sentence for two counts of Class C felony

      child molesting. We affirm.


                                                     Issue
[2]   Rice raises one issue, which we restate as whether his sentence is inappropriate.


                                                     Facts
[3]   V.M. was born in 1999. In 2009, V.M. was living in Richmond with her

      mother and Rice, who was her mother’s live-in boyfriend. She also lived with

      her brother and the child that V.M.’s mother and Rice had together. In 2009,

      Rice began molesting V.M. by touching her vagina and breasts and

      masturbating. She testified that the molestation occurred at least fifty times.

      The molestation continued until 2011.


[4]   On October 6, 2011, the State charged Rice with two counts of Class C felony

      child molesting. A jury found Rice guilty as charged. In sentencing Rice to

      consecutive six-year sentences for a total sentence of twelve years, the trial court

      found as aggravating Rice’s criminal history, which included two felony

      convictions for child molesting and thirteen misdemeanor convictions, Rice’s

      position of trust with V.M. as her mother’s live-in boyfriend, and the fact that

      the crimes were part of a series of molestations. As mitigating, the trial court

      considered Rice’s health-related issues. Rice now appeals.

      Court of Appeals of Indiana | Memorandum Decision 89A05-1412-CR-556| August 4, 2015   Page 2 of 5
                                                  Analysis
[5]   Rice argues that his twelve-year sentence is inappropriate. Indiana Appellate

      Rule 7(B) permits us to 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

      offender. Although Appellate Rule 7(B) does not require us to be “extremely”

      deferential to a trial court’s sentencing decision, we still must give due

      consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.

      App. 2007). We also understand and recognize the unique perspective a trial

      court brings to its sentencing decisions. Id. “Additionally, a defendant bears

      the burden of persuading the appellate court that his or her sentence is

      inappropriate.” Id.


[6]   The principal role of Appellate Rule 7(B) review “should be to attempt to

      leaven the outliers, and identify some guiding principles for trial courts and

      those charged with improvement of the sentencing statutes, but not to achieve a

      perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225

      (Ind. 2008). We “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.” Id. Whether a sentence is inappropriate

      ultimately turns on 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. Id. at 1224.



      Court of Appeals of Indiana | Memorandum Decision 89A05-1412-CR-556| August 4, 2015   Page 3 of 5
[7]    Rice contends that the nature of the offenses warrants the revision of his

       sentence because he did not use force on V.M. or injure her and did not

       penetrate her or require her to touch him. We are not persuaded. Rice, V.M.’s

       mother’s live-in boyfriend and the father of V.M.’s younger sister, repeatedly

       molested V.M. over a period of years in her own home. Further, there was

       evidence that Rice burned V.M. with a cigarette during the molestation and

       threatened to kill V.M. and her family after she initially reported the

       molestation to her mother. The fact that the offenses could have been worse

       does not render the sentence inappropriate.


[8]    As for Rice’s character, his criminal history is extensive and includes two prior

       Class C felony child molestation convictions and numerous misdemeanor

       convictions. Despite repeated contact with the criminal justice system

       beginning in 1977, Rice is unwilling or unable to conduct himself in accordance

       with the law. Rice also claims to be concerned about the well-being of his

       young daughter, V.M.’s half-sister; however, we are not convinced that his

       sentence should be reduced given the nature of these convictions and his father-

       like relationship with V.M. Finally, although we view Rice’s military service

       positively, it does not render his twelve-year sentence inappropriate.


                                                   Analysis
[9]    Rice has not established that his twelve-year sentence is inappropriate. We

       affirm.


[10]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 89A05-1412-CR-556| August 4, 2015   Page 4 of 5
[11]   Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 89A05-1412-CR-556| August 4, 2015   Page 5 of 5
