                                                                                FILED
                                                                            Aug 23 2019, 6:14 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      James Harper                                               Curtis T. Hill, Jr.
      Deputy Public Defender                                     Attorney General of Indiana
      Harper & Harper, LLC                                       Samuel J. Dayton
      Valparaiso, Indiana                                        Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Ronald E. Kayser,                                          August 23, 2019
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 18A-CR-3117
              v.                                                 Appeal from the LaPorte Circuit
                                                                 Court
      State of Indiana,                                          The Honorable Thomas Alevizos,
      Appellee-Plaintiff.                                        Judge
                                                                 Trial Court Cause Nos.
                                                                 46C01-1709-F6-853
                                                                 46C01-1711-F5-1068



      Pyle, Judge.


                                        Statement of the Case
[1]   Ronald Kayser (“Kayser”) appeals the sentences imposed in two separate

      causes. Kayser pled guilty to Level 6 felony failure to register as a sex or violent



      Court of Appeals of Indiana | Opinion 18A-CR-3117 | August 23, 2019                           Page 1 of 14
      offender1 in one cause and to Level 5 felony sexual misconduct with a minor2 in

      a second cause. The trial court imposed a two-year sentence for Kayser’s Level

      6 felony conviction and a five-year sentence for his Level 5 felony conviction,

      and it ordered the sentences to be served consecutively to each other. Kayser

      argues that: (1) the trial court abused its discretion in its determination of

      aggravating circumstances and by ordering consecutive sentences; and (2) his

      aggregate sentence is inappropriate. Concluding that the trial court did not

      abuse its discretion and that Kayser’s sentence is not inappropriate, we affirm

      his sentence.


[2]   We affirm.


                                                        Issues
                 1. Whether the trial court abused its discretion when sentencing
                 Kayser.

                 2. Whether Kayser’s sentence is inappropriate.

                                                        Facts3
[3]   In 2001, Kayser was convicted in Florida of a sex offense involving child

      fondling, which was a second-degree felony. Thereafter, he was required to



      1
          IND. CODE § 11-8-8-17.
      2
          IND. CODE § 35-42-4-9.
      3
        The facts for each offense as contained in Kayser’s factual basis from his guilty plea in each cause are
      somewhat limited to the basic elements of the crimes as necessary to establish a factual basis. Because
      Kayser has challenged his sentence as inappropriate, thus requiring us to review the nature of the offenses at
      issue, we will include facts, as found in the record before us and that would have been considered by the trial
      court, regarding the nature of Kayser’s offenses.

      Court of Appeals of Indiana | Opinion 18A-CR-3117 | August 23, 2019                                Page 2 of 14
      register on a sex and violent offender registry, which he did when residing in

      Indiana. Under the registry, he was also required, among other things, to notify

      the sheriff’s department within seventy-two hours of any change in his

      employment.


[4]   In February 2017, Kayser was fired from his job. Thereafter, in March 2017, he

      started working at a new job. Kayser never notified the sheriff’s department of

      either change in employment. Five months later, the sheriff’s department

      learned that Kayser had changed employment and had not reported it. In

      September 2017, the State charged Kayser, under cause 46C01-1709-F6-853

      (“Cause F6-853”), with Level 6 felony failure to register based on his failure to

      notify law enforcement of his change of employment.


[5]   On October 20, 2017, prior to his arrest in Cause F6-853, Kayser, who was

      fifty-nine years old at that time, touched and fondled the buttocks and vaginal

      area of a fifteen-year-old girl in order to arouse or satisfy his sexual desires.

      Specifically, Kayser was riding his bicycle when he saw two teenage girls, J.B.

      and F.B., who were locked out of F.B.’s house and trying to get into the

      window. Kayser stopped, approached the girls, and offered to lift J.B. into the

      window. As he lifted J.B., Kayser touched and rubbed the girl’s buttocks and

      vaginal area for about fifteen seconds. Once both girls were inside the house,

      they saw Kayser masturbating in the yard outside the window. In November

      2017, the State charged Kayser, under cause 46C01-1711-F5-1068 (“Cause F5-

      1068”), with Level 5 felony sexual misconduct with a minor and Class A

      misdemeanor public indecency.

      Court of Appeals of Indiana | Opinion 18A-CR-3117 | August 23, 2019          Page 3 of 14
[6]   On September 28, 2018, Kayser entered a plea agreement in Cause F5-1068.

      Kayser agreed to plead guilty to the Level 5 felony sexual misconduct with a

      minor in exchange for the State’s dismissal of the Class A misdemeanor public

      indecency charge. The plea agreement provided that the State would “remain

      silent” at the sentencing hearing. (App. Vol. 2 at 23). The trial court ordered a

      presentence investigation report (“PSI”) to be completed and ordered Kayser to

      have a psychosexual assessment prior to sentencing.


[7]   Kayser’s psychosexual assessment was conducted in October 2018. He was

      given two risk assessments,4 and the results of both assessments indicated that

      Kayser had a high risk of reoffending. The report from the psychosexual

      assessment indicated that Kayser had a poor understanding of sex offending

      risk factors; an extensive criminal history, including previous sexual-related

      charges; a history of alcohol abuse; and severe problems with community

      supervision, including a previous probation violation and failure to register.

      The psychosexual assessment report also indicated that short-term incarceration

      followed by probation or community supervision was not recommended given

      Kayser’s history of non-compliance. The Indiana Risk Assessment System

      (“IRAS”) that Kayser completed as part of his PSI also revealed that Kayser

      had a high risk to reoffend.




      4
       The two assessments were the Static-99 and the McGrath Cummings Sex Offender Needs and Progress
      Scale.

      Court of Appeals of Indiana | Opinion 18A-CR-3117 | August 23, 2019                      Page 4 of 14
[8]    On November 14, 2018, Kayser entered a plea agreement in Cause F6-853. He

       pled guilty as charged to the Level 6 felony failure to register charge, and the

       parties agreed to argue sentencing.


[9]    Thereafter, the trial court held a joint sentencing hearing for Cause F5-1068 and

       Cause F6-853. The PSI showed that Kayser had a criminal history dating back

       four decades and that included twelve criminal convictions in three states. His

       convictions included misdemeanor convictions for operating without a license

       (1984), public intoxication (1988), disorderly conduct (1988), unlawful use of

       marijuana (1989), driving with an impaired ability (1991), operating while

       intoxicated (1992), driving without a license (1996), and battery (2016). In the

       2016 battery case, Kayser had originally been charged with Level 3 felony

       criminal confinement while armed with a deadly weapon and Level 3 felony

       kidnapping while armed with a deadly weapon, but he pled guilty to an

       amended charge of Class A misdemeanor battery. Kayser also had felony

       convictions out of Florida for DUI manslaughter (2001) and a sex offense

       involving the fondling a child (2001). Kayser violated probation in his DUI

       manslaughter case and had his probation revoked. Additionally, Kayser had

       been charged in 1978 in Virginia with three counts of taking indecent liberty

       with a child, but the disposition of these charges was unknown.


[10]   During the sentencing hearing, one of the teenage girls, J.B., testified about the

       devastating effect that Kayser’s sexual misconduct offense in Cause F5-1068

       had had on her and on her friend, F.B. Specifically, J.B. testified that Kayser

       had a knife that day and that she and F.B. were still scared. J.B. testified that

       Court of Appeals of Indiana | Opinion 18A-CR-3117 | August 23, 2019       Page 5 of 14
       she was in therapy because “it messed up [her] mind a little bit.” (Tr. Vol. 2 at

       24). J.B. also explained that F.B. was scared to walk home alone or to stay

       alone in her own house.


[11]   When determining Kayser’s sentences, the trial court found that Kayser’s guilty

       plea to the highest-level charge in each cause was a mitigating circumstance.

       The trial court specifically noted that Kayser’s guilty plea was “the only thing

       saving him from a maximum sentence[.]” (Tr. Vol. 2 at 37). The trial court

       found the following aggravating circumstances:


               1. The Defendant has a long criminal history, including sex
               crimes, causing the death of another human being, and past
               charges of the same type of charges he’s pleading to under Cause
               46C01-1709-F6-0853.

               2. The IRAS and Psychosexual Assessment both indicate a high
               level to reoffend. The Defendant’s criminal history indicates
               same.

               3. The Defendant has a history of not completing probation
               without revocations.

               4. The Defendant has a prior-related conviction in Orange
               County, Florida.


       (App. Vol. 2 at 43-44). The trial court imposed a five (5) year sentence for

       Kayser’s Level 5 felony sexual misconduct with a minor conviction and a two

       (2) year sentence for his Level 6 felony failure to register conviction, and it

       ordered that the sentences be served consecutively. The trial court explained

       that the “aggravators [we]re more than enough to enhance both sentences and

       to run them consecutively.” (Tr. Vol. 2 at 37). The trial court also noted that
       Court of Appeals of Indiana | Opinion 18A-CR-3117 | August 23, 2019        Page 6 of 14
       the results of Kayser’s psychosexual assessment revealed that he was not a

       candidate for probation due to his “high scores, lack of understanding [that] the

       nature of the crimes [we]re wrong, as well as past history of not being receptive

       to this.” (App. Vol. 2 at 44). Kayser now appeals.


                                                     Decision
[12]   Kayser contends that: (1) the trial court abused its discretion when sentencing

       him; and (2) his sentence is inappropriate. We will review each argument in

       turn.


       1. Abuse of Discretion


[13]   Kayser argues that the trial court abused its discretion in its determination of

       aggravating circumstances and by ordering his sentences to be served

       consecutively. Sentencing decisions rest within the sound discretion of the trial

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

       N.E.2d 218 (Ind. 2007). So long as the sentence is within the statutory range, it

       is subject to review only for an abuse of discretion. Id. An abuse of discretion

       will be found where the decision is clearly against the logic and effect of the

       facts and circumstances before the court or the reasonable, probable, and actual

       deductions to be drawn therefrom. Id. A trial court may abuse its discretion in

       a number of ways, including: (1) failing to enter a sentencing statement at all;

       (2) entering a sentencing statement that includes aggravating and mitigating

       factors that are unsupported by the record; (3) entering a sentencing statement

       that omits reasons that are clearly supported by the record; or (4) entering a

       Court of Appeals of Indiana | Opinion 18A-CR-3117 | August 23, 2019       Page 7 of 14
       sentencing statement that includes reasons that are improper as a matter of law.

       Id. at 490-91.


[14]   Kayser challenges two of the four aggravating circumstances found by the trial

       court. Kayser first challenges the aggravating factor that he was likely to

       reoffend. The trial court determined that this aggravating circumstance was

       shown by Kayser’s IRAS score, his psychosexual assessment score, and his

       criminal history. Kayser contends that it was improper for the trial court to use

       his assessment scores as an aggravating circumstance.


[15]   We agree that “the offender risk assessment scores do not in themselves

       constitute, and cannot serve as, an aggravating or mitigating

       circumstance.” J.S. v. State, 928 N.E.2d 576, 578 (Ind. 2010). Our Indiana

       Supreme Court has explained that scores on a risk assessment instrument “are

       not intended to serve as aggravating or mitigating circumstances nor to

       determine the gross length of sentence[.]” Malenchik v. State, 928 N.E.2d 564,

       575 (Ind. 2010) (emphasis added). Instead, these “offender assessment

       instruments are appropriate supplemental tools for judicial consideration at

       sentencing” and can be used by the trial court “in formulating the manner in

       which a sentence is to be served.” Id.


[16]   While the trial court properly used the assessment scores when deciding that it

       would not place Kayser on probation, its use of his assessment scores, in and of




       Court of Appeals of Indiana | Opinion 18A-CR-3117 | August 23, 2019       Page 8 of 14
themselves, as a separate aggravating factor was not proper. See id. 5

Nevertheless, any such impropriety would not require this Court to remand for

resentencing given the trial court’s finding of other valid aggravating

circumstance, two of which Kayser does not challenge. If a trial court abuses

its discretion by improperly considering an aggravating circumstance, we need

to remand for resentencing only “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.” Anglemyer, 868 N.E.2d at 491. Here,

the record shows that the trial court’s discussion of aggravating circumstances

focused on Kayser’s criminal history, which included a similar conviction for

child fondling, the serious offense of DUI manslaughter during which he

violated probation, and past charges for inappropriate behavior with a child.

Additionally, our review of the record reveals that the trial court’s imposition of

slightly enhanced sentences was essentially based on the undisputed criminal

history aggravating circumstance. Thus, we are confident that the trial court

would have imposed the same sentences even without reference to the

assessment scores in its list of aggravating factors. Accordingly, we conclude

that the trial court did not abuse its discretion when sentencing Kayser. See




5
  We note that, under the current advisory sentencing scheme, the trial court could have considered Kayser’s
likeliness to reoffend as either a separate aggravating circumstance or could have, at the very least, used it as
an explanation of the weight given to the criminal history aggravator. See McMahon v. State, 856 N.E.2d 743,
751 n.8 (Ind. Ct. App. 2006).

Court of Appeals of Indiana | Opinion 18A-CR-3117 | August 23, 2019                                  Page 9 of 14
       Gleason v. State, 965 N.E.2d 702, 712 (Ind. Ct. App. 2012) (explaining that

       “[o]ne valid aggravator alone is enough to enhance a sentence”).


[17]   Kayser also challenges the trial court’s determination that his 2001 Florida child

       sex offense conviction was an aggravating circumstance. Specifically, he argues

       that it was improper for the trial court to find this 2001 conviction to be an

       aggravating circumstance separate from the criminal history aggravating

       circumstance and that it was improper to use that conviction as an aggravator

       to enhance his fail to register conviction in Cause F6-853. Because the 2001

       Florida conviction was part of his criminal history, it would have been better

       practice for the trial court not to list it as a separate aggravating circumstance.

       Nevertheless, our review of the record reveals that the trial court was

       highlighting this prior child sex offense conviction when enhancing Kayser’s

       sentence for his sexual misconduct with a minor conviction in Cause F5-1068,

       not for Cause F6-853. Even without consideration of this specific 2001

       conviction as an aggravating circumstance, it is unnecessary to remand for

       resentencing because we are confident that the trial court would have imposed

       the same sentence given Kayser’s lengthy criminal history, which he does not

       challenge as a valid aggravator.


[18]   We also reject Kayser’s challenge to the trial court’s imposition of consecutive

       sentences. A trial court may order consecutive sentences based on one valid

       aggravating factor. Id. Moreover, that one valid aggravator may be used both

       to enhance a sentence and to justify consecutive sentences. Id. Here, the trial

       court found that Kayser had a “long criminal history” and ordered his sentences

       Court of Appeals of Indiana | Opinion 18A-CR-3117 | August 23, 2019        Page 10 of 14
       to run consecutively. (Tr. Vol. 2 at 37). Kayser’s criminal history aggravating

       circumstance, which he does not challenge, is sufficient to justify the imposition

       of consecutive sentences. See e.g., Gleason, 965 N.E.2d at 712 (explaining that

       the defendant’s unchallenged criminal history aggravating factor alone was

       sufficient to justify his consecutive sentences).


       2. Inappropriate Sentence


[19]   Kayser argues that the aggregate sentence for his Level 5 felony sexual

       misconduct with a minor and Level 6 felony failure to register is inappropriate.

       He asks this Court to revise each of his sentences to an advisory term and to

       order them to be entered as concurrent sentences. Kayser argues that “the facts

       of this case simply do not support consecutive sentences that are above the

       advisory sentence.” (Kayser’s Br. 16). We disagree.


[20]   We may revise a sentence if it is inappropriate in light of the nature of the

       offense and the character of the offender. Ind. Appellate Rule 7(B). The

       defendant has the burden of persuading us that his sentence is inappropriate.

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a

       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). “Appellate Rule 7(B)

       analysis is not to determine whether another sentence is more appropriate but

       rather whether the sentence imposed is inappropriate.” Conley v. State, 972


       Court of Appeals of Indiana | Opinion 18A-CR-3117 | August 23, 2019      Page 11 of 14
       N.E.2d 864, 876 (Ind. 2012) (internal quotation marks and citation omitted),

       reh’g denied.


[21]   When determining whether a sentence is inappropriate, we acknowledge that

       the advisory sentence “is the starting point the Legislature has selected as an

       appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081.

       Here, Kayser entered a guilty plea in each cause and was convicted of Level 5

       felony sexual misconduct with a minor and Level 6 felony failure to register as

       a sex or violent offender. A Level 5 felony has a sentencing range of one (1)

       year to six (6) years with an advisory sentence of three (3) years. I.C. § 35-50-2-

       6. A Level 6 felony has a sentencing range of six (6) months to two and one-

       half (2½) years with an advisory sentence of one (1) year. I.C. § 35-50-2-7. The

       trial court imposed consecutive sentences of two (2) years for Kayser’s Level 6

       felony conviction and five (5) years for his Level 5 felony conviction. Thus, the

       trial court imposed an aggregate seven (7) year sentence, which was below the

       potential maximum sentence of eight and one-half (8½) years.


[22]   Turning first to the nature of Kayser’s failure to register offense in Cause F6-

       853, we note that he had a 2001 Florida sex offense involving the fondling a

       child that required him to register on the sex and violent offender registry. That

       registry required him to, among other things, notify the sheriff’s department

       within seventy-two hours of any change in his employment. Kayser was fired

       from a job one month and got another job the following month. Not only did

       Kayser fail to notify the sheriff’s department of his employment changes within

       the required time period, he never notified them at all.

       Court of Appeals of Indiana | Opinion 18A-CR-3117 | August 23, 2019      Page 12 of 14
[23]   The nature of Kayser’s sexual misconduct with a minor offense is more

       troubling. The fifty-nine-year old Kayser, who was a registered sex offender,

       touched and fondled the buttocks and vaginal area of a fifteen-year-old girl in

       order to arouse or satisfy his sexual desires. As Kayser was riding a bicycle, he

       saw two teenage girls and approached them. When he lifted one of the girls

       into a window, he touched and rubbed the girl’s buttocks and vaginal area for

       about fifteen seconds. Thereafter, he masturbated in the yard outside the

       window. Kayser’s offense had a devastating effect on both girls, who continued

       to be scared and had to go to therapy.


[24]   Turning to Kayser’s character, we note that his poor character is revealed by an

       extensive criminal history that spans decades and includes a probation

       revocation. That criminal history includes eight misdemeanor offenses and two

       felony convictions. The prior felony convictions include killing another human

       being while driving intoxicated and a sex offense against a child that resulted in

       his requirement to register on the sex offender registry. Kayser’s criminal

       history and current offenses show that he has a disregard for the law, and his

       assessment scores show that he has a high risk to reoffend.


[25]   Kayser has not persuaded us that his aggregate seven-year sentence for his

       Level 5 felony sexual misconduct with a minor and Level 6 felony failure to

       register is inappropriate. Therefore, we affirm the sentence imposed by the trial

       court.




       Court of Appeals of Indiana | Opinion 18A-CR-3117 | August 23, 2019      Page 13 of 14
[26]   Affirmed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-3117 | August 23, 2019   Page 14 of 14
