MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                            FILED
this Memorandum Decision shall not be                                  Sep 26 2016, 9:27 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark Worthley                                            Gregory F. Zoeller
Worthley Law                                             Attorney General of Indiana
Valparaiso, Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Stevenson,                                        September 26, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         64A03-1511-CR-2038
        v.                                               Appeal from the Porter Superior
                                                         Court
State of Indiana,                                        The Honorable Mark A. Smith,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         64D05-1405-FA-3931



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016       Page 1 of 20
[1]   On May 7, 2014, Appellant-Defendant Robert Stevenson was charged with

      Class A felony child molestation after allegations arose that he had repeatedly

      forced his girlfriend’s granddaughter, M.C., to place his penis in her mouth.

      M.C. was between the ages of two and four-and-a-half at the time Stevenson

      committed the sexual abuse. Following a three-day jury trial, Stevenson was

      found guilty as charged. He was subsequently sentenced to a term of forty

      years, ten years of which were suspended to probation.


[2]   On appeal, Stevenson contends that the evidence is insufficient to sustain his

      conviction and that the trial court abused its discretion in excluding and

      admitting certain evidence. He also contends that the trial court abused its

      discretion in sentencing him and that his sentence is inappropriate. We affirm.



                            Facts and Procedural History
[3]   Roy Castro and Amanda Boer are the parents of two minor children: M.C. and

      J.C. (collectively, “the Children”). At the time of Stevenson’s criminal trial,

      M.C. was six years old and J.C. was four years old.


[4]   In early 2014, Boer’s mother, Carolyn, would frequently babysit the Children.

      At all relevant times, Stevenson was Carolyn’s boyfriend. Stevenson would

      frequently spend time with the Children while they were at Carolyn’s house.


[5]   On January 30, 2014, Castro, Castro’s mother, M.C., and J.C. were in a vehicle

      together driving home from the dentist. While in the vehicle together, the topic

      turned to “puppy chow,” a snack made of Chex mix covered with powdered

      Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016   Page 2 of 20
      sugar. Tr. p. 34. J.C. indicated that the powdered sugar looked like the baby

      powder that Boer put “on his butt and his hooey during normal [diaper]

      changing practices.” Tr. p. 34. The Children used the term “hooey” to refer to

      a penis. During this conversation, M.C. said that “Grandpa Rob has a hooey

      and he asks us to suck it all the time.” Tr. p. 48. After hearing M.C.’s

      statement about “Grandpa Rob,” Castro dropped the Children off with his

      sister and notified the police.


[6]   Valparaiso Police Sergeant Jerami Simpson took the report from Castro, Boer,

      and Castro’s mother. While taking the report, Sergeant Simpson instructed

      Castro and Boer not to allow M.C. and J.C. to return to Carolyn’s residence.

      After taking the report, Sergeant Simpson relayed the report to the Department

      of Child Services (“DCS”). DCS case manager Rachel Gibson was assigned to

      the case. She soon thereafter arranged for the Children to be interviewed.


[7]   On February 12, 2014, the Children were forensically interviewed by Angie

      Marsh, a certified forensic interviewer. During her interview, M.C. disclosed

      that Stevenson had made her suck on his “hooey” while she was in the master

      bedroom of Carolyn’s home. M.C. indicated that she had to suck on

      Stevenson’s penis because he told her to, even though she did not want to. She

      indicated that he made her do so on numerous occasions. M.C. described

      Stevenson’s penis as looking “hairy and brownish” and being “squishy.” Tr. p.

      103. M.C. identified Stevenson’s pubic hair as brown, silver and gray. M.C.

      indicated that one time Stevenson “peed” on the bed and that the “pee” was

      white. State’s Ex. 6. She also indicated that Stevenson wiggled his penis with

      Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016   Page 3 of 20
       his hand. M.C. further indicated that J.C. was present and watching television

       in the room when Stevenson forced her to suck on his penis. During his

       forensic interview with Marsh, J.C. indicated that he saw something happen but

       did not elaborate on what he saw.


[8]    On February 13, 2014, Valparaiso Police Detective Brian Thurman interviewed

       Stevenson. During this interview, Stevenson stated that he was forty-five years

       old; that he lived with his girlfriend, Carolyn; and that he considered M.C. and

       J.C. to be his grandchildren. Stevenson admitted that there would be times

       when he would be alone with M.C. and J.C. in the master bedroom of the

       home he shared with Carolyn. Stevenson denied sexually molesting either of

       the Children.


[9]    On May 7, 2014, Appellee-Plaintiff the State of Indiana (the “State”) charged

       Stevenson with Class A felony child molestation. Following a three-day jury

       trial, Stevenson was found guilty as charged. On October 22, 2015, the trial

       court sentenced Stevenson to a term of forty years, with ten of those years

       suspended to probation. This appeal follows.



                                  Discussion and Decision
                               I. Sufficiency of the Evidence
[10]   Stevenson contends that the evidence is insufficient to sustain his conviction for

       Class A felony child molesting.




       Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016   Page 4 of 20
                When reviewing the sufficiency of the evidence to support a
                conviction, appellate courts must consider only the probative
                evidence and reasonable inferences supporting the verdict. It is
                the fact-finder’s role, not that of appellate courts, to assess
                witness credibility and weigh the evidence to determine whether
                it is sufficient to support a conviction. To preserve this structure,
                when appellate courts are confronted with conflicting evidence,
                they must consider it most favorably to the trial court’s ruling.
                Appellate courts affirm the conviction unless no reasonable fact-
                finder could find the elements of the crime proven beyond a
                reasonable doubt. It is therefore not necessary that the evidence
                overcome every reasonable hypothesis of innocence. The
                evidence is sufficient if an inference may reasonably be drawn
                from it to support the verdict.


       Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and

       quotations omitted). “In essence, we assess only whether the verdict could be

       reached based on reasonable inferences that may be drawn from the evidence

       presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in

       original). Upon review, appellate courts do not reweigh the evidence or assess

       the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind.

       2002).


[11]   In order to convict Stevenson of Class A felony child molesting, the State was

       required to prove that Stevenson was at least twenty-one years of age and

       performed or submitted to sexual intercourse or deviate sexual conduct with a




       Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016   Page 5 of 20
       child under fourteen years of age. Ind. Code § 35-42-4-3(a).1 Deviate sexual

       conduct was defined as an act involving “(1) a sex organ of one (1) person and

       the mouth or anus of another person; or (2) the penetration of the sex organ or

       anus of a person by an object.” Ind. Code § 35-31.5-2-94.


[12]   In raising this contention, Stevenson claims that the evidence should be found

       insufficient to sustain his conviction because M.C.’s testimony should have

       been found unreliable under the incredible dubiosity rule. The Indiana

       Supreme Court has held that the incredible dubiosity rule applies only in

       situations “‘where a sole witness presents inherently contradictory testimony

       which is equivocal or the result of coercion and there is a complete lack of

       circumstantial evidence of the appellant’s guilt.’” Moore v. State, 27 N.E.3d 749,

       755 (Ind. 2015) (quoting Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994))

       (emphases in Moore). The Indiana Supreme Court has explained that “while

       incredible dubiosity provides a standard that is ‘not impossible’ to meet, it is a

       ‘difficult standard to meet, [and] one that requires great ambiguity and

       inconsistency in the evidence.’” Id. at 756 (quoting Edwards v. State, 753 N.E.2d

       618, 622 (Ind. 2001)). “‘The testimony must be so convoluted and/or contrary

       to human experience that no reasonable person could believe it.’” Id. (quoting

       Edwards, 753 N.E.2d at 622 (internal citation omitted)). Thus, the Indiana




       1
        Indiana Code section 35-42-4-3 was amended in accordance with Indiana’s new criminal code
       on July 1, 2014. However, because Stevenson’s criminal actions occurred prior to July 1, 2014,
       we will apply the version of Indiana Code section 35-42-4-3 that was in effect at the time
       Stevenson committed the acts at issue.

       Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016   Page 6 of 20
       Supreme Court has held that a finding of incredible dubiosity “is a rare

       occasion.” Id.


[13]   In arguing that M.C.’s testimony was incredibly dubious, Stevenson claims that

       M.C.’s testimony was incredibly dubious because the evidence demonstrates

       that he was never alone in the home with M.C. without Carolyn present.

       Regardless of whether Stevenson was ever alone in Carolyn’s home with the

       children, the evidence demonstrates that Stevenson admitted to Detective Brian

       Thurman that he would watch television with the children on the bed in the

       master bedroom “all the time.” Tr. p. 213. The record further indicates that

       Carolyn was not always present in the bedroom with Stevenson and the

       children. Specifically, Mother testified that she had observed the children in the

       bedroom with Stevenson while Carolyn was “[o]n the computer in the other

       room.” Tr. p. 119. Likewise, Father testified that when he would pick the

       children up from Carolyn’s home, he observed that Stevenson “would be in the

       bedroom on the bed and the kids would be on the bed with him and they would

       be watching TV.” Tr. p. 55. Father further testified that at these times, Carolyn

       would “usually be on the computer in the kitchen.” Tr. p. 56. Given this

       testimony, we find Stevenson’s claim that the evidence demonstrated that he

       never was never alone with the children without Carolyn present to be without

       merit. As such, we cannot say that M.C.’s testimony was incredibly dubious

       for this reason.


[14]   Stevenson also claims that M.C.’s testimony was incredibly dubious because

       M.C.’s testimony regarding the color of his pubic hair was not accurate.

       Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016   Page 7 of 20
       During her interview with Angie Marsh, a forensic interviewer, M.C. indicated

       that Stevenson’s pubic hair was brown, silver, and gray. M.C.’s testimony was

       largely consistent at trial where she testified that Stevenson’s pubic hair was

       “brownish.” Tr. p. 97, 103. Stevenson claims that the evidence demonstrates

       that his pubic hair was black. While the evidence relied upon by Stevenson

       demonstrates that Stevenson’s pubic hair is dark in color, the evidence is such,

       however, that one could reasonably describe Steven’s public hair as being

       “brownish” in color. As such, we cannot say that M.C.’s testimony in this

       regard was incredibly dubious.


                                   II. Evidentiary Questions
[15]   Stevenson also contends that the trial court abused its discretion in excluding

       certain evidence from trial and admitting other evidence at trial.


               The admission or exclusion of evidence is entrusted to the
               discretion of the trial court. Farris v. State, 818 N.E.2d 63, 67
               (Ind. Ct. App. 2004). We will reverse a trial court’s decision only
               for an abuse of discretion. Id. We will consider the conflicting
               evidence most favorable to the trial court’s ruling and any
               uncontested evidence favorable to the defendant. Taylor v. State,
               891 N.E.2d 155, 158 (Ind. Ct. App. 2008). An abuse of
               discretion occurs when the trial court’s decision is clearly against
               the logic and effect of the facts and circumstances before the
               court or it misinterprets the law. Id. In determining whether an
               error in the introduction of evidence affected an appellant’s
               substantial rights, we assess the probable impact of the evidence
               on the jury. Oldham v. State, 779 N.E.2d 1162, 1170 (Ind. Ct.
               App. 2002). Admission of evidence is harmless and is not
               grounds for reversal where the evidence is merely cumulative of


       Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016   Page 8 of 20
               other evidence admitted. Pavey v. State, 764 N.E.2d 692, 703
               (Ind. Ct. App. 2002).


       Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012). “Moreover, the trial

       court’s ruling will be upheld if it is sustainable on any legal theory supported by

       the record, even if the trial court did not use that theory.” Rush v. State, 881

       N.E.2d 46, 50 (Ind. Ct. App. 2008) (citing Gonser v. State, 843 N.E.2d 947, 950

       (Ind. Ct. App. 2006)).


                              A. Exclusion of Certain Evidence
[16]   Stevenson argues that the trial court abused its discretion in ruling that he could

       not call J.C. as a witness at trial.

               Every defendant has the fundamental right to present witnesses
               in his or her own defense. [Barber v. State, 911 N.E.2d 641, 646
               (Ind. Ct. App. 2009)] (citing Roach v. State, 695 N.E.2d 934, 939
               (Ind. 1998) (some internal citations omitted); see Chambers v.
               Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297
               (1973) (“Few rights are more fundamental than that of an
               accused to present witnesses in his own defense.”). “This right
               ‘is in plain terms the right to present a defense, the right to
               present the defendant’s version of the facts as well as the
               prosecutor’s to the jury so it may decide where the truth lies.’”
               Barber, 911 N.E.2d at 646 (quoting Roach, 695 N.E.2d at 939)
               (internal quotation omitted)). “‘At the same time, while the right
               to present witnesses is of the utmost importance, it is not
               absolute.’” Id. (quoting Roach, 695 N.E.2d at 939 (internal
               citation omitted)). “‘In the exercise of this right, the accused, as
               is required of the State, must comply with established rules of
               procedure and evidence designed to assure both fairness and
               reliability in the ascertainment of guilt and innocence.’” Id.
               (quoting Roach, 695 N.E.2d at 939 (internal quotation omitted)).

       Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016   Page 9 of 20
       Tolliver v. State, 922 N.E.2d 1272, 1282 (Ind. Ct. App. 2010), trans. denied.


[17]   Stevenson claims that the trial court abused its discretion in excluding J.C. from

       testifying at trial because the trial court did not properly examine J.C.’s

       competency to testify. In support, Stevenson argues that the trial court was

       required to inquire into whether J.C. (1) understood the difference between

       telling a lie and telling the truth, (2) knew he was under compulsion to tell the

       truth, and (3) knew what a true statement actually was. Appellant’s Br. p. 17

       (citing Newsome v. State, 686 N.E.2d 868, 872 (Ind. Ct. App. 1997)). For its

       part, the State argues that even if the trial court failed to properly delve into

       J.C.’s competency, as Stevenson alleges, Stevenson has waived appellate review

       of the trial court’s decision regarding J.C. by failing to make an offer of proof

       indicating what relevant evidence would likely be elicited from J.C.’s

       testimony.


[18]   The following exchange occurred during trial with respect to whether J.C.

       should be allowed to testify:

               [State]:                 Just on the issue of J.C.

               [Trial Court]:           All right. Well, let’s hear it.

               [State]:           Judge, obviously, we are here with the
               Defendant being charged with one Count against M.C. To place
               J.C. on the stand when I have not met him, Defense Counsel has
               not met him, he has absolutely no understanding of what
               happens in this courtroom, I do not believe that [Defense
               Counsel] can provide him as a competent witness. Obviously,
               every witness under 601 is presumed competent; however,

       Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016 Page 10 of 20
        obviously in the case of children there has to be a dialogue that is
        gone through, similar to what I went through with [M.C.]. and I
        don’t think that can be provided with J.C. I have not met with
        him, and [Defense Counsel] has not met with him. He scheduled
        a deposition of him and cancelled that [deposition]. And there’s
        been no indication he has any idea what’s going on here or what
        the purpose of this courtroom would be.

        And frankly, he’s not relevant. I mean, he is indicated to have
        been in the room, but even in the forensic interview with Ms.
        Marsh he gave her nothing because he’s bouncing all over the
        room.

        [Trial Court]:           [Defense Counsel].

        [Defense Counsel]: Whether the witness is competent is your
        Honor’s decision. Especially if the State hasn’t met him I don’t
        see how they could possibly render any sort of opinion on that
        issue. Second of all, Rachel Gibson testified that [J.C.] was a
        witness. [M.C.] testified that [J.C.] was always around. And he
        was forensically interviewed so there’s at least an indication that
        at one point the State believe [sic] that he had relevant
        information. Now, if the only kind of information that’s relevant
        is the kind that suggests that Mr. Stevenson is guilty, then
        perhaps [J.C.] doesn’t provide any relevant evidence. But I
        would say that the contrary does not negate his relevance.

        [Trial Court]:       Where do you recall hearing testimony that
        he was, I think the testimony is undisputed he was in the home.
        Where do you believe you heard testimony that he witnessed
        anything?

        [Defense Counsel]: Rachel Gibson testified that [J.C.] is a
        witness. M.C. testified that [J.C.] was with her when these
        things were happening.

        [Trial Court]:           State.

Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016 Page 11 of 20
        [State]:            [M.C.] specifically admitted that [J.C.] was in
        the room on the floor watching TV. To take that that he is a
        witness I think takes a leap that is not there.

        [Trial Court]:           Based upon her own testimony?

        [State]:                 Correct.

        [Trial Court]:        … And I’m going to grant the State’s request
        to prohibit [J.C.] from testifying due to his age, and I do not find
        that what he may or may not know is relevant.


Tr. pp. 193-195. This exchange demonstrates that while Stevenson generally

indicated that he believed that J.C.’s testimony might potentially provide

relevant evidence, Stevenson failed to make an offer of proof with regard to

what relevant evidence he believed J.C. would be able to provide during trial.

As such, his challenge to the trial court’s decision to exclude J.C. from

testifying is waived. See State v. Wilson, 836 N.E.2d 407, 410 (Ind. 2005)

(providing that “[a]n offer of proof should show the facts sought to be proved,

the relevance of that evidence, and the answer to any objection to exclusion of

the evidence.”).2




2
  It is also of note that at Stevenson’s request, the video recording of J.C.’s forensic interview
with Marsh was played for the jury. In viewing this video, the jury was able to observe J.C.’s
young age and his ability to answer Marsh’s questions with answers containing any substance.
While J.C. indicated that he saw “something happen,” he would not elaborate as to what he
saw and did not disclose observing or being the victim of any sexual abuse during this interview.
Tr. p. 76.


Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016 Page 12 of 20
                              B. Admission of Certain Evidence
[19]   Stevenson also argues that the trial court abused its discretion in admitting

       evidence relating to his drug and alcohol use. For its part, the State maintains

       that the evidence relating to Stevenson’s drug and alcohol use was relevant to

       the question of whether Stevenson may not remember committing the alleged

       criminal acts because he was intoxicated when the acts occurred.


[20]           Relevant evidence is “evidence having any tendency to make the
               existence of any fact that is of consequence to the determination
               of the action more or less probable than it would be without the
               evidence.” Ind. Evidence Rule 401. “Generally speaking,
               relevant evidence is admissible, and irrelevant evidence is
               inadmissible.” Sandifur v. State, 815 N.E.2d 1042, 1048 (Ind. Ct.
               App. 2004), trans. denied; Ind. Evidence Rule 402. Relevant
               evidence may nevertheless be excluded if its probative value is
               substantially outweighed by the danger of unfair prejudice. Ind.
               Evidence Rule 403. These basic tenets of evidence are utilized in
               addressing the specific issue of when evidence of other bad acts is
               admissible.

               Indiana Evidence Rule 404(b) provides in pertinent part:

                       Evidence of other crimes, wrongs, or acts is not
                       admissible to prove the character of a person in order
                       to show action in conformity therewith. It may,
                       however, be admissible for other purposes, such as
                       proof of motive, intent, preparation, plan,
                       knowledge, identity, or absence of mistake or
                       accident[.]
               In determining the admissibility of evidence under Rule 404(b),
               the trial court must: (1) determine whether the evidence of other
               crimes, wrongs, or acts is relevant to a matter at issue other than
               the defendant’s propensity to commit the charged act; and (2)

       Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016 Page 13 of 20
               balance the probative value of the evidence against its prejudicial
               effect pursuant to Indiana Evidence Rule 403. Ware v. State, 816
               N.E.2d 1167, 1175 (Ind. Ct. App. 2004). We employ the same
               test to determine whether the trial court abused its discretion. Id.

               The effect of Rule 404(b) is that evidence is excluded only when
               it is introduced to prove the “forbidden inference” of
               demonstrating the defendant’s propensity to commit the charged
               crime. Sanders v. State, 724 N.E.2d 1127, 1130-1131 (Ind. Ct.
               App. 2000). The paradigm of inadmissible evidence under Rule
               404(b) is a crime committed on another day in another place,
               evidence whose only apparent purpose is to prove the defendant
               is a person who commits crimes. Swanson v. State, 666 N.E.2d
               397, 398 (Ind. 1996). Because evidence of other bad or
               uncharged acts can often be unduly prejudicial, however,
               exceptions to the 404(B) rule of permitting such evidence
               demonstrating motive, intent, preparation, plan, etc., are to be
               applied cautiously. Brown v. State, 577 N.E.2d 221, 226 (Ind.
               1991).


       Southern v. State, 878 N.E.2d 315, 321-22 (Ind. Ct. App. 2007).


[21]   In the instant matter, we need not determine whether the challenged evidence

       should have been excluded under Rule 404(b) because even assuming that it

       was error to include the statements relating to Stevenson’s drug and alcohol

       use, we find such error to be harmless. “Error is harmless if the conviction is

       supported by substantial independent evidence of guilt such that there is no

       substantial likelihood that the questioned evidence contributed to the

       conviction.” Tolliver, 922 N.E.2d at 1279 (citing Cook v. State, 734 N.E.2d 563,

       569 (Ind. 2000)). During trial, M.C. testified unequivocally and consistently

       that Stevenson forced her to suck on his penis on numerous occasions. M.C.

       Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016 Page 14 of 20
       gave consistent descriptions of Stevenson’s penis. M.C.’s testimony was

       consistent with the statements she made during her forensic interview with

       Marsh and with statements she made to father and paternal grandmother.

       Given M.C.’s testimony, we conclude that Stevenson’s conviction was

       supported by substantial independent evidence of his guilt and that there was no

       substantial likelihood that the evidence of his occasional drug and alcohol use

       contributed to his conviction. As such, we further conclude that any error that

       the trial court may have committed can only be considered harmless.


                                     III. Sentence Challenge
[22]   Stevenson also challenges his sentence. In doing so, he contends both that the

       trial court abused its discretion in sentencing him and that his sentence is

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


                                       A. Abuse of Discretion
[23]   Sentencing decisions rest within the sound discretion of the trial court and are

       reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868

       N.E.2d 482, 490 (Ind. 2007), modified on other grounds on reh’g, 875 N.E.2d 218

       (Ind. 2007). “An abuse of discretion occurs if 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.

       (quotation omitted).

               One way in which a trial court may abuse its discretion is failing
               to enter a sentencing statement at all. Other examples include

       Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016 Page 15 of 20
               entering a sentencing statement that explains reasons for
               imposing a sentence-including a finding of aggravating and
               mitigating factors if any-but the record does not support the
               reasons, or the sentencing statement omits reasons that are
               clearly supported by the record and advanced for consideration,
               or the reasons given are improper as a matter of law. Under
               those circumstances, remand for resentencing may be the
               appropriate remedy if we cannot say with confidence that the
               trial court would have imposed the same sentence had it properly
               considered reasons that enjoy support in the record.


       Id. at 490-91. A single aggravating factor may support an enhanced sentence.

       Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993).


[24]   In sentencing Stevenson, the trial court found the age of the victim and the fact

       that Stevenson was in a position of trust over the victim to be aggravating

       factors. Stevenson does not argue on appeal that the aggravating factors found

       by the trial court are not supported by the record. Rather, he claims that the

       trial court abused its discretion by failing to find his relatively minor criminal

       history, including the fact that none of his prior convictions were for sex crimes,

       to be a mitigating factor.


[25]   Although a sentencing court must consider all evidence of mitigating factors

       offered by a defendant, the finding of mitigating factors rests within the court’s

       discretion. Henderson v. State, 769 N.E.2d 172, 179 (Ind. 2002). A trial court is

       neither required to find the presence of mitigating factors, Fugate, 608 N.E.2d at

       1374 (citing Graham v. State, 535 N.E.2d 1152, 1155 (Ind. 1989)), nor obligated

       to explain why it did not find a factor to be significantly mitigating. Sherwood v.


       Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016 Page 16 of 20
       State, 749 N.E.2d 36, 38 (Ind. 2001) (citing Birdsong v. State, 685 N.E.2d 42, 47

       (Ind. 1997)). “A court does not err in failing to find mitigation when a

       mitigation claim is highly disputable in nature, weight, or significance.”

       Henderson, 769 N.E.2d at 179 (internal quotations omitted). Furthermore, while

       Indiana law mandates that the trial judge not ignore facts in the record that

       would mitigate an offense, and a failure to find mitigating factors that are

       clearly supported by the record may imply that the trial court failed to properly

       consider them, id., an allegation that the trial court failed to find a mitigating

       factor requires the defendant to establish that the mitigating evidence is both

       significant and clearly supported by the record. Carter v. State, 711 N.E.2d 835,

       838 (Ind. 1999).


[26]   Stevenson argues that the trial court should have found his relatively minimal

       criminal history, including the fact that he had never previously been accused or

       convicted of a sex crime, to be a mitigating factor. Although a lack of criminal

       history may be considered to be a mitigating factor, trial courts are not required

       to give significant weight to a defendant’s lack of criminal history. Townsend v.

       State, 860 N.E.2d 1268, 1272 (Ind. Ct. App. 2007), trans. denied. This is

       especially so “‘when a defendant’s record, while felony-free, is blemished.’” Id.

       (quoting Stout v. State, 834 N.E.2d 707, 712 (Ind. Ct. App. 2005), trans. denied).

       Further, “‘[i]n the non-capital context, a single conviction or juvenile

       adjudication may negate this mitigating circumstance [of lack of criminal

       history].’” Id. (quoting Warlick v. State, 722 N.E.2d 809, 813 (Ind. 2000)).




       Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016 Page 17 of 20
[27]   While the record reveals that Stevenson has no prior felony convictions, his

       criminal history includes seven prior misdemeanor convictions which date back

       to 1987 and 1989. These convictions include two counts of battery of a police

       officer, three counts of resisting law enforcement, disorderly conduct, and

       public intoxication. Stevenson was also arrested for and charged with domestic

       battery in 2007. This charge was subsequently dismissed after Stevenson

       completed one year of a pre-trial diversion program.


[28]   The trial court acknowledged that Stevenson’s criminal history was not

       extensive but stated that the court did not find it to be a mitigating factor. Thus,

       the situation presented here is not one in which the trial court was not aware of

       Stevenson’s criminal history. Although Stevenson’s criminal history may not

       constitute an aggravating circumstance sufficient to enhance a sentence, the

       trial court was not required to attach mitigating weight to his criminal history.

       See Robinson v. State, 775 N.E.2d 316, 321 (Ind.2002) (trial court properly

       attached no mitigating weight to defendant’s criminal history consisting of one

       misdemeanor, possession of marijuana, and several traffic infractions). We

       therefore conclude that the trial court did not abuse its discretion in declining to

       find Stevenson’s criminal history to be a mitigating circumstance.


                                B. Appropriateness of Sentence
[29]   Stevenson also claims that his forty-year sentence, ten years of which was

       suspended to probation, is inappropriate in light of the nature of his offense and

       his character. Indiana Appellate Rule 7(B) provides that “The Court may revise

       a sentence authorized by statute if, after due consideration of the trial court’s
       Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016 Page 18 of 20
       decision, the Court finds that the sentence is inappropriate in light of the nature

       of the offense and the character of the offender.” In analyzing such claims, we

       “‘concentrate less on comparing the facts of [the case at issue] to others,

       whether real or hypothetical, and more on focusing on the nature, extent, and

       depravity of the offense for which the defendant is being sentenced, and what it

       reveals about the defendant’s character.’” Paul v. State, 888 N.E.2d 818, 825

       (Ind. Ct. App. 2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct.

       App. 2002), trans. denied). The defendant bears the burden of persuading us that

       his sentence is inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct.

       App. 2008).


[30]   With respect to the nature of Stevenson’s offense, we find the nature of

       Stevenson’s offenses to be abhorrent as he repeatedly victimized a young child

       over whom he was in a position of trust. The evidence demonstrates that M.C.

       was between the ages of two and four and a half when she was victimized by

       Stevenson. In addition, Stevenson committed these heinous acts while J.C.,

       who was between the ages of one and three, was in the room watching

       television.


[31]   Stevenson’s acts of victimizing a young child over whom he had a position of

       trust also reflects poorly on Stevenson’s character. In addition, while Stevenson

       had not previously been convicted of any prior felony offenses, his criminal

       history was not unblemished. Again, Stevenson’s criminal history includes

       seven prior misdemeanor convictions which date back to 1987 and 1989. These

       convictions include two counts of battery of a police officer, three counts of

       Court of Appeals of Indiana | Memorandum Decision 64A03-1511-CR-2038 | September 26, 2016 Page 19 of 20
       resisting law enforcement, disorderly conduct, and public intoxication.

       Stevenson was also arrested for and charged with domestic battery in 2007.

       This charge was subsequently dismissed after Stevenson completed one year of

       a pre-trial diversion program. The fact that Stevenson committed the instant

       criminal acts after having previously been granted the mercy of the court as

       evidenced by his 2007 participation in a pre-trial diversion program also reflects

       poorly on his character. In fact, the evidence presented at trial suggests that he

       has apparently chosen not to refrain from victimizing others and has apparently

       moved from victimizing innocent women to victimizing innocent young

       children. Stevenson has failed to establish that his forty-year sentence, ten years

       of which was suspended to probation, was inappropriate in light of the nature of

       his offenses and his character.



                                               Conclusion
[32]   In sum, we conclude that the evidence is sufficient to sustain Stevenson’s

       conviction, the trial court did not abuse its discretion in excluding and

       admitting certain evidence, the trial court did not abuse its discretion in

       sentencing Stevenson, and Stevenson’s sentence is not inappropriate. As such,

       we affirm the judgment of the trial court.


[33]   The judgment of the trial court is affirmed.


       Pyle, J., and Altice, J., concur.



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