MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
                                                                      Aug 17 2018, 10:01 am
regarded as precedent or cited before any
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
Andrew B. Arnett                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Henry A. Flores, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tiawana M. Hughes,                                       August 17, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-397
        v.                                               Appeal from the Johnson Superior
                                                         Court
State of Indiana,                                        The Honorable Peter D. Nugent,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         41D02-1707-F3-32



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-397 | August 17, 2018                 Page 1 of 6
                                         Statement of the Case
[1]   Tiawana M. Hughes appeals her sentence following her conviction for child

      molesting, as a Level 3 felony, pursuant to a guilty plea. Hughes raises a single

      issue for our review, which we restate as whether the trial court abused its

      discretion in its identification and weight of aggravators and mitigators used in

      sentencing Hughes.1 We affirm.


                                   Facts and Procedural History
[2]   On November 1 and December 31, 2015, Hughes was living with her best

      friend’s grandparents and twelve-year-old foster daughter, A.S. On those dates

      Hughes performed oral sex on A.S. Hughes also had A.S. perform oral sex on

      her. About six months later, A.S. informed her foster mother of the

      molestations, and her foster mother informed the police.


[3]   The State charged Hughes with child molesting, as a Level 3 felony. Hughes

      agreed to plead guilty pursuant to a plea agreement on the condition that she

      not serve more than five years executed in the Department of Correction. The




      1
        Hughes styles her argument on appeal as a challenge to the appropriateness of her sentence under Indiana
      Appellate Rule 7(B). In response, the State argues that Hughes has waived her argument under Rule 7(B)
      because she makes no substantive argument that her sentence is inappropriate in light of the nature of the
      offense and her character. We agree with the State that the substance of Hughes’ argument in her brief is not
      a Rule 7(B) argument. Rather, the substance of her argument is that the trial court improperly identified an
      aggravator, failed to properly identify a purported mitigator, and improperly weighed the aggravators and
      mitigators. We address the substance of Hughes’ actual argument accordingly.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-397 | August 17, 2018                    Page 2 of 6
      trial court accepted Hughes’ plea agreement. And, at the conclusion of the

      ensuing sentencing hearing, the court stated as follows:


              I think the only real aggravator is that you were in a position of
              trust with this twelve year old and you violated that position of
              trust. I think the mitigating circumstances are substantial. You
              have no criminal history, you ple[aded] guilty, or you owned it,
              which is big in this Court, you’re remorseful for what’s
              happening. You have the support system that cares about you
              and is ready to help. My problem is that[,] under the nature and
              circumstance[s] of the case, it’s still a child molesting. A twelve
              year old child. And . . . it’s going to effect this young person for
              a long, long time . . . . I believe that you can benefit from
              counseling. . . . But . . . you cannot overlook the fact that there’s
              a child molesting. And so under the circumstances, what I’m
              going to do is find that the aggravators and mitigators cancel
              each other out. The stated term for a level 3 is nine years. It will
              be a nine year sentence[. O]f that nine, three will be executed at
              the Department of Correction[;] six will be suspended.


      Tr. Vol. 2 at 22-23. This appeal ensued.


                                     Discussion and Decision
[4]   Hughes asserts that the trial court abused its discretion when it sentenced her.

      Sentencing decisions lie within the sound discretion of the trial court. Cardwell

      v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). 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.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014) (citation




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-397 | August 17, 2018   Page 3 of 6
      omitted), trans. denied. A trial court abuses its discretion in sentencing if it does

      any of the following:


              (1) fails “to enter a sentencing statement at all;” (2) enters “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;” (3)
              enters a sentencing statement that “omits reasons that are clearly
              supported by the record and advanced for consideration;” or (4)
              considers reasons that “are improper as a matter of law.”


      Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007), clarified on

      reh’g, 875 N.E.2d 218 (Ind. 2007)). However, the relative weight or value

      assignable to reasons properly found, or those which should have been found, is

      not subject to review for abuse of discretion, id., and a trial court is under no

      obligation to explain why a proposed mitigator does not exist or why the court

      found it to be insignificant, Sandleben v. State, 22 N.E.3d 782, 796 (Ind. Ct. App.

      2014), trans. denied.


[5]   Hughes asserts that the trial court abused its discretion for each of the following

      reasons: (1) “there was no evidence on the record . . . that Hughes had put

      herself in a position of trust with A.S.”; (2) the trial court’s identified mitigators

      “should have been given significant weight”; and (3) “the trial court failed to

      recognize another mitigating factor,” namely, “that Hughes would respond

      affirmatively to probation or short-term imprisonment.” Appellant’s Br. at 9.


[6]   We cannot agree with Hughes’ assessment. First, “[a] position of trust exists

      where a defendant has ‘more than a casual relationship with the victim and has

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-397 | August 17, 2018   Page 4 of 6
      abused the trust resulting from that relationship.’” Amalfitano v. State, 956

      N.E.2d 208, 211 (Ind. Ct. App. 2011) (quoting Rodriguez v. State, 868 N.E.2d

      551, 555 (Ind. Ct. App. 2007)), trans. denied. “Generally, cohabitation

      arrangements of nearly any character . . . do in fact, and should, establish a

      position of trust between the adults and minors living or staying together.” Id.

      (quotation marks omitted). The record is clear that Hughes was twenty-eight

      years old when she was living with A.S., her best friend’s twelve-year-old foster

      daughter. The record thus supports the trial court’s finding that Hughes was in

      a position of trust over A.S.


[7]   Hughes’ second argument—that the trial court failed to give appropriate or

      significant weight to the mitigators—is not properly before this court, and we

      do not consider it. E.g., Gross, 22 N.E.3d at 869 (citing Anglemyer, 868 N.E.2d

      at 490-91). And Hughes’ third argument—that the trial court failed to identify

      as a mitigator that she would respond affirmatively to probation or short-term

      imprisonment—does not explain how that proposed mitigator “is both

      significant and clearly supported by the record.” Anglemyer, 868 N.E.2d at 493.

      The trial court “is not obliged to explain why it has found that the factor does

      not exist.” Id. Moreover, Hughes’s sentence consists of an executed term of

      three years, even though the plea agreement allowed the court to impose an

      executed term of five years. Hughes does not explain how an executed term

      less than that she had agreed to in her plea agreement was an abuse of the

      court’s discretion.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-397 | August 17, 2018   Page 5 of 6
[8]   In sum, we cannot say that the trial court abused its discretion when it

      sentenced Hughes, and we affirm her sentence.


[9]   Affirmed.


      Crone, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-397 | August 17, 2018   Page 6 of 6
