MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Jul 16 2020, 10:48 am
court except for the purpose of establishing                                   CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
estoppel, or the law of the case.                                               and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Linda L. Harris                                           Curtis T. Hill, Jr.
Kentland, Indiana                                         Attorney General of Indiana
                                                          Tina L. Mann
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Steven Ray Struble,                                       July 16, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          20A-CR-147
        v.                                                Appeal from the Jasper Superior
                                                          Court
State of Indiana,                                         The Honorable Russell D. Bailey,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          37D01-1904-F4-294



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-147 | July 16, 2020                       Page 1 of 8
                                        Statement of the Case

[1]   Steven Struble (“Struble”) appeals the advisory sentence imposed after he pled

      guilty to Level 4 felony sexual misconduct with a minor. 1 Struble argues that:

      (1) the trial court abused its discretion when it sentenced him; and (2) his

      sentence is inappropriate. Concluding that the trial court did not abuse its

      discretion and that his sentence is not inappropriate, we affirm Struble’s

      sentence.


[2]   We affirm.


                                                     Issues

                     1. Whether the trial court abused its discretion when it sentenced
                        Struble.
                     2. Whether Struble’s sentence is inappropriate.
                                                      Facts

[3]   During the summer of 2018, twenty-one-year-old Struble met fifteen-year-old

      A.Y. (“A.Y.”) through A.Y.’s mother’s boyfriend, Tyler Holloway

      (“Holloway”). Struble and Holloway spent time together working at A.Y.’s

      mother’s house. On occasion, Struble spent the night after working late.




      1
          IND. CODE § 35-42-4-9.


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-147 | July 16, 2020   Page 2 of 8
[4]   At some point, Struble and A.Y. exchanged contact information and began to

      communicate with each other. In August 2018, Struble and A.Y. began to

      secretly date and have sexual intercourse. Struble, who was aware of A.Y.’s

      age based upon prior conversations, told A.Y. that it was okay to have sex

      because he trusted her. Whenever Struble spent the night, he waited until

      A.Y.’s mother fell asleep before he entered A.Y.’s bedroom and had sex with

      her.


[5]   Eventually, A.Y. told her school counselor that she had been having sex with

      Struble. The counselor informed the Department of Child Services (“DCS”)

      what A.Y. had reported, and DCS contacted law enforcement. During an

      investigation by the Rensselaer Police Department in October 2018, Struble

      admitted that: he had stayed the night at A.Y.’s home after one of Holloway’s

      races; he went to A.Y.’s bedroom; and they had sexual intercourse.


[6]   In April 2019, the State charged Struble with Level 4 felony sexual misconduct

      with a minor. Pursuant to a plea agreement, Struble pled guilty as charged. In

      exchange, the parties agreed to argue the sentence length with a cap of six

      years. At the ensuing sentencing hearing, the trial court noted Struble’s

      criminal history, which includes a juvenile adjudication for battery and a

      conviction for Class A Misdemeanor furnishing alcohol to a minor, but found

      that the prior offenses “somewhat offset each other[.]” (Tr. Vol. 2 at 21). The

      trial court then explained:


              [I]t’s understandable the uh, defendant is, is a young man and uh,
              got a long life ahead of him. And uh, the uh – I do believe based

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-147 | July 16, 2020   Page 3 of 8
              on the – the uh, that some measure should be accorded to the fact
              that he did take responsibility um, for his actions. And uh, and he
              has been uh, compliant up to this point uh, with uh, his
              requirements that have been imposed on him uh, Pre-Trial. Um,
              but at the same time, uh, the seriousness of the offense um, would
              – I would, I would say based on the seriousness of the offense, the
              – the 6 years is uh, is an adequate uh, sentence.

      (Tr. Vol. 2 at 21). Thereafter, the trial court sentenced Struble to the advisory

      sentence for a Level 4 felony, six (6) years in the Department of Correction with

      two (2) years suspended to probation. Struble now appeals.


                                                   Decision

[7]   On appeal, Struble contends that: (1) the trial court abused its discretion when

      it sentenced him; and (2) his sentence is inappropriate. We will review each

      argument in turn.


      1. Abuse of Discretion


[8]   Struble contends that the trial court abused its discretion when it sentenced him

      on his Level 4 felony conviction. 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


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-147 | July 16, 2020   Page 4 of 8
      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 sentencing statement that includes reasons that

      are improper as a matter of law. Id. at 490-91.


[9]   Struble argues that the trial court abused its discretion because it “failed to enter

      a sentencing statement[.]” (Struble’s Br. 9). However, INDIANA CODE § 35-38-

      1-1.3 provides that “[a]fter a court has pronounced a sentence for a felony

      conviction, the court shall issue a statement of the court’s reasons for selecting

      the sentence that it imposes unless the court imposes the advisory sentence for the

      felony.” (Emphasis added). Here, Struble was convicted of Level 4 felony

      sexual misconduct with a minor. The sentencing range for a Level 4 felony is

      “for a fixed term of between two (2) and twelve (12) years, with the advisory

      sentence being six (6) years.” I.C. § 35-50-2-5.5. The trial court sentenced

      Struble to the advisory sentence of six (6) years and suspended two (2) years to

      probation. Because the trial court sentenced Struble to the advisory sentence

      for his felony conviction, it was not required to issue a sentencing statement.

      See I.C. § 35-38-1-1.3. Therefore, the trial court did not abuse its discretion

      when it sentenced Struble.2




      2
        Struble also argues that it is unclear whether the trial court considered his guilty plea as a mitigating factor.
      We disagree. At the sentencing hearing, the trial court stated that “some measure should be accorded to the
      fact that [Struble] did take responsibility um, for his actions.” (Tr. Vol. 2 at 21). Based upon the record, it is
      unlikely that the trial court failed to consider Struble’s guilty plea as a mitigator.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-147 | July 16, 2020                            Page 5 of 8
       2. Inappropriate Sentence


[10]   Struble next contends that his six-year sentence with two years suspended to

       probation is inappropriate. Indiana 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 offender. The defendant bears the

       burden of persuading this Court 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 N.E.2d 864, 876

       (Ind. 2012) (internal quotation marks and citation omitted), reh’g denied.

       Whether we regard a sentence as inappropriate 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.” Cardwell, 895 N.E.2d at 1224.


[11]   When determining whether a sentence is inappropriate, the advisory sentence is

       the starting point that the General Assembly has selected as an appropriate

       sentence for the crime committed. Childress, 848 N.E.2d at 1081. As explained

       above, the trial court sentenced Struble to six (6) years, which is the advisory

       sentence. We further note that “a defendant bears a particularly heavy burden

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-147 | July 16, 2020   Page 6 of 8
       in persuading us that his sentence is inappropriate when the trial court imposes

       the advisory sentence.” Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App.

       2011), trans. denied. On appeal, Struble has not met the particularly heavy

       burden he faces.


[12]   Turning to the nature of Struble’s offense, this Court has recognized that the

       nature of the offense is found in the details and circumstances of the

       commission of the offense and the defendant’s participation. Perry v. State, 78

       N.E.3d 1, 13 (Ind. Ct. App. 2017). Here, Struble secretly dated fifteen-year-old

       A.Y. Whenever Struble spent the night, he waited until A.Y.’s mother fell

       asleep to enter A.Y.’s room and had sex with her. Struble’s sentence is not

       inappropriate in light of the nature of his offense.


[13]   When considering the character of the offender, we recognize, as the trial court

       did, that Struble was twenty-one, took responsibility, and was compliant with

       pretrial release. However, Struble secretly dated and had sex with a fifteen-

       year-old girl on multiple occasions. He knew she was underage, and he

       manipulated her into thinking it was okay for her to have sex with him.

       Furthermore, Struble has one prior adult conviction for Class A Misdemeanor

       furnishing alcohol to a minor, which reflects poorly on his character. See Moss

       v. State, 13 N.E.3d 440, 448 (Ind. Ct. App. 2014) (holding that even a minor

       criminal record reflects poorly on a defendant’s character). Indeed, Struble’s

       character seems to be punctuated with an inability to recognize what constitutes

       appropriate contact with minors.



       Court of Appeals of Indiana | Memorandum Decision 20A-CR-147 | July 16, 2020   Page 7 of 8
[14]   Accordingly, Struble has failed to persuade us that the nature of his sexual

       misconduct with a minor offense or his character makes his six-year sentence

       with two years suspended to probation inappropriate. Therefore, we affirm the

       sentence imposed by the trial court.


[15]   Affirmed.


       Bradford, C.J., and Baker, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-147 | July 16, 2020   Page 8 of 8
