MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Dec 19 2019, 9:59 am

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
Anthony C. Lawrence                                     Curtis T. Hill, Jr.
Anderson, Indiana                                       Attorney General of Indiana
                                                        Steven J. Hosler
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Robert L. Rivers,                                       December 19, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1704
        v.                                              Appeal from the Madison Circuit
                                                        Court
State of Indiana,                                       The Honorable David A. Happe,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        48C04-1702-FA-495



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1704 | December 19, 2019               Page 1 of 10
                                                Case Summary
[1]   Robert L. Rivers (“Rivers”) pleaded guilty to Child Molesting, as a Class A

      felony,1 and Sexual Misconduct with a Minor, as a Level 4 felony.2 Rivers—

      who is seventy-nine years old—was sentenced to an aggregate term of fifty-two

      years in the Indiana Department of Correction. He now appeals his sentence.


[2]   We affirm.



                                                   Issues
[3]   Rivers presents the following issues:


                 I.        Whether the trial court abused its sentencing discretion by
                           failing to identify Rivers’s declining mental health as a
                           mitigating circumstance.


                 II.       Whether the sentence is inappropriate.


                                 Facts and Procedural History
[4]   In 2017, the State charged Rivers with several offenses, alleging Rivers sexually

      abused his step-granddaughter, A.C. Rivers sought a competency evaluation,

      and the court appointed Dr. Carrie Dixon and Dr. Susan Anderson. Dr. Dixon

      concluded Rivers was competent to stand trial, opining there was “apparent




      1
          Ind. Code § 35-42-4-3(a)(1) (2012).
      2
          I.C. § 35-42-4-9(a)(1) (2014).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1704 | December 19, 2019   Page 2 of 10
      malingering on the memory items” tested in the evaluation. App. Vol. II at 52.

      However, Dr. Anderson concluded Rivers was not competent to stand trial

      “due to his memory issues which are resulting from vascular changes in his

      brain as evidenced by the MRI of his brain and the neuropsychological testing.”

      Id. at 56. Following these two evaluations, the court ordered a third opinion

      from Dr. Frank Krause. Dr. Krause found indicators of severe cognitive

      impairment, opining that Rivers had memory issues and exhibited symptoms of

      dementia. He concluded that Rivers was not currently competent to stand trial.


[5]   The court issued a commitment order and directed the superintendent of the

      hospital to certify whether Rivers had a substantial probability of attaining

      competency to stand trial. The court later received a certification that Rivers

      was competent to stand trial, along with report from Dr. Douglas Morris. The

      report indicated that Rivers had self-reported memory loss in 2017—not long

      after the instant charges were filed and the proceedings commenced—and that

      an MRI was obtained in response to that self-report. Dr. Morris noted that the

      MRI results revealed diseased areas of the brain, injuries that prior health care

      providers had determined likely contributed to issues with memory loss. Dr.

      Morris also noted that “despite obtaining much social history during [the MRI-

      related] evaluations, it does not appear that [those health care providers] were

      aware that [Rivers] was facing serious legal charges during his evaluations.” Id.

      at 79. Dr. Morris observed that Rivers “displayed behaviors that are highly

      concerning for malingering” and that there had been a “marked discrepancy”

      between his claims of memory and functional difficulties and his behavior at the


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1704 | December 19, 2019   Page 3 of 10
      hospital. Id. at 83. Dr. Morris opined that Rivers “previously malingered

      deficits in . . . cognitive and memory impairments,” and Dr. Morris suggested

      that “further reports of significant deficits in . . . competency-related abilities or

      cognitive functioning should be viewed with appropriate skepticism.” Id. at 86.


[6]   The trial court scheduled a trial in June 2019. Before the scheduled trial,

      seventy-nine-year-old Rivers pleaded guilty to two counts: Child Molesting, as a

      Class A felony, and Sexual Misconduct with a Minor, as a Level 4 felony. The

      State then sought dismissal of the remaining counts, which the court dismissed.


[7]   As to the count of Child Molesting, Rivers admitted he first sexually abused

      A.C. in 2012, when she was eleven years old and he was in his seventies. One

      morning on a school day, Rivers approached A.C. and told her she should not

      be afraid. He began touching her and eventually inserted his penis into her

      vagina. He told her: “[J]ust know you lost your virginity to me.” Tr. at 9.


[8]   As to the count of Sexual Misconduct with a Minor, Rivers admitted that,

      when A.C. was between fourteen and sixteen years old, he told her he wanted

      to “hit it from behind.” Id. at 10. Rivers then engaged in anal intercourse with

      A.C. When A.C. said it felt weird and hurt, Rivers instructed A.C. on how to

      position her body for him to engage in anal intercourse. Rivers told A.C. that

      he could not stop himself if she looked at him a certain way. He also told A.C.

      that he loved her, and he made her promise not to tell anyone. He said to A.C.,

      “[Y]ou don’t want to see pawpaw locked up[,] do you?” Id.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1704 | December 19, 2019   Page 4 of 10
[9]    The trial court accepted the plea and entered judgment on the counts. At an

       ensuing sentencing hearing, Rivers argued that “when you look at [his] age, his

       mental health, and tak[e] that into consideration, . . . it should be set forth that

       he has [an] opportunity to redeem himself.” Tr. at 33. Rivers pointed out that

       “[t]here’s GPS monitoring” and “[t]here’s in-home detention with GPS

       monitoring where we can know where he’s at 24/7.” Tr. at 34. Rivers argued

       that, through these types of alternative options, he would be able to “get the

       medical treatment, the mental treatment, and still be punished.” Id. Rivers

       asked the court for the opportunity to “not be behind bars when he dies.” Id.


[10]   In an oral sentencing statement, the court observed that Rivers “is an older

       person who’s not in the best health and the consequences for him in terms for

       the rest of his life may be greater than they would be for a younger person who

       had committed these crimes.” Id. The court noted that Rivers nevertheless

       “chose the time to commit the crime, he chose the setting, he chose the stage of

       his life to do these things, and he will bear the consequences for those choices.”

       Id. The court found two mitigating circumstances—(1) Rivers expressed

       remorse and (2) he pleaded guilty, thereby accepting responsibility and avoiding

       having A.C. experience the burden of a trial. The court found three aggravating

       circumstances—(1) Rivers committed multiple counts that “lasted over a very

       long time,” (2) Rivers has a prior conviction for a sex crime, and (3) Rivers

       “used his position as a trusted member of the victim’s family and as a member

       of the clergy to access the victim and perpetrate these crimes.” Id. at 36.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1704 | December 19, 2019   Page 5 of 10
[11]   The court imposed a sentence of forty-two years for the Class A felony and ten

       years for the Level 4 felony. The court ordered consecutive sentences, imposing

       an aggregate term of fifty-two years in the Indiana Department of Correction.


[12]   Rivers now appeals.



                                 Discussion and Decision
                                      Sentencing Discretion
[13]   Sentencing is principally a discretionary function, and we give “considerable

       deference” to the court’s decision. Cardwell v. State, 895 N.E.2d 1219, 1222

       (Ind. 2008). We review its decision for an abuse of discretion, which “occurs if

       the decision is clearly against the logic and effect of the facts and circumstances

       before the court.” Bethea v. State, 983 N.E.2d 1134, 1139 (Ind. 2013).


[14]   Pursuant to Indiana Code Section 35-38-1-3, “[b]efore sentencing a person for a

       felony, the court must conduct a hearing to consider the facts and

       circumstances relevant to sentencing.” If the court identifies aggravating or

       mitigating circumstances, then the court must enter a “statement of the court’s

       reasons for selecting the sentence that it imposes.” I.C. § 35-38-1-3. A court

       abuses its sentencing discretion by omitting a mitigating circumstance that is

       “clearly supported by the record and advanced for consideration.” Anglemyer v.

       State, 868 N.E.2d 482, 490-91 (Ind. 2007), clarified on reh’g. A court need not

       identify every mitigating and aggravating circumstance, but it must “identify all

       significant mitigating and aggravating circumstances.” Id. at 492-93 (emphasis

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1704 | December 19, 2019   Page 6 of 10
       added). Moreover, a court is not obligated to explain why it did not find a

       circumstance to be significantly mitigating. Id. at 493. Further, “[a]n allegation

       that the trial court failed to identify or find a mitigating factor requires the

       defendant to establish that the mitigating evidence is both significant and clearly

       supported by the record.” Id.


[15]   Rivers argues that the court abused its sentencing discretion because it “failed to

       recognize . . . mental health as a mitigating circumstance.” Br. of Appellant at

       9. Rivers argues his “declining mental health was supported by the record and

       significant.” Id. He points out that he underwent “three separate evaluations

       two of which found him incompetent to stand trial,” and that there was “a

       reference to prior outpatient psychiatric treatment.” Id. He minimizes the

       evidence of malingering and directs our attention to the evidence of brain

       disease “and the possibility of decline of [his] neurocognitive functioning.” Id.


[16]   In sentencing Rivers, the court acknowledged that Rivers was of advanced age

       and “not in the best health.” Id. at 34. However, the court did not find that

       declining health—mental or otherwise—was a significant mitigating factor.

       Although there was evidence of brain disease and Rivers had previously

       reported memory issues, two evaluating doctors opined that Rivers was

       malingering. One doctor suggested that “further reports of significant deficits in

       his competency-related abilities or cognitive functioning should be viewed with

       appropriate skepticism.” App. Vol. II at 86. Thus, in light of the evidence of

       malingering, we cannot say the trial court abused its discretion when it did not

       identify declining mental health as a significant mitigating circumstance.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1704 | December 19, 2019   Page 7 of 10
                                     Inappropriate Sentence
[17]   Indiana Appellate Rule 7(B) permits an appellate court to “revise a sentence

       authorized by statute if, after due consideration of the trial court’s decision, the

       Court finds that the sentence is inappropriate in light of the nature of the offense

       and the character of the offender.” Our review “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.” Cardwell v. State,

       895 N.E.2d 1219, 1225 (Ind. 2008). Moreover, the “principal role” of our

       review is to “attempt to leaven the outliers, . . . not to achieve a perceived

       ‘correct’ result in each case.” Id. Indeed, we “reserve our 7(B) authority for

       exceptional cases,” Livingston v. State, 113 N.E.3d 611, 613 (Ind. 2018), and

       deference to the trial court “should prevail unless overcome by compelling

       evidence portraying in a positive light the nature of the offense (such as

       accompanied by restraint, regard, and lack of brutality) and the defendant’s

       character (such as substantial virtuous traits or persistent examples of good

       character),” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). Ultimately, it is

       the defendant’s burden to persuade us that he received an inappropriate

       sentence. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[18]   Regarding the offenses, “the advisory sentence is the starting point the

       Legislature has selected as an appropriate sentence for the crime committed.”

       Anglemyer, 868 N.E.2d at 494. As to the Class A felony, Rivers received forty-

       two years—which is twelve years above the advisory sentence. See I.C. § 35-50-

       2-4 (permitting a sentence between twenty years and fifty years for a Class A

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1704 | December 19, 2019   Page 8 of 10
       felony, with an advisory sentence of thirty years). As to the Level 4 felony,

       Rivers received ten years—which is four years above the advisory sentence. See

       I.C. § 35-50-2-5.5 (permitting a sentence between two years and twelve years for

       a Level 4 felony, with an advisory sentence of six years). The court imposed

       consecutive sentences, for an aggregate sentence of fifty-two years in prison.


[19]   As to the nature of the offenses, Rivers directs us to no evidence portraying the

       sexual abuse of his step-granddaughter in a positive light. We discern none.

       Rivers points out that A.C. “seemed resilient and empowered” and “gracefully

       forgave Rivers for his crimes.” Br. of Appellant at 11. However, the resilience

       and grace of a victim is not a circumstance supporting sentence revision. See

       Ind. Appellate Rule 7(B) (requiring us to focus on the “nature of the offense”

       and the “character of the offender”—not the character of the victim).


[20]   As to the character of the offender, Rivers notes that he is seventy-nine years

       old and that the aggregate sentence of fifty-two years “is essentially a life

       without parole sentence.” Br. of Appellant 11. Yet, as the court pointed out,

       Rivers elected to commit serious felonies in his seventies. His advanced age

       does not bear on his character—nor does, as Rivers argues, any evidence related

       to deteriorating physical and mental health. Although Rivers expressed

       remorse and elected to plead guilty, he nevertheless took advantage of a

       position of trust and molested his step-granddaughter. He urged her to

       remember losing her virginity to him while asking her to keep things a secret,

       attempting to make A.C. feel bad about the prospect of him going to prison.

       Moreover, Rivers has a prior conviction for attempted sexual assault.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1704 | December 19, 2019   Page 9 of 10
[21]   Having reviewed the matter, Rivers has not persuaded us of exceptional

       circumstances warranting revision of his sentence under Appellate Rule 7(B).

       We therefore decline to disturb the sentence imposed by the trial court.


[22]   Affirmed.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1704 | December 19, 2019   Page 10 of 10
