MEMORANDUM DECISION
                                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D), this                                 Dec 19 2018, 8:38 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                               CLERK
                                                                             Indiana Supreme Court
purpose of establishing the defense of res judicata,                            Court of Appeals
                                                                                  and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Jennifer A. Joas                                       Curtis T. Hill, Jr.
Madison, Indiana                                       Attorney General of Indiana
                                                       Jesse R. Drum
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Allen Ray McFadden,                                        December 19, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-1793
        v.                                                 Appeal from the Jefferson Circuit
                                                           Court
State of Indiana,                                          The Hon. Darrell M. Auxier,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           39C01-1801-FA-61



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1793 | December 19, 2018                    Page 1 of 5
                                          Case Summary
[1]   In 2008 or 2009, Allen McFadden caused his daughter to expose her genitalia

      to him so that he could masturbate to the view. The State charged McFadden

      with, and he pled guilty to, Class C felony sexual misconduct with a minor and

      was sentenced to six years of incarceration. McFadden contends that his

      sentence is inappropriately harsh. Because we disagree, we affirm.



                            Facts and Procedural History
[2]   McFadden has three daughters: A.M., C.M., and H.M. At some point in 2008

      or 2009, McFadden asked C.M. to expose her genitalia so that he could

      masturbate to them. In 2017, based on a report made to school officials by

      H.M., police interviewed McFadden, and he confessed to masturbating to

      C.M.’s genitalia and doing the same to A.M. and H.M.


[3]   On January 22, 2018, the State charged McFadden with Class A felony child

      molesting and Class C felony sexual misconduct with C.M., who was a minor

      at the time of the offense. On March 28, 2018, pursuant to a plea agreement,

      McFadden pled guilty to Class C felony sexual misconduct with a minor. The

      trial court found as a mitigating circumstance that McFadden had not been

      convicted of a crime since 2008. The court found as aggravating circumstances

      “that sexual misconduct occurred on multiple occasions and with other

      victims,” that McFadden “was in a position of having the care, custody and

      control of the victim of the offense,” and “that these acts were taken with his



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1793 | December 19, 2018   Page 2 of 5
      own daughter showing an even more depraved instinct.” Tr. pp. 44, 45. The

      trial court concluded that the aggravating circumstances outweighed the

      mitigating and sentenced McFadden to six years of incarceration.



                                Discussion and Decision
[4]   McFadden contends that his sentence is inappropriately harsh. This court will

      revise a sentence only if, upon “due consideration of the trial court’s decision”

      it nonetheless appears that “the sentence is inappropriate in light of the nature

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

      Anglemyer v. State, 868 N.E.2d 482, 490–91 (Ind. 2007), clarified on reh’g, 875

      N.E.2d 218 (2007). The “nature of the offense” refers to the defendant’s acts in

      comparison with the elements of his offense, Cardwell v. State, 895 N.E.2d 1219,

      1224 (Ind. 2008), while “character of the offender” refers to general sentencing

      considerations and the relevant aggravating and mitigating circumstances.

      Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014).


[5]   McFadden has the burden to show his sentence is inappropriate in light of both

      the nature of the offense and his character. Gil v. State, 988 N.E.2d 1231, 1237

      (Ind. Ct. App. 2013). This can only be done with “compelling evidence

      portraying in a positive light the nature of the offense … and the defendant’s

      character.” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). McFadden pled

      guilty to Class C felony sexual misconduct with a minor and was sentenced to

      six years of incarceration, out of a possible maximum of eight. See Ind. Code §

      35-50-2-6(a).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1793 | December 19, 2018   Page 3 of 5
[6]   As for the nature of the offense, it is, in our view, significantly worse than a

      “run-of-the-mill” act of sexual misconduct with a minor. First and foremost,

      we cannot ignore the fact that his victim was his biological daughter, a fact not

      covered by the offense as charged. Additionally, McFadden’s age at the time,

      which would have been anywhere from thirty-five to thirty-seven years old, was

      far higher than the age of twenty-one years old required to elevate his crime to a

      Class C felony. See Ind. Code § 35-42-4-9(b)(1) (2007) (“[T]he offense is […] a

      Class C felony if it is committed by a person at least twenty-one (21) years of

      age[.]”). The nature of McFadden’s offense justifies his six-year sentence.


[7]   As for McFadden’s character, we first note that he has a history of criminal

      convictions, which does him no credit. McFadden has convictions for public

      intoxication in 1999, operating a vehicle with a blood alcohol content of 0.15

      g/mL or greater in 2003, and public intoxication in 2008 and has admitted to

      illegally using drugs. Moreover, because the plea agreement in this case does

      not limit the facts that may be considered, neither we nor the trial court are

      required to ignore indications of other crimes that illuminate McFadden’s

      character. See Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (where the

      pleas agreement did not limit what the trial court could consider in sentencing,

      “it is not necessary for a trial court to turn a blind eye to the facts of the incident

      that brought the defendant before them”). The State originally charged

      McFadden with Class A felony child molesting, a charged that was based on

      H.M.’s report that he had performed oral sex on her and A.M. and caused them

      to do the same to him. Although McFadden claimed that he could not



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1793 | December 19, 2018   Page 4 of 5
      remember if the oral sex occurred, he did confess that he caused not just C.M.,

      but all three of his daughters to expose their genitalia to him so that he could

      masturbate. The fact that McFadden admittedly sexually exploited all three of

      his biological daughters does not, to the say the least, speak well of his

      character. McFadden’s character also fully justifies his six-year sentence.

      McFadden has failed to convince us that his six-year sentence for Class C

      felony sexual misconduct with a minor is inappropriate.


[8]   The judgement of the trial court is affirmed.


      Bailey, J., and Brown, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1793 | December 19, 2018   Page 5 of 5
