MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                               Jul 02 2020, 10:16 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
Michael B. Troemel                                        Curtis T. Hill, Jr.
Lafayette, Indiana                                        Attorney General
                                                          Caroline G. Templeton
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Justin R. Brightwell,                                     July 2, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2044
        v.                                                Appeal from the
                                                          Clinton Circuit Court
State of Indiana,                                         The Honorable
Appellee-Plaintiff                                        Bradley K. Mohler, Judge
                                                          Trial Court Cause No.
                                                          12C01-1704-F1-334



Vaidik, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2044 | July 2, 2020                     Page 1 of 10
                                           Case Summary
[1]   Following a jury trial, Justin Brightwell was convicted of two counts of Level 1

      felony child molesting and two counts of Class A felony child molesting, and

      the trial court imposed an aggregate sentence of 105 years. Brightwell now

      appeals, arguing that his sentence is inappropriate. We affirm.



                            Facts and Procedural History
[2]   In 2006, sixteen-year-old Brightwell was found to be a juvenile delinquent for

      committing what would be two counts of Class B felony burglary if committed

      by an adult. As part of the disposition in that case, Brightwell was required to

      participate in counseling. See Tr. Vol. III p. 132. Through counseling, he was

      diagnosed as having sexually abusive behaviors and had to complete a sexually

      abusive youth program. Appellant’s App. Vol. II p. 23.


[3]   Brightwell’s son, Z.B., was born in February 2008. Brightwell had been in a

      relationship with Z.B.’s mother, M.H., but the relationship ended before Z.B.

      was born. Z.B. has always lived with his mother but regularly visited Brightwell

      on the weekends.


[4]   In 2009, Brightwell was convicted of Class B felony dealing in a controlled

      substance. He was sentenced to ten years, with six years executed and four

      years suspended to probation. He served one-and-a-half years in the

      Department of Correction before being released to serve the remaining executed

      portion of his sentence on work release and/or community corrections.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2044 | July 2, 2020   Page 2 of 10
[5]   In 2010, Brightwell began dating M.S. Soon after, M.S. and her three-year-old

      son, S.R., moved in with Brightwell. The relationship lasted about a year, and

      in 2011, M.S. and S.R. moved out. By then, Brightwell had become a “father

      figure” to S.R., and S.R. visited Brightwell on the weekends until he was about

      five or six years old. Tr. Vol. II p. 227. At some point thereafter, Brightwell was

      reincarcerated in connection with his Class B felony dealing-in-a-controlled-

      substance conviction. By 2016, he had again been released and was placed on

      supervised probation. He had also restarted his weekend visits with Z.B.


[6]   On December 2, 2016, eight-year-old Z.B. went to Brightwell’s house for a

      weekend visit. When Z.B. was returned to his mother on December 4, he told

      her that Brightwell had molested him. The next day, December 5, M.H. and

      Z.B. went to the Frankfort Police Department to report the molestation. A

      forensic interview of Z.B. was conducted that day. During the interview, Z.B.

      said that while he was visiting Brightwell on December 2, Brightwell told him

      to go upstairs to Brightwell’s bedroom and take his clothes off. 1 See Ex. 1; see

      also Appellant’s App. Vol. II p. 16. Z.B. said that Brightwell then took his own

      clothes off, placed Z.B. face down on the bed, and put his penis into Z.B.’s

      “butt.” Appellant’s App. Vol. II p. 16; see also Ex. 1. Z.B. said that “this hurt,

      and he cried.” Appellant’s App. Vol. II p. 16. Z.B. said that Brightwell then

      carried him into the bathroom where Brightwell “again put his ‘thing’ into




      1
        The parties agreed that Z.B.’s forensic interview would be played for the jury instead of having him give live
      testimony. See Tr. Vol. II p. 28.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2044 | July 2, 2020                       Page 3 of 10
      Z.B.’s butt, moving back and forth and causing Z.B.’s head to hit the wall.” Id.

      Z.B. explained that Brightwell then told him to “clean his back, butt, and

      private parts good.” Id. Z.B. also disclosed that there was another boy, S.R.,

      who he had seen being molested by Brightwell. After his forensic interview,

      Z.B. was taken to Riley Hospital for Children for a sexual-assault exam. A

      detective spoke with Brightwell, who denied the allegations.


[7]   The next day, December 6, the detective spoke with S.R.’s mother, who said

      that she never suspected Brightwell of touching S.R. but that S.R. “had started

      self-stimulating himself, and these behaviors ceased when she left” Brightwell in

      2011. Id. at 17. Four months later, in March 2017, S.R. disclosed to his

      therapist that Brightwell had been molesting him. A forensic interview of S.R.

      was conducted, and S.R. disclosed that Brightwell had molested him when he

      was only three or four years old. S.R. also said that there was one instance

      when Brightwell had “spit in [his] hand and touched himself before putting his

      penis into ‘[S.R.] and Z.B.’s butt.’”2 Id. During his interview, S.R. was nervous

      and asked the interviewer, “Please don’t tell the cops.” Tr. Vol. III p. 87. Later

      that same month, lab results from Z.B.’s sexual-assault exam were returned,

      showing Brightwell’s DNA on the back of Z.B.’s underwear.


[8]   The detective re-interviewed Brightwell and explained that he had new

      information, including the new allegations made by S.R. and the lab results



      2
       The parties agreed that S.R.’s forensic interview would be played instead of having him give live testimony.
      See Tr. Vol. II p. 28.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2044 | July 2, 2020                     Page 4 of 10
       from Z.B.’s sexual-assault exam, showing Brightwell’s DNA on the back of

       Z.B.’s underwear. This time, Brightwell admitted molesting Z.B. on three

       occasions but denied doing anything to S.R. Brightwell said that the first time

       he molested Z.B. was sometime in 2012 (when Z.B. would have been three or

       four years old), and that he “rubbed his penis between [Z.B.’s] butt che[e]ks

       until he climaxed.” Appellant’s App. Vol. II p. 17; see also Ex. 11. Brightwell

       said that the second time he molested Z.B. was in August 2016, and that he

       “had Z.B. perform oral sex on him, but was unsure if he climaxed.” Appellant’s

       App. Vol. II p. 17; see also Ex. 11. Brightwell stated that the final incident

       occurred on December 2, 2016—just as Z.B. had reported—and that he “had

       Z.B. manually stimulate his penis with Z.B.’s hand before placing it partially

       into Z.B.’s anus.” Appellant’s App. Vol. II p. 17; see also Ex. 11.


[9]    In April 2017, the State charged Brightwell with two counts of Level 1 felony

       child molesting, one count for molesting Z.B. in August 2016 and the other for

       molesting Z.B. in December 2016, and two counts of Class A felony child

       molesting, one count for molesting Z.B. in 2012 and the other for molesting

       S.R. in 2012. At the time Brightwell was alleged to have committed the 2016

       offenses, he was on probation for his Class B felony dealing-in-a-controlled-

       substance conviction, so the State filed a petition alleging that he violated his

       probation by committing new crimes. In April 2019, a jury trial was held, and

       the jury found Brightwell guilty on all four counts.


[10]   At sentencing in June 2019, the trial court found no mitigators and the

       following aggravators: (1) Brightwell’s criminal history (a juvenile proceeding,

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2044 | July 2, 2020   Page 5 of 10
       including a true finding for two counts of Class B felony burglary if committed

       by an adult and one conviction for Class B felony dealing in a controlled

       substance as an adult); (2) the fact that Brightwell was on probation for Class B

       felony dealing in a controlled substance when he committed the 2016 offenses;

       (3) the fact that Brightwell was charged with Level 5 felony attempted

       obstruction of justice while incarcerated and awaiting trial in this case; (4) the

       fact that the harm, injury, loss, or damage done to the victim was greater than

       necessary to establish the elements of the offense, specifically that Brightwell

       “caused the physical pain of ramming [Z.B.’s] head into the bed board or the

       wall”; (5) the fact that the victims were both less than twelve years of age; and

       (6) the fact that Brightwell was in a position of care, custody, or control as

       Z.B.’s father and as a father figure to S.R. Tr. Vol. III pp. 144-45. The trial

       court also noted that Z.B. and S.R. both reported being molested in 2012 when

       they were “real young”—approximately three or four years old—and that there

       was a gap until 2016, during which time Brightwell was in custody in

       connection with his Class B felony dealing-in-a-controlled-substance conviction.

       Id. at 146. The trial court concluded that “[a]bout the only time you haven’t

       been molesting [was during] your other case. Uhm, and so there’s a -- real risk

       to society for you being out.” Id.


[11]   The court sentenced Brightwell to thirty-five years for each count. It ordered

       Counts 1 and 2 to be served concurrently, Count 3 to be served consecutive to

       Counts 1 and 2, and Count 4 to be served consecutive to Count 3, for an

       aggregate term of 105 years. The trial court noted that it was ordering


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2044 | July 2, 2020   Page 6 of 10
       consecutive sentences for Counts 3 and 4 because there were two separate

       victims. See id.


[12]   Brightwell now appeals his sentence.



                                  Discussion and Decision
[13]   Brightwell contends that his 105-year sentence amounts to a life sentence and

       that a life sentence is inappropriate in this case. See Appellant’s Br. p. 14. Under

       Indiana Appellate Rule 7(B), this Court “may 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.” “Whether a sentence is inappropriate ultimately

       turns on the culpability of the defendant, the severity of the crime, the damage

       done to others, and a myriad of other factors that come to light in a given case.”

       Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014) (citing Cardwell v.

       State, 895 N.E.2d 1219, 1224 (Ind. 2008)). Because we generally defer to the

       judgment of trial courts in sentencing matters, defendants have the burden of

       persuading us that their sentences are inappropriate. Schaaf v. State, 54 N.E.3d

       1041, 1044-45 (Ind. Ct. App. 2016).


[14]   The sentencing range for a Class A felony is twenty to fifty years, with an

       advisory sentence of thirty years. Ind. Code § 35-50-2-4(a). The sentencing

       range for Level 1 felony child molesting—involving sexual intercourse or

       deviate sexual conduct—is twenty to fifty years, with an advisory sentence of


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2044 | July 2, 2020   Page 7 of 10
       thirty years. Ind. Code § 35-50-2-4(c). As such, Brightwell faced as many as 200

       years. The trial court sentenced him to thirty-five years on each count, five

       years above the advisory sentence for each, with three of those terms to run

       consecutively. This resulted in an aggregate sentence of 105 years, compared to

       the 200-year sentence that he could have received.


[15]   There is nothing about Brightwell’s offenses that requires a revision of his

       sentence. Brightwell admitted molesting his son, Z.B., on three occasions:

       rubbing his penis between Z.B.’s butt cheeks until he climaxed in 2012, forcing

       Z.B. to perform oral sex on him in August 2016, and anally penetrating Z.B. in

       December 2016. The trial court also found that Brightwell was in a position of

       care, custody, and control for both of his victims. Specifically, Brightwell took

       advantage of his weekend visits with his son to molest him. He also molested

       S.R., a young boy who saw Brightwell as a father figure, during his weekend

       visits. Years later, S.R. was still worried about Brightwell, asking the forensic

       interviewers not to tell police about the molestations. See Tr. Vol. III p. 87. The

       trial court also found that the harm done was greater than the elements required

       to establish the offense. Specifically, the trial court found that Brightwell caused

       Z.B. physical pain during the December 2016 molestation by “ramming” his

       son’s head into the “bed board or wall.” Id. at 144. Finally, the court found that

       both Z.B. and S.R. were under twelve years old when Brightwell molested

       them. Specifically, Z.B. and S.R. were both only three or four years old when

       Brightwell molested them in 2012. And Z.B. was only eight years old when

       Brightwell resumed molesting him in 2016.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2044 | July 2, 2020   Page 8 of 10
[16]   Regarding Brightwell’s character, his criminal history supports his sentence.

       According to the pre-sentence investigation report, twenty-nine-year-old

       Brightwell had been convicted of Class B felony dealing in a controlled

       substance and had a true finding that resulted in a juvenile adjudication for

       what would be two counts of Class B felony burglary if committed by an adult.

       The pre-sentence investigation report also shows that as part of the disposition

       of his juvenile case, Brightwell had to participate in counseling and was

       diagnosed as having sexually abusive behaviors. Following his diagnosis,

       Brightwell was required to complete a sexually abusive youth program. See

       Appellant’s App. Vol. II p. 26. Clearly, Brightwell did not benefit from that

       program. Moreover, when Brightwell committed the 2012 molestations, he was

       still serving the executed portion of his sentence for his Class B felony dealing-

       in-a-controlled substance conviction. He was on probation for that same

       conviction when he committed the 2016 molestations. Finally, as the trial court

       noted, about the only time that Brightwell wasn’t molesting his victims was

       while he was in custody in connection with his conviction for Class B felony

       dealing in a controlled substance. See Tr. Vol. III p. 146. The trial court

       concluded that this showed that Brightwell had failed to reform his behaviors

       while incarcerated and was a “real risk to society.” Id.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2044 | July 2, 2020   Page 9 of 10
[17]   For all of these reasons, we cannot say that Brightwell’s 105-year aggregate

       sentence is inappropriate.3


[18]   Affirmed.


       May, J., and Robb, J., concur.




       3
         Brightwell was also ordered to serve 1,200 days for violating his probation for his Class B felony drug-
       dealing conviction, consecutive to his 105-year sentence in this case. Brightwell repeatedly mentions this fact
       in his brief, but it does not change our conclusion that the 105-year sentence is not inappropriate. To the
       extent he seeks to separately challenge the probation sanction, he did not file an appeal in that cause number,
       and in any event, probation sanctions are not subject to Rule 7(B) review. See Jones v. State, 885 N.E.2d 1286,
       1290 (Ind. 2008) (probation-violation sanctions are not criminal sentences contemplated by Indiana
       Appellate Rule 7(B)).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2044 | July 2, 2020                     Page 10 of 10
