                                                                                         FILED
                                                                                     Sep 29 2016, 9:34 am

                                                                                         CLERK
                                                                                     Indiana Supreme Court
                                                                                        Court of Appeals
                                                                                          and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Timothy P. Broden                                          Gregory F. Zoeller
      Lafayette, Indiana                                         Attorney General of Indiana

                                                                 Tyler G. Banks
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jakob Robinson,                                            September 29, 2016
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 79A02-1603-CR-522
              v.                                                 Appeal from the Tippecanoe
                                                                 Superior Court
      State of Indiana,                                          The Honorable Steven P. Meyer,
      Appellee-Plaintiff.                                        Judge
                                                                 Trial Court Cause No.
                                                                 79D02-1503-F5-16



      Najam, Judge.


                                        Statement of the Case
[1]   While a teacher and coach at McCutcheon High School in Tippecanoe County,

      Jakob Robinson engaged a student is numerous acts of sexual intercourse and


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      deviant sexual conduct. After the student reported Robinson’s behavior to local

      authorities, the State charged Robinson with five counts of child seduction,

      each as a Level 5 felony. Robinson pleaded guilty to each of those counts and

      the trial court sentenced him to an aggregate term of eight years, with five years

      executed in the Department of Correction and three years suspended to

      probation.


[2]   On appeal, Robinson asserts that his sentence is inappropriate in light of the

      nature of his offenses and his character. We conclude that his sentence is not

      inappropriate. As such, we affirm.


                                  Facts and Procedural History
[3]   Between October of 2014 and January of 2015, Robinson, who was thirty-seven

      years old at the time, worked as a teacher and football coach at McCutcheon

      High School. K.F., a student at the school, was sixteen years old, and she was

      a teacher’s assistant for Robinson. K.F.’s father had died prior to K.F.’s birth,

      and Robinson “became a sort of father figure for her.” Appellant’s App. Vol.

      IV at 12.


[4]   During that time, Robinson engaged K.F. in numerous sexual encounters,

      which included intercourse, digital penetration, and oral sex. Robinson

      engaged K.F. in those encounters during school hours and after school hours.

      He also engaged her in those encounters after school hours but before

      extracurricular events were scheduled to begin.



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[5]   Robinson was married but in the dissolution process. His wife had a restraining

      order against him, and he was living with his parents. On at least one occasion,

      Robinson had sexual intercourse with K.F. in his parents’ home. On that

      occasion, Robinson’s two minor daughters were spending the night at his

      parents’ home with him, and, while his parents and daughters were asleep, he

      left the house to pick K.F. up and bring her back to his parents’ home.


[6]   Robinson purchased clothing and jewelry for K.F. He met with K.F. in public,

      sometimes with his daughters present. Robinson would “confide in her” about

      “the stresses of [his] failed marriage,” while she “would confide in [Robinson]

      when she was emotional” about her father’s death. Tr. at 40. Robinson told

      K.F. he loved her.


[7]   On January 9, 2015, K.F. informed the Tippecanoe County Sheriff’s

      Department of her relationship with Robinson. Thereafter, the State charged

      Robinson with five counts of child seduction, each as a Level 5 felony.

      Robinson pleaded guilty to each of those five counts without the benefit of a

      plea agreement.


[8]   The trial court accepted Robinson’s guilty plea and, on September 3, 2015,

      entered the following sentencing statement:


              The Court finds as aggravating factors: the gap in age between
              the Defendant and the victim; the Defendant was in a
              relationship of trust with the victim not only as her childcare
              provider, but became a father figure to this fatherless victim and
              Defendant nurtured, developed[,] and manipulated the
              relationship for over two years; the emotional trauma,

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              humiliation[,] and shame suffered by the victim; the repetitive
              nature of the offenses; Defendant recently violated pre-trial
              release by violating the No Contact Orders entered [on behalf of]
              his Wife and children; and the seriousness of the offenses by the
              manner in which Defendant carried out the crime while his
              parents and own children were present.


              The Court finds as mitigating factors: the Defendant is a
              smart/intelligent man with a good work history as a
              teacher/coach; Defendant has led a law abiding life with no
              previous criminal history; Defendant pled guilty without the
              benefit of a Plea Agreement; Defendant has shown remorse; the
              Defendant has good community support; and Defendant has
              family support from his parents and siblings.


      Appellant’s App. Vol. II at 18-19. The court then ordered Robinson to serve

      eight years, with five years executed and three years suspended to probation.

      This appeal ensued.


                                      Discussion and Decision
[9]   Robinson asserts that his sentence is inappropriate in light of the nature of the

      offenses and his character. Indiana Appellate Rule 7(B) permits an Indiana

      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.” We assess the trial court’s recognition or nonrecognition of

      aggravators and mitigators as an initial guide to determining whether the

      sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind.

      Ct. App. 2006). The principal role of appellate review is to “leaven the

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       outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). A defendant

       must persuade the appellate court that his or her sentence has met the

       inappropriateness standard of review. Roush v. State, 875 N.E.2d 801, 812 (Ind.

       Ct. App. 2007).


[10]   Here, Robinson committed five acts of child seduction, each as a Level 5

       felony. A Level 5 felony carries a sentencing range of one to six years’

       imprisonment, with an advisory term of three years. Ind. Code § 35-50-2-6(b)

       (2014). Thus, for his five offenses Robinson faced a maximum possible term of

       thirty years’ imprisonment. In ordering Robinson to serve eight years, with

       only five years executed, the trial court relied on the following aggravating

       circumstances: the age difference between Robinson and K.F.; Robinson’s

       abuse of his position of trust; Robinson’s manipulation of K.F.; the harm K.F.

       has endured; the repetitive nature of Robinson’s offenses; the seriousness of the

       manner in which Robinson committed his crimes; and the fact that, after the

       State had filed its charges against Robinson, he violated his Wife’s no-contact

       order. The court also identified the following mitigating circumstances:

       Robinson’s guilty plea; his lack of a prior criminal history; his show of remorse;

       and his good work history and community and family support.


[11]   Robinson has not met his burden on appeal to demonstrate that his sentence is

       inappropriate. Regarding the nature of his offenses, Robinson asserts that the

       sentence imposed is too harsh because “all offenses related to the same victim

       and involved [a] relatively narrow time frame . . . .” Appellant’s Br. at 5.

       Robinson also suggests that the trial court improperly considered the position-

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       of-trust aggravator because, according to Robinson, the facts as they related to

       his position over K.F. did not exceed that necessary to prove an element of the

       offense of child seduction.


[12]   We easily reject those arguments. The fact that Robinson, over several months,

       repeatedly victimized a minor who trusted him does not mitigate his sentence.

       And Robinson’s suggestion that his obvious position of trust over K.F. was

       nothing more than that necessary to establish an element of the offense of child

       seduction is not supported by cogent reasoning. See Ind. Appellate Rule

       46(A)(8)(a); see also McElroy v. State, 865 N.E.2d 584, 589-90 (Ind. 2007) (“when

       evaluating the nature of the offense, the trial court may properly consider the

       particularized circumstances of the factual elements as aggravating factors”)

       (internal quotation marks omitted). Accordingly, his sentence is not

       inappropriate in light of the nature of his offenses.


[13]   Neither is Robinson’s sentence inappropriate in light of his character. On this

       point, Robinson emphasizes his guilty plea, lack of criminal history, and

       community support. He also asserts that the harm endured by K.F., “while

       certainly not inconsequential, . . . is not atypical of what victims of sexual

       assaults experience” and, as such, “it is presumed the legislature considered”

       such issues in setting the advisory sentence for an offense. Appellant’s Br. at 7.

       And Robinson asserts that his violation of the no-contact order was not

       significant; he violated the order when he “placed a check for child

       support . . . in his estranged Wife’s mailbox” rather than making that payment

       through the clerk’s office. Id.

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[14]   Robinson’s reliance on his guilty plea, lack of criminal history, and, to a lesser

       degree, his community support better explain why he received the sentence he

       did instead of receiving a higher term.1 Further, it was within the trial court’s

       discretion to consider the degree of harm endured by K.F. as well as Robinson’s

       inability to follow simple court instructions to stay away from his wife.

       Regardless, however, Robinson’s manipulation of K.F. and his abuse of his

       position of trust over her plainly reflect his poor character. The sentence the

       trial court imposed after taking all of those facts into account is not

       inappropriate. Thus, we affirm.


[15]   Affirmed.


       Vaidik, C.J., and Baker, J., concur.




       1
         By comparison, the Indiana Supreme Court recently held that a three-year executed sentence for child
       seduction, as a Level 5 felony, was not inappropriate where the defendant, on one occasion, “asked his 14-
       year-old niece to give him a lap dance, she declined, but [the defendant] then had her sit on his lap while he
       kissed her on the cheek and tickled her.” Bess v. State, --- N.E.3d ---, No. 09S02-1609-CR-484 (Ind. Sept. 14,
       2016) (per curiam).

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