MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   Jan 26 2016, 5:53 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Laura Paul                                               Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Chandra K. Hein
                                                         Deputy Attorney General of
                                                         Indiana
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

John A. Thompson,                                        January 26, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A01-1508-CR-1294
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable John T. Roach,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         84D01-1409-FA-2419



Bradford, Judge.



                                    Case Summary
Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1294 | January 26, 2016        Page 1 of 6
[1]   On July 28, 2015, Appellant-Defendant John A. Thompson pled guilty to one

      count of Class A felony child molesting. In exchange for Thompson’s guilty

      plea, Appellee-Plaintiff the State of Indiana (the “State”) agreed to dismiss ten

      charges, including nine other felony child molesting or attempted child

      molesting charges, and to cap Thompson’s sentence at no more than a term of

      thirty-five years. The trial court accepted Thompson’s guilty plea and

      sentenced Thompson to a term of thirty years.


[2]   On appeal, Thompson challenges his sentence, arguing that the trial court

      abused its discretion in sentencing him. Specifically, Thompson argues that the

      trial court abused its discretion by considering an inappropriate aggravating

      factor. Finding no abuse of discretion by the trial court, we affirm.



                            Facts and Procedural History
[3]   The factual basis entered during the July 28, 2015 guilty plea hearing provides

      that between May 1, 2013 and June 30, 2014, Thompson, who was at least

      twenty-one years old, “did then and there knowingly or intentionally perform

      or submit to deviate sexual conduct, to-wit: An act involving the sex organ of

      one person and the mouth or anus of another person” with his step-daughter,

      J.M., “a person under fourteen (14) years of age, to-wit: Ages nine to ten, in

      violation of the Indiana Code.” Tr. p. 8.


[4]   On September 11, 2014, the State charged Thompson with three counts of Class

      A felony child molesting, one count of Class C felony child molesting, three


      Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1294 | January 26, 2016   Page 2 of 6
      counts of Level 1 felony child molesting, one count of Level 1 felony attempted

      child molesting, two counts of Level 4 felony child molesting, and one count of

      Class B misdemeanor false informing. On July 28, 2015, Thompson pled guilty

      to one count of Class A felony child molesting. In exchange for Thompson’s

      guilty plea, the State agreed to dismiss the remaining charges. The parties also

      agreed that Thompson’s sentence would be capped at thirty-five years. The trial

      court accepted Thompson’s guilty plea and sentenced him to a term of thirty

      years. This appeal follows.



                                 Discussion and Decision
[5]   Thompson challenges his sentence on appeal, claiming that the trial court

      abused its discretion in sentencing him. Sentencing decisions rest within the

      sound discretion of the trial court and are reviewed on appeal only for an abuse

      of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), modified on

      other grounds on reh’g, 875 N.E.2d 218 (Ind. 2007). “An abuse of discretion

      occurs if 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. (quotation omitted).


              One way in which a trial court may abuse its discretion is failing
              to enter a sentencing statement at all. Other examples include
              entering a sentencing statement that explains reasons for
              imposing a sentence—including a finding of aggravating and
              mitigating factors if any—but the record does not support the
              reasons, or the sentencing statement omits reasons that are
              clearly supported by the record and advanced for consideration,

      Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1294 | January 26, 2016   Page 3 of 6
              or the reasons given are improper as a matter of law. Under
              those circumstances, remand for resentencing may be the
              appropriate remedy if we cannot say with confidence that the
              trial court would have imposed the same sentence had it properly
              considered reasons that enjoy support in the record.


      Id. at 490-91.


[6]   In claiming that the trial court abused its discretion in sentencing him,

      Thompson argues that the trial court relied on an improper aggravating factor.

      Specifically, Thompson asserts that the aggravator in question, that the harm

      caused was greater than that necessary to prove the commission of the offense,

      was a mere generalized reference to the nature and circumstances of the offense

      without any evidence to reflect that J.H. actually suffered greater harm than the

      elements necessary to prove the commission of the offense.


[7]           [The Indiana Supreme Court] has held that the nature and
              circumstances of a crime can be a valid aggravating factor.
              McCann v. State, 749 N.E.2d 1116, 1120 (Ind. 2001). However, a
              trial court must give more than a generalized reference to the
              nature and circumstances. Smith v. State, 872 N.E.2d 169, 179
              (Ind. Ct. App. 2007), trans. denied. The trial court may assign
              aggravating weight to the harm, injury, loss or damage suffered
              by the victim if such harm was significant and greater than the
              elements necessary to prove the commission of the offense. Filice
              v. State, 886 N.E.2d 24, 39 (Ind. Ct. App. 2008), trans. denied.


      Sharkey v. State, 967 N.E.2d 1074, 1078 (Ind. Ct. App. 2012).


[8]   In finding that the harm caused was greater than that necessary to prove the

      commission of the offense was an aggravating factor, the trial court referenced

      Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1294 | January 26, 2016   Page 4 of 6
       the letters submitted to the court from J.H. and J.H.’s mother. In these letters,

       J.H.’s mother described the changes that she has observed in J.H. as a result of

       Thompson’s abuse. J.H.’s mother described that before the abuse began, J.H.

       was a good student who did not get into trouble. However, J.H.’s mother

       indicated that after the abuse began, J.H. stopped acting like a child; started

       getting into trouble, both at home and at school; engaged in self-destructive

       behaviors such as cutting herself, sneaking out, and running away; and even

       started menstruating at the young age of nine. J.H.’s mother further indicated

       that J.H. has been bullied by both children and adults as a result of the abuse

       she suffered.


[9]    J.H.’s letter echoed the harm she suffered that was detailed in her mother’s

       letter to the trial court. J.H.’s letter also indicated that Thompson threatened to

       hurt J.H.’s baby brother if J.H. told her mother of the abuse. While the trial

       court’s oral sentencing statement did not explicitly list the harm done to J.H.

       that was outlined in the letters submitted by J.H. and her mother, it is clear

       from the record that the trial court’s finding was based on these letters. We

       conclude that the trial court properly found the fact that J.H. suffered significant

       harm that was greater than the elements necessary to prove the commission of

       the offense to be an aggravating factor. As such, we further conclude that the

       trial court did not abuse its discretion in sentencing Thompson.


[10]   Moreover, even if it were improper for the trial court to consider this

       aggravating factor, such consideration would be harmless as we can say with

       confidence that the trial court would have imposed the same sentence had it

       Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1294 | January 26, 2016   Page 5 of 6
       properly considered reasons that enjoyed support in the record. In imposing the

       advisory thirty-year sentence, the trial court found three other aggravating

       factors: (1) Thompson had a prior criminal history, (2) Thompson had recently

       committed a probation violation, and (3) in committing his criminal acts,

       Thompson violated a position of trust. Thompson does not challenge any of

       these additional aggravating factors on appeal. The trial court also considered

       as a mitigating factor that by accepting responsibility for his actions and

       pleading guilty, Thompson saved J.H. from having to relive the abuse by

       testifying at trial. The trial court noted, however, that Thompson also received

       substantial benefit from his decision to accept responsibility and plead guilty, as

       the State agreed to dismiss ten other charges, nine of which were felony child

       molestation charges.


[11]   In light of the unchallenged aggravating and mitigating factors found by the

       trial court, we are confident that the trial court would have imposed the same

       sentence even if it had not considered the challenged aggravating factor. As

       such, we need not remand for re-sentencing. See Edrington v. State, 909 N.E.2d

       1093, 1101 (Ind. Ct. App. 2009) (providing that we need not remand for re-

       sentencing when we can say with confidence that the trial court would have

       imposed the same sentence even if it had not considered the improper

       aggravator).


[12]   The judgment of the trial court is affirmed.


       Baker, J., and Pyle, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1294 | January 26, 2016   Page 6 of 6
