MEMORANDUM DECISION
                                                                Aug 04 2015, 9:27 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be 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
Richard Walker                                            Gregory F. Zoeller
Anderson, Indiana                                         Attorney General of Indiana

                                                          Richard C. Webster
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Dustin E. McGuire,                                       August 4, 2015

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         48A02-1501-CR-23
        v.                                               Appeal from the Madison Circuit
                                                         Court
                                                         Cause No. 48C06-1312-FA-2416
State of Indiana,
Appellee-Plaintiff.                                      The Honorable Dennis D. Carroll,
                                                         Judge




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1501-CR-23 | August 4, 2015     Page 1 of 6
                                             Case Summary
[1]   Dustin McGuire appeals his eighty-year sentence for three counts of Class A

      felony child molesting and one count of Class C felony child molesting. We

      affirm.


                                                     Issue
[2]   McGuire raises one issue, which we restate as whether his sentence is

      inappropriate.


                                                     Facts
[3]   McGuire is the father of D.M. and began molesting D.M. in 2012, when D.M.

      was five or six years old. The molestation continued until 2013 when D.M.

      reported the abuse to a teacher. D.M. described McGuire performing anal and

      oral sex on D.M., D.M. performing oral sex on McGuire, and D.M. fondling

      McGuire for McGuire’s sexual gratification. D.M. indicated that the

      molestation was ongoing and had occurred at least ten times.


[4]   On December 19, 2013, the State charged McGuire with three counts of Class

      A felony child molesting and one count of Class C felony child molesting.

      McGuire proceeded to trial, and after a jury was selected and D.M. and his

      sister testified, McGuire pled guilty as charged without the benefit of a plea

      agreement. The trial court sentenced McGuire to forty years on each of the

      Class A felony convictions and to six years on the Class C felony conviction.

      The trial court ordered two of the Class A felony convictions to be served

      consecutively and the remaining Class A felony and Class C felony convictions
      Court of Appeals of Indiana | Memorandum Decision 48A02-1501-CR-23 | August 4, 2015   Page 2 of 6
      to be served concurrently for a total sentence of eighty years. McGuire now

      appeals.


                                                  Analysis
[5]   McGuire argues that his eighty-year sentence is inappropriate. Indiana

      Appellate Rule 7(B) permits us to revise a sentence authorized by statute if,

      after due consideration of the trial court’s decision, we find that the sentence is

      inappropriate in light of the nature of the offense and the character of the

      offender. Although Appellate Rule 7(B) does not require us to be “extremely”

      deferential to a trial court’s sentencing decision, we still must give due

      consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.

      App. 2007). We also understand and recognize the unique perspective a trial

      court brings to its sentencing decisions. Id. “Additionally, a defendant bears

      the burden of persuading the appellate court that his or her sentence is

      inappropriate.” Id.


[6]   The principal role of Appellate Rule 7(B) review “should be to attempt to

      leaven the outliers, and identify some guiding principles for trial courts and

      those charged with improvement of the sentencing statutes, but not to achieve a

      perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225

      (Ind. 2008). We “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.” Id. Whether a sentence is inappropriate

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


      Court of Appeals of Indiana | Memorandum Decision 48A02-1501-CR-23 | August 4, 2015   Page 3 of 6
      the damage done to others, and myriad other factors that come to light in a

      given case. Id. at 1224.


[7]   McGuire argues that the nature of the offenses does not require such a lengthy

      sentence because he did not beat or severely brutalize D.M. and did not use

      excessive force or injure D.M. Be that as it may, McGuire engaged in anal and

      oral intercourse with his dependent son and required D.M. to fondle him.

      D.M. was five or six years old when the abuse began, and it occurred at least

      ten times and continued for at least a year. D.M. described the anal intercourse

      as painful and having diarrhea afterward. D.M. also described his younger

      sister interrupting the abuse on one occasion and McGuire threatening to whip

      D.M. if he told anyone about the abuse. Despite the lack of excessive force, we

      are not convinced the nature of the offense warrants a reduction of McGuire’s

      sentence.


[8]   Regarding McGuire’s character, we acknowledge that he pled guilty and

      apologized for his actions. He did so, however, only after the State prepared for

      trial, a jury was empaneled, and D.M. and his sister testified against their father

      in open court. Under these circumstances, McGuire’s guilty plea sheds little

      positive light on his character.


[9]   As for McGuire’s claim of poor mental health based on his anxiety, depression,

      and a seizure disorder, he offers no insight as to how his mental health

      impacted his ability to appreciate the wrongfulness of his actions. In fact, the

      record indicates that McGuire completed high school and that his medication


      Court of Appeals of Indiana | Memorandum Decision 48A02-1501-CR-23 | August 4, 2015   Page 4 of 6
       did not affect his ability to think clearly at the time of his guilty plea. Further,

       the trial court found nothing about McGuire’s mental health issues “that

       interferes with his ability to comprehend these proceedings, be responsible for

       his own behavior and his responsibility to perform that’s consistent with what’s

       expected of people.” Tr. p. 48. McGuire’s mental health issues do not render

       his sentence inappropriate.


[10]   Regarding his criminal history, McGuire describes it as “minimal” because it

       consists of a single Class A misdemeanor conviction from 2011. Appellant’s

       Br. p. 10. A more thorough investigation, however, reveals that McGuire was

       charged with Class D felony battery resulting in bodily injury and Class D

       felony strangulation in an incident also involving D.M. McGuire pled guilty to

       the strangulation allegation and was granted alternative misdemeanor

       sentencing, reducing the offense to a Class A misdemeanor. Although

       McGuire’s criminal history is not extensive, it does not reflect positively on his

       character as it relates to the current offenses against D.M. and previous leniency

       in sentencing.


[11]   Finally, McGuire compares his case to Carter v. State, 31 N.E.3d 17, 25 (Ind. Ct.

       App. 2015), in which Carter was accused of molesting his young stepson and

       convicted of three counts of Class A felony child molesting and two counts of

       Class C felony child molesting and sentenced to ninety-eight years. After

       analyzing the nature of the offense and the character of the offender, a panel of

       this court concluded that Carter’s sentence was inappropriate and revised his

       sentence to sixty-eight years. Carter, 31 N.E.3d at 33. The Carter analysis,

       Court of Appeals of Indiana | Memorandum Decision 48A02-1501-CR-23 | August 4, 2015   Page 5 of 6
       however, does not compel a reduction of McGuire’s sentence where McGuire

       was D.M.’s father, not his step-father, D.M. was slightly younger than the

       victim in Carter, and McGuire’s criminal history includes a prior victimization

       of D.M. Further, the sentence we revised in Carter was eighteen years longer

       than the sentence McGuire received. For these reasons, we find Carter

       distinguishable. When considering the nature of the offenses and the character

       of the offender, McGuire has not established that his sentence is inappropriate.


                                                 Conclusion
[12]   McGuire has not established that his eighty-year sentence is inappropriate. We

       affirm.


[13]   Affirmed.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1501-CR-23 | August 4, 2015   Page 6 of 6
