Bruce W. Powell v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Jul 07 2016, 8:36 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Erin L. Berger Gregory F. Zoeller
Evansville, Indiana Attorney General of Indiana
Karl Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bruce W. Powell, July 7, 2016
Appellant-Defendant, Court of Appeals Case No.
87A01-1512-CR-2160
v. Appeal from the Warrick Circuit
Court
State of Indiana, The Honorable Greg A. Granger,
Appellee-Plaintiff. Judge
Trial Court Cause No.
87C01-1504-F5-133
Robb, Judge.
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Case Summary and Issue
[1] Bruce Powell pleaded guilty to child solicitation, a Level 5 felony, and
dissemination of matter harmful to minors, a Level 6 felony. The trial court
ordered Powell to serve an aggregate sentence of seven years in the Department
of Correction. Powell appeals his sentence, raising two issues, one of which we
find dispositive: whether his sentence is inappropriate in light of the nature of
the offenses and his character.1 Concluding Powell’s sentence is not
inappropriate, we affirm.
Facts and Procedural History
[2] Powell is O.S.B.’s uncle. On April 7, 2015, twelve-year-old O.S.B. disclosed
Powell had asked her to touch his penis and had attempted to view
pornographic material with her on several occasions. O.S.B.’s father called the
police, and the State charged Powell with two counts of child solicitation and
two counts of dissemination of matter harmful to minors. Thereafter, the State
moved to amend the charging information by adding five counts—three counts
of solicitation and two counts of dissemination. The trial court permitted the
amendment and dismissed the charges the State initially filed.
1
Powell also raises the issue of whether he waived the right to appeal his sentence. Because we conclude his
sentence is not inappropriate, we need not address the waiver issue.
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[3] Powell pleaded guilty to one count of child solicitation as a Level 5 felony and
one count of dissemination of matter harmful to minors as a Level 6 felony. In
exchange, the State dismissed the remaining charges. The agreement left
sentencing to the trial court’s discretion. During the sentencing hearing, the
trial court did not find any factors to be mitigating and considered the following
factors aggravating: (1) the significant harm suffered by the victim; (2) Powell’s
criminal history, consisting of prior convictions for public nudity and failure to
stop after an accident; (3) that Powell was in a position of trust in relation to the
victim; and (4) that the victim was less than twelve years old when Powell
exposed her to pornographic material. Concluding the aggravators outweighed
the absence of mitigators, the trial court sentenced Powell to five years for
solicitation and two years for dissemination, to be served consecutively, for an
aggregate sentence of seven years. This appeal followed.
Discussion and Decision
I. Standard of Review
[4] Powell contends his sentence is inappropriate in light of the nature of the
offenses and his character. Indiana Appellate Rule 7(B) provides, “The 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.” The defendant
bears the burden of persuading this court that his or her sentence is
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether
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we regard a sentence as inappropriate turns on “the culpability of the defendant,
the severity of the crime, the damage done to others, and myriad other factors
that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224
(Ind. 2008). We “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” in reviewing a defendant’s sentence. Id. at 1225. The
question is not whether another sentence is more appropriate, but rather
whether the sentence imposed in inappropriate. King v. State, 894 N.E.2d 265,
268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless
overcome by compelling evidence portraying in a positive light the nature of the
offense (such as accompanied by restraint, regard, and lack of brutality) and the
defendant’s character (such as substantial virtuous traits or persistent examples
of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
II. Inappropriate Sentence
[5] As to the nature of the offense, the advisory sentence is the starting point the
legislature has selected as an appropriate sentence for the crime committed.
Childress, 848 N.E.2d at 1081. Powell pleaded guilty to child solicitation, a
Level 5 felony, and dissemination of matter harmful to minors, a Level 6
felony. A Level 5 felony carries a possible sentence of one to six years, with an
advisory sentence of three years. Ind. Code § 35-50-2-6(b). A Level 6 felony
carries a possible sentence of six months to two and one-half years, with an
advisory sentence of one year. Ind. Code § 35-50-2-7(b). The trial court
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sentenced Powell to five years for solicitation and two years for dissemination,
to be served consecutively, for an aggregate sentence of seven years.
[6] We conclude the nature of the offenses supports the sentence the trial court
imposed. We first note O.S.B. was only twelve years old when Powell asked
her to touch his penis. She was only eleven years old when he attempted to
view pornographic material with her. See Hamilton v. State, 955 N.E.2d 723,
727 (Ind. 2011) (stating “younger ages of victims tend to support harsher
sentences”). Second, Powell is O.S.B.’s uncle. He held a position of trust with
respect to the victim and her family, and he violated that trust. See id. (noting a
harsher sentence is also appropriate where the defendant has violated a position
of trust arising from a close family relationship). Prior to her disclosure, O.S.B.
visited Powell’s house on regular basis. On several occasions Powell picked her
up from school or on her way home from school. Now, O.S.B. is scared to
walk home from school and has difficulty trusting others. During sentencing,
O.S.B.’s father stated he is “afraid to let her around anyone” because he trusted
Powell. Transcript at 31. He also described the impact of Powell’s
inappropriate advances:
It has really been hard on [O.S.B.] I mean [O.S.B.] was the type
[of] child never scared of anything and now she is scared of so
many things. . . . I work late some nights and she is home by
herself or with her brothers and she’s worried to be home by
herself and she never was. I mean she was worried about
nothing.
Id. at 32-33.
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[7] As to Powell’s character, we are troubled by his persistent failure to take
responsibility for his actions. Although Powell eventually entered into a plea
agreement with the State, he first attempted to explain away his behavior. The
detective assigned to the case recalled Powell “minimized what he had done”
by offering alternative explanations and excuses. Id. at 35. At one point during
an interview with the detective, Powell stated O.S.B. viewed the pornographic
material on accident when she picked up litter blowing through a field. At
another point, Powell stated he gave O.S.B. a movie depicting nudity but
denied the movie was pornographic. Powell also claimed he suffers from a
pornography addiction. He stated a television show caused him to fantasize
about rape and obsess over the idea of controlling another human being. In a
letter to O.S.B. and her father, Powell characterized the “whole situation” as
“stupid” and expressed his hope that “time will heal this” because “you are the
only family I have[.]” State’s Exhibit 1. He stated he does not blame O.S.B’s
father for “hating” him because he “would be so pissed off” if “it was [his child]
instead of [O.S.B.]” Id. Similarly, Powell repeatedly told O.S.B. prior to her
disclosure that she could not tell anyone about his requests because “then he
would go to prison.” Tr. at 20. Instead of recognizing the harm he inflicted on
O.S.B., Powell casts himself as the victim.
[8] Based on the foregoing, we conclude both the nature of the offenses and
Powell’s character support the sentence the trial court imposed.
Conclusion
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[9] Powell’s sentence is not inappropriate in light of the nature of the offenses and
his character. We therefore affirm his sentence.
[10] Affirmed.
Najam, J., and Crone, J., concur.
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