Timothy J. Miles v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this
May 17 2017, 5:53 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
purpose of establishing the defense of res judicata, Court of Appeals
and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy P. Broden Curtis T. Hill, Jr.
Lafayette, Indiana Attorney General of Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Timothy J. Miles, May 17, 2017
Appellant-Defendant, Court of Appeals Case No.
79A02-1609-CR-2239
v. Appeal from the Tippecanoe
Superior Court.
The Honorable Steven P. Meyer,
State of Indiana, Judge.
Appellee-Plaintiff. Trial Court Cause No.
79D02-1604-F6-373
Barteau, Senior Judge
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Statement of the Case
Timothy J. Miles appeals his sentence upon his conviction of battery as a Level
1
6 felony. We affirm.
Issues
Although Miles states that his sole contention on appeal is the
inappropriateness of his sentence, he also challenges the aggravating factors
found by the trial court. Thus, we address two issues in this appeal:
I. Whether the trial court abused its discretion in sentencing
Miles.
II. Whether Miles’ sentence is inappropriate in light of the
nature of the offense and his character.
Facts and Procedural History
On March 17, 2016, eleven-year-old M.E. was waiting for the school bus when
Miles, dressed all in black, approached her from behind, touched her buttocks,
and ran away.
Based upon this incident, the State charged Miles with battery as a Level 6
felony. At Miles’ trial, the jury returned a verdict of guilty. The trial court later
sentenced Miles to two years, with one and one-half years executed followed by
direct placement to community corrections for six months.
1
Ind. Code §35-42-2-1 (2014).
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Discussion and Decision
I. Sentencing
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), clarified on reh’g, 875 N.E.2d 218 (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. When imposing a sentence for a felony,
a trial court must enter a sentencing statement including reasonably detailed
reasons for imposing a particular sentence. Id. at 491. A trial court abuses its
discretion when it fails to issue a sentencing statement, gives reasons for
imposing a sentence that are not supported by the record, omits reasons clearly
supported by the record and advanced for consideration, or considers reasons
that are improper as a matter of law. Id. at 490-91.
Miles begins by noting that a prior version of the battery statute required bodily
injury to the victim in order to elevate the offense to a felony when it was
committed by a person at least eighteen years of age upon a person less than
fourteen years of age. See Ind. Code § 35-42-2-1 (2012). However, the act
constituting an offense under a prior version of the statute is of no moment in
this appeal. The time of a crime is selected as an act of free will by the offender.
Rondon v. State, 711 N.E.2d 506, 513 (Ind. 1999). Therefore, the criminal, not
the State, chooses which statute applies. Id. Accordingly, Miles is bound by
the law in effect at the time he committed this offense.
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Miles argues the trial court improperly used the seriousness of the offense as an
aggravator and cites to Walsman v. State, 855 N.E.2d 645, 653 (Ind. Ct. App.
2006), which holds that the seriousness of the crime may only be used as an
aggravator when the trial court is considering imposition of a sentence shorter
than the presumptive. More recently, our Supreme Court observed that “the
seriousness of the offense . . ., which implicitly includes the nature and
circumstances of the crime as well as the manner in which the crime is
committed, has long been held a valid aggravating factor.” Anglemyer, 868
N.E.2d at 492.
Here, it is clear from the record that the trial court’s reliance on the seriousness
of Miles’ offense as an aggravator was based on the nature and the
circumstances of the crime. At sentencing, the trial court expressed its concern
about Miles’ escalating proclivity to commit indecent acts/sex offenses. The
court discussed the nature of this offense as a touching of a child’s buttocks and
that it occurred just a short time after Miles had committed the offense of public
indecency against a different victim. The trial court did not consider whether
imposition of a reduced sentence would depreciate the seriousness of Miles’
crime. Thus, this aggravator is not an improper aggravator, and the court did
not abuse its discretion by relying on it.
Next Miles claims that the court erroneously considered the impact upon the
victim and her family as an aggravating circumstance. In determining what
sentence to impose for a crime, the court may consider as an aggravating
circumstance that the harm, injury, loss, or damage suffered by the victim of an
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offense was significant and greater than the elements necessary to prove the
commission of the offense. Ind. Code § 35-38-1-7.1(a)(1) (2015). More
specifically, if there is nothing in the record to indicate that the impact on the
family and victim in a specific case is different than the impact on families and
victims which usually occurs with such a crime, this separate aggravator is
improper. McElroy v. State, 865 N.E.2d 584, 590 (Ind. 2007).
Here, the pre-sentence investigation report reveals M.E.’s family’s fear of being
watched. It further detailed M.E.’s terror of riding the school bus, her fear of
playing outside, her refusal to be out of sight of her parents, and her struggle
with frequent nightmares since the incident. In order that M.E. could continue
to ride the bus to school, the school altered the bus stop so that M.E. can board
the bus directly in front of her house. Additionally, the report disclosed an
incident that occurred two months prior to the instant offense in which Miles
exposed himself to M.E. At the sentencing hearing, the trial court noted:
Now I know the Court[’]s not necessarily supposed to consider
the impact if it’s nothing more than what’s sort of expected of
these kind[s] of offenses. However, I think the impact has gone
above and beyond what one might expect on a battery on a child.
I mean here she’s been emotionally scarred. She’s afraid to go
out of her own house because of this. She has to have a friend
come meet her to meet the bus. And she feels afraid in her own,
in her, inside of her own home, and it’s affected the family for
those same reasons. The school system had to change the bus
route to ensure that this little girl feels safe on getting, on getting
on the bus. . . . In a way, you robbed this little girl of her
innocence because she no longer feels safe to stand around with
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her friends waiting for the bus. And I think that’s a serious
impact that this, that you’ve inflicted on this girl, this little girl.
Tr. pp. 156-57. The fears of M.E. and her family are well beyond the level of
emotional and psychological trauma usually associated with the crime of
battery. The trial court properly acted within its discretion to consider this as
an aggravating factor.
Finally, Miles asserts the court’s finding in its written sentencing order that this
offense occurred in the presence of other children is exaggerated. The transcript
of the sentencing hearing discloses a simple comment of the trial court that “this
happened in the early morning hours on a residential street where kids gather
for the bus” but not a definitive finding of this as an aggravating circumstance
in this case. “The approach employed by Indiana appellate courts in reviewing
sentences in non-capital cases is to examine both the written and oral
sentencing statements to discern the findings of the trial court.” McElroy, 865
N.E.2d at 589. Thus, based upon the general nature of the trial court’s
comment at sentencing, we decline to treat this circumstance as an aggravating
factor. Regardless, the trial court properly considered several other aggravating
factors, and just a single aggravator is sufficient to support an enhanced
sentence. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008).
II. Inappropriate Sentence
Although a trial court may have acted within its lawful discretion in imposing a
sentence, Article 7, Sections 4 and 6 of the Indiana Constitution authorize
independent appellate review and revision of sentences through Indiana
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Appellate Rule 7(B), which provides that we may revise a sentence authorized
by statute if, after due consideration of the trial court’s decision, we determine
that the sentence is inappropriate in light of the nature of the offense and the
character of the offender. Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App.
2014). However, “we must and should exercise deference to a trial court’s
sentencing decision, both because Rule 7(B) requires us to give ‘due
consideration’ to that decision and because we understand and recognize the
unique perspective a trial court brings to its sentencing decisions.” Stewart v.
State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). The principal role of appellate
review under Rule 7(B) is to attempt to leaven the outliers, not to achieve a
perceived “correct” result in each case. Garner v. State, 7 N.E.3d 1012, 1015
(Ind. Ct. App. 2014). In other words, the question under Appellate Rule 7(B) is
not whether another sentence is more appropriate; rather, the question is
whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,
268 (Ind. Ct. App. 2008). The defendant bears the burden of persuading the
appellate court that his or her sentence is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
To assess whether the sentence is inappropriate, we look first to the statutory
range established for the class of the offense. Here the offense is a Level 6
felony, for which the advisory sentence is one year, with a minimum sentence
of six months and a maximum sentence of two and one-half years. Ind. Code §
35-50-2-7 (2014). Miles was sentenced to two years, which is less than the
maximum sentence allowed by statute.
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Next, we look to the nature of the offense and the character of the offender. As
to the nature of the current offense, we note that Miles, dressed in all black,
approached eleven-year-old M.E. at her bus stop and touched her buttocks. As
a result of this assault, M.E. is terrified to ride the bus to school or play outside
in her yard, and she suffers from frequent nightmares.
With regard to the character of the offender, we observe that, as a juvenile,
Miles was warned and released for an offense that would constitute battery if
committed by an adult in 1999. In the same year, no action was taken on an
offense that would constitute disorderly conduct. In late 1999, Miles was
placed at an alternative high school due to truancy issues. The following year a
truancy action was filed in which Miles was adjudicated a delinquent with
supervised probation and counseling. In 2001, he was charged with
intimidation, pointing a firearm, and dangerous possession of a firearm and was
waived into adult court and convicted of intimidation as a Class D felony in
2002. Further, as an adult, Miles was convicted of battery resulting in bodily
injury as a Class A misdemeanor (originally filed as a Class D felony) in 2007.
Finally, just months prior to the present case, Miles committed public
indecency as a Class A misdemeanor. Although the State indicated there were
no mitigators, the court considered Miles’ “good work history” and “strong
family support.” Tr. p. 155. Miles’ criminal history, particularly his recent
tendency toward indecent acts/sex offenses, reflects poorly on his judgment and
any prior attempts at rehabilitation. Thus, we cannot say that Miles’ sentence is
inappropriate in light of the nature of the offense or his character.
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Conclusion
For the reasons stated, we conclude that the trial court did not abuse its
discretion in sentencing Miles and his sentence is not inappropriate given the
nature of the offense and his character.
Affirmed.
Bailey, J., and Crone, J., concur.
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