Opinion
23A-CR-2741
05-28-2024
Andrew C. Derouin, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Eric J. Massey Banks & Brower, LLC Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Robert M. Yoke Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Knox Circuit Court The Honorable Monica C. Gilmore, Judge Trial Court Cause No. 42C01-1909-F1-3
ATTORNEY FOR APPELLANT
Eric J. Massey
Banks & Brower, LLC
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Robert M. Yoke
Deputy Attorney General
Indianapolis, Indiana
Crone and Tavitas, Judges concur.
MEMORANDUM DECISION
Bradford, Judge.
Case Summary
[¶1] In September of 2019, Andrew Derouin molested his then-fiancee's then-fifteenmonth-old daughter. Derouin appeals his conviction for Level 1 felony child molesting, contending that the trial court abused its discretion in admitting his confession. Derouin also challenges his fifty-year sentence, contending that the trial court abused its discretion in sentencing him and that his sentence is inappropriate. We affirm.
Facts and Procedural History
[¶2] In September of 2019, R.E. ("Mother") was engaged to Derouin. She and her then-fifteen-month-old daughter, A.E., lived with Derouin in Bicknell.
Derouin is not A.E.'s biological father.
[¶3] On the evening of September 6, 2019, A.E. was sleeping on an air mattress in the living room. After Derouin had arrived home from work and had finished taking a shower, Mother took a ten- to fifteen-minute shower in the bathroom that was adjacent to the living room where A.E. had been sleeping. Before taking her shower, Mother had made sure that the area surrounding the air mattress had been cleared of objects and that the air mattress had been positioned in a manner that had "made it where [A.E.] wouldn't roll off" it in her sleep. Tr. Vol. IV p. 33.
[¶4] After Mother had finished her shower, she heard A.E. crying. While Mother had initially believed that A.E. may have been crying because she had been hungry or needed a diaper change, she soon recognized A.E.'s cry as "more of a in distress cry." Tr. Vol. IV p. 36. Mother walked into the kitchen and saw Derouin changing A.E.'s diaper. The diaper had "[l]ots of blood" on it, and there were blood-stained wet wipes on the kitchen floor and a second bloody diaper in the trash can. Tr. Vol. IV p. 36. Although A.E. had been wearing pajamas when Mother had gotten into the shower, A.E. was not wearing any clothing.
[¶5] Upon seeing the bloody diaper, Mother asked Derouin what had happened. Derouin responded, "I don't know, maybe she fell on something." Tr. Vol. IV p. 38. Mother observed, however, that "[t]here was not a thing around the air mattress that . . . had any type of blood on it." Tr. Vol. IV p. 38. The only blood Mother observed was on the kitchen floor, A.E., the wet wipes, and the diapers. Upon attempting to clean the blood off of A.E., Mother discovered a tear in A.E.'s "vaginal area." Tr. Vol. IV p. 38.
[¶6] Mother called her mother, Teresa Elliott, after Derouin refused to drive her and A.E. to the hospital. Teresa suggested that Mother attempt to "get [A.E.] cleaned up as best as [she] could" so that she could "figure out what was really going on." Tr. Vol. IV p. 39. Despite Mother's efforts, A.E. "kept bleeding" leaving Mother feeling "[p]ure terror" because she "didn't know what was going on with" A.E. or what had happened to her. Tr. Vol. IV p. 40. Derouin went outside and did not assist Mother in attempting to clean A.E. or to stop her bleeding.
[¶7] When Teresa arrived, Derouin was standing outside. Derouin indicated to Teresa that Mother "was accusing him of doing something to A.E." Tr. Vol. IV pp. 64-65. Derouin followed Teresa into the house. Upon examining A.E., Teresa observed "a lot of blood" and could tell that the injury to A.E.'s vaginal area was "pretty severe." Tr. Vol. IV p. 65. Teresa observed Derouin pick up a toy, move it over by the air mattress, and lean it on its side before indicating that he "didn't know what had happened to her" and suggesting that maybe she had fallen on the toy. Tr. Vol. IV p. 66. As Mother and Teresa were leaving to take A.E. to the hospital, Derouin yelled to Mother "if the cops _ show up here, we're done." Tr. Vol. IV p. 77. Teresa interpreted that to mean that Derouin would break up with Mother if anyone involved the police.
[¶8] Sexual Assault Nurse Examiner Danielle Deisher examined A.E. at the hospital after the initial evaluating nurse had determined that "the story" that Derouin had shared with Mother and that Mother had, in turn, shared with the nurse "did not line up with [A.E.'s] injuries." Tr. Vol. IV p. 97. Nurse Deisher had "never actually seen a laceration associated with [accidental straddle-type injuries,]" noting that such injures typically only resulted in bruising. Tr. Vol. IV p. 98. When Nurse Deisher attempted to examine A.E.'s injuries, she observed that "any touch at all ... elicited pain." Tr. Vol. IV p. 99. Nurse Deisher "very clearly could identify immediately upon looking at [A.E.] that she needed further higher-level care with surgery." Tr. Vol. IV p. 99. Hospital personnel "decided very quickly that [A.E.] needed to [be transported to] Riley Children's Hospital [("Riley")] for surgery." Tr. Vol. IV p. 99. Nurse Deisher notified Riley's sexual-assault services that, based on her training and experience, she believed that A.E.'s injuries were consistent with a child sexual assault and "that there needed to be further evaluation and evidence collection upon her arrival." Tr. Vol. IV p. 101.
[¶9] A.E. arrived at Riley around 3:00 a.m. on September 7, 2019. Dr. Shannon Thompson, a pediatrician and child-abuse specialist, examined A.E. and evaluated her injuries. Dr. Thompson observed that A.E. had suffered a laceration to her vaginal area in addition to bruising to her labia minor, anus, and the inside of her rectal wall. The laceration to A.E.'s vaginal area extended "from the posterior wall of the vagina [to] just shy of the anus." Tr. Vol. IV p. 126. The laceration was "one of the most severe" that Dr. Thompson had ever seen on a fifteen-month-old child. Tr. Vol. IV p. 127.
[¶10] Dr. Thompson concluded that the laceration "was consistent with a penetrating injury," not a straddle injury. Tr. Vol. IV p. 126. The injury to A.E.'s anus was also consistent with a penetrating injury. In addition to these injuries, Dr. Thompson noticed several other injuries to A.E.: petechial bruising around her left eyelid, a bruise on her left cheek, a bruise with an abrasion on the back of her head, bruising on both ears, bruising on the back and side of her neck, and bruising on her upper chest and abdomen. As a result of her injuries, A.E. suffered "extreme pain" that had to be managed by "significant medications, like morphine and fentanyl." Tr. Vol. IV p. 127. A.E. had surgery a few hours after arriving at Riley, during which the surgeon reconstructed her vaginal wall and vaginal area. Dr. Thompson concluded that A.E.'s injuries had been caused by "child physical abuse and child sexual abuse." Tr. Vol. IV p. 130. She concluded that A.E.'s injuries were not consistent with a fall on a toy and that such an explanation for A.E.'s injuries "would not be plausible[,] period." Tr. Vol. IV p. 131.
[¶11] Later that day, Knox County Sheriff's Detectives Cameron Carr and Justin McBee began investigating the case. Detective McBee spoke to Dr. Thompson about her conclusions regarding A.E.'s injuries. At some point that day, Derouin came to Riley, where he was detained by hospital security before he was transported to the Knox County Sheriff's Department ("the Sheriff's Department").
[¶12] Once back at the Sheriff's Department, Derouin was placed in an interview room and read his Miranda rights. While giving this advisement, Detective McBee emphasized that Derouin could stop the questioning at any time. Derouin also read and signed a written waiver form. He was then interviewed for approximately ninety minutes, during which time he was offered a drink and snacks and was given permission to use the restroom.
Miranda v. Arizona, 384 U.S. 436 (1966).
[¶13] Derouin initially denied responsibility for A.E.'s injuries but eventually admitted that he had taken A.E. to the kitchen to change her diaper before his "finger went into her vagina and that was it." Ex. 2 at 1:29:37-1:29:43. He admitted that he had been thinking about taking this action for some time before he had. Derouin reiterated that he had been changing A.E.'s diaper and "that's when I put my finger in there and I tore her open." Ex. 2 at 1:31:001:31:06.
[¶14] On September 10, 2019, the State charged Derouin with Level 1 felony child molesting and Level 1 felony rape. The State later dismissed the rape charge. Derouin filed a pretrial motion to suppress his statements to Detectives Carr and McBee, which the trial court denied following a hearing. Derouin's statements to Detectives Carr and McBee, including his confession, were admitted into evidence at trial. Mother, Teresa, Nurse Deisher, Dr. Thompson, and Detectives Carr and McBee also testified. After the jury found Derouin guilty of Level 1 felony child molesting, the trial court sentenced him to fifty years of incarceration.
Discussion and Decision
I. The Trial Court did not Abuse its Discretion in Admitting Derouin's Confession
[¶15] "[T]he decision to admit or exclude evidence is within a trial court's sound discretion and is afforded great deference on appeal." Carpenter v. State, 786 N.E.2d 696, 702 (Ind. 2003). An abuse of discretion occurs "only where the decision is clearly against the logic and effect of the facts and circumstances." Fansler v. State, 100 N.E.3d 250, 253 (Ind. 2018). A trial court's evidentiary ruling will be sustained "if it can be done on any legal ground apparent in the record." Jester v. State, 724 N.E.2d 235, 240 (Ind. 2000).
[¶16] Derouin contends that the trial court abused its discretion in admitting his confession, claiming that it had not been made voluntarily.
When a defendant challenges the admissibility of his confession, the State must prove beyond a reasonable doubt that the confession was given voluntarily. The voluntariness of a confession is determined from the totality of the circumstances. In turn, the totality[-]of[-]the[-]circumstances test focuses on the entire interrogation, not on any single act by police or condition of the suspect. We review the record for evidence of inducement by way of violence, threats, promises, or other improper influences.Washington v. State, 808 N.E.2d 617, 622 (Ind. 2004) (citations and quotations omitted). "[W]hen reviewing a challenge to the trial court's decision to admit a confession, we do not reweigh the evidence but instead examine the record for substantial probative evidence of voluntariness." Ringo v. State, 736 N.E.2d 1209, 1211 (Ind. 2000). "[C]onflicting evidence is viewed most favorably to the trial court's ruling." Turner v. State, 738 N.E.2d 660, 662 (Ind. 2000).
[¶17] The totality of the circumstances surrounding Derouin's confession are as follows: Derouin was detained by hospital security when he appeared at Riley. He was handcuffed in front of his person during the approximately two-hour drive from Riley to the Sheriff's Department. Once at the Sheriff's Department, the handcuffs were removed and Derouin was placed in an interview room. He was informed of his Miranda rights and signed a written waiver form. Over the next ninety minutes or so, he was subjected to intermittent questioning from Detectives Carr and McBee. He was given breaks, including a bathroom break, and offered refreshments.
[¶18] Derouin answered the Detectives' questions in a calm manner and did not exhibit any signs of physical or emotional distress. He neither indicated that he wished to stop the interrogation nor requested an attorney. Nothing in the record indicates that Derouin was of less-than-average intelligence or that he suffered from a mental deficiency. As such, we conclude that nothing from the conditions surrounding Derouin's confession rendered his confession involuntary. See D.M. v. State, 949 N.E.2d 327, 339 (Ind. 2011) (providing that a written waiver, while not required, is certainly strong proof that a valid waiver occurred); Henry v. State, 738 N.E.2d 663, 665 (Ind. 2000) (providing that a confession given during a one-hour interrogation was voluntary when the defendant appeared to be of average intelligence; was Mirandized, indicated that he understood his rights; never requested an attorney; and was not threatened by or promised anything from the police); Luckhart v. State, 736 N.E.2d 227, 231 (Ind. 2000) (providing that a five-hour interrogation had was not rendered involuntary when the defendant had signed a waiver of her Miranda rights, had been given breaks, had never indicated that she wished to stop the interrogation, or had requested an attorney); Light v. State, 547 N.E.2d 1073, 1079 (Ind. 1989) (providing that a four-hour interrogation was not rendered involuntary due to its length).
[¶19] We reach the same conclusion with regard to the substance of Derouin's conversation with Detectives Carr and McBee. Derouin initially denied any involvement in causing A.E.'s injuries. Derouin points to vague statements by the Detectives suggesting that they were there to help Derouin and that they believed that he was a good person who had made a mistake. "[V]ague and indefinite statements by the police that it would be in a defendant's best interest if he cooperated do not render a subsequent confession inadmissible." Clark v. State, 808 N.E.2d 1183, 1191 (Ind. 2004). Similarly, "[a] mere exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by a promise of immunity or leniency does not render a subsequent confession involuntary." Pamer v. State, 426 N.E.2d 1369, 1374 (Ind.Ct.App. 1981).
In arguing that his confession was involuntary, Derouin attempts to liken his interrogation to those in Ashby v. State, 354 N.E.2d 192 (Ind. 1976) and McGhee v. State, 899 N.E.2d 35 (Ind.Ct.App. 2008), trans. denied, in which detectives had promised to secure a specific sentence (Ashby) and indicated that the defendant's alleged actions were not criminal in nature (McGhee). Neither Detective Carr nor Detective McBee made any such promise or statement during Derouin's interrogation.
[¶20] Derouin also points to additional statements by Detective McBee indicating that given the evidence against him, no one would believe his claim that A.E. had been injured after falling on a toy or other object. "[N]ot all police interrogation statements of conjecture, presented as fact, constitute police deception." Washington, 808 N.E.2d at 622 (quotation omitted). "Rather, where the police have a good faith basis for their technical falsehood, then their action will not be deemed deceptive." Id. (quotation omitted). At the time of the interrogation, Detective McBee had already spoken to Dr. Thompson and had been made aware of the general nature of her conclusions regarding A.E.'s injuries. Thus, although the full extent of the evidence relating to A.E.'s condition was not yet known to Detective McBee, we conclude that he had had a good basis for his statements to Derouin that his explanation regarding the cause of A.E.'s injuries was not likely to be believed. Accordingly, Detective McBee's statements in this regard were not deceptive. See id. Given the totality of the circumstances, we cannot say that the trial court abused its discretion in finding that Derouin's statement was voluntary.
[¶21] Moreover, even if the trial court had abused its discretion in admitting Derouin's confession, its admission was "harmless beyond a reasonable doubt" in light of the overwhelming independent evidence of Derouin's guilt. Coleman v. State, 750 N.E.2d 370, 373 (Ind. 2001). "A wrongful introduction of an involuntary confession is subject to a constitutional harmless error analysis." Id. at 374. "Under the harmless error analysis, this Court must determine whether the State has met its burden of demonstrating that the admission of the confession did not contribute to the defendant's conviction." Id. (quotation omitted, cleaned up).
[¶22] Derouin asserts that without his confession, the State's evidence "would establish, at most, that [he] had mere opportunity, or was merely present, when the offense is alleged to have occurred." Appellant's Br. p. 19. We cannot agree. Mother testified that she and Derouin had been the only adults present in the house on the evening in question and that A.E. had been sleeping unharmed when Mother had gotten into the shower. She further indicated that she had cleared the area around the air mattress and had positioned it in a way to keep A.E. from rolling off it. Mother testified that she had heard A.E. crying in distress when she had gotten out of the shower and had observed Derouin standing over a bleeding A.E. in the kitchen. Mother indicated that there had been a lot of blood. Despite Derouin's assertion that A.E. had been injured in the living room, there was no blood in the living room. Mother identified a tear in A.E.'s "vaginal area" as the source of the blood. Tr. Vol. IV p. 38. Teresa testified that upon arriving at the home, she had observed Derouin place a toy near the air mattress before suggesting that maybe A.E. had fallen on a toy. Mother's and Teresa's testimony also established that Derouin had refused to drive Mother and A.E. to the hospital, and had told Mother that "if the cops _ show up here, we're done." Tr. Vol. IV p. 77.
[¶23] Nurse Deisher testified that it was immediately evident that A.E. had required high-level, specialty care and that, based on her training and experience, she believed that A.E.'s injuries were consistent with sexual assault. Dr. Thompson testified that the laceration to A.E.'s vaginal area was "one of the most severe" that she had seen for a child of A.E.'s age and that it "was consistent with a penetrating injury," not a straddle injury. Tr. Vol. IV pp. 127, 126. Dr. Thompson countered Deroin's assertion that A.E.'s injuries had been caused by an accidental fall, testifying that such an explanation for A.E.'s injuries "would not be plausible[,] period." Tr. Vol. IV p. 131. Mother's, Teresa's, Nurse Deisher's, and Dr. Thompson's testimony established more than that Derouin had had the mere opportunity to commit the charged offense, it overwhelmingly proved his guilt. Thus, the admission of Derouin's confession, even if erroneous, was at most harmless.
II. Derouin's Sentencing Challenges are Without Merit
[¶24] Derouin also contends that the trial court abused its discretion in imposing a fifty-year sentence and that his sentence is inappropriate. Indiana Code section 35-50-2-4(c) provides that "[a] person who commits a Level 1 felony child molesting offense . . . shall be imprisoned for a fixed term of between twenty (20) and fifty (50) years, with the advisory sentence being thirty (30) years." Thus, the trial court imposed a maximum sentence in sentencing Derouin.
A. The Trial Court did not Abuse its Discretion in Sentencing Derouin
[¶25] 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).
We review for an abuse of discretion the court's finding of aggravators and mitigators to justify a sentence, but we cannot review the relative weight assigned to those factors. When reviewing the aggravating and mitigating circumstances identified by the trial court in its sentencing statement, we will
remand only if the record does not support the reasons, or the sentencing statement omits reasons that are clearly supported by the record, and advanced for consideration, or the reasons given are improper as a matter of law.Baumholser v. State, 62 N.E.3d 411, 416 (Ind.Ct.App. 2016) (citation and quotation omitted), trans. denied. "A single aggravating circumstance may be sufficient to enhance a sentence." Id. at 417.
1. Aggravating Factors
[¶26] The trial court found the following aggravating factors in sentencing Derouin: (1) the harm suffered by A.E. was significant and greater than the elements necessary to prove the commission of the offense; (2) A.E. was less than twelve years old; (3) A.E. was mentally or physically infirm; (4) Derouin was in a position having care, custody, or control of A.E.; (5) Derouin threatened harm if his criminal acts were reported; (6) the significant psychological effects on A.E.; (7) the extreme mental and emotional harm to A.E.; (8) Derouin's need for correctional and rehabilitative treatment; (9) Derouin's pre-planning of the offense; (10) Derouin's violation of a position of trust; and (11) the statements of A.E.'s family asking for an enhanced sentence. Derouin claims that reliance on all but one of these factors, i.e., that he was in a position having care, custody, or control of A.E., was improper. Even if we were to assume that Derouin's claims regarding the aggravating factors have merit, the remaining, unchallenged, aggravating factor supports an enhanced sentence. See id. As it is, however, we cannot say that the trial court abused its discretion in considering each of the other ten aggravating factors.
[¶27] Derouin first argues that the trial court abused its discretion in finding that the harm suffered by A.E. was greater than the elements necessary to prove his offense. Specifically, he claims that the vaginal and anal lacerations constituted the serious bodily injury to A.E. that supported the enhancement of his actions to a Level 1 felony and that the trial court had "improperly relied upon bruising" as a serious bodily injury. Appellant's Br. p 22 (citing Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004) (finding that a lacerated lip, an abrasion to the knee, and a broken pinky failed to establish serious bodily injury)). "'Serious bodily injury' means bodily injury that creates a substantial risk of death or that causes: (1) serious permanent disfigurement; (2) unconsciousness; (3) extreme pain; (4) permanent or protracted loss or impairment of the function of a bodily member or organ; or (5) loss of a fetus." Ind. Code § 35-31.5-2-292. The record here establishes that A.E. had suffered both extreme pain and permanent, protracted impairment of the function of a bodily organ, with Dr. Thompson testifying to A.E.'s extreme pain and the fact that A.E. will be required to undergo further surgeries in order to have full use of her vagina and reproductive organs. Even after four years, A.E. continued to have "some issues using the restroom[,]" and got "constipated a lot." Tr. Vol. IV p. 79. The trial court noted the significant injuries suffered by A.E. and the need for future surgeries in finding this aggravating factor. The trial court did not abuse its discretion in doing so.
[¶28] The trial court also did not abuse its discretion in considering A.E.'s young age, i.e., fifteen-months, as an aggravating factor. Derouin was charged with child molesting under Indiana Code section 35-42-4-3(a), which involves children under the age of fourteen. Indiana Code section 35-38-1-7.1(a)(3) provides that a trial court may consider the victim's age to be an aggravating factor if the victim "was less than twelve (12) years of age _ at the time the person committed the offense." The Indiana Supreme Court has held that "even where the age of the victim is an element of the offense, the very young age of a child can support an enhanced sentence as a particularized circumstance of the crime." Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012). Again, A.E. was fifteen months old at the time Derouin molested her. Her very young age was far lower than that considered as an element of the crime of child molesting and can support an enhanced sentence.
[¶29] Derouin claims that the trial court abused its discretion in finding as an aggravating factor that A.E. was mentally or physically infirm, arguing that A.E. had been "a happy, normal, healthy fifteen-month-old" prior to the molestation. Appellant's Br. p. 24. In finding this factor, the trial court stated "at 15 months old, and based on evidence that was quite obvious at court, she literally couldn't even go to the bathroom on her own. She was one hundred percent dependent on adults in her life. If that is not infirm, then I don't know what is." Tr. Vol. V p. 176. We have previously concluded that a thirteen-month-old child who had appeared to be suffering from malnutrition, cried a lot, had been unable to stand easily, and had been an inactive child could be said to be infirm. See Perkins v. State, 392 N.E.2d 490, 495 (Ind.Ct.App. 1979). While A.E. had appeared to be a healthy fifteen-month-old child prior to the molestation, we cannot say that the trial court abused its discretion in finding that she was infirm given that, due to her very young age, she could not provide any care for herself and was wholly dependent upon the adults in her life to provide her with all necessary care.
[¶30] Derouin claims that the trial court abused its discretion in finding his threat to Mother that they "were done" if the police became involved to be an aggravating factor. Tr. Vol. IV p. 77. At the time the comment was made, Derouin and Mother were engaged, lived together, and Derouin financially provided for the family. We agree with the State that the threat "was an attempt to prevent [Mother] from speaking to police in an effort to cover up his crime." Appellee's Br. p. 34. In finding this aggravating factor, the trial court found that the threat "could certainly be interpreted as threatening harm to the victim herself, meaning A.E., as [Derouin] was the sole provider for A.E. and her mother." Tr. Vol. V p. 176. For the same reasons expressed by the trial court, we cannot say that the trial court abused its discretion in finding that a threat to end his and Mother's relationship constituted a threat to harm Mother and A.E.
[¶31] Derouin acknowledges that negative "[p]sychological effects and extreme mental and emotion harm are certainly valid considerations for sentencing[,]" but claims that the evidence supporting these factors was "tenuous at best." Appellant's Br. p. 26. We cannot agree. Several witnesses testified that A.E. had suffered negative psychological effects as a result of Derouin's actions and continued to suffer mental and emotional trauma at the time of trial. Kayla Wollard, A.E.'s daycare provider, testified that A.E. had exhibited signs of distress "[w]ith every diaper change" and would scream "out in terror" when she closed her eyes. Tr. Vol. V p. 151. Mother also testified that A.E. would "scream and cry" and faced future surgeries because of the injuries she had sustained from Derouin. Tr. Vol. V. p. 152. Teresa testified that A.E. had had trouble sleeping and "had to be right against somebody all the time." Tr. Vol. IV p. 80. The evidence of the harm suffered by A.E. was significant and detailed and was not tenuous.
[¶32] In claiming that the trial court abused its discretion in finding that he had violated a position of trust, Derouin acknowledges that relevant caselaw supports this factor given that he had effectively been acting as A.E.'s stepfather, but argues that many individuals could qualify as having been in a position of trust with a molestation victim and questions "would molestation by a stranger not be even more heinous?" Appellant's Br. p. 25. "Indiana courts have long held that the violation of a position of trust is a valid aggravating factor." Stout v. State, 834 N.E.2d 707, 711 (Ind.Ct.App. 2005), trans. denied. "The sad fact that adults in positions of trust are often the perpetrators of these crimes does not change this result." Id. The trial court properly relied on Derouin's violation of a position of trust as an aggravating factor.
[¶33] Derouin claims that the record does not support the trial court's finding that he had planned the offense. The evidence, however, demonstrates that Derouin had agreed with the assertion that he had been thinking about committing the act for some time before doing so and had waited until Mother was showering to ensure that he had had sufficient time to commit the offense. The trial court, therefore, did not abuse its discretion in finding this aggravating factor.
[¶34] Derouin claims that the trial court abused its discretion in relying on A.E.'s family's statements regarding their desire for him to receive an enhanced sentence. The Indiana Supreme Court has held that while not technically an aggravating factor, a trial court does not err in considering the victim's family's sentencing recommendations. See Brown v. State, 698 N.E.2d 779, 782 (Ind. 1998) (providing that while recommendations of this sort are not mitigating or aggravating factors, they may properly assist a court in determining what sentence to impose for a crime). Thus, while the trial court should not have found A.E.'s family's requests and recommendations to be a separate aggravating factor, the trial court did not abuse its discretion in considering them in sentencing Derouin.
[¶35] Finally, Derouin claims that the trial court abused its discretion in finding his need for correctional and rehabilitative treatment to be an aggravating factor, claiming that the trial court "failed to adequately explain the basis for" the factor. Appellant's Br. p. 26. In finding this factor, the trial court stated
[Derouin's] need for correctional [treatment] and rehabilitation may be observed and noted by the Court. And it is although I am baffled today at how [he's] saying out of one side of [his] mouth that [he] didn't do it, but out of the other side of [his] mouth that [he] need[s] to participate in a rehabilitative program in the DOC that is specifically intended for people who have accepted responsibility for what they have done.Tr. Vol. V p. 177. While the trial court surely could have been more specific as it relates to this factor, the trial court's statement indicates that it found that Derouin had advocated for this factor. Thus, we cannot say that the trial court abused its discretion in finding this aggravating factor. Moreover, even if the trial court had abused its discretion in considering this factor, we need not remand for resentencing because we are confident that the trial court would have imposed the same sentence even if it had not found the improper aggravator. See Edrington v. State, 909 N.E.2d 1093, 1101 (Ind.Ct.App. 2009), trans. denied.
2. Mitigating Factors
[¶36] The trial court found Derouin's lack of a criminal history to be the sole mitigating factor. Derouin argues that the trial court abused its discretion by failing to find the following mitigating factors: (1) the crime was the result of circumstances unlikely to recur, (2) his character indicates that he is unlikely to commit another crime, (3) his Indiana-Risk-Assessment-System ("IRAS") evaluation categorized him as a low risk to reoffend, and (4) he is likely to respond affirmatively to probation or short-term imprisonment.
[¶37] "The finding of mitigating factors is not mandatory and rests within the discretion of the trial court, and the trial court is not required to accept the defendant's arguments as to what constitutes a mitigating factor." Williams v. State, 997 N.E.2d 1154, 1163 (Ind.Ct.App. 2013). "Further, the trial court is not required to give the same weight to proffered mitigating factors as the defendant does, nor is it obligated to explain why it did not find a factor to be significantly mitigating." Id. at 1163-64. "An allegation that the trial court failed to identify or find a mitigating factor requires the defendant to establish that the mitigating evidence is both significant and clearly supported by the record." Anglemyer, 868 N.E.2d at 493.
[¶38] Derouin claims that the trial court abused its discretion in failing to find the fact that "the crime was the result of circumstances unlikely to recur[,]" pointing to his lack of a criminal history and the fact that he had been on bond for four years without committing an additional criminal offense. Appellant's Br. p. 28. As is stated above, the trial court found Derouin's lack of a criminal history to be a significant mitigating factor. Given that Derouin himself merely points to his lack of criminal history in support of this factor, we cannot say that the trial court abused its discretion in failing to also find Derouin's assertion that his crime was unlikely to recur to be an additional significant mitigating factor.
[¶39] Derouin also claims that the trial court abused its discretion by failing to find his assertion that his character suggests that he is unlikely to commit another crime to be a mitigating factor. The trial court was not obligated to credit Derouin's description of his character or to find that his character warranted significant mitigating weight. See Williams, 997 N.E.2d at 1163.
[¶40] Similarly, he claims that the trial court should have found the fact that his IRAS evaluation had categorized him as a low risk to reoffend to be a significant mitigating factor. The Indiana Supreme Court, however, has found that IRAS and similar evaluations "are not intended to serve as aggravating or mitigating" factors but rather are "supplemental tools for judicial consideration at sentencing." Malenchik v. State, 928 N.E.2d 564, 575 (Ind. 2010). As such the trial court did not abuse its discretion by failing to find the results of Derouin's IRAS evaluation to be a mitigating factor.
[¶41] Finally, Derouin claims that the trial court abused its discretion by failing to find his assertion that he was likely to positively respond to probation or shortterm imprisonment to be a mitigating factor. At sentencing, Derouin argued that he was a "great worker" who "responds positively to structure." Tr. Vol. V p. 171. Again, the trial court was not obligated to credit Derouin's claim or to find such to warrant significant mitigating weight. See Williams, 997 N.E.2d at 1163. We cannot say that the trial court abused its discretion in failing to find that the proffered mitigating factors warranted significant mitigating weight.
B. Derouin's Sentence is not Inappropriate
[¶42] Indiana Appellate Rule 7(B) provides that "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." In analyzing such claims, we "concentrate less on comparing the facts of [the case at issue] to others, whether real or hypothetical, and more on focusing on the nature, extent, and depravity of the offense for which the defendant is being sentenced, and what it reveals about the defendant's character." Paul v. State, 888 N.E.2d 818, 825 (Ind.Ct.App. 2008) (quotation omitted), trans. denied. The defendant bears the burden of persuading us that his sentence is inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind.Ct.App. 2008).
[¶43] Again, "[a] person who commits a Level 1 felony child molesting offense _ shall be imprisoned for a fixed term of between twenty (20) and fifty (50) years." Indiana Code § 35-50-2-4(c). We disagree with Derouin's assertion that "the nature of the offense is no more egregious than any other act of child molesting resulting in serious bodily injury." Appellant's Br. p. 31. Rather, we conclude that the nature of Derouin's offense is horrific and justifies a maximum sentence.
[¶44] Derouin had assumed a step-father-like role in A.E.'s life. Rather than protect and care for her, he molested her, causing "one of the most severe" lacerations to A.E.'s vagina that Dr. Thompson had ever seen. Tr. Vol. IV p. 127. A.E. experienced significant bleeding and required emergency surgery. As she grows and matures, she will also require additional surgeries. As a result of Derouin's actions, A.E. had suffered significant pain and serious, long-lasting bodily injuries. Derouin has failed to convince us that his fifty-year sentence is inappropriate in light of the nature of his offense. Chastain v. State, 165 N.E.3d 589, 601 (Ind.Ct.App. 2021) (concluding that a defendant had failed to convince us that a maximum sentence was inappropriate when the victim suffered long-term harm as a result of the molestation), trans. denied.
[¶45] As for Derouin's character, we, like the trial court, note his lack of criminal history. Derouin also cites his history of gainful employment. However, we have previously noted that employment does not always reflect positively on a defendant as "many people are gainfully employed." Holmes v. State, 86 N.E.3d 394, 399 (Ind.Ct.App. 2017), trans. denied. While Derouin did not have a significant criminal history and had a history of steady employment, his actions relating to A.E. demonstrate that he is of poor character.
[¶46] Again, causing A.E.'s injuries by molesting her, Derouin refused to help Mother obtain medical help for A.E. and threatened Mother if the police became involved. In addition, while out on bond awaiting trial, Derouin moved into a home near A.E.'s daycare and flew a drone over Woolard's backyard on numerous occasions when small children, potentially including A.E., were outside playing "in their swimsuits." Tr. Vol. V. p. 151. Derouin points to his family's positive descriptions of his character, but we do not find it to be overly compelling that Derouin's family had positive things to say about him. Derouin has failed to convince us that his fifty-year sentence is inappropriate.
[¶47] The judgment of the trial court is affirmed.
Crone, J., and Tavitas, J., concur.