Opinion
No. 49A04-1011-CR-773
10-11-2011
JUSTIN LASHAWAY, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT : LOREN J. COMSTOCK Indianapolis, Indiana ATTORNEYS FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana J.T. WHITEHEAD Deputy Attorney General Indianapolis, Indiana
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:
LOREN J. COMSTOCK
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
J.T. WHITEHEAD
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Sheila A. Carlisle, Judge
Cause No. 49G03-1004-FA-28996
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN , Judge
Justin Lashaway appeals his conviction and sentence for conspiracy to commit child molesting as a class A felony. Lashaway raises three issues, which we revise and restate as:
Ind. Code § 35-42-4-3 (Supp. 2007); Ind. Code § 35-41-5-2 (2004).
I. Whether the trial court erred in permitting the State to amend the charging information;We affirm.
II. Whether the evidence is sufficient to sustain Lashaway's conviction for conspiracy to commit child molesting as a class A felony; and
III. Whether the court abused its discretion in sentencing Lashaway.
Lashaway was also convicted of two counts of vicarious sexual gratification as class D felonies. However, Lashaway does not challenge those convictions or his sentence in connection with those convictions on appeal.
The relevant facts follow. H.G. is the mother of K.G., who was seven years old at the time of the offenses. H.G. had been making a living as a prostitute in the year prior to April 2009. H.G. placed a personal advertisement on the internet which offered sexual favors for payment. In the late spring or early summer of 2009, Lashaway responded to one of H.G.'s advertisements by email and indicated that "he wanted sex." Transcript at 39. Lashaway and H.G. exchanged text messages, and about a week later Lashaway and H.G. met at her residence where they had sex. Around September 2009, Lashaway and H.G. started having sex "almost every day." Id. at 42. At Lashaway's urging, H.G. eventually stopped having sex with other men, and Lashaway paid certain bills for H.G. such as her rent and electric bills and sometimes her cell phone bill or groceries. At Lashaway's suggestion, he and H.G. engaged in "a couples swap," which was "[w]here two couples get together, and you switch partners." Id. at 45-46.
At some point, Lashaway brought up K.G. Lashaway sent a text message to H.G. which stated that "when he came over, he wanted to have [K.G.] naked on the couch and us have sex." Id. at 51. At first H.G. said "no" but then later agreed. Id. at 55. Lashaway wanted to see if H.G. was serious and wanted H.G. to take a picture of K.G.'s vagina. K.G. was asleep on the couch and wearing a nightgown and panties. H.G. took off K.G.'s panties, took a picture of K.G.'s vagina using her cell phone, and sent the picture to Lashaway's phone. Lashaway responded and said that "he couldn't wait to feel that." Id. at 56.
Lashaway then wanted H.G. to send him a video of H.G. and K.G. together where H.G. was "playing with" K.G.'s vagina. Id. at 57. H.G. recorded herself rubbing a pink dildo on her own vagina and then on K.G.'s vagina. H.G. touched K.G.'s vagina "[o]n the outside and then on the inside." Id. at 58. H.G. sent the video to Lashaway, and Lashaway responded "that he liked that and that he couldn't wait to get into her tight pussy." Id. at 59.
Lashaway asked for another video of K.G. playing with H.G.'s vagina. While K.G. was asleep, H.G. took K.G.'s hands and placed them on H.G.'s vagina, on the outside and inside. H.G. sent the video to Lashaway, who again responded that he could not "wait to get in her tight pussy." Id. at 60.
Lashaway and H.G. would exchange text messages containing stories about "what [Lashaway] wanted to happen and what - what would happen." Id. In one of the stories, Lashaway "would come in, and K.G. and [H.G.] would be waiting for him naked," H.G. "would start giving him oral sex, and [Lashaway] would hope that [K.G.] would learn from" H.G. and give Lashaway oral sex willingly. Id. at 61.
On another occasion, Lashaway was on his way to H.G.'s residence and texted H.G. that he wanted to be in the room alone with K.G. When Lashaway arrived at H.G.'s residence, he "got naked and went into [H.G.'s] bedroom where [K.G.] was asleep." Id. Lashaway exited the bedroom five to ten minutes later and left the residence. After he left, Lashaway sent a text message to H.G. which said that K.G. had been "lying on her side, and he got behind her and started rubbing his penis across her - across her vagina" and told H.G. that she "should go in there and clean her up." Id. at 62. H.G. "took a towel" and "wiped [K.G.'s] legs." Id. at 93. When H.G. took the towel to the dirty hamper she noticed there was "[s]perm, nut" on the towel. Id. at 94.
Another time, Lashaway and H.G. had sex in H.G.'s bed while K.G. was on the bed sleeping.
On April 7, 2010, Lashaway sent a text message to H.G. stating that he was coming over, and H.G. sent a text message to Lashaway stating that she and K.G. would be at her residence. Lashaway told H.G. that "tonight he was going to go nut deep in her" and asked H.G. to get K.G. ready. Id. at 66. Lashaway later sent a text message to H.G. asking if H.G. "was getting her ready." Id. H.G. started to talk to K.G., told K.G. "that a guy was coming over and we were going to have sex" and "asked [K.G.] if she would . . . be in the room with us and watch us." Id. K.G. said that she "didn't want to." Id. at 67. H.G. sent a text message to Lashaway indicating what K.G. had said, and Lashaway sent a text message to H.G. stating for H.G. to tell K.G. that "if she wanted to stay with [H.G.], that she would do what we wanted her to do." Id. H.G. then asked K.G. to touch H.G.'s vagina because H.G. wanted to see if K.G. was "willing to cooperate and touch [Lashaway] and give him oral sex." Id. at 68. K.G. touched H.G.'s vagina on the outside and then the inside, and K.G. said "Ooh, gross" and stopped. Id.
H.G. then "got out a dildo," which was tan and in the shape of a penis, and put it inside her own vagina in front of K.G. Id. H.G. wanted to see if K.G. "would participate" with H.G. and Lashaway "[h]aving sex" because "that's what [Lashaway] wanted." Id. at 69. H.G. continued to send text messages to Lashaway "telling him what was going on," and Lashaway responded saying that he "couldn't wait to get over there." Id. at 70.
When Lashaway arrived at H.G.'s residence, K.G. was asleep on the living room couch. Lashaway took off his clothes, sat on a love seat, and asked H.G. to give him "oral," which H.G. did. Id. After that, Lashaway sat on the couch next to K.G., and "started rubbing her leg." Id. at 71. K.G. told Lashaway "no," and Lashaway became angry and "told her that he came over to get what he wanted, and if . . . she didn't do it, then her and her brother wouldn't be living with [H.G.] anymore." Id. H.G. took K.G. into H.G. 's bedroom, and returned to the living room. Lashaway "started going off about how this isn' t what he came over for, he was ready for her to give him head and for him to have sex with her, and just got angry." Id. at 72. Lashaway told H.G. "[t]o go back and get" K.G., and H.G. told K.G. "to come back out on the couch and just lay there and cover up," and K.G. did so. Id. Lashaway and H.G. then began having sex on the living room floor, and while Lashaway and H.G. were having sex K.G. "got up and went back to her bedroom." Id. at 73. After H.G. and Lashaway finished, Lashaway left the residence and "said that he would be back to get what . . . he had come over for." Id.
The following day, on April 8, 2010, K.G. was taken out of class by a school-based therapist due to some previous behavior problems. While talking with the therapist, K.G. asked if secrets were good or bad, and the therapist gave K.G. some examples of bad secrets. K.G. informed the therapist that H.G. had touched K.G.'s vagina, that the previous night a man had come over, and that H.G. wanted K.G. to watch H.G. and the man having sex. Child protective services and the police were contacted.
Indianapolis Metropolitan Police Detective Robbin Cassidy spoke with H.G., and H.G. identified Lashaway and told Detective Cassidy about the pictures and videos which she had sent to Lashaway. On April 9, 2010, Detective Cassidy visited Lashaway at his residence and then drove him to the child abuse unit office. Detective Cassidy informed Lashaway of his rights and conducted an interview of him.
The State initially filed an information on April 14, 2010 charging Lashaway with four counts of child molesting as class A felonies and two counts of vicarious sexual gratification as class D felonies. On July 19, 2010, the State filed a motion to amend the information by adding a count of conspiracy to commit child molesting as a class A felony. On July 26, 2010, Lashaway filed a motion opposing the motion. After a hearing on July 27, 2010, the court granted the State's motion. That same day, the State filed an amended information alleging six counts in total, which included three counts of child molesting as class A felonies, two counts of vicarious sexual gratification as class D felonies, and one count of conspiracy to commit child molesting as a class A felony. On July 28, 2010, Lashaway filed a motion for continuance, and the trial court granted the motion, vacated the trial set for August 9, 2010, and rescheduled the trial for October 4, 2010.
The count for conspiracy to commit child molesting as a class A felony in the amended charging information alleged:
On or about or between September 15, 2009 to April 8, 2010, Justin Lashaway, did agree with [H.G.], both of whom are people over 21 years of age, to commit Child Molest, a Class A Felony, by Justin Lashaway and/or [H.G.] performing or submitting to sexual intercourse and or deviate sexual conduct, with [K.G.] a child who was then under the age of 14 to wit: seven (7) years of age, and the following overt act was performed in furtherance of said agreement: [H.G.] performed or submitted to deviate sexual conduct with [K.G.].Amended Appellant's Appendix at 137.
A bench trial commenced on October 4, 2010. The State moved to dismiss two of the counts of child molesting as class A felonies, and the court granted the motion. The court found Lashaway not guilty of the remaining count of child molesting as a class A felony, guilty of two counts of vicarious sexual gratification as class D felonies, and guilty of conspiracy to commit child molesting as a class A felony. At sentencing, the court found Lashaway's minimal criminal history, his chance of rehabilitation, and his remorse to be mitigating circumstances and the nature and circumstances of the crime, including the length of the conspiracy, to be an aggravating circumstance. The court sentenced Lashaway to thirty years for his conviction for conspiracy to commit child molesting and two years for each of his convictions for vicarious sexual gratification. The court ordered the sentences to be served concurrently.
I.
The first issue is whether the court erred in permitting the State to amend the charging information. Lashaway argues that the court erred in granting the State's motion because the motion "was well beyond the statutory period allowing for amendments" and that "[t]he reasons for the amended filing . . . were not obvious from any careful reading of the Affidavit of Probable Cause." Appellant's Brief at 10. Lashaway also asserts, without citation to the record or authority, that he was denied fairness and due process by the tardy filing of the count for conspiracy to commit child molesting.
The State argues that Lashaway was not substantially prejudiced by the new filing. Specifically, the State argues that "Lashaway was not in any way prejudiced by [the] amendment, which replaced one class A felony child molestation (all child molesting allegations were eventually dismissed) with a charge of class A conspiracy, based on the exact same evidence." Appellee's Brief at 14. The State argues that "Lashaway's main defenses were a lack of intent and lack of inappropriate contact with K.G.," that "[t]he State, in this case, relied on the exact same evidence to prove the element of intent, for the conspiracy charge, that it would have used to prove intent for the previous charge of child molestation," and that "[t]he same holds true for the defense Lashaway put forward with respect to inappropriate contact." Id. at 15. The State further contends that "Lashaway had ample time within which to prepare a defense," that "[t]he day after the State was granted its motion to amend . . . Lashaway successfully moved for a continuance of the trial date," and that "[t]he trial was moved from August 9, 2010, to October 4, 2010, giving Lashaway roughly three months and one week within which to prepare a defense from the moment of the approved continuance on July 27, 2010." Id at 16. The State also argues that the same key witnesses were used for the amended conspiracy charge as would have been used for the child molestation charge and that the factual circumstances for both charges focused on the interrelationship between H.G. and Lashaway and the nature of Lashaway's involvement with K.G. The State also argues that Lashaway waived any due process argument because he did not cite to the record or authority and does not present a cogent argument.
In his reply brief, Lashaway argues that the State "altered its course of prosecution by filing [the amended count] which substituted conspiracy to commit child molesting from actually improper touching of the alleged victim." Appellant's Reply Brief at 2. Lashaway also argues that the additional conspiracy charge related to a new and separate offense and that the amended information was one of substance and not merely form.
Ind. Code § 35-34-1-5 permits "amendments of substance at any time before the commencement of trial so long as the amendment does not prejudice the substantial rights of the defendant." Wilson v. State, 931 N.E.2d 914, 918 (Ind. Ct. App. 2010),
Ind. Code § 35-34-1-5(b) provides in part:
The indictment or information may be amended in matters of substance and the names of material witnesses may be added, by the prosecuting attorney, upon giving written notice to the defendant at any time:
(1) up to:
(A) thirty (30) days if the defendant is charged with a felony; orbefore the omnibus date; or
(B) fifteen (15) days if the defendant is charged only with one (1) or more misdemeanors;
(2) before the commencement of trial;
trans. denied; see also Gaby v. State, 949 N.E.2d 870, 874 (Ind. Ct. App. 2011); Brown v. State, 912 N.E.2d 881, 890 (Ind. Ct. App. 2009), trans. denied. The "substantial rights" of a defendant include a right to sufficient notice and an opportunity to be heard regarding the charge. Gaby, 949 N.E.2d at 874 (citation omitted). "Ultimately, the question is whether the defendant had a reasonable opportunity to prepare for and defend against the charges." Id. (quoting Brown, 912 N.E.2d at 890 (quoting Sides v. State, 693 N.E.2d 1310, 1313 (Ind. 1998), abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007))). The substantial rights of the defendant are not prejudiced if: (1) a defense under the original information would be equally available after the amendment, and (2) the defendant's evidence would apply equally to the information in either form. Id. Further, "an amendment is of substance only if it is essential to making a valid charge of the crime." Id. (citing McIntyre v. State, 717 N.E.2d 114, 125-126 (Ind. 1999)).
Here, the original charging information alleging four counts of child molestation as class A felonies was filed on April 14, 2010. The State moved to amend the information to add a count of conspiracy to commit child molesting as a class A felony on July 19, 2010, which following a hearing the court granted. The State filed the amended information which included the added count for conspiracy to commit child molesting on July 27, 2010. We observe that the evidence and witness testimony which the State relied upon to support its charge that Lashaway conspired to commit child molesting was in large part the same evidence and testimony it would have relied upon to support the molestation charges. Lashaway was not deprived of his ability to raise defenses related to intent or to challenge the testimony of H.G. Moreover, on July 28, 2010, Lashaway filed a motion for continuance, and the trial court granted the motion, vacated the trial set for August 9, 2010, and rescheduled the trial for October 4, 2010. Lashaway's trial commenced on October 4, 2010. Lashaway had sixty-nine days— nearly ten weeks—between the date the amended information was filed and the date his bench trial commenced to prepare his defense to the extent the defense required additional preparation. Lashaway had a reasonable opportunity to prepare for and defend against the amended charge.
Based upon the record, the initial and amended charges, and the trial court's continuance which provided Lashaway additional time to prepare for trial, we conclude that Lashaway's substantial rights were not prejudiced by the court's ruling permitting the State to amend the charging information. See Townsend v. State, 753 N.E.2d 88, 9295 (Ind. Ct. App. 2001) (holding that a seven-day continuance to prepare for an amended charge did not prejudice the defendant's substantial rights and that the defendant had a reasonable opportunity to prepare for and defend against the amended charges); Tripp v. State, 729 N.E.2d 1061, 1063-1065 (Ind. Ct. App. 2000) (holding that the defendant did not meet his burden of proving that his substantial rights were prejudiced by an amendment to the charging information where the court continued the trial fifty-three days and noting that the defendant had the opportunity to be heard on the amended charge); see also Gaby, 949 N.E.2d at 875 (noting that the State's amended information did not deprive the defendant of certain defenses); Adcock v. State, 933 N.E.2d 21, 30 (Ind. Ct. App. 2010) (discussing Ind. Code § 35-34-1-5 and finding that an original repeat sexual offender notice provided the defendant with sufficient information of the State's intent to permit him to prepare and defend against the charge and that the trial court did not err in allowing the State to amend the notice), trans. denied.
II.
The next issue is whether the evidence is sufficient to sustain Lashaway's conviction. When reviewing the claim of sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the witnesses. Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003). We look only to the probative evidence supporting the verdict and the reasonable inferences therefrom to determine whether a reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt. Id. If there is substantial evidence of probative value to support the conviction, it will not be set aside. Id.
Ind. Code § 35-41-5-2 provides in part that "[a] person conspires to commit a felony when, with intent to commit the felony, he agrees with another person to commit the felony" and that "either the person or the person with whom he agreed performs an overt act in furtherance of the agreement." Ind. Code § 35-41-5-2 also provides that "[a] conspiracy to commit a felony is a felony of the same class as the underlying felony." Ind. Code § 35-42-4-3 provides in part: "[a] person who, with a child under fourteen (14) years of age, performs or submits to sexual intercourse or deviate sexual conduct commits child molesting, a Class B felony" and that "[h]owever, the offense is a Class A felony if . . . it is committed by a person at least twenty-one (21) years of age . . . ." To convict Lashaway of conspiracy to commit child molesting as a class A felony as charged, the State needed to prove that Lashaway, with the intent to commit the felony, agreed with H.G. to commit child molesting as a class A felony (sexual intercourse or deviate sexual conduct) and that H.G. performed an overt act in furtherance of that agreement. The State alleged that the overt act was that H.G. performed or submitted to deviate sexual conduct with K.G.
The nature of the evidence required to prove a conspiracy has been summarized as follows:
A conspiracy entails an intelligent and deliberate agreement between the parties. But the state is not required to prove the existence of a formal express agreement. It is sufficient if the minds of the parties meet understandingly to bring about an intelligent and deliberate agreement to commit the offense. . . . This may be inferred from the acts committed and the circumstances surrounding the defendant's involvement. Understandably then, a conviction for conspiracy may, and often will, rest solely on circumstantial evidence.Conn v. State, 948 N.E.2d 849, 853 (Ind. Ct. App. 2011) (citing Minniefield v. State, 512 N.E.2d 1103, 1105 (Ind. 1987) (quoting Sutton v. State, 495 N.E.2d 253, 257 (Ind. Ct. App. 1986), reh'g denied, trans. denied) (internal citations and quotations omitted)).
Lashaway argues that the State substantially relied on the trial testimony of H.G. Lashaway asserts that H.G. was a convicted felon, that H.G. "was originally charged with 10 counts of child molesting . . . pled to two (2) 'Class A Felonies' with a cap of forty (40) years if she cooperated," and that H.G. "earlier lied to Detective Cassidy on her initial statement some six (6) or seven (7) times because she feared being arrested." Appellant's Brief at 6. Lashaway argues that appellate courts may review a conviction under the incredible dubiosity doctrine where a conviction is based on equivocal or contradictory testimony, and that there was no physical or forensic evidence to corroborate H.G's self-serving verbal testimony. Lashaway asserts that police were unable to find any images of K.G.'s genitalia after examining the cell phones of Lashaway and H.G. Lashaway further argues that "the conspiracy allegations and facts supporting same are thus, at best simply assertions, as no written or formal agreement [existed] between the Defendants to participate in criminal acts[;] only [H.G.'s] testimony so to get a minimal sentence." Id. at 8. Lashaway also concedes that "a conviction can be upheld on the uncooberated [sic] testimony of a convicted felon but such testimony is subject to the most careful scrutiny when weighing the fate of an individual with no past felony convictions or pattern of criminal conduct." Id.
The State argues that it presented evidence sufficient to show that a conspiracy to commit child molestation existed between Lashaway and H.G. and that the evidence in support of the element of intent includes Lashaway's statements about wanting to have sex with K.G., his statements after receiving the pictures and videos, and his fantasies involving K.G. The State argues that the evidence shows there was an agreement regarding future molestations and that H.G. took overt steps to make the future molestations a reality. The State points to H.G.'s testimony that she told K.G. to touch H.G.'s vagina to see if she was ready to cooperate and give Lashaway oral sex. The State also argues that Lashaway's argument is merely an invitation to reweigh the evidence and to give more weight to his own version and less weight to H.G.'s testimony. In his reply brief, Lashaway argues that his conviction "relied heavily on the testimony of co- conspirator [H.G.]" and that H.G.'s "testimony was self serving and motivated so to lessen her sentence." Appellant's Reply Brief at 1.
To the extent Lashaway challenges the testimony of H.G. and argues that she testified against him to obtain leniency in her own sentence, we note that if there is an existing agreement between the State and one of its witnesses, a prosecutor has a duty to reveal it. Whatley v. State, 908 N.E.2d 276, 283 (Ind. Ct. App. 2009) (citing Rubalcada v. State, 731 N.E.2d 1015, 1024 (Ind. 2000) (noting that a prosecutor must disclose "any agreement made with the State's witness, such as promises, grants of immunity, or reward offered in return for testimony.")), trans. denied. The purpose of this rule is to assist the trier of fact in assessing the witness's credibility. See id. (citing McCorker v. State, 797 N .E.2d 257, 266 (Ind. 2003)). On the other hand, the State is not required to disclose a witness's hope of leniency. Id. Here, Lashaway does not argue or point to the record to show that the State failed to disclose to the court that H.G. had received a plea agreement under which she received some degree of leniency in exchange for her testimony against Lashaway. The court heard H.G.'s testimony, and H.G. was questioned before the court regarding her prior conviction for theft in 2004, the fact that she had initially lied to Detective Cassidy because she feared being arrested, and the terms of her plea agreement with the State that her sentence would be capped at forty years if she cooperated. The court as trier of fact was able to assess the credibility of H.G. in light of the plea agreement or leniency she would receive in exchange for her testimony against Lashaway. Lashaway's arguments regarding why H.G.'s testimony should not be believed amount to an invitation that we reweigh the evidence, which we cannot do. See Jones, 783 N.E.2d at 1139.
To the extent Lashaway asserts that the incredible dubiosity rule requires reversal of his convictions, we note that the rule applies only in very narrow circumstances. See Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). The rule is expressed as follows:
If a sole witness presents inherently improbable testimony and there is a complete lack of circumstantial evidence, a defendant's conviction may be reversed. This is appropriate only where the court has confronted inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity. Application of this rule is rare and the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it.Fajardo, 859 N.E.2d at 1208 (quoting Love, 761 N.E.2d at 810). Lashaway fails to show that the testimony of H.G. was inherently contradictory. To the extent H.G.'s testimony conflicted with Lashaway's testimony or Lashaway argues that H.G.'s testimony was less believable, we note that this is an issue of witness credibility. The function of weighing witness credibility lies with the trier of fact, not this court. Whited v. State, 645 N.E.2d 1138, 1141 (Ind. Ct. App. 1995). We cannot reweigh the evidence and judge the credibility of the witnesses. See Jones, 783 N.E.2d at 1139. Further, we cannot say that the testimony of H.G. regarding her communications with Lashaway or her actions with K.G., including the testimony that H.G. asked K.G. to touch her vagina to see if K.G. was willing to cooperate and touch Lashaway and to give Lashaway oral sex, that K.G. touched H.G.'s vagina on the outside and inside, and that Lashaway later started rubbing K.G.'s leg, became angry when K.G. said no, and stated that he was ready for K.G. to "give him head and have sex with her," see Transcript at 72, was so inherently improbable that no reasonable person could believe it. Lashaway does not show how the testimony against him was somehow internally inconsistent and has not shown H.G.'s testimony to be incredibly dubious.
Based upon our review of the evidence as set forth in the record and above, we conclude that sufficient evidence exists from which the trier of fact could find Lashaway guilty beyond a reasonable doubt of conspiracy to commit child molesting as a class A felony. See Riehle v. State, 823 N.E.2d 287, 294 (Ind. Ct. App. 2005) (holding that the evidence was sufficient to support the defendant's conviction for conspiracy to commit child molesting as a class A felony), trans. denied.
III.
The next issue is whether the trial court abused its discretion in sentencing Lashaway. We review the sentence 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 (Ind. 2007). A trial court abuses its discretion if it: (1) fails "to enter a sentencing statement at all;" (2) enters "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;" (3) enters a sentencing statement that "omits reasons that are clearly supported by the record and advanced for consideration;" or (4) considers reasons that "are improper as a matter of law." Id. at 490-491. However, the relative weight or value assignable to reasons properly found, or those which should have been found, is not subject to review for abuse of discretion. Id. at 491.
Lashaway argues that his sentences for his convictions were suspendable, that he is not a career criminal, and that "the acts for which he was convicted are basically products of poor judgment." Appellant's Brief at 12. Lashaway appears to argue that the court failed to properly evaluate all of the mitigating circumstances, including the fact that Lashaway did not commit a crime of violence, had no history of criminal or delinquent behavior, and the convictions for which he was convicted are unlikely to reoccur in that Lashaway is likely to respond to probation or short term incarceration and expressed great remorse. Lashaway further cites to Article 1 § 16 of the Indiana Constitution and asserts that his sentence "although valid pursuant to statute, may be unconstitutional by reason of its length if so severe as to lack proportionality to the gravity of the offense." Id. at 13.
The State argues that Lashaway received the advisory sentence and that the court properly considered all of the mitigating and aggravating factors present in this case. The State asserts that the court identified the mitigators as support from Lashaway's wife and members of the community, his lack of criminal history, his high probability of rehabilitation, and his remorse. The State further asserts that "Lashaway's argument appears to be that the trial court did not give appropriate weight to his mitigating circumstances" and that this court may not review the relative weight of the mitigators. Appellee's Brief at 20. The State also argues that Lashaway's sentence is not disproportionate under the Indiana Constitution and that he waived any argument that his sentence is inappropriate.
The determination of mitigating circumstances is within the discretion of the trial court. Rogers v. State, 878 N.E.2d 269 (Ind. Ct. App. 2007), trans. denied. The trial court is not obligated to accept the defendant's argument as to what constitutes a mitigating factor, and a trial court is not required to give the same weight to proffered mitigating factors as does a defendant. Id. A trial court's determination of a defendant's remorse is similar to a determination of credibility. Pickens v. State, 767 N.E.2d 530, 534-535 (Ind. 2002). Without evidence of some impermissible consideration by the court, we accept its determination of credibility. Id. In addition, the trial court is in the best position to judge the sincerity of a defendant's remorseful statements. Stout v. State, 834 N.E.2d 707, 711 (Ind. Ct. App. 2005), trans. denied.
At sentencing, Lashaway submitted a letter expressing his remorse and testified that he would like to apologize for his actions and asked for forgiveness. Also at sentencing, the court heard testimony from Lashaway's wife and Lashaway's counsel argued that he had never seen a defendant with more familial support. Lashaway's counsel argued that the chances were high that Lashaway could be rehabilitated, that Lashaway has shown remorse, and that Lashaway had minimal criminal history and did not have a pattern of criminal conduct.
The trial court acknowledged the letters it received and the testimony of Lashaway's wife. The court further noted that Lashaway had no prior criminal history other than a 2009 theft case that included a diversion program. The court then found Lashaway's minimal criminal history, his chance of rehabilitation, and his remorse to be mitigating circumstances. The court found the nature and circumstances of the crime, including the length of the conspiracy, to be an aggravating circumstance. The court also stated:
One thing the record doesn't pick up is demeanor. And clearly the Court felt the demeanor from you was someone who always wanted to control the situation. And the demeanor clearly from [H.G.] was - I mean, - if she wasn't a class woman that had no self-image, no respect for herself, I don't know who is, because [H.G.] was clearly - if anyone would fall into the category of being the - the slave and the master/slave concept, she was it. And you saw that about her, and you took advantage of that. . . . But you saw the opportunity to take advantage of a woman and groom that mother so that she would offer up her child for you. And that's what you did. . . . So the grooming began with mom. And you really tested her to see if she was going to follow through. . . . Clearly, clearly, Mr. Lashaway, you are the man who was in control of that situation.Id. at 313-315. The trial court was able to consider Lashaway's statements at sentencing, and to the extent Lashaway argues that the court improperly assessed the weight to be assigned to his remorse, lack of criminal history, the relative probability of his rehabilitation, or the fact that he did not commit a crime of violence, we note that the argument is, in essence, a request for this court to reweigh those factors, which we may not do. See Anglemyer, 868 N.E.2d at 490-491. Based upon the record, we cannot say that the court abused its discretion in sentencing Lashaway.
Further, to the extent Lashaway argues that his sentence violates Article 1, § 16 of the Indiana Constitution because it lacks proportionality to the gravity of the offense, we note that "[d]etermining the appropriate sentence for a crime is a function properly exercised by the legislature." Teer v. State, 738 N.E.2d 283, 290 (Ind. Ct. App. 2000), trans. denied.
This court will not disturb the legislature's determination unless there is a showing of clear constitutional infirmity. In other words, we will not set aside a legislatively sanctioned penalty because it might seem too severe.Id. (internal citations omitted).
Rather, a sentence may be unconstitutional by reason of its length, if it is so severe and entirely out of proportion to the gravity of offense committed as to shock public sentiment and violate the judgment of a reasonable people.
Conspiracy to commit child molesting as a class A felony carries an advisory sentence of thirty years, with up to twenty years added for aggravating circumstances and up to ten years subtracted for mitigating circumstances. See Ind. Code § 35-50-2-4. The trial court sentenced Lashaway to thirty years for conspiracy to commit child molesting as a class A felony. We cannot say that Lashaway's sentence shocks the public sentiment or violates the judgment of reasonable people. See Teer, 738 N.E.2d at 290.
Finally, to the extent that Lashaway argues that his sentence is inappropriate, we note that Ind. Appellate Rule 7(B) provides that this court "may 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." Under this rule, the burden is on the defendant to persuade the appellate court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). While the record reveals that Lashaway may not have had an extensive criminal history, the nature of the offense as described above and revealed by the evidence presented leads us to the conclusion that the advisory term is not inappropriate. After due consideration, we conclude that Lashaway has not sustained his burden of establishing that his sentence of thirty years is inappropriate in light of the nature of the offense and his character.
For the foregoing reasons, we affirm Lashaway's conviction and sentence for conspiracy to commit child molesting as a class A felony.
Affirmed. BAKER, J., and KIRSCH, J., concur.
if the amendment does not prejudice the substantial rights of the defendant. When the information or indictment is amended, it shall be signed by the prosecuting attorney or a deputy prosecuting attorney.