Opinion
23A-CR-2476
09-18-2024
Randall Nolan Musgrave, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT Eric Grzegorski Howard County Public Defender Kokomo, Indiana. ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Steven J. Hosler Megan M. Smith Deputy Attorneys General Thomas A. Tuck Certified Legal Intern 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Howard Superior Court The Honorable Hans S. Pate, Judge Trial Court Cause No. 34D04-2202-F1-585
ATTORNEY FOR APPELLANT Eric Grzegorski Howard County Public Defender Kokomo, Indiana.
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Steven J. Hosler Megan M. Smith Deputy Attorneys General Thomas A. Tuck Certified Legal Intern Indianapolis, Indiana.
MEMORANDUM DECISION
Baker, Senior Judge.
Statement of the Case
[¶1] Randall Musgrave appeals his sentence for his convictions of attempted child molesting, child solicitation, attempted dissemination of matter harmful to minors, attempted dealing in marijuana, and possession of marijuana. Finding no error, we affirm.
Issues
[¶2] Musgrave presents one issue for our review, which we expand as:
I. Whether the trial court abused its discretion when it sentenced Musgrave.
II. Whether Musgrave's sentence is inappropriate.
Facts and Procedural History
[¶3] In February 2022, Detective Austin Bailey of the Kokomo Police Department posed as a twelve-year-old girl named Katie Bronson on a website called Doublelist. The Detective a/k/a "Katie" and fifty-six-year-old Musgrave connected on Doublelist and exchanged messages for about a week. Musgrave was then arrested at a Taco Bell in Kokomo where the two had planned to meet.
[¶4] The State charged Musgrave with attempted child molesting as a Level 1 felony; child solicitation as a Level 4 felony; attempted dissemination of matter harmful to minors, a Level 6 felony; attempted dealing in marijuana, a Class A misdemeanor; and possession of marijuana, a Class B misdemeanor. A jury convicted him as charged, and the court ordered him to serve an aggregate sentence of thirty-six years. Musgrave now appeals.
Discussion and Decision
[¶5] Musgrave frames his appellate argument as challenging the inappropriateness of his sentence. However, the lion's share of Musgrave's argument is essentially that the trial court erred in finding aggravating and mitigating circumstances. It seems that Musgrave conflates two separate sentencing standards: whether the trial court abused its discretion in identifying mitigating and aggravating factors and whether his sentence is inappropriate pursuant to Appellate Rule 7. "[I]nappropriate sentence and abuse of discretion claims are to be analyzed separately." King v. State, 894 N.E.2d 265, 267 (Ind.Ct.App. 2008).
Accordingly, to the extent Musgrave argues the trial court abused its discretion, we address his contention as a separate issue.
I. Abuse of Discretion
[¶6] "[S]entencing 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. Among the ways in which a trial court may abuse its discretion are omitting reasons for imposing a sentence that are clearly supported by the record and advanced for consideration or including reasons that are improper as a matter of law. Id. at 491. 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 drawn therefrom. Id. at 490 (quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)).
[¶7] Here, Musgrave cites the same six mitigating circumstances that were advanced by him and discussed at his sentencing. Though declining to find them mitigating or perhaps not assigning them as much weight as Musgrave would like, the court considered these circumstances in determining his sentence, and Musgrave provides no additional information or argument for us to consider with regard to these factors. See Tr. Vol. II, pp. 321-22; see Page v. State, 878 N.E.2d 404, 408 (Ind.Ct.App. 2007) (finding of mitigating factors is not mandatory but is within discretion of trial court), trans. denied.
[¶8] Musgrave also argues the trial court improperly identified the nature and circumstances of his offenses as an aggravating circumstance because, "[w]hile the court did recite facts of the offense, there was no discussion that those facts went beyond the statutory requirements] . . . ." Appellant's Br. p. 12. It is well settled that "when evaluating the nature of the offense, 'the trial court may properly consider the particularized circumstances of the factual elements as aggravating factors.'" McElroy v. State, 865 N.E.2d 584, 589-90 (Ind. 2007) (quoting McCarthy v. State, 749 N.E.2d 528, 539 (Ind. 2001)). This aggravator is generally associated with "'particularly heinous facts or situations,'" and the trial court must detail why the circumstances warrant an enhanced sentence. McElroy, 865 N.E.2d at 590 (quoting Vasquez v. State, 762 N.E.2d 92, 97 (Ind. 2001)).
[¶9] The statutory elements of Count 1 as charged by the State in this case include that Musgrave is over the age of twenty-one and that he attempted to commit child molesting by knowingly or intentionally, with a child under fourteen (14) years of age, taking a substantial step toward performing or submitting to sexual intercourse or other sexual conduct. See Ind. Code §§ 35-42-4-3(a)(1) (2021), 35-41-5-1 (2014); Appellant's App. Vol. 2 Confid., p. 40. The State further charged in Count 2 that Musgrave used a computer network to knowingly or intentionally solicit a person he believed to be a child under fourteen years of age to engage in sexual intercourse or other sexual conduct and traveled to meet the person. See Ind. Code § 35-42-4-6(b)(1) (2014); Appellant's App. Vol. 2 Confid., p. 36.
[¶10] At sentencing, the court examined the unique circumstances of these offenses, citing Musgrave's messages in which he told "Katie" what to wear to meet him and how to get out of the house without her guardian knowing what she was doing. Tr. Vol. II, p. 320. The court deemed these communications "disturbing." Id. The court further stated that this was not a "run-of-the-mill soliciting" case and that Musgrave's messages were "hard core pornography" that included mention of "using marijuana with the twelve year old child," instructing her "how to prepare her vagina for the sex," and sending her a picture of his penis. Id. at 322. The court also noted that when Musgrave was arrested, he had sex toys in his truck. Thus, the court's recitation and discussion of these facts was sufficient to support this aggravator. To the extent that Musgrave's claim is that the court erred because it did not explicitly state words to the effect of "these facts go beyond the required statutory elements," we disagree; no magic language is required for a court to apply this aggravator.
[¶11] Finally, we note that a trial court is not limited by the statutory factors in determining a sentence; rather, it may impose any sentence that is authorized by statute and permissible under our state constitution regardless of the presence or absence of aggravating or mitigating circumstances. Ind. Code § 35-38-1-7.1(c), (d) (2019). We find no abuse of discretion in this case.
II. Inappropriateness
[¶12] Indiana Appellate Rule 7(B) authorizes us to revise a sentence if we determine it to be inappropriate in light of the nature of the offense and the character of the offender. Although Rule 7(B) requires us to consider both of these factors, the appellant is not required to prove that each of them independently renders his sentence inappropriate. Turkette v. State, 151 N.E.3d 782, 786 (Ind.Ct.App. 2020), trans. denied. Rather, they are separate inquiries that we ultimately balance to determine whether a sentence is inappropriate. Id.; see also Lane v. State, 232 N.E.3d 119, 126 (Ind. 2024) (confirming that while reviewing courts must consider both factors, defendant need not necessarily prove sentence is inappropriate on both counts). Our determination "turns on our sense of 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). Sentence modification under Rule 7(B) is reserved for rare and exceptional cases. Wilmsen v. State, 181 N.E.3d 469, 472 (Ind.Ct.App. 2022) (quoting Livingston v. State, 113 N.E.3d 611, 612 (Ind. 2018)).
[¶13] Our Supreme Court has long said that sentencing is "'principally a discretionary function in which the trial court's judgment should receive considerable deference.'" Lane, 232 N.E.3d at 122 (quoting Cardwell, 895 N.E.2d at 1222). This deference prevails 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).'" Littlefield v. State, 215 N.E.3d 1081, 1089 (Ind.Ct.App. 2023) (quoting Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015)), trans. denied. The defendant bears the burden of persuading the appellate court that his sentence is inappropriate. Reynolds v. State, 142 N.E.3d 928, 944 (Ind.Ct.App. 2020), trans. denied.
[¶14] Our analysis of the nature of the offense starts with the advisory sentence, as it is the starting point selected by the legislature as an appropriate sentence for the crime. Reis v. State, 88 N.E.3d 1099, 1104 (Ind.Ct.App. 2017). Musgrave was convicted of Count 1 attempted child molesting, a Level 1 felony, for which the sentencing range is between twenty and forty years, with an advisory sentence of thirty years. Ind. Code § 35-50-2-4(b) (2014). He was also convicted of Count 2 child solicitation, a Level 4 felony, for which the sentencing range is between two and twelve years, with an advisory sentence of six years. Ind. Code § 35-50-2-5.5 (2014).
[¶15] In addition, Musgrave was convicted of Count 3 attempted dissemination of matter harmful to minors, a Level 6 felony, for which the sentencing range is between six months and two and one-half years, with an advisory sentence of one year, and Count 4 attempted dealing in marijuana, a Class A misdemeanor, for which the sentence may not exceed one year. Ind. Code §§ 35-50-2-7(b) (2019), 35-50-3-2 (1977). Finally, he was convicted of Count 5 possession of marijuana, a Class B misdemeanor, for which the sentence may not exceed one hundred eighty days. Ind. Code § 35-50-3-3 (1977).
[¶16] The trial court sentenced Musgrave to thirty-five years on Count 1, nine years on Count 2, one and one-half years on Count 3, one year on Count 4, and one hundred eighty days on Count 5. The court determined that Counts 1, 2, and 3 should be served concurrently, while Counts 4 and 5 should be served concurrently to each other but consecutively to Counts 1, 2, and 3, for an aggregate sentence of thirty-six years.
[¶17] In his brief, Musgrave focuses his argument only on his sentences for Counts 1 and 2. Yet, when assessing inappropriateness under Appellate Rule 7(B), 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.'" Norton v. State, 235 N.E.3d 1285, 1290-91 (Ind.Ct.App. 2024) (quoting Brown v. State, 10 N.E.3d 1, 8 (Ind. 2014)). Notably here, the advisory sentences for Counts 1 and 2 are thirty years and six years, respectively, and Musgrave's aggregate sentence for all five counts in this case totals thirty-six years. Thus, Musgrave's total sentence is less than the maximum sentence of the forty years he was facing on just a single count of the five of which he was convicted.
[¶18] To further assess the nature of the offense, we look to the details and circumstances surrounding the offense, including the heinousness and brutality of such, and the defendant's participation therein. Pritcher v. State, 208 N.E.3d 656, 668 (Ind.Ct.App. 2023). We believe the court's statements at sentencing, as discussed in Issue I., sufficiently express the nature of these offenses.
[¶19] Our analysis of a defendant's character involves a broad consideration of a defendant's qualities, including age, criminal history, background, past rehabilitative efforts, and remorse. Id. Other than answering a few questions in the presentence investigation packet, Musgrave refused to provide information or participate in the preparation of the presentence investigation report. And of the few questions he did answer, he responded falsely to two of them. Specifically, Musgrave indicated he has no felony convictions and has never been to prison. However, records show he has felony convictions for two counts of burglary, indecent liberty with a child, unlawful use of a weapon, and theft.
[¶20] Considering his character, Musgrave points to his lack of criminal activity for nearly thirty years. While our Supreme Court has acknowledged that "[t]he chronological remoteness of a defendant's prior criminal history should be taken into account[,]" it declined to "'say that remoteness in time, to whatever degree, renders a prior conviction irrelevant.'" Buchanan v. State, 767 N.E.2d 967, 972 (Ind. 2002) (quoting Harris v. State, 396 N.E.2d 674, 677 (Ind. 1979)). Of significance here is Musgrave's prior conviction for indecent liberty with a child due to its similarity to his present offenses. In addition, his dishonesty in the presentence investigation process does not reflect well on his character.
[¶21] Musgrave offers no compelling evidence that portrays the nature of his offenses or his character in a positive light to overcome the deference we show to a trial court's sentence.
Conclusion
[¶22] In light of the foregoing, we conclude that the trial court did not abuse its discretion in sentencing Musgrave and that, after considering the nature of the offenses and the character of the offender and giving due consideration to the trial court's sentencing decision, Musgrave failed to satisfy his burden of demonstrating that his sentence is inappropriate.
[¶23] Affirmed.
Altice, C.J., and Crone, J., concur.