Nicholas R. Hedrick v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Sep 20 2018, 9:08 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven E. Ripstra Curtis T. Hill, Jr.
Jacob P. Wahl Attorney General of Indiana
Ripstra Law Office
Jasper, Indiana Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nicholas R. Hedrick, September 20, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-762
v. Appeal from the Pike Circuit Court
The Honorable Jeffrey L.
State of Indiana, Biesterveld, Judge
Appellee-Plaintiff. Trial Court Cause No.
63C01-1707-F1-463
Brown, Judge.
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[1] Nicholas R. Hedrick appeals his sentence for two counts of child molesting.
Hedrick raises two issues which we revise and restate as:
I. Whether the trial court abused its discretion in sentencing him;
and
II. Whether his sentence is inappropriate in light of the nature of
the offense and the character of the offender.
We affirm.
Facts and Procedural History
[2] During the spring of 2014, Hedrick fondled or touched his five year-old
daughter, E.H., with the intent to arouse or satisfy his own sexual desires. On
July 21, 2017, Hedrick fondled or touched a seven year-old child, J.H., with the
intent to arouse or satisfy his own sexual desires.
[3] On July 31, 2017, the State charged Hedrick with: Count I, child molesting of
E.H., as a class A felony; Count II, child molesting of J.H., as a level 1 felony;
Count III, child molesting of E.H., as a class C felony; Count IV, child
molesting of J.H, as a level 4 felony; Count V, incest as a class B felony; and
Count VI, neglect of a dependent as a class D felony. On December 11, 2017,
Hedrick and the State entered into a plea agreement pursuant to which he
agreed to plead guilty to Counts III and IV. The plea agreement indicates that
the sentences for these counts were “left ‘Open to the Court’s discretion’ and
that each count [was] to run concurrently.” Appellant’s Appendix Volume 2 at
39. Hedrick pled guilty on the same day and the court accepted the plea
agreement. The State dismissed all of the other charges.
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[4] At sentencing, Hedrick stated that he was diagnosed with a learning disability
and quit school at age sixteen to obtain a job and that he maintained manual
labor employment in factories continuously from the time he left school until
his arrest. According to his testimony, Hedrick began smoking marijuana when
he was “about thirteen,” was drinking and smoking marijuana “full-time” when
he was sixteen, and began using methamphetamine daily when he was
seventeen or eighteen, and all three “pretty much” daily until he was twenty-
three. Transcript at 29. He stated that, when he was arrested, his alcohol
consumption was a pint of bourbon per day, that he planned on smoking his
entire life, and that, “[b]efore now,” he had never planned on quitting. Id. at
39. He stated “[y]es” after his counsel noted that he had a number of arrests,
answered affirmatively each time after being asked if he had a “number of
driving while suspended’s,” “a marijuana possession or two,” and “a
furnishing,” and responded that he had to travel to work when requested to
explain his arrests for driving while suspended. Id. at 28.
[5] Hedrick testified that he spread his daughter’s vagina and “that’s when she
asked me, daddy what are you doing.” Id. at 37. He testified that J.H. was a
daughter of his close friends, that they occasionally trusted him with her care,
and that J.H. trusted him. When the prosecutor asked “what’s unspeakable
about this crime,” Hedrick replied “[j]ust the thought of, you know, harming a
child” and agreed when corrected that he meant two children. Id. He answered
affirmatively when asked whether he “told Deputy Killian [that he] had an
erection” when touching E.H.’s vagina and a partial erection when touching
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J.H.’s vagina and stated, after some additional questioning, that he found
himself erect and “then through lack of self-control I touched my daughter.” Id.
at 41. When the prosecutor questioned whether he had promised the court that
this will never happen again, Hedrick answered affirmatively and stated, “I plan
on changing my life.” Id. at 42. The prosecutor then asked, “[c]hanging your
impulses toward young children,” and Hedrick answered in part by stating “it
was not like I was looking for it” and “I was under the influence.” Id. During
the recross-examination, the following exchange occurred between the
prosecutor and Hedrick:
[Prosecutor]: Isn’t it true that in 2014 after that happened you
ended up admitting to your friends, [A.H and D.H.], that you
had touched your daughter inappropriately and that was going to
be the last time. Didn’t you tell them that?
[Hedrick]: Yes.
[Prosecutor]: And fortunately for you, they didn’t report it to
anybody, did they?
[Hedrick]: No.
[Prosecutor]: Until after their daughter got molested by you.
Isn’t that true?
[Hedrick]: Yes.
Id. at 43-44.
[6] The presentence investigation report (“PSI”), in the summary of legal history
section, states in part:
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As an adult, [Hedrick] has a criminal history involving nine (9)
misdemeanor convictions and two (2) felony convictions which
includes [sic] the instant offense. The misdemeanors are as
follows: Contributing to the Delinquency of a Minor (A/Misd.),
two (2) Counts of Possession of Marijuana (A/Misd.), five (5)
Counts of Driving While Suspended (A/Misd.) and Possession
of Paraphernalia (C/Misd.). . . . As an adult, [Hedrick] has been
placed on probation six (6) times. During the duration of
probation, there were five (5) Petitions to Revoke Probation filed.
[Hedrick] completed probation satisfactorily three (3) times, one
(1) was closed unsatisfactorily and one (1) was revoked and the
suspended sentence was ordered executed. At the time of the
instant offense, [Hedrick] was on probation in Dubois County.
[Hedrick] has an active warrant in Dubois County for the
revocation of probation.
Appellant’s Appendix Volume 2 at 48. According to the PSI, Hedrick used or
abused other drugs including heroin, inhalents, caffeine tablets, LSD/acid,
morphine, Xanax, Oxycontin, Mushrooms, and Hydrocodone; he had been
ordered by a court to attend substance abuse treatment at Southern Hills but
quit attending counseling sessions and never completed treatment; and he
reported during the PSI interview that he would drink and use marijuana at
work. The PSI also indicated that Hedrick’s overall risk assessment using the
Indiana risk assessment system placed him in the high risk to reoffend category.
[7] The trial court found that Hedrick had been in positions of trust and of having
care, custody or control of the children. After finding that the harm, injury, loss
or damage suffered by the pair was significant and greater than the elements
necessary to prove the commission of the offenses, the court noted the young
age of the victims, “[e]ven though the age is considered an element of the
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offense,” and observed that the lives of E.H. and J.H. “will forever be changed”
because of Hedrick’s actions. Transcript at 51. It also found that Hedrick had a
history of criminal or delinquent behavior, that the prior lenient treatment
which had been afforded him had not been successful, and that he had violated
the conditions of his last probation. Id. The court observed that Hedrick
described that he was “under the influence and didn’t care and . . . lost control”
and stated that it “does consider the . . . amount of time between the offenses to
be particularly troubling in this matter.”1 Id. The court also found that Hedrick
accepted responsibility for his actions and had pled guilty and it stated that the
“one (1) mitigating factor is far outweighed by the aggravating factors.” Id.
The court sentenced Hedrick to eight years for his conviction of child molesting
as a class C felony and twelve years for his conviction of child molesting as a
level 4 felony and ordered the sentences to be served concurrently.
Discussion
I.
[8] The first issue is whether the trial court abused its discretion in sentencing
Hedrick. We review the sentence for an abuse of discretion, which 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.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on
1
The court’s January 20, 2018 sentencing order states: “Court considers the period of time between the
multiple offenses in this matter.” Appellant’s Appendix Volume II at 19.
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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. If the trial court
has abused its discretion, we will remand for resentencing “if we cannot say
with confidence that the trial court would have imposed the same sentence had
it properly considered reasons that enjoy support in the record.” Id. at 491.
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.
[9] A single aggravating circumstance may be sufficient to enhance a sentence.
Hackett v. State, 716 N.E.2d 1273, 1278 (Ind. 1999) (citing Angleton v. State, 714
N.E.2d 156, 160 (Ind. 1999)). “Generally, the nature and circumstances of a
crime is a proper aggravating circumstance.” Gomillia v. State, 13 N.E.3d 846,
853 (Ind. 2014) (citing McCann v. State, 749 N.E.2d 1116, 1120 (Ind. 2001)).
When a trial court improperly applies an aggravator but other valid aggravating
circumstances exist, a sentence enhancement may still be upheld. Hackett, 716
N.E.2d at 1278 (citing Shields v. State, 699 N.E.2d 636, 639 (Ind. 1998)).
[10] Hedrick argues that the trial court improperly found two aggravating factors:
the harm, loss, and damage suffered by the victims was greater than what was
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needed to prove the elements of the offense, and “the gap of time between the
offenses.” Appellant’s Brief at 11. He argues that no additional harm, loss or
damage to the victims was alleged “beyond what is inherent in such devious
behavior,” that no evidence was presented that the harm suffered was
“exceptional for a child molesting case,” and that the fact that E.H. was his
daughter had been addressed in the “care, custody, or control” aggravator. Id.
at 8, 11. He further contends that it is not clear how the gap in time between
the offenses aggravates the crime given that “[t]he allegations are from two
events, with two victims.” Id. The State responds that the two sentencing
considerations were valid under the circumstances. It contends that the facts
that E.H.’s “own father would do such a thing to her” and that a trusted family
friend sexually molested J.H. will affect each of the victims throughout their
lives, and that it argued at sentencing that Hedrick “was highly likely to re-
offend because he had already done so” and “[b]ecause nothing had changed”
in his lifestyle in the time between the two offenses. Appellee’s Brief at 13-14.
[11] Even if the court considered improper aggravators, other valid aggravating
circumstances, which Hedrick does not challenge, justify the sentence
enhancement. We note that the trial court observed that the lives of E.H. and
J.H. “will forever be changed” because of Hedrick’s actions and found that he
had been in positions of trust and of having care, custody or control of the
victims. Id. at 51. We also note Hedrick’s continued substance abuse and
observe the court’s findings that he had a history of criminal or delinquent
behavior, that the prior lenient treatment which had been afforded him had not
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been successful, and that he had violated the conditions of his last probation.
We conclude that other valid aggravating circumstances, which Hedrick does
not challenge, justify the sentence enhancement and, accordingly, we cannot
say that the trial court abused its discretion in sentencing.
II.
[12] The second issue is whether Hedrick’s sentence is inappropriate in light of the
nature of the offense and his character. Ind. Appellate Rule 7(B) provides that
we “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).
[13] Hedrick argues that the trial court’s sentence was excessive because he pled
guilty to two separate instances with two victims, no additional harm was
found “to raise the severity” of his actions, and he does not have a prior history
of violent or sex crimes involving children. Appellant’s Brief at 8. In essence,
he contends that the record does not present this case as “one of the worst of the
worst” cases of child molesting or warrant the maximum penalty. Id. at 9. The
State argues that the sentence imposed is not inappropriate in light of both the
nature of the offenses and Hedrick’s character.
[14] Our review of the nature of the offenses reveals that Hedrick molested five year-
old E.H. and seven year-old J.H. According to his testimony, he found himself
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erect when he touched E.H., his daughter. Three years after he had shared with
J.H.’s parents that he molested E.H. and told them that was going to be the last
time, he molested J.H.
[15] As for his character, Hedrick pled guilty and left sentencing to the discretion of
the trial court. The plea agreement indicated that Counts III and IV were to
run concurrently, and the State dismissed two counts of child molesting as class
A and level 1 felonies, one count of incest as a class B felony, and one count of
neglect of a dependent as a class D felony. The PSI indicates that he used or
abused multiple drugs and never completed court-ordered substance abuse
treatment. His testimony at the sentencing hearing indicates that when he was
arrested, his alcohol consumption was a pint of bourbon per day, that he
planned on smoking his entire life, and that, “[b]efore now,” he had never
planned on quitting. Id. at 39. Although he does not have a prior history of
violent or sex crimes involving children, the PSI reveals that Hedrick has been
placed on probation six times, has had five petitions to revoke probation filed,
that he was on probation in Dubois County, and had an active warrant for the
revocation of probation. The PSI also indicates that his overall risk assessment
score using the Indiana risk assessment system places him in the high risk to
reoffend category.
[16] After due consideration, we conclude that Hedrick has not sustained his burden
of establishing that his aggregate sentence of twelve years is inappropriate in
light of the nature of the offenses and his character.
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Conclusion
[17] For the foregoing reasons, we affirm Hedrick’s sentence.
[18] Affirmed.
Altice, J., and Tavitas, J., concur.
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