Dennis E. Brewer v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), Jul 20 2018, 5:57 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana
Madison, Indiana
Evan M. Comer
Christina D. Pace
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dennis E. Brewer, July 20, 2018
Appellant-Defendant, Court of Appeals Case No.
15A01-1709-CR-2181
v. Appeal from the Dearborn Circuit
Court
State of Indiana, The Honorable James D.
Appellee-Plaintiff. Humphrey, Judge
Trial Court Cause No.
15C01-1606-FA-16
Mathias, Judge.
[1] Dennis E. Brewer (“Brewer”) pleaded guilty in the Dearborn Circuit Court to
Class B felony attempted child molesting and Class B felony child molesting.
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Brewer was sentenced to serve an aggregate term of sixteen years, with twelve
years executed in the Department of Correction (“DOC”) and four years
suspended to probation. The trial court ordered Brewer to serve his sentence
consecutive to an eight-year executed sentence imposed in Ohio.1 Brewer
appeals and raises two issues for our review, which we restate as:
I. Whether the trial court abused its discretion when it ordered his
sentence to be served consecutive to his sentence imposed in Ohio;
and
II. Whether Brewer’s sentence is inappropriate in light of the nature of
the offense and the character of the offender.
We affirm.
Facts and Procedural History
[2] In early 2011, Brewer lived with his girlfriend Brittany (“Brittany”) and her
family in Aurora, Indiana. Over the course of the next four years, Brewer began
and continued to engage in inappropriate sexual contact with A.T., Brittany’s
younger sister. The first incident occurred when A.T. was between eight and ten
1
Brewer pleaded guilty in Ohio to two counts of first degree felony rape involving the same victim. Ohio’s
rape statute provides: “[n]o person shall engage in sexual conduct with another who is not the spouse of the
offender . . . when . . . [t]he other person is less than thirteen years of age, whether or not the offender knows
the age of the other person.” Ohio Rev. Code § 2907.02(A)(1)(b).
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years old.2 A.T. was playing a video game in Brewer’s bedroom, and he fondled
A.T.’s thigh and her breasts.
[3] Over the course of four years, on multiple occasions, Brewer showed A.T. his
penis and convinced her to manually stimulate his penis to the point of
ejaculation. A.T. also performed fellatio on Brewer, and he touched A.T.’s
clitoris. A.T. testified that she never reported the incidents because Brewer told
her that if she did, he would “get in serious trouble with the law.” Tr. p. 59.
A.T. also felt that nobody in her family would believe her.3 Id.
[4] In March 2016, Brewer molested A.T. while she was visiting Ohio during her
spring break. A.T. told a school friend about the past molestation. A.T.’s friend
reported the incidents to a school administrator, and the incident was reported
to the police. A.T. told the police that she had been molested by Brewer over a
dozen times. Id. at 58. On June 1, 2016, Brewer was interviewed by police
officers at the Delhi Township Police Department, and admitted to molesting
A.T. Ex. Vol. I, State’s Ex. 2, p. 73. These admissions also resulted in the rape
charges and convictions in Ohio.
[5] On June 7, 2016, the State charged Brewer with Class A felony child molesting,
Class B felony attempted child molesting, and Level 1 felony child molesting.
2
There is conflicting testimony regarding A.T.’s age. Brewer testified she was “11, 12.” Ex. Vol. I, State’s
Ex. 2, p. 75. And A.T. testified she was “about eight or nine.” Tr. p. 53. The trial court found A.T.’s age was
“eight (8) to ten (10) years of age.” Appellant’s Am. App. Vol II, p. 189.
3
The incidents occurred over four years and in two counties: Hamilton County, Ohio, and Dearborn
County, Indiana.
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On July 25, 2017, Brewer entered into a plea agreement with the State. He
agreed to plead guilty to Class B felony attempted child molesting and Class B
felony child molesting. The remaining charge was dismissed. Appellant’s Am.
App. Vol. II, pp. 114–15.
[6] At the August 23, 2017 sentencing hearing, the court found as aggravators
Brewer’s age, the rape conviction in Ohio, evidence of uncharged misconduct,
the nature and circumstances of the crime, and Brewer’s position of trust with
A.T. Id. at 211–12. The court considered Brewer’s guilty plea, his expressed
remorse, and age as mitigating factors. Id. at 212–13. The court then sentenced
Brewer in pertinent part as follows:
The defendant shall be sentenced to the Department of
Correction for classification and confinement for a period of
sixteen (16) years with four (4) years suspended on each Count;
said sentences shall be served concurrent with each other and
consecutive to the sentence imposed in the State of Ohio[.]
Id. at 214. Brewer now appeals.
I. Consecutive Sentences
[7] Brewer argues that his sentences for the convictions in Indiana and Ohio should
be served concurrently because his crimes involved “nearly identical conduct
that occurred with the same victim.” Appellant’s Br. at 9. However, “[i]t is well
established that there is no right to serve concurrent sentences for different
crimes in the absence of a statute so providing, and that concurrent sentences
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may be ordered only when they are to be served at the same institution.” Perry
v. State, 921 N.E.2d 525, 527 (Ind. Ct. App. 2010).
[8] In Perry, the defendant pleaded guilty to Class C felony robbery and Class C
felony reckless homicide. Perry was ordered to serve an aggregate ten-year
term, which was to be served “consecutive to his previously imposed Michigan
sentence on unrelated charges.” Id. at 526. Perry appealed claiming “the trial
court abused its discretion in ordering that his Indiana term [] be served
consecutive to his Michigan term of incarceration.” Id. at 527. Our court
observed that it had not found any “controlling precedent authorizing an
Indiana court to order a sentence to run concurrent with a sentence being
served in another state[,]” and therefore, we affirmed the trial court’s judgment.
Id.
[9] Brewer pleaded guilty to rape in Ohio, and child molestation in Indiana. A.T.
was the victim of Brewer’s crimes in Indiana and Ohio, but that does not entitle
Brewer to serve his sentence in Indiana concurrent to his Ohio sentence. For
the reasons expressed in Perry, we conclude that the trial court properly ordered
Brewer to serve his sentences consecutively. See id. at 528 (holding that the trial
court did not abuse its discretion in ordering aggregate sentences to run
consecutive to previously imposed terms of incarceration).
II. Inappropriate Sentence
[10] Brewer also argues that his sixteen-year sentence is inappropriate in light of the
nature of the offense and the character of the offender. Specifically, Brewer
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argues that his sentence is inappropriate because “[t]here was no indication that
[he] had ever engaged in any similar conduct with any other under aged person
at any other time.” Appellant’s Br. at 13.
[11] Indiana Appellate Rule 7(B) provides that “[t]he 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 conducting our review, “[w]e do not look
to determine if the sentence was appropriate; instead we look to make sure the
sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind.
2012). “[S]entencing is principally a discretionary function in which the trial
court’s judgment should receive considerable deference.” Cardwell v. State, 895
N.E.2d 1219, 1222 (Ind. 2008). Thus, although we have the power to review
and revise sentences, the principal role of appellate review should be to attempt
to “leaven the outliers, and identify some guiding principles for trial courts and
those charged with improvement of the sentencing statutes, but not to achieve a
perceived ‘correct’ result in each case.” Id. at 1225. It is Brewer’s burden on
appeal to establish that his sentence is inappropriate. Grimes v. State, 84 N.E.3d
635, 645 (Ind. Ct. App. 2017), trans. denied.
[12] When considering the nature of the offense, we observe that “the advisory
sentence is the starting point the Legislature selected as appropriate for the
crime committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). Brewer
pleaded guilty to two Class B felonies and was ordered to serve concurrent
terms of sixteen years, with twelve years executed in the DOC and four years
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suspended to probation. The advisory sentence for a Class B felony is ten years,
with a sentencing range of six to twenty years.4 Ind. Code § 35-50-2-5(a).
Because he pleaded guilty to two Class B felonies, Brewer faced a possible
maximum sentence of forty years. Therefore, his concurrent sentences of
sixteen years for each conviction is significantly less than the maximum he
could have received.
[13] “[W]hether we regard a sentence as appropriate [] turns on our sense of the
culpability of the defendant, the severity of the crime, the damage done to
others, and myriad of other factors that come to light in a given case.” Cardwell,
895 N.E.2d at 1224. With respect to the nature of the offense here, Brewer took
advantage of his girlfriend’s younger sister and violated a position of trust. He
first fondled A.T., who was between eight and ten years old, while she was
playing a video game in his room. Brewer’s girlfriend caught him showing A.T.
his penis, and when questioned, Brewer lied stating A.T. had asked to see it.
Over the course of four years, Brewer convinced A.T. to engage in fellatio,
manual penis stimulation to ejaculation, and clitoral stimulation. Brewer was
aware of A.T.’s young age when the molestation began.
[14] As to his character, Brewer does not have a criminal history unrelated to the
commission of the offenses against A.T. However, Brewer was in a position of
trust with A.T. He babysat A.T. on multiple occasions. Brewer not only
4
In 2013, the General Assembly changed the classification of criminal offenses from Classes to Levels of a
felony. Sentencing schemes were adjusted accordingly. See P.L. 158-2013 § 657.
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violated his position of trust over A.T. by touching her inappropriately and
having her engage in other sexual conduct, but he also attempted to place the
blame on A.T. When the conduct began, twenty-one-year-old Brewer had
graduated high school and attended two years of college. A.T. was between the
ages of eight and ten years old and was afraid to tell anyone about the
molestation. While Brewer argues that his guilty plea and expression of remorse
reflect well on his character, his violation of A.T.’s trust is an aggravator that
more than outweighs his contrite behavior in the face of overwhelming
evidence.
[15] The ongoing nature of and numerous molestations more than support the trial
court’s decision to impose a sixteen-year sentence, with twelve years executed
in the DOC and four years suspended to probation. For all of these reasons, we
conclude that Brewer’s sentence is not inappropriate in light of the nature of the
offense and his character.
Conclusion
[16] The trial court did not abuse its discretion when it sentenced Brewer to serve his
Indiana term consecutive to his Ohio term, and the sentence was not
inappropriate in light of the nature of the offense and Brewer’s character.
[17] Affirmed.
Riley, J., and May, J., concur.
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