Derrick E. Hampsch v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION FILED
May 09 2016, 8:32 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as CLERK
Indiana Supreme Court
precedent or cited before any court except for the Court of Appeals
and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark A. Foster Gregory F. Zoeller
Foster, O’Daniel, Hambidge & Lynch, Attorney General of Indiana
LLP
Larry D. Allen
Evansville, Indiana
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Derrick E. Hampsch, May 9, 2016
Appellant-Defendant, Court of Appeals Case No.
42A01-1510-CR-1682
v. Appeal from the Knox Superior
Court.
The Honorable Jeffrey L.
State of Indiana, Biesterveld, Special Judge.
Appellee-Plaintiff. Cause No. 42D01-1410-FC-29
Friedlander, Senior Judge
[1] Derrick E. Hampsch appeals the sentence the trial court imposed on his
conviction of sexual misconduct with a minor, a Class C felony. We affirm in
part, reverse in part, and remand.
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[2] Hampsch worked as a youth minister at a church in Vincennes, Indiana. He
was married with three children. In 2009, when he was twenty-six, thirteen-
year-old G.D. was a member of his youth group. Her parents met privately
with Hampsch to inform him G.D. had a crush on him, expecting he would
deal with it appropriately.
[3] Instead, Hampsch had sexually-oriented conversations with G.D. via Facebook
over a period of several months. Hampsch and his wife had a joint Facebook
account, but Hampsch secretly created a separate account to exchange sexually
explicit messages with G.D. using that account’s private messaging function.
He also exchanged sexually explicit text messages with her. In addition,
Hampsch had lunch with his youth group members at their schools. During
lunch visits to G.D.’s school, he frequently sat next to her and rubbed her leg.
[4] In the fall of 2009, Hampsch took G.D. into a storage room at the church and
fondled her breasts. In April 2010, Hampsch took his youth group to a church
conference in Madison County, Indiana. He arranged for G.D., who had by
then turned fourteen, to meet him in a private room after everyone had gone to
sleep. Hampsch inserted his finger into G.D.’s vagina while he made her fondle
his penis.
[5] On April 30, 2010, Hampsch and G.D. were at their church in Vincennes.
Hampsch had G.D. come into his office and locked the door. He then made
G.D. fondle his penis.
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[6] In June 2010, Hampsch and other adults from the church took the youth group
to an event in Illinois. After all of the children had gone to sleep, Hampsch and
G.D. met in secret, where he digitally penetrated her vagina and required her to
fondle his penis.
[7] The record demonstrates Hampsch had inappropriate discussions with another
youth group member. A church member discovered that Hampsch had sent her
daughter flirty texts that made her daughter “feel violated, confused, dirty,
ashamed, and very broken hearted.” Id. at 70.
[8] After several years, G.D. disclosed Hampsch’s sexual abuse to her mother, who
contacted the authorities. The State began this case by charging Hampsch with
sexual misconduct with a minor, a Class C felony, in relation to the April 30,
2010 incident where he made G.D. fondle his penis in his office.
[9] The State opened a separate criminal case against Hampsch in Madison
County, charging him with sexual misconduct with a minor as a Class B felony
for his acts against G.D. at the April 2010 church conference. He pleaded
guilty as charged in that case, without any concessions from the State, and
received a twenty-year sentence. The Court affirmed his sentence in that case.
Hampsch v. State, Case No. 48A05-1507-CR-979 (Ind. Ct. App. Feb. 26, 2016),
trans. pending.
[10] Meanwhile, in this case Hampsch also pleaded guilty as charged, again without
any concessions from the State. The trial court accepted the guilty plea. Prior
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to his misconduct with G.D., Hampsch had no criminal record. At sentencing,
the trial court identified aggravating and mitigating factors as follows:
The Court having entered Judgment of Conviction in this cause,
having considered the Pre-Sentence Investigation and the
arguments and evidence of counsel, now makes the following
findings: In way of aggravating factors, the Court determines
that the Defendant was in a position having care, custody,
control of the victim. Being a clergy member creates a special
trust. The family in this case trusted you. The victim trusted
you. You took this duty upon yourself and you became a clergy
member. The Court also finds that the harm, injury, loss or
damage suffered by the victim of this offense was significant and
greater than the elements necessary to prove the commission of
the offense. The Court’s experience and the victim’s letter tell me
that the victim will carry this stigma of the offense for the rest of
her life and that her relationships with men, with her church,
with her family will be affected forever, far beyond these
Courthouse doors. By way of mitigating factors, the Court does
find that the Defendant pled guilty, accepted responsibility for his
actions. He saved the victim from going through a trial and
saved the Court’s time and resources. The Court also notes that
by way of mitigating factors, that prior to this, this Defendant has
no history of delinquency or criminal activity, prior to this
offense and the offense previously stated in the other county. In
way of consecutivity [sic], the Court finds that this is not the part
of a single episode of criminal conduct as argued, that these are
two separate instances, separate and distinct although the
conduct is similar, but the time, the place, the location, the
distance make these separate and distinct instances. The Court
finds that in way of mitigating factors, that this is a hardship
created by the Defendant’s actions. It’s a substantial hardship,
but it’s not an undue hardship.
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Tr. pp. 29-30. The court sentenced Hampsch to six years, to be served
consecutively to his twenty-year sentence from Madison County. This appeal
followed.
[11] Hampsch raises two categories of sentencing challenges. He claims: (1) the
trial court abused its discretion in the course of identifying aggravating and
mitigating factors; and (2) his sentence is inappropriate in light of the nature of
the offense and the character of the offender. We conclude the trial court did
not abuse its sentencing discretion, and Hampsch’s six-year sentence is not
inappropriate, but it is inappropriate in light of the nature of the offense and the
character of the offender for Hampsch to serve this sentence consecutively with
the twenty-year sentence from Madison County.
1.
[12] In general, sentencing decisions are left to the sound discretion of the trial court,
and we review the trial court’s decision only for an abuse of discretion. Singh v.
State, 40 N.E.3d 981 (Ind. Ct. App. 2015), trans. denied. An abuse of discretion
will be found where 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. Bisard v. State, 26 N.E.3d 1060 (Ind. Ct.
App. 2015), trans. denied. A trial court may abuse its discretion in a number of
ways, including: (1) failing to enter a sentencing statement at all; (2) entering a
sentencing statement that includes aggravating and mitigating factors that are
unsupported by the record; (3) entering a sentencing statement that omits
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reasons that are clearly supported by the record; or (4) entering a sentencing
statement that includes reasons that are improper as a matter of law. Id.[13] Hampsch argues the trial court gave insufficient weight to the mitigating
factors, specifically, his lack of a criminal history, his guilty plea, and the
hardship that his family will experience during his incarceration. A trial court
does not have an obligation to explicitly weigh aggravating and mitigating
factors when imposing a sentence. Id. As a result, the relative weight a trial
court assigns to aggravating and mitigating circumstances is not subject to
appellate review. J.S. v. State, 928 N.E.2d 576 (Ind. 2010).
[14] Next, Hampsch claims the trial court overlooked mitigating factors. A trial
court must consider the mitigating factors presented by a defendant, but a
finding of mitigating circumstances is discretionary, not mandatory. Harlan v.
State, 971 N.E.2d 163 (Ind. Ct. App. 2012). The trial court is not obligated to
credit the facts in the way the defendant suggests they should be credited. Id.[15] Hampsch argues he demonstrated his crime was the result of circumstances
unlikely to recur, which is a statutory mitigating circumstance. See Ind. Code §
35-38-1-7.1(b)(2) (West, Westlaw 2008). In support of his argument, he points
to a report from an expert who examined him and concluded he is not a
pedophile. Other evidence in the record weighs against a conclusion that his
crime is unlikely to recur. Hampsch groomed G.D. over several months and
molested her several times over several more months. He had ample
opportunity to stop, but he continued his misconduct. Further, the record
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reflects inappropriate text messages with another girl. We cannot conclude
Hampsch’s proposed mitigating factor is clearly supported by the record. See
Harlan, 971 N.E.2d 163 (trial court did not err by rejecting claim crime was
unlikely to recur; defendant repeatedly molested victim over a period of time
without stopping).
[16] Hampsch next contends the trial court overlooked another statutory
circumstance: he is likely to respond affirmatively to probation or short-term
imprisonment. Ind. Code § 35-38-1-7.1(b)(7). He again points to the report by
his expert witness, asserting a lengthy sentence is unnecessary to reform his
conduct. In contrast to the expert witness’s report, the record demonstrates
Hampsch molested G.D. over a number of months, ending his conduct only
when G.D. left the state, and then hid his misconduct for a number of years.
He also engaged in inappropriate conduct with other another girl in his youth
group, sending flirty texts to her. Under these circumstances, his claimed
mitigator is not clearly supported by the record.
[17] Finally, Hampsch argues the court should have found as a mitigating factor that
his character and attitude indicate he is unlikely to commit another crime. Ind.
Code § 35-38-1-7.1(b)(8). We disagree. He did not admit to his crime against
G.D. until he was confronted with it years later. Further, although Hampsch
presented himself as remorseful and reformed at sentencing, numerous letters
submitted in support of G.D. indicated Hampsch has a deceptive personality
and excels at manipulating others. We cannot conclude this mitigator is clearly
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supported by the record. For these reasons, the trial court did not abuse its
discretion in sentencing Hampsch.
2.
[18] Hampsch asserts his sentence is too long and should not be served
consecutively to his twenty-year sentence from Madison County. Pursuant to
Indiana Appellate Rule 7(B), we may revise a sentence otherwise 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.” The principal purpose of this review is to leaven the
outliers rather than to achieve a “correct” result in each case. Hunt v. State, 43
N.E.3d 588, 590 (Ind. Ct. App. 2015), trans. denied.
[19] Whether a sentence is inappropriate ultimately turns on 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. Corbally v. State, 5 N.E.3d 463(Ind. Ct. App. 2014). The defendant bears the burden of persuading the
appellate court that his or her sentence is inappropriate. Id.[20] At the time Hampsch committed his offense, a Class C felony was punishable
by a maximum sentence of eight years and a minimum sentence of two years,
with an advisory sentence of four years. Ind. Code § 35-50-2-6 (West, Westlaw
2005). The trial court sentenced Hampsch to an enhanced sentence of six years,
to be served consecutively to his twenty-year sentence from Madison County.
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[21] The nature of the offense justifies the enhanced six-year sentence. Hampsch
groomed G.D. for sexual conduct over a period of months, sending her sexually
explicit messages and secretly touching her during lunchtime visits to her
school. G.D.’s parents informed Hampsch that she had a crush on him, and he
used that information to take advantage of her. In addition, Hampsch was in a
position of authority over G.D. as a religious leader and the supervisor of her
youth group. Hampsch’s misconduct had a profoundly negative impact upon
G.D.
[22] Although the nature of the offense supports an enhanced sentence, we cannot
conclude that the nature of the offense requires Hampsch to serve his sentence
for this offense consecutively to his sentence from Madison County for B felony
sexual misconduct with a minor. Hampsch committed both offenses in similar
circumstances, less than a month apart, and both involved the same victim.
Both offenses equally involved an abuse of Hampsch’s position of authority
over G.D., and both contributed to the trauma she experienced. But for the
crimes occurring in different counties, the trial court may well have ordered the
sentences to be served concurrently.
[23] The character of the offender also supports a conclusion that Hampsch should
serve his sentences concurrently. He has no prior criminal record and pleaded
guilty as charged without any concessions from the State, sparing G.D. the
additional trauma of testifying in front of a jury.
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[24] Based on our consideration of the record, Hampsch’s six-year sentence is not
inappropriate in light of the nature of the offense and the character of the
offender, but considering all factors, serving this sentence consecutively with
the Madison County sentence is outside the range of appropriate results. See
Carter v. State, 31 N.E.3d 17 (Ind. Ct. App. 2015) (finding consecutive sentences
inappropriate and directing that two of the three sentences be served
concurrently), trans. denied.
[25] For the foregoing reasons, we affirm the trial court’s judgment in part, reverse
in part, and remand with instructions to issue a revised sentencing order
directing that Hampsch’s sentence in this case will be served concurrently with
the sentence from Madison County in Lower Cause Number 48C03-1410-FB-
1943.
[26] Judgment affirmed in part, reversed in part, and remanded with instructions.
Kirsch, J., and Brown, J., concur.
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