Leslie E. Foreman v. State of Indiana ( 2012 )

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: ATTORNEYS FOR APPELLEE:
WILLAM A. GRAY GREGORY F. ZOELLER
New Albany, Indiana Attorney General of Indiana
JAMES B. MARTIN
Deputy Attorney General
FILED
Indianapolis, Indiana
Feb 08 2012, 9:56 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
LESLIE E. FOREMAN, )
)
Appellant- Defendant, )
)
vs. ) No. 22A04-1108-CR-467
)
STATE OF INDIANA, )
)
Appellee- Plaintiff, )
APPEAL FROM THE FLOYD SUPERIOR COURT
The Honorable Susan L. Orth, Judge
Cause No. 22D01-1104-FD-720
February 8, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issues
Leslie E. Foreman pleaded guilty to child solicitation as a Class D felony and
indecent exposure as a Class A misdemeanor. The trial court sentenced him to three
years executed for child solicitation, consecutive to one year of supervised probation for
indecent exposure. He raises two issues, which we restate as whether the trial court
abused its discretion in finding that Foreman was in a position having the care, custody,
or control of the victim; and whether his sentence is inappropriate. Concluding that the
trial court did not abuse its discretion and his sentence is not inappropriate, we affirm.
Facts and Procedural History
In March 2011, an Indiana mother and father discovered their seven-year-old
daughter‟s sexually inappropriate drawings. Their daughter explained her drawings by
describing what “Papa Wolf” showed her. In an interview with police, the child
identified “Papa Wolf” as Foreman and told police that while visiting with Foreman, who
was a grandfather figure to the child, he showed her his penis, showed her a pornographic
magazine and movie, and masturbated in front of her. Appellant‟s Addendum to App. at
13. The child also reported that Foreman touched her vaginal area over her clothing.
Foreman admitted to these actions and pleaded guilty to one count of child
solicitation as a Class D felony and one count of indecent exposure as a Class A
misdemeanor. At the close of the sentencing hearing, the trial court stated, in pertinent
part:
I also, uh, find to be an aggravating factor subsection (A)(4)(8) [of Indiana
Code section 35-38-1-7.1], that the Defendant in this case was in a position
of having the care, custody and control of [the child]. Uh, that he was in
the role of the grandfather figure. That the mother had testified here today
that she trusted him with her life and more. Uh, and she did do that, she
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trusted her [sic] with her own daughter‟s life and her daughter‟s well being.
Uh, and Mr. Foreman, I find that you took advantage of this trust
relationship to the detriment of a seven year old child. So I find that, uh,
trust position to also be an aggravating factor here today.
Transcript at 22.
The trial court also considered the child-victim‟s tender age to be an aggravating
factor, and found the following as mitigating factors: lack of criminal history, poor
health, admission of guilt, and a substantially law-abiding life. The trial court sentenced
Foreman to three years executed for child solicitation, consecutive to one year of
supervised probation for indecent exposure. Foreman now appeals his sentence.
Discussion and Decision
I. Abuse of Discretion
A trial court may abuse its discretion by failing to enter a sentencing statement,
entering findings of aggravating and mitigating factors unsupported by the record,
omitting factors clearly supported by the record and advanced for consideration, or giving
reasons that are improper as a matter of law. Anglemyer v. State, 868 N.E.2d 482, 490-
91 (Ind. 2007), clarified on reh‟g. 875 N.E.2d 218 (2007). “When one or more
aggravating circumstances cited by the trial court are invalid, the court on appeal must
decide whether the remaining circumstance or circumstances are sufficient to support the
sentence imposed.” Cotto v. State, 829 N.E.2d 520, 525 (Ind. 2005). If we cannot say
with confidence that the trial court would have imposed the same sentence without
considering the improper aggravating circumstance or circumstances, remand for
resentencing may be the appropriate remedy. Anglemyer, 868 N.E.2d at 491.
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Foreman argues the trial court abused its discretion in relying on Foreman‟s
position having care, custody, and control of the child as an aggravating circumstance. In
support of this argument, Foreman refers us to the child‟s mother‟s statements that she
did not give permission for the child to stay alone with Foreman and that – so far as the
mother was aware – another adult was always present when the child was around
Foreman.
A defendant‟s commission of an offense while he or she “was in a position having
care, custody, or control of the victim of the offense” is a valid aggravating circumstance.
Ind. Code § 35-38-1-7.1(a)(8). For this aggravating circumstance to apply, the statute
does not require a parent or guardian to give explicit consent for the defendant to be in a
position having care, custody, or control of the victim at the time the offense was
committed. Here, the child‟s mother turned the child over to another adult for the night,
with knowledge that Foreman might be present and have contact with the child.
Apparently this had occurred before with the mother‟s consent. On the date of the
offenses the child‟s mother expected Foreman to continue teaching the child about the
Native American community as he has done in the past. According to the mother,
Foreman and the child have also eaten dinner together, watched movies together, and
“spen[t] time together.” Tr. at 10. The mother testified that she knew Foreman had
contact with her child and that she trusted him with respect to her child. Id. This
evidence in the record supports the trial court‟s finding of Foreman‟s position having
care, custody, or control of the child as an aggravating factor.
Although the child‟s mother did not expressly consent for the child to stay that
dreadful night with Foreman alone, she did turn her child over to another adult, who then
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turned the child over to Foreman. In other words, whether the child‟s mother was aware
or not, Foreman was placed in a position having care, custody, and control of the child.
Further, Foreman‟s position of trust as an aggravating factor is not put into
question by the cases to which he refers us. Foreman first refers us to Tyler v. State, 903
N.E.2d 463 (Ind. 2009). In Tyler, our supreme court addressed this issue in the context
of determining whether the sentence was inappropriate – so its analysis is inapposite to
our discussion here. In addition to addressing a different legal issue, the facts of Tyler
are notably distinguishable. The supreme court concluded that the defendant was not in a
position of trust where the defendant did not seek opportunities to supervise the children
he molested or to establish a position of trust or confidence with them. Id. at 469. By
contrast, here the record reveals Foreman‟s regular contact with the child victim, and
unlike the defendant in Tyler, the record shows that Foreman did seek to establish a
position of trust with the child and her mother before he committed these offenses.
Foreman also refers us to Phelps v. State, 914 N.E.2d 283 (Ind. Ct. App. 2009), in which
we agreed with the State, which conceded on appeal that the defendant was not in a
position of control over the children he molested. Foreman‟s offenses do not at all
resemble the conduct of the defendant in Phelps, who assented to the explicit requests of
three teenage boys to show them a pornographic movie and to join them in masturbating.
In any event, we may uphold a sentence where a single aggravating factor supports
it, so long as we can say with confidence that the trial court would have imposed the
same sentence without considering invalid aggravators. Anglemyer, 868 N.E.2d at 491.
Here the trial court validly identified the victim‟s tender age as an aggravating
circumstance for both counts. “[E]xtreme youth” can support an enhanced sentence even
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where the age of the victim is an element of the offense. Brown v. State, 760 N.E.2d 243,
246 (Ind. Ct. App. 2002), trans. denied. Child solicitation as a Class D felony involves a
victim under fourteen years of age. Here, Foreman‟s victim was only seven. “[I]n some
instances the „tender age‟ of a victim in a child molesting case may be considered an
aggravating factor as a particularized circumstance of the crime.” Edrington v. State, 909
N.E.2d 1093, 1097 (Ind. Ct. App. 2009) (citations omitted), trans. denied.
As to indecent exposure, the age of the ill-fated viewers of one‟s indecent
exposure is not an element of the offense. See Ind. Code § 35-45-4-1. Reprehensible as
the offense is, it strikes us as especially so when committed before a seven-year-old child.
Based on our review of the record, we can say with confidence that the trial court would
have imposed the same sentence even if it did not consider Foreman‟s position of trust.
The trial court did not abuse its discretion in sentencing Foreman.
II. Inappropriate Sentence
This court has authority to revise a sentence “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.” Ind. Appellate Rule 7(B). We may
“revise sentences when certain broad conditions are satisfied,” Neale v. State, 826 N.E.2d
635, 639 (Ind. 2005), and we recognize the advisory sentence “is the starting point the
legislature has selected as an appropriate sentence for the crime committed.” Weiss v.
State, 848 N.E.2d 1070, 1072 (Ind. 2006). When examining the nature of the offense and
the character of the offender, we may look to any factors appearing in the record. Spitler
v. State, 908 N.E.2d 694, 696 (Ind. Ct. App. 2009), trans. denied. The burden is on the
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defendant to demonstrate that his sentence is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
Foreman was sentenced to three years executed for child solicitation as a Class D
felony consecutive to one year of supervised probation for indecent exposure as a Class A
misdemeanor. The sentencing range for a Class D felony is six months to three years,
and the advisory sentence is one and one-half years. Ind. Code § 35-50-2-7. The
sentence for a Class A misdemeanor shall not exceed one year. Ind. Code § 35-50-3-2.
As to the nature of the offense, we are drawn to several factual details. First, and
again, the child‟s extreme youth. That the child later drew inappropriate pictures
stemming from Foreman‟s conduct demonstrates the strength of the impact of his
deplorable conduct. We recognize that Foreman admitted guilt and pleaded guilty.
However, we consider more heavily that Foreman‟s conduct has seriously affected the
child. Following Foreman‟s unlawful conduct the child began to have outbursts and
trouble in school, she did not feel safe, she would spontaneously vomit, she would not
sleep well at night, she began wetting her bed, she is too uncomfortable to be medically
examined by male physicians, and at the time of trial she was undergoing counseling.
Prior to these offenses both the child and her mother considered Foreman to be a
grandfather figure to the child. See Tr. at 6-7. Considering this impact, likely at least in
part due to Foreman‟s pseudo-familial relationship with the child, we conclude that the
nature of the offense does not make a sentence of three-years executed and one year of
probation inappropriate.
As to Foreman‟s character, we begin by acknowledging, as the trial court did, that
he lived a substantially law-abiding life, that he largely lacks a criminal history, and that
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he is in poor health. In the context of this case, it is notable that when describing his own
background in preparation of the Pre-Sentencing Investigation report, Foreman admitted
that he had a pending check deception case and an outstanding warrant. His knowledge
of an outstanding warrant without turning himself in and the check deception charge are
consistent with his conduct in this case, in which he breached the trust of the child, her
mother, and the other adult to whom the child‟s mother entrusted the child. While we
sympathize with Foreman‟s poor physical health, our review of sentences for
inappropriateness is an “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.” Cardwell v. State, 895
N.E.2d 1219, 1225 (Ind. 2008). For this reason, we conclude that his sentence is not
inappropriate in light of the nature of his offenses and character.
Conclusion
The trial court did not abuse its discretion in sentencing Foreman, and his sentence
is not inappropriate.
Affirmed.
NAJAM, J., and VAIDIK, J., concur.
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