Aaron D. Murray v. State of Indiana ( 2017 )

FILED
Apr 06 2017, 10:26 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana
Madison, Indiana Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Aaron D. Murray, April 6, 2017
Appellant-Defendant, Court of Appeals Case No.
36A04-1608-CR-1841
v. Appeal from the Jackson Circuit
Court
State of Indiana, The Honorable Richard W.
Appellee-Plaintiff Poynter, Judge
Trial Court Cause No.
36C01-1507-F4-22
Baker, Judge.
Court of Appeals of Indiana | Opinion 36A04-1608-CR-1841 | April 6, 2017 Page 1 of 10
[1] Aaron Murray appeals the sentence imposed by the trial court after Murray
pleaded guilty to three counts of Level 4 Felony Child Molesting,1 arguing that
the sentence is inappropriate in light of the nature of the offenses and his
character. Finding that the sentence is not inappropriate, we affirm.
Facts
[2] In 2015, forty-one-year-old Murray was employed as a math teacher at
Seymour Middle School. During the 2014-15 school year, Murray was then-
twelve-year-old K.B.’s math teacher.2 Until that school year, K.B. had been an
emotionally stable child who was a good student. During the 2014-15 school
year, however, K.B. began to experience problems.
[3] At that same time, K.B. became close to Murray, regularly staying after school
for help with homework. After it was reported that K.B. was experiencing
emotional turmoil, Murray spoke to K.B.’s mother and stated that he and his
wife would spend time with K.B. Murray attended the same church as K.B.
and her mother, and began sitting with K.B. at church and interacting with her
there and at school. Murray also began taking K.B. to concerts and to engage
in volunteer work, and he also began inviting her to stay overnight at his house.
He regularly sent messages to K.B. and talked with her on the telephone.
1
Ind. Code § 35-42-4-3(b).
2
The previous school year, Murray had been suspended for at least three months for a previous incident
about which there are no details in the record.
Court of Appeals of Indiana | Opinion 36A04-1608-CR-1841 | April 6, 2017 Page 2 of 10
[4] In May 2015, Murray began spending even more time with K.B.; often, they
spent hours at a time alone together. He began transporting K.B. to counseling
sessions and even recommended to K.B.’s parents that they find a new
counselor who would allow Murray to sit in on the sessions.
[5] On June 15, 2015, Murray was alone with K.B. at his residence and kissed her.
He attempted to use his tongue, but K.B. pulled away, and he apologized.
Murray told K.B. that he was attached to her. K.B. later reported that this was
her first kiss. A few days later, Murray left on vacation with his wife, and while
he was away, he incessantly contacted K.B. through text, video, SnapChat, and
Facebook messages. He told her that he loved her, that she was beautiful, that
he needed her, and that it would not be long before they could be together
again.
[6] On June 28, 2015, Murray returned from vacation and K.B. went to his house
to spend the day with him. He kissed K.B. while his wife was in the next room.
He confessed what had happened to his wife, and she kicked him out of the
house as a result. In the middle of the night on June 29, 2015, K.B. woke her
mother and said she was going to talk to Murray outside. K.B. then left with
Murray, who drove to a parking lot and began kissing her again—this time
more intimately. When K.B. resisted, Murray told her it was okay. He drove
her home around 4:00 a.m.
[7] Later that same day, Murray returned to K.B.’s residence with gifts for K.B.,
again driving her to a parking lot later that afternoon. Eventually, they drove to
Court of Appeals of Indiana | Opinion 36A04-1608-CR-1841 | April 6, 2017 Page 3 of 10
an overlook where he kissed K.B., grabbed her breasts, and massaged his hand
between her legs outside of her clothes. K.B. was uncomfortable and moved his
hand away. He also moved her hand to stroke his penis outside of his clothing.
He later told investigators that he “felt he should take it as far as he could with
her.” Appellant’s App. Vol. III p. 24.
[8] K.B.’s friend reported the molestations to K.B.’s parents, who reported it to the
police. During their investigation, police officers noted that both Murray and
K.B. had the same Facebook profile picture, which was a picture of the two of
them. Even after the molestations were disclosed, Murray continued to contact
K.B. regularly.
[9] On July 16, 2015, the State charged Murray with three counts of Level 4 felony
child molesting. A no contact order was put in place that prohibited Murray
from contacting K.B. Notwithstanding the no contact order, while Murray was
in jail awaiting trial, he contacted K.B. over fifty times by telephone, totaling
over twenty hours of talking time. Among other things, the following
conversations occurred in those phone calls:
 Murray told K.B. he loved her each time they talked.
 Murray said that he had “never stood in the kitchen naked making
breakfast with anyone before” and that K.B. made him feel comfortable
while he was naked. State’s Ex. 1.
 Murray discussed watching K.B. run around her house while she was
naked.
 K.B. reminded Murray that he had asked her to marry him on her
eighteenth birthday and stated that she had purchased decorative license
plates to commemorate the engagement.
Court of Appeals of Indiana | Opinion 36A04-1608-CR-1841 | April 6, 2017 Page 4 of 10
 Murray told K.B., “I miss making you wet,” and later indicated that he
was stroking himself while talking to her. State’s Ex. 1-2.
 On one occasion, he told K.B., “I just want to strip you naked right now,
lay you back and get to work on that p***y.” State’s Ex. 1.
 Murray stated that he “would rip [K.B.’s] clothes off right now” if he saw
her. State’s Ex. 2.
 Murray said that he missed getting “head” from K.B. Id. He described an encounter at his father’s car dealership where he made
K.B. “wet” and said that employees probably had to “use paper towels to
clean that up.” State’s Ex. 1.
 Murray gave K.B. instructions on how to write him in jail, instructing
her to sign her letters with his last name.
 Murray required K.B. to recite vows of love on each phone call and told
her that no one could keep him away from her.
On April 13, 2016, Murray pleaded guilty as charged in exchange for (1) the
dismissal of charges pending in another case for Level 6 felony residential entry
and Class A misdemeanor battery resulting in bodily injury; and (2) the State’s
agreement not to file new charges on the many violations of the no contact
order.
[10] At the June 28, 2016, sentencing hearing, Murray asked the court for an
“appropriate sentence,” and argued that consecutive terms would not be
appropriate because of his lack of criminal history. Sentencing Tr. p. 69. The
State requested a sentence of three consecutive ten-year terms, with two years
suspended per term, for a total of twenty-four years executed and six years
suspended to probation. The trial court sentenced Murray to consecutive nine-
year terms for each of the convictions but suspended six of the nine years on
Court of Appeals of Indiana | Opinion 36A04-1608-CR-1841 | April 6, 2017 Page 5 of 10
one count, for an aggregate executed sentence of twenty-one years
imprisonment. Murray now appeals.
Discussion and Decision
[11] Murray’s sole argument on appeal is that the sentence is inappropriate in light
of the nature of the offenses and his character. Indiana Appellate Rule 7(B)
provides that this Court may revise a sentence if it is inappropriate in light of
the nature of the offense and the character of the offender. We must “conduct
[this] review with substantial deference and give ‘due consideration’ to the trial
court’s decision—since the ‘principal role of [our] review is to attempt to leaven
the outliers,’ and not to achieve a perceived ‘correct’ sentence . . . .” Knapp v.
State, 9 N.E.3d 1274, 1292 (Ind. 2014) (quoting Chambers v. State, 989 N.E.2d
1257, 1259 (Ind. 2013)) (internal citations omitted).
[12] Murray was convicted of three Level 4 felonies. For each of these convictions,
Murray faced a sentence of two to twelve years imprisonment, with an advisory
term of six years. Ind. Code § 35-50-2-5.5. He received nine years on each
conviction—slightly elevated above the advisory term but short of the
maximum term—and suspended six years of one of the terms to probation.
Ultimately, he received an aggregate executed term of twenty-one years
imprisonment, far less than the maximum possible term of thirty-six years.
[13] As for the nature of Murray’s offenses, he aggressively groomed a twelve-year-
old child over the course of a school year, pursuing her not only at school but
also at church. He was her math teacher and a leader at church, using those
Court of Appeals of Indiana | Opinion 36A04-1608-CR-1841 | April 6, 2017 Page 6 of 10
positions of trust to gain access to her. He was aware that K.B. was having
emotional problems and exploited that knowledge to further lodge himself in
her life. Murray eventually found ways of being alone with K.B., often for
hours at a time. He finally found a way to evolve their relationship into a
sexual one, going so far as to drive K.B. away from her house in the middle of
the night. Murray stayed in nearly constant communication with K.B., even
while vacationing with his wife—and even while incarcerated, in the face of a
no contact order.
[14] K.B.’s father stated that K.B. was “broken” as a result of her relationship with
Murray. Sent. Tr. p. 53. She became suicidal following all of Murray’s phone
calls from jail and had to receive inpatient psychiatric care. In fact, at the time
of the sentencing hearing, K.B. had been in an inpatient facility for over six
months and her family did not know when she would be released. At one
point, Murray was aware that K.B. was suicidal but continued to call her and
explicitly talk about sex. We do not find that the abhorrent nature of the
offenses aids Murray’s argument.
[15] As for Murray’s character, while it is true that he does not have a prior criminal
record, he was facing other criminal charges at the time he pleaded guilty to
child molesting. And he repeatedly and aggressively violated the no contact
order while incarcerated, calling K.B. over fifty times for a total talking time of
over twenty hours, even at a time when he knew she was suicidal. In those
calls, he lewdly discussed sexual acts and his own gratification, using subtle and
not-so-subtle methods of control to emotionally manipulate the child. Murray
Court of Appeals of Indiana | Opinion 36A04-1608-CR-1841 | April 6, 2017 Page 7 of 10
has never taken responsibility for his actions, characterizing the situation as
something that “happen[ed] to” him and never apologizing for the harm he
caused to K.B. Id. at 13. Murray’s actions and behavior are repugnant, and we
do not find that his character aids his argument. If anything, we believe the
trial court exercised admirable restraint in suspending a portion of Murray’s
sentence to probation. We do not find the sentence inappropriate in light of the
nature of the offenses and Murray’s character.
[16] The judgment of the trial court is affirmed.
Barnes, J., concurs.
Crone, J., concurs in result with a separate opinion.
Court of Appeals of Indiana | Opinion 36A04-1608-CR-1841 | April 6, 2017 Page 8 of 10
IN THE
COURT OF APPEALS OF INDIANA
Aaron D. Murray, Court of Appeals Case No.
36A04-1608-CR-1841
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff
Crone, Judge, concurring in result.
[17] When a criminal defendant requests appellate review and revision of his
sentence pursuant to Appellate Rule 7(B), “an appellate court has the power to
affirm, reduce, or increase the sentence.” Akard v. State, 937 N.E.2d 811, 813
(Ind. 2010) (emphasis added) (citing McCullough v. State, 900 N.E.2d 745, 750
(Ind. 2009)). In light of Murray’s egregious betrayals of his positions of trust
with K.B., his dozens of depraved phone calls to his emotionally vulnerable
victim in violation of a no-contact order, and his utter lack of remorse or
acceptance of responsibility, if the State had asked us to impose a harsher
sentence, I would have been inclined to grant that request. While the lack of
Court of Appeals of Indiana | Opinion 36A04-1608-CR-1841 | April 6, 2017 Page 9 of 10
such a request does not preclude an appellate court's consideration of an
upward sentence revision, it is a significant factor. See id. at 814 (“Although the
defendant's raising of sentence reasonableness on appeal authorizes appellate
consideration of whether the assigned sentence is inappropriately stem or
lenient, we decline to increase the sentence here, particularly in the context of
the State’s request for no greater sentence at trial and its assertion on appeal
that such is an appropriate sentence. These are strong indicators that the trial
court sentence is not inappropriately lenient.”) (emphasis added). At Murray’s
sentencing hearing, the State requested a slightly harsher sentence than that
imposed by the trial court. But because we must conduct an Appellate Rule
7(B) sentencing review with “substantial deference” and give “‘due
consideration’” to the trial court’s decision, Knapp, 9 N.E.3d at 1292, and
because the State did not request a harsher sentence in its appellate brief, I
reluctantly concur in the result reached by my colleagues.
Court of Appeals of Indiana | Opinion 36A04-1608-CR-1841 | April 6, 2017 Page 10 of 10