Tony E. Rice v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Aug 04 2015, 9:01 am
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
Adam G. Forrest Gregory F. Zoeller
Boston Bever Klinge Cross & Chidester Attorney General of Indiana
Richmond, Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tony E. Rice, August 4, 2015
Appellant-Defendant, Court of Appeals Cause No.
89A05-1412-CR-556
v. Appeal from the Wayne Superior
Court
Cause No. 89D01-1110-FC-80
State of Indiana,
Appellee-Plaintiff. The Honorable Charles K. Todd, Jr.,
Judge
Barnes, Judge.
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Case Summary
[1] Tony Rice appeals his twelve-year sentence for two counts of Class C felony
child molesting. We affirm.
Issue
[2] Rice raises one issue, which we restate as whether his sentence is inappropriate.
Facts
[3] V.M. was born in 1999. In 2009, V.M. was living in Richmond with her
mother and Rice, who was her mother’s live-in boyfriend. She also lived with
her brother and the child that V.M.’s mother and Rice had together. In 2009,
Rice began molesting V.M. by touching her vagina and breasts and
masturbating. She testified that the molestation occurred at least fifty times.
The molestation continued until 2011.
[4] On October 6, 2011, the State charged Rice with two counts of Class C felony
child molesting. A jury found Rice guilty as charged. In sentencing Rice to
consecutive six-year sentences for a total sentence of twelve years, the trial court
found as aggravating Rice’s criminal history, which included two felony
convictions for child molesting and thirteen misdemeanor convictions, Rice’s
position of trust with V.M. as her mother’s live-in boyfriend, and the fact that
the crimes were part of a series of molestations. As mitigating, the trial court
considered Rice’s health-related issues. Rice now appeals.
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Analysis
[5] Rice argues that his twelve-year sentence is inappropriate. Indiana Appellate
Rule 7(B) permits us to 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. Although Appellate Rule 7(B) does not require us to be “extremely”
deferential to a trial court’s sentencing decision, we still must give due
consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.
App. 2007). We also understand and recognize the unique perspective a trial
court brings to its sentencing decisions. Id. “Additionally, a defendant bears
the burden of persuading the appellate court that his or her sentence is
inappropriate.” Id.[6] The principal role of Appellate Rule 7(B) 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.” Cardwell v. State, 895 N.E.2d 1219, 1225
(Ind. 2008). We “should focus on the forest—the aggregate sentence—rather
than the trees—consecutive or concurrent, number of counts, or length of the
sentence on any individual count.” Id. 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. Id. at 1224.
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[7] Rice contends that the nature of the offenses warrants the revision of his
sentence because he did not use force on V.M. or injure her and did not
penetrate her or require her to touch him. We are not persuaded. Rice, V.M.’s
mother’s live-in boyfriend and the father of V.M.’s younger sister, repeatedly
molested V.M. over a period of years in her own home. Further, there was
evidence that Rice burned V.M. with a cigarette during the molestation and
threatened to kill V.M. and her family after she initially reported the
molestation to her mother. The fact that the offenses could have been worse
does not render the sentence inappropriate.
[8] As for Rice’s character, his criminal history is extensive and includes two prior
Class C felony child molestation convictions and numerous misdemeanor
convictions. Despite repeated contact with the criminal justice system
beginning in 1977, Rice is unwilling or unable to conduct himself in accordance
with the law. Rice also claims to be concerned about the well-being of his
young daughter, V.M.’s half-sister; however, we are not convinced that his
sentence should be reduced given the nature of these convictions and his father-
like relationship with V.M. Finally, although we view Rice’s military service
positively, it does not render his twelve-year sentence inappropriate.
Analysis
[9] Rice has not established that his twelve-year sentence is inappropriate. We
affirm.
[10] Affirmed.
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[11] Riley, J., and Bailey, J., concur.
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