Jacob A. Phillips v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any Jul 22 2014, 8:58 am
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:
BETH ANN FOLZ GREGORY F. ZOELLER
McFadin Higgins & Folz, LLP Attorney General of Indiana
Mt. Vernon, Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JACOB A. PHILLIPS, )
)
Appellant-Defendant, )
)
vs. ) No. 65A01-1312-CR-529
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE POSEY SUPERIOR COURT
The Honorable S. Brent Almon, Judge
Cause No. 65D01-1004-FB-154
July 22, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Jacob Phillips (Phillips), appeals his sentence for three Counts
of sexual misconduct with a minor, Class B felonies, Ind. Code § 35-42-4-9(a)(1).
We affirm.
ISSUES
Phillips raises two issues on appeal which we restate as follows:
(1) Whether the trial court abused its discretion by ordering consecutive sentences;
and
(2) Whether his sentence ordered in Posey County was inappropriate.
FACTS AND PROCEDURAL HISTORY
On April 27, 2010, seventeen year old B.K.L., voluntarily went to Holly’s House in
Evansville, Indiana1, and spoke with Detective Brian Turpin of the Evansville Police
Department (Detective Turpin). B.K.L. told Detective Turpin that she was born in January
1993, and when she was around the age of six, her mother married Phillips. At the time,
they lived in Vanderburgh County, Indiana. Shortly after the marriage, B.K.L. narrated that
Phillips would enter her bedroom and would place his fingers inside her vagina.
In 2004, B.K.L.’s family moved to Warrick County, Indiana and lived in a trailer.
B.K.L. reported that the fondling and touching progressed, and Phillips started having
vaginal sexual intercourse with her. B.K.L. stated that she was about ten or eleven years
1
This is a safe house where victims of sexual abuse are interviewed. A multi-disciplinary team including the
Prosecutor’s Office, Police Department, County Sheriff’s Office, and the Department of Child Services work together
to provide protection and justice.
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old when it first happened. Also, while living in Warrick County, Phillips performed oral
sex on her and she was required to perform oral sex on him as well. B.K.L. added that
Phillips had anal sex with her. B.K.L. also told Detective Turpin that on one occasion, her
mother was in the trailer while Phillips had sexual intercourse with her.
In 2006, the family moved back to Vanderburgh County, Indiana. At the time,
B.K.L. was thirteen years old. B.K.L. added that Phillips continued to engage in vaginal,
oral, and anal sex with her. Sometime in 2007 or in 2008, while staying at the Drury Inn in
Evansville, Indiana, B.K.L. stated Phillips had vaginal sexual intercourse with her, while
her mother watched.
In 2007, B.K.L. and her family moved to the Rocky Falls Campgrounds in Posey
County, Indiana. B.K.L. was between fourteen and fifteen years old. B.K.L. recounted that
Phillips continued to engage in vaginal, oral, and anal intercourse with her while her family
was living in a tent. B.K.L. stated that there were many occasions while living in
Vanderburgh, Warrick, and Posey Counties, her four younger half-brothers were near or in
an adjoining room while Phillips sexually molested her.
On the same day, Detective Turpin went to 1314 Olive Street in Evansville,
Vanderburgh County and met with Phillips. Phillips agreed to accompany him to the
Evansville Police Department. While there, Detective Turpin advised Phillips of his
Miranda rights, and Philips indicated that he understood his rights and agreed to speak with
him. During the interrogation, Phillips immediately admitted guilt. Phillips stated that he
began molesting B.K.L. at the age of six because she was “cold and distant towards him
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when he first married her mother.” (Appellant’s App. p. 53). Phillips also confessed that
while living in Vanderburgh, Warrick, and Posey Counties, he sexually molested B.K.L.
multiple times. However, Phillips clarified that he limited the “anal sex [] because it caused
her discomfort or pain.” (Appellant’s App. p. 5). Phillips also wrote a letter of apology to
B.K.L. in which he referred to her as his lover, and indicated that the sexual acts between
them were consensual.
On the same day, Detective Turpin met with B.K.L.’s mother. B.K.L.’s mother
confirmed that she had, in fact, watched Phillips engage in vaginal sexual intercourse with
B.K.L. in their home in Warrick County and while staying at the Drury Inn in Vanderburgh
County. Mother also established that during the period in time when Phillips repeatedly
sexually molested B.K.L., B.K.L.’s younger half-brothers, were within hearing distance.
On April 29, 2010, the State filed an Information in Vanderburgh County charging
Phillips with three Counts of child molesting, Class A felonies, and two Counts of sexual
misconduct with a minor, Class B felonies. The Information stated that Phillips engaged in
fondling, vaginal, oral, and anal intercourse with B.K.L. during the years of 1999, 2006, and
2007.
On April 30, 2010, Phillips was charged in Posey County with three Counts of sexual
misconduct with a minor, Class B felonies. The Information stated that Phillips engaged in
sexual intercourse or deviate sexual conduct with B.K.L., a child at least fourteen years old
but less than sixteen years old, between September 2007 and August 2008.
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On September 28, 2010, Phillips was charged in Warrick County with one Count of
child molesting, a Class A felony, and one Count of child molesting, a Class C felony. The
Information stated that Phillips engaged in sexual intercourse or deviate sexual conduct with
B.K.L., a child under the age of fourteen, on multiple occasions between 2004 and 2005.
On July 16, 2012, Phillips pled guilty in Warrick County to child molesting, as Class
A felony. In exchange for his guilty plea, the Warrick County Prosecutor’s Office dismissed
the Count of Class C felony child molesting. On October 15, 2012, the trial court sentenced
Phillips to thirty-five years in the Department of Correction.
On October 19, 2012, Phillips pled guilty in Vanderburgh County to one Count of
child molesting, as a Class A felony, and to two Counts of sexual misconduct with a minor,
Class B felonies. Pursuant to the guilty plea, the Vanderburgh County Prosecutor’s Office
agreed to dismiss two Counts of child molesting, Class A felonies. Subsequently, the trial
court sentenced Phillips to thirty-years on child molesting, as a Class A felony, and to ten
years each, for two counts of sexual misconduct with a minor, Class B felonies, all to be
served consecutively to each other, making it an aggregate sentence of fifty years. In
addition, the trial court ordered that the fifty-year sentence be served consecutively to the
thirty-five year sentence imposed in Warrick County.
On July 25, 2013, Phillips pled guilty in Posey County to the three Counts of sexual
misconduct with a minor, Class B felonies. A sentencing hearing was held on September
30, 2013, but was adjourned to October 22, 2013. At the close of the evidence, the trial
court entered an Order sentencing Phillips to a concurrent sentence of fifteen years on all
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three Counts. On October 29, 2013, Phillips filed a motion to reopen evidence, which was
subsequently granted. In granting the motion, the trial court vacated the October 22
sentencing Order. The case was then set for a new sentencing hearing on November 7,
2013. At the sentencing hearing, the trial court admitted into evidence, Phillips’ Exhibit B
which consisted of his medical records, and Exhibit C which was a letter addressed to the
court, attempting to explain the various statements he had made in his letter of apology to
B.K.L.
At the close of the hearing, the trial court incorporated the factors stated in the
October 22, 2013 sentencing Order, and it reaffirmed Phillips’ concurrent sentence of
fifteen years on all three Counts. In addition, the trial court ordered that the concurrent
fifteen-year sentences be served consecutively to his aggregate sentence of eighty-five years
imposed in Warrick and Vanderburgh Counties. Phillips total sentence is 100 years.
Phillips now appeals. Additional information will be provided as necessary.
DISCUSSION AND DECISION
I. Abuse of Discretion
Phillips contends that the trial court abused its discretion by ordering that his
fifteen-year concurrent sentences, imposed in Posey County, be served consecutively to his
eighty-five-year sentence levied in Warrick and Vanderburgh Counties.
Sentencing decisions rest within the sound discretion of the trial court. Anglemyer
v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).
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The decision to impose consecutive sentences lies within the discretion of the trial court.
See Echols v. State, 722 N.E.2d 805, 808 (Ind. 2000). An abuse of discretion occurs if “the
decision is clearly against the logic and effect of the facts and circumstances.” Anglemyer,
868 N.E.2d at 490. A single aggravating circumstance may support the imposition of
consecutive sentences. Hampton v. State, 873 N.E.2d 1074, 1082 (Ind. Ct. App. 2007).
As stated in the foregoing, a single aggravating circumstance may support the
imposition of consecutive sentences. In its sentencing statement, the trial court identified
not just one, but several aggravating factors. The record reveals that Phillips molested
B.K.L. over a long period of time. By the time B.K.L. was ten or eleven years old, the
fondling and touching escalated to oral, anal, and vaginal sexual intercourse. Occasionally,
Phillips required B.K.L. to perform oral sex on him. The record further reveals that Phillips
would engage in sexual intercourse with B.K.L. at least three times a week. On two
occasions, Phillips engaged in sexual intercourse with B.K.L. in front of her mother. Lastly,
the record reveals that the sexual molesting caused B.K.L. develop depression, anxiety, and
she had trouble with her relationships with men. Based on the foregoing, it is abundantly
clear that the trial court considered these circumstances to be aggravating. As such, we find
that the trial court did not abuse its discretion in imposing consecutive sentences.
Phillips also contends that the trial court abused its discretion when it failed to
consider the following mitigating factors: (1) he pled guilty to all the sexual offenses he
was charged with in all three counties; and (2) he had been diagnosed with bipolar disorder.
We disagree. The finding of mitigating circumstances is well within the discretion of the
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trial court. Abel v. State, 773 N.E.2d 276, 280 (Ind. 2002). A sentencing court need not
agree with the defendant as to the weight or value to be given to a proffered mitigating
factor. Bostick v. State, 804 N.E.2d 218, 225 (Ind. Ct. App. 2004).
Phillips is correct to state that his guilty pleas should generally be afforded some
mitigating weight. See Flicker v. State, 908 NE2d 270,273 (Ind. Ct. App. 2013). In the
instant case, we note that the trial court considered his guilty plea as a mitigating factor in
its sentencing statement, however, it did not credit weight to it. As noted above, it is within
the trial court’s discretion to determine both the existence and weight of a significant
mitigating factor. Given this discretion, we conclude that the trial court did not abuse its
discretion when it considered the guilty plea and found that this mitigating factor did not
offset the aggravating factors—nature of the offense. Moreover, Phillips received a reduced
sentence when he entered into plea deal with the Prosecutor’s Office in Posey County.
Phillips should not be allowed to receive a second benefit.
As for Phillips’ last assertion that the trial court abused its discretion for failing to
consider his bipolar diagnosis as a mitigating factor, we find that assertion is incorrect.
Although Phillips presented evidence at his sentencing hearing that he had been diagnosed
with bipolar disorder, Phillips failed to provide any nexus between his bipolar illness and
the sexual acts he performed on B.K.L. Because Phillips failed to demonstrate the
connection between his mental illness and the sexual offenses, the trial court did not abuse
its discretion when it declined to give this factor any mitigating weight.
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Based on the evidence before us, we conclude that the trial court properly balanced
the aggravating and mitigating factors when sentencing Phillips. We also find that the trial
court did not abuse its discretion by failing to consider the mitigating factors suggested by
Phillips. Furthermore, we cannot say that the imposition of consecutive sentences was
improper, as the trial court found several aggravators that were clearly supported by the
record.
II. Inappropriate Sentence
In his last argument, Phillips claims that his concurrent fifteen-year sentence on each
of the three Counts of sexual misconduct with a minor was inappropriate in light of the
nature of the offense and his character.
Indiana Appellate Rule 7(B) provides that we “may 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.” The
burden is on the defendant to persuade the appellate court that his or her sentence is
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). “Ultimately the
length of the aggregate sentence and how it is to be served are the issues that matter.”
Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Whether we regard a sentence as
appropriate at the end of the day turns on our sense of the culpability of the defendant, the
severity of the crime, the damage done to others, and a myriad of other considerations that
come to light in a given case. Id.9
The advisory sentence is the starting point the legislature has selected as an
appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016, 1019 (Ind.
2012). The advisory sentence for a Class B felony is ten years, with a minimum of six and
a maximum of twenty years. Here, the trial court imposed a fifteen year sentence on each
of the three Class B felony Counts.
Here, Phillips claim that it was “a single victim” and that the “abuse had stopped
approximately two years” before B.K.L. reported. (Appellant’s Br. p. 14). Phillips further
argues that “he had largely led a law abiding life with a single prior conviction when he was
thirteen years old.” (Appellant’s Br. p. 14). In addition, Phillips claims that he “had
acknowledged the wrongfulness of his conduct and expressed remorse, [and that] even
during his initial meeting with [Detective Turpin], he wrote a letter of apology to [B.K.L.].”
(Appellant’s Br. p. 14).
Notwithstanding his claims, we find that the nature of his offenses was most heinous.
For nine years, Phillips used his own stepdaughter, B.K.L., to satisfy his sexual needs.
Phillips’ conduct was not a single act of sexual misconduct; rather, it was a long-term pattern
of sexual abuse on B.K.L. See Newsome v. State, 797 N.E.2d 293, 300 (Ind. Ct. App. 2003)
trans. denied. Here, the sexual misconduct started off as fondling and touching but later
escalated to oral, vaginal and anal sexual intercourse. Phillips admitted that he would, on
average, have sexual intercourse with B.K.L. three times a week and he also bribed B.K.L
to remain silent of what transpired in the house. Phillips was B.K.L.’s stepfather and was
in a position of trust with B.K.L., but he repeatedly, violated the ever-important trust that
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exists between a parent and a child. See Williams v. State, 997 N.E.2d 1154, 1166 (Ind. Ct.
App. 2013). In conclusion, we find that the nature of Phillips’ offenses alone justify the
trial court’s sentencing decision.
Lastly, our consideration of Phillips’ character does not alter our conclusion.
Phillips notes that he had no adult criminal conviction except for one juvenile adjudication
when he was thirteen years old. Turning to the record, we find that Phillips’ minimal
criminal history was offset by the fact that he repeatedly sexually molested B.K.L. over a
prolonged period. Furthermore, when he confessed to the crimes, he wrote a self-serving
apology letter to B.K.L., where he blamed the police for twisting his words, and he firmly
declared that B.K.L. was his lover and that the sexual acts were all consensual. None of
these facts speak well for Phillips’ character.
Based on our review of the evidence, we see nothing in Phillips’ character or in the
nature of his offenses that would suggest that his sentence is inappropriate.
CONCLUSION
In light of the foregoing, we conclude that the trial court did not abuse its discretion
by ordering the fifteen-year concurrent sentences ordered in Posey County to run
consecutively to his aggregate sentence of eighty-five-years ordered in Vanderburgh and
Warrick Counties. Lastly, we conclude that Phillips’ sentence is appropriate.
Affirmed.
ROBB, J. and BRADFORD, J. concur
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