Singer v. State, 49A02-9605-CR-265

Decision Date27 November 1996
Docket NumberNo. 49A02-9605-CR-265,49A02-9605-CR-265
Citation674 N.E.2d 11
PartiesDavid W. SINGER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court

KIRSCH, Judge.

David Singer pled guilty to five counts of child molesting,1 as Class B felonies, three counts of child molesting,2 as Class C felonies, one count of child molesting,3 as a Class D felony, and two counts of vicarious sexual gratification,4 as Class C felonies. On appeal, we restate the issues as:

I. Whether the 100-year sentence for multiple counts of child molesting and vicarious sexual gratification is manifestly unreasonable in light of the nature of the offenses and the character of the offender; and

II. Whether the trial court failed to consider certain mitigating factors.

We affirm.


Singer admitted abusing his twin step-daughters5 over a period of six years, beginning when they were seven years old. The abuse occurred at least twice a week with both girls and took many forms: (1) Singer would touch their genitals, and had the girls manipulate his genitals until he ejaculated; (2) he forced them to submit to cunnilingus; (3) he forced them to commit fellatio, often ejaculating in their mouths; (4) he had the girls perform cunnilingus on each other while he masturbated in their presence; and, (5) he had anal intercourse and unsuccessfully attempted vaginal intercourse with both the step-daughters.

During the time Singer was sexually abusing the girls, he said that he would kill himself if they left him, threatened them with violence if they did not keep silent about the molestations, and beat them with extension cords, hangers, and belts. Singer threatened one step-daughter with a knife, threw the other step-daughter through a glass window, and then kicked her in the stomach.

Singer pled guilty to all eleven counts charged by the State. Counts I, II, IX, X, and XI, were for child molesting as a Class B felony, which carries a ten-year presumptive sentence with a maximum ten-year enhancement.6 The trial court enhanced all five of those counts by ten years and ordered that they be served consecutively, resulting in a 100-year sentence. Counts III, IV, and VII, were child molesting and Counts V and VI were vicarious sexual gratification; all were charged as class C felonies with four-year presumptive sentences.7 The trial court imposed the maximum four-year enhancement and sentenced Singer to eight years on each of those counts, which were to run concurrently with the previous counts. Count VIII was for child molesting as a Class D felony, which carries a presumptive sentence of one and one-half years, with an equivalent maximum enhancement.8 The trial court sentenced Singer to three years on Count VIII, to run concurrently with the previous sentences. Singer now appeals.

I. Manifestly Unreasonable Sentence

Singer asserts that his 100-year sentence is manifestly unreasonable. We disagree.

Sentencing decisions rest within the sound discretion of the trial court and we will reverse only upon a manifest abuse of that discretion. Miller v. State, 634 N.E.2d 57, 63 (Ind.Ct.App.1994). If the sentence imposed is authorized by statute, we will not revise or set aside the sentence unless it is manifestly unreasonable in light of the nature of the offense and the character of the offender. Ind.Appellate Rule 17(B)(1). A sentence is manifestly unreasonable only if no reasonable person could find such sentence appropriate to the particular offense and offender. Ind.Appellate Rule 17(B)(2). When making this determination, we note that reasonable people will differ as to the appropriate sentence in any given case. Miller v. State, 659 N.E.2d 622, 624 (Ind.Ct.App.1995). Therefore, giving due regard to the nature of this inquiry, we must refrain from merely substituting our opinions for those of the trial court. Id.

The trial court's wide discretion extends to the determination of whether to increase presumptive penalties, impose consecutive sentences on multiple convictions, or both. Ridenour v. State, 639 N.E.2d 288, 296 (Ind.Ct.App.1994). Sentencing courts are not limited to the aggravating factors listed in IC 35-38-1-7.1(b). Collins v. State, 643 N.E.2d 375, 382 (Ind.Ct.App.1994), trans. denied. When a sentence is enhanced or consecutive sentences are imposed, the trial court must set forth a statement of its reasons for selecting a particular punishment. Fuller v. State, 639 N.E.2d 344, 349 (Ind.Ct.App.1994). That statement should set forth " '[A]ll significant aggravating and mitigating circumstances, include a specific reason why each circumstance is mitigating or aggravating, and weigh mitigating circumstances against the aggravating factors.' "

Id. (quoting Sims v. State, 585 N.E.2d 271, 272 (Ind.1992)). The trial court is not obligated to find the existence of mitigating circumstances, nor is it required to give the same credit as the defendant does to the defendant's proffered mitigating circumstances. Widener v. State, 659 N.E.2d 529, 533 (Ind.1995). The trial court may not, however, ignore significant mitigating circumstances that are supported by the record. Id. at 534.

A sentencing statement serves two purposes: (1) it guards against the imposition of arbitrary or capricious sentences by ensuring that the sentencing judge will consider only proper factors; and (2) it facilitates appellate review of the sentence. Hardebeck v. State, 656 N.E.2d 486, 491 (Ind.Ct.App.1995), trans. denied. If the trial court states proper reasons for enhancing a sentence but merely does not do so with sufficient particularity, such an error does not mandate remand. Meriweather v. State, 659 N.E.2d 133, 145 (Ind.Ct.App.1995), trans. denied. As long as the record indicates that the trial court engaged in the evaluative processes and the sentence was not manifestly unreasonable, the purposes of the sentencing statement have been satisfied. Id. When reviewing a sentencing statement this court is not limited to the written sentencing order but may examine the record as a whole to determine that the trial court made a sufficient statement of its reasons for selecting the sentence imposed. Hardebeck, 656 N.E.2d at 492.

Here, the trial court's sentencing statement noted, in pertinent part:

"The Court has read the pre-sentence report, heard the evidence that was submitted, read the pre-sentence statement made by Mr. Singer and submitted to the Court. The Court does find ... by way of aggravating circumstances, that the victims were in a position of trust with the Defendant; that the incidents were repeated and over a long period of time, and that there were also acts of violence that were along with these.... The Court would also cite as mitigating circumstances [the] fact that the Defendant has shown remorse and that the Defendant, in fact, did plead guilty as opposed to making these victims go through a trial. However, the Court does find that the aggravating circumstances outweigh the mitigating circumstances."

Record at 234-37. The court listed several valid aggravating factors. First, the court noted that Singer violated a position of trust. Abusing a "position of trust" is, by itself, a valid aggravator which supports the maximum enhancement of a sentence for child molesting. Middlebrook v. State, 593 N.E.2d 212, 214 (Ind.Ct.App.1992). The Record reveals that Singer gained full custody of the twins when they were seven years old, following the completion of his dissolution action and his ex-wife's arrest for burglary. As the sole custodial parent, Singer was entrusted with the twins' upbringing, maintenance, and care. Instead, he used his position of trust to molest the twins and then induced their silence by intimidation and violence.

Second, the court noted that Singer repeatedly committed these various acts of molestations over a long period of time. Repeated molestations occurring over a period of time is a valid aggravator supporting maximum enhancement of a sentence for child molesting. Kelly v. State, 452 N.E.2d 907, 912 (Ind.1983). The Record reveals that the abuse began when the twins were seven years old and occurred twice-a-week with both girls for approximately six years, until they were twelve years old. The Record further reveals that Singer appreciated the pernicious nature of his actions, told the girls that he would stop, but that he continued abusing them. Singer's abuse of the twins stopped only when the police were informed.

Finally, the court noted that Singer committed repeated acts of violence on the twins. Uncharged misconduct is a valid sentence aggravator. Lockard v. State, 600 N.E.2d 985, 987-88 (Ind.Ct.App.1992), trans. denied. Here, the court properly considered the fact that Singer would often lose his temper and beat the twins with an assortment of objects such as extension cords, hangers, and belts, leaving bruises and welts. On one occasion, he threatened one of the twins by pointing a knife at her stomach; on a separate occasion, he threw the other twin through a glass window and kicked her in the stomach. Although the State did not formally charge him with battery for these beatings, the trial court could consider them when enhancing Singer's sentences.9

Based on these aggravating factors, the trial court imposed the maximum ten-year enhancement on Singer's five counts for child molesting as a Class B felony and ordered that they be served consecutively. The trial court ordered the sentences for the remaining six counts to be served concurrently, thus resulting in an aggregate 100-year sentence. An examination into the nature of the offense and the character of the offender leads us to conclude that the sentence was not manifestly unreasonable.


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