Opinion
24A-CR-651
09-25-2024
Wasim Almakki, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Frederick Vaiana Voyles Vaiana Lukemeyer Baldwin &Webb Indianapolis, Indiana ATTORNEY FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Steven J. Hosler Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Hamilton Superior Court Trial Court Cause No. 29D03-2210-F4-7334 The Honorable William J. Hughes, Judge
ATTORNEY FOR APPELLANT Frederick Vaiana Voyles Vaiana Lukemeyer Baldwin &Webb Indianapolis, Indiana
ATTORNEY FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Steven J. Hosler Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Pyle, Judge
Statement of the Case
[¶1] Wasim Almakki ("Almakki") appeals, following a jury trial, his sentence for his convictions of Level 4 felony sexual misconduct with a minor and Level 5 felony sexual misconduct with a minor. The trial court imposed an aggregate sentence of eight years, with four years executed (one year executed in the Indiana Department of Correction ("the DOC") and three years executed in community corrections) and four years suspended with three years on probation. Almakki argues that his aggregate sentence is inappropriate. Concluding that Almakki has failed to show that his sentence is inappropriate, we affirm his sentence.
I.C. § 35-42-4-9.
[¶2] We affirm.
Issue
Whether Almakki's sentence is inappropriate.
Facts
[¶3] On May 22, 2022, Almakki, who was forty-eight years old, was working as a Lyft driver. Around 9:00 p.m., fifteen-year-old M.S. ("M.S.") and two friends had been at a carnival and then arranged for a ride through Lyft. Almakki was their driver, and he dropped M.S. and his friends off at the friends' house. After trying to decide how M.S. would get back home, one of the friends then arranged for another Lyft ride for M.S. so that he would not have to walk home in the dark. Almakki responded to the Lyft request and drove back to the friends' house.
[¶4] M.S. was the only passenger in Almakki's car, and Almakki "invited" M.S. to sit in the front seat. (Tr. Vol. 3 at 51). M.S. was carrying a stuffed baby Yoda that he had gotten at the carnival. Almakki and M.S. engaged in conversation, which then "progressively got more flirtatious" and made M.S. feel "weird[.]" (Tr. Vol. 3 at 52). Almakki asked M.S. what his major was, and M.S. told him that he was in high school and was fifteen years old. Almakki told M.S. that M.S. "was tall for [his] age" and had "a baby face." (Tr. Vol. 3 at 54). While they were talking, Almakki put his hand on M.S.'s thigh and "compliment[ed] [M.S.'s] lips[.]" (Tr. Vol. 3 at 55). Almakki asked M.S. if he wanted to engage in a sexual act, and M.S. agreed.
[¶5] Almakki stopped his car in M.S.'s neighborhood and had M.S. go to the backseat. Almakki and M.S. slid Almakki's pants and underwear halfway down to his knees, and M.S. performed fellatio on Almakki. While Almakki's penis was in M.S.'s mouth, Almakki reached inside the back of M.S.'s pants and underwear and inserted his finger in M.S.'s anus. Almakki ejaculated in M.S.'s mouth, and M.S. spit it out on the side of the road. As Almakki drove M.S. home, he told M.S. to "keep this as a little secret." (Tr. Vol. 3 at 60).
[¶6] When M.S. got home, he was "upset" and told his mother what had happened, and she called the police. (Tr. Vol. 2 at 205). The police asked M.S. to take them to the place in the neighborhood where the offense had happened. The police retrieved a sample of Almakki's ejaculate that M.S. had spit on the street and sent the sample to the lab for DNA testing.
[¶7] During an interview with the police, Almakki initially acknowledged that he had driven M.S. to his house, but he denied that he had engaged in any sexual acts with M.S. When the officer told Almakki that they had collected a DNA sample, Almakki then stated that M.S. had offered oral sex to Almakki. Almakki told the officer that he and M.S. had gone to the back seat and that M.S. had engaged in oral sex with him. Almakki acknowledged that M.S. had told him that he was fifteen years old, but he stated that M.S. had not told him until after the oral sex had occurred.
[¶8] The State charged Almakki with Level 4 felony sexual misconduct with a minor for Almakki's act of submitting to other sexual conduct and Level 5 felony sexual misconduct with a minor for Almakki's act of performing fondling or touching with M.S. The trial court held a three-day jury trial in January 2024, and the State presented the facts as set forth above. The jury found Almakki guilty as charged.
[¶9] During Almakki's sentencing hearing, Almakki told the trial court that he had two children, one who was almost fifteen years old and the other who was nine and one-half years old. Almakki asked the trial court not to impose any time in prison so he could help care for his children. He also stated that his incarceration would "destroy[]" his children "emotionally, financially, [and] psychologically[.]" (Tr. Vol. 3 at 141). Almakki stated, however, that he had not yet told his children that he had been charged and convicted of the sexual misconduct crimes. Almakki also apologized for what had happened.
[¶10] The presentence investigation report ("PSI") showed that Almakki had one prior conviction for Class A misdemeanor invasion of privacy in 2023. In Almakki's statement to the probation department, he blamed his sexual misconduct with a minor offenses on M.S. and asserted that M.S. had seduced him. He also stated that the judiciary and the jury had "wronged" him and had not given him a chance to talk or defend himself. (App. Vol. 2 at 192, 195). The probation department recommended that the trial court impose a sentence of eight years, with four years executed (one year executed in the DOC and three years executed in community corrections) and four years suspended with three years on probation for Almakki's Level 4 felony sexual misconduct with a minor conviction and a sentence of four years executed, with one year executed in the DOC and three years executed in community corrections for his Level 5 felony sexual misconduct with a minor conviction.
[¶11] M.S.'s family submitted a victim impact statement, which indicated that, since the offense, M.S. had been having "emotional outbursts" and "cutting himself[.]" (App. Vol. 2 at 219). M.S. also had been "scared to drive or ride with anyone not family" and had been having "nightmares about seeing [Almakki]." (App. Vol. 2 at 220). The family also stated that, because of the incident, M.S. had to change schools, and they had to move. M.S. also submitted his own victim impact letter and stated that he had been having "nightmares" and "horrible anxiety" and that he did not trust people as he had in the past. (State's Sentencing Ex. 1).
[¶12] When Almakki's counsel argued about what sentence the trial court should impose, he "concede[d]" that Almakki's criminal history was an aggravating circumstance and asked for it to be given minimal weight. (Tr. Vol. 3 at 150). Almakki's counsel also acknowledged that Almakki's act of being a driver of M.S. as a passenger "could be considered that that represents a position of authority that could be considered an aggravating circumstance as well." (Tr. Vol. 3 at 151). Almakki's counsel asked the trial court to consider the hardship to his dependents as a mitigating circumstance, and he pointed out that Almakki had successfully completed probation from his recent misdemeanor conviction. Almakki's counsel "argued that the aggravators and mitigators balance[d] each other out" and stated that he "agree[d] that . . . eight years as to Count 1 [wa]s appropriate." (Tr. Vol. 3 at 153). Almakki's counsel requested that Almakki be sentenced to four years executed in community corrections and four years suspended with two years of probation. Counsel also "agree[d] that the four years recommended by probation running concurrently with Count 1 [wa]s appropriate." (Tr. Vol. 3 at 154). However, Almakki requested that the trial court order for all four years to be executed on community corrections.
[¶13] The State argued that the aggravating circumstances in this case included the harm caused to the victim, Almakki's criminal history, and Almakki's position of authority. The State asserted that the aggravating circumstances also included Almakki's lack of remorse by stating that the jury had wronged him and by blaming M.S. for the offense. The State also argued that the hardship to dependents mitigator should not be given significant weight because Almakki had shown a "lack of transparency and honesty" when he had failed to tell his children what had happened. (Tr. Vol. 3 at 157). The State argued that the trial court should sentence Almakki to ten years, with eight years executed in the DOC and two years suspended to probation.
[¶14] When sentencing Almakki, the trial court stated as follows:
One of the things hits a strong accord with me that [the State] said and that is [that] you seem to be taking very little responsibility for the act that you conducted or committed. Including [that] you did blame the jury in this case which just because the jury doesn't believe you doesn't mean that they did you wrong, and you also indicated that the jury didn't give you a chance to talk and the Court didn't give you a chance to talk and explain. You had plenty of opportunity to do that, if you wished to take it. Nobody stopped you from saying a word. I made sure of that.(Tr. Vol. 3 at 159). The trial court rejected Almakki's proffered undue hardship mitigator and noted that Almakki had "had one year and four months to prepare [his] children for this event." (Tr. Vol. 3 at 160). The trial court noted that Almakki's criminal history was not extensive but found it to be an aggravating circumstance. Additionally, the trial court noted that Almakki's prior conviction involved "a history of using power and using [his] superior position[.]" (Tr. Vol. 3 at 159). The trial court accepted the probation department's sentencing recommendation for Almakki's two sexual misconduct with a minor convictions and imposed concurrent sentences that resulted in an aggregate term of eight (8) years, with four years executed (one (1) year executed in the DOC and three (3) years executed in community corrections) and four (4) years suspended with three (3) years on probation.
[¶15] Almakki now appeals.
Decision
[¶16] Almakki argues that his aggregate sentence of eight years is inappropriate. Almakki asks this Court to revise his sentence, but he does not state what specific sentence revision he is seeking. During the sentencing hearing, Almakki agreed that this very sentence that the trial court imposed was "appropriate" but asked that the four-year executed portion of the sentence be served entirely in community corrections. (Tr. Vol. 3 at 153, 154). Therefore, it appears that Almakki is seeking a revision of the location of his executed sentence.
[¶17] We may revise a sentence if it is inappropriate in light of the nature of the offense and the character of the offender. Ind. Appellate Rule 7(B). The defendant has the burden of persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a 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). "Appellate Rule 7(B) analysis is not to determine whether another sentence is more appropriate but rather whether the sentence imposed is inappropriate." Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (internal quotation marks and citation omitted), reh'g denied. Appellate review of a defendant's sentence under Rule 7(B) will include consideration of the length of the sentence as well as consideration of "whether a portion of the sentence is ordered suspended or otherwise crafted using any of the variety of sentencing tools available to the trial judge," such as placement in community corrections. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010). A defendant may challenge, under Appellate Rule 7(B), the location where a sentence is to be served. Biddinger v. State, 868 N.E.2d 407, 414 (Ind. 2007). However, "it will be quite difficult for a defendant to prevail on a claim that the placement of his sentence is inappropriate" because a defendant challenging the placement of a sentence must convince us not that another placement would be more appropriate but that the ordered placement is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind.Ct.App. 2008).
[¶18] When determining whether a sentence is inappropriate, we acknowledge that the advisory sentence "is the starting point the Legislature has selected as an appropriate sentence for the crime committed." Childress, 848 N.E.2d at 1081. The jury convicted Almakki of a Level 4 felony and a Level 5 felony. A person who commits a Level 4 felony "shall be imprisoned for a fixed term of between two (2) and twelve (12) years, with the advisory sentence being six (6) years." I.C. § 35-50-2-5.5. A person who commits a Level 5 felony "shall be imprisoned for a fixed term of between one (1) and six (6) years, with the advisory sentence being three (3) years." I.C. § 35-50-2-6(b). The trial court imposed concurrent sentences that resulted in an aggregate term of eight years, with four years executed (one year executed in the DOC and three years executed in community corrections) and four years suspended with three years on probation. This aggregate sentence is substantially less than the maximum sentence under the relevant sentencing statutes. Additionally, the trial court utilized multiple "sentencing tools" available to it when it ordered some of Almakki's sentence to be served in community corrections and suspended half of the sentence with time on probation. See Davidson, 926 N.E.2d at 1025.
[¶19] Turning first to the nature of Almakki's offenses, we note that forty-eight-year-old Almakki was serving as a Lyft driver for fifteen-year-old M.S., who was carrying a stuffed baby Yoda that he had gotten at a carnival that evening. Almakki invited M.S. to sit in the front seat and spoke to M.S. in a flirtatious manner that made M.S. uncomfortable. After M.S. had told Almakki that he was in high school and was fifteen years old, Almakki told M.S. that M.S. "was tall for [his] age" and had "a baby face." (Tr. Vol. 3 at 54). Almakki put his hand on M.S.'s thigh, complimented M.S.'s lips, and asked M.S. if he wanted to engage in a sexual act. Almakki stopped his car in M.S.'s neighborhood and had M.S. go to the backseat, where M.S. performed fellatio on Almakki, and Almakki inserted his finger in M.S.'s anus. When Almakki drove M.S. home, he told M.S. to "keep this as a little secret." (Tr. Vol. 3 at 60). Almakki asserts that he "clears the 'nature of [the] offense' hurdle of App. R. 7(B)" because M.S. was eight and one-half months from being sixteen years old, which made the offenses eight and one-half months "shy of being non-prosecutable." (Almakki's Br. 11). Almakki also attempts to minimize the nature of his offenses of engaging in sexual acts with a fifteen-year-old child by arguing that M.S. identified as a homosexual and consented to engaging in the sexual acts. We disagree that Almakki has shown that the nature of his offenses renders his sentence inappropriate.
[¶20] In reviewing Almakki's character, we note that "[a] defendant's life and conduct are illustrative of his or her character." Morris v. State, 114 N.E.3d 531, 539 (Ind.Ct.App. 2018), trans. denied. The PSI showed that Almakki had one prior conviction for Class A misdemeanor invasion of privacy in 2023. Almakki's criminal history reflects poorly on his character. See Rutherford v. State, 866 N.E.2d 867, 874 (Ind.Ct.App. 2007) (explaining that any criminal history reflects poorly on a person's character). In Almakki's statement to the probation department, he blamed the offense on M.S., said that M.S. had seduced him, and accused the jury of wronging him. Almakki's attempts to place blame on M.S. for Almakki's decision to engage in sexual acts with a fifteen-year-old also reflects poorly on his character.
[¶21] Almakki has not persuaded us that his aggregate sentence of eight years, with four years executed (one year executed in the DOC and three years executed in community corrections) and four years suspended with three years on probation for his two sexual misconduct with a minor convictions is inappropriate. Therefore, we affirm the sentence imposed by the trial court.
[¶22] Affirmed.
Weissmann, J., and Felix, J., concur.