Opinion
24A-CR-1033
12-02-2024
Robert P. Olmstead, Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Donald J. Frew Fort Wayne, Indiana ATTORNEYS 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Allen Superior Court Trial Court Cause No. 02D06-2110-F4-103 The Honorable Frances M. Gull, Judge
ATTORNEY FOR APPELLANT Donald J. Frew Fort Wayne, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Steven J. Hosler Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Mathias, Judge
[¶1] Robert Olmstead, Jr. appeals his sentence following his conviction for Level 4 felony child molesting. Olmstead raises a single issue for our review, namely, whether his sentence is inappropriate in light of the nature of the offense and his character.
[¶2] We affirm.
Facts and Procedural History
[¶3] In the spring of 2020, sometime around her birthday, K.K. was spending the night in a tent in her mother's backyard. Also in the tent were K.K.'s brother, K.K.'s sister, K.K.'s mother, and Olmstead, who was dating K.K.'s mother, G.C. At some point during the night, Olmstead was lying next to K.K., and he began touching her underneath her clothes and underwear. Olmstead touched K.K.'s breasts, stomach, vagina, and buttocks. K.K. was "afraid" and did not do or say anything for several minutes. Tr. Vol. 2, p. 119. After it stopped, K.K. stayed awake for a long time but eventually fell asleep.
The record shows that K.K. was born in 2008, but it does not reveal her birth date. In any event, K.K. was either eleven or twelve at the time of the offense.
[¶4] The next day, K.K. told G.C. what Olmstead had done. G.C. called her father (maternal grandfather), C.C., and told him. G.C. then told K.K. that C.C. "would talk to" Olmstead. Id. at 121. The following Sunday, K.K. talked about the molestation with C.C., C.C.'s wife, and K.K.'s great-grandparents. But nothing came of those conversations.
[¶5] In 2021, K.K. told her best friend, J.G., that Olmstead had molested her while they were sleeping in the tent in 2020. A few months later, K.K. told her stepsister, B.N., about the molestation. B.N. encouraged K.K. to tell K.K.'s stepmother, and her stepmother told K.K.'s father, P.K. Finally, P.K. contacted law enforcement. On April 5, K.K. spoke with Lorna Russell, a forensic interviewer, and described what Olmstead had done in the tent one year prior.
[¶6] The State charged Olmstead with Level 4 felony child molesting. A jury found him guilty as charged. The trial court entered judgment and sentenced Olmstead to ten years executed. This appeal ensued.
Discussion and Decision
[¶7] Olmstead contends that his sentence is inappropriate in light of the nature of the offense and his character. Under Indiana Appellate Rule 7(B), we may modify a sentence that we find is "inappropriate in light of the nature of the offense and the character of the offender." Making this determination "turns on our sense of 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." Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Sentence modification under Rule 7(B), however, is reserved for "a rare and exceptional case." Livingston v. State, 113 N.E.3d 611, 612 (Ind. 2018) (per curiam).
[¶8] When conducting this review, we generally defer to the sentence imposed by the trial court. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). Our role is to "leaven the outliers," not to achieve what may be perceived as the "correct" result. Id. Thus, deference to the trial court's sentence will prevail unless the defendant persuades us the sentence is inappropriate by producing compelling evidence portraying in a positive light the nature of the offense-such as showing restraint or a lack of brutality-and the defendant's character-such as showing substantial virtuous traits or persistent examples of positive attributes. Robinson v. State, 91 N.E.3d 574, 577 (Ind. 2018) (per curiam); Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[¶9] Indiana Code section 35-50-2-5.5 provides that a person who commits a Level 4 felony shall be imprisoned for a fixed term of between two and twelve years, with the advisory sentence being six years. Here, the trial court identified three aggravators, including the "extraordinary" impact of the offense on K.K.'s life and the fact that he was in a position of trust over K.K. Tr. Vol. 3, p. 24. And the court identified one mitigator, namely, Olmstead's lack of prior felony convictions. The court sentenced Olmstead to ten years executed.
[¶10] Olmstead acknowledges that "child molesting is quite obviously a serious offense," and he makes no argument that the nature of the offense justifies a revised sentence. Appellant's Br. at 14. Instead, he argues that his character supports a revised sentence. Olmstead states that he has "demonstrated more than [two] years of appropriate behavior while on supervised release waiting for his matter to come to trial." Id. And he points out that his criminal history consists of one misdemeanor offense committed seventeen years prior to sentencing. Finally, Olmstead's IRAS showed that he is at a "low risk" to reoffend. Appellant's App. Vol. 2, p. 106.
[¶11] Be all of that as it may, Olmstead has not shown that this is the "rare and exceptional" case where a sentence revision is warranted. See Livingston, 113 N.E.3d at 612. The nature of the offense includes the fact that Olmstead brazenly molested K.K. for several minutes while other people were sleeping in the same tent. Further, as the trial court noted, Olmstead was in a position of trust over K.K. And, while Olmstead's criminal history is minor, he does not direct us to compelling evidence of his substantial virtuous traits or persistent examples of positive attributes to support a sentence revision. See Stephenson, 29 N.E.3d at 122.
[¶12] For all these reasons, we cannot say that Olmstead's fully-executed ten-year sentence is inappropriate.
[¶13] Affirmed.
Brown, J., and Kenworthy, J., concur.