Opinion
No. 25A04-1104-CR-191
10-04-2011
BRIAN PARKER, Appellant- Defendant, v. STATE OF INDIANA, Appellee- Plaintiff
ATTORNEY FOR APPELLANT : CRAIG PERSINGER Marion, Indiana ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana J.T. WHITEHEAD Deputy Attorney General Indianapolis, Indiana
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:
CRAIG PERSINGER
Marion, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
J.T. WHITEHEAD
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE FULTON CIRCUIT COURT
The Honorable A. Christopher Lee, Judge
Cause No. 25C01-1001-FA-2
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB , Chief Judge
Case Summary and Issue
Following an agreement to plead guilty to sexual misconduct with a minor as a Class A felony, Brian Parker appeals his sentence of forty-five years executed with five years suspended to probation. On appeal he raises the sole issue of whether his sentence is inappropriate. Concluding that his sentence is not inappropriate, we affirm.
Facts and Procedural History
In the early morning hours of December 29, 2009, fifteen-year-old H.H. was awakened in her basement bedroom by a man on top of her dressed in a full-body protective suit, a ski mask, a hood, and dark-colored rubber gloves. The man placed a gun to her head and told her that if she screamed, he would kill her. He removed H.H.'s shorts and underwear, kissed her, fondled her vaginal area, performed oral sex on her, and "dry humped" her with his clothes on. Appellant's Appendix at 84. He held his gun to H.H.'s head the entire time. The man then instructed H.H. to lie down, and she watched him leave her bedroom and heard him climb the stairs. H.H. remained frightened because she was uncertain whether the man was still in her home or if he violated her brother as well, who was sleeping upstairs. She hid under the basement stairs and behind celebrity cardboard cutouts in her room, and eventually urinated on her bedroom carpet because she was afraid to go upstairs.
H.H. was a close friend to Parker's daughter. A police investigation resulted in the State charging Parker with one count of sexual misconduct with a minor as a Class A felony, one count of the same as a Class B felony, and one count of burglary of a dwelling as a Class B felony. Following denial of Parker's motion to suppress evidence, Parker entered an agreement with the State to plead guilty to sexual misconduct with a minor as a Class A felony and dismissal of the other charges. The State and Parker did not form an agreement as to Parker's sentence. Following a sentencing hearing, the trial court sentenced Parker to forty-five years executed with five years suspended to be served on probation. Parker now appeals his sentence. Additional facts will be supplied as appropriate.
Discussion and Decision
I. Inappropriate Sentence
This court has authority to revise a sentence "if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender." Ind. Appellate Rule 7(B). In making this determination, we may look to any factors appearing in the record. Roney v. State, 872 N.E.2d 192, 206 (Ind. Ct. App. 2007), trans. denied. Nevertheless, the defendant bears the burden to persuade this court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). "[W]hether 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 myriad other factors that come to light in a given case." Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
As to the nature of the offense, Parker argues his sentence is inappropriate because it was an isolated incident, he and H.H. knew each other well for several years before his offense, he did not physically harm H.H., and he was under the influence of methamphetamine at the time of his offense.
In our review of the nature of the offense, however, we are drawn to Parker's extensive premeditation and stoic execution of this offense. The record expands upon the exacting and uncommonly efficient manner in which he carried out his plan. He disguised himself, including his face, hands, and fingertips; he armed himself with a gun; and he protected himself by wearing a protective suit, obtained from his employer, to mitigate the effect of any resistance to his forceful misconduct. Parker broke into H.H.'s home, woke her only when he was already over her, quickly threatened her life so she would remain silent and compliant, carried out his misdeeds, and left her too frightened to act while he escaped. This suggests that Parker's actions were not solely caused by the momentary influence of methamphetamine.
We are also drawn to the significant emotional and financial harm that Parker's actions have caused H.H. and her family. H.H.'s mother commented to the trial court that prior to the offense, H.H. was independent, trusting, and outgoing, but since the offense has become "dependent, fearful, trusts very few people and is not as outgoing as she used to be." Pre-Sentence Investigation Report ("PSI") at 77. H.H. now has difficulty sleeping, and slept within a few feet of her mother for over a year following the offense. H.H. is now fearful of staying overnight at friends' homes and of being home alone for any length of time. H.H.'s mother's work performance has suffered because she constantly left work to comfort H.H. H.H.'s father switched work shifts so that he would be available to assist H.H. with her increased emotional needs. This switch resulted in a ten percent reduction in pay.
In direct response to Parker's arguments, we conclude that although this was an isolated incident, our discussion below reveals that this might not have been completely out of character for Parker. Although Parker knew H.H. well prior to this offense and had a relatively good relationship with her, that relationship also involved at least one violent bout of Parker's anger and H.H.'s exposure to Parker's destructive behavior and angry demeanor while under the influence of illegal substances. And while Parker did not physically harm H.H., the emotional harm was substantial. The fact that Parker was under the influence of an illegal substance does not excuse him for committing a heinous sex crime upon a fifteen-year-old.
As to his character, Parker argues his sentence is inappropriate because he has no criminal history, he had a good reputation for helping others in the community, he had a close and positive relationship with his own children and family, he confessed and directed officers to crucial evidence within one week of the offense, he expressed remorse during his psychiatric evaluation and at the sentencing hearing, and his guilty plea was not merely a pragmatic decision.
A careful look at the Pre-Sentence Investigation Report provides us with additional information. Parker admitted to using marijuana consistently since he dropped out of high school in 1990. In addition to twenty years of marijuana usage, Parker began using cocaine approximately fifteen years ago and then switched to methamphetamine. He states he last used marijuana and methamphetamine in January 2010, presumably before he was taken into custody for this offense in that month. Parker also admitted to using hallucinogens on occasion. So although Parker has no prior convictions for drug possession or anything else, he has repeatedly broken the law for over twenty years by using harmful illegal substances. He is far from a law-abiding citizen.
While Parker emphasizes his positive character traits and reputation in the community, H.H. and at least one of Parker's children saw Parker somewhat differently. H.H. was close friends with Parker's daughter, and was thoroughly familiar with Parker's "bad temper." PSI at 34. H.H. recalled to an investigating officer that "[w]hen I was little [Parker] actually threw a chair at me and hit me in the leg." Id. Parker's daughter divulged to H.H. that on at least one occasion Parker showed his daughter a pornographic film, told his daughter that one of the women in the film looks like her, and "touched her leg or something." Id. This private version of Parker's character justifies Parker's enhanced sentence.
Parker's sentence of forty-five years with five years suspended to probation is not inappropriate considering "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, 895 N.E.2d at 1224.
Conclusion
Parker's sentence is not inappropriate in light of the nature of his offense and his character.
Affirmed. BARNES, J., and BRADFORD, J., concur.