Opinion
22A-CR-171
02-06-2023
Kevin Levi Mullins, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
Attorney for Appellant Kyle E. Cray Bennett Boehning & Clary, LLP Lafayette, Indiana. Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana.
Appeal from the Tippecanoe Superior Court Trial Court Cause No. 79D01-2010-F1-13, The Honorable Randy J. Williams, Judge.
Attorney for Appellant Kyle E. Cray Bennett Boehning & Clary, LLP Lafayette, Indiana.
Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana.
Robb and Mathias, Judges concur.
MEMORANDUM DECISION
FOLEY, JUDGE.
[¶1] Kevin Levi Mullins ("Mullins") appeals his convictions for six felonies arising from allegations that Mullins had molested his six-year-old daughter and physically abused his other daughter. Specifically, Mullins contends that the trial court abused its discretion in admitting the forensic interviews of the two minor children as evidence at trial. Mullins also claims that the trial court erred in rendering its sentence. For the reasons set forth herein, we disagree on both scores, and, accordingly, affirm. We also note double jeopardy issues with respect to the trial court's "merger" of certain counts, and remand to the trial court to resolve those issues.
Facts and Procedural History
[¶2] Mullins's daughters, C.M. and I.M., spoke with a mental health professional assigned, between two and four days a week, to assist at an elementary school. On October 7, 2020, the mental health professional was in a classroom with I.M. who demonstrated "uncommon" oppositional behavior and was taken to the school counselor. Tr. Vol. II p. 164. The same day, C.M. asked to speak with the mental health professional privately, which was also "uncommon." Id. at 166. C.M. was then taken to the school counselor as well. Following the conversations, the school contacted the police and the Department of Child Services.
The record suggests that C.M. was seven years old at the time and that I.M. was nine years old.
[¶3] Later that same day, Jennifer Bushmore-Barry, executive director of the Heartford House Child Advocacy Center, forensically interviewed both children. In her interview, C.M. indicated that Mullins had exposed his penis to her on multiple occasions and forced her to perform oral sex. I.M. told Bushmore-Barry that she got in trouble the previous evening for going outside without permission, and that Mullins had grabbed her by the neck and lifted her from the ground. When I.M. resisted, Mullins "threw [her] across the hallway." Ex. Vol. VI p. 105.
[¶4] On October 13, 2020, the State charged Mullins with: Counts I and II, child molesting where the defendant is at least twenty-one years of age, a Level 1 felony; Counts III and IV, child molesting where the victim is under the age of fourteen; Count V, battery of a person less than fourteen years old, a Level 6 felony; and Count VI, strangulation, a Level 6 felony. Because the putative victims were "protected persons" under Indiana Code Section 35-37-4-6, the State filed a motion on June 30, 2021, to admit forensic interviews of the minors, triggering a hearing.
This section is also referred to as the protected persons statute ("PPS"). We discuss this statute in greater detail infra. For now, we simply point out that "[t]he PPS applies in [cases where] child molesting and fondling are specified crimes, [I.C.] § 35-37-4-6(a)(1), and children under fourteen years of age are deemed 'protected persons.' [I.C.] § 35-37-4-6(c)(1)." Tyler v. State, 903 N.E.2d 463, 466 (Ind. 2009). The statute is an attempt to balance two competing concerns: (1) trauma experienced by a child victim who must testify in court against an alleged sexual predator; and (2) a defendant's right to a fair trial, specifically the Sixth Amendment right to confront witnesses against him, as well as the right guaranteed under article 1, section 13 of the Indiana Constitution to meet witnesses "face to face." Id.
[¶5] On November 1, 2021, the trial court heard testimony from Bushmore-Barry, as well as Dr. Robin Kohli, a specialist in adolescent clinical psychology. Dr. Kohli interviewed both children as well as C.M.'s foster mother. After the interviews, Dr. Kohli concluded that C.M. suffers from significant emotional trauma and its resultant symptoms and recommended that C.M. be excused from testifying as a result of her inability to talk about the trauma-inducing events and the risk that she would suffer additional emotional harm. With respect to I.M., Dr. Kohli concluded that she, too, was highly traumatized. Dr. Kohli strongly recommended that I.M. be excused from testifying due to a risk of severe emotional distress. After taking the ruling under advisement, the trial concluded that the forensic interviews would be admissible at trial and that the children were unavailable to testify.
[¶6] Mullins was tried by jury and convicted on all counts. After a sentencing hearing, the trial court found two mitigators: that Mullins had no prior criminal history and had a history of employment. The trial court found two aggravators: Mullins was in a position of having care, custody, or control of the victims of the offenses and that the harm, injury, or damage suffered by the victims of the offenses is significant and greater than the elements necessary to prove the commission of the offenses. The trial court entered an aggregate sentence of forty-six years. Mullins now appeals.
We address, sua sponte, several issues with the trial court's sentencing order. Infra at Section IV. The trial court ordered forty-five years to be executed at the Department of Correction and one year to be served on supervised probation.
Discussion and Decision
I. Forensic Interviews
[¶7] Mullins first contends that the trial court erred when it admitted the forensic interviews of C.M. and I.M. Indiana Code Section 35-37-4-6, the PPS (also known as the "child hearsay statute"), provides a list of certain conditions under which evidence that would otherwise be inadmissible will be allowed in cases involving certain crimes against "protected persons." J.A. v. State, 904 N.E.2d 250, 255 (Ind.Ct.App. 2009), trans. denied. Included in the crimes to which the PPS applies are sex crimes under Indiana Code Chapter 35-42-4, which includes child molesting under Indiana Code Section 35-42-4-3. A "protected person" is defined to include "a child who is less than fourteen (14) years of age." I.C. § 35-37-4-6(c)(1)).
[¶8] The PPS provides, in relevant part, that a statement or videotape that: (1) is made by a person who at the time of trial is a protected person; (2) concerns an act that is a material element of the offense that was allegedly committed against the person; and (3) is not otherwise admissible into evidence, is admissible into evidence in a criminal action for the offense, if the requirements of subsection (e) are met. I.C. § 35-37-4-6(d).
[¶9] Subsection (e) of the PPS, which is at issue here, provides:
A statement or videotape described in subsection (d) is admissible in evidence in a criminal action listed in subsection (a) or (b) if, after notice to the defendant of a hearing and of the defendant's right to be present, all of the following conditions are met:
(1) The court finds, in a hearing . . . that the time, content, and circumstances of the statement or videotape provide sufficient indications of reliability.
(2) The protected person:
(A) testifies at the trial; or
(B) is found by the court to be unavailable as a witness for one (1) of the following reasons:
(i) From the testimony of a psychiatrist, physician, or psychologist, and other evidence, if any, the court finds that the protected person's testifying in the physical presence of the defendant will cause the protected person to suffer serious emotional distress such that the protected person cannot reasonably communicate . . . .I.C. § 35-37-4-6(e).
[¶10] Ordinarily we review a trial court's decision to admit or exclude evidence for an abuse of discretion, affording the trial court "'great deference.'" Perryman v. State, 80 N.E.3d 234, 241 (Ind.Ct.App. 2017) (Carpenter v. State, 786 N.E.2d 696, 702 (Ind. 2003)). "The trial court abuses its discretion by ruling in a way clearly against the logic and effect of the facts and circumstances before it, or by misinterpreting the law." Id. (citing Carpenter, 786 N.E.2d at 703).
[¶11] The PPS, however, represents a departure from ordinary trial procedure. It imposes special requirements on trial courts. And, indeed, our Supreme Court has counseled caution with respect to its use. See Tyler, 903 N.E.2d at 466 (The PPS "should be used only when necessary to further its basic purpose of avoiding further injury to the protected person." (emphasis added)). "'[The PPS] impinges upon the ordinary evidentiary regime such that we believe a trial court's responsibilities thereunder carry with them what we recently called in another context a special level of judicial responsibility." Norris v. State, 53 N.E.3d 512, 517-18 (Ind.Ct.App. 2016) (quoting Carpenter, 786 N.E.2d at 703) (cleaned up). Nevertheless, we have held that "the decision to admit statements under the Protected Person Statute will not be reversed absent a showing of a manifest abuse of discretion by the trial court resulting in the denial of a fair trial." A.R.M. v. State, 968 N.E.2d 820, 824 (Ind.Ct.App. 2012) (citing Mishler v. State, 894 N.E.2d 1095, 1099 (Ind.Ct.App. 2008)).
[¶12] Mullins raises two issues with respect to the forensic interviews: (1) whether they were properly admitted; and (2) whether the trial court erred in concluding that the children were unavailable for purposes of trial. We address each in turn.
A. Admission of the Interviews
The parties devote some briefing to the question of whether the trial court's findings were sufficiently detailed. The stakes of PPS determinations are high, and we urge all trial courts, as our Supreme Court has done, to take special care in entering findings, including as much detail as possible. But here, the lack of detail in the trial court's findings does not hamper our review. We have full transcripts of both interviews before us, the testimony of the forensic interviewer who performed the interviews, and a determination to make about whether the trial court abused its discretion. Insight into a trial court's thinking is always welcomed. But the absence of such insight here is, at best, harmless error.
[¶13] Mullins argues that "[t]he [t]rial [c]ourt abused its discretion when finding that CM's interview provided the required indicia of reliability[,]" Appellant's Br. p. 19, and that "IM's interview is not sufficiently reliable and should not have been admitted at trial." Appellant's Br. p. 25. "As a predicate for admission under the protected-person statute, the trial court is required to find in a hearing attended by the child that "'the time, content, and circumstances of the statement . . . provide sufficient indications of reliability.'" Perryman, 80 N.E.3d at 242 (quoting I.C. § 35-37-4-6(e)(1)(B)). "The hearing gives the trial court 'the opportunity to consider the competency and credibility of the child[.]'" Id. (quoting A.R.M., 968 N.E.2d at 825 (Ind.Ct.App. 2012)). "This opportunity is critical because the trial court's findings here 'act as the sole basis for finding the trustworthiness that permits introduction of otherwise inadmissible hearsay.'" Id. (quoting Pierce v. State, 677 N.E.2d 39, 44 (Ind. 1997)).
[¶14] We have previously held that when evaluating the time, content, and circumstances of the statement for sufficient reliability, the trial court should consider:
whether there was significant opportunity for coaching, the nature of the questioning, whether there was a motive to fabricate, use of age[-]appropriate terminology, and spontaneity and repetition. Lengthy and stressful interviews or examinations preceding the statement . . . may cast doubt on [its] reliability . . . sufficient to preclude its admission. There are undoubtedly many other factors in individual cases.Id.
[¶15] We have also held that trial courts should consider factors stemming from the child's apparent ability to respond to an interviewer's questions: "The court should consider such factors as the child's ability to observe, remember, recollect, and describe experience and the child's ability to understand the nature and consequences of an oath as well as the time and circumstances of the making of the tape." Poffenberger v. State, 580 N.E.2d 995, 998 (Ind.Ct.App. 1991) (citing DeMotte v. State, 555 N.E.2d 1336, 1340 (Ind.Ct.App. 1990), trans. denied).
[¶16] With respect to C.M., Mullins contends: (1) the molestation occurred "approximately eighteen months prior to the forensic interview[,]" thereby presenting opportunity for C.M. to be coached; (2) the forensic interviewer repeated suggestive questions to C.M.; (3) C.M.'s answers contradicted one another; and (4) C.M. had a motive to fabricate her allegations as she does not wish to continue living with her father. Appellant's Br. p. 21.
[¶17] We acknowledge that eighteen months is a significant gap between the incidents and the interviews describing them. Our Supreme Court has reversed decisions under the PPS in cases where the gap is considerably less. See Carpenter, 786 N.E.2d at 703 (up to six weeks); Pierce, 677 N.E.2d at 44 (a matter of hours). Nevertheless, we emphasize that determining whether an interview displays sufficient indicia of reliability is a wholistic determination. The gap between the molestation and the forensic interview is one factor to consider, and it is not dispositive. Key among the factors considered in Carpenter, for example, was the fact that the interviewee "was unable to distinguish between truth and falsehood." 786 N.E.2d at 704. The child in Pierce, similarly, was unable to understand the difference between truth and a lie. Id. at 699. Mullins does not allege that the same is true here.
[¶18] Moreover, there was evidence adduced to suggest that the reason C.M. did not come forward sooner was that Mullins was preventing her from doing so. See Ex. Vol. VI 36-37. Finally, the concern about coaching usually arises when there is an initial disclosure followed by an interview, and the opportunity arises in the interim. Nunley v. State, 916 N.E.2d 712, 718 (Ind.Ct.App. 2009) ("after the victim's initial disclosure [is] when the opportunity for coaching arises."), trans denied. That is not the case here. And Mullins makes no attempt to argue that there is specific evidence as to who the coach was, when the coaching began, or what the motive for such coaching would be. We are unpersuaded that "CM's use of anatomically correct terms, such as penis, throughout her interview is suggestive of potential coaching." Appellant's Br. p. 24.
[¶19] Thus, while we recognize that an eighteen-month gap weighs against a finding of reliability, we are ultimately unconvinced that the gap is sufficient to demonstrate that the trial court manifestly abused its discretion. See Ennik v. State, 40 N.E.3d 868, 879 (Ind.Ct.App. 2015) (affirming admission of interview despite a gap of between nine and twenty-two months), trans. denied. Neither do any of Mullins's other proposed deficiencies with the reliability of the interview-either standing alone, or in combination-lead us to the conclusion that the trial court abused its discretion in admitting the interview. We acknowledge that the bulk-if not the exclusive source-of the evidence incriminating Mullins came from the forensic interviews, as Mullins points out. But that reality is not a matter of either the indicia of reliability, or the trial court's discretion.
[¶20] Finally, we note that there are no passage of time arguments to be made with respect to I.M's interview. We further note that Bushmore-Barry is a qualified forensic interviewer who employed approved protocols when conducting the interviews. Mullins offers no arguments with respect to I.M's interview that lead us to conclude that the trial court abused its discretion in admitting it.
B. Unavailability of Witnesses
[¶21] Mullins next argues that the trial court erroneously found that the children were excused from testifying at trial. Under Indiana Code Section 35-37-4-6(e)(2)(B)(i), a trial court may determine that a child is unable to testify at trial based on "the testimony of a psychiatrist, physician, or psychologist, and other evidence[.]" The trial court found that both children would suffer significant emotional distress if forced to testify in the physical presence of Mullins. The trial court's finding garnered ample support from Dr. Kohli, the statutorily prescribed expert. Mullins argues that Dr. Kohli's opinions were outdated by the time the trial occurred. But we agree with the State that such a challenge addresses the weight that the trial court assigned to Dr. Kohli's opinions, and we believe that question is a matter best left squarely within the trial court's discretion. We see no reason to disturb the trial court's determination that the children were unavailable to testify.
II. Aggravating Factors
[¶22] Mullins argues that the trial court abused its discretion when it found the statutory aggravator that the harm, injury, or loss suffered by the victims were greater than the elements necessary to prove the commission of the offense."[S]ubject to the review and revise power [under Indiana Appellate Rule 7(B)], sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion." Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007) (citing Smallwood v. State, 773 N.E.2d 259, 263 (Ind. 2002)), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007); Phipps v. State, 90 N.E.3d 1190, 1197 (Ind. 2018). "An abuse occurs only if the decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom." Schuler v. State, 132 N.E.3d 903, 904 (Ind. 2019) (citing Rice v. State, 6 N.E.3d 940, 943 (Ind. 2014)).
See I.C. § 35-38-1-7.1(a)(1). As we discuss in detail infra, Mullins was sentenced for two Level 1 felonies. Indiana Code Section 35-50-2-4(c) provides that anyone convicted of such a charge "shall be imprisoned for a fixed term of between twenty (20) and fifty (50) years, with the advisory sentence being thirty (30) years."
[¶23] A trial court may abuse its discretion in a number of ways, including:
(1) "failing to enter a sentencing statement at all"; (2) entering a sentencing statement in which the aggravating and mitigating factors are not supported by the record; (3) entering a sentencing statement that does not include reasons that are clearly supported by the record and advanced for consideration; or (4) entering a sentencing statement in which the reasons provided in the statement are "improper as a matter of law."Ackerman v. State, 51 N.E.3d 171, 193 (Ind. 2016) (quoting Anglemyer, 868 N.E.2d at 490-91), cert. denied.
[¶24] "This Court presumes that a court that conducts a sentencing hearing renders its decision solely on the basis of relevant and probative evidence." Schuler, 132 N.E.3d at 905. "When an abuse of discretion occurs, this Court will remand for resentencing only if 'we cannot say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.'" Ackerman, 51 N.E.3d at 194 (quoting Anglemyer, 868 N.E.2d at 491). "In other words, the defendant must have been prejudiced by the improper aggravators." Larkin v. State, 173 N.E.3d 662, 671 (Ind. 2021) (citing McDonald v. State, 868 N.E.2d 1111, 1114 (Ind. 2007)). This is particularly pertinent where, as here, the trial court finds multiple aggravators and the appellant challenges only one. See, e.g., Bennett v. State, 787 N.E.2d 938, 947 (Ind.Ct.App. 2003) (observing that even if the trial court erred in considering either of the two challenged aggravating circumstances, the trial court could still enhance the defendant's sentence through the single aggravating circumstance of his criminal history), trans. denied.
[¶25] Mullins fails to challenge the trial court's finding of a separate aggravating factor that Mullins "was in a position of having care, custody, or control of the victims of the offenses . . . ." Appellant's App. Vol. III p. 4. As the trial court noted in its sentencing statement: "there is an obligation on [sic] a parent to do that which he or she must to raise the child and it is a one of the highest obligations that a person can have. That obligation has not been met for these girls." Tr. Vol. III p. 48. And indeed, we have frequently recognized that abusing a position of trust with a child victim is a valid, standalone aggravator. See, e.g., Remy v. State, 17 N.E.3d 396, 403 (Ind.Ct.App. 2014) (citing Hart v. State, 829 N.E.2d 541, 544 (Ind.Ct.App. 2005)); see also Kedrowitz v. State, 199 N.E.3d 386, 405 (Ind.Ct.App. 2022). A single aggravating factor may justify an enhanced sentence. See, e.g., Hayden v. State, 830 N.E.2d 923, 929 (Ind.Ct.App. 2005), trans. denied. Accordingly, Mullins' argument on this score falls short. Even if we were to assume that the excess harm aggravator was improperly found-and we do not-Mullins does not explain why the trial court would have entered a lesser sentence on the basis of one aggravator instead of two. Mullins has failed to identify any prejudice or weight specifically attributable to the excess harm aggravator.
[¶26] Regardless, it was no abuse of discretion to find that the harm inflicted upon the victims in this matter was greater than that needed to prove the elements of the offenses. Dr. Kholi evaluated both children and concluded that the extent of the trauma suffered by the children was significant. Both children have suffered, apparently immensely. C.M. experiences avoidance, hypervigilance, nightmares, anxiety, and regressive behavior. I.M. experiences psychotic symptoms, which Dr. Kholi attributes to Mullins's act. We find little difficulty concluding that the infliction of severe trauma on multiple occasions to two girls of six and eight years old exceeds what the State was required to prove in order to convict Mullins.
III. Propriety of Sentence
[¶27] Finally, Mullins avows that his sentence is inappropriate in light of the nature of his crimes and his character. The Indiana Constitution authorizes independent appellate review and revision of a trial court's sentencing decision. See Ind. Const. art. 7, §§ 4, 6; Jackson v. State, 145 N.E.3d 783, 784 (Ind. 2020). Our Supreme Court has implemented this authority through Indiana Appellate Rule 7(B), which allows this court to revise a sentence when it is "inappropriate in light of the nature of the offense and the character of the offender." Our review of a sentence under Appellate Rule 7(B) is not an act of second guessing the trial court's sentence; rather, "[o]ur posture on appeal is [ ] deferential" to the trial court. Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016) (citing Rice v. State, 6 N.E.3d 940, 946 (Ind. 2014)). We exercise our authority under Appellate Rule 7(B) only in "exceptional cases, and its exercise 'boils down to our collective sense of what is appropriate.'" Mullins v. State, 148 N.E.3d 986, 987 (Ind. 2020) (per curiam) (quoting Faith v. State, 131 N.E.3d 158, 160 (Ind. 2019)).
Though we must consider both the nature of the offense and the character of the offender, an appellant need not prove that each prong independently renders a sentence inappropriate. See, e.g., State v. Stidham, 157 N.E.3d 1185, 1195 (Ind. 2020) (granting a sentence reduction based solely on an analysis of aspects of the defendant's character); Connor v. State, 58 N.E.3d 215, 219 (Ind.Ct.App. 2016); see also Davis v. State, 173 N.E.3d 700, 707-09 (Ind.Ct.App. 2021) (Tavitas, J., concurring in result).
[¶28] "'The principal role of appellate review is to attempt to leaven the outliers.'" McCain v. State, 148 N.E.3d 977, 985 (Ind. 2020) (quoting Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)). The point is "not to achieve a perceived correct sentence." Id. "Whether a sentence should be deemed inappropriate '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.'" Id. (quoting Cardwell, 895 N.E.2d at 1224). Deference to the trial court's sentence "should prevail unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character)." Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). When determining whether a sentence is inappropriate, the advisory sentence is the starting point the legislature has selected as an appropriate sentence for the crime committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014).
[¶29] In the case at bar, Mullins was convicted of two Level 1 felony child molesting charges. Indiana Code Section 35-50-2-4(c) provides that anyone convicted of such a charge "shall be imprisoned for a fixed term of between twenty (20) and fifty (50) years, with the advisory sentence being thirty (30) years." Mullins received sentences of forty-four years on those two charges, to run concurrently. The trial court further sentenced Mullins to two years each on Count V and Count VI, to run concurrently with one another but consecutive to the forty-four years. Both were Level 6 felonies, carrying a penalty of "a fixed term of between six (6) months and two and one-half (2 ½) years, with the advisory sentence being one (1) year." I.C. § 35-50-2-7. Thus, Mullins received an aggravated aggregate sentence of forty-six years. The maximum sentence Mullins could have received for these convictions is 105 years if all sentences were to run consecutively.
The trial court correctly did not enter sentences on Count III and Count IV, though it neglected to vacate the judgments of conviction stemming from those counts.
This appears to be an error on the trial court's part to be resolved on remand. We address the matter in Section IV of this opinion.
[¶30] Our analysis of the "nature of the offense" requires us to look at the nature, extent, and depravity of the offense. Sorenson v. State, 133 N.E.3d 717, 729 (Ind.Ct.App. 2019), trans. denied. Child molestation is an abhorrent crime, inherently depraved. But we focus here on the fact that this was not a one-time offense. Mullins molested his own daughter multiple times. She was six years old. The trial court would have been well within its discretion to consider the repeated violations as being an aggravating factor in and of themselves. See, e.g., Remy, 17 N.E.3d at 402. C.M. came to regard her father as monstrous as a result of his acts. Ex. Vol. VI pp. 128-29. With respect to I.M., battery and strangulation are serious crimes in their own right. But when the victim is a child, those crimes take on a different nature, violating one of the most basic tenets of our society: that the meekest and most vulnerable among us require nothing short of our utmost compassion and protection.
[¶31] Mullins contends that the advisory sentence for child molestation already contemplates the seriousness of the offense, and that C.M.'s injuries, lasting or otherwise, are not "physical" in nature. Appellant's Br. p. 36. Mullins further argues that "[w]hile the convictions concerning I.M. are for battery and strangulation, no evidence was produced that the physical injury to I.M. rose to a significant level." Id. at 37. We are unmoved. We cannot say that anything about the nature of Mullins's repeated sexual and violent offenses against his own children counsels that those offenses were "accompanied by restraint, regard, and lack of brutality." Stephenson, 29 N.E.3d at 122.
[¶32] Our analysis of the character of the offender involves a "broad consideration of a defendant's qualities," Adams v. State, 120 N.E.3d 1058, 1065 (Ind.Ct.App. 2019), including the defendant's age, criminal history, background, and remorse. James v. State, 868 N.E.2d 543, 548-59 (Ind.Ct.App. 2007). Mullins urges that he has a "consistent employment history[,]" though we note that the trial court appeared to express some skepticism as to just how weighty a consideration this is. Appellant's Br. p. 37; Tr. Vol. III p. 48. Mullins's pre-sentence report finds that he is at a "low risk" rating for four of his seven IRAScategories and poses, overall, a low risk of recidivism. Finally, Mullins notes that he has no significant criminal history prior to these convictions.
This is shorthand for the Indiana Risk Assessment System, commonly employed during criminal sentencing proceedings.
[¶33] Nevertheless, we note that, so far as the record reflects, Mullins has expressed no remorse, and, in fact, denies the occurrence of the crimes for which he was convicted. See Appellant's App. Vol. II p. 250. Moreover, the abuse of a position of trust is not just a recognized aggravator, it is also a reflection of one's character. This is particularly so where the victim is a child. The State correctly draws our attention to our prior pronouncement: "'Crimes against children are contemptible. Therefore, Indiana supports a public policy that protects children and punishes child abusers.'" Cowart v. State, 756 N.E.2d 581, 584 (Ind.Ct.App. 2001) (quoting Singer v. State, 674 N.E.2d 11, 15 (Ind.Ct.App. 1996), trans. denied. Cert. denied), trans. denied. This is no less a factor with respect to the nature of the offender than it is with respect to the nature of the offense. Mullins has not carried his burden to demonstrate that his sentence is one of the outliers for which Appellate Rule 7(B) is intended.
IV. Double Jeopardy
[¶34] We briefly address an issue that Mullins fails to raise. "As questions of double jeopardy implicate fundamental rights, we routinely address specific double jeopardy violations even when the parties have not begun the conversation." Morales v. State, 165 N.E.3d 1002, 1009 (Ind.Ct.App. 2021) (citing Whitham v. State, 49 N.E.3d 162, 168 (Ind.Ct.App. 2015), trans. denied; Williams v. State, 892 N.E.2d 666, 668 (Ind.Ct.App. 2008), trans. denied), trans. denied.
[¶35] "If a trial court does not formally enter a judgment of conviction on a jury verdict of guilty, then there is no requirement that the trial court vacate the 'conviction,' and merger is appropriate." Kovats v. State, 982 N.E.2d 409, 414- 15 (Ind.Ct.App. 2013) (quoting Townsend v. State, 860 N.E.2d 1268, 1270 (Ind.Ct.App. 2007), trans. denied). A trial court "merges" two counts when it declines to formally enter judgment on the lesser offense. "However, if the trial court does enter judgment of conviction on a jury's guilty verdict, then simply merging the offenses is insufficient and vacation of the offense is required. Id. at 414-15 (citing Green v. State, 856 N.E.2d 703, 704 (Ind. 2006); Gregory v. State, 885 N.E.2d 697, 703 (Ind.Ct.App. 2008), trans. denied).
[¶36] In the case at bar the trial court correctly recognized that the jury convicted Mullins of three lesser-included offenses. In its sentencing order, the trial court noted "[t]he Court finds that Count III shall merge into Count I[,] and Count IV shall merge into Count II, and Count VI merges into Count V." Appellant's App. Vol. III p. 3. At the conclusion of the trial, however, the trial court entered judgments on the convictions for all six counts. See Appellant's App. Vol. II pp. 196-98. Those judgments for Counts III and IV must be vacated on remand. As to Counts V and VI, the trial court ordered that the counts "merge," but then issued concurrent sentences for both counts. We remand to the trial court to resolve the inconsistency, determine whether convictions for Counts V and VI may violate double jeopardy protections under Wadle v. State, 151 N.E.3d 227 (Ind. 2020), and issue a new sentencing order and abstract consistent with this opinion.
Conclusion
[¶37] The trial court did not err when it admitted the forensic interviews of I.M. and C.M.; neither did it abuse its discretion when it found-as a valid aggravator- that the harm suffered by the victim was greater than the elements necessary to prove the commission of the offense. Mullins's sentence is not inappropriate in light of the nature of his offenses and his character. The trial court's sentencing order, however, does not comport with the constitutional requirements of double jeopardy, and we therefore remand with instructions to vacate the judgments on Counts III and IV, consider the double jeopardy implications of Counts V and VI, and enter a new sentencing order consistent with this opinion.
[¶38] Affirmed and remanded.
Robb, J., and Mathias, J., concur.