Jessie Grimes v. State of Indiana
No summary available for this case.
Opinions
FILED Sep 05 2017, 5:40 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew J. McGovern Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jessie Grimes, September 5, 2017 Appellant-Defendant, Court of Appeals Case No. 31A01-1609-CR-2190 v. Appeal from the Harrison Superior Court State of Indiana, The Honorable Joseph L. Appellee-Plaintiff. Claypool, Judge Trial Court Cause No. 31D01-1602-F4-82
Mathias, Judge.
[1] Jessie Grimes (“Grimes”) was convicted in Harrison Superior Court of eighteen
counts of Level 4 felony incest, two counts of Level 6 felony dissemination of
matter harmful to minors, and one count of Level 6 felony obstruction of
justice. He was ordered to serve an aggregate sentence of 111 years in the
Court of Appeals of Indiana | Opinion 31A01-1609-CR-2190 | September 5, 2017 Page 1 of 19 Department of Correction. Grimes appeals his convictions and sentence and
argues:
I. Whether the trial court committed fundamental error when it denied Grimes’s motion to dismiss the charging information because it failed to notify him of the specific allegations against him; II. Whether the trial court erred when it denied Grimes’s motion to sever the obstruction of justice charge; III. Whether the trial court abused its discretion by ordering the sentences for each count to be served consecutively and by finding certain aggravating circumstances; and, IV. Whether Grimes’s 111-year aggregate sentence is inappropriate in light of the nature of the offense and the character of the offender.
We affirm.
Facts and Procedural History [2] Grimes is the father of A.G., D.G., and J.G., and in 2015, the children lived
with Grimes and his girlfriend, Ashleigh Keck (“Keck”). In August 2015, S.G.
was fourteen and started the seventh grade, and her sister D.G. turned ten in
October 2015.
[3] In the summer or fall of 2015, Grimes showed a pornographic movie to S.G. He
asked S.G. questions about the sexual acts depicted in the movie and whether
she knew how to perform them.
[4] Keck moved out of Grimes’s home in November 2015. Shortly thereafter,
Grimes showed a video to ten-year-old D.G. showing a male and female
Court of Appeals of Indiana | Opinion 31A01-1609-CR-2190 | September 5, 2017 Page 2 of 19 touching each other under their clothes. D.G. knew the video was inappropriate
and tried not to watch it. Grimes instructed D.G. not to tell anyone about the
video.
[5] Also, in November 2015, Grimes punished S.G. by making her touch his penis.
Grimes established a Facebook account under a fake name and sent S.G.
pictures of his penis. S.G. also met a girl on Facebook who refused to video chat
with her, but told S.G. that she was having sex with her father. The girl
encouraged S.G. to have sex with Grimes and sent S.G. bible verses that the girl
claimed gave daughters permission to have sexual intercourse with their fathers.
In this same month, Grimes also took S.G. to purchase birth control.
[6] At the end of November 2015, Grimes began to have sexual intercourse with
S.G. S.G. was later able to describe more than eighteen separate incidents of
sexual intercourse between herself and Grimes. They also performed oral sex on
each other. In addition, Grimes had unprotected sex with S.G. when she
remembered to take her birth control. Grimes told S.G. that he could go to jail if
anyone knew that they had sexual intercourse and to keep it a secret between
them. On one occasion, Grimes also recorded himself having sex with S.G.
because Grimes wanted S.G. to “see how [she] was like porn.” Tr. Vol. I, p.
212. During this time, Grimes also purchased a vibrator for S.G.
[7] On February 5, 2016, S.G. told a school official that she was having sexual
intercourse with Grimes. S.G. and her siblings were removed from Grimes’s
home and placed with their paternal grandmother. Grimes was arrested a few
Court of Appeals of Indiana | Opinion 31A01-1609-CR-2190 | September 5, 2017 Page 3 of 19 days later and charged with twenty counts of Level 4 felony incest, twenty
counts of Level 6 felony sexual misconduct with a minor, and two counts of
Level 6 felony dissemination of matter harmful to minors.
[8] While he was in jail awaiting trial, Grimes asked his former girlfriend Keck to
access S.G.’s Facebook account and send a group message to S.G.’s friends.
Keck did not know how to send a group message, and Grimes instructed her to
ask her thirteen-year-old son. When Keck finally agreed to send the message,
Grimes gave Keck S.G.’s username, password, dictated the message and told
Keck what time to send it. Keck sent the following message from S.G.’s
Facebook account to S.G.’s friend from church, Grimes’s stepsister, and S.G.’s
former boyfriend:
Everything is working. They are believing it all. I will be out of here and we will be together. This new school sucks. My grandma is still not [believing] me but when they find the stuff I planted. My dad is [staying] in jail for a long time. Love you. I told you everything what Lisa said to.
Ex. Vol., State’s Ex. 6. Grimes’s stepsister, a recipient of the message, disclosed
it to an attorney involved in the criminal proceeding.
[9] Thereafter, on April 11, 2016, the State charged Grimes with Level 6 felony
obstruction of justice. Grimes filed a motion to sever the charge from the
remaining charges, arguing that the offense was not of the same or similar
character of the other charged acts. The trial court denied the motion. The trial
Court of Appeals of Indiana | Opinion 31A01-1609-CR-2190 | September 5, 2017 Page 4 of 19 court also denied Grimes’s separately filed motion to dismiss the incest and
sexual misconduct with a minor charges for lack of specificity.
[10] Grimes’s four-day jury trial commenced on June 14, 2016. During trial, the trial
court granted the State’s motion to dismiss two counts of incest and two counts
of sexual misconduct with a minor. The jury found Grimes guilty of the
remaining charges.
[11] The sentencing hearing was held on August 29, 2016. The trial court vacated
the eighteen sexual misconduct with a minor counts for double jeopardy
reasons. Grimes was then ordered to serve consecutive six-year sentences for
each of the eighteen Level 4 felony incest convictions, a total of 108 years. He
was also ordered to serve consecutive one-year terms for each of the two Level 6
felony convictions for dissemination of matter harmful to minors and the single
Level 6 felony obstruction of justice conviction. In the aggregate, Grimes was
ordered to serve a 111-year sentence in the Department of Correction. Grimes
now appeals his convictions and sentence.
Specificity in the Charging Information [12] Grimes argues that the twenty counts of incest in the charging information lack
specific facts to distinguish each charged count from the others, and therefore,
he was not given sufficient notice of the charges against him. Indiana Code
section 35-34-1-2 provides that the charging information shall state “the nature
and elements of the offense charged in plain and concise language without
unnecessary repetition” and contain “a plain, concise, and definite written
Court of Appeals of Indiana | Opinion 31A01-1609-CR-2190 | September 5, 2017 Page 5 of 19 statement of the essential facts constituting the offense charged.” I.C. § 35-34-l-
2(a)(4), (d). The purpose of a charging information is to advise the defendant of
the particular offense charged so that he can prepare a defense and be protected
from being twice placed in jeopardy for the same offense. Leggs v. State, 966
N.E.2d 204, 207 (Ind. Ct. App. 2012).
[13] “The State is not required to include detailed factual allegations in a charging
information.” Laney v. State, 868 N.E.2d 561, 567 (Ind. Ct. App. 2007), trans.
denied. “An information that enables an accused, the court, and the jury to
determine the crime for which conviction is sought satisfies due process. Errors
in the information are fatal only if they mislead the defendant or fail to give him
notice of the charge filed against him.” Dickenson v. State, 835 N.E.2d 542, 550
(Ind. Ct. App. 2005) (citations omitted), trans. denied. “[W]here a charging
instrument may lack appropriate factual detail, additional materials such as the
probable cause affidavit supporting the charging instrument may be taken into
account in assessing whether a defendant has been apprised of the charges
against him.” State v. Laker, 939 N.E.2d 1111, 1113 (Ind. Ct. App. 2010), trans.
denied.
[14] The trial court may dismiss a charging information if it “does not state the
offense with sufficient certainty” or if the “facts stated do not constitute an
offense.” Ind. Code § 35-34-l-4. But a defendant charged with a felony must file
such motion no later than twenty days before the omnibus date. Id. Grimes
concedes that he failed to timely challenge the allegedly defective charging
information.
Court of Appeals of Indiana | Opinion 31A01-1609-CR-2190 | September 5, 2017 Page 6 of 19 [15] Failure to timely challenge an allegedly defective charging information results in
waiver unless fundamental error has occurred. See Hayden v. State, 19 N.E.3d
831, 840 (Ind. Ct. App. 2014), trans. denied; Leggs, 966 N.E.2d at 207–08.
Fundamental error is an extremely narrow exception to the waiver rule, and the
defendant faces the heavy burden of showing that the alleged error is so
prejudicial to the defendant’s rights as to make a fair trial impossible. Ryan v.
State, 9 N.E.3d 663, 668 (Ind. 2014), reh’g denied. An error in a charging
information is fundamental if it “mislead[s] the defendant or fail[s] to give him
notice of the charges against him so that he is unable to prepare a defense to the
accusation.” Leggs, 966 N.E.2d at 208 (quotation omitted).
[16] In this case, Grimes was charged with twenty counts of Level 4 felony incest. In
each of the twenty counts, the State alleged that
In Harrison County, State of Indiana, on or about the time between August 1st, 2015 and February 1st, 2016, and at a different time than alleged in any other Count, JESSIE GRIMES, a person eighteen (18) years of age or older, did engage in sexual intercourse or other sexual conduct, with another person, when the person knows that the other person is related to the person biologically as a parent, child, grandparent, grandchild, sibling, aunt, uncle, niece, or nephew and the other person is less than sixteen (16) years of age; To-Wit: JESSIE GRIMES, a person over eighteen (18) years of age did engage in sexual intercourse with S.G., his biological daughter who is less than sixteen (16) years of age, in Harrison County, Indiana, which is contrary to the form of the statute in such cases made and provided and against the peace of the State of Indiana.
Court of Appeals of Indiana | Opinion 31A01-1609-CR-2190 | September 5, 2017 Page 7 of 19 Appellant’s App. Vol. II, pp. 26–45. Grimes contends that the charging
information for each count of incest lacked “specific facts that would distinguish
one count from the other” and “without such details, Grimes was deprived of
his due process right to know the specific offense with which he is charged.”
Appellant’s Br. at 28.
[17] However, Grimes does not argue that the State’s failure to include specific facts
to differentiate each of the twenty counts of incest left him unable to prepare his
defense. At trial, Grimes claimed that he did not engage in sexual intercourse or
other sexual conduct with S.G. and she had fabricated the allegations. And
Grimes does not claim that he was misled because the State did not allege
specific facts for each incest count. The charging information sufficiently
informed Grimes that he was charged with committing twenty separate acts of
incest by engaging in sexual intercourse or other sexual conduct with his
daughter, S.G., between the dates of August 1, 2015 and February 1, 2016. For
all of these reasons, Grimes has not established that the trial court committed
fundamental error when it denied his motion to dismiss the charging
information.
Motion to Sever [18] Grimes argues that the trial court erred when it denied his motion to sever the
obstruction of justice charge from the remaining charges. Indiana Code section
35-34-1-9(a) provides that
Court of Appeals of Indiana | Opinion 31A01-1609-CR-2190 | September 5, 2017 Page 8 of 19 [t]wo (2) or more offenses may be joined in the same indictment or information, with each offense stated in a separate count, when the offenses:
(1) are of the same or similar character, even if not part of a single scheme or plan; or
(2) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.
[19] Subsection 9(a)(1) refers to the nature of the charged offenses, whereas
subsection 9(a)(2) refers to the operative facts underlying those charges. Pierce v.
State, 29 N.E.3d 1258, 1265 (Ind. 2015).
[20] The defendant shall have the right to severance of the offenses “[w]henever two
(2) or more offenses have been joined for trial in the same indictment or
information solely on the ground that they are of the same or similar
character[.]” Ind. Code § 35-34-1-11.
In all other cases the court, upon motion of the defendant or the prosecutor, shall grant a severance of offenses whenever the court determines that severance is appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense considering:
(1) the number of offenses charged;
(2) the complexity of the evidence to be offered; and
(3) whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.
Id.
Court of Appeals of Indiana | Opinion 31A01-1609-CR-2190 | September 5, 2017 Page 9 of 19 [21] The trial court denied the pre-trial motion to sever after concluding that the
obstruction of justice charge was “so closely related” to the other charges that
they could not be “separated fairly.” Tr. Vol. I, p. 34. Grimes failed to renew his
motion at trial, and therefore, he waived the right to severance. See Ind. Code §
35-34-1-12(b) (establishing that where a pretrial motion for severance is denied,
the motion may be renewed on the same grounds at or before the close of all
evidence at trial, and failure to renew the motion waives the right to severance).
[22] Waiver notwithstanding, the trial court acted within its discretion when it
denied Grimes’s motion to sever.1 See Pierce, 29 N.E.3d at 1264 (stating that
“[w]here offenses have been joined because the defendant’s underlying acts are
connected together, we review the trial court’s decision for an abuse of
discretion”). Grimes’s motive for committing the obstruction of justice charge
was to cast doubt on S.G.’s credibility. Grimes instructed his former girlfriend
to log onto S.G.’s Facebook account and send a message to S.G.’s friends,
which implied that S.G. fabricated her allegations against Grimes. And
Grimes’s defense at trial was to claim that S.G. and D.G. fabricated the
allegations against him.
[23] Moreover, although over forty charges were filed against Grimes, the nature of
those charges and the evidence presented were not overly complex. Much of the
1 In this case, Grimes concedes that the obstruction of justice charge was not joined for trial in the same information solely on the ground that the charge is of the same or similar character of the other charges. Appellant’s Br. at 32–33.
Court of Appeals of Indiana | Opinion 31A01-1609-CR-2190 | September 5, 2017 Page 10 of 19 evidence consisted of S.G.’s and D.G.’s testimony and exhibits containing
photographs and copies of Facebook messages. Finally, Grimes does not claim
that the jury was unable to distinguish the evidence that applied to the
obstruction of justice charge from the evidence of the remaining charges.
[24] For all of these reasons, we conclude Grimes waived the issue for appeal, but
waiver notwithstanding, the trial court acted within its discretion when it denied
Grimes’s pre-trial motion to sever.
Sentencing [25] Grimes raises three challenges to his 111-year aggregate sentence. First, he
argues that the trial court erred when it imposed consecutive sentences because
his offenses constitute a single episode of criminal conduct. Next, Grimes
contends that the trial court abused its discretion in its consideration of the
aggravating circumstances. Finally, Grimes argues that his sentence is
inappropriate in light of the nature of the offense and the character of the
offender.
A. Grimes’s Conduct was not a Single Episode of Criminal Conduct
[26] A trial court cannot order consecutive sentences in the absence of express
statutory authority. Reed v. State, 856 N.E.2d 1189, 1199 (Ind. 2006). “‘A
sentence that is contrary to or violative of a penalty mandated by statute is
illegal in the sense that it is without statutory authorization.’” Id. (quoting
Rhodes v. State, 698 N.E.2d 304, 307 (Ind. 1998)).
Court of Appeals of Indiana | Opinion 31A01-1609-CR-2190 | September 5, 2017 Page 11 of 19 [27] Grimes argues that his offenses constitute a single episode of criminal conduct,
and therefore, the trial court’s authority to impose consecutive sentences in this
case was limited by Indiana Code sections 35-50-1-2(c) and (d), which provides
in pertinent part:
Except as provided in subsection (e) or (f) the court shall determine whether terms of imprisonment shall be served concurrently or consecutively. The court may consider the:
(1) aggravating circumstances in IC 35-38-1-7.1(a); and
(2) mitigating circumstances in IC 35-38-1-7.1(b);
in making a determination under this subsection. The court may order terms of imprisonment to be served consecutively even if the sentences are not imposed at the same time. However, except for crimes of violence, the total of the consecutive terms of imprisonment, exclusive of terms of imprisonment under IC 35-50-2-8 and IC 35-50-2-10 (before its repeal) to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the period described in subsection (d).
(d) Except as provided in subsection (c), the total of the consecutive terms of imprisonment to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct may not exceed the following: . . .
3) If the most serious crime for which the defendant is sentenced is a Level 4 felony, the total of the consecutive terms of imprisonment may not exceed fifteen (15) years.
(emphasis added).
[28] “Whether certain offenses constitute a ‘single episode of criminal conduct’ is a
fact-intensive inquiry” to be determined by the trial court. Slone v. State, 11
Court of Appeals of Indiana | Opinion 31A01-1609-CR-2190 | September 5, 2017 Page 12 of 19 N.E.3d 969, 972 (Ind. Ct. App. 2014) (quoting Schlichter v. State, 779 N.E.2d
1155, 1157 (Ind. 2002)). An episode of criminal conduct “means offenses or a
connected series of offenses that are closely related in time, place, and
circumstance.” Ind. Code § 35-50-1-2(b).
In determining whether multiple offenses constitute an episode of criminal conduct, the focus is on the timing of the offenses and the simultaneous and contemporaneous nature, if any, of the crimes. [A]dditional guidance on the question can be obtained by considering whether the alleged conduct was so closely related in time, place, and circumstance that a complete account of one charge cannot be related without referring to the details of the other charge.
Williams v. State, 891 N.E.2d 621, 631 (Ind. Ct. App. 2008) (internal citations
and quotations omitted).
[29] Grimes argues that his offenses constitute a single episode of criminal conduct
because he committed incest solely against S.G. and his offenses took place only
in his home over a period of approximately nine weeks.
[30] S.G. gave a detailed description of each separate act of sexual intercourse and
the room or location in the room in Grimes’s home where the offense took
place. The offenses for which Grimes was convicted did not take place on the
same day, but on many days over approximately nine weeks. Although it is not
critical to our inquiry,2 we observe that each incest conviction is supported by
2 Our supreme court has clarified that “although the ability to recount each charge without referring to the other can provide additional guidance on the question of whether a defendant’s conduct constitutes an
Court of Appeals of Indiana | Opinion 31A01-1609-CR-2190 | September 5, 2017 Page 13 of 19 evidence that is separate and distinct from the evidence supporting the other
convictions. In addition, the two dissemination of matter harmful to minors
convictions are importantly supported by evidence that Grimes showed
pornography to S.G. and D.G. on separate dates. Those two offenses were also
committed separate and apart from the eighteen offenses which led to Grimes’s
incest convictions.
[31] Because Grimes’s offenses were not simultaneous or contemporaneous, his
offenses do not constitute a single episode of criminal conduct. Cf. Harris v. State,
861 N.E.2d 1182 (Ind. 2007) (holding that convictions for sexual misconduct
with a minor constituted one episode of criminal conduct because the acts,
involving two victims, took place in the same bed, five minutes apart, and for
the same reason—that the girls must have intercourse in order to stay the night
with the defendant).
B. Aggravating Circumstances
[32] Sentencing decisions are within the purview of the trial court’s sound discretion
and are reviewed on appeal only for an abuse of discretion. Anglemyer v. State,
868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218. An abuse of
discretion occurs when the sentencing 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.” Id. There are several
episode of criminal conduct, it is not a critical ingredient in resolving the question. Rather, the statute speaks in less absolute terms....” Harris v. State, 861 N.E.2d 1182, 1188 (Ind. 2007).
Court of Appeals of Indiana | Opinion 31A01-1609-CR-2190 | September 5, 2017 Page 14 of 19 ways a trial court may abuse its discretion, including failing to enter a
sentencing statement at all, articulating reasons in a sentencing statement that
are not supported by the record, omitting reasons in a sentencing statement that
are clearly supported by the record, or articulating reasons that are improper as
a matter of law. Id. at 490–91.
[33] The trial court did not issue a written sentencing statement listing the
aggravating circumstances. The trial court discussed the aggravating
circumstances in its oral sentencing statement, but the statement is not entirely
clear. After reviewing the oral sentencing statement, we conclude that the trial
court considered the following aggravating circumstances: that Grimes
victimized his young children, fourteen-year-old S.G. and ten-year-old D.G.,
that the offenses occurred over a long period of time, that Grimes was in a
position of having care, custody, and control over the victims, and that the State
proved eighteen different “times that this occurred by the different sexual acts,
the different positions[.]” Tr. Vol. III, p. 231.
[34] To the extent that the trial court considered S.G.’s age as an aggravating
circumstance, the court abused its discretion because age is a material element
of incest. See Edrington v. State, 909 N.E.2d 1093, 1097 (Ind. Ct. App. 2009),
trans. denied (stating that when a victim’s age is a material element of the crime,
it may not also support an enhanced sentence). However, a trial court may
consider particularized circumstances of a criminal act to constitute separate
aggravating circumstances. See Vasquez v. State, 762 N.E.2d 92, 98 (Ind. 2001).
Under the circumstances of this case, we conclude that the trial court acted
Court of Appeals of Indiana | Opinion 31A01-1609-CR-2190 | September 5, 2017 Page 15 of 19 within its discretion when it considered D.G.’s young age as an aggravating
circumstance with regard to the dissemination of matter harmful to minors
conviction.
[35] The trial court also properly considered as aggravating that Grimes victimized
S.G. for an extended period of time. A trial court may consider the
particularized circumstances of a crime as an aggravating circumstance.
Gellenbeck v. State, 918 N.E.2d 706, 712 (Ind. Ct. App. 2009). And the trial court
properly considered Grimes’s position of having care, custody, and control over
S.G. and D.G. as an aggravating circumstance.
[36] However, the court improperly considered that the State proved eighteen
different acts of sexual intercourse as an aggravating circumstance. If the trial
court relies upon an aggravating factor that is also a material element of the
offense, then the trial court abuses its discretion. See Gomillia v. State, 13 N.E.3d
846 (Ind. 2014). S.G.’s testimony concerning how those offenses occurred
established the material elements of incest.
[37] Because we conclude that the trial court improperly considered D.G.’s age and
the number of incest offenses committed as aggravating circumstances, we must
determine whether the trial court would have imposed the same sentence absent
this error. See Edrington, 909 N.E.2d at 1101 (observing that it is proper to affirm
sentence where an improper aggravator is considered, if we have “confidence
the trial court would have imposed the same sentence” regardless).
Court of Appeals of Indiana | Opinion 31A01-1609-CR-2190 | September 5, 2017 Page 16 of 19 [38] Despite finding multiple aggravating circumstances, the court sentenced Grimes
to the advisory sentence for each of his convictions. And the trial court found
that the aggravating circumstances far outweighed the mitigating circumstance,
i.e. Grimes’s lack of a criminal history. It is also apparent from the sentencing
statement that the trial court believed that the particular nature and
circumstances of Grimes’s offenses warranted consecutive terms, and we agree.
We are therefore confident that the trial court would have imposed the same
sentence even if it had not considered the improper aggravating circumstances.
C. Inappropriate Sentence
[39] Finally, Grimes argues that his aggregate 111-year sentence is inappropriate in
light of the nature of the offense and the character of the offender. Indiana
Appellate Rule 7(B) provides that “[t]he Court may revise a sentence authorized
by statute 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.”
[40] In conducting our review, “[w]e do not look to determine if the sentence was
appropriate; instead we look to make sure the sentence was not inappropriate.”
Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “[S]entencing is principally a
discretionary function in which the trial court's judgment should receive
considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).
“Such deference 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 Court of Appeals of Indiana | Opinion 31A01-1609-CR-2190 | September 5, 2017 Page 17 of 19 substantial virtuous traits or persistent examples of good character).” Stephenson
v. State, 29 N.E.3d 111, 122 (Ind. 2015). Ultimately, our principal role is to
leaven the outliers rather than necessarily achieve what is perceived as the
correct result. Cardwell, 895 N.E.2d at 1225. Grimes bears the burden to
establish that his sentence is inappropriate. Rutherford v. State, 866 N.E.2d 867,
873 (Ind. Ct. App. 2007).
[41] When considering the nature of the offense, we observe that “the advisory
sentence is the starting point the Legislature selected as appropriate for the
crime committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). The advisory
sentence for a Level 4 felony is six years, see Ind. Code § 35-50-2-5.5, and
Grimes was sentenced to consecutive six-year terms for each Level 4 felony
incest conviction, for a total of 108 years. Grimes was also ordered to serve the
advisory one-year sentence for each of his three Level 6 felony convictions, see
Ind. Code § 35-50-2-7, to be served consecutive to each other and to the Level 4
felony sentences. In the aggregate, Grimes was ordered to serve 111 years.
[42] Thirty-five-year old Grimes showed pornography to his ten-year-old and
fourteen-year-old daughters allegedly to teach them about sex. He sent fourteen-
year-old S.G. pictures of his penis through her Facebook account. He also
punished S.G. by having her touch his penis. After his girlfriend moved out of
their home, he had sexual intercourse with S.G. at least eighteen times over the
course of nine weeks. Grimes had sex with S.G. in different locations in the
home and in different sexual positions, all of which S.G recounted in detail.
Grimes and S.G. also performed oral sex on each other. He videotaped himself
Court of Appeals of Indiana | Opinion 31A01-1609-CR-2190 | September 5, 2017 Page 18 of 19 having sex with S.G. on at least one occasion and showed her the video. He
also bought her a vibrator and lingerie to wear.
[43] Grimes’s offenses also reveal his deplorable character. Grimes was S.G.’s and
D.G.’s sole parent present in their young lives. He repeatedly victimized his
daughter over an extended period of time. In addition, while the criminal
proceedings were pending, he convinced his girlfriend to log into S.G.’s
Facebook account and send a message to S.G.’s friends purportedly from S.G.
implying that S.G. had fabricated the allegations against Grimes. Finally,
Grimes has not demonstrated any remorse whatsoever for what he did to his
family.
[44] For all of these reasons, we conclude that Grimes’s aggregate 111-year sentence
is not inappropriate in light of the nature of the offense and the character of the
offender.
Conclusion [45] The trial court did not err when it denied Grimes’s pre-trial motion to dismiss
the charging information and motion to sever. We also reject Grimes’s
challenges to his 111-year aggregate sentence and conclude that the sentence is
not inappropriate in light of the nature of the offense and the character of the
offender.
[46] Affirmed.
Kirsch, J., and Altice, J., concur.
Court of Appeals of Indiana | Opinion 31A01-1609-CR-2190 | September 5, 2017 Page 19 of 19