William L.W. Cummings, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] After a jury found William L.W. Cummings guilty of both Class A felony and Level 1 felony child molesting, the trial court sentenced Cummings to a term of fifty years for each conviction, to run consecutively, for an aggregate 100-year term. Cummings contends on appeal that the trial court abused its discretion in sentencing him and that his sentence is inappropriate. For its part, the State contends that the trial court did not abuse its discretion in sentencing Cummings and that his sentence is not inappropriate. We affirm.

Facts and Procedural History

[2] Throughout her life, M.K. has referred to Cummings, who was thirty-four years old at the time of the underlying trial, as her uncle.¹ She often spent time with Cummings at her great-grandmother's home, where Cummings also lived. “[S]ome time before” June of 2014, when M.K. was six years old, Cummings instructed M.K. to go into her great-grandmother's bedroom. Tr. Vol. III p. 12. Once inside the bedroom, Cummings instructed M.K. to get on the bed. Cummings took off M.K.’s pants. M.K. was “scared” and had “a lot of things going through [her] head.” Tr. Vol. III p. 15. Cummings inserted his fingers into M.K.’s vagina before removing his fingers and inserting his penis into M.K.’s vagina. After what “seemed like forever[,]” Cummings stopped and “told [M.K.] not to tell anybody.” Tr. Vol. III p. 16.

[3] Prior to the first molestation, M.K. had considered Cummings to be “a safe place.” Tr. Vol. III p. 14. Afterwards, she was scared of him and “didn't want to be around him at all.” Tr. Vol. III p. 16. The molestation happened a second time, at some point after M.K. had turned seven, again at her great-grandmother's home. M.K. indicated that the second molestation occurred “[e]xactly like the first time[,]” with Cummings taking her into her great-grandmother's bedroom, taking her pants off, and inserting his fingers into her vagina before removing his fingers and inserting his penis. Tr. Vol. III p. 17.

[4] M.K. indicated that Cummings had molested her for a third time at her mother's home while he had been babysitting her and her siblings. Shortly after her mother had left, Cummings took M.K. into an upstairs closet where he “laid [her] down and he took [her] pants off.” Tr. Vol. III p. 19. He then did “[t]he same thing” as he had on the two previous occasions at her great-grandmother's home. Tr. Vol. III p. 19. Cummings stopped and “[h]urried up [to] put [her] pants back on [her]” when M.K.’s siblings “came yelling for [her] because they couldn't find” her. Tr. Vol. III p. 20.

[5] M.K. did not initially report the molestations because she was scared and “didn't think that anybody would believe” her. Tr. Vol. III p. 9. However, she eventually reported Cummings's actions in 2021 after learning that Cummings “was babysitting” her siblings “[b]ecause [she] didn't want it happening to [her] little sister[.]” Tr. Vol. III p. 22.

[6] The State charged Cummings with one count of Class A felony child molesting and one count of Level 1 felony child molesting. With respect to the Class A felony charge, the State alleged that Cummings had molested M.K. “[b]etween January 1, 2014 and June 30, 2014[.]” Appellant's App. Vol. II p. 161 (emphasis omitted). With respect to the Level 1 felony charge, the State alleged that Cummings had molested M.K. “[b]etween July 1, 2014 and December 31, 2017[.]” Appellant's App. Vol. II p. 161 (emphasis omitted). Following a jury trial, Cummings was found guilty as charged.

[7] On June 12, 2024, the trial court sentenced Cummings to a term of fifty years for his Class A felony conviction and a term of fifty years for his Level 1 felony conviction. The trial court ordered that the sentences “run consecutive to one another, for a total sentence of one hundred (100) years.” Appellant's App. Vol. II p. 187. In sentencing Cummings, the trial court found the following statutory aggravating factors: (1) Cummings had a history of criminal or delinquent behavior; (2) M.K. had been less than twelve years of age when the molestation occurred; (3) on at least one of the occasions, Cummings had committed the offense within the presence of other children; (4) Cummings had recently violated the terms of probation; (5) M.K. had been considered infirm due to her young age; (6) Cummings had been in a position of care, custody, or control of M.K.; and (7) Cummings had threatened to harm M.K. if she reported the offense. See Ind. Code § 35-38-1-7.1(a)(2), (3), (4), (6), (7), (8), and (10). The trial court did not find any statutory mitigating factors but found Cummings's limited education and low intellectual function to be non-statutory mitigating factors. In considering these factors, the trial court found the “balance between the aggravating and mitigating factors to be on the side of aggravating factors, and ․ that deviation from the advisory sentence is appropriate[.]” Appellant's App. Vol. II p. 186.

Discussion and Decision

[8] Cummings challenges his sentence on appeal, arguing both that the trial court abused its discretion in sentencing him and that his sentence is inappropriate.

I. Abuse of Discretion

[9] Cummings contends that the trial court abused its discretion in sentencing him. 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), modified on other grounds on reh'g, 875 N.E.2d 218 (Ind. 2007). “An abuse of discretion occurs 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.” Id. (quotation omitted).

We review for an abuse of discretion the court's finding of aggravators and mitigators to justify a sentence, but we cannot review the relative weight assigned to those factors. When reviewing the aggravating and mitigating circumstances identified by the trial court in its sentencing statement, we will remand only if the record does not support the reasons, or the sentencing statement omits reasons that are clearly supported by the record, and advanced for consideration, or the reasons given are improper as a matter of law.

Baumholser v. State, 62 N.E.3d 411, 416 (Ind. Ct. App. 2016) (citation and quotation omitted), trans. denied. Moreover,

[a] single aggravating circumstance may be sufficient to enhance a sentence. When a trial court improperly applies an aggravator but other valid aggravating circumstances exist, a sentence enhancement may still be upheld. The question we must decide is whether we are confident the trial court would have imposed the same sentence even if it had not found the improper aggravator.

Id. at 417 (internal quotation and citation omitted).

[10] A person who, for a crime committed before July 1, 2014, commits a Class A felony, “shall be imprisoned for a fixed term of between twenty (20) and fifty (50) years, with the advisory sentence being thirty (30) years.” Ind. Code § 35-50-2-4(a). Likewise, for a crime committed after June 30, 2014, a person who commits Level 1 felony child molesting “shall be imprisoned for a fixed term of between twenty (20) years and fifty (50) years, with the advisory sentence being thirty (30) years.” Ind. Code § 35-50-2-4(c). Cummings was convicted of both Class A felony child molesting and Level 1 felony child molesting. The trial court sentenced Cummings to a fifty-year-term of incarceration for each of his convictions, and ordered that the sentences run consecutively, for an aggregate 100-year sentence.

[11] In arguing that the trial court abused its discretion in sentencing him to maximum consecutive sentences, Cummings claims that the trial court relied on an aggravating factor that was not supported by the record, relied on another aggravating factor that was inappropriate as a matter of law, and failed to find mitigating factors that were clearly supported by the record.

A. Inappropriate Aggravating Factors

1. Alleged Threat to M.K.

[12] Cummings claims that the trial court abused its discretion in finding that he had threatened to harm M.K. if she reported the abuse. Cummings acknowledges that M.K. testified both that Cummings had instructed her not to tell anyone about the sexual abuse and that she was afraid of Cummings. In arguing that this was nonetheless an inappropriate aggravating factor, Cummings points to M.K.’s statement that she had “[n]ot really” received any threats that made her scared. Tr. Vol. III p. 9. However, even if Cummings's instruction to M.K. not to report the abuse fell short of being a threat, his instruction was clearly an attempt to cover up his crime. We cannot say that the trial court abused its discretion in considering this fact, which was supported by M.K.’s testimony, to be an aggravating factor. See generally, Stewart v. State, 840 N.E.2d 859, 864 (Ind. Ct. App. 2006) (considering defendant's attempted cover-up of the crime to be an aggravating factor in affirming defendant's sentence), trans. denied.

2. M.K.’s Alleged Infirmity

[13] Cummings also claims that the trial court abused its discretion in finding that M.K. was mentally or physically infirm due to her young age at the time the first molestation occurred. In raising this claim, Cummings concedes that the trial court properly considered the fact that M.K. was under the age of twelve at the time the molestations occurred to be an aggravating factor. However, he asserts that the trial court erred in finding that M.K. was categorically infirm as a result of her young age. Essentially, Cummings asserts that by finding that M.K. was mentally infirm due to her young age, the trial court placed improper emphasis on her age at the time the first molestation occurred, effectively giving M.K.’s young age double aggravating weight.

[14] In finding that M.K. was mentally infirm at the time of the first molestation, the trial court stated that “I also recognize that being six years at old at the time of at least one of these offenses, the Victim would have been categorically mentally [ ]infirm, being six years of age, you're not with-it enough to know the ways of the world.” Tr. Vol. III p. 68. We need not decide whether the trial court properly considered this aggravating factor, however, because we are confident that the trial court would have imposed the same sentence without considering this factor. Any potential error was therefore harmless.

[15] The trial court gave “great weight” to the fact that Cummings had previously pled guilty to child molestation, had violated the terms of his probation in that case, and had violated the position of care he had previously enjoyed over M.K. Tr. Vol. III pp. 68, 69. The trial court also considered the emotional trauma suffered by M.K. and the fact that Cummings had committed at least one of the molestations in the presence or within the hearing of additional children. We are convinced that given these factors, together with the fact that M.K. was under twelve years old—which Cummings concedes was a proper aggravating factor—the trial court would have imposed the same sentence even if it had not considered M.K.’s alleged infirmity. See Baumholser, 62 N.E.3d at 417 (providing that a sentence may be upheld when a trial court improperly applies an aggravator so long as we are confident the trial court would have imposed the same sentence even if it had not found the improper aggravator).

B. Proposed Mitigating Factors

[16] The finding of mitigating circumstances falls within the court's sentencing discretion. The trial court is not obligated to find a circumstance to be mitigating merely because it is advanced as such by the defendant, nor is it required to explain why it does not find a proffered circumstance to be mitigating. The court need not consider alleged mitigating circumstances that are highly disputable in nature, weight, or significance. Moreover, the trial court is not required to give the same weight to mitigating circumstances as does the defendant. On appeal, the defendant must show that the proffered mitigating circumstance is both significant and clearly supported by the record.

Kedrowitz v. State, 199 N.E.3d 386, 406 (Ind. Ct. App. 2022) (internal citations omitted), trans. denied.

[17] Cummings argues that the trial court “abused its discretion by failing to find the following mitigating circumstances, which are clearly supported by the record: (1) Cummings's learning disability; (2) the hardship that Cummings's grandparents will suffer due to Cummings's incarceration; (3) Cummings's confession; (4) Cummings's low risk to reoffend; and (5) Cummings's positive character traits.” Appellant's Br. p. 12. However, as the State points out, at sentencing, Cummings only argued two mitigating factors: (1) that he was close to his family and wished to retain some relationship with them and (2) that he was a low risk to reoffend because “it is unlikely that he would ever be put in a position to ever be around children again[.]” Tr. Vol. III p. 66. We have previously noted that the trial court is not required to “present mitigating arguments on behalf of the defendant when the defendant fails to act” and “[f]ailure to present a mitigating circumstance to the trial court waives consideration of the circumstance on appeal.” Bryant v. State, 984 N.E.2d 240, 252 (Ind. Ct. App. 2013), trans. denied. Thus, Cummings has waived his argument as it relates to all but the two potential mitigating factors that were argued at sentencing.²

[18] Cummings argued at sentencing that he “is close with his family and ․ would like to have some relationship with them, even if it would be toward the end of his life.” Tr. Vol. III p. 66. While it is understandable that Cummings might wish to have some continued relationship with his family, we agree with the State that the desire to be free from prison and to see one's family is a natural desire of any individual who has been convicted of a crime and is facing a lengthy sentence. Cummings points to no authority indicating that this desire, without more, is entitled to any mitigating weight, instead arguing on appeal that his imprisonment would cause his elderly grandparents, with whom he lived, to suffer an undue hardship. While an undue hardship to a dependent relative is a statutory mitigating factor, see Indiana Code section 35-38-1-7.1(b)(10), Cummings did not argue at sentencing that his imprisonment would result in an undue hardship on his grandparents, but rather only that he wished to have some form of relationship with his family. As is indicated in the preceding paragraph, Cummings has therefore waived consideration of this potential mitigating factor on appeal. See Bryant, 984 N.E.2d at 252.

[19] Cummings also argued that “it is unlikely that he would ever be put in a position to ever be around children again,” arguing that the fact supported the suggestion that he was a low risk to re-offend. Tr. Vol. III p. 66. Although the presentence-investigation (“PSI”) report indicated that Cummings was a low risk to re-offend, his actions prove otherwise. Cummings has repeatedly molested children. In 2015, Cummings pled guilty to Class B felony child molesting for actions involving a different minor child. While this case was pending, Cummings was found to have violated the terms of his probation in that case after he was charged with Level 6 felony unlawful employment near children by a sexual predator. In this case, he was alleged to have molested M.K. at least three separate times and was convicted of both Class A felony child molestation and Level 1 felony child molestation. Cummings's repeated acts of child molestation show him to be a sexual predator who, if given the opportunity, may be likely to re-offend. As such, we cannot say that the trial court abused its discretion by not finding that this proffered factor was entitled to any mitigating weight. Cummings has failed to establish that the trial court abused its discretion in sentencing him.

II. Appropriateness

[20] Cummings also contends that his 100-year sentence is inappropriate. 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.” In analyzing such claims, we “concentrate less on comparing the facts of [the case at issue] to others, whether real or hypothetical, and more on focusing on the nature, extent, and depravity of the offense for which the defendant is being sentenced, and what it reveals about the defendant's character.” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 2008) (internal quotation omitted), trans. denied. The defendant bears the burden of persuading us that his sentence is inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).

[21] Again, Cummings was facing a term of imprisonment between twenty and fifty years for both his Class A felony and Level 1 felony convictions. See Ind. Code §§ 35-50-2-4(a), -4(c). The trial court imposed maximum fifty-year sentences for each and ordered the sentences to run consecutively, for an aggregate 100-year sentence.

[22] Cummings concedes that child molesting “is a serious offense” but argues that his offenses were “not among the very worst offenses.” Appellant's Br. pp. 19, 20. In support, Cummings asserts that “there is no evidence that the offenses were significantly more egregious or damaging than other acts which fit the statutory definition of child molesting.” Appellant's Br. p. 19. He further asserts that “there is no evidence that [M.K.’s] trauma was more serious than what is typically experienced by victims of similar offenses.” Appellant's Br. p. 20. In making these assertions, Cummings seemingly attempts to downplay the seriousness of his criminal actions. The evidence reveals that Cummings sexually molested a young family member on at least three occasions, leaving his victim scared and traumatized. He did so in both the victim's great-grandparents’ home and the victim's home at the time and, on at least one occasion, other children were present. M.K. testified that she had once considered Cummings to be a “a safe place.” Tr. Vol. III p. 14. After the molestations, however, she was scared of him and “didn't want to be around him at all.” Tr. Vol. III p. 16.

[23] While Cummings claims that he is a low risk to reoffend, the record suggests otherwise. The record reflects that Cummings is a sexual predator who has been convicted of several acts of child molestation involving penetration of the victims’ vagina with his penis. In fact, Cummings was on probation for a Class B felony child molestation conviction when he was charged in this case. Prior to his trial in the instant matter, Cummings had pled guilty to Class B felony child molesting for actions that occurred in 2012. While this case was pending, Cummings was found to have violated the terms of his probation relating to his first child molestation conviction after he was charged with Level 6 felony unlawful employment near children by a sexual predator. In this case, he was alleged to have sexually penetrated M.K. on at least three separate occasions. Cummings's prior Class B felony child-molest conviction and violation of probation undoubtedly reflects poorly on his character, as does his repeated molestation of a young family member in this case.

[24] Cummings argues that his alleged learning disability and several positive character traits—including his willingness to help care for his elderly grandparents, regular church attendance, and the fact that he has never abused drugs or alcohol—reflect positively on his character and suggest that he would be likely to respond positively to a short term of imprisonment. Even after having been found guilty, however, Cummings attempted to deflect responsibility for his actions, claiming that he had been “wrongfully accused and set up” by his cousin. Appellant's App. Vol. II p. 178. His attempted deflection and refusal to accept responsibility for his actions refutes his assertion that he had accepted responsibility for his actions and, as a result, would respond positively to a short term of imprisonment. Cummings has failed to convince us that his 100-year sentence is inappropriate.

[25] The judgment of the trial court is affirmed.

FOOTNOTES

1.   While M.K. refers to Cummings as her uncle, she indicated during trial that she was not sure of how she was actually related to Cummings, acknowledging that Cummings may actually be her Mother's cousin, rather than her Mother's brother.

2.   We also note that despite Cummings's claim that the trial court failed to find his learning disability to be a mitigating factor, in its written sentencing order, the trial court specifically found Cummings's “limited education and low intellectual functioning” to be a mitigating factor. Appellant's App. Vol. II p. 186. Thus, while the trial court did not use the exact words “learning disability” in its sentencing order, it is clear from the record that the trial court considered Cummings's allegedly low intellect, which often is related to or caused by a learning disability, to be a mitigating factor. As is stated above, the trial court was under no obligation to grant the same level of weight to this factor as Cummings. See Kedrowitz, 199 N.E.3d at 406.

Bradford, Judge.

Judges Bailey and Foley concur. Bailey, J., and Foley, J., concur.