Virasak Lurnam, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Virasak Lurnam challenges his sentence, following a jury trial, for two counts of rape, as Level 3 felonies,¹ and one count of sexual battery, as a Level 6 felony.² We affirm.

Issues

[2] Lurnam raises the following two ³ restated issues:

I. Whether the trial court abused its discretion at sentencing.

II. Whether Lurnam's sentence is inappropriate given the nature of the offenses and his character.

Facts and Procedural History

[3] Lurnam and S.R. met in the summer of 2021, and began dating that September. By late February of 2022, they began living together and shared a bedroom. They lived with two other roommates, Zach Brown and Sam Landon.

[4] On April 5, 2022, S.R. broke up with Lurnam. However, Lurnam remained in the house and moved into a spare bedroom until he could “find [an]other place to live.” Tr. v. II at 158. Lurnam refused to accept that the relationship with S.R. had ended and continued to give S.R. gifts, food and money, call her pet names, and talk to her as if they were still romantically involved. S.R. rejected this behavior and told Lurnam multiple times to cease the behavior. Soon after the breakup, Lurnam tried to convince Brown to help him “get back with” S.R. Id. at 168.

[5] Lurnam continued communicating with S.R. by texting her. In the text messages, Lurnam made repeated sexual advances toward S.R.; described what he wanted her to do to him sexually; suggested that she beat him up, and that he choke her; tried to convince her to be alone with him; and offered to pay her for sex. S.R. repeatedly told him no to all these suggestions and requests, said that she did not want to touch him or have sex with him, and told him that she did not want him in her room.

[6] The interactions between S.R. and Lurnam eventually became violent. Lurnam continued to refuse to accept the end of the relationship. He repeatedly came into S.R.’s room uninvited and pinned her down, slapped her, told her they were still together, and said that they would be together forever. S.R. repeatedly told Lurnam they were not together, and he repeatedly insisted that they were. Sometimes during these interactions Lurnam penetrated S.R. and used sex toys on her without her consent. S.R. considered those acts to be rape; however, S.R. was afraid to tell anyone else about the situation, and it continued and became worse.

[7] The night of April 17, 2022, S.R. told her other roommates about the incidents when Lurnam had pinned her down, and they agreed to help her put a lock on her door to prevent Lurnam from entering her room again. Brown put a lock on S.R.’s bedroom door, which made Lurnam angry. Lurnam did not want to “lose access” to S.R. and would slide food through the door crack. Tr. v. II at 140. S.R. was frightened by Lurnam's continued efforts to communicate with her and feared things would escalate into physical harm.

[8] On April 18, 2022, only S.R. and Lurnam were in the home, and Lurnam began texting S.R. at 5:00 a.m. In one of the messages, Lurnam said he was going to go into S.R.’s room, but S.R. believed she was safe that day because of her new door lock. At one point, S.R. left her room to go to the bathroom. When she returned to her room, she discovered that Lurnam had placed a stuffed animal and roses in her room, which frightened her.

[9] Later that day, S.R. left her room to shower, and when she returned, she found Lurnam sitting on her bed in her room. When S.R. saw Lurnam, she froze and was “in shock” because she realized that she was at home alone and that Lurnam would be able to catch her if she tried to leave. Id. at 154. Lurnam motioned for S.R. to sit on the bed with him, but she told him no. Lurnam then grabbed S.R., pulled her down to the bed, told her they were still together, and that she “just needed to hear him out.” Id. at 133. Lurnam then put his penis in S.R.’s mouth, “grabbed the back of [S.R.’s] head and pushed it on his [penis].” Ex. 19 at 45. Lurnam then pulled off S.R.’s sweatpants, pushed her face-down onto the bed, and positioned himself behind her. S.R. told Lurnam “no” more than once, but he kept saying, “Shh, let me do this, please.” Tr. v. II at 134. Lurnam then placed his penis in S.R.’s vagina while S.R. continued to ask him to stop. Lurnam penetrated S.R.’s vagina multiple times and ejaculated in her multiple times. Lurnam then turned S.R. over and penetrated her again. Next, Lurnam put a sex toy in S.R.’s vagina, even though she told him not to do that. “[A]t some point,” Lurnam “strangled” S.R. Ex. 19 at 45.

[10] After the assault, Lurnam left S.R.’s room, and S.R. contacted Brown by cell phone. S.R. asked Brown to help her leave the house “without raising alarm.” Tr. v. II at 136. Brown assisted S.R. in getting outside the house, where they met Brown's sister and went to the hospital. S.R. reported the crimes to police and was examined at the Fort Wayne Sexual Assault Treatment Center. The examination showed that S.R. had sustained injuries to her neck and mouth, and Lurnam's DNA and sperm cells were found to be present on the swabs from S.R.’s external and internal genitalia.

[11] On April 21, 2022, S.R. obtained an ex parte protective order against Lurnam. On July 13, 2022, in cause number 02D04-2208-CM-2520 (“CM-2520”), the State charged Lurnam with invasion of privacy, as a Class A misdemeanor,⁴ for violating the ex parte protective order.

[12] On August 22, 2022, in cause number 02D05-2208-F3-76 (“F3-76”), the State charged Lurnam with two counts of Level 3 felony rape and one count of Level 6 felony sexual battery. On August 24, the trial court issued an order that Lurnam have no contact with S.R., and Lurnam was released on bond. However, on September 27, S.R. reported to police that Lurnam had been contacting her. On October 7, Pretrial Services filed a notice to the trial court indicating that Lurnam had violated the terms of his pre-trial release, and the State subsequently moved for revocation of Lurnam's bond on the ground that he violated the no contact order. On October 17, the trial court revoked Lurnam's bond.

[13] On March 24, 2023, in cause CM-2520, Lurnam pled guilty to invasion of privacy for violating the April 22, 2022, ex parte protective order, and he was sentenced to sixty days of unsupervised probation.

[14] The trial court held a jury trial in cause F3-76 on July 23-24, 2024, and the jury found Lurnam guilty as charged of the two counts of rape and one count of sexual battery. The sentencing hearing was conducted on September 6. S.R. testified about the negative impact Lurnam's crimes had on her life, including on-going fear and mental health issues. In determining Lurnam's sentence, the trial court considered the significant impact of the crimes upon S.R.; Lurnam's violation of the protective order regarding S.R., which resulted in a misdemeanor conviction for invasion of privacy; the “failed efforts at rehabilitation” in relation to the violation of one protective order and one no contact order; and Lurnam's “violation of the position of trust” with S.R. Tr. v. III at 122. The court found that Lurnam's remorse was a mitigator. The court sentenced Lurnam to nine years of incarceration on each count of rape and one year for the count of sexual battery. The court ordered all counts to run consecutively, for an aggregate sentence of nineteen years. This appeal ensued.

Discussion and Decision

Sentencing

[15] Lurnam maintains that the trial court erred in sentencing him. Sentencing decisions lie within the sound discretion of the trial court. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). 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.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014) (citation omitted), trans. denied. A trial court abuses its discretion in sentencing if it does any of the following:

(1) fails “to enter a sentencing statement at all;” (2) enters “a sentencing statement that explains reasons for imposing a sentence—including a finding of aggravating and mitigating factors if any[ ]—but the record does not support the reasons;” (3) enters a sentencing statement that “omits reasons that are clearly supported by the record and advanced for consideration;” or (4) considers reasons that “are improper as a matter of law.”

Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-491 (Ind.), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007)).

[16] So long as a sentence is within the statutory range, the trial court may impose it without regard to the existence of aggravating or mitigating factors. Anglemyer, 868 N.E.2d at 489. If the trial court does find the existence of aggravating or mitigating factors, it must give a statement of its reasons for selecting the sentence it imposes. Id. at 490. However, the relative weight or value assignable to reasons properly found, or those which should have been found, is not subject to review for abuse of discretion, Gross, 22 N.E.3d at 869, and a trial court is under no obligation to explain why a proposed mitigator does not exist or why the court found it to be insignificant, Sandleben v. State, 22 N.E.3d 782, 796 (Ind. Ct. App. 2014), trans. denied.

[17] The trial court imposed upon Lurnam the advisory sentences for each of the three convictions.⁵ However, Lurnam apparently believes that he should have received sentences below the advisory levels for each conviction because, as he claims, there was no support in the record for finding the aggravating circumstances of a criminal history and failed efforts at rehabilitation. But “one valid aggravating factor is enough to enhance a sentence.” Harris v. State, 163 N.E.3d 938, 956 (Ind. Ct. App. 2021), trans. denied; see also Coy v. State, 999 N.E.2d 937, 947 (Ind. Ct. App. 2013) (internal quotation marks and citation omitted) (“If one aggravating factor is improperly applied, the sentence is still valid as long as other valid aggravators exist[ed] and the invalid aggravator did not play a significant role in the trial court's decision.”). And Lurnam does not dispute that the trial court correctly found the significant impact of the crimes upon S.R. and Lurnam's violation of a position of trust to be valid aggravating circumstances. See I.C. § 35-38-1-7.1(a)(1) (significant harm to victim as an aggravator) and I.C. § 35-38-1-7.1(a)(8) (violation of position of trust as an aggravator); see also Walter v. State, 727 N.E.2d 443, 448 (Ind. 2000) (noting the violation of a position of trust was a valid aggravating circumstance where the victims were the spouse of the defendant and former aunt with whom defendant had lived). In addition, it is undisputed that Lurnam violated both a protective order and a no contact order, which is also a permissible aggravating circumstance. See I.C. § 35-38-1-7.1(a)(5); Coy, 999 N.E.2d at 947 (holding the trial court could consider the defendant's violation of a pretrial release order to have no contact with the victim as a sentencing aggravator).

[18] Moreover, the record does support the trial court's finding of criminal history and failed efforts at rehabilitation as aggravating circumstances. After Lurnam raped and sexually battered S.R., she obtained an ex parte protective order against him. Lurnam subsequently admitted to committing misdemeanor invasion of privacy for violating that protective order. “Criminal activity that occurs subsequent to the offense for which one is being sentenced is a proper sentencing consideration.” Sauerheber v. State, 698 N.E.2d 796, 806 (Ind. 1998). Thus, the record shows that Lurnam had a criminal history, which is a valid aggravating factor. See I.C. § 35-38-1-7.1(a)(2). Furthermore, Lurnam was shown some leniency for that crime by being sentenced to unsupervised probation. And, when Lurnam was subsequently charged with rape and sexual battery against S.R. and a no contact order was issued, Lurnam was again shown some leniency when the court released him on bond. Yet, Lurnam violated the no contact order for S.R.—thereby violating the conditions of his pretrial release—and his bond was revoked. Both his violation of the conditions of his pretrial release and the failure of past leniency to deter his criminal behavior are valid aggravating circumstances. See I.C. § 35-38-1-7.1(a)(6) (violation of conditions of pretrial release); McMahon v. State, 856 N.E.2d 743, 751 n.8 (Ind. Ct. App. 2006) (noting failed efforts at rehabilitation may be considered as a separate aggravating circumstance from criminal history).

[19] The record supports the aggravating circumstances found by the trial court, and its sentencing decision was not clearly against the logic and effect of the facts and circumstances before it or the reasonable deductions therefrom. The court did not abuse its discretion in Lurnam's sentencing.

Appellate Rule 7(B)

[20] Lurnam contends that his sentence is inappropriate in light of the nature of the offenses and his character. Article 7, Sections 4 and 6 of the Indiana Constitution “authorize[ ] independent appellate review and revision of a sentence imposed by the trial court.” Anglemyer, 868 N.E.2d at 491. This appellate authority is implemented through Indiana Appellate Rule 7(B). Id.

[21] As our Supreme Court recently explained,

Appellate Rule 7(B) serves “to leaven the outliers, rather than to achieve a perceived ‘correct’ sentence,” McCallister v. State, 91 N.E.3d 554, 566 (Ind. 2018), allowing revision of a sentence if the court finds the trial court's decision to be inappropriate in consideration of the nature of the offense and the offender's character, Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R. 7(B)). “Ultimately, our constitutional authority to review and revise sentences boils down to our collective sense of what is appropriate,” Taylor v. State, 86 N.E.3d 157, 165 (Ind. 2017) (cleaned up), an act that is reserved for “exceptional” cases, Gibson v. State, 43 N.E.3d 231, 241 (Ind. 2015). It is up to the defendant to “persuade the appellate court that his or her sentence has met th[e] inappropriateness standard of review.” Childress [v. State], 848 N.E.2d [1073,] 1080 [(Ind. 2006)]. The trial court's sentence is afforded considerable deference and will stand 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).

Cramer v. State, 240 N.E.3d 693, 698 (Ind. 2024).

[22] In 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.” Childress, 848 N.E.2d at 1081. Thus, we are “unlikely to consider an advisory sentence inappropriate[,]” Shelby v. State, 986 N.E.2d 345, 371 (Ind. Ct. App. 2013), trans. denied, and “a defendant bears a particularly heavy burden in persuading us that his sentence is inappropriate when the trial court imposes the advisory sentence[,]” Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied.

[23] For Lurnam's Level 3 felony convictions, the sentencing range is between three and sixteen years, with an advisory sentence of nine years. I.C. § 35-50-2-5(b). For his Level 6 felony conviction, the sentencing range is between six months and two and one-half years, with an advisory sentence of one year. I.C. § 35-50-2-7(b). Lurnam received the advisory sentence for all three of his convictions and, as we note in more detail below, has failed to carry his heavy burden to show the sentence is inappropriate.

[24] When considering the nature of an offense, we look at the defendant's actions in comparison to the elements of the offense. Cannon v. State, 99 N.E.3d 274, 280 (Ind. Ct. App. 2018), trans. denied. We focus “on the nature, extent and depravity of the offense ․ and what it reveals about the defendant's character.” Sorenson v. State, 133 N.E.3d 717, 729 (Ind. Ct. App. 2019) (internal quotation and citation omitted), trans. denied. Here, Lurnam not only “compelled [S.R.] by force” to submit to sexual intercourse, other sexual conduct, and touching but went further by strangling her as he did so, causing injury to her neck and mouth. I.C. § 35-42-4-1(a); I.C. § 35-42-4-8(a)(1). Moreover, Lurnam raped S.R. multiple times in her own home, despite her attempts to lock him out of her room. And Lurnam's violent and heinous actions caused S.R. lasting mental health issues. Lurnam has pointed to nothing about the nature of his offenses that warrants a sentence revision.

[25] Nor does Lurnam's character warrant a sentence reduction. “The ‘character of the offender’ portion of the Rule 7(B) standard refers to general sentencing considerations and relevant aggravating and mitigating factors․ and permits a broader consideration of the defendant's character.” Woodcock v. State, 163 N.E.3d 863, 878 (Ind. Ct. App. 2021) (internal quotations and citations omitted), trans. denied. Lurnam has a criminal history of violating a protective order regarding S.R. See Prince v. State, 148 N.E.3d 1171, 1174 (Ind. Ct. App. 2020) (citation omitted) (observing that even a minor criminal history reflects poorly on a defendant's character). Moreover, he violated a no contact order regarding S.R. while his rape and sexual battery charges were pending in this case. Lurnam has repeatedly harassed S.R., sexually assaulted S.R.,⁶ and insisted on denying the end of their relationship despite her clear statements and instructions, thus displaying a pattern of harassment and abuse. In short, there is no evidence that Lurnam has “substantial virtuous traits or persistent examples of good character” that would support a sentence reduction. Stephenson, 29 N.E.3d at 122.

[26] Lurnam has not carried his “heavy burden” to show that his advisory sentences are inappropriate in light of the nature of his offenses and his character. Fernbach, 954 N.E.2d 1089.

Conclusion

[27] The trial court did not abuse its discretion in sentencing Lurnam, and his sentence is not inappropriate.

[28] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-4-1(a).

2.   I.C. § 35-42-4-8(a).

3.   Although Lurnam purports to raise the sole issue of whether his sentence is inappropriate under Indiana Appellate Rule 7(B), he also argues that the trial court abused its discretion in sentencing.

4.   I.C. § 35-46-1-15.1.

5.   The advisory sentence for rape, as a Level 3 felony, is nine years. I.C. § 35-50-2-5(b). The advisory sentence for sexual battery, as a Level 6 felony, is one year. I.C. § 35-50-2-7(b).

6.   See Harlan v. State, 971 N.E.2d 163, 170 (Ind. Ct. App. 2012) (citing Beason v. State, 690 N.E.2d 277, 281 (Ind. 1998)) (“Allegations of prior criminal activity need not be reduced to conviction before they may be properly considered as aggravating circumstances by a sentencing court.”).

Bailey, Judge.

Judges Vaidik and DeBoer concur. Vaidik, J., and DeBoer, J., concur.