Kenneth R. Nipper, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Kenneth Nipper appeals his convictions and sentence for nine counts of felony child molesting, alleging both evidentiary and sentencing error. Finding no error in either respect, we affirm.

Issues

[2] Nipper presents three issues for our review, which we restate as:

I. Whether the trial court erred by admitting evidence of additional acts of molestation that occurred during the time period in the charging information.

II. Whether the court erred in sentencing Nipper by relying on improper aggravating circumstances and failing to explain the basis for imposing consecutive sentences.

III. Whether the court imposed a sentence that is inappropriate in light of the nature of Nipper's offenses and his character.

Facts and Procedural History

[3] Between 2009 and 2015, Kenneth Nipper's adult daughter, Christi, was in a relationship with the father of the victims. Consequently, Victim 1 and Victim 2 ¹ viewed Nipper as a grandfather, and they all spent a lot of time together. In addition to family time together, Nipper was the children's primary caregiver because their father and Christi worked opposite shifts. Between September 2009 and June 2014, Nipper repeatedly molested Victim 1 and Victim 2.

[4] In 2019, the State charged Nipper with six counts of Class A felony child molesting and three counts of Class C felony child molesting. Nipper went to trial, and a jury convicted him of all nine counts. The court sentenced Nipper to an aggregate sentence of 258 years with twelve years suspended to probation. Nipper now appeals.

Discussion and Decision

I. Admission of Evidence

[5] Nipper contends the trial court erred by admitting testimony of the victims concerning incidents of molestation beyond those necessary to establish the nine charged offenses. He alleges this evidence should not have been admitted because it constitutes negative character evidence or evidence of other bad acts in violation of Evidence Rule 404(b)(1). The State responds that admission of this testimony did not violate Rule 404(b)(1) because the testimony is direct evidence of the crimes charged.

[6] A trial court's evidentiary rulings are afforded great deference on appeal. Gee v. State, 193 N.E.3d 1036, 1039 (Ind. Ct. App. 2022). We review such rulings for an abuse of discretion. Cherry v. State, 57 N.E.3d 867, 875 (Ind. Ct. App. 2016), trans. denied. An abuse of discretion occurs when a decision is clearly against the logic and effect of the facts and circumstances before the court. Paul v. State, 971 N.E.2d 172, 175 (Ind. Ct. App. 2012).

[7] Evidence Rule 404(b)(1) provides that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” Rule 404(b) “is designed to prevent the jury from making the ‘forbidden inference’ that prior wrongful conduct suggests present guilt.” Davis v. State, 186 N.E.3d 1203, 1210 (Ind. Ct. App. 2022) (quoting Halliburton v. State, 1 N.E.3d 670, 681 (Ind. 2013)), trans. denied.

[8] In Marshall v. State, 893 N.E.2d 1170, 1173 (Ind. Ct. App. 2008), the State charged Marshall with five counts of child molestation related to the sexual abuse of his girlfriend's two daughters. Each of the charges alleged the misconduct occurred within a range of years. At trial, the two victims testified Marshall had committed repeated acts of molestation during the time frame of the charged offenses, and the jury determined Marshall was guilty as charged.

[9] On appeal, Marshall argued the trial court should not have allowed the victims to testify about the large number of acts he committed because their testimony amounted to evidence of uncharged misconduct or prior bad acts. This Court disagreed, noting that the acts described by the witnesses fell within the time periods outlined in the charges. We concluded the testimony was admissible because it was “direct evidence of the charges against Marshall.” Id. at 1175. See also Mise v. State, 142 N.E.3d 1079 (Ind. Ct. App. 2020) (determining that victim's testimony that defendant had touched her inappropriately on two occasions within time frame charged was not “other acts” evidence that violated Rule 404(b) but was direct evidence that defendant had committed charged offense during time frame charged), trans denied.

[10] Likewise, here Victim 1 and Victim 2 testified to Nipper's repeated acts of molestation that occurred within the charged time frame. Thus, their testimony was direct evidence in support of the charges rather than negative character evidence or evidence of other bad acts.

[11] Nipper acknowledges that the trial court's rulings are consistent with current law on this issue but nevertheless urges us to criticize our prior decisions. We decline his invitation. The facts of Marshall and Mise are very similar to the facts in this case, and we agree with the rationale supporting those decisions. Rule 404(b) does not preclude the admission of evidence of other wrongful acts that are intrinsic to, or direct evidence of, the charged offense. Marshall, 893 N.E.2d at 1174-75. “Other acts are ‘intrinsic’ if they occur at the same time and under the same circumstances as the crimes charged.” Holden v. State, 815 N.E.2d 1049, 1054 (Ind. Ct. App. 2004), trans. denied. Conversely, other crimes or wrongs are extrinsic if they occur at different times and under different circumstances from the charged offense. Marshall, 893 N.E.2d at 1175 n.5. In the present case, the victims’ testimony does not violate Rule 404(b)(1) because it is direct, or intrinsic, evidence that Nipper molested Victim 1 and Victim 2 during the charged time period. We find no error with the admission of this evidence.

II. Sentencing – Trial Court's Discretion

[12] Nipper challenges the trial court's identification of aggravating sentencing factors and imposition of consecutive sentences. “Sentencing decisions lie within the sound discretion of the trial court.” Hale v. State, 128 N.E.3d 456, 463 (Ind. Ct. App. 2019), trans. denied. “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. (quoting Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014), trans. denied). As our courts have explained:

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) (quoting Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (2007)), trans. denied.

[13] Similarly, “[t]he decision to impose consecutive sentences lies within the discretion of the trial court.” Gross, 22 N.E.3d at 869. “A trial court is required to state its reasons for imposing consecutive sentences or enhanced terms.” Id.

A. Aggravating Circumstances

[14] The court's sentencing order identifies the following aggravating circumstances: “the harm, injury, and loss suffered by the defendant's victims in this case was significant and greater than the elements necessary to prove the offenses[;]” “the defendant had the care, custody and control over the victims, as he was the victims’ grandfather[;]” “the events happened over a span of years[;]” “and the victims were both under the age of twelve.” Appellant's App. Vol. 4, p. 138.

1. Harm

[15] Nipper claims there is insufficient evidence to support the aggravating factor of harm to the victims. A court may assign aggravating weight to the harm, injury, loss, or damage suffered by the victim if such harm was significant and greater than the elements necessary to prove the offense. Sharkey v. State, 967 N.E.2d 1074, 1078 (Ind. Ct. App. 2012).

[16] At trial, Victim 1 testified that she went to one session of therapy, but she found talking about what happened to her to be difficult and uncomfortable. Tr. Vol. V, p. 157. When pressed on cross examination, Victim 1 reiterated that discussing the molestations made her uncomfortable and scared because she was “worried that [Nipper] was going to come back for [her].” Id. at 169. Victim 1 did not testify at Nipper's sentencing hearing, but the victim advocate read a letter from Victim 1 in which she expressed that Nipper had taken her “whole childhood away” as well as her happiness and freedom. Tr. Vol. VII, p. 244.

[17] Victim 2 testified at trial that she participated in therapy and found it helpful. Tr. Vol. VI, p. 76. She testified that the therapist helped her with her inability to sleep and to shower alone and later with her depression, anxiety, and thoughts of suicide. Id. At the sentencing hearing, Victim 2 read a letter she had written. In it, she called Nipper a “monster” and a “sicko” and told him that he made her and her sister scared for their lives and that, instead of being a grandpa they “could run to for things,” he made them want to run away. Tr. Vol. VII, p. 229. Victim 2 further stated, “I had to take back the light inside you stole, all the pain and the truth I wear like a battle wound.” Id.

[18] As to this aggravator, the court stated:

As the State of Indiana pointed out, that the victims both went through counseling. The first victim, however, Victim Number 1, she was in therapy due to being molested but didn't like it and didn't want to talk about it. So she did not proceed with therapy.

However, Victim Number 2 indicated that in regards to therapy that she went to therapy because it made her feel safe. Therapy helped her with her depression, her suicidal thoughts and her anxiety. She also was ashamed to tell at the time. She didn't want her family to look at her differently.

Tr. Vol. VIII, pp. 10-11. We conclude there is ample evidentiary support for the “harm to victims” aggravating circumstance. See Sharkey, 967 N.E.2d at 1078-79 (court did not err in identifying harm to victims as aggravating sentencing factor; court relied on victim letter, which described harm beyond what was necessary to prove offense).

2. Age of Victims

[19] Nipper next asserts error with the court's aggravator that both victims were under the age of twelve, contending the court failed to adequately explain the basis for this aggravating circumstance.

[20] In finding this aggravating factor, the court stated that Victim 1 suffered these molestations from the age of four to the age of nine. Tr. Vol. VIII, p. 11. Victim 2 ranged in age from two to seven. Id. The court found these ages to be “the tender years and the development years.” Id.

[21] It is improper for a sentencing court to rely solely on a victim's age where the age of the victim is a material element of the offense. Walden v. State, 216 N.E.3d 1165, 1175 (Ind. Ct. App. 2023), trans. denied. However, a court “ ‘may properly consider the particularized circumstances of the material elements of the crime.’ ” Id. (quoting Kien v. State, 782 N.E.2d 398, 414 (Ind. Ct. App. 2003), trans. denied) (concluding that court's use of victim's age as aggravator was not improper in sentencing for child molesting where defendant had molested victim from age six until age nine and court made finding of particularized circumstances when it found victim's age to be “tender”). Here, the court made such a finding of a particularized circumstances when it noted the victims’ ages during the years of abuse and found them to be “tender” years of “development.” Tr. Vol. VIII, p. 11. Thus, we find no error.

3. Time Frame

[22] Nipper also claims the court erred by failing “to identify why the particular circumstances of these offenses are aggravating above and beyond the facts and circumstances necessary to prove the offenses themselves.” Appellant's Br. p. 26. We disagree.

[23] The particular facts of Nipper's convictions, such as the ongoing nature and length of his criminal conduct, can properly be considered in aggravation. See, e.g., Phipps v. State, 90 N.E.3d 1190 (Ind. 2018) (affirming maximum sentence for invasion of privacy and determining court properly considered ongoing nature and length of defendant's behavior of harassing victim for over seven years as aggravating factor). In finding this aggravator, the court stated: “The Court also finds that the facts and circumstances of this case, that the events happened over a span of years. There was very frequent contact with the defendant and the victims, thereby each time that the victims were in the presence of the defendant alone.” Tr. Vol. VIII, p. 12. Accordingly, we conclude the court did not abuse its discretion in this regard.

B. Consecutive Sentences

[24] Nipper further asserts the court abused its discretion by failing to explain why it imposed consecutive sentences. While a court may impose consecutive sentences if warranted by the aggravating circumstances, it must first articulate, explain, and evaluate the aggravating circumstances that support such action. Lewis v. State, 31 N.E.3d 539, 543 (Ind. Ct. App. 2015).

[25] Here, although the court did not specify which aggravating circumstance supported imposing consecutive sentences, the court explained each circumstance it found to be aggravating and referenced both victims with regard to each factor. Thus, the rationale for consecutive sentences is apparent on the face of the record. There were two victims, and it is well settled that the existence of multiple victims is an aggravating circumstance that justifies the imposition of consecutive sentences. Gilliam v. State, 901 N.E.2d 72, 74 (Ind. Ct. App. 2009). On this record, we are confident the court would have imposed the same sentence had it more fully articulated the aggravating circumstances supporting the consecutive sentences. Consequently, we need not remand for a new sentencing statement. See Lewis, 31 N.E.3d at 543 (declining to remand for resentencing despite court's failure to explain why consecutive sentences were necessary; there were two victims and rationale for consecutive sentences was obvious from record). The trial court did not abuse its sentencing discretion.

III. Sentencing – Appellate Rule 7(B)

[26] Nipper asks the Court to exercise its authority to revise his sentence to “concurrent but enhanced terms.” Appellant's Brief p. 32. Article 7, section 6 of the Indiana Constitution authorizes the Court to review and revise sentences. Appellate Rule 7(B) implements this authority, stating the Court may revise a sentence “if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.”

[27] “Sentence modification under Rule 7(B) ․ is reserved for ‘a rare and exceptional case.’ ” Wilmsen v. State, 181 N.E.3d 469, 472 (Ind. Ct. App. 2022) (quoting Livingston v. State, 113 N.E.3d 611, 612 (Ind. 2018)). “When conducting this review, we generally defer to the sentence imposed by the trial court. Wilmsen, 181 N.E.3d at 472. Our deference to the trial court will prevail “unless the defendant persuades us the sentence is inappropriate by producing compelling evidence portraying in a positive light the nature of the offense—such as showing restraint or a lack of brutality—and the defendant's character—such as showing substantial virtuous traits or persistent examples of positive attributes.” Id. at 472-73. “We consider the aggravators and mitigators found by the trial court and also any other factors appearing in the record.” Williams v. State, 170 N.E.3d 237, 245 (Ind. Ct. App. 2021), trans. denied.

[28] When considering the nature of the offense, we begin with the advisory sentence. Id. Nipper was convicted of six Class A felonies and three Class C felonies. At the time he committed these offenses, a person found guilty of a Class A felony could be sentenced to a minimum term of twenty years, a maximum term of fifty years, and an advisory sentence of thirty years. Ind. Code § 35-50-2-4 (2005). A person convicted of a Class C felony could be imprisoned for a fixed term of between two and eight years, with the advisory sentence being four years. Ind. Code § 35-50-2-6(a) (2005).

[29] The trial court sentenced Nipper to forty years on each of the Class A felonies and to six years on each of the Class C felonies and ordered all counts to be served consecutively for an aggregate sentence of 258 years with twelve years suspended to probation. His sentence is sixty-six years shy of the maximum possible sentence of 324 years.

[30] “Our analysis of the ‘nature of the offense’ requires us to look at the nature, extent, heinousness, and brutality of the offense.” Pritcher v. State, 208 N.E.3d 656, 668 (Ind. Ct. App. 2023). Nipper began abusing the girls when Victim 1 was only four years old and Victim 2 only two years old. The girls endured Nipper's molestations for a span of five years when they were aged nine and seven, respectively. Additionally, he used his position of power and trust over the girls as their caregiver and as a grandfather figure to facilitate his crimes, causing long-lasting traumatic effects on the girls as they expressed at sentencing.

[31] Turning to the character of the offender, our analysis “involves a broad consideration of a defendant's qualities, including the defendant's age, criminal history, background, past rehabilitative efforts, and remorse.” Id. At sentencing, Nipper was sixty-nine years old. He was retired and had been active in his church. Nipper has no formal criminal record and had substantial family and community support, as shown by the 132 letters of support submitted to the court. But Victim 1 and the victims’ father submitted letters requesting the maximum sentence, and Victim 2 and her mother read their letters describing Nipper as a “monster,” “sicko,” and “creepy individual.” Tr. Vol. VII, pp. 229, 232.

[32] Nipper cites Granger v. State, 946 N.E.2d 1209 (Ind. Ct. App. 2011) and Sanchez v. State, 938 N.E.2d 720 (Ind. 2010) to support his request for sentence revision. In both cases, the appellant was convicted of multiple counts of child molestation, and the appellate court revised their sentences, noting the appellants lacked a prior criminal record and their victims did not experience physical harm. Those cases, however, are distinguishable from the present case.

[33] In Granger and Sanchez, the appellants molested their victims for under two years (Granger) or on only three occasions total (Sanchez). Here, Nipper abused Victim 1 and Victim 2 on a frequent basis for five years. In addition, although Victim 1 and Victim 2 appear to have not been physically harmed by Nipper's molestations, the record reflects they have experienced profound psychological trauma, including suicidal ideation. Nipper has produced no compelling evidence that portrays the nature of his offenses or his character in a positive light to overcome the deference we show to a trial court's sentencing determination.

Conclusion

[34] In light of the foregoing, we conclude the trial court did not abuse its discretion by admitting evidence of Nipper's additional acts of molestation that occurred within the charged time frame because it was direct evidence of his charges and not inadmissible Rule 404(b) evidence. The trial court also properly acted within its discretion in determining the factors in aggravation and ordering consecutive sentences. Finally, after considering the nature of the offenses and the character of the offender and giving due consideration to the trial court's sentencing decision, we conclude Nipper failed to satisfy his burden of demonstrating that his sentence is inappropriate.

[35] Affirmed.

FOOTNOTES

1.   As required by Indiana Code section 35-40-5-12(a)(2) (2019) and in keeping with the trial court's designation, we refer to the victims in this case as “Victim 1” and “Victim 2.”

Baker, Senior Judge.

Judges Bailey and Pyle concur. Bailey, J., and Pyle, J., concur.