WALLACE v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Milfred John Wallace appeals his forty-year executed sentence for Level 1 felony child molesting. Wallace raises three issues on appeal which we consolidate and restate as: whether the trial court abused its sentencing discretion and whether Wallace's sentence is inappropriate under Indiana Appellate Rule 7(B). Finding no abuse of discretion and Wallace's sentence is not inappropriate, we affirm.

Facts and Procedural History

[2] K.W., the victim, was born in 2007. When K.W. was around two years old, her mother moved with her to Indiana. K.W.’s paternal grandparents, Wallace and his wife, maintained a relationship with K.W. even though her father had minimal contact with her. Wallace and his wife had a bedroom at their house for K.W. to accommodate her regular visits.

[3] When K.W. was about nine or ten years old and in fourth grade, she attended an in-school presentation about sexual abuse. The presenter spoke about the “no-no square,” and K.W. learned it was “not okay” if people touched the private areas of her body. Tr. Vol. III p. 37. During the presentation, K.W. realized she was being sexually abused by Wallace because he had previously touched those places on her body.¹

[4] Before that presentation, however, she thought Wallace's actions were normal. Wallace would enter K.W.’s bedroom at night after her grandmother was asleep. He would rub K.W.’s back or the area around her anus and roughly kiss her neck. Eventually, Wallace digitally penetrated K.W.’s vagina with his fingers and laid his penis along the back of K.W.’s leg or anus. See Tr. Vol. III pp. 34-35. Over time, Wallace “had the same routine”—first rubbing K.W.’s back, then roughly kissing her or rubbing her chest, then digitally penetrating her vagina. Id. at 35. Sometimes, after Wallace sexually abused her, he would take K.W. to a store to buy her a toy that she wanted and would tell K.W. that the abuse was “our little secret[.]” Id. Wallace also threatened that K.W. would “never see [her] little sister again” if she told anyone about the abuse. Id. at 35-36.

[5] One night in May 2019, when K.W. was eleven years old and nearing the end of fifth grade, Wallace got behind K.W. in her bed and rubbed her back and chest area. He progressed to rough kissing and touching K.W.’s genitals. After that incident, K.W. began experiencing behavioral issues, and a teacher found suicide notes in K.W.’s backpack. After a week-long evaluation at a mental health facility, K.W. continued to “act out[.]” Id. at 33. She sought “validation of older males based on what happened to [her,]” started “running with a very bad crowd at school[,]” and became involved with drugs and alcohol. Id. at 48, 50. K.W. also began self-harming and once “carved the word worthless” into her arm. Id. at 23.

[6] K.W. eventually disclosed the May 2019 sexual abuse incident to a friend via social media. After K.W. began sixth grade, that social-media friend told K.W.’s mother about the incident. When K.W.’s mother asked her about Wallace's conduct, K.W. disclosed his ongoing sexual abuse. K.W.’s mother immediately contacted law enforcement, and an investigation ensued.

[7] In September 2019, the State charged Wallace with Level 3 felony child molesting. The State amended Wallace's charge to Level 1 felony child molesting on July 22, 2022.² In June 2024, a jury found Wallace guilty of Level 1 felony child molesting.

[8] At the July 3 sentencing hearing, the trial court found four statutory aggravators, four non-statutory aggravators and no mitigators. The court found that “deviation from the advisory sentence [was] appropriate” and sentenced Wallace to forty years to be served in the Indiana Department of Correction.³ Id. at 123. Wallace filed a motion to correct error on August 2, asserting insufficient evidence to support his conviction; his motion was denied on August 5. This appeal ensued.

Discussion and Decision

I. The trial court did not abuse its discretion in sentencing Wallace.

A. Standard of Review

[9] Sentencing decisions are left to the sound discretion of the trial court and are reviewed only for an abuse of discretion. Owen v. State, 210 N.E.3d 256, 269 (Ind. 2023), reh'g denied (citing Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified 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[.]” Id. (internal quotations omitted). A trial court may abuse its discretion by

(1) failing to enter a sentencing statement at all; (2) entering a sentencing statement that includes aggravating and mitigating factors that are unsupported by the record; (3) entering a sentencing statement that omits reasons that are clearly supported by the record; or (4) entering a sentencing statement that includes reasons that are improper as a matter of law.

Hudson v. State, 135 N.E.3d 973, 979 (Ind. Ct. App. 2019) (citing Anglemyer, 868 N.E.2d at 490-91). In addition,

[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.

Baumholser v. State, 62 N.E.3d 411, 417 (Ind. Ct. App. 2016), trans. denied, (internal quotations and citations omitted).

B. Aggravating Factors

[10] Wallace challenges five aggravating circumstances the trial court found at sentencing: his prior criminal history; the victim's age (less than twelve years old); heinousness of the crime; psychological effects on the victim; and mental infirmity due to age. Wallace does not challenge three other aggravators: Wallace's position of care, custody or control of the victim; Wallace's violation of his position of trust; and Wallace's pre-planning of the offense.

1. Criminal History

[11] Wallace challenges the criminal history aggravator, arguing the court failed to articulate specific instances of criminal conduct. While courts must identify specific criminal conduct supported by probative evidence, McElroy v. State, 865 N.E.2d 584, 591 (Ind. 2007), they may rely on details from the presentence investigation report without reciting them orally at sentencing. Day v. State, 669 N.E.2d 1072, 1073-74 (Ind. Ct. App. 1996). The relative weight assigned to properly found aggravators is not subject to review for abuse. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007). Wallace pled guilty to child molestation as a Class C felony in 1993, approximately 26 years before committing the current offense. This appears in the presentence investigation report and he conceded at the sentencing hearing that it was aggravating. The court did not abuse its discretion.

2. Victim's Age

[12] Wallace argues the victim's age cannot be an aggravating factor because it is an element of the offense. While courts generally cannot rely on elements as aggravators, they may consider “particularized circumstances” of elements as aggravators. Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012) (“even where the age of the victim is an element of the offense, the very young age of a child can support an enhanced sentence[.]”). K.W. was eleven when Wallace molested her in May of 2019, and evidence showed his abuse began even earlier when she was too young to understand it was wrong. The court properly considered these particularized circumstances in finding K.W.’s age aggravating.

3. Heinousness

[13] Wallace challenges the heinousness finding, arguing there was “no evidence of intercourse, or force” and “no evidence to support a finding that the offense was particularly heinous.” Appellant's Br. p. 16. Wallace correctly notes a court needs to articulate the facts supporting why a particular crime is heinous.

[14] At sentencing, Wallace conceded he had been “convicted of a heinous crime.” Tr. Vol. III p. 121. The trial court then clearly articulated its reasoning for finding the crime to be heinous and, thus, an aggravator. Specifically, the court noted it was relying upon Guenther v. State, where the defendant molested his stepchild, and our Supreme Court's holding that it is proper for a trial court to consider the nature of a crime in determining whether a crime is heinous and merits aggravation of a sentence. 501 N.E.2d 1071, 1073 (Ind. 1986). Finding Wallace's molestation of his grandchild akin to Guenther's molestation of his stepchild, the court ultimately determined Wallace's act was sufficiently heinous to merit enhancement of his sentence. The trial court appropriately relied upon Guenther in finding the heinous nature of Wallace's crime and did not abuse its discretion by considering the heinousness of the crime as an aggravator. No error occurred here.

4. Psychological effect

[15] Wallace argues the court improperly considered the psychological effect and extreme mental and emotional harm done to the victim. Wallace does not articulate why he alleges this aggravator is improper. In any event, the trial court found “the statements of the victim are persuasive.” Tr. Vol. III p. 123. At trial, K.W. testified she sought validation from older men “based on what happened to [her]” and that although some of her bad behaviors happened prior to the May 2019 incident, “things” had been happening to her before then. Id. at 48, 51. At sentencing, K.W. stated Wallace's actions hurt her in “indescribable” ways, led her to physically harm herself due to thinking she “was worthless[,]” and caused physical and emotional wounds. Id. at 111. The trial court's consideration of this aggravating factor was appropriate.

5. Infirmity

[16] Wallace asserts the trial court erred in considering K.W.’s mental or physical infirmity as an aggravating factor. The court reasoned K.W. was mentally or physically infirm “by virtue of the fact that she was a child.” Tr. Vol. III p. 122. Wallace maintains this reasoning does not fall within the meaning of infirm under Indiana law.

[17] Our courts have held a child can be infirm due to the child's age. E.g., Sullivan v. State, 540 N.E.2d 1242, 1244 (Ind. 1989), (where a trial court used other proper facts as aggravating circumstances, including that victim was five years of age and considered to be physically infirm due to her age), reh'g denied; e.g., Smith v. State, 718 N.E.2d 794, 801 (Ind. Ct. App. 1999), (where the victim's young, pre-verbal age amounted to a mental and physical infirmity, the aggravators were proper and the young age would have been sufficient to enhance a sentence), trans. denied.

[18] However, we need not decide whether the trial court properly considered infirmity as an aggravator in this case. Considering the unchallenged aggravators and the challenged aggravators that we find proper, we are confident the court would have imposed the same sentence without considering this factor. See Baumholser, 62 N.E.3d at 417 (“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.”).

C. Mitigating Factors

[19] Wallace asserts the trial court abused its discretion by failing to consider four mitigating factors supported by the record: the crime was a result of circumstances unlikely to recur; Wallace led a law-abiding life for a substantial period before commission of the crime; Wallace is likely to respond affirmatively to probation or short-term imprisonment; and Wallace's imprisonment would result in undue hardship for himself. However, Wallace raises these mitigators for the first time on appeal—he did not advance any mitigating factors at sentencing.

[20] “[A] trial court does not abuse its discretion in failing to consider a mitigating factor that was not raised at sentencing.” Anglemyer, 868 N.E.2d 492. “[I]f the defendant fails to advance a mitigating circumstance at sentencing, this court will presume that the factor is not significant, and the defendant is precluded from advancing it as a mitigating circumstance for the first time on appeal.” Id. (quoting Creekmore v. State, 853 N.E.2d 523, 530 (Ind. Ct. App. 2006), clarified on denial of reh'g.). Because Wallace did not advance any mitigators at sentencing, the trial court did not abuse its discretion by not considering any mitigating factors.

II. Wallace's sentence is not inappropriate.

[21] Wallace contends his forty-year executed sentence “is an outlier requiring revision[.]” Appellant's Br. p. 5. Wallace maintains because he was seventy-one years old at sentencing, his sentence is a “de facto life sentence[,]” and asserts this court should “utilize its authority granted by R. App. Proc. 7 [to] revise [his] sentence to a shorter term of incarceration.” Id. at 17 (emphasis in original).

[22] Wallace fails to present independent argument on this issue. The standard is well-settled: “inappropriate sentence claims and abuse of discretion claims are to be analyzed separately.” King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008) (citing Anglemyer, 868 N.E.2d at 491). Failure to present a cogent argument on an issue is tantamount to waiver. See Sandleben v. State, 29 N.E.3d 126, 136 (Ind. Ct. App. 2015), trans. denied.

[23] Still, Indiana Appellate Rule 7(B) permits an appellate court to 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.” We give “considerable deference” to the trial court's sentencing decision and attempt only to “leaven the outliers” rather than achieve the “perceived ‘correct’ result” in every case. Lane v. State, 232 N.E.3d 119, 122 (Ind. 2024) (quoting Cardwell v. State, 895 N.E.2d 1219, 1222, 1225 (Ind. 2008)). Our deference to the trial court prevails unless we are “overcome by compelling evidence portraying in a positive light the nature of the offense and the defendant's character.” Id. (internal quotations omitted). A defendant bears the burden of persuading us that his sentence is inappropriate. Anglemyer, 868 N.E.2d at 494.

[24] We first consider the statutory range for the class of the offense. Id. Wallace's Level 1 felony child molesting conviction has a sentencing range of twenty to fifty years and an advisory sentence of thirty years. Ind. Code § 35-50-2-4(c)(1) (2023). Wallace was sentenced to forty years—ten years more than the advisory sentence but still ten years below the maximum.

[25] We next look to the nature of the offense and character of the offender. As to the nature of the offense, Wallace's abuse of K.W. escalated from touching to penetration over a prolonged period while she was eleven years old and younger. Wallace abused his position of trust as K.W.’s grandfather, bribing her with toys and threatening her with never seeing her sister again to prevent K.W. from disclosing the abuse. This pattern of familial abuse and manipulation demonstrates a calculated violation of trust, requiring K.W. to seek years of therapeutic support to address the resulting trauma. The serious nature of this conduct supports an enhanced sentence.

[26] Regarding his character, Wallace has a prior conviction for child molesting. His prior conviction, combined with the current offense, reflects poorly on his character and demonstrates a concerning pattern of conduct toward children. See generally Moss v. State, 13 N.E.3d 440, 448 (Ind. Ct. App. 2014) (observing that a criminal history “is a poor reflection of a defendant's character”). And his advanced age does not persuade us that his sentence should be revised. E.g., Borroel v. State, 241 N.E.3d 8, 18 (Ind. Ct. App. 2024) (defendant's “advanced age and poor health do not militate in favor of revision” where defendant had no criminal history), trans. denied.

[27] Wallace has not presented compelling evidence portraying his character or the nature of the offense in a positive light. His sentence is not inappropriate in light of the nature of the offense and his character.

[28] Affirmed.⁴

FOOTNOTES

1.   K.W. testified about the relevant events in this case by referencing the grade she was in at the time. She testified generally about events that occurred before May 2019 and about a specific event that occurred in May 2019 when she was eleven years old and ending fifth grade. The earliest reference K.W. gives correlating her age and Wallace's abuse is that it began before the sexual abuse presentation that she attended in fourth grade. Therefore, K.W.’s exact age when Wallace's abuse began is unclear from the record.

2.   The State also alleged Wallace was a repeat sexual offender in the July 2022 amendment but dismissed that enhancement following the jury's guilty finding.

3.   The advisory sentence for Level 1 felony child molestation is thirty years. Ind. Code § 35-50-2-4(c)(1) (2023).

4.   In two conclusory statements, Wallace also appears to tangentially challenge the trial court's denial of his motion to correct error. Appellant's Br. p. 9. Wallace presents no cogent argument here and any such challenge is waived. See Lowrance v. State, 64 N.E.3d 935, 938 (Ind. Ct. App. 2016).

Scheele, Judge.

May, J., and Weissmann, J., concur.