Joshua Sawvell, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Following a jury trial, Joshua Sawvell was convicted of two counts of child molesting, Level 1 felonies, and one count of child molesting, a Level 4 felony. The trial court sentenced Sawvell to sixty-six years of incarceration, with ten years suspended to probation. Sawvell appeals and claims that: (1) the trial court abused its discretion by denying Sawvell's request to depose the child victim; (2) the trial court committed fundamental error by admitting testimony of the forensic interviewer regarding delayed and partial disclosures by child victims of sexual abuse; (3) the evidence is insufficient to support Sawvell's convictions; (4) the trial court improperly permitted the jury to determine that Sawvell was a credit restricted felon; (5) the trial court relied on improper aggravating factors during sentencing; and (6) the sentence imposed by the trial court is inappropriate. We disagree and, accordingly, affirm.

Issues

[2] Sawvell presents six issues for our review, which we restate as:

I. Whether the trial court abused its discretion by denying Sawvell's request to depose the child victim.

II. Whether the trial court committed fundamental error by admitting testimony of the forensic interviewer regarding delayed and partial disclosures by child victims of sexual abuse.

III. Whether the State presented sufficient evidence to support Sawvell's convictions.

IV. Whether the trial court improperly permitted the jury to determine that Sawvell was a credit restricted felon.

V. Whether the trial court abused its discretion by relying on improper aggravating factors during sentencing.

VI. Whether Sawvell's sentence is inappropriate.

Facts

[3] The victim in this case, R.B., was born in 2014 to T.M. (“Mother”) and C.B. (“Father”). After Mother and Father's relationship ended, Mother began a romantic relationship with Sawvell. Mother moved in with Sawvell and his two children, and the couple had two children of their own. R.B. split her time between Mother's and Father's homes. When R.B. spent the night at Mother's and Sawvell's home, R.B. shared a bedroom with one of her half-sisters.

[4] In 2022, when R.B. was seven or eight years old, Sawvell began to molest her. The first incident R.B. recalled took place in her bedroom after she had showered and was wearing a nightgown with no underwear. As R.B. lay on the bed, Sawvell put his finger inside R.B.’s vagina, causing R.B. pain. On another occasion, R.B. had again just gotten out of the shower, and Sawvell told R.B. to go into her older sister's bedroom. When R.B. was on the bed, Sawvell put his finger inside R.B.’s vagina, which caused R.B. pain. On yet another occasion, Sawvell touched R.B.’s genital area using a vibrating massager that belonged to Mother.

[5] On October 13, 2022, R.B. disclosed the molestations to Father. Father informed his wife, and R.B. repeated to Father's wife details regarding the molestations. Father waited two days to notify the police in order to give Mother and her other children time to move out of Sawvell's home.

[6] On October 18, 2022, R.B. was interviewed by forensic child interviewer, Jill Carr, at the Child Advocacy Center in Indianapolis. During this interview, R.B. disclosed that Sawvell molested her. The police subsequently obtained a warrant to search Sawvell's home and discovered a vibrating massager during the execution of the warrant.

[7] On November 1, 2022, the State charged Sawvell with three counts of child molesting, Level 1 felonies, based on Sawvell inserting his finger into R.B.’s vagina, and one count of child molesting, a Level 4 felony, for touching or fondling R.B. On October 6, 2023, Sawvell filed a motion requesting to depose R.B. The State opposed the request, and the trial court held a hearing on the motion on December 6, 2023, after which the trial court denied the motion.

[8] A two-day jury trial began on August 20, 2024. At trial, forensic interviewer Carr testified that, based on her training and experience, it was common for children not to immediately disclose sexual abuse and gave several reasons why a child might delay in disclosing sexual abuse. She added that it was common for a child to give more details as time progressed, as the child becomes more comfortable in discussing the abuse. Sawvell did not object to this testimony.

[9] After the State presented its case-in-chief, it moved to dismiss Count III, child molesting, a Level 1 felony. The trial court granted the motion, and the jury found Sawvell guilty on the remaining charges. The trial court also submitted to the jury two special verdict forms for the remaining two Level 1 felony counts; using these forms, the jury found that the acts alleged in these counts involved “other sexual conduct,” that Sawvell was over the age of twenty-one, and that R.B. was under the age of twelve at the time the molestation occurred.

[10] At sentencing on December 20, 2024, the trial court found Sawvell to be a credit restricted felon. The trial court found as aggravating: (1) the harm, injury, loss, or damage suffered by the victim was greater than necessary to prove the commission of the offense; (2) other minor children were in the home when the crimes were committed; and (3) Sawvell violated a position of trust. As mitigating, the trial court found that: (1) Sawvell was at a low risk to reoffend; (2) he had led a law-abiding life up to the point of his crimes; (3) he had served in the military; and (4) Sawvell's children would suffer due to his incarceration.

[11] The trial court found the aggravators and mitigators to be in balance and imposed the advisory sentence on each count: Count I—child molesting, a Level 1 felony, thirty years with ten years suspended; Count II—child molesting, a Level 1 felony, thirty years; and Count IV—child molesting, a Level 4 felony, six years. The trial court ordered the sentences to be served consecutively, for a total sentence of sixty-six years, with ten years suspended. Sawvell now appeals.

Discussion and Decision

I. The trial court did not abuse its discretion by denying Sawvell's request to depose the child victim.

[12] Sawvell first argues that the trial court abused its discretion when it denied Sawvell's request to depose R.B. The deposition of child victims of sexual abuse is governed by Indiana Code Section 35-40-5-11.5 (the “Child Deposition Statute”). The text of the Child Deposition Statute provides in relevant part:

(a) This section applies only to a criminal case involving a child less than sixteen (16) years of age who is the victim or alleged victim of a sex offense.

* * * * *[1]

(c) A defendant may depose a child victim only in accordance with this section.

(d) A defendant may not take the deposition of a child victim unless the defendant contacts the prosecuting attorney before contacting the child, and one (1) or more of the following apply:

* * * * *

(3) The court authorizes the deposition after finding, following a hearing under subsection (g), that the deposition is necessary:

(A) due to the existence of extraordinary circumstances; and

(B) in the interest of justice.

(e) If the prosecuting attorney does not agree to the deposition, the defendant may petition the court for authorization to depose the child victim under subsection (d)(2), (d)(3), or both subsection (d)(2) and (d)(3). Upon receipt of the petition, the court shall notify the prosecuting attorney and set a hearing to determine whether to authorize a deposition of the child victim, and, if applicable, to determine the manner in which the deposition shall be conducted.

* * * * *

(g) The court may not authorize the deposition of a child victim under subsection (d)(3) unless the defendant establishes by a preponderance of the evidence that the deposition is necessary:

(1) due to the existence of extraordinary circumstances; and

(2) in the interest of justice.

* * * * *

I.C. § 35-40-5-11.5 (emphases added). “[W]e ․ interpret the Child Deposition Statute's terms de novo, and we review the trial court's ruling [on a motion to depose a child victim] for an abuse of the trial court's discretion.” Salinas v. State, 257 N.E.3d 17, 25 (Ind. Ct. App. 2025) (citing Church v. State, 189 N.E.3d 580, 585 (Ind. 2022)), trans. denied.

[13] Sawvell claims that he met his burden of showing that deposing R.B. was necessary due to the existence of “extraordinary circumstances” and because it was “in the interest of justice.” I.C. 35-40-5-11.5(g)(1), (2). In Salinas, this Court addressed what “extraordinary circumstances” means in the context of the Child Deposition Statute. We held that “[t]he plain meaning of ‘extraordinary’ is ‘[b]eyond what is usual, customary, regular, or common[.]’ ” Salinas, 257 N.E.3d at 26 (quoting Extraordinary, BLACK'S LAW DICTIONARY (12th ed. 2024)).

[14] Sawvell claims that there were “extraordinary circumstances” necessitating a deposition of R.B. based on her allegation that Sawvell used a vibrating massager on her and the fact that R.B.’s DNA was not found on the massager.² Sawvell also claims that the forensic interviewer did not address R.B.’s lack of DNA on the massager or the inconsistencies between R.B.’s statements and those of other witnesses. Thus, Sawvell argues “he could not determine the weight of the evidence without deposing R.B. to ascertain what she would say about [the] use of the vibrator. Further, the negative DNA finding suggested that R.B. fabricated the allegations, drawing into question whether she had independent knowledge of the vibrator's existence.” Appellant's Br. pp. 15-16.

[15] The trial court did not abuse its discretion by concluding that these reasons did not create “extraordinary circumstances” necessitating R.B.’s deposition. Regarding any inconsistencies between R.B.’s statements and those of other witnesses, “these sorts of circumstances are unfortunately common in child molestation cases. Child victims often recant allegations, fail to remember all the facts and circumstances, or fail to report allegations altogether.” Salinas, 257 N.E.3d at 26. Thus, such inconsistencies do not amount to extraordinary circumstances supporting a request to depose a child witness. See id.; see also Fajardo v. State, 859 N.E.2d 1201, 1209 (Ind. 2007) (noting that equivocations, uncertainties, and inconsistencies in child molestation victim's testimony were appropriate to the circumstances, age of the witness, and the passage of time).³

[16] R.B. was nine years old at the time Sawvell requested to depose her. A child of that age would have no idea why her DNA might not be on an object that was used to molest her. The fact that the forensic interviewer did not ask R.B. about the vibrating massager could be adequately explored by deposition and cross-examination of the interviewer, not a child who had no say in what questions were asked of her during a forensic interview.⁴ Because there were no extraordinary circumstances necessitating the deposition of R.B.,⁵ we cannot say that the trial court abused its discretion by denying Sawvell's motion to depose her.

II. The trial court did not commit fundamental error by admitting testimony by the forensic interviewer regarding delayed and partial disclosures by child victims of sexual abuse.

[17] Sawvell next claims that the trial court abused its discretion by admitting testimony from forensic interviewer Carr that it was common for children not to immediately disclose sexual abuse. Carr also testified that it was common for children to give more details as time progressed, as the children become more comfortable in discussing the abuse.

[18] Decisions regarding the admission of evidence generally rest within the sound discretion of the trial court. Combs v. State, 168 N.E.3d 985, 990 (Ind. 2021). We will reverse the trial court's decision only if it is clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights. Clark v. State, 994 N.E.2d 252, 259-60 (Ind. 2013). Here, Sawvell failed to object to the portions of Carr's testimony he now claims were improperly admitted. Any claim that the trial court abused its discretion in the admission of this evidence is, accordingly, waived. Zuniga v. State, 237 N.E.3d 1168, 1172 (Ind. Ct. App. 2024), trans. denied.

[19] Because of this waiver, Sawvell claims that the admission of this evidence was fundamental error. We explained in Snow v. State that:

An error is fundamental ․ if it made a fair trial impossible or constituted a clearly blatant violation of basic and elementary principles of due process presenting an undeniable and substantial potential for harm. These errors create an exception to the general rule that a party's failure to object at trial results in a waiver of the issue on appeal. The exception is very narrow, and encompasses only errors so blatant that the trial judge should have acted independently to correct the situation.

118 N.E.3d 50, 59 (Ind. Ct. App. 2019) (citations and internal quotations omitted). A defendant faces a “heavy burden” of showing that the alleged errors are so prejudicial as to constitute fundamental error. Castillo v. State, 974 N.E.2d 458, 468 (Ind. 2012).

[20] Sawvell argues that Carr's testimony regarding the typical behavior of the victims of child sex abuse was impermissible vouching. Indiana Evidence Rule 704(b) provides in relevant part that a witness “may not testify to opinions concerning ․ the truth or falsity of allegations [or] whether a witness has testified truthfully[.]” Evidence Rule 704(b) prohibits such “[v]ouching” for another witness because “[s]uch testimony invades the province of the jury in determining what weight to give a witness's testimony.” Henson v. State, 237 N.E.3d 1160, 1165 (Ind. Ct. App. 2024) (citing Gutierrez v. State, 961 N.E.2d 1030, 1034 (Ind. Ct. App. 2012)), trans. denied. Thus, “a question that “necessarily requires the witness to pass judgment on [the child's] allegations, or ‘story’ ․ invites direct vouching of the child witness’ allegations regardless of the child's motives.” Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012). “No witness, whether lay or expert, is competent to testify that another witness is or is not telling the truth.” Id. (citing Barger v. State, 587 N.E.2d 1304, 1308 (Ind. 1992)).

[21] Sawvell bases his claim on the holding of our Supreme Court in Steward v. State, 652 N.E.2d 490 (Ind. 1995). In Steward, the State presented expert testimony regarding “child sexual abuse accommodation syndrome” (“CSAAS”) which stated that one of the victims exhibited behaviors consistent with victims of child sexual abuse. Id. at 491. On appeal, the Court held that this testimony was impermissible ⁶ and “decline[d] to distinguish between expert testimony which offers an unreserved conclusion that the child in question has been abused and that which merely uses syndrome evidence to imply the occurrence of abuse.” Id. at 499; see also Sampson v. State, 38 N.E.3d 985 (Ind. 2015) (holding that expert testimony that a child has not exhibited any signs of being coached is impermissible vouching). The Steward Court also held that a defendant may open the door to such otherwise inadmissible evidence: “if the defense discusses or presents evidence of such unexpected behavior by the child ․ a trial court may consider permitting expert testimony, if based upon reliable scientific principles, regarding the prevalence of the specific unexpected behavior within the general class of reported child abuse victims.” Id. at 499.

[22] Sawvell claims that he did not open the door to any vouching testimony: “Sawvell did not present evidence that R.B. should not be believed because it was a delayed disclosure or because she provided some information to one person and other information to a different person.” Appellant's Br. p. 18. We note, however, that Carr's testimony came after Sawvell questioned Father on cross-examination regarding the fact that, during her initial disclosure, R.B. never mentioned the use of the massager but she later added that detail when interviewed by the police. Thus, Sawvell did attack the credibility of R.B.’s disclosures, which permits Carr to explain the process of children disclosing sexual abuse. See Ward, 203 N.E.3d at 531; Pierce, 135 N.E.3d at 1005.

[23] Further, Carr did not specifically mention any syndrome or opine on the veracity of R.B.’s allegations. In Baumholser v. State, 62 N.E.3d 411, 416 (Ind. Ct. App. 2016), this Court read Steward to “disallow[ ] vouching testimony regarding [CSAAS] evidence[.]”⁷ Baumholser held that “Steward specifically disallows testimony regarding evidence of a particular syndrome, CSAAS.” Id. Because that syndrome was not mentioned in Baumholser, the Court held that the defendant's reliance on Steward was misplaced. Id.; see also State v. Velasquez, 944 N.E.2d 34, 42 n.3 (Ind. Ct. App. 2011) (distinguishing the admissibility of evidence of CSAAS from the admissibility of “behavioral evidence without use of the term CSAAS,” and holding that such evidence was admissible); Lyons v. State, 976 N.E.2d 137, 143 (Ind. Ct. App. 2012) (finding no fundamental error in admission of testimony from witness who “did not testify that there was any recognized syndrome or profile of child sexual abuse victims, much less that [the victim] fit such a profile and had therefore been abused”).

[24] The same is true here. Carr did not testify that R.B. fit any profile or syndrome, nor did she testify that R.B. was more likely to have been abused because of the manner in which R.B. disclosed the abuse. Under these facts and circumstances, we cannot say that the admission of Carr's testimony amounted to fundamental error. See Lyons, 976 N.E.2d at 143.

III. Sufficient evidence supports Sawvell's convictions

[25] Sawvell next argues that the State failed to present sufficient evidence to support his convictions because only R.B. testified as to the molestations. Upon review of a claim of insufficient evidence, we neither reweigh the evidence nor judge the credibility of the witnesses and instead consider only the evidence supporting the verdict and the reasonable inferences that can be drawn therefrom. Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024).

[26] Sawvell does not deny that R.B.’s testimony met all elements of the crimes for which he was convicted. Instead, he argues that R.B.’s testimony is incredibly dubious. “Under the incredible dubiosity rule, a court will impinge upon the jury's responsibility to judge the credibility of witnesses only when confronted with inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity.” Murray v. State, 761 N.E.2d 406, 408 (Ind. 2002). Application of the incredible dubiosity rule requires that there be: (1) a sole testifying witness; (2) testimony that is inherently contradictory, equivocal, or the result of coercion; and (3) a complete absence of circumstantial evidence. Moore v. State, 27 N.E.3d 749, 756 (Ind. 2015). Although the incredible dubiosity standard is “ ‘not impossible’ ” to meet, it is a “ ‘difficult standard ․ that requires great ambiguity and inconsistency in the evidence.’ ” Id. (quoting Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001)). Thus, “ ‘[t]he testimony must be so convoluted and/or contrary to human experience that no reasonable person could believe it.’ ” Id. (quoting Edwards, 753 N.E.2d at 622).

[27] Here, the incredible dubiosity rule is inapplicable because there was more than a sole testifying witness. See Moore v. State, 27 N.E.3d 749, 755 (Ind. 2015) (noting that the incredible dubiosity rule is limited to those situations in which there is a “ ‘sole witness[.]’ ”) (quoting Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994)). Even if the rule did apply, there was nothing about R.B.’s testimony that was so convoluted or contrary to human experience that no reasonable person could believe it.

[28] Our courts have long held that the uncorroborated testimony of a single child witness is sufficient to support a conviction for child molesting. See Stewart v. State, 768 N.E.2d 433, 436 (Ind. 2002) (citing Barger v. State, 587 N.E.2d 1304, 1308 (Ind. 1992)); Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012).⁸ We, therefore, conclude that the evidence is sufficient to support Sawvell's convictions.

IV. The trial court determined that Sawvell is a credit restricted felon—not the jury.

[29] Sawvell next argues that the trial court impermissibly permitted the jury to determine that Sawvell is a credit restricted felon. Sawvell notes that the trial court gave to the jury two special verdict forms asking it to determine whether: (1) Sawvell was at least twenty-one years old; (2) R.B. was less than twelve years old; and (3) if Sawvell's offenses involved “other sexual conduct.”⁹ Appellant's App. Vol. III pp. 16, 18. The jury returned positive findings on both special verdict forms. These verdict forms allowed the jury only to determine the statutory facts necessary for the trial court to determine whether Sawvell is a credit restricted felon.

[30] Sawvell made no objection when the trial court gave these verdict forms to the jury. To preserve a claim of error regarding a verdict form, a defendant must make a contemporaneous objection. Bruno v. State, 774 N.E.2d 880, 883 (Ind. 2002). The failure to object at trial results in waiver of the issue on appeal. Id. Sawvell claims the jury determined that he is a credit restricted felon, resulting in an improper sentence. We, therefore, may review the error even though it was not raised below. See Groves v. State, 823 N.E.2d 1229, 1232 (Ind. Ct. App. 2005) (“An improper sentence constitutes fundamental error and ‘cannot be ignored on review.’ We may correct sentencing errors by the trial court on appeal even though the issue was not raised below.”) (quoting Morgan v. State, 417 N.E.2d 1154, 1156 (Ind. Ct. App. 1981)). Thus, to the extent Sawvell argues that his sentence is contrary to statute, we will address his claim despite his failure to object below.

[31] The credit restricted felon statute provides in relevant part:

“Credit restricted felon” means a person who has been convicted of at least one (1) of the following offenses:

(1) Child molesting involving sexual intercourse ․ or other sexual conduct (as defined in IC 35-31.5-2-221.5) for a crime committed after June 30, 2014, if:

(A) the offense is committed by a person at least twenty-one (21) years of age; and

(B) the victim is less than twelve (12) years of age.

Ind. Code § 35-31.5-2-72.¹⁰

[32] Indiana Code Section 35-38-1-7.8 provides the procedure for determining whether a person is a credit restricted felon as follows:

(a) At the time of sentencing, a court shall determine whether a person is a credit restricted felon (as defined in IC 35-31.5-2-72).

(b) A determination under subsection (a) must be based upon:

(1) evidence admitted at trial that is relevant to the credit restricted status;

(2) evidence introduced at the sentencing hearing; or

(3) a factual basis provided as part of a guilty plea.

(c) Upon determining that a defendant is a credit restricted felon, a court shall advise the defendant of the consequences of this determination.

[33] According to Sawvell, this statute requires the trial court to make the factual determination of whether a defendant is a credit restricted felon and, by giving the special verdict forms to the jury, the trial court “abdicated” its responsibility to make this determination. Appellant's Br. p. 27. We agree with Sawvell that the trial court is required by statute to make the determination of whether a defendant is a credit restricted felon. See Holmgren v. State, 196 N.E.3d 281, 285 (Ind. Ct. App. 2022) (“[T]he trial court, not the jury, makes the determination of whether a person is a credit-restricted felon.”) (citing Pierce v. State, 29 N.E.3d 1258, 1270-71 (Ind. 2015) (“As the statute makes plain, it is the trial court, and not the jury, that determines whether a defendant is a credit restricted felon.”)).¹¹ But we disagree with Sawvell that the trial court abdicated its responsibility to do so here.

[34] The special verdict forms did not ask the jury to make the legal determination of whether Sawvell was a credit restricted felon; the forms simply asked the jury to make three factual findings: (1) whether Sawvell's convictions involved “other sexual conduct,” (2) whether Sawvell was at least twenty-one years old at the time of the offenses, and (3) whether R.B. was less than twelve years old at the time of the offenses. Based on the jury's factual findings, the trial court then made the legal determination that Sawvell was a credit restricted felon. See Tr. Vol. III p. 110 (“You are going to be a credit restricted felon based upon the finding that the jury made that the victim [was] 12 or under the age of 12 at the time of the offense and that you were 21 or above.”). We also note that a trial court has no discretion regarding a credit restricted felon determination—if the trial court determines that the defendant meets the statutory definition of a credit restricted felon, the defendant is, by operation of law, a credit restricted felon. We, therefore, reject Sawvell's claim that the trial court abdicated its duty to determine whether Sawvell is a credit restricted felon, and we conclude that there was no fundamental error in the determination of Sawvell's status as a credit restricted felon.

V. The trial court did not abuse its sentencing discretion by relying on improper aggravating factors.

[35] Sawvell next claims that the trial court abused its sentencing discretion by relying on two improper aggravating factors: (1) the crimes were committed in the presence of other children; and (2) the harm to the victim was greater than that necessary to commit the offense.¹²

[36] “[S]ubject to the review and revise power [under Indiana Appellate Rule 7(B)], 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), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007). A trial court abuses its discretion only if its 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.” Schuler v. State, 132 N.E.3d 903, 904 (Ind. 2019).

[37] A trial court may abuse its sentencing discretion in a number of ways, including:

(1) “failing to enter a sentencing statement at all”; (2) entering a sentencing statement in which the aggravating and mitigating factors are not supported by the record; (3) entering a sentencing statement that does not include reasons that are clearly supported by the record and advanced for consideration; or (4) entering a sentencing statement in which the reasons provided in the statement are “improper as a matter of law.”

Ackerman v. State, 51 N.E.3d 171, 193 (Ind. 2016) (quoting Anglemyer, 868 N.E.2d at 490-91). On appeal, we presume that a trial court “renders its decision solely on the basis of relevant and probative evidence.” Schuler, 132 N.E.3d at 905. If we determine that a trial court has abused its discretion, we “will remand for resentencing only if ‘we cannot say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.’ ” Ackerman, 51 N.E.3d at 194 (quoting Anglemyer, 868 N.E.2d at 491).

[38] Sawvell claims that the trial court abused its discretion by considering as aggravating that other minor children were in the home when the crimes were committed. “The commission of a crime in the presence of minor children may be considered an aggravating circumstance.” Redden v. State, 850 N.E.2d 451, 465 (Ind. Ct. App. 2006) (citing Crawley v. State, 677 N.E.2d 520, 522 (Ind. 1997)); see also Ind. Code § 35-38-1-7.1(a)(4) (providing that a trial court may consider as aggravating that the defendant committed a “crime of violence”—which includes child molesting—”in the presence or within the hearing of an individual who” is less than eighteen years old and is not the victim of the offense). This aggravator “does not require that a child under eighteen actually see or hear the offense taking place.” Kedrowitz v. State, 199 N.E.3d 386, 405 (Ind. Ct. App. 2022) (citations and internal quotations omitted), trans. denied.

[39] Here, it is undisputed that there were five other children in the house, including Sawvell's own daughters, at the time Sawvell molested R.B. Sawvell elicited testimony at trial that all the children's bedrooms were on the same floor and that the children usually shared bedrooms. In fact, part of Sawvell's defense was that R.B.’s allegations were uncreditworthy because, based on the time and place, any of the other children could have walked in and caught Sawvell.¹³ We, therefore, cannot say that the trial court abused its discretion by considering as aggravating that Sawvell molested R.B. in the presence or within the hearing of other children.

[40] Sawvell also claims that the trial court abused its discretion by considering as aggravating that the harm, injury, loss, or damage suffered by the victim was greater than necessary to prove the commission of the offense. This is a valid statutory aggravator. See I.C. § 35-38-1-7.1(a)(1); Sharkey v. State, 967 N.E.2d 1074, 1078 (Ind. Ct. App. 2012). Regarding this aggravator, the trial court stated:

the harm that's been done is much greater than was necessary for the State to present and to prove to the court in order to find Mr. Sawvell guilty. And, and by that I mean this harm, what this child has gone through is never going to go away for her. You know, she may find ways to deal with it. She may get counseling that helps her with it. Maybe her memory will block it out of her mind to some degree, and that's how she'll be able to come to terms with it over the course of time, but it will always be there, and it will always affect her relationships with men, with other people, generally with her family members. It is a harm that will never stop․

Tr. Vol. III pp. 106-07. For such psychological trauma to a victim to be a valid aggravator, “the trial court must explain why the impact suffered by the victims exceeded that which is normally associated with the crime.” Walden v. State, 216 N.E.3d 1165, 1175 (Ind. Ct. App. 2023), trans. denied. Sawvell claims that the trial court did not provide any such explanations.

[41] Even if we assume that this aggravator was improper, the remaining aggravators—that Sawvell committed his crimes in the presence of other children and that Sawvell abused a position of trust—are sufficient to justify the sentence imposed by the trial court. “Being in a position of trust with the victim is a valid aggravating circumstance,” and “[a]busing a position of trust is, by itself, a valid aggravator which supports the maximum enhancement of a sentence for child molesting.” Hart v. State, 829 N.E.2d 541, 544 (Ind. Ct. App. 2005) (citations omitted). Sawvell was effectively a stepfather to R.B., and he abused his position of trust to gratify his own deviant sexual desires. Given the presence of these valid aggravating factors, we are confident that the trial court would have imposed the same sentence even if this aggravator had not been considered.¹⁴ See Ackerman, 51 N.E.3d at 194.

VI. Sawvell's sentence is not inappropriate.

[42] Lastly, Sawvell argues that his consecutive sentence is inappropriate based on the nature of the offenses and his character. The Indiana Constitution authorizes independent appellate review and revision of sentences imposed by a trial court. Lane v. State, 232 N.E.3d 119, 122 (Ind. 2024) (citing Ind. Const. art. 7, §§ 4, 6). This authority, as implemented through Indiana Appellate Rule 7(B), enables this 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.” Deference to the trial court's sentence should prevail unless “overcome by compelling evidence portraying in a positive light the nature of the offense and the defendant's character.” Oberhansley v. State, 208 N.E.3d 1261, 1267 (Ind. 2023) (internal quotations omitted). A defendant, however, need not show that both the nature of the offense and his or her character warrant revision; however, “to the extent the evidence on one prong militates against relief, a claim based on the other prong must be all the stronger to justify relief.” Lane, 232 N.E.3d at 127 (citing Connor v. State, 58 N.E.3d 215, 220 (Ind. Ct. App. 2016)).

[43] When determining whether a sentence is inappropriate, we are not limited to the aggravating and mitigating circumstances found by the trial court. Oberhansley, 208 N.E.3d at 1271. “Our role is primarily to leaven the outliers and identify guiding principles for sentencers, rather than to achieve the perceived correct result in each case.” Lane, 232 N.E.3d at 122 (internal quotations omitted). “Ultimately, we rely on our collective judgment as to the balance of all the relevant considerations involved, which include the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Id. (internal quotations omitted).

[44] The advisory sentence is the starting point the legislature has selected as an appropriate sentence for the crime committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). Accordingly, “ ‘the defendant bears a particularly heavy burden in persuading us that his sentence is inappropriate when the trial court imposes the advisory sentence.’ ” Prince v. State, 148 N.E.3d 1171, 1174 (Ind. Ct. App. 2020) (quoting Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied). In considering the appropriateness of a sentence, “we ‘focus on the forest—the aggregate sentence—rather than the trees—consecutive or concurrent, number of counts, or length of the sentence on any individual count.’ ” Brown v. State, 10 N.E.3d 1, 8 (Ind. 2014) (citing Cardwell, 895 N.E.2d at 1225). We may also “consider whether a portion of the sentence is ordered suspended or is otherwise crafted using any of the variety of sentencing tools available to the trial judge.” Hubbert v. State, 163 N.E.3d 958, 960 (Ind. Ct. App. 2021) (citing Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010)), trans. denied.

[45] Here, Sawvell was convicted of two counts of child molesting, a Level 1 felony, and one count of child molesting, a Level 4 felony. The sentencing range for Level 1 felony child molesting when the defendant is at least twenty-one years old and the victim less than twelve years old—as is the case here—is twenty to fifty years, with an advisory sentence of thirty years. Ind. Code § 35-50-2-4(c). And the sentencing range for a Level 4 felony is two to twelve years, with an advisory sentence of six years. Ind. Code § 35-50-2-5.5. Thus, Sawvell faced a minimum sentence of twenty years and a maximum sentence of 112 years. The trial court sentenced Sawvell to the advisory sentence on each count but ordered the sentences to be served consecutively, for a total of sixty-six years—the exact midpoint of the sentencing range Sawvell faced.¹⁵ The trial court also ordered ten years of the sentence to be suspended to probation.

A. Nature of the Offense

[46] Our consideration of the “nature of the offense” requires us to look at the extent, brutality, and heinousness of the offense. See Wilson v. State, 157 N.E.3d 1163, 1182 (Ind. 2020). We may also consider whether the offender was in “a position of trust” with the victim. Ramirez v. State, 174 N.E.3d 181, 202 (Ind. 2021). We will defer to the trial court's sentencing decision unless the defendant presents “ ‘compelling evidence portraying in a positive light the nature of the offense (such as [being] accompanied by restraint, regard, and lack of brutality)[.]’ ” Correa v. State, 224 N.E.3d 961 (Ind. Ct. App. 2023) (citing Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015)).

[47] R.B. considered Sawvell to be her stepfather, yet he abused this position of trust to isolate R.B. and insert his finger into her vagina on two separate occasions, causing the child pain. He also used a sex toy on the child on another occasion. R.B. was only eight years old at the time of these acts of molestation, well below the statutory threshold of fourteen years old. See Chastain v. State, 165 N.E.3d 589, 601 (Ind. Ct. App. 2021) (noting that defendant abused position of trust by molesting victim when she was eight or nine years old, which was “significantly below the statutorily significant age of fourteen.”), trans. denied. R.B. suffered from post-traumatic stress disorder as a result of Sawvell's acts. We discern nothing here that portrays the nature of Sawvell's offenses in a positive light.

B. Character of the Offender

[48] Our consideration of the character of the offender involves a broad consideration of a defendant's qualities, including the defendant's age, criminal history, background, past rehabilitative efforts, and remorse. Harris v. State, 165 N.E.3d 91, 100 (Ind. 2021); McCain v. State, 148 N.E.3d 977, 985 (Ind. 2020). The significance of a criminal history in assessing a defendant's character and an appropriate sentence vary based on the “gravity, nature and number of prior offenses as they relate to the current offense.” McElfresh v. State, 51 N.E.3d 103, 112 (Ind. 2016). “Even a minor criminal history is a poor reflection of a defendant's character.” Prince v. State, 148 N.E.3d 1171, 1174 (Ind. Ct. App. 2020).

[49] Sawvell has essentially no prior criminal history; he was arrested once for misdemeanor conversion, but the charge was later dismissed after he successfully participated in a diversion program. Sawvell also presented evidence that he served in the military and was honorably discharged. But the trial court considered these facts as mitigators. The facts of the instant offenses also reflect poorly on Sawvell's character because he betrayed a position of trust. See Walters v. State, 68 N.E.3d 1097, 1103 (Ind. Ct. App. 2017) (considering defendant's violation of his position of trust and authority as reflecting poorly on his character). Sawvell's character is not the worst this Court has seen, but this was reflected in the lesser sixty-six-year sentence the trial court imposed.

[50] In short, Sawvell's aggregate sentence of sixty-six years, with ten years suspended to probation, is not inappropriate in light of the nature of Sawvell's offenses and Sawvell's character. See Faith v. State, 131 N.E.3d 158, 160 (Ind. 2019) (per curiam) (revising defendant's ninety-year sentence, with twenty years suspended, to ninety years with thirty years suspended where defendant was convicted of three counts of child molesting involving the same victim).¹⁶

Conclusion

[51] The trial court did not abuse its discretion by denying Sawvell's motion to depose R.B., nor did the trial court commit fundamental error by admitting testimony from the forensic interviewer regarding delayed and partial disclosures by victims of child sexual abuse. The State presented sufficient evidence to support Sawvell's convictions, and R.B.’s testimony was not incredibly dubious. The trial court did not improperly permit the jury to determine that Sawvell was a credit restricted felon but merely made that determination based on the jury's factual findings. The trial court did not abuse its discretion by relying upon improper aggravating factors, nor is Sawvell's sixty-six-year sentence, with ten years suspended to probation, inappropriate. We, therefore, affirm the trial court's judgment.

[52] Affirmed.

FOOTNOTES

1.   Subsection (b) of the Child Deposition Statute sets forth definitions of the terms used in the statute:(1) “Accused” or “the accused” means a person charged with committing a sex offense against a child victim. The term does not include an attorney who represents the accused.(2) “Child victim” means a child less than sixteen (16) years of age who is the victim or alleged victim of a sex offense.(3) “Defendant” means a person charged with committing a sex offense against a child victim and an attorney who represents the defendant.(4) “Deposition” or “depose” means a deposition or taking a deposition pursuant to Indiana Trial Rule 30 or Indiana Trial Rule 31, or any other formal or informal statement or interview.(5) “Sex offense” has the meaning set forth in IC 11-8-8-5.2 [which includes child molesting].The parties make no argument that Sawvell and/or R.B. fail to meet any of these definitions.

2.   Mother testified that she typically cleaned the massager after using it. Thus, the absence of R.B.’s DNA on the massager was explained by the evidence.

3.   Fajardo was superseded in part on other grounds—involving the timing of substantive amendments to a charging information—by 2007 amendments to Indiana Code Section 35-41-1-5. The section of Fajardo we cite was unaffected by the amendments to this statute.

4.   Mother also testified that R.B. had found the massager “at some point” in Mother's bathroom. Tr. Vol. II p. 237. Thus, the jury was well aware that R.B. might have had previous knowledge of the massager's existence and location.

5.   Because Sawvell did not demonstrate that “extraordinary circumstances” supported the deposition of R.B., we need not address whether a deposition was also “in the interest of justice.” Salinas, 257 N.E.3d at 26 n.5.

6.   The Court's holding was based on several Rules of Evidence, including Rules 401 and 402 (relevance), 403 (unfair prejudice), 702 (expert testimony), and 704(b) (vouching). Steward, 652 N.E.2d at 498.

7.   Several cases since Steward have applied its holding narrowly. See Henson, 237 N.E.3d at 1167-68 (collecting cases).

8.   Sawvell does not deny that our courts have long held that the uncorroborated testimony of a victim may be sufficient to support a conviction, but he claims that there is reason to question the efficacy of the rule, citing a dissent by now Senior Judge Baker in Leyva v. State, 971 N.E.2d 699, 705-06 (Ind. Ct. App. 2012). Regardless of any merits of that dissent, it is not binding precedent, unlike the opinions of our Supreme Court, which we must follow. Although our Supreme Court has held that it is improper to instruct the jury that the uncorroborated testimony of the victim is sufficient to support a conviction, Ludy v. State, 784 N.E.2d 459, 461 (Ind. 2003), the Court has continued to apply the uncorroborated-testimony rule on appeal in sufficiency review. See Stewart, 768 N.E.2d at 436; Hoglund, 962 N.E.2d at 1238.

9.   The verdict forms were identical, but one referred to Count I and the other to Count II.

10.   “A person who is a credit restricted felon and who is imprisoned for a crime or imprisoned awaiting trial or sentencing is initially assigned to Class C. A credit restricted felon may not be assigned to Class A or Class B.” Ind. Code § 35-50-6-4(c). And “[a] person assigned to Class C earns one (1) day of good time credit for every six (6) calendar days or partial calendar days the person is: (1) imprisoned for a crime; (2) confined awaiting trial or sentencing; or (3) on pretrial home detention.” Ind. Code § 35-50-6-3.1(d).

11.   We also noted in Holmgren that “a defendant convicted of Level 1 felony child molesting where the defendant is at least twenty-one years of age and the victim is less than twelve” is subject to a maximum sentence of fifty years, as opposed to the normal maximum sentence of forty years for a Level 1 felony. 196 N.E.3d at 288 (discussing Ind. Code § 35-50-2-4(c)) . We held in Holmgren that, before a court may sentence a defendant to this higher sentencing range, a jury must find beyond a reasonable doubt that the defendant is at least twenty-one years old and the victim is less than twelve years old under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and its progeny. Holmgren, 196 N.E.3d at 288. Although it is not clear from the record, the trial court here may have given the jury the special verdict forms to comply with our holding in Holmgren.

12.   Sawvell does not challenge the other aggravating factor found by the trial court—that Sawvell abused a position of trust in committing his crimes. Nor does Sawvell challenge the reason for the trial court's decision to impose consecutive sentences—that there were three independent incidents in which Sawvell molested R.B. See Powell v. State, 895 N.E.2d 1259, 1263 (Ind. Ct. App. 2008) (noting that “[t]he basis for the gross impact that consecutive sentences may have is the moral principle that each separate and distinct criminal act deserves a separately experienced punishment.”) (citing Hart v. State, 829 N.E.2d 541, 545 (Ind. Ct. App. 2005)); accord Crouse v. State, 158 N.E.3d 388, 395 (Ind. Ct. App. 2020).

13.   See Tr. Vol. III p. 53 (“So [Sawvell] snuck into a room with a girl. Digitally penetrated her twice. Used a vibrator on her while up to 7 other people were awake and in that house. And did so without one thought that someone might walk in that door, and he might get caught. Makes no sense.”).

14.   We also note that, if a trial court abuses its discretion in sentencing, the court on appeal may exercise authority to review and revise sentence, rather than remanding for resentencing. Chappell v. State, 966 N.E.2d 124, 134 (Ind. Ct. App. 2012) (citing Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007); see also Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007) (holding that we will not remand for resentencing if the sentence imposed is not inappropriate), trans. denied. As we conclude below that Sawvell's sentence is not inappropriate, there is no need for us to remand for resentencing even if the trial court did abuse its sentencing discretion.

15.   Twenty plus 112 is 132, and 132 divided by two is sixty-six.

16.   Sawvell insists that the facts of this case are more similar to those in Rivers v. State, 915 N.E.2d 142, 143-44 (Ind. 2009). In Rivers, the defendant molested his niece on two occasions in a relatively short span of time, then stopped on his own accord, and did not commit any other offenses in the seven years that passed until he was charged. Rivers was convicted of two Class A felonies and one Class C felony and was sentenced to consecutive terms of thirty years on the Class A felonies and a concurrent term of four years on the Class C felony. Given the defendant's lack of criminal history and the fact that his acts involved only one victim in a short period of time, our Supreme Court revised the defendant's sentence on the Class A felonies from consecutive to concurrent terms. Id. at 143-44. Here, Sawvell molested his de facto stepdaughter, causing her pain and resulting in PTSD, and there is no indication that he stopped of his own accord for a long period. Accordingly, Rivers is distinguishable.

Tavitas, Judge.

Judges Vaidik and Felix concur. Vaidik, J., and Felix, J., concur.