FISHER v. STATE (2022)

MEMORANDUM DECISION

Case Summary

[1] In his appeal after convictions for two counts of level 4 felony child molestation and one count of level 5 felony possession of child pornography, Zachary Fisher argues that the trial court improperly bolstered a witness's testimony. He also claims that the State presented insufficient evidence to support the possession of child pornography conviction. In a twofold challenge to his sentence, Fisher asserts that the trial court both abused its discretion in finding certain aggravating circumstances and ordered an inappropriate sentence. Finding no reversible error, we affirm.

Facts and Procedural History

[2] The facts most favorable to the convictions show that in 2016, S.L. and Fisher met online and began a relationship. By the end of 2017 and into 2018, the relationship was more serious, and Fisher, then in his early thirties, began watching S.L.’s three young children while she worked night shifts. He continued as the occasional nighttime babysitter for A.L. (a daughter born in 2010), R.L. (a son born in 2011), and N.L. (a daughter born in 2012) through late October 2019.

[3] In 2018, Fisher gave his spare Alcatel cell phone to A.L. as a birthday gift. In February 2019, Fisher bought a Samsung cell phone for his personal use.

[4] More than once during the times when Fisher stayed overnight, Fisher touched A.L. and N.L., making them feel uncomfortable. One evening when S.L. was working, A.L. had a nightmare and exited her bedroom. Fisher called her over to him in the living room to the futon bed where he slept. He instructed her to remove her clothes and get into bed with him, at which point he touched her vagina with his fingers. On a separate night, again when S.L. worked third shift, A.L. awoke. This time, Fisher told A.L. to take off her clothes and climb into the bed, and then he made her touch his penis with her hand.

[5] N.L. endured similar treatment when she had a nightmare and sought help from the adult in charge. When she left her bedroom, Fisher “did sex” to her, taking off her clothes and touching her vagina with his “first in the front” (her words for his penis). Tr. Vol. 3 at 52-55. N.L. also witnessed Fisher touch her sister, A.L., and “do sex” with her at night. Id. at 57-58. A.L. saw N.L. in bed with Fisher more than once when he was touching N.L.’s vagina with his finger. In 2018, N.L. began wetting her bed again after being potty trained for several years.

[6] Fisher last babysat overnight for S.L.’s children in October 2019. By December of 2019 or early 2020, the couple had stopped dating. Thereafter, within texts between Fisher and S.L., the children were mentioned, which made S.L. suspicious. S.L. asked her daughters if anything inappropriate had ever happened with Fisher. Both girls initially denied it but later disclosed that something bad had occurred. S.L. contacted the sheriff's department, and the girls were put into counseling, which they still attended as of the date of Fisher's trial.

[7] Law enforcement used digital forensics to extract, process, and analyze data from both Fisher's Samsung phone and the Alcatel phone that he had given to then-eight-year-old A.L. Computer review of the Samsung phone revealed ten hash values,¹ seven of which were unique and three of which were duplicates, that were identified as known child pornography images, in addition to one video that was identified as known child pornography. Mitchell Kaizer, director of the cybercrimes unit for the St. Joseph County Prosecutor's Office, visually reviewed other images on the Samsung phone and identified thirty-five photos and four videos classified as child pornography plus fifty-eight other pictures and two videos classified as child exploitative.² Fisher's Samsung phone also contained a directory labeled “shared/girls” in which three pictures of unknown origin were saved. Tr. Vol. 2 at 223-28. The first picture showed a female child, approximately ten years old, completely nude, down on all fours, showing her bare vagina and anus, looking back at the camera, and smiling. The second picture was of a female child, also around ten years old, photographed facing the camera with her hands spreading the lips of her vagina toward the camera. The third picture was of a male child, around ten years old, lying naked in bed, with an adult female holding his penis while performing oral sex on him. Hereafter, we shall refer to these three photos as the “shared/girls pictures.”

[8] A search of the Alcatel phone revealed two photos of N.L., completely naked and posed in a sexually provocative manner in S.L.’s house. Id. at 201, 206-07, 235; Tr. Vol. 3 at 15, 59. At trial, N.L. testified that Fisher took these two photos.

[9] In February 2020, police interviewed Fisher, who denied the accusations of A.L. and N.L. Fisher explained that he would wake up to find the girls “grinding” on him. Tr. Vol. 3 at 80, 81. He further claimed that S.L. molested her children and that the girls engaged in sexual play with their biological father and brother. Further, he maintained that A.L. and N.L. watched pornography and played with their mother's vibrator. Fisher never alerted police or the Department of Child Services to any of the claimed activities. Id. at 81. Law enforcement searched S.L.’s phone and found nothing pertinent. Tr. Vol. 2 at 199.

[10] The State ultimately filed seven counts against Fisher: two counts of level 1 felony child molestation, two counts of level 4 felony child molestation,³ one count of level 5 felony possession of child pornography, one count of level 6 felony possession of child pornography, and one count of level 4 felony child exploitation. A jury found him guilty of two counts of level 4 felony child molestation, guilty of one count of level 5 felony possession of child pornography, and not guilty of the other four counts.

[11] Finding, weighing, and balancing various aggravating and mitigating factors, the trial court imposed a thirty-year sentence, suspended three years to probation, found that Fisher was not a credit-restricted felon, and ordered $558 in restitution. Appellant's App. Vol. 2 at 211-14; Tr. Vol. 3 at 170.

Discussion and Decision

Section 1 – The trial court did not commit fundamental error when explaining its evidentiary ruling.

[12] For the first time on appeal, Fisher contends that the trial court impermissibly endorsed the testimony of State's witness Mitchell Kaizer. At trial, Kaizer described the shared/girls pictures from Fisher's Samsung phone and noted that they were intentionally saved to/stored on the phone. Kaizer explained that he could not identify the original source of the pictures, meaning he could not determine whether the shared/girls pictures were taken by the Samsung phone's camera, whether they were downloaded from the internet, or when they appeared on the phone. The State then offered the shared/girls pictures into evidence as three separate exhibits, and the following exchange occurred in the presence of the jury:

THE COURT: Okay. Any objection, [Defense Counsel]?

[Defense Counsel]: I'm going to have to object, Your Honor, because the witness is unable to testify or determine where the source of the pictures came from, so I'm going to object on that basis.

THE COURT: Okay. I'm going to overrule that because I understand the testimony, it's a source or unable to testify to the source how it got to the phone, but it clearly was on the phone, so I overrule that objection.

[Defense Counsel]: Okay.

Tr. Vol. 2 at 228-29 (emphasis added).

[13] While Fisher objected to the admission of the exhibits (though does not challenge their admission on appeal), he did not lodge a contemporaneous objection to the judge's comment. “A party's failure to object to, and thus preserve, an alleged trial error results in waiver of that claim on appeal.” Batchelor v. State, 119 N.E.3d 550, 556 (Ind. 2019). The purpose of the contemporaneous objection requirement is to give the trial court a chance to avoid or correct the harmful error, thus securing a fair and proper verdict. Clark v. State, 6 N.E.3d 992, 998 (Ind. Ct. App. 2014). “[A] trial court cannot be found to have erred as to an issue or argument that it never had an opportunity to consider.” Washington v. State, 808 N.E.2d 617, 625 (Ind. 2002). Fisher has waived the claim on review.

[14] To overcome waiver, Fisher must demonstrate that the judge's comment constituted fundamental error. Knapp v. State, 9 N.E.3d 1274, 1281 (Ind. 2014), cert. denied (2015). Fundamental error is an extremely narrow exception to the waiver rule where the defendant faces the heavy burden of showing that the alleged error is so prejudicial to the defendant's rights as to make a fair trial impossible. See Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014).

In other words, to establish fundamental error, the defendant must show that, under the circumstances, the trial judge erred in not sua sponte raising the issue because alleged errors (a) constitute clearly blatant violations of basic and elementary principles of due process and (b) present an undeniable and substantial potential for harm. The element of such harm is not established by the fact of ultimate conviction but rather depends upon whether the defendant's right to a fair trial was detrimentally affected by the denial of procedural opportunities for the ascertainment of truth to which he otherwise would have been entitled.

Id. (citations, quotation marks, and brackets omitted).

[15] While not as eloquent as it could have been,⁴ the judge's brief comment was an explanation of his ruling that admitted the shared/girls pictures into evidence as exhibits. In essence, the judge acknowledged Fisher's concern about the source of the pictures but viewed the question of the pictures’ source as going to the weight of the pictures as evidence rather than to their admissibility. Moreover, the existence of the shared/girls pictures on the Samsung phone was not disputed; Fisher simply claimed that S.L. planted the pictures on his phone. Accordingly, Fisher's defense was not impaired. Moreover, any attenuated problem with the judge's brief comment was negated by jury instructions. See Tr. Vol. 2 at 159, 170 (Preliminary Instruction Number 21 ⁵ ); see Weisheit v. State, 26 N.E.3d 3, 20 (Ind. 2015) (appellate court assumes properly instructed jury follows instructions read), cert. denied (2016). Given these circumstances, Fisher has not demonstrated that the judge's comment rises to the level of fundamental error.

Section 2 – The State presented sufficient evidence to support the conviction for level 5 felony possession of child pornography.

[16] Fisher challenges the sufficiency of the evidence supporting his level 5 felony possession of child pornography conviction. He asserts that the evidence that he possessed the Alcatel phone was insufficient and that the charging documents and State's closing argument created ambiguity regarding which facts the jury relied upon to find him guilty of one, but not the other, possession of child pornography charge.

[17] In reviewing a challenge to the sufficiency of the evidence, we neither reweigh the evidence nor judge the credibility of witnesses. Anderson v. State, 37 N.E.3d 972, 973 (Ind. Ct. App. 2015), trans. denied. We respect the jury's exclusive province to weigh conflicting evidence, and we consider only the evidence most favorable to its verdict. Id. It is not necessary that the evidence overcome every reasonable hypothesis of innocence. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). We must affirm if the evidence and the reasonable inferences drawn therefrom could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Anderson, 37 N.E.3d at 974.

[18] The relevant statute provides:

A person who, with intent to view the image, knowingly or intentionally possesses or accesses an image that depicts or describes sexual conduct:

․

(2) by a child less than eighteen (18) years of age, or by a person who appears to be a child less than eighteen (18) years of age, if the representation of the image is obscene (as described in IC 35-49-2-1); or

(3) that is simulated sexual conduct involving a representation that appears to be a child less than eighteen (18) years of age, if the representation of the image is obscene (as described in IC 35-49-2-1);

commits possession of child pornography, a Level 6 felony.

Ind. Code § 35-42-4-4(d). An image means, inter alia, a picture, photograph, digitized image, computer generated image, or any pictorial representation. Ind. Code § 35-42-4-4(a)(2). Indiana Code Section 35-49-2-1 describes obscene as lacking in serious literary, artistic, political, or scientific value. Possession of child pornography rises to a level 5 felony if the child depicted is less than twelve years old. Ind. Code § 35-42-4-4(e)(1)(F).

[19] Closely tracking the statutes, the State charged that on or about February 4, 2020, Fisher did knowingly or intentionally possess or access with intent to view a picture, a photograph, a motion picture, a videotape, a digitized image, or a pictorial representation that depicts or describes sexual conduct by a child who appears to be less than eighteen and that lacks serious literary, artistic, political, or scientific value and the child who is depicted or described is less than twelve. Appellant's App. Vol. 2 at 95.

[20] During trial, the State introduced evidence that when authorities spoke with Fisher and seized his personal Samsung phone on February 4, 2020, his phone contained ten hashtag values, seven of which were unique and three duplicates, all identified as known child pornography images, plus one video identified as known child pornography. Further visual inspection revealed thirty-five photos and four videos classified as child pornography, including the three shared/girls pictures saved to Fisher's Samsung phone. As described in graphic detail above, the shared/girls pictures showed three different naked children, each approximately ten years old, exhibiting their genitals. In light of this evidence, we conclude that the State met its burden of proving each element of level 5 felony possession of child pornography.⁶

Section 3 – The trial court did not find improper aggravating circumstances.

[21] Fisher argues that the trial court improperly used the statutory classification of child molestation as a crime of violence as an aggravating circumstance in sentencing him. Fisher also questions the use of the age of the victims and the discrepancy between their age and his as aggravating circumstances.

[22] Sentencing decisions rest within the sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g 875 N.E.2d 218. So long as the sentence is within the statutory range, it is subject to review only for an abuse of discretion. Id. An abuse of discretion occurs where 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. A trial court may abuse its discretion by, inter alia, entering a sentencing statement that includes aggravating and mitigating factors that are unsupported by the record or improper as a matter of law. Id. at 490-91.

[23] The trial court first found that Fisher was not a credit-restricted felon and then outlined its sentencing reasoning as follows:

[W]hen I'm looking at the aggravating circumstances, I find first that, although Mr. Fisher has – does not have a lengthy criminal history, the PSI shows that he actually has convictions. Both are misdemeanors in 2013 and 2018.[7] I don't place a lot of weight on that. But it is an aggravating circumstance because he does have a history of criminal behavior. No juvenile delinquencies but adult criminal behavior. So it is an aggravating circumstance, although I don't put a lot of weight on that particular aggravator.

I find that the victims of the offense were less than 12 years of age at the time the person committed the offense. Victim one, and I'm just going to refer as initials of NL, was, depending on the time frame of the charging information, was six or seven years old. Victim two, AL, eight to nine years old, based upon the time frame within the charging information. And I find that to be a particularized circumstance. And the reason why I find that is that because Mr. Fisher, again, talking about time frame of the – within the charging information, between 32 and 33 years of age, and that disparity of the age between Mr. Fisher and the two victims, is more than just the element of the crime. You know, just more than just under the age of 14. To me that's significant. You're talking about children this age. I think that's where tender years terminology comes in. And so I find that that is – I think it's a particularized circumstance, and so I do find that as an aggravating circumstance.

I also find as an aggravating circumstance that Mr. Fisher was in a position of having care, custody, control of the victims of the offense. The evidence at the trial was that Mr. Fisher was babysitting the children at night while mother was at work. He clearly was placed in a position of trust with the two children and clearly violated that trust in the most egregious fashion that you can violate a trust when you're being left to care for children. And so I find that to be an aggravating circumstance.

I also find as an aggravating circumstance, although it's not contained in the presentence investigation report, that this is a crime of violence. I believe Mr. Fisher committed a crime of violence as defined by IC 35-50-1-2 § (12), because it is child molesting as defined under IC 35-42-4-3, and he knowingly committed the offense – or within hearing of an individual that was less than 18 years of age at the time the person – the time that he committed the offense, and the person that could have heard that offense being committed was not a victim of the offense.

And the reason I find that is an aggravating circumstance is that, you know, the crime was committed when victim one, victim two, and their sibling, I'll refer as [RL], were in the home. These offenses happened at different times with the two particular victims, but the other victim was present in the home and was in the presence or could have heard that this crime being committed. And that again, at the time that these offenses occurred, victim one would have been between six and seven years of age. Victim two would have been eight, nine years of age, and [RL] would have been between seven and eight years of age. So I find that that is also an aggravating circumstance.

Tr. Vol. 3 at 170-72 (emphases added).⁸

[24] The lengthy excerpt above provides the full context of the trial court's sentencing rationale and makes clear that the judge did not use the statutory classification of child molestation as a crime of violence, by itself, as an aggravating circumstance. Rather, the trial court found as a proper aggravating circumstance that Fisher committed a crime of violence and knowingly committed the offense in the presence or within hearing of an individual who was less than eighteen years old and was not the victim of the offense. See Ind. Code § 35-38-1-7.1(a)(4) (specifically listing commission of crime of violence within presence/hearing of child who is not victim of molestation as aggravating circumstance). Evidence that A.L. saw Fisher molest N.L., that N.L. saw Fisher molest A.L., and that the young sibling of A.L. and N.L. was in the house during the crimes, supported the use of this aggravating circumstance.

[25] We turn next to Fisher's argument about age. Generally, where the age of the victim is a material element of the crime, the victim's age may not be used as an aggravating circumstance. Kien v. State, 782 N.E.2d 398, 414 (Ind. Ct. App. 2003), trans. denied. “However, the trial court may properly consider the particularized circumstances of the factual elements as aggravating circumstances.” Stewart v. State, 531 N.E.2d 1146, 1150 (Ind. 1988). For example, a trial court may properly consider as aggravating the age of the victim when the trial court considers that the victim was of a “tender age.” Id.; see also Buchanan v. State, 767 N.E.2d 967, 971 (Ind. 2002). Our supreme court has noted that “[t]he younger the victim, the more culpable the defendant's conduct.” Hamilton v. State, 955 N.E.2d 723, 727 (Ind. 2011).

[26] Here, the trial court specifically referenced the “tender years” of the young victims in contrast to Fisher's age. A.L. was only eight or nine years old and N.L. just six or seven years old when their working mother's thirty-two- or thirty-three-year-old boyfriend molested them in the night. This was not a mistake of youth or immaturity. By the time Fisher performed or submitted to fondling or touching both young girls with the intent to arouse or satisfy the sexual desires of the children or himself, he had been in the service for eight years, worked, and been married. The discrepancy in age (as well as life experience) was stark, noteworthy, and a proper particularized circumstance. The trial court appropriately treated the victims’ young ages and the discrepancy between theirs and their molester's age as an aggravating circumstance because it set forth particularized circumstances justifying such treatment. See McCarthy v. State, 749 N.E.2d 528, 539 (Ind. Ct. App. 2001). In sum, we find no abuse of discretion regarding aggravating circumstances.

Section 4 – Fisher has failed to carry his burden to show that his sentence was inappropriate based on the nature of the offenses and his character.

[27] Fisher maintains that his sentence was inappropriate and should be reduced. Pursuant to Indiana Appellate Rule 7(B), we “may revise a sentence authorized by statute if, after due consideration of the trial court's decision, [we find] that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Fisher has the burden to show that his sentence is inappropriate. Anglemyer, 868 N.E.2d at 494. Although Rule 7(B) requires us to consider both the nature of the offense and the character of the offender, the appellant is not required to prove that each of those prongs independently renders his sentence inappropriate. Reis v. State, 88 N.E.3d 1099, 1104 (Ind. Ct. App. 2017). Rather, the two prongs are separate inquiries that we ultimately balance to determine whether a sentence is inappropriate. Connor v. State, 58 N.E.3d 215, 218 (Ind. Ct. App. 2016).

[28] As we review a sentence, our main role is to leaven the outliers rather than necessarily achieve the perceived correct result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We look to ensure the sentence was not inappropriate. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). Aside from the length of a sentence, we also focus on where a sentence will be served. See Livingston v. State, 113 N.E.3d 611, 613 (Ind. 2018). “[S]entencing is principally a discretionary function in which the trial court's judgment should receive considerable deference.” Cardwell, 895 N.E.2d at 1222. “Such deference should prevail 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). In assessing the nature of the offenses and the character of the offender, “we may look to any factors appearing in the record.” Boling v. State, 982 N.E.2d 1055, 1060 (Ind. Ct. App. 2013).

[29] In looking at the nature of offenses, we note that the advisory sentence “is the starting point the Legislature selected as appropriate for the crime committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). The advisory sentence for a level 4 felony is six years, with a range of two through twelve years. Ind. Code § 35-50-2-5.5. The advisory sentence for a level 5 felony is three years, with a range of one through six years. Ind. Code § 35-50-2-6. For each of Fisher's two convictions for level 4 child molestation, the trial court sentenced him to twelve years, with eleven years executed and one year of probation. For his level 5 felony possession of child pornography conviction, Fisher received a six-year sentence, with five years executed and one year of probation. The judge ordered the sentences to be served consecutively, thus resulting in twenty-seven years executed plus three years of probation.⁹

[30] Fisher argues that his offenses did not present atypical facts for level 4 felony child molestation. Acknowledging the position of trust and age discrepancy, Fisher questions whether the harm suffered by children victimized by a thirty-two-year-old would be of a higher magnitude than those victimized by a younger perpetrator. As for his character, he highlights his employment, honorable discharge after eight years of navy service, and lack of serious prior criminal history.

[31] Our perspective of the nature of Fisher's offenses and of his character differs from his view. We reiterate: S.L. entrusted Fisher, her boyfriend, to watch her son and two daughters at her home while she worked night shifts. Rather than keeping the young children safe and caring for them, Fisher, on more than one occasion, molested six- to seven-year-old N.L. and eight- to nine-year-old A.L. while their brother was in the same house. When the sisters awoke with nightmares, Fisher did not comfort them; he requested that the little girls remove their clothes and enter his bed, where he could touch them and have them touch him for his sexual gratification. Not only did each prepubescent girl personally endure Fisher's victimization, but each was further traumatized by witnessing him do the same activities to her sister. Fisher's conduct was not a onetime mistake by someone too young or inexperienced to know better. In addition, during the relevant time frame, Fisher was accessing, saving, and storing numerous pornographic images of children (some close in age to A.L. and N.L.) on his personal phone. The authorities did not find just one questionable image on his phone but multiple pornographic pictures of children.

[32] Fisher's character shone through when he alleged without evidence that S.L. and the girls’ biological father sexually abused A.L. and N.L. At trial, Fisher testified that he did not report such alleged child sexual abuse to authorities. Similarly, Fisher claimed that A.L. and N.L. rubbed up against his penis sexually on several occasions, yet he never notified social services, police, or other officials regarding this obviously inappropriate sexual behavior. Fisher's blaming of his victims and his victims’ parents, coupled with his failure to report clearly serious, inappropriate sexual conduct of and toward children, outweigh whatever positive examples of his character might be gleaned from his employment, time in the service, or limited criminal history.

[33] Fisher has not met his burden to show compelling evidence portraying his offenses or his character in a positive light such as would overcome our deference to the trial court's sentencing discretion. Accordingly, we affirm his sentence.

[34] Affirmed.

FOOTNOTES

1.   When media such as pictures or video are recovered from a device, each file has a “unique signature,” or hash value, calculated by an algorithm. Tr. Vol. 2 at 220. A computer then compares the hash value to a hash set of “pictures and videos of identified known child victims from previous cases throughout the world” and looks for a match. Id.

2.   Kaizer explained that, unlike child pornography, child exploitative does not contain graphic sexual involvement with children but rather is composed of nudity or suggestive photos. He provided two hypothetical examples of child exploitative: a child in underwear (not nude) or a nude child playing at a nudist colony. Tr. Vol. 2 at 221.

3.   An amended information alleged that Fisher committed the level 4 child molesting between January 1, 2018 and December 25, 2019.

4.   Given the demands routinely placed upon trial judges, they do not necessarily have the luxury of time to parse each word as precisely as they might have in retrospect. However, the preferred practice would be to hold a sidebar outside the presence of the jury thus avoiding any such concern.

5.   The Court read Instruction 21 as follows: “During the trial, I may rule that certain questions may not be answered and/or that certain exhibits may not be allowed into evidence. You must not concern yourselves with the reason for the rulings. My rulings are strictly controlled by law. Occasionally, I may strike evidence from the record after you have already seen or heard it. You must not consider such evidence in making your decision. Your verdict should be based only on the evidence admitted and the instructions on the law. Nothing that I sa[y] or do is intended to recommend what facts or what verdict you should find.”

6.   Fisher's attempt to inject ambiguity into the verdict by claiming confusion regarding the evidence of the Alcatel phone is contradicted by the State's linking of the Alcatel phone to the child exploitation charge, for which Fisher was found not guilty. Moreover, we do not review jury verdicts in criminal cases “on grounds that they are inconsistent, contradictory, or irreconcilable.” Beattie v. State, 924 N.E.2d 643, 649 (Ind. 2010).

7.   Fisher's two convictions were alcohol-related misdemeanors. For his 2013 conviction of driving under the influence of alcohol, Fisher received a sentence of one year of probation plus a fine. His 2018 conviction, for operating a vehicle with alcohol concentration of .15 or more, led to a one-year sentence, suspended to probation. A 2020 charge of misdemeanor domestic battery was dismissed without prejudice in 2022.

8.   Fisher raises no issue with the position of trust or his prior legal history being used as aggravating circumstances. The court weighed the former more than the latter.

9.   We note that for purposes of Rule 7(B) review, a “maximum sentence is not just a sentence of maximum length, but a fully executed sentence of maximum length” and that “[a]nything less harsh, be it placement in community corrections, probation, or any other available alternative to prison, is simply not a maximum sentence.” Jenkins v. State, 909 N.E.2d 1080, 1085-86 (Ind. Ct. App. 2009), trans. denied. Hence, Fisher's sentence is not a maximum sentence.

Crone, Judge.

Vaidik, J., and Altice, J., concur.