DAVIS v. STATE (2023)

MEMORANDUM DECISION

[1] Brant Matthew Davis appeals his sentence after he pleaded guilty to Level 4 felony child exploitation and two counts of Level 5 felony possession of child pornography. Davis raises a single issue for our review, namely, whether his aggregate sentence of twenty years, with fourteen years executed in the Department of Correction and six years suspended to supervised probation, is inappropriate in light of the nature of the offenses and his character. We affirm.

Facts and Procedural History

[2] On June 23, 2021, Courtney Russell, a digital forensic analyst with the Tippecanoe County Prosecutor's Office High Tech Crime Unit, received a tip from Dropbox that an account belonging to Davis contained files of suspected child pornography. Analyst Russell accessed the Dropbox account and “observed more than four hundred images of pubescent females” who appeared to be less than eighteen years of age “with their breasts and genitalia exposed.” Appellant's App. Vol. 2, p. 15. Analyst Russell also observed “multiple other images ․ depicting prepubescent females who appeared to be less than 12 years of age exposing their breasts and genitalia.” Id. Analyst Russell then confirmed that the address associated with the Dropbox account in question was Davis's address in West Lafayette.

[3] Officers interviewed Davis, and he admitted to downloading the images and storing them in his Dropbox account. A subsequent search of his cell phone revealed an additional cache of more than 100 similar images and videos, at least one video of which depicted “a prepubescent female who appeared to be less than 12 years of age engaging in sexual conduct by the use of force or the threat of force.” Id. Additional online accounts associated with Davis were later discovered that also contained numerous similar images and videos.

[4] The State charged Davis with seven offenses. He later agreed to plead guilty to one count of Level 4 felony child exploitation and two counts of Level 5 felony possession of child pornography. In exchange, the State dismissed the other four counts and further agreed not to file charges against him arising out of a separate investigation. Davis's plea agreement left sentencing to the trial court's discretion.

[5] The trial court accepted Davis's guilty plea and plea agreement and held a sentencing hearing. Following that hearing, the court found as follows:

The Court finds as aggravating factors: Defendant's criminal history; he was on [p]robation in Carroll County ․ when these offenses were committed; the overall seriousness and circumstances of the offenses (number of images found).

The Court finds as mitigating circumstances: Defendant ple[aded] guilty (diminished by the benefits he received from the plea agreement); he had undiagnosed mental health issues at the time the offenses were committed; he cooperated with law enforcement; and long-term incarceration would cause a hardship for his dependent children.

The Court further finds that the aggravating factors outweigh the mitigating factors.

Id. at 45. The court then sentenced Davis to ten years for the Level 4 felony and five years for each of the Level 5 felonies. The court ordered the sentences to run consecutively to each other, for an aggregate term of twenty years. The court further ordered six years of Davis's sentence to be suspended to supervised probation. This appeal ensued.

Discussion and Decision

[6] Davis asserts that his aggregate sentence of twenty years, with six years suspended, is inappropriate in light of the nature of the offenses and his character. Under Indiana Appellate Rule 7(B), we may modify a sentence that we find is “inappropriate in light of the nature of the offense and the character of the offender.” Making this determination “turns on our sense of 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.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Sentence modification under Rule 7(B), however, is reserved for “a rare and exceptional case.” Livingston v. State, 113 N.E.3d 611, 612 (Ind. 2018) (per curiam).

[7] When conducting this review, we generally defer to the sentence imposed by the trial court. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). Our role is to “leaven the outliers,” not to achieve what may be perceived as the “correct” result. Id. Thus, deference to the trial court's sentence will prevail unless the defendant persuades us the sentence is inappropriate by producing “compelling evidence portraying in a positive light the nature of the offense (such as 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).

[8] Initially, we observe that Davis did not receive the maximum possible sentence. A Level 4 felony carries a sentencing range of two to twelve years with an advisory sentence of six years. Ind. Code § 35-50-2-5.5 (2020). A Level 5 felony carries a sentencing range of one to six years with an advisory sentence of three years. I.C. § 35-50-2-6. Thus, for one Level 4 felony conviction and two Level 5 felony convictions, Davis faced a maximum term of twenty-four years incarceration.

[9] We cannot say Davis's aggregate sentence of twenty years with six years suspended is inappropriate. Regarding the nature of the offenses, Davis asserts that, while “he pleaded to dissemination” of the images, “most of the images were for [ ] personal consumption.” Appellant's Br. at 16. But we agree with the State that the nature of the offenses does not support revision of Davis's sentence. He possessed hundreds of images and videos of child pornography, many of which were of victims under twelve years old and some of which depicted acts of violence in the commission of the sexual offenses. Further, Davis's presents no “compelling evidence portraying in a positive light the nature of the offense[s].” Stephenson, 29 N.E.3d at 122.

[10] Regarding his character, Davis asserts that his criminal history was “minor,” and he had no prior revocations of his placement on probation. Appellant's Br. at 17. But Davis violated his probation when he committed the instant offenses. And we again agree with the State that the nature of the instant offenses reflects Davis's depraved character. Further, Davis presents no compelling evidence of “substantial virtuous traits or persistent examples of good character.” Stephenson, 29 N.E.3d at 122.

[11] Davis's sentence is not inappropriate in light of the nature of the offenses and his character. We therefore affirm his sentence.

[12] Affirmed.

Mathias, Judge.

May, J., and Bradford, J., concur.