Austin L. Cohee, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. (2026)

MEMORANDUM DECISION

Statement of the Case

[1] Austin L. Cohee appeals after a bench trial from his conviction of and sentence for one count of Level 1 felony child molesting. After reviewing the issues presented, we conclude that he has not established reversible error as to his conviction or persuaded us that his sentence is inappropriate. Consequently, we affirm.

Issues

[2] The following issues are presented in Cohee's appeal:

I. Whether there is sufficient evidence to support his conviction of Level 1 child molesting;

II. Whether the trial court erred by allowing the State to amend the charging information with respect to the range of dates in which the offense was alleged to have occurred;

III. Whether the trial court erred by admitting certain exhibits into evidence;

IV. Whether he is entitled to relief under Criminal Rule 4(A); and

V. Whether his sentence is inappropriate such that it warrants revision under Indiana Appellate Rule 7(B).

Facts and Procedural History

[3] In the late spring of 2021, when M.B. was thirteen years old, M.B.’s mother allowed Cohee, her then twenty-five-year-old nephew, to live in her home. M.B.’s mother and father additionally supported Cohee by providing transportation to work early in the morning. Because of Cohee's work schedule M.B.’s parents went to bed early.

[4] M.B.’s father was an alcoholic and her parents were in the process of divorcing. M.B., who had five younger siblings, understood the family dynamics better than her siblings. Her parents’ marital struggles placed a greater strain on her. And M.B. had body-image issues, which included anorexic tendencies. After he moved in, Cohee spent a lot of time socializing with M.B. in the evenings, staying up late with her to talk about her life and feelings.

[5] In the summer of 2021, Cohee introduced M.B. to drug use. He shared that he was using drugs and asked her if she wanted to try some. He taught her how to crush pills with playing cards and kitchen spoons and inhale the drugs through her nose. And he shared methods to reduce the burning sensation in her nose left by the pills. Cohee would leave the house on the weekends, but he enabled M.B.’s drug use almost daily throughout the weekdays.

[6] Gradually, Cohee's evening talks with M.B. turned to the topic of sex. When M.B. was having “boy problems” Cohee told her that “they aren't worth it, if you were my age, you know, you'd be perfect, you're sexy, you know, you're great.” Tr. Vol. II, p. 168. M.B. said she felt that these comments “weren't quite right” but did not know how to react to them. Cohee discussed pornography with her and shared his preference. He showed M.B. pictures of women, on one occasion saying that a short girl in one of the photographs was “fun sized” and that he preferred “fun sized” girls. Id. at 169. He took a photograph of M.B.’s behind while she was wearing shorts, showed it to her, and said she “looked good.” Id. at 169-70. On another occasion, Cohee approached M.B. from behind, grabbed her waist, and told her that her hips were attractive.

[7] On the first occasion of sexual abuse, Cohee and M.B. watched a movie and then he pulled her onto his lap. M.B. stood up and went to the bathroom where she observed that she was shaking with nervousness. She filmed a video of her reaction on her phone. When M.B. returned, Cohee guided her onto his lap once more, grabbing her and kissing her. He kissed her for several minutes before kneeling on the floor in front of her, removing her pants, and touching her “very aggressively.” Id. at 173. He put his fingers inside her vagina and his mouth on her vagina, attempting to stimulate her. He did this for ten to fifteen minutes and told her that he wanted her to experience an orgasm.

[8] Cohee repeatedly demanded to know if she had had an orgasm. M.B. replied she had, “trying to get the situation over with.” Id. at 173. Cohee then took her out into the garage where they smoked cigarettes as they had frequently done before. M.B. “didn't really know how to feel. [She] was kind of just shocked, kind of just staring off.” Id. She felt pain in her vagina for three days. Afterwards, Cohee remarked to her that “a long time ago” it was “normal” for a girl her age to marry a man his age. Id. at 174.

[9] On the second occasion of sexual abuse, Cohee and M.B. were using drugs. He grabbed her and said, “come here,” which M.B. recognized was “something he would normally say before kissing” her. Id. at 175. M.B. told him that she did not want physical touching. Cohee said that was fine but then put his face in her crotch area and wrapped his arms around her. Cohee told M.B. that he was allowed to do that because M.B. did not want “to do anything else.” Id. at 177. M.B. took several short videos of this incident.

[10] Cohee moved out of M.B.’s home in August 2021. Around that time, Cohee texted M.B. asking “everything was consensual right, just want to make sure there's no hard feelings, I don't want anybody to find out, so let's keep it between us.” Id. at 180. He also asked her to delete these messages from her phone. M.B. complied.

[11] M.B. disclosed Cohee's abuse to several of her friends. She was anxious because Cohee was planning to visit her family. M.B. disclosed Cohee's abuse to her mother a few days later. Her mother contacted police who began an investigation. The police contacted the Department of Child Services and told M.B.’s parents to arrange a forensic interview. Greenwood Police Department Detective Kortney Burrello, a trained and certified forensic interviewer, interviewed M.B., obtained her cell phone, and asked Greenwood Police Department Detective Brian Swisher to retrieve data from the phone.

[12] Detective Swisher retrieved the data on M.B.’s phone. That data included Snapchat information involving conversations between M.B.’s phone and another person's phone. Photographs and a video of M.B. were also retrieved from the phone. At the conclusion of the investigation, officers sought an arrest warrant for Cohee.

[13] The arrest warrant was issued on May 12, 2022, but was not served until April 5, 2024. The court appointed counsel for Cohee at his initial hearing on April 17, 2024. Cohee requested numerous continuances, which were granted by the trial court. On one occasion, Cohee personally addressed the court and claimed to have been held on these charges since February of 2023 in violation of his “due process for a speedy trial because it's over the one year mark.” Id. at 42. Cohee complained about his attorney's representation and demanded different counsel be appointed to represent him. The trial court explained that the appointment of new counsel could result in more delays. Cohee responded that he did not know what to do. The trial court told Cohee to think about what he wanted to do and inform the court whether he wanted new counsel.

[14] On March 27, 2025, Cohee, pro se but still represented by counsel, filed a motion for dismissal, citing Criminal Rule 4(C) and the Sixth Amendment. Cohee's attorney explained at a subsequent pretrial conference that he was not asking for a dismissal, and asked to withdraw from representation of Cohee due to a breakdown in the attorney-client relationship. When the trial court questioned Cohee, he replied, “I just want to put on the record that my year time period has already been up before I even got to this jail.” Id. at 49-50. He also set out complaints about his counsel's representation. The trial court denied Cohee's motion to dismiss, appointed new counsel to represent him, and reset the trial date.

[15] On April 21, 2025, Cohee filed another pro se motion to dismiss, citing Criminal Rule 4. The trial court noted that Cohee was represented by new counsel and, therefore, Cohee's motion “represents prohibited bifurcated representation” and denied it. Appellant's App. Vol. II, p. 14. On May 8, 2025, Cohee asked to certify for interlocutory appeal the court's April 9, 2025 denial of his motion to dismiss. The court denied that motion on May 12, 2025, after which the subject of Cohee's speedy trial rights was not raised again.

[16] On October 14, 2025, the State moved to amend the Level 1 felony child molesting charge and the Level 6 felony contributing to the delinquency of a minor charge by changing the dates to allege that the crimes occurred between July 15, 2021 and August 31, 2021. The original charges alleged that they had occurred from August 1, 2021 to August 31, 2021. The trial court heard argument on the State's motion at the final pretrial conference on October 20, 2025. Cohee stated that he “would object just for the record” that the amendment is “extending the period (indiscernible) from four weeks to six weeks.” Tr. Vol. II, p. 83. Cohee conceded that “case law as it stands right now” allows a “fairly broad range” for the charged time period, provided that the time span does not alter the other charged elements. Id. at 84. The trial court granted the State's motion to amend.

[17] During the bench trial, the State moved to admit Exhibit 23, a photograph of M.B., including the caption “my whole body is shaking bro,” into evidence during the testimony of Detective Swisher. Ex. Vol. II, p. 46 (State's Ex. 23). The State offered the evidence to explain the results of the detective's examination of M.B.’s phone. Cohee objected to the admission of the exhibit on hearsay grounds. The State's response was as follows:

Judge, I'm not offering that statement as hearsay—or, I'm sorry, for the truth of the matter. Um, it's—he's testified as to the contents of the phone. Um, and that it's just simply something that's on there. Um, victim will later testify as to what that picture is, but I—that statement I'm not offering for the truth of the matter.

Id. at 151. The trial court overruled the objection.

[18] The State also moved to admit Exhibit 31, which contained three video clips of the second incident during which Cohee lay in M.B.’s lap. Cohee objected to video clip four of Exhibit 31, including the message “my whole body is shaking bro,” from Exhibit 23. Tr. Vol. II, p. 153 (objection); Media Vol. 1, p. 3 (State's Ex. 31). The State offered “the same response” it gave to Cohee's objection to Exhibit 23, namely, “I'm not offering those words contained on that video for the truth of the matter.” Tr. Vol. II, p. 154. The trial court overruled the objection.

[19] At the conclusion of the bench trial, the court found Cohee guilty of Level 1 felony child molesting and not guilty of Level 6 felony contributing to the delinquency of a minor. When sentencing Cohee, the trial court found the following aggravating factors: (1) M.B. was a member of Cohee's family and that Cohee had abused a position of trust as a guest of M.B.’s family; (2) Cohee's criminal record and IRAS score projecting that he was a high risk to reoffend; and (3) the harm to the victim was significant and long-lasting. The trial court found Cohee's relatively young age at the time of the offense and that he had a less than ideal childhood were mitigating factors. The court concluded that the aggravating factors substantially outweighed the mitigating factors. The court sentenced Cohee to thirty years in the Department of Correction (DOC), with twenty-five years executed, three years served in community corrections, two years suspended and two years of probation. Appellant's App. Vol. 2, p. 182. Additionally, the court recommended Cohee's participation in purposeful incarceration and recovery programs while incarcerated and stated it would consider sentence modification after Cohee had served ten actual years. The court further found that Cohee was an offender against children, a sexually violent predator, a sex offender, and a sex or violent offender.

Discussion and Decision

[20] Cohee now appeals from his conviction and sentence. We address his challenges to both in turn.

I. Sufficiency of the Evidence

[21] Cohee challenges the sufficiency of the evidence to support his conviction of Level 1 felony child molesting. Sufficiency of the evidence claims warrant a deferential standard of review in which we “ ‘neither reweigh the evidence nor judge witness credibility, instead reserving those matters to the province of the [fact-finder].’ ” Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024) (quoting Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018)). A conviction is supported by sufficient evidence if “ ‘there is substantial evidence of probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.’ ”Hancz-Barron, 235 N.E.3d at 1244 (quoting Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015)). In conducting this review, we consider only the evidence that supports the fact-finder's determination, not evidence that might undermine it. Id. We affirm the conviction “ ‘unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the [judgment].’ ” Sutton v. State, 167 N.E.3d 800, 801 (Ind. Ct. App. 2021) (quoting Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007)).

[22] Cohee was convicted of one count of Level 1 felony child molesting. A person commits child molesting by knowingly or intentionally performing or submitting to sexual intercourse or “other sexual conduct” with a child under fourteen years old. Ind. Code § 35-42-4-3(a). The offense is a Level 1 felony if committed by a person at least twenty-one years old. Id. “ ‘Other sexual conduct’ means an act involving: (1) a sex organ of one (1) person and the mouth or anus of another person; or (2) penetration of the sex organ or anus of a person by an object.” Ind. Code § 35-31.5-2-221.5 (2014).

[23] The evidence at trial reflects that Cohee turned twenty-six years old on August 19, 2021, and was over twenty-one years of age when he molested M.B. M.B. was thirteen years old when Cohee deliberately and aggressively put his fingers inside her vagina and placed his mouth on her vagina, attempting to stimulate her for ten to fifteen minutes. These actions fall within the definition of “other sexual conduct” prohibited by the child molesting statute. And although this additional evidence is not required by statute to be proven, the record shows that Cohee acknowledged his commission of this crime by ordering M.B. not to tell anyone about what he had done and to delete his message ordering her to keep silent. We conclude that the evidence is sufficient to support Cohee's conviction.

[24] We do not find Cohee's arguments to the contrary to be persuasive. He challenges the amended charging information's lack of identification of M.B., saying it “did not identify the victim and did not provide any fact ․describing how the molestation ․ occurred.” Appellant's Br. p. 18. In sum, his attack is on the charging information not the evidence presented at trial. Nevertheless, the resolution of his challenge to the information's contents can be found in the Confidential Victim Identification Notice, filed on May 11, 2022, identifying M.B. and asking the court, pursuant to Indiana Code section 35-40-4-12(a),(b) (omitting sex crime victim names) (2019), to keep the information confidential. Appellant's App. Conf. Vol. II, p. 28; see also Ind. Access to Court Records Rule 5(C)(2) (redaction of names of child witnesses involving sex offenses) (2021).

[25] Next, Cohee argues that the timing of his offense was not shown by the evidence. “Indiana Code § 35-34-1-2(a)(5) requires that an information ‘[state] the date of the offense with sufficient particularity to show that the offense was committed within the period of limitations applicable to that offense.’ ” Love v. State, 761 N.E.2d 806, 809 (Ind. 2002) (quoting Ind. Code § 35-34-1-2(a)(5) (2018)). “The State must also ‘[state] the time of the offense as definitely as can be done if time is of the essence of the offense.’ ” Id. (quoting Ind. Code § 35-34-1-2(a)(6) (2018)). “Where time is not of the essence of the offense, however, it is well established that the State is not confined to proving the commission on the date alleged in the affidavit or indictment, but may prove the commission at any time within the statutory period of limitations.” Love, 761 N.E.2d at 809 (internal quotations omitted).

[26] Time is not of the essence here largely because M.B. would not have reached fourteen years of age until October of 2021 and the offenses were alleged to have occurred from July 15, 2021 and August 31, 2021. See Appellant's App. Conf. Vol. II, pp. 28, 124-27. Moreover, M.B. testified that Cohee moved in with her family “around May” when she was thirteen years old. Tr. Vol. II, p. 157. That date was corroborated by M.B.’s mother who testified that Cohee moved into her home around April or May of 2021. Id. at 93. And he asked M.B. if she wanted to try drugs in June. Id. at 161-62. M.B. recorded a video of herself shaking on the night he molested her. A forensic analysis of her phone revealed that the video was created on August 3, 2021. Cohee's argument fails.

[27] Cohee also argues that his conviction should be reversed because M.B.’s account was not corroborated by other evidence and because the court found him not guilty of contributing to the delinquency of a minor. Cohee's arguments fail for the following reasons. First, “the uncorroborated testimony of a child victim is sufficient to support a conviction for child molesting.” Stewart v. State, 768 N.E.2d 433, 436 (Ind. 2002). And “[a] court reviewing a claim of inconsistent verdicts will not engage in speculation about the thought processes or motivation for reaching a particular verdict.” Vela v. State, 832 N.E.2d 610, 614 (Ind. Ct. App. 2005). “The fact finder is best positioned to judge the credibility of these witnesses, is free to credit or discredit testimony, and weigh conflicting evidence.” Tharp v. State, 942 N.E.2d 814, 816 (Ind. 2011).

[28] We conclude that there is sufficient evidence to support Cohee's conviction.

II. Amendment of Charging Information

[29] Cohee says that the trial court erred by granting the State's motion to amend the charging information. The State originally charged Cohee with being at least twenty-one years of age between August 1, 2021 and August 31, 2021 when he knowingly and/or intentionally performed and/or submitted to other sexual conduct with M.B. who was under fourteen years of age. See Appellant's App. Vol. 2, p. 24. The amended charge changed the range of dates by adding around two weeks, alleging that the offense occurred sometime between July 15, 2021, and August 31, 2021. See id. at 126. He claims that the amendment was substantive and not of form because he no longer had the same defense. Appellant's Br. p. 21. He argues that “[i]f the alleged crime occurred between July 15, 2021, and July 31, 2021, [he] could have argued that he should be acquitted.” Id.

[30] “ ‘We review a trial court's decision on whether to permit an amendment to a charging information for an abuse of discretion.’ ” Perry v. State, 267 N.E.3d 20, 36 (Ind. Ct. App. 2025) (quoting Hobbs v. State, 160 N.E.3d 543, 551 (Ind. Ct. App. 2020), trans. denied), trans. denied. However, here, Cohee did not object to the State's motion to amend the charging information. Because the issue is waived, he presents his argument as a fundamental error claim.

[31] “Fundamental error is an extremely narrow exception that allows a defendant to avoid waiver of an issue.” Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). “It is error that makes ‘a fair trial impossible or constitute[s] clearly blatant violations of basic and elementary principles of due process ․ present[ing] an undeniable and substantial potential for harm.’ ” Id. (quoting Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002)). “This exception is available only in ‘egregious circumstances.’ ” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (quoting Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003)). He argues that the trial court's decision constituted fundamental error because it was granted two days before trial and he “did not have a full opportunity to defend against the State's charge(s).” Appellant's Br. p. 22.

[32] “In general, Indiana Code section 35-34-1-5(b) permits the State to amend a charging information even in matters of substance at any time before the commencement of trial so long as the amendment does not prejudice the defendant's substantial rights.” Gaby v. State, 949 N.E.2d 870, 874 (Ind. Ct. App. 2011). “The ‘substantial rights’ of a defendant include a right to sufficient notice and an opportunity to be heard regarding the charge.” Id. (quoting Brown v. State, 912 N.E.2d 881, 890 (Ind. Ct. App. 2009), trans. denied). “ ‘Ultimately, the question is whether the defendant had a reasonable opportunity to prepare for and defend against the charges.’ ” Id. “The substantial rights of the defendant are not prejudiced if: (1) a defense under the original information would be equally available after the amendment, and (2) the defendant's evidence would apply equally to the information in either form.” Gaby, 949 N.E.2d at 874.

[33] Here, the amendment to the charging information added a few weeks in July of 2021 to the range of dates during which the acts were alleged to have occurred. Cohee's defense was a general denial of the accusations. His evidence that he did not commit the offense was equally available before and after the amendment. And Cohee had a reasonable opportunity to prepare for and defend against the charge. The affidavit of probable cause filed in 2022 explained that the charged crimes occurred in August 2021. “While there is no fixed ‘minimum period of time which must be allowed by the court in every case’ for preparing a defense, the ‘common scenario [is] two or more months.’ ” Hobbs v. State, 160 N.E.3d 543, 551 (Ind. Ct. App. 2020) (quoting Howard v. State, 122 N.E.3d 1007, 1014, 1015 (Ind. Ct. App. 2019), trans. denied), trans. denied. Cohee had three years during which to explore the State's evidence and prepare his defense. Furthermore, the testimony at trial established that the molestation occurred in August during the range of dates originally pleaded in the charging information. We conclude that there was no error let alone fundamental error regarding this claim.

III. Admission of Evidence

[34] Cohee also challenges the trial court's decision to admit certain exhibits into evidence. “A trial court has broad discretion in ruling on the admissibility of evidence.” Bennett v. State, 5 N.E.3d 498, 505 (Ind. Ct. App. 2014), trans. denied. “Accordingly, we will reverse a trial court's ruling on the admissibility of evidence only when the trial court abused its discretion.” Id. “An abuse of discretion involves a decision that is clearly against the logic and effect of the facts and circumstances before the court.” Id. at 505-06.

[35] Exhibit 23 is a still photograph of M.B. over which the words “my whole body is shaking bro” appear. Electronic Ex. Vol. II, p. 46 (State's Ex. 23). The fourth video clip of Exhibit 31 is a portion of the video from which Exhibit 23 was taken, including the caption. Media Vol. 1, p. 3 (State's Ex. 31). The exhibits were admitted at trial over objection during Detective Swisher's testimony. Photographs or videos are not automatically hearsay. See Pritchard v. State, 810 N.E.2d 758, 760 (Ind. Ct. App. 2004) (prison video not hearsay); Vaughn v. State, 13 N.E.3d 873, 880 (Ind. Ct. App. 2014) (still photos from drug buy video admissible non-hearsay), trans. denied.

[36] M.B. later testified. She identified the exhibits as pictures and video clips which she recorded on her phone. She also explained that the caption, the video, and the pictures represented how she felt at the time of the sexual abuse.

[37] On appeal, Cohee contends that the exhibits are hearsay but does not explain the basis for that contention. Appellant's Br. pp. 23-24. He further alleges that the State deceived the trial court by “misrepresent[ing] that this evidence would not be used for the truth of the matter asserted.” Id. at 25. We can find no support for his arguments in the record.

[38] In response to Cohee's hearsay objections as to the statement contained in the caption on both exhibits, the State said, “I'm not offering [the Exhibits] for the truth of the matter.” Tr. Vol. 2, p. 151. The State continued, “[Detective Swisher has] testified as to the contents of the phone. Um, and that [the exhibit is] just simply something that's on [the phone].” Id. The State concluded by saying, “Um, victim will later testify as to what that picture is[.]” Id. Consistent with the State's representations to the court, M.B. later testified, identifying the exhibits as pictures and video clips which she recorded on her phone. She also explained that the caption, the video, and the pictures represented how she felt at the time of the sexual abuse.

[39] When Cohee lodged his hearsay objection during Detective Swisher's testimony, the State responded that it was not offering the exhibits for the truth of the matter asserted. The officer's testimony established that the photos and videos in question originated from M.B.’s phone and that they were created on a date within the range of dates alleged in the amended charging information. The trial court did not abuse its discretion by admitting the exhibits for that purpose at that time.

[40] And Cohee's counsel correctly did not renew his hearsay objection during M.B.’s testimony. At that point, M.B. identified the photograph and videos and testified that she created them on her phone. She further testified that she was shaking during the sexual abuse, confirming the contents of the caption on the exhibits. The caption on the exhibits was properly used as substantive evidence at that point because they described M.B.’s present sense impressions. Under Evidence Rule 803(1) a statement must describe or explain an event, condition, or transaction, must be made during or immediately after the event, condition, or transaction, and must be based on the declarant's personal perception of the event, condition, or transaction. Stott v. State, 174 N.E.3d 236, 243 (Ind. Ct. App. 2021).

[41] We conclude that the trial court did not abuse its discretion by admitting the exhibits.

IV. Criminal Rule 4

[42] Cohee contends that his speedy trial rights under Criminal Rule 4(A) were violated. As Cohee concedes on appeal, there is no evidence that he requested a speedy trial under Criminal Rule 4(B). See Appellant's Br. p. 26. Additionally, he concedes that he “does not appear to be entitled to relief under Criminal Rule 4(C).” Id. at 27. Thus, we analyze his appellate claim under Criminal Rule 4(A).  ¹

[43] Criminal Rule 4(A) provides as follows:

If a defendant is detained in jail on a pending charge, a trial must be commenced no later than 180 days from the date the criminal charge against the defendant is filed, or from the date of arrest on such charge, whichever is later. Delays caused by a defendant, congestion of the court calendar, or an emergency are excluded from the time period. Any defendant detained beyond the time period of this section must be released on recognizance but continues to be subject to the criminal charge within the limitations provided for in section (C).

[44] The State makes a convincing argument that Cohee has waived this claim because he did not make an argument under Criminal Rule 4(A) in the trial court. See Appellee's Br. p. 27. We agree. The issue is waived by failing to raise at trial. Mills v. State, 512 N.E.2d 846, 850 (Ind. 1987).

[45] Nevertheless, Cohee's claim, even if properly preserved, would not entitle him to relief. “A defendant held in jail for more than six months is not entitled to discharge from prosecution or dismissal of charges under Criminal Rule 4(A); rather, the defendant is merely entitled to prompt release on his own recognizance.” Hammann v. State, 210 N.E.3d 823, 830-31 (Ind. Ct. App. 2023), trans. denied. And the issue of his release under Criminal Rule 4(A) is moot after a completed trial. Mills, 512 N.E.2d at 850.

[46] We find no error here.

V. Sentencing Under Indiana Appellate Rule 7(B)

[47] Cohee asks us to review his sentence for appropriateness under Indiana Appellate Rule 7(B). “Appellate Rule 7(B) empowers appellate revision if the reviewing court finds the sentence is ‘inappropriate in light of the nature of the offense and the character of the offender.’ ” Cramer v. State, 240 N.E.3d 693, 698 (Ind. 2024) (quoting App. R. 7(B)). “Even if the trial court carefully adhered to the sentencing procedure, this Court has the authority under Appellate Rule 7(B) to modify the sentence if we deem it inappropriate based on the nature of the offense and the character of the offender.” Cramer, 240 N.E.3d at 698.

[48] Appellate Rule 7(B) serves “to leaven the outliers, rather than to achieve a perceived ‘correct’ sentence,” McCallister v. State, 91 N.E.3d 554, 566 (Ind. 2018), allowing revision of a sentence if the court finds the trial court's decision to be inappropriate in consideration of the nature of the offense and the offender's character. Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R. 7(B)). “Ultimately, our constitutional authority to review and revise sentences boils down to our collective sense of what is appropriate,” Taylor v. State, 86 N.E.3d 157, 165 (Ind. 2017) (cleaned up), an act that is reserved for “exceptional” cases. Gibson v. State, 43 N.E.3d 231, 241 (Ind. 2015). It is up to the defendant to “persuade the appellate court that his or her sentence has met th[e] inappropriateness standard of review.” Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The trial court's sentence is afforded considerable deference and will stand unless “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).

[49] Regarding the nature of the offense, we begin with the statutory range. A Level 1 felony as charged in this case carries a sentencing range of between twenty and fifty years with an advisory sentence of thirty years. Ind. Code § 35-50-2-4(c) (2014). Cohee received the advisory sentence with twenty-five years executed, three years served in community corrections, two years suspended and two years of probation. And the trial court stated it would consider sentence modification after Cohee had served ten actual years. The court recommended Cohee's participation in purposeful incarceration and recovery programs while incarcerated and stated it would consider sentence modification after Cohee had served ten actual years. The court further found that Cohee was an offender against children, a sexually violent predator, a sex offender, and a sex or violent offender. We are not persuaded that this sentence is inappropriate.

[50] In assessing the nature of the offense, we compare “the defendant's actions with the required showing to sustain a conviction under the charged offense” and identify whether there is “ ‘anything more or less egregious’ ” about the defendant's offense that distinguishes it from the “ ‘typical offense.’ ” McFarland v. State, 153 N.E.3d 369, 373 (Ind. Ct. App. 2020) (quoting Moyer v. State, 83 N.E.3d 136, 142 (Ind. Ct. App. 2017), trans. denied). Cohee acknowledges that M.B. is his cousin, but argues that “his alleged conduct was no more egregious than the facts necessary to prove the elements of the crime.” Appellant's Br. p. 35. He offers that “[t]here was only one instance of alleged molestation as Count II was dismissed” and notes that he was acquitted of the contributing to the delinquency of a minor charge. Id.

[51] The record, however, supports the conclusion that Cohee's actions exceeded the elements required for commission of the offense. M.B. testified that Cohee's sexual abuse involved both digital penetration of her vagina and cunnilingus for an extended period of time. Only one such act is required to establish the commission of the offense. This evidence does not put his crime in a positive light. The nature of the offense does not warrant revision of his sentence.

[52] As for the character of the offender, Cohee has not supported his request for revision with compelling evidence putting his character in a positive light. Cohee offers that he had poor childhood experiences. Appellant's Br. p. 37. “Evidence of a difficult childhood, however, generally warrants little, if any, mitigating weight.” Lewis v. State, 116 N.E.3d 1144, 1155 (Ind. Ct. App. 2018) (quotation omitted), trans. denied. He seeks leniency because “he is addicted to drugs and acknowledges having a drug problem.” Appellant's Br. p. 39. While we appreciate Cohee's recognition of his substance abuse challenges, “[a] trial court does not abuse its discretion in considering a history of drug abuse to be an aggravator, rather than a mitigator.” Scott v. State, 162 N.E.3d 578, 582 (Ind. Ct. App. 2021). And a trial court does not abuse its discretion in finding a history of addiction was not a mitigating circumstance. Rose v. State, 810 N.E.2d 361, 366-67 (Ind. Ct. App. 2004). And Cohee's willingness to sanction drug abuse when in his cousin's presence reflects negatively on his character.

[53] We agree with the trial court's assessment of the aggravating and mitigating factors in this case, which support the sentence imposed. Cohee abused his position of trust with M.B. while he was a guest in his aunt's home. Cohee preyed upon M.B.’s insecurities to sexually victimize her. He attempted to convince her that their relationship was normal. And he violated her dignity by responding to her refusal to engage in sexual activity by groping her and putting his face in her crotch. Cohee had an adult criminal history that included a conviction of Class C misdemeanor possession of paraphernalia. And he was on probation from a 2017 conviction of robbery by force or threat of force while armed. His probation in that case was revoked and he was ordered to serve two years in the DOC.

[54] Cohee has not persuaded us that his sentence is in need of downward revision.

Conclusion

[55] There is sufficient evidence to sustain Cohee's conviction for Level 1 felony child molesting. Additionally, the trial court did not err by allowing the State to amend the information to extend the range of dates for the offense. Furthermore, the trial court did not abuse its discretion by allowing the admission of the challenged exhibits. Cohee has not demonstrated how, after his conviction, he would be entitled to relief under Criminal Rule 4(A), assuming for the sake of argument, that the claim has not been waived. And the trial court's sentencing decision is not inappropriate in light of the nature of the offense and the character of the offender. Thus, we affirm the trial court in all respects.

[56] Affirmed.

FOOTNOTES

1.   Cohee's pro se motions alleged that he was entitled to dismissal under Criminal Rule 4(C) and the Sixth Amendment to the United States Constitution. Appellant's App. Vol. 2, pp. 89-91. The State makes a convincing argument that the issue is waived for our review. See Appellee's Br. p. 27.

Baker, Senior Judge.

Bailey, J., and Weissmann, J., concur.