John Charles Hupertz, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

[1] After a jury trial, John Charles Hupertz (“Hupertz”) was convicted of three counts of Class A felony child molesting ¹ and two counts of Level 5 felony possession of child pornography ² (“CSAM”)³ and was sentenced to ninety-six years executed in the Indiana Department of Correction (“the DOC”). Hupertz appeals and raises the following restated issues:

I. Whether the trial court abused its discretion by allowing the State to amend the charging information and add the two counts of possession of CSAM;

II. Whether the trial court committed fundamental error in its instruction of the jury; and

III. Whether Hupertz's sentence is inappropriate in light of the nature of his offenses and his character.

[2] We affirm.

Facts and Procedural History

[3] Victim was born in August 2001. From 2005 until 2010, she and her siblings spent many nights at Hupertz's apartment in Michigan City, Indiana. Victim visited Hupertz frequently, a few times a month on weekends, holidays, or at parties. Victim recalled fond memories of spending time with Hupertz, including getting ice cream, going to the park, playing doctor, and jumping on his bed. Hupertz had a two-bedroom apartment, utilizing the second bedroom as an office. Victim and Victim's siblings slept in Hupertz's bed with him when they stayed at his apartment.

[4] When Victim was four years old and in bed next to Hupertz, she woke up to “his hand going down [her] pants and making it [sic] his way with his fingers through [her] underwear and to reach [her] vagina and touch it, circling his fingers.” Tr. Vol. 3 p. 212. She froze and tried to “move his hand away,” but it “just didn't work.” Id. at 214–15. Hupertz digitally penetrated Victim's vagina, which Victim described as painful and lasting “5 to 15 minutes[.]” Id. at 215. Hupertz repeated the same abuse of Victim each time Victim slept in Hupertz's bed, from the time she was four years old until she was six years old. See id. at 219.

[5] Victim also recalled being molested when taking baths at Hupertz's apartment. She would sit crisscross-applesauce in the tub and Hupertz would “kneel down by the bathtub and ․ put his hand in the water ․ [then] make his way towards [her] private parts – [her] vagina.” Id. at 216. Hupertz touched Victim in the same manner he did when Victim was in his bed, circling her vagina with his fingers and digitally penetrating her vagina. See id. at 217. This molestation lasted roughly five minutes and was painful. See id.

[6] When she was six years old, she and Hupertz were in the computer room and Hupertz told her to come over to him. He put Victim on his lap and proceeded to show images of “penises ․ grown-man penises” he had on his computer. Id. at 224. Hupertz then told her not to tell her parents and that it would be their secret.

[7] When Victim was roughly eight or nine years old, she watched a video at school about child abuse which depicted a man grooming a child for abuse. Victim realized that was happening to her but “felt like [she] couldn't tell anybody[,]” and was “really scared and embarrassed.” Id. at 227. Victim was scared and did not want to break up her family or get in trouble, so she decided not to tell anyone about Hupertz's abuse.

[8] When Victim was between seven and ten years old, she and her mother watched fireworks at the beach. They spent the night at Hupertz's apartment because Victim's mother had been drinking heavily. Victim and her mother slept on the pull-out couch in the living room. Hupertz got up in the middle of the night, and he “[knelt] down on the side of the couch, and just did the same thing he’[d] been doing, putting his finger down [her pants] ․ [then] making his way to [her] vagina and eventually making his way under [her] underwear.” Id. at 222. Hupertz again circled her vagina with his fingers and digitally penetrated her vagina. Victim did not make any noise because she “didn't want him to know [she] was awake.” Id. at 223. Victim's mother was “really drunk” and did not hear Hupertz molesting Victim. Id. at 222. Victim recalled the abuse lasting five to ten minutes and again, described it as being painful, and that “[i]t would hurt to pee” afterwards. Id. at 223. On another occasion, Hupertz molested Victim when she sat on his lap at a Fourth of July party in the backyard of her family's home. See Tr. Vol 4 pp. 12, 15. Victim did not recall her age at the party, guessing “like, six.” Id. at 14.

[9] When Victim was approximately ten years old, she stopped staying overnight at Hupertz's apartment. Victim had begun competing in gymnastics and noted that Hupertz attended her gymnastics meets but failed to attend her siblings's sporting activities. At about the same time, Hupertz visited Victim's home in Valparaiso and he would sleep in her bed with her. See id. at 2. Hupertz repeated the same molestation that had occurred at his apartment, touching Victim under her underwear and digitally penetrating her vagina. In order to avoid Hupertz's abuse, she slept on the couch downstairs.

[10] Victim did not report the abuse when she was four years old because she “had no idea ․ what he was doing” and “didn't know how wrong it was.” Tr. Vol. 3 p. 227. However, in February 2021, when Victim was nineteen years old, she reported Hupertz's abuse to law enforcement. Michigan City Police Department (“MCPD”) Chief Marty Corley ⁴ (“Chief Corley”) and Detective Arwen LaMotte began an investigation and interviewed Hupertz on two occasions. Hupertz denied the allegations but did admit to recently viewing child pornography on his computer. As a result, law enforcement obtained a search warrant for his residence and recovered two computers, which were sent to the Indiana State Police forensics laboratory for processing. Tracy Kunstek, a Sergeant with the Indiana State Police digital forensics unit (“Sergeant Kunstek”), analyzed Hupertz's computers and discovered more than 7,000 images of child pornography. Sergeant Kunstek compiled a report detailing her analysis of the computers and forwarded the report to prosecutors.

[11] On February 12, 2021, Hupertz was charged with three counts of Class A felony child molesting (Counts I, II, and III). See Appellant's App. Vol. 2 pp. 28–29. Chief Corley reviewed portions of Sergeant Kunstek's report when it was completed but did not review the report in its entirety until 2024.⁵

[12] On January 8, 2025, the State received a supplemental report on the CSAM. See Tr. Vol. 2 at 135–36. During the final pretrial conference on January 9, 2025, the State informed the trial court that it intended to amend the charging information to add two counts of possession of CSAM. As a result, Hupertz requested a continuance of the jury trial that had been scheduled for February 10, 2025. The trial court granted Hupertz's request and reset the jury trial for March 31, 2025. On January 13, 2025, the State filed a motion for leave to file an amended information adding two counts of possession of CSAM, as Level 5 felonies (Counts IV and V), which was granted by the trial court on February 14, 2025.

[13] A jury trial was eventually conducted from May 12 through May 14, 2025. The jury found Hupertz guilty on all five counts. On August 7, 2025, the trial court sentenced Hupertz to an aggregate sentence of ninety-six years. The trial court imposed thirty-year consecutive sentences for each of the three child molesting counts and three-year consecutive sentences for each of the two CSAM counts. All counts were to be served consecutive to one another and fully executed to the DOC. Hupertz now appeals.

Discussion and Decision

I. Charging Information Amendment

[14] Hupertz argues that the trial court erred when it permitted the State to amend the charging information to include two counts of possession of CSAM (Counts IV and V). See Appellant's Br. p. 12. Specifically, Hupertz argues that the amended counts prejudiced his substantial rights by introducing “inadmissible propensity evidence thereby eviscerating his credibility defense to the [child molest] charges.” Reply Br. p. 5. We generally review decisions to amend the charging information for an abuse of discretion. State v. McFarland, 134 N.E.3d 1027, 1030 (Ind. Ct. App. 2019), trans. denied. “An abuse of discretion occurs when the trial court's judgment is ‘clearly against the logic and effect of the facts and circumstances before it or is contrary to law.’ ” Howard v. State, 122 N.E.3d 1007, 1013 (Ind. Ct. App. 2019) (quoting Waterfield v. Waterfield, 61 N.E.3d 314, 323 (Ind. Ct. App. 2016), trans. denied), trans. denied. Indiana Code section 35-34-1-5 governs the amendment of the charging information, and provides in pertinent part:

(b) The indictment or information may be amended in matters of substance and the names of material witnesses may be added, by the prosecuting attorney, upon giving written notice to the defendant at any time:

․(2) before the commencement of trial;

․

Ind. Code § 35-34-1-5(b); see also Fajardo v. State, 859 N.E.2d 1201, 1203 (Ind. 2007) (explaining “A charging information may be amended at various stages of a prosecution, depending on whether the amendment is to the form or to the substance of the original information.”).

[15] There is no dispute that the amendment in this case was one of substance, because it added two new criminal counts of possession of CSAM. See Fajardo, 859 N.E.2d at 1208. Therefore, the State bore “the burden of proof to show that an amendment [would] not prejudice a defendant's substantial rights.” McFarland, 134 N.E.3d at 1030. “A defendant's substantial rights ‘include a right to sufficient notice and an opportunity to be heard regarding the charge; and, if the amendment does not affect any particular defense or change the positions of either of the parties, it does not violate these rights.’ ” Erkins v. State, 13 N.E.3d 400, 405 (Ind. 2014) (quoting Gomez v. State, 907 N.E.2d 607, 611 (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. at 405–06 (quoting Sides v. State, 693 N.E.2d 1310, 1313 (Ind. 1998), abrogated on other grounds by Fajardo, 859 N.E.2d at 1206–07). Hupertz argues that the State failed to satisfy its burden that “the new charges would not prejudice [his] substantial rights to present his defense to the original charges of child molesting.” Appellant's Br. p. 14.

[16] Hupertz contends that his primary defense of the molestation counts was to attack the credibility of Victim. We fail to see how the additional charges affected Hupertz's ability to assert his defense of the molestation counts. Hupertz advanced his defense strategy in his opening statement and in closing argument, highlighting the contradictions in Victim's testimony. See Tr. Vol. 3 pp. 185–86; Tr. Vol. 4 pp. 190–91.

[17] Further, Hupertz was granted ample time to prepare for the amended charges. Hupertz received multiple continuances of the scheduled trial date. On January 9, 2025, at Hupertz's request, the trial court vacated the February 10, 2025, trial setting over the State's objection and reset trial for March 31, 2025. See Tr. Vol. 2 p. 138; Appellant's App. Vol. 2 p. 17. On March 19, 2025, Hupertz again requested a continuance, which the trial court granted the next day, resetting the trial for May 12, 2025. See id. at 19. The trial court then continued the trial to May 12, 2025, at the State's request. Hupertz requested no further continuances, and the trial was conducted nearly four months after the State sought leave to add the additional counts.

[18] Hupertz also contends that the amendment allowed the State to place propensity evidence before the jury in violation of Indiana Evidence Rule 404 ⁶ and that the State's motivation for seeking the amendment was to defeat his credibility defense, see Appellant's Br. pp. 15–16; Appellant's Reply Br. pp. 5–7. Counts IV and V charged Hupertz with possessing the images, so evidence of possession of the CSAM was direct proof of the material elements of those counts rather than other-act evidence offered to show character. If Hupertz believed that trying the possession counts with the molesting counts would taint the jury's assessment of Victim's credibility, the remedy was a motion to sever. See I.C. § 35-34-1-11(a); see Van Hawk v. State, 275 N.E.3d 954, 973 (Ind. Ct. App. 2026) (determining whether severance was appropriate to promote a fair determination of the defendant's guilt or innocence), trans. denied. He filed none and therefore has waived the issue of the joinder of the CSAM counts to the prior molesting counts. See I.C. § 35-34-1-12 (addressing waiver of the right to severance).

[19] Based on the foregoing, we cannot say the trial court abused its discretion in granting the State's motion to amend the charging information.

II. Jury Instruction

[20] Hupertz challenges the adequacy of the trial court's jury instructions concerning the unanimous jury verdicts. However, Hupertz raises these challenges for the first time on appeal. We generally review claims of error in jury instructions for an abuse of discretion. Dunn v. State, 230 N.E.3d 910, 914 (Ind. 2024) (citing Miller v. State, 188 N.E.3d 871, 874 (Ind. 2022)). When “a defendant fails to object to an instruction, he waives appellate review.” Miller, 188 N.E.3d at 874 (citing Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016)). Further, “[f]ailure to tender an instruction results in waiver of the issue for review.” Baker v. State, 948 N.E.2d 1169, 1178 (Ind. 2011) (quoting Ortiz v. State, 766 N.E.2d 370, 375 (Ind. 2002)). However, “we may still review the instruction for fundamental error, a narrow exception to waiver.” Miller, 188 N.E.3d at 874 (citing Pattison, 54 N.E.3d at 365). “An error is fundamental if it made a fair trial impossible or was a ‘clearly blatant violation[ ] of basic and elementary principles of due process’ that presented ‘an undeniable and substantial potential for harm.’ ” Id. (quoting Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009)). Hupertz “can prevail only if the jury charge as a whole ‘was so misleading as to make a fair trial impossible or blatantly violate basic due process.’ ” Dunn, 230 N.E.3d at 915 (quoting Knapp v. State, 9 N.E.3d 1274, 1285 (Ind. 2014)).

[21] Indiana has long required that guilty verdicts in criminal cases be unanimous. Baker, 948 N.E.2d at 1173–74 (citing Fisher v. State, 291 N.E.2d 76, 82 (Ind. 1973)). Indeed, “[o]ur Supreme Court has recognized that applying the rule of jury unanimity can present difficult challenges in child molestation or sex offense cases.” Carter v. State, 31 N.E.3d 17, 25 (Ind. Ct. App. 2015) (citing Baker, 948 N.E.2d at 1174) trans. denied.

A. Child Molesting Unanimity Instruction

[22] Hupertz argues that the trial court's unanimity instruction for his child molesting offenses is insufficient because it provided only half the instruction announced in Baker. See Appellant's Br. p. 20. A previous panel of this court explained that, in Baker:

Baker was charged with one count of child molesting for each of the three alleged victims; however, the jury heard evidence of multiple acts of molesting for each victim. On appeal, Baker argued that some jurors may have relied on different evidence than the other jurors to convict him on each of the three counts. The Baker Court's analysis recognized that “the State may in its discretion designate a specific act (or acts) on which it relies to prove a particular charge”; however, if the State does not so designate, jurors should be instructed that in order to convict, they must “either unanimously agree that the defendant committed the same act or acts or that the defendant committed all of the acts described by the victim and included within the time period charged.” Id. The Baker Court adopted the reasoning of the California Supreme Court, which explained that this type of instruction, “ ‘in addition to allowing a conviction if the jurors unanimously agree on specific acts, also allows a conviction if the jury unanimously agrees the defendant committed all the acts described by the victim.’ ” Id. at 1177 (quoting People v. Jones, 51 Cal.3d 294, 270 Cal.Rptr. 611, 792 P.2d 643, 650 (1990)). The California Supreme Court further observed, “[C]redibility is usually the ‘true issue’ [and] the jury either will believe the child's testimony that the consistent repetitive patter[n] of acts occurred or disbelieve it.” Id.

Carter, 31 N.E.3d at 26–27.

[23] At trial, the trial court gave the jury the following instruction:

The Defendant is accused in Counts I, II, and III of having committed child molesting against [Victim] between January 1, 2005, and December 31, 2010. The State has presented evidence that the Defendant may have committed more than one act of child molesting against [Victim] between January 1, 2005, and December 31, 2010. Before you may find the Defendant guilty, you must all unanimously find and agree that the State proved beyond a reasonable doubt the Defendant committed the same specific single act of child molesting against [Victim] between January 1, 2005, and December 31, 2010, for each count. If you find the Defendant guilty, your verdict does not have to specify the particular act of child molesting the Defendant committed.

Tr. Vol. 4 pp. 212–13.

[24] Hupertz argues that the entire instruction in Baker should have been given and that only giving half the instruction resulted in the instruction being insufficient. As was the case in both Baker and Carter, this case turned on the credibility of the child victim. The jury heard testimony that Hupertz digitally penetrated Victim on numerous occasions for almost six years. At trial, Hupertz argued that he did not molest Victim and that she was not credible. See Tr. Vol. 4 pp. 194–96. The issue for the jury to determine was which individual they found more credible and here, the jury resolved the credibility issue against Hupertz and in favor of Victim's version of the events.

[25] Further, we note that the instruction given by the trial court required unanimity on a specific act, which is the first of the two alternatives Baker describes. See Baker, 948 N.E.2d at 1177. Omitting the alternative instruction that would have permitted conviction on a finding that Hupertz committed all of the acts Victim described could have only eliminated an alternative means of conviction for the State. Therefore, the omission constrained the jury's consideration, and under these circumstances any error in giving the instruction did not amount to fundamental error. Cf. Carter, 31 N.E.3d at 28 (determining that any error in the unanimity instruction did not constitute fundamental error).⁷

[26] Hupertz argues that the portion of the instruction that states “the same specific single act ․ for each count” permits the jury to convict him on all three counts based upon a single act. See Appellant's Br. p. 20. We read jury instructions as a whole. See Dunn, 230 N.E.3d at 915. Final Instruction 13 required unanimity on a specific act “for each count,” and Final Instruction 14 directed the jury to consider each count “individually and separately from the other counts.” Appellant's App. Vol. 3 pp. 34–35. In closing, the State tied each of the three molestation counts to three separate independent incidents. The first incident occurred when Victim was laying in Hupertz's bed and he digitally penetrated her. The second incident occurred when Victim was five years old and taking a bath, and the third incident occurred when Victim was seven to eight years old and she spent the night at Hupertz's apartment after watching fireworks. See Tr. Vol. 4 pp. 185–86, 186–87. Moreover, after the jury returned its verdict, the jury was polled, and each member of the jury affirmed that their verdict was correct. See id. at 223–26. Read together, the instructions did not invite jurors to rest all three convictions on one act. Hupertz has failed to demonstrate that any error in the trial court's instructions made a fair trial impossible. See Dunn, 230 N.E.3d at 915.

[27] Based on the information before the jury, we cannot say Hupertz demonstrated fundamental error in the trial court's child molesting unanimity instruction.

B. CSAM Unanimity Instruction

[28] Hupertz argues that the trial court “fundamentally erred by failing to provide a specific instruction on the unanimity requirements required to convict [him] of two counts of possession of [CSAM].” Appellant's Br. p. 23. Again, Hupertz failed to object to the lack of a unanimity instruction or proffer his own unanimity instruction for the possession of CSAM counts at trial. As a result, Hupertz must demonstrate fundamental error. Hupertz makes a slightly different argument with respect to the CSAM counts.

[29] Hupertz's defense of the CSAM counts rested solely on the mens rea element, arguing that he did not knowingly or intentionally possess the digital files. At trial, the State presented eleven separate images as being representative of the over 7,000 images of CSAM retrieved from Hupertz's devices. Hupertz claimed that he inadvertently downloaded the images, claiming that the images were stored as thumbnails after he was redirected from adult websites and that he did not know they were on his computers. See Tr. Vol. 3 pp. 186–88, 190; Tr. Vol. 4 pp. 192–93, 196. However, on appeal, he argues that “given the numerosity of potential offenses presented, we cannot be certain whether jury unanimity was achieved.” Appellant's Br. p. 23.

[30] Hupertz cannot demonstrate fundamental error due to the trial court's failure to provide a unanimity instruction to the jury on the possession of CSAM counts. The only element of the crimes that Hupertz disputed at trial was whether he knowingly or intentionally possessed the images or movies, which defense applied equally to every image presented by the State. In this respect, the issue is similar to the challenge to witness credibility found in the Baker and Carter cases. In both of those cases the defendant's ability to present his defense was unaffected by any error in the instructions and therefore failed to demonstrate fundamental error. Here, the jury rejected Hupertz's story that he only inadvertently downloaded the CSAM onto his computer and found him guilty on both counts of possession of CSAM.

[31] Hupertz also argues that because the State presented the jury with eleven different examples of CSAM but only charged him with two separate counts of possessing CSAM, it presented alternative ways of proving only one offense. It is well established that the State is permitted to “present[ ] the jury with alternative ways to find the defendant guilty as to one element.” Baker, 948 N.E.2d at 1175 (emphasis in original) (quoting Cliver v. State, 666 N.E.2d 59, 67 (Ind. 1996)). Further, “jury unanimity is not required as to the theory of the defendant's culpability.” Calvert v. State, 177 N.E.3d 107, 112 (Ind. Ct. App. 2021)) trans. denied. Here, each of the eleven images presented to the jury represented a separate image that Hupertz was alleged to have possessed and therefore could support a separate offense. See Koetter v. State, 158 N.E.3d 820, 825–26 (Ind. Ct. App. 2020). The jury returned unanimous verdicts on each count of possession of CSAM and each juror affirmed their individual verdict when polled. Tr. Vol. 4 pp. 223–26. Since the only question for the jury to resolve was Hupertz's mental state, and the jury rejected Hupertz's credibility argument, we cannot say the trial court fundamentally erred in failing to provide a jury unanimity instruction for the possession of CSAM offenses. Under the circumstances, Hupertz received a fair trial and no different result would have occurred had he been given a unanimity instruction for possession of CSAM.⁸

[32] Based on the foregoing, we cannot say the trial court fundamentally erred in instructing the jury in its child molesting instruction or possession of CSAM instruction.

III. Inappropriate Sentence

[33] Hupertz argues that his sentence is inappropriate in light of the nature of the offenses and character of the offender. The Indiana Constitution authorizes appellate review and revision of a trial court's sentencing decision. See Ind. Const. art. 7, §§ 4, 6; Russell v. State, 234 N.E.3d 829, 855–56 (Ind. 2024), cert. denied. Pursuant to Indiana Appellate Rule 7(B), this court may revise a sentence “if, after due consideration of the trial court's decision, the [c]ourt finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.”

[34] Our review under Appellate Rule 7(B) “should 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.” Wilson v. State, 157 N.E.3d 1163, 1181 (Ind. 2020) (citing Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)). The Indiana Supreme Court has long said that “sentencing is principally a discretionary function in which the trial court's judgment should receive considerable deference.” Cardwell, 895 N.E.2d at 1222 (citing Morgan v. State, 675 N.E.2d 1067, 1072 (Ind. 1996)). “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). We note that “[t]he defendant bears the burden of persuading us a revised sentence is warranted.” Shields v. State, 248 N.E.3d 1246, 1276 (Ind. Ct. App. 2024), trans. denied.

[35] “In considering the nature of the offense we recognize the advisory sentence is the starting point the Legislature selected as appropriate for the crime committed.” Kelly v. State, 257 N.E.3d 782, 805 (Ind. 2025) (quoting Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014)), cert. denied. Hupertz was found guilty of Class A felony child molesting, which carries a sentencing range of twenty years to fifty years, with an advisory sentence of thirty years. I.C. § 35-50-2-4. Hupertz was also found guilty of possession of CSAM, a Level 5 felony, which carries a sentencing range of one year to six years, with an advisory sentence of three years. I.C. § 35-50-2-6(b). Hupertz was sentenced to the advisory sentence on each count, thirty years for each child molest count and three years for each possession of CSAM count.

[36] Although Hupertz acknowledges that his sentence is authorized by statute, he argues that the nature of the offenses and his character are “compelling reasons” to modify his sentence from consecutive sentences to concurrent sentences, reducing his sentence from 96 years to 33 years of imprisonment  ⁹ Appellant's Br. p. 24. When reviewing the nature of the offense, this court considers “the details and circumstances” of the commission of the offense. Merriweather v. State, 151 N.E.3d 1281, 1286 (Ind. Ct. App. 2020) (citing Washington v. State, 940 N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied).

[37] The nature of Hupertz's criminal conduct reflects that, while in a position of trust with Victim, he digitally penetrated her vagina on numerous occasions while he believed she was asleep. This abuse occurred at least twice monthly over a period of six years where Victim was between four to ten years of age. In addition, Hupertz possessed CSAM, showing Victim images of a male penis on his computer during the years he molested Victim and compiling over 7,000 images of CSAM on his computer when Victim's allegations came to light years later. Hupertz argues that “there is no evidence that [he] used force or threats to coerce [Victim] into submitting to sexual acts or to obtain child pornography[,]” and that she “still desired to be around [him] and sought him out[,]” in support of a reduced sentence. Appellant's Br. p. 25. However, Hupertz was able to coerce Victim into submitting to the molestations by reason of Victim's young age and the position of trust he held. The fact that Victim still desired to be around Hupertz despite the horrific abuse she suffered is not attributable to Hupertz's restraint in perpetrating his crimes, but as a result of their close familial relationship, which Hupertz undermined by perpetrating his crimes. We conclude that Hupertz has failed to present compelling evidence that portrays the nature of his offense in a positive light, such as accompanied by restraint or regard. Appellant's Br. p. 25; see Stephenson, 29 N.E.3d at 122.

[38] When reviewing the character of the offender, his character “is found in what we learn of his life and conduct.” Merriweather, 151 N.E.3d at 1286. Hupertz argues that, at eighty-four years of age, he has limited criminal history and his one prior conviction for misdemeanor operating while intoxicated “is manifestly different in gravity and nature to the current offense[s].” Appellant's Br. p. 26. Both of which are true. However, the facts also reveal that Hupertz engaged in the years long sexual abuse of Victim while also compiling a vast digital library of CSAM on his computer. Hupertz's conduct greatly exceeded the seven counts which he faced at trial and reveal a decades long immersion in perpetrating and viewing child sexual abuse.

[39] Hupertz further supports his arguments by directing us to four decisions where other defendants had their sentences revised involving child molestation or child sex crimes. See id. at 26–29. We find each case Hupertz cites readily distinguishable. In each case Hupertz cites, the trial court imposed aggravated sentences on the child molesting counts. See Harris v. State, 897 N.E.2d 927, 928–30 (Ind. 2008); Tyler v. State, 903 N.E.2d 463, 465 (Ind. 2009); Pierce v. State, 949 N.E.2d 349, 351 (Ind. 2011); Walker v. State, 747 N.E.2d 356, 358 (Ind. 2001). Whereas here, the trial court imposed the advisory sentence on every count. Subsequent to the cases cited by Hupertz, our Supreme Court rejected a claim that consecutive sentences for multiple counts of child molesting against one victim was inappropriate and reinstated consecutive terms of imprisonment as originally imposed by the trial court. See Faith v. State, 131 N.E.3d 158, 160 (Ind. 2019) (reinstating trial court's sentence of consecutive 30-year sentences for three counts of child molesting after Court of Appeals revised the sentences to be served concurrently.).

[40] All in all, we conclude that Hupertz has failed to demonstrate that his ninety-six-year aggregate executed sentence is inappropriate in light of the nature of his offenses and his character. See Shields, 248 N.E.3d at 1276.

Conclusion

[41] Based on the foregoing, we conclude that: the trial court did not abuse its discretion by allowing the State to amend the charging information to add two counts of possession of CSAM; the trial court did not commit fundamental error in giving its unanimity instructions for child molesting and possession of CSAM; and Hupertz's sentence is not inappropriate in light of the nature of his offenses and his character.

[42] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-4-3(a)(1).

2.   I.C. § 35-42-4-4(d).

3.   Although Hupertz was charged with possession of child pornography pursuant to Indiana Code section 35-42-4-4(d) and Indiana Code section 35-42-4-4(e)(1), on July 1, 2026, the Indiana General Assembly amended the child pornography statutes, including replacing the term “child pornography” with the term “child sex abuse material” or “CSAM”. We hereafter refer to child pornography utilizing the CSAM acronym. See I.C. § 35-42-4-4.5 (2026).

4.   Chief Corely was a detective at the time of the investigation and since has been promoted.

5.   Chief Corley explained his delay in reviewing the report was the result of a reallocation of responsibilities for review of CSAM within the department. At the time of the investigation, a specialized unit within the department was responsible for reviewing CSAM, but that unit was eliminated and he thereafter had responsibility for CSAM investigations.

6.   In pertinent part, Indiana Evidence Rule 404 states:(a) Character Evidence.(1) Prohibited Uses. Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.․(b) Crimes, Wrongs, or Other Acts.(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.Ind. Evidence Rule 404.

7.   To the extent Hupertz raises a double jeopardy argument, see Appellant's Br. p. 20, we note such argument has been waived for his failure to cite to relevant legal authority. Ind. Appellate Rule 46(A)(8)(a) (requiring that each contention of an appellant's argument be supported by citations to authority); Dunigan v. State, 191 N.E.3d 851, 855 (Ind. Ct. App. 2022).

8.   To the extent Hupertz relies on Lainhart, we find the case readily distinguishable. There, the State alleged alternate victims who were alleged to have been threatened at distinct periods of time within a single count of intimidation. Lainhart v. State, 916 N.E.2d 924, 941–42 (Ind. Ct. App. 2009). On appeal, our court characterized the charging information as charging the defendant with multiple crimes within one count and concluded the trial court erred by not issuing a unanimity instruction. However, here, each separate count constituted a single crime and the only element of the crime in dispute was Hupertz's mental state.

9.   In his brief Hupertz asks this court to revise his sentence so that all of the child molestation counts are concurrent to one another, but are consecutive to the two CSAM counts, which are also concurrent to one another, which equates to an aggregate sentence of 33 years. See Appellant's Br. p. 29.

Foley, Judge.

Tavitas, C.J., and Weissmann, J., concur.