Douglas W. Kemp v. State of Indiana (NFP)
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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: IVAN A. ARNAEZ Arnaez Law Offices Evansville, Indiana GREGORY F. ZOELLER Attorney General of Indiana ANGELA N. SANCHEZ Deputy Attorney General Indianapolis, Indiana FILED Jun 18 2010, 10:28 am IN THE COURT OF APPEALS OF INDIANA DOUGLAS W. KEMP, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) No. 87A04-0911-CR-641 APPEAL FROM THE WARRICK SUPERIOR COURT The Honorable Keith A. Meier, Judge Cause No. 87D01-0905-FA-065 June 18, 2010 MEMORANDUM DECISION NOT FOR PUBLICATION MATHIAS, Judge CLERK of the supreme court, court of appeals and tax court Douglas W. Kemp ( Kemp ) pleaded guilty in Warrick Superior Court to Class C felony child molesting. The trial court sentenced Kemp to ninety months with credit for time served. Kemp appeals and argues that his sentence is inappropriate in light of the nature of the offense and the character of the offender. We affirm. Facts and Procedural History Kemp lived with his girlfriend and her nine-year-old daughter, C.H. Sometime during the early part of 2009, Kemp touched his genitals to C.H. s genitals while she was lying on a bed. C.H. s mother was taking a shower at the time. On May 6, 2009, the State filed charges against Kemp. On May 18, 2009, the State amended the information and charged Kemp with Class A felony child molesting and Class C felony child molesting. Pursuant to a plea agreement, Kemp pleaded guilty to Class C felony child molesting and the State dismissed the Class A felony child molesting charge. Sentencing was left to the trial court s discretion. On October 20, 2009, the trial court sentenced Kemp to a term of ninety months. Kemp now appeals. Discussion and Decision Kemp argues that his sentence is inappropriate under Indiana Appellate Rule 7(B), which provides that [t]he Court may revise a sentence authorized by statute if, after due consideration of the trial court s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender. In Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), our supreme court explained: It is on this basis alone that a criminal defendant may now challenge his or her sentence where the trial court has entered a sentencing statement that 2 includes a reasonably detailed recitation of its reasons for imposing a particular sentence that is supported by the record, and the reasons are not improper as a matter of law, but has imposed a sentence with which the defendant takes issue. 868 N.E.2d at 494. [A] defendant must persuade the appellate court that his or her sentence has met the inappropriateness standard of review. Id. The nature of the offense is disturbing. Kemp touched his penis to a nine-year-old girl s vagina while he lived with her and her mother and was a caregiver to that child. Additionally, Kemp took advantage of the fact that C.H. s mother was showering at the time and had left C.H. in Kemp s care. The nature of the offense supports Kemp s sentence. Kemp s character also easily supports the trial court s sentence. Kemp abused his The most telling fact regarding Kemp s position of trust when he molested C.H. character is that Kemp did not take responsibility for his actions. At the sentencing hearing, Kemp continually stated that he had not molested C.H. despite admitting to that fact at the guilty plea hearing. Tr. p. 14. He minimized his own actions, claiming that he only tickled C.H. and that C.H. s mother had been abusing her daughter. Tr. pp. 15, 16. Kemp also has an extensive criminal history that includes Class D felony theft conviction, two misdemeanor battery convictions, two misdemeanor harassment convictions, and Class A misdemeanor convictions for possession of marijuana, possession of paraphernalia, and possession of methamphetamine. Kemp s character supports his ninety-month sentence. 3 Conclusion Kemp s ninety-month sentence is not inappropriate in light of the nature of the offense and the character of the offender. Affirmed. RILEY, J., and BRADFORD, J., concur. 4
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