Larry Fulbright v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 23 2016, 8:33 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Victoria L. Bailey Gregory F. Zoeller Marion County Public Defender Attorney General Indianapolis, Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Larry Fulbright, May 23, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1407-CR-449 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Lisa Borges, Judge Appellee-Plaintiff Trial Court Cause No. 49G04-1106-FA-4640

Vaidik, Chief Judge. Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-449| May 23, 2016 Page 1 of 6

Case Summary [1] On his twenty-seventh birthday, Larry Fulbright, high on heroin, put his penis

in his three-year-old niece’s mouth while his four-year-old nephew looked on.

He pled guilty to Class A felony child molesting and Class D felony conducting

a performance harmful to minors and was sentenced to an aggregate term of

thirty years. Fulbright appeals, arguing that his advisory sentence for child-

molesting is inappropriate in light of the nature of the offense and his character.

Because he has failed to persuade us that his sentence is inappropriate, we

affirm.

Facts and Procedural History [2] In June 2011, Fulbright was living with his brother, K.F., who had two

children, a three-year-old girl, Ky.F., and a four-year-old boy, Ko.F. On June

29, K.F. sent the children into Fulbright’s room to pick up their toys while he

went into the bathroom. Fulbright, who was high on heroin at the time,

followed the children into his room, pulled down his shorts, and put his penis in

Ky.F.’s mouth while Ko.F. watched. When K.F. came out of the bathroom, he

found Fulbright sitting on the bed with his shorts around his ankles. The

children immediately told their father what Fulbright had done. [3] K.F. reported the molesting to the Indianapolis Metropolitan Police

Department. During a brief investigation, Fulbright admitted putting his penis

in his three-year-old niece’s mouth. The State charged him with Class A felony

child molesting and Class D felony conducting a performance harmful to

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minors. He pled guilty to both counts without a plea agreement, and the trial

court held a sentencing hearing. [4] At the sentencing hearing, Fulbright’s history of autism and drug abuse was

presented. Fulbright was diagnosed with autism when he was in the first grade

and placed in special-education classes. He also developed a significant drug

habit while in school and, at the time of these crimes, was using up to two

grams of heroin a day as well as regularly using marijuana. Despite his autism

and addictions, Fulbright graduated from high school with a 3.5 grade point

average and held a job that paid $800 per week. [5] At the conclusion of the sentencing hearing, the court found the following

mitigating factors: Fulbright had no criminal history; he accepted responsibility

by pleading guilty; and he expressed remorse. And the court found multiple

aggravating factors: the victims were under twelve years old; the effect on the

victims was lasting and profound; Fulbright was in a position of trust with the

victims; and he was using two grams of heroin a day. The court sentenced

Fulbright to concurrent terms of thirty years for child molesting and 910 days

for conducting a performance harmful to minors. [6] Fulbright now appeals his sentence.

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Discussion and Decision [7] Fulbright contends that his thirty-year sentence for child molesting is

inappropriate and asks us to revise it to twenty years.1 Appellant’s Br. p. 13-14.

Indiana Appellate Rule 7(B) provides that this 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.” King v. State, 894 N.E.2d 265, 267 (Ind. Ct.

App. 2008). On appeal, the “defendant must persuade the appellate court that

his or her sentence has met the inappropriateness standard of review.” Rice v.

State, 6 N.E.3d 940, 946 (Ind. 2014). [8] In evaluating “the nature of the offense, the advisory sentence is the starting

point the Legislature has selected as an appropriate sentence for the crime

committed.” Abbott v. State, 961 N.E.2d 1016, 1019 (Ind. 2012). Here, the trial

court sentenced Fulbright to the advisory term of thirty years for Class A felony

child molesting. See Ind. Code § 35-50-2-4. As Fulbright concedes, the nature

of his offense is “serious.” Appellant’s Br. p. 9. He “put his penis in his [three]-

year[-]old niece’s mouth while his [four]-year[-]old nephew watched.” Id. In

addition, Fulbright violated a position of trust. [9] Nevertheless, Fulbright argues that his sentence should be reduced below the

advisory term because this was an isolated incident and he did not physically

1 Fulbright does not argue that his 910-day sentence for the Class D felony is inappropriate.

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injure his niece or nephew. Fulbright relies on Sanchez v. State, 938 N.E.2d 720

(Ind. 2010), for support. In Sanchez, the Indiana Supreme Court concluded that

Sanchez’s sentence, which included enhanced and consecutive terms, was

inappropriate because he did not use force or physically injure the victims, and

the incidents were isolated, rather than repeated, behavior. Unlike Sanchez,

Fulbright was sentenced to the advisory term. Notably, our Supreme Court did

not revise Sanchez’s sentence for any count to below the advisory term.

Therefore, we are not persuaded that the lack of physical injury or the fact that

this appears to be an isolated incident make the advisory term inappropriate in

this case. The nature of the offense supports Fulbright’s sentence. [10] Turning to character, we examine “the offender’s life and conduct.”

Washington v. State, 940 N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied.

Fulbright argues that he should be given a lesser sentence because he accepted

responsibility for what he did and expressed remorse, he has no criminal

history, and he is autistic. While we agree that Fulbright accepted

responsibility and expressed remorse for his actions, we also note that there

were witnesses to the molesting. Moreover, even though this is his first

conviction, Fulbright admitted to using illegal drugs daily. [11] As to Fulbright’s argument that his autism makes his sentence inappropriate,

there are several considerations that bear on the weight, if any, which should be

given to mental disorders in sentencing: (1) the extent of the defendant’s

inability to control his or her behavior due to the disorder or impairment; (2)

overall limitations on functioning; (3) the duration of the mental disorder; and

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(4) the extent of any nexus between the disorder or impairment and the

commission of the crime. Id. at 1223 (citing Krempetz v. State, 872 N.E.2d 605,

615 (Ind. 2007)). We note that autism has not prevented Fulbright from

carrying out other basic obligations—he graduated from high school and held a

well-paying job for five years. Fulbright himself acknowledges that his autism

“does not excuse his criminal conduct.” Appellant’s Br. p. 13. The record

indicates that Fulbright was capable of controlling his behavior and he did not

have significant limitations on his functioning, and he has not presented

evidence of a nexus between his autism and child molesting. Therefore, we

accord Fulbright’s condition little weight in our analysis of his character. [12] Fulbright has not persuaded us that his child-molesting sentence is

inappropriate in light of the nature of the offense or his character, and thus we

decline to revise it under Indiana Appellate Rule 7(B). [13] Affirmed.

Barnes, J., and Mathias, J., concur.

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