Description: Jessica McCain, then twenty-three years old, placed her mouth on her one-year-’
penis while bathing him. The incident occurred after McCain had oral sex with her boyfriend. He
left the apartment and sent her text messages that were sexual in nature. ’
McCain recorded the incident with her son on a borrowed cell phone with the intent of sending the
video to the boyfriend. McCain pleaded guilty to Level 1 felony child molesting, for which the sentence is a fixed
term between twenty and fifty years, with an advisory term of thirty years. See Ind. Code § 35
50-2-4. The trial court ’guilty plea, lack of criminal
history, and history of employment. The court identifi’
of care, custody, and control of the victim’’
offense. The court found the aggravators outweigh the mitigators and imposed a forty-year
sentence with thirty-eight years executed and two years suspended to probation.
McCain appealed h’
years, finding the forty-year sentence inappropriate under Indiana Appellate Rule 7(B). McCain
v. State, No. 79A02-1703-CR-616, 2017 WL 4079491 (Ind. Ct. App. Sept. 15, 2017). The State
seeks transfer.
The Indiana Constitution authorizes independent appellate review and revision of a trial
court’s sentencing decision. Ind. Const. art. 7, §§ 4, 6; Serino v. State, 798 N.E.2d 852, 856 (Ind.
2003). This authority is implemented through Appellate Rule 7(B), which permits an appellate
court to revise a sentence if, after due consideration of the trial court’s decision, the sentence is
found to be inappropriate in light of the nature of the offense and the character of the offender.
Serino, 798 N.E.2d at 856. The principal role of such review is to attempt to leaven the outliers.
Outcome: Our judgment is that the sentence imposed by the trial court in this case is not inappropriate under Appellate Rule 7(B) and does not warrant appellate revision. Accordingly, we grant transfer, see Ind. Appellate Rule 58(A), and affirm the sentence imposed by the trial court.
