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Versal W. Strunk v. State of Indiana
Case Number: 18A-CR-2272
Judge: James S. Kirsch
Court: COURT OF APPEALS OF INDIANA
Plaintiff's Attorney: Taylor C. Byrley
Defendant's Attorney: Jennifer A. Joas
Strunk was born in 1986. Tr. Vol. 2 at 13. Strunk’s wife babysat children in the
couple’s residence in Osgood, Ripley County, Indiana. Appellant’s App. Vol. II
at 49. E.W. and L.W. were two of the children that Strunk’s wife watched, and
E.W. and L.W. would sometimes stay overnight at Strunk’s residence when
their mother had to work early the next morning. Id. at 13, 64. During the
time that Strunk’s wife watched E.W. and L.W., Strunk engaged in sexual
conduct with them. Id. at 49-50, 63-68. The molestation began when Strunk
and his wife first began watching the children and continued until the police
began their investigation. Id. at 63.
 On September 26, 2017, L.W., who was seven years old at the time, told her
mother that Strunk had “touched” her. Id. at 12. The children’s mother took
them to the police department where they were interviewed. During her
1 See Ind. Code § 35-42-4-3(a)(1).
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interview, L.W. told the police that Strunk would give her a bath and touch her
everywhere on her body with his hands. Id. at 63. L.W. stated that he had
given her a bath more than one time and stated that is was “not okay” for him
to touch her “bad body parts.” Id. L.W. further stated that Strunk’s hands
would go “inside the folds of her vagina and between the cheeks of her butt”
when he gave her a bath. Id. L.W. told the police that Strunk would wake up
her brother, E.W., in the middle of the night to go into the bathroom to play
cards. Id. L.W. indicated that when E.W. had to use the toilet, Strunk would
sit on the toilet with his clothes off and have E.W. urinate between Strunk’s
legs. Id. Strunk told L.W. that she had to “keep it a secret” or he “would go to
jail.” Id. L.W. told the police that “if mommy wouldn’t [have] known about it,
it would have kept going.” Id.
 The police also interviewed E.W., who was eight years old at the time, and in
the interview, E.W. referred to Strunk as “uncle” although they are not related.
Id. E.W. indicated that Strunk would wake him up and take him to the
bathroom to “play slap jack and if you lose you have to drink.” Id. at 64. E.W.
stated that Strunk would make him urinate between Strunk’s legs “all the time.”
Id. E.W. said that Strunk would put “sex.com” on his phone when E.W. was
urinating between his legs and that Strunk would have his underwear around
his ankles. Id. E.W. indicated that Strunk told him that his son had done this
before. Id. E.W. stated that Strunk would show him “sex videos” and “how
women get pregnant.” Id. E.W. further stated that Strunk “touched his wiener
and butt” and “had taken pictures of his wiener.” Id. E.W. told the police that
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Strunk “puts his finger up my butt” and that it “feels weird.” Id. E.W. stated
that when Strunk gave him a bath he would use his hands on his “weiner” and
start rubbing him. Id. E.W. also stated that Strunk had shown E.W. his penis
and that Strunk “jacks off and white stuff comes out onto the toilet paper that
[Strunk] flushes down the toilet.” Id. E.W. indicated that, when he was in bed
at Strunk’s house, Strunk would “suck on his peebird” and that it “feels weird.”
Id. E.W. stated that Strunk told him “it will feel good when [you are] thirteen.”
Id. E.W. told the police that Strunk told him to “keep this a secret” because
Strunk “doesn’t want mommy and daddy to know” and he “doesn’t want to go
to jail.” Id. E.W. indicated that all this happened when he was seven and eight
years old. Id.
 Strunk met with the police and voluntarily admitted that he has a “sexual
problem” with young boys and that he has had children urinate on him. Id. at
65. Strunk stated that L.W. had urinated on him several times and
acknowledged that this was a sexual fantasy of his. Id. Strunk also stated that
he told L.W. the only way he would give her a bath is if she urinated on him.
Id. Strunk admitted that E.W. has probably urinated on him at least ten times
and that he would “tell [E.W.] things about sex hoping that [E.W.] would want
to act on them.” Id. Strunk would sleep in the same bed with E.W. and would
“jack him most of the time with [E.W.’s] underwear pulled up and on the
outside of E.W.’s underwear.” Id. Strunk also took E.W.’s underwear down
and masturbated E.W., telling E.W. that “it will feel a lot different when you
become a teenager.” Id. Strunk also told the police that he had given E.W. “a
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blowjob” two times and that E.W. told him, “I don’t really like that.” Id.
Strunk admitted that he would place E.W. on top of him and show E.W. “the
feeling of what guys do on top of girls” and acknowledged that he and E.W.
were acting out having sex with their underwear still on. Id. Strunk also
admitted that he had masturbated in front of E.W. probably ten times in the
bathroom after E.W. urinated on him. Id. at 66. Strunk stated that he had
offered for E.W. to put his penis in Strunk’s butt “for the experience of what it
would be like if you’re doing it with a woman when you get older.” Id. at 67.
 Strunk stated that he had “been wanting to put an end to it” because he did not
feel right doing it and “didn’t want to lose his kids.” Id at 65. Strunk told the
police that he told L.W. and E.W. not to say anything to anyone and that “if
you say anything I won’t be able to do anything and then come back, and you
guys won’t be able to see me again.” Id. at 67. Strunk also told L.W. and E.W.
that he would probably go to prison. Id.
 Strunk also later admitted to the police that his son had urinated on him about
three times, and that his son has seen him masturbate four or five times. Id. at
68. Strunk stated that his daughter may have also walked in on him
masturbating once or twice. Id. Strunk also admitted that he “did stuff with his
nephew” when Strunk was younger. Id. at 66.
 On October 4, 2017, the State charged Strunk with two counts of Level 1 felony
child molesting, alleging that he performed or submitted to intercourse or other
sexual conduct with E.W. when Strunk was over the age of twenty-one and
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E.W. was under the age of fourteen. On May 22, 2018, Strunk entered into a
plea agreement under which he would plead guilty to one count of Level 1
felony child molesting and the other count would be dismissed.
 A sentencing hearing was held on August 23, 2018, at which the trial court
considered aggravating and mitigating circumstances. As aggravating
circumstances, the trial court found: (1) Strunk “committed a multitude of sex
offenses going far beyond the single offense” to which he pleaded guilty; (2)
Strunk’s “character indicate[d] there is a substantial likelihood he will
reoffend”; (3) he violated “a position of care, custody, or control of the victim”;
(4) he “committed a crime of violence and said commission occurred in the
presence of another child, L.W., who was not the victim”; and (5) “E.W. has
already and will continue to suffer from significant psychological and emotional
impact that will be with him forever.” Id. at 108-09. As mitigating
circumstances, the trial court found: (1) Strunk lacked a criminal history; and
(2) Strunk is “mentally slow.” Id. at 109. Finding that the aggravating factors
significantly outweighed the mitigating factors, the trial court sentenced Strunk
to a maximum sentence of fifty years and determined him to be a credit
restricted felon. Strunk now appeals his sentence.
Discussion and Decision
 Pursuant to Indiana Appellate Rule 7(B), this court “may revise a sentence
authorized by statute 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.” Our Supreme Court has explained
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that the principal role of appellate review should be to attempt to leaven the
outliers, “not to achieve a perceived ‘correct’ result in each case.” Cardwell v.
State, 895 N.E.2d 1219, 1225 (Ind. 2008). We independently examine the
nature of Strunk’s offense and his character under Appellate Rule 7(B) with
substantial deference to the trial court’s sentence. Satterfield v. State, 33 N.E.3d
344, 355 (Ind. 2015). “In conducting our review, we do not look to see whether
the defendant’s sentence is appropriate or if another sentence might be more
appropriate; rather, the test is whether the sentence is ‘inappropriate.’” Barker v.
State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied. Whether a
sentence is inappropriate ultimately depends upon “the culpability of the
defendant, the severity of the crime, the damage done to others, and a myriad
of other factors that come to light in a given case.” Cardwell, 895 N.E.2d at
1224. Strunk bears the burden of persuading this court that his sentence is
 Strunk argues that his maximum fifty-year sentence is inappropriate in light of
the nature of the offense and his character. Specifically, he contends that,
although the crime of child molesting is heinous by nature and will likely inflict
permanent damage to the victims, such harm is accounted for in the sentencing
guidelines, especially where, as here, Strunk did not use force or physically
harm E.W. Strunk asserts that his crime is not the worst of offenses. He further
maintains that, when looking at his character, it is clear that his maximum
sentence is inappropriate. Strunk claims that his lack of a criminal history, his
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learning disability, and his traumatic and abusive childhood lend credence to
his contention that his sentence is inappropriate.
 When determining whether a sentence is inappropriate, the advisory sentence is
the starting point the legislature has selected as an appropriate sentence for the
crime committed. Kunberger v. State, 46 N.E.3d 966, 973 (Ind. Ct. App. 2015);
Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014). Strunk was
convicted of a Level 1 felony and determined to be a credit restricted felon, and
the advisory sentence for a Level 1 felony conviction as a credit restricted felon
is thirty years, with a range of between twenty and fifty years. Ind. Code §§ 35
50-2-4(c), 35-31.5-2-72(1). Strunk received a sentence of fifty years executed for
his Level 1 felony conviction.
 As this court has recognized, the nature of the offense is found in the details
and circumstances of the commission of the offense and the defendant’s
participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). With respect
to the nature of the offense, Strunk repeatedly subjected E.W. and L.W. to
sexual abuse. These acts occurred when the children were staying at his
residence in the care of him and his wife who were babysitting E.W. and L.W.
Strunk repeatedly abused E.W. by forcing him to urinate on Strunk while
Strunk masturbated and exposed E.W. to pornographic materials. Strunk also
touched E.W.’s genitals, put his finger in E.W.’s butt, and performed oral sex
on E.W. Additionally, Strunk forced L.W. to urinate on him if she wanted to
take a bath. Although Strunk was only convicted of one offense, Strunk
actually committed numerous and repeated offenses against E.W., and in doing
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so, he violated a position of trust. We, therefore, do not agree that the nature of
Strunk’s offense makes his sentence inappropriate.
 However, we agree that Strunk’s sentence is inappropriate considering his
character.2 The character of the offender is found in what we learn of the
offender’s life and conduct. Perry, 78 N.E.3d at 13. When considering the
character of the offender, one relevant fact is the defendant’s criminal history.
Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013). Strunk has no
criminal record and was thirty-two years old at the time of sentencing. The
evidence showed that Strunk suffered significant abuse as a child. Appellant’s
App. Vol. II at 41. Until the age of four and a half, he suffered physical,
emotional, and sexual abuse at the hands of his mother and grandmother. Id.
Later, when living with his adoptive parents, Strunk was sexually abused by his
foster brother from the age of seven until fourteen, an older nephew on his
adoptive mother’s side of the family from the age of six until fifteen, and his
adoptive father’s brother from the age of fifteen until eighteen. Id. Strunk
reported that he suffers from Post-Traumatic Stress Disorder because of the
childhood abuse he experienced and that, although he completed twelve years
of school, he has a learning disability and only has a third-grade educational
level. Id. at 42-43.
2 While we must consider both the nature of the offense and the character of the offender in determining whether a sentence is inappropriate, a defendant need not necessarily prove both prongs for us to find a sentence inappropriate. See Conner v. State, 58 N.E.3d 215, 218-19 (Ind. Ct. App. 2016).
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 Strunk occupied a position of trust with E.W. and L.W. that he betrayed, and
his offenses are undeniably reprehensible; however, Strunk’s learning disability
and his own history of abuse must also be factored into the balance of all the
factors. In addition, Strunk has shown a nexus between his mental health and
the crimes which he committed. See Steinberg v. State, 941 N.E.2d 515, 534
(Ind. Ct. App. 2011), trans. denied. Thus, while we find that an enhanced
sentence is appropriate, the fifty-year maximum sentence as a credit restricted
felon is not. We, therefore, invoke our authority under Indiana Appellate Rule
7(B) and revise Strunk’s sentence to thirty-five years executed as a credit
restricted felon. We remand the case to the trial court with instructions to enter
Outcome: Vacated and remanded.