Dennis Vermillion v. State of Indiana, 978 N.E.2d 459

Vermillion was convicted of two counts of Class C felony sexual misconduct with a minor for a 2009 incident involving S.H.
Each count carried an eight-year term (five executed, three suspended), to run consecutively for a total of sixteen years.
S.H. testified that Vermillion touched her breast and vagina during the May 2009 incident and urged her not to tell anyone.
At trial, the State admitted prior-misconduct testimony about Vermillion offering pay with alcohol/cigarettes to obtain exposure; Vermillion did not object.
The trial court found aggravators including prior criminal history, position of trust, and uncharged misconduct with minors; mitigator was potential hardship on Vermillion’s family.
On appeal, Vermillion challenged admissibility of prior-misconduct evidence, double jeopardy, and sentencing, including the order of consecutive sentences and statutory cap.

Issue	Plaintiff's Argument	Defendant's Argument	Held
admissibility of prior-misconduct evidence	Vermillion argues 404(b) error to show grooming.	Vermillion contends the evidence improperly served as propensity/intent evidence.	Not fundamental error; waiver applies; admission not shown to deny fair trial
double jeopardy actual-evidence test	State contends two offenses proved by distinct facts.	Vermillion asserts same evidentiary facts could satisfy both counts.	No double-jeopardy violation; separate and distinct facts established each count
consecutive versus concurrent sentences	State argues consecutive sentences appropriate under Kolcielko framework and Richardson.	Vermillion asserts Kolcielko precludes consecutive sentencing for single-episode conduct.	Consecutive sentences permissible; not abuse of discretion
statutory cap under I.C. 35-50-1-2(c)	Aggregate, consecutive sentence within the advisory cap allowed.	Sentence exceeded the ten-year cap for non-violent offenses arising from one episode	Statutory cap violated; remand for resentencing to eight years total (five years each count, consecutive)
aggravators and mitigators; appropriateness of final sentence	Court properly weighed aggravators (prior history, uncharged misconduct) against mitigating factors.	Sentence based on improper factors (dismissed charges) and inappropriate weighting	Remand to implement corrected eight-year total while preserving aggravators and mitigators

Richardson v. State, 717 N.E.2d 32 (Ind. 1999) (actual-evidence test for double jeopardy; elements/evidence distinct)
Bowling v. State, 560 N.E.2d 658 (Ind. 1990) (early double-jeopardy framework for consecutive offenses)
Kolcielko v. State, 938 N.E.2d 243 (Ind. Ct. App. 2010) (episodic nature of crimes; later rehearing discusses concurrency)
Kolcielko v. State, 943 N.E.2d 1282 (Ind. Ct. App. 2011) (rehearing; confirms concurrency framework)
Pucket v. State, 956 N.E.2d 1182 (Ind. Ct. App. 2011) (distinguishes plea-discounted charges in sentencing context)
Cotto v. State, 829 N.E.2d 520 (Ind. 2005) (arrest records may inform criminal history considerations)
Roney v. State, 872 N.E.2d 192 (Ind. Ct. App. 2007) (harmful error harmless where remaining aggravators govern)
Sundling v. State, 679 N.E.2d 988 (Ind. Ct. App. 1997) (prior uncharged misconduct admissible under Rule 404(b))
Diaz v. State, 839 N.E.2d 1277 (Ind. Ct. App. 2005) (consecutive-sentencing framework and weighing aggravators)
Henderson v. State, 769 N.E.2d 172 (Ind. 2002) (general sentencing discretion standards)
Cardwell v. State, 895 N.E.2d 1219 (Ind. 2008) (Rule 7(B) appropriateness considerations)
Childress v. State, 848 N.E.2d 1073 (Ind. 2006) (Rule 7(B) framework for appellate review of sentence)