Alejandro Hernandez-Miguel v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 5, 2019
• Docket: 18A-CR-2441
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 05 2019, 6:01 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Carlos I. Carrillo Curtis T. Hill, Jr. Greenwood, Indiana Attorney General of Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Alejandro Hernandez-Miguel, March 5, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2441 v. Appeal from the Clinton Circuit Court State of Indiana, The Honorable Bradley K. Mohler, Appellee-Plaintiff. Judge Trial Court Cause No. 12C01-1709-F4-1018

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2441 | March 5, 2019 Page 1 of 11 Case Summary [1] Alejandro Hernandez-Miguel (“Hernandez-Miguel”) challenges his conviction

for child molesting as a Level 4 felony1 and his sentence. We affirm.

Issues [2] Hernandez-Miguel raises four issues which we consolidate and restate as

follows:

I. Whether the State provided sufficient evidence to support his conviction for child molesting, as a Level 4 felony.

II. Whether the trial court erred in failing to advise Hernandez-Miguel of the consequences of being a credit- restricted felon.

III. Whether Hernandez-Miguel’s sentence is inappropriate in light of the nature of his offense and his character.

Facts and Procedural History [3] B.M.H., born July 8, 2011, is the child of Miranda Martin (“Martin”) and

Hernandez-Miguel. Hernandez-Miguel had supervised visits2 starting when

B.M.H. was approximately eight months old. When B.M.H. was

1 Ind. Code § 35-42-4-3(b). 2 The record does not disclose why Hernandez-Miguel’s visits with B.M.H. were initially supervised.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2441 | March 5, 2019 Page 2 of 11 approximately three years old, Hernandez-Miguel began to have unsupervised

over-night visits with B.M.H. at Hernandez-Miguel’s home.

[4] On September 6, 2017, when B.M.H. was approximately six years old, he told

his aunt, Samantha Stevens (“Stevens”), that Hernandez-Miguel had molested

him. The next morning, while B.M.H. was in school, Stevens told Martin

about B.M.H.’s disclosure of the molestations. Immediately thereafter, Martin

and Stevens went to the Franklin City Police Department (“FCPD”) to make a

report and spoke with Officer Mike Cesar (“Officer Cesar”). Officer Cesar

instructed Martin that she should speak with B.M.H. to confirm the molestation

allegations.

[5] That evening, while B.M.H., Martin, and Stevens were together, B.M.H.—

without prompting—began speaking about being molested by Hernandez-

Miguel. Martin used a smart phone to record the conversation, because, as she

later related, “I don’t want later for anyone to say I told him to say something

because that happens to people all the time.” Tr. at 50. A week later, B.M.H.

had a forensic interview with the FCPD about the allegations of molestation.

After that interview, B.M.H. initiated another conversation with his mother

about the molestation, which Martin also recorded. Martin gave the two

recordings of her conversations with B.M.H. to the FCPD.

[6] On September 22, 2017, the State charged Hernandez-Miguel with one count of

child molesting, as a Level 4 felony. Hernandez-Martin waived a jury trial and

had a bench trial on July 13, 2018. At the trial, Martin’s recordings of B.M.H.’s

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2441 | March 5, 2019 Page 3 of 11 statements were not admitted into evidence. The forensic interview of B.M.H.

also was not admitted into evidence; however, FCPD Officer Van Jason

Albaugh (“Officer Albaugh”), who was present at the forensic interview,

testified that B.M.H. had informed the police that Hernandez-Miguel “wiggled

[B.M.H.’s] peepee.” Id. at 61. B.M.H. also testified at the trial. He stated that

Hernandez-Miguel put his hands down B.M.H.’s pants, under his underwear,

and held his penis and buttocks. He testified that Hernandez-Miguel touched

him like that “for a long time,” id. at 19, and “a lot,” id. at 18. Hernandez-

Miguel also testified. He admitted that he had touched B.M.H. but only on the

outside of B.M.H.’s clothes and only to determine whether the clothes were wet

from B.M.H. urinating on himself, which he frequently did.

[7] The court found Hernandez-Miguel guilty as charged and held a sentencing

hearing on September 12, 2018. The trial court noted as aggravators

Hernandez-Miguel’s criminal history, the victim’s age being less then twelve

years, and Hernandez-Miguel’s position of care, custody, or control over the

victim. The court found no mitigating factors and sentenced Hernandez-

Miguel to seven years imprisonment, with two years suspended to probation.

This appeal ensued.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2441 | March 5, 2019 Page 4 of 11 Discussion and Decision Sufficiency of the Evidence [8] Hernandez-Miguel challenges the sufficiency of the evidence to support his

conviction. Our standard of review of the sufficiency of the evidence is well-

settled:

When reviewing the sufficiency of the evidence needed to support a criminal conviction, we neither reweigh evidence nor judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence supporting the judgment and any reasonable inferences that can be drawn from such evidence.” Id. We will affirm if there is substantial evidence of probative value such that a reasonable trier of fact could have concluded the defendant was guilty beyond a reasonable doubt. Id.

Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013), trans. denied. “A

conviction may be based on circumstantial evidence alone so long as there are

reasonable inferences enabling the factfinder to find the defendant guilty

beyond a reasonable doubt.” Lawrence v. State, 959 N.E.2d 385, 388 (Ind. Ct.

App. 2012) (citation omitted), trans. denied.

[9] To support Hernandez-Miguel’s conviction of child molesting, as a Level 4

felony, the State was required to prove that Hernandez-Miguel, with a child

under age fourteen, performed or submitted to any fondling or touching of the

child with intent to arouse the sexual desires of either the child or himself. I.C.

§ 35-42-4-3(b). It is undisputed that B.M.H. was under age fourteen and that

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2441 | March 5, 2019 Page 5 of 11 Hernandez-Miguel touched B.M.H.’s genital area. However, Hernandez-

Miguel contends on appeal that he did not have the intent to arouse the sexual

desires of either himself or B.M.H.; rather, he maintains, he touched B.M.H.’s

genitals on the outside of his clothing only to determine whether B.M.H. had

urinated on himself.

[10] “The intent element of child molesting may be established by circumstantial

evidence and may be inferred from the actor’s conduct and the natural and

usual consequence to which such conduct usually points.” Carter v. State, 31

N.E.3d 17, 30 (Ind. Ct. App. 2015), trans. denied. Furthermore, a molested

child’s uncorroborated testimony alone is sufficient to sustain a child molesting

conviction. E.g., Amphonephong v. State, 32 N.E.3d 825, 832 (Ind. Ct. App.

2015); see also Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012) ( “The

testimony of a sole child witness is sufficient to sustain a conviction for

molestation.”).

[11] Here, Officer Albaugh testified that B.M.H. had informed the police that

Hernandez-Miguel “wiggled [B.M.H.’s] peepee.” Id. at 61. And B.M.H.

testified that Hernandez-Miguel reached into B.M.H’s pants and touched his

penis and buttocks frequently and for an extended period of time. From that

evidence, it was reasonable for the trial court to infer that Hernandez-Miguel

did not briefly touch B.M.H.’s genitals from the outside of his pants for the sole

purpose of determining whether B.M.H. had urinated on himself but, rather,

directly touched and fondled B.M.H.’s genitals for an extended period of time

for the purpose of arousing his own sexual desires. See Amphonephong, 32

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2441 | March 5, 2019 Page 6 of 11 N.E.3d at 833 (holding child’s testimony that defendant repeatedly put his

hands in her pants and touched her genitals was sufficient evidence of intent to

arouse or satisfy defendant’s sexual desires). Hernandez-Miguel’s contentions

to the contrary are merely requests that we reweigh the evidence and judge

witness credibility, which we cannot do. Clemons, 996 N.E.2d at 1285. There

was sufficient evidence to support Hernandez-Miguel’s conviction.

Advisement Regarding Credit Restricted Felon [12] Hernandez-Miguel maintains that the trial court committed reversible error

when it failed to advise him of whether he was a credit restricted felon and the

consequences of being a credit restricted felon. Indiana Code Section 35-38-1-

7.8 requires the trial court at sentencing to determine whether a person qualifies

as a credit restricted felon. An offender qualifies as a credit restricted felon if he

or she is convicted of child molesting involving sexual intercourse or “other

sexual conduct”; if he or she is convicted of child molesting resulting in serious

bodily injury or death; or if he or she is convicted of a murder involving other

circumstances related to sexually-based crimes. I.C. §§ 35-31.5-2-72 (listing

qualifying convictions for credit restricted felon classification); 35-31.5-2-221.5

(defining “other sexual conduct” as “an act involving [either] a sex organ of one

(1) person and the mouth or anus of another person; or the penetration of the

sex organ or anus of a person by an object”). “Upon determining that a

defendant is a restricted felon, a court shall advise the defendant of the

consequences of this determination.” I.C. § 35-38-1-7.8(c) (emphasis added).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2441 | March 5, 2019 Page 7 of 11 [13] Here, the trial court did not determine that Hernandez-Miguel is a credit

restricted felon. Therefore, under the plain language of subsection (c) of the

statute, the trial court was not required to inform Hernandez-Miguel of the

consequences of being a credit restricted felon. Id. Moreover, there is nothing

in the language of the statute that requires a trial court to advise a defendant

that he is not a credit restricted felon, and Hernandez-Miguel cites no other

authority in support of that contention. The trial court did not err in failing to

advise Hernandez-Miguel of the fact that he is not a credit restricted felon and

the consequences of being a credit restricted felon.

Inappropriateness of Sentence [14] Hernandez-Miguel contends that his sentence is inappropriate in light of the

nature of the offense and his character. Article 7, Sections 4 and 6, of the

Indiana Constitution authorize independent appellate review and revision of a

sentence imposed by the trial court. See, e.g., Sanders v. State, 71 N.E.3d 839,

843 (Ind. Ct. App. 2017), trans. denied. This appellate authority is implemented

through Indiana Appellate Rule 7(B). Id. Revision of a sentence under Rule

7(B) requires the appellant to demonstrate that his sentence is inappropriate in

light of the nature of his offense and his character. Id. (citing Ind. Appellate

Rule 7(B)). We assess the trial court’s recognition or non-recognition of

aggravators and mitigators as an initial guide to determining whether the

sentence imposed was inappropriate. Robinson v. State, 61 N.E.3d 1226, 1228

(Ind. Ct. App. 2016).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2441 | March 5, 2019 Page 8 of 11 [15] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

sentence to the circumstances presented, and the trial court’s judgment “should

receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.

2008). The principal role of appellate review is to attempt to “leaven the

outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the

end of the day turns on “our sense of the culpability of the defendant, the

severity of the crime, the damage done to others, and myriad other facts that

come to light in a given case.” Id. at 1224. The question is not whether another

sentence is more appropriate, but rather whether the sentence imposed is

inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).

Deference to the trial court “prevail[s] unless overcome by compelling evidence

portraying in a positive light the nature of the offense (such as accompanied by

restraint, regard, and lack of brutality) and the defendant’s character (such as

substantial virtuous traits or persistent examples of good character).” Stephenson

v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[16] Hernandez-Miguel contends that the nature of the offense does not support his

seven-year sentence, which is within the two-to-twelve-year sentencing range

for a Level 4 felony and is only one year above the advisory sentence of six

years. I.C. § 35-50-2-5.5. When considering the nature of the offense, we look

at the defendant’s actions in comparison to the elements of the offense. Cannon

v. State, 99 N.E.3d 274, 280 (Ind. Ct. App. 2018), trans. denied. Child

molestation is among the most severe and heinous of offenses and, here, the

crime was made worse by the fact that Hernandez-Miguel molested his own

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2441 | March 5, 2019 Page 9 of 11 young son. As the trial court properly recognized, this criminal behavior was a

violation of the position of care, custody, and control that a parent has in

relation to his child. See Bacher v. State, 722 N.E.2d 799, 801-02 (Ind. 2000)

(noting fact that defendant was in a “position of trust” with the victim was a

valid aggravating circumstance). And Hernandez-Miguel has failed to provide

compelling evidence portraying in a positive light the nature of his offense, such

as restraint; rather, the evidence showed that Hernandez-Miguel molested

B.M.H. “a lot,” i.e., frequently. Tr. at 18.

[17] Hernandez-Miguel also asserts that his sentence is inappropriate in light of his

character. In support of that claim, he notes that “he was not the ‘worst of the

worst’ offenders,” and did not have a criminal history of violence or sexual

abuse. Appellant’s Br. at 20. However, his criminal history of one felony and

two misdemeanor convictions is certainly an aggravating circumstance. I.C. §

35-38-1-7.1(a)(2). That criminal history, in conjunction with his abuse of his

position of care, custody, and control over his own young child,3 supports the

3 The trial court erred in considering the age of the victim as an aggravator because age was an element of the offense, I.C. § 35-42-4-3(b), and the court failed to articulate the particular relevance of the child’s age as an aggravator, App. at 22-23; Tr. at 97. While the victim being under twelve can be an aggravator, see Ind. Code § 35–38–1–7.1(a)(3), our Supreme Court has made clear that “[w]hen the age of a victim constitutes a material element of the crime,” the trial court cannot treat it as an aggravating circumstance unless it sets forth “particularized circumstances” justifying such treatment, McCarthy v. State, 749 N.E.2d 528, 539 (Ind. 2001); see also Reyes v. State, 909 N.E.2d 1124, 1128 (Ind. Ct. App. 2009) (upholding use of molestation victim’s age as aggravator where trial court addressed relevance of age); Sullivan v. State, 836 N.E.2d 1031, 1035 (Ind. Ct. App. 2005) (same). McCoy v. State, 96 N.E.3d 95, 99 (Ind. Ct. App. 2018). However, that error was harmless as there existed other aggravating circumstances supporting the sentence.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2441 | March 5, 2019 Page 10 of 11 trial court’s decision to impose a sentence only one year longer the advisory

sentence. Against these aggravators, Hernandez-Miguel points to no mitigating

evidence, such as substantial virtuous traits or persistent examples of good

character, and the trial court found none. Stephenson, 29 N.E.3d at 122.

Although he notes that he worked and paid child support, we are not persuaded

that those facts mitigate his sexual molestation of his own young child. We

cannot say that his sentence is inappropriate in light of his character.

Conclusion [18] The State presented sufficient evidence to support Hernandez-Miguel’s

conviction. And the trial court did not err in failing to inform Hernandez-

Miguel of the fact that he is not a credit restricted felon and the consequences of

being a credit restricted felon. Finally, Hernandez-Miguel’s sentence, which

was only one year longer than the advisory sentence, was not inappropriate in

light of the nature of the offense and his character.

[19] Affirmed.

Bradford, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2441 | March 5, 2019 Page 11 of 11