Andy Sosa-Lopez v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 21, 2017
• Docket: 49A02-1704-CR-729
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 21 2017, 9:18 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ellen M. O’Connor Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Andy Sosa-Lopez, December 21, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1704-CR-729 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Stanley E. Kroh, Appellee-Plaintiff Magistrate Trial Court Cause No. 49G03-1607-F4-26150

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-729 | December 21, 2017 Page 1 of 5 Case Summary [1] Andy Sosa-Lopez (“Lopez”) appeals his conviction following a jury trial for

level 4 felony child molesting. The sole issue presented for our review is

whether the State presented sufficient evidence to sustain the conviction.

Finding the evidence sufficient, we affirm.

Facts and Procedural History [2] Lopez is the stepfather of Cesar Juarez. Juarez’s wife, Abigail Smiddy, has a

son, C.S., and a twelve-year-old daughter, N.S.1 Juarez considers himself to be

N.S.’s father. In July 2016, Juarez, Abigail, C.S., and N.S. lived in an

Indianapolis home with Lopez, his wife Maria, their two sons, and Maria’s

three sons. N.S. and C.S. shared a downstairs bedroom with their mother and

Juarez. The two children slept on a pull-out couch in that bedroom.

[3] On July 4, 2016, the entire family attended a fireworks show and then came

home and went to bed. The next morning, Abigail took Juarez to work around

7:30 a.m. While Abigail was gone, Lopez entered the downstairs bedroom and

fondled N.S.’s vagina while she was sleeping. The fondling woke N.S. up, and

she saw Lopez run out of the bedroom and go up the stairs. N.S. told her

mother about the incident when she returned home. Abigail immediately

called Juarez.

1 Abigail testified that she and Juarez were “engaged” and had “a commitment ceremony” four years ago. Tr. Vol. 2 at 58-59. Juarez testified that he and Abigail were “married.” Id. at 85.

Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-729 | December 21, 2017 Page 2 of 5 [4] That evening, the family confronted Lopez about the incident. Lopez admitted

that he went into the bedroom where N.S. was sleeping and stated that he

touched her to wake her up and to ask her if she knew where Juarez was.

Juarez did not believe this explanation because Lopez already knew that Juarez

was working that morning because they had just talked about it the Sunday

before. Abigail immediately called the police. When an officer arrived, Lopez

stood up, turned around, and placed his hands behind his back to be handcuffed

without any prior direction from the officer.

[5] The State charged Lopez with level 4 felony child molesting. Following a trial,

the jury found Lopez guilty as charged. The trial court sentenced Lopez to four

years’ imprisonment. This appeal ensued.

Discussion and Decision [6] Lopez contends that the State presented insufficient evidence to support his

conviction. When reviewing a claim of insufficient evidence, we neither

reweigh the evidence nor assess witness credibility. Bell v. State, 31 N.E.3d 495,

499 (Ind. 2015). We look to the evidence and reasonable inferences drawn

therefrom that support the conviction, and will affirm if there is probative

evidence from which a reasonable factfinder could have found the defendant

guilty beyond a reasonable doubt. Id. In short, if the testimony believed by the

trier of fact is enough to support the conviction, then the reviewing court will

not disturb it. Id. at 500.

Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-729 | December 21, 2017 Page 3 of 5 [7] Indiana Code section 35-42-4-3(b) provides that a person who, “with a child

under fourteen (14) years of age, performs or submits to any fondling or

touching, of either the child or the older person, with intent to arouse or to

satisfy the sexual desires of either the child or the older person, commits child

molesting, a Level 4 felony.” “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 sequence to which such conduct usually

points.” Bass v. State, 947 N.E.2d 456, 460 (Ind. Ct. App. 2011), trans. denied.

Moreover, a conviction can be sustained on only the uncorroborated testimony

of a single witness, even when that witness is the victim. Bailey v. State, 979

N.E.2d 133, 135 (Ind. 2012).

[8] N.S. testified that on the morning of July 5, 2016, when she was twelve years

old, she was sleeping wrapped in a blanket on the pull-out couch with her

brother. She awoke to the feeling of a hand touching her vagina in a circular

motion on the outside of her underwear. When she pushed the blanket off her

face, she saw Lopez running out of the bedroom and up the stairs. The jury

could reasonably infer from this testimony that Lopez touched N.S. and that he

did so with the intent to arouse or to satisfy his or her sexual desires. N.S.’s

testimony is alone sufficient to support Lopez’s conviction for level 4 felony

child molesting.

[9] Lopez suggests that perhaps N.S was “dreaming” or perhaps the sensations she

felt were related to her “eczema.” Appellant’s Br. at 14. This is merely a

Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-729 | December 21, 2017 Page 4 of 5 request for us to reweigh the evidence, a task not within our prerogative on

appeal. The State presented sufficient evidence to support Lopez’s conviction.

[10] Affirmed.

Robb, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-729 | December 21, 2017 Page 5 of 5