Candelario Rangel v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 12, 2016
• Docket: 71A04-1512-CR-2159
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 12 2016, 8:01 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brian J. May Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Candelario Rangel, April 12, 2016 Appellant-Defendant, Court of Appeals Case No. 71A04-1512-CR-2159 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable John M. Appellee-Plaintiff. Marnocha, Judge Trial Court Cause No. 71D02-1504-F1-7

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A04-1512-CR-2159 | April 12, 2016 Page 1 of 6 Case Summary and Issue [1] Following a bench trial, Candelario Rangel was convicted of two counts of

Level 1 felony child molesting. Rangel appeals, raising the sole issue of

whether the evidence is sufficient to support his convictions. Concluding the

State presented sufficient evidence, we affirm Rangel’s convictions.

Facts and Procedural History [2] Rangel is B.V.’s grandfather. In 2014, Rangel’s grandchildren often visited his

home in South Bend, Indiana. Rangel’s son, Jorge, also lived in the house.

Occasionally during visits the children would leave Rangel’s house and walk to

a nearby convenience store to buy snacks. However, B.V. usually stayed

behind with Rangel, at Rangel’s insistence. Often when the children returned,

B.V. would be exiting Rangel’s bedroom, money in hand. The door of the

bedroom was otherwise always locked. On one occasion, Jorge noticed B.V.

“touching herself.” Transcript at 56. When he asked B.V. why she was doing

this, she said “someone had taught her how.” Id.

[3] At some point, B.V.’s older brother, L.A., became suspicious. He noticed

Rangel kissed B.V. “not as the way a grandpa should.” Id. at 19. When he

asked B.V. about their grandfather, B.V. started to cry and told L.A. that

Rangel would kiss her when they were alone. L.A. immediately told their

mother, who called the police. The South Bend Police Department assigned

the case to Detective Douglas Masterson. Detective Masterson observed B.V.’s

Court of Appeals of Indiana | Memorandum Decision 71A04-1512-CR-2159 | April 12, 2016 Page 2 of 6 forensic interview at the CASIE Center, at which time B.V. disclosed Rangel

had kissed her “private.” Appendix at 11. Using a diagram, she indicated her

“private” referred to her vagina. Id.

[4] Detective Masterson interviewed several other family members and then

arranged an interview with Rangel, a native Spanish speaker. A bilingual

officer was present during the interview with Rangel to assist with translation as

needed. After being advised of his Miranda rights in both English and Spanish,

Rangel agreed to speak with Detective Masterson. In the course of the

interview, Rangel admitted to placing his mouth on B.V.’s vagina while they

were alone in his bedroom. According to Rangel, six-year-old B.V. jumped on

his bed and pulled her pants down on her own. He stated “he was going

through a depression” and “couldn’t help himself” when she pulled her pants

down. Tr. at 77. Thereafter, B.V. disclosed to a victim advocate that Rangel

had also touched her “private” with his penis. App. at 13.

[5] Rangel was arrested and charged with two counts of Class A felony child

molesting and two counts of Level 1 felony child molesting. Counts I and II

alleged Rangel performed sexual deviate conduct and sexual intercourse with

B.V. sometime between October 19, 2012, and June 30, 2014. Counts III and

IV alleged he performed sexual intercourse or other sexual conduct with B.V.

between July 1, 2014, and October 17, 2014.1 Prior to trial, Rangel filed a

1 Effective July 1, 2014, Indiana replaced “classes” of felonies with “levels” of felonies. See Pub. L. No. 168- 2014; Pub. L. No. 158-2013.

Court of Appeals of Indiana | Memorandum Decision 71A04-1512-CR-2159 | April 12, 2016 Page 3 of 6 motion to suppress the statements he made during the interview with Detective

Masterson. The trial court denied the motion, and a bench trial was held.

[6] B.V. testified Rangel pulled down her pants, kissed her mouth and “private,”

and “put his private in [her] private.” Tr. at 29, 35. When asked what she

considered to be her “private,” B.V. circled the vagina on a drawing of a girl;

when asked what she considered to be her grandfather’s “private,” she circled

the penis on a drawing of a boy. See id. at 30-31; State’s Exhibits 7, 8. She

testified it happened “more than one time” at her grandfather’s house, tr. at 31-

32, and stated he gave her money and promised to buy her “big girl makeup” if

she did not tell anyone what he did, id. at 33. Rangel also testified. He

admitted Jorge had asked if he ever “touched [B.V.’s] private things,” id. at 140,

but he denied molesting B.V. Rangel claimed he lied to the police when he

admitted to placing his mouth on B.V.’s vagina.

[7] The trial court found Rangel guilty of Counts III and IV and not guilty of

Counts I and II. In its written findings, the trial court explained that it

considered the victim’s testimony “credible and persuasive” but did not find

any evidence to support the allegations of abuse occurring prior to July 1, 2014.

App. at 25. Thereafter, the trial court sentenced Rangel to thirty-five years on

each count, to be served concurrently in the Department of Correction. This

appeal followed.

Court of Appeals of Indiana | Memorandum Decision 71A04-1512-CR-2159 | April 12, 2016 Page 4 of 6 Discussion and Decision I. Standard of Review [8] In reviewing the sufficiency of the evidence, we consider only the probative

evidence and reasonable inferences that support the verdict. Drane v. State, 867

N.E.2d 144, 146 (Ind. 2007). We consider conflicting evidence most favorably

to the trial court’s ruling and will affirm the conviction unless no reasonable

fact-finder could find the elements of the offense proven beyond a reasonable

doubt. Id. “It is the fact-finder’s role, not that of appellate courts, to assess

witness credibility and weigh the evidence to determine whether it is sufficient

to support a conviction.” Id.

II. Child Molesting [9] Indiana Code section 35-42-4-3(a)(1) (2014) provides in relevant part,

A person who, with a child under fourteen (14) years of age, knowingly or intentionally performs or submits to sexual intercourse or other sexual conduct . . . commits child molesting, a Level 3 felony. However, the offense is a Level 1 felony if . . . it is committed by a person at least twenty-one (21) years of age[.]

“Other sexual conduct” includes an act involving “a sex organ of one (1) person

and the mouth or anus of another person.” Indiana Code section 35-31.5-2-

221.5(1).

[10] Rangel was convicted of two counts of Level 1 felony child molesting. He

argues this court should reweigh the evidence because he recanted his

Court of Appeals of Indiana | Memorandum Decision 71A04-1512-CR-2159 | April 12, 2016 Page 5 of 6 confession at trial. Accordingly, “the trier of fact could have discounted its’

[sic] evidentiary value.” Brief of Appellant at 7. He contends that without his

confession, the evidence is insufficient because the case would rest solely on the

victim’s testimony.

[11] Our supreme court has held the uncorroborated testimony of a victim is

sufficient evidence to sustain a conviction for child molesting. Carter v. State,

754 N.E.2d 877, 880 (Ind. 2001), cert. denied, 537 U.S. 831 (2002). But more

importantly, our standard of review is clear. We do not reweigh evidence or

assess the credibility of witnesses. Drane, 867 N.E.2d at 146. B.V. testified

Rangel kissed her “private” and “put his private in [her] private.” Tr. at 29, 35.

Rangel admitted during the investigation he placed his mouth on B.V.’s vagina,

and the trial court admitted his confession. Other family members testified to

inappropriate kissing and to B.V. “touching herself” because “someone had

taught her how.” Id. at 56. We conclude the evidence was sufficient to prove

sixty-year-old Rangel knowingly performed sexual intercourse or other sexual

conduct with B.V., a six-year-old child.

Conclusion [12] The evidence is sufficient to support Rangel’s convictions for Level 1 felony

child molesting. We therefore affirm his convictions.

[13] Affirmed.

Najam, J., and Crone, J., concur. Court of Appeals of Indiana | Memorandum Decision 71A04-1512-CR-2159 | April 12, 2016 Page 6 of 6