Francisco Esparza-Hernandez v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 21, 2017
• Docket: 20A03-1605-CR-1095
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this FILED Memorandum Decision shall not be regarded as Feb 21 2017, 8:27 am precedent or cited before any court except for the purpose of establishing the defense of res judicata, CLERK Indiana Supreme Court Court of Appeals collateral estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Marielena Duerring Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Francisco Esparza-Hernandez, February 21, 2017

Appellant-Defendant, Court of Appeals Cause No. 20A03-1605-CR-1095 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Teresa L. Cataldo, Judge Appellee-Plaintiff. Trial Court Cause No. 20D03-1411- FA-25

Riley, Judge.

Court of Appeals of Indiana | Memorandum Opinion 20A03-1605-CR-1095 | February 21, 2017 Page 1 of 8 STATEMENT OF THE CASE [1] Appellant-Defendant, Francisco Hernandez (Hernandez), appeals his sentence

for Count I, child molesting, a Class A felony, Ind. Code § 35-42-4-3(a)(1)

(2012); and Count II, sexual misconduct with a minor, a Class B felony, I.C. §

35-42-4-9(a)(1) (2012).

[2] We affirm.

ISSUE [3] Hernandez raises one issue on appeal, which we restate as: Whether

Hernandez’s sentence is inappropriate in light of the nature of his offenses and

his character.

FACTS AND PROCEDURAL HISTORY [4] Between 2008 and 2009, Hernandez, was living in Jonesboro, Georgia, with his

then-wife, D.E., and D.E.’s children, including eight-year-old I.O. Hernandez

was I.O.’s step-father. During that time, Hernandez began touching I.O.’s

“butt” with his hand and “his hand would then move to the front of her body

(her vagina).” (Appellant’s App. Vol. III, p. 17). In March 2011, D.E. and her

children, including I.O., relocated from Jonesboro, Georgia, to Elkhart,

Indiana. In the spring of 2012, Hernandez joined the family in Elkhart.

According to I.O., Hernandez would rub his penis on her “butt” and he

eventually, on more than one occasion, began penetrating her anus with his

penis either in I.O.’s bedroom or in D.E.’s bedroom. I.O. reported to D.E. that

Court of Appeals of Indiana | Memorandum Opinion 20A03-1605-CR-1095 | February 21, 2017 Page 2 of 8 Hernandez had penetrated her, and sometime in April 2012, D.E. took I.O to

the hospital to be checked for “vaginal penetration.” (Appellant’s App. Vol III,

p. 17). The medical exam revealed that I.O.’s vagina had not been penetrated,

so D.E. disbelieved I.O.’s allegations against Hernandez.

[5] On October 28, 2013, D.E. kicked Hernandez out of her apartment due to a

battery incident, which was not reported to the police. Thereafter, Hernandez

moved to Texas but still maintained phone contact with the family. In

February 2014, I.O. reported to D.E. that Hernandez had threatened her and

further indicated that he had sex with her in the past. Again, D.E. did not

believe I.O.’s claims, until she overheard a phone conversation, in which

Hernandez told I.O. that he was not trying to hurt her, “he was sticking it in

real slow.” (Appellant’s App. Vol. III p. 17). At an interview conducted at the

Child Family Advocacy Center in Elkhart, I.O. reiterated Hernandez’s

molestations against her while living in Jonesboro, Georgia, and in Elkhart,

Indiana. With regards to the incidents in Elkhart, I.O. indicated that

Hernandez would “rub the ‘front’ part of his body (his penis) on her butt.”

(Appellant’s App. Vol. III, p. 18). I.O. recounted that Hernandez progressed

from touching her buttocks with his penis to inserting his penis inside her anus.

I.O. indicated that Hernandez would ejaculate “inside of her and she would go

to the bathroom to wash off.” (Appellant’s App. Vol. III, p. 18). I.O. stated

that the molestations happened on more than one occasion, sometimes in her

bedroom or in D.E.’s and Hernandez’s bedroom.

Court of Appeals of Indiana | Memorandum Opinion 20A03-1605-CR-1095 | February 21, 2017 Page 3 of 8 [6] On September 15, 2014, during a recorded phone call under the direction of a

law enforcement officer from Elkhart Police Department, D.E. asked

Hernandez “why did he fuck I.O.? [Hernandez] replied that he didn’t want to,

it was [I.O.’s] idea.” (Appellant’s App. Vol. III, p. 18). D.E. then convinced

Hernandez that she would leave her children and move to Mexico with him if

he returned to Elkhart to help her move. On November 15, 2014, Hernandez

took a Greyhound bus from Dallas, Texas, and he arrived in Elkhart, Indiana,

the following day. At approximately 11:20 a.m., law enforcement officers from

the Elkhart Police Department initiated a traffic stop, and after D.E. identified

Hernandez, he was arrested.

[7] On November 19, 2014, the State filed an Information, charging Hernandez

with Class A felony child molesting and Class B felony sexual misconduct with

a minor. On January 28, 2016, just days before his jury trial was set to begin,

Hernandez pled guilty to both Counts. At the change of plea hearing,

Hernandez admitted that he had anal sex with his step-daughter, I.O., both

before and after she turned fourteen years old, between January 2012 and

October 2013. On April 14, 2016, the trial court conducted Hernandez’s

sentencing hearing. At the close of the evidence, the trial court sentenced

Hernandez to consecutive sentences of forty-five years for Class A felony child

molesting, and fifteen years for Class B felony sexual misconduct with a minor.

Hernandez’s aggregate sentence is sixty years.

[8] Hernandez now appeals. Additional facts will be provided as necessary.

Court of Appeals of Indiana | Memorandum Opinion 20A03-1605-CR-1095 | February 21, 2017 Page 4 of 8 DISCUSSION AND DECISION [9] Hernandez contends that his sixty-year aggregate sentence is inappropriate in

light of the nature of the offenses and his character. Indiana Appellate Rule

7(B) provides that we “may revise a sentence authorized by statute if, after due

consideration of the trial court’s decision, [we find] that the sentence is

inappropriate in light of the nature of the offense and the character of the

offender.” The burden is on the defendant to persuade the appellate court that

his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080

(Ind. 2006). “Ultimately the length of the aggregate sentence and how it is to be

served are the issues that matter.” Cardwell v. State, 895 N.E.2d 1219, 1224

(Ind. 2008). Whether we regard a sentence as appropriate 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 a myriad of other considerations that come to

light in a given case. Id.

[10] The advisory sentence is the starting point the legislature has selected as an

appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,

1019 (Ind. 2012). At the time Hernandez committed his Class A felony child

molesting offense, his offense was punishable by a maximum of fifty years, with

a minimum of twenty years, and an advisory sentence of thirty years. I.C. § 35-

50-2-4 (2012). Hernandez received a forty-five-year sentence. As for his Class

B felony sexual misconduct with a minor, Hernandez faced an imprisonment

term of six to twenty years, with an advisory term of ten years. I.C. § 35-50-2-5

(2012). Hernandez was sentenced to fifteen years, and the trial court ordered

Court of Appeals of Indiana | Memorandum Opinion 20A03-1605-CR-1095 | February 21, 2017 Page 5 of 8 that both sentences be served consecutively, for an aggregate sentence of sixty

years.

[11] In the instant case, Hernandez began molesting his stepdaughter I.O. at the age

of eight, long before he was charged with the instant offenses. In 2012, after

Hernandez moved in with his family, he began touching I.O.’s buttocks with

his penis and he progressed to penetrating her anus with his penis. When I.O.

mustered the courage to report the abuse to her mother, D.E., regrettably

believed Hernandez’s denial of I.O.’s allegations because D.E. loved and

trusted Hernandez. D.E. only believed I.O.’s claims after she overheard a

phone conversation between Hernandez and I.O. where Hernandez stated that

he was not trying to hurt I.O., he was “sticking it in real slow.” (Appellant’s

App. Vol. III, p. 17).

[12] We find that Hernandez grossly abused his position of trust over his

stepdaughter I.O. when he began inappropriately touching her at just eight

years old, long before he was charged with the current offenses. Hernandez

deplorable behavior escalated in 2012 when he penetrated I.O.’s anus with his

penis on multiple occasions, both before and after she had turned fourteen years

old. What is even more despicable is that when D.E. confronted Hernandez, he

defended himself by stating that it was I.O.’s idea. Moreover, Hernandez

inflicted severe emotional harm upon I.O. At the sentencing hearing, D.E.

testified on I.O.’s behalf because I.O. was too traumatized to face Hernandez,

and she indicated that she and I.O were receiving counseling as a result of

Hernandez’s crimes.

Court of Appeals of Indiana | Memorandum Opinion 20A03-1605-CR-1095 | February 21, 2017 Page 6 of 8 [13] Hernandez’s character likewise provides us no reason to revise his sentence.

Hernandez’s contention on appeal is that his minimal criminal history does not

rationalize his sixty-year sentence. Hernandez’s criminal history includes two

misdemeanor battery convictions. Notwithstanding his proposition that his

minimal criminal history should permit the modification of his sixty-year

sentence, Hernandez’s argument disregards the copious amount of evidence

relating to his bad character. We initially note that Hernandez was born in

Mexico, and he illegally entered the United States when he was sixteen years

old. The record further shows that Hernandez was deported but that did not

deter him from illegally reentering the country. The fact that Hernandez is in

the country illegally illustrates his disrespect for the laws of this state and

country. See Sanchez v. State, 891 N.E.2d 174, 176-77 (Ind. Ct. App. 2008)

(illegal alien status reflects disregard for the law). Moreover, Hernandez

violated a position of trust with a child who considered him to be a stepfather.

Hernandez’s acts of victimizing a young child over whom he had a position of

trust also reflects poorly on his character.

[14] Hernandez nevertheless contends his consecutive sentences are inappropriate.

The decision to impose consecutive sentences lies within the discretion of the

trial court. Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014), trans. denied.

A trial court is required to state its reasons for imposing consecutive sentences.

Id. Moreover, a single aggravating circumstance may justify the imposition of

consecutive sentences. Gilliam v. State, 901 N.E.2d 72, 74 (Ind. Ct. App. 2009).

Here, the trial court found not just one, but a number of aggravating

Court of Appeals of Indiana | Memorandum Opinion 20A03-1605-CR-1095 | February 21, 2017 Page 7 of 8 circumstances, including that Hernandez is in the country illegally and re-

entered illegally after deportation; Hernandez’s prior battery conviction was

directed at D.E., and I.O. witnessed the battery; Hernandez had care, custody

and control over I.O. when he repeatedly molested her. As such, we find that

the trial court identified ample aggravating circumstances to support imposition

of consecutive sentences. See Smith v. State, 889 N.E.2d 261 (Ind. 2008) (noting

that the defendant’s repeated molestations of his stepdaughter, together with his

violation of his position of trust and his infliction of psychological abuse,

warranted a sentence on one of the counts of child molesting being imposed

consecutive to one of the other counts, resulting in a total executed sentence of

sixty years).

[15] In sum, we conclude that Hernandez’s aggregate sixty-year sentence is not

inappropriate in light of the nature of the offenses and his character.

CONCLUSION [16] Based on the foregoing, we conclude that Hernandez’s sixty-year sentence is

appropriate in light of the offenses and his character.

[17] Affirmed.

[18] Crone, J. and Altice, J. concur

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