Hector G. Lopez v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 20, 2018
• Docket: 18A-CR-1940
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Dec 20 2018, 8:48 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald C. Swanson, Jr. Curtis T. Hill, Jr. Deputy Public Defender Attorney General of Indiana Fort Wayne, Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Hector G. Lopez, December 20, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1940 v. Appeal from the Allen Superior Court State of Indiana, The Hon. Frances C. Gull, Judge Appellee-Plaintiff. Trial Court Cause No. 02D05-1802-F5-57

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1940 | December 20, 2018 Page 1 of 5 Case Summary [1] In February of 2018, Hector Lopez struck and strangled Yolanda Moreno, with

whom he has two children, during an argument. Lopez shoved one of

Moreno’s children when she attempted to telephone the police, an incident

witnessed by another of Moreno’s children. As it happens, a no-contact order

concerning Lopez and Moreno was in effect at the time. The State charged

Lopez with Level 5 felony battery resulting in bodily injury to a person under

fourteen years old, Level 6 felony domestic battery committed in the presence

of a child under sixteen years old, Level 6 felony strangulation, Class A

misdemeanor interference with the reporting of a crime, and Class A

misdemeanor invasion of privacy. The trial court found Lopez guilty as

charged and sentenced him to four years of incarceration, a sentence Lopez

contends is inappropriately harsh. Because we disagree, we affirm.

Facts and Procedural History [2] On February 16, 2018, Moreno lived in Allen County with her five children and

Lopez, the father of two of her children. The party of seven went out to dinner,

and Lopez, who was intoxicated, became angry and argued with a waitress and

Moreno after one of the children vomited. When the group returned home,

Moreno sent four of the children upstairs, gave the oldest her telephone, and

told her to go outside “just in case something happened[.]” Tr. Vol. II p. 6.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1940 | December 20, 2018 Page 2 of 5 [3] When Moreno told Lopez to leave, he pushed her in the back and then struck

her in the mouth, drawing blood. When Moreno again told Lopez to leave and

tried to put some of his clothing onto a bed, he pushed her down and strangled

her for approximately forty seconds, which was witnessed by Moreno’s oldest

child, who was not yet fourteen years old. Moreno could not breathe and

scratched Lopez’s back. When Moreno told her daughter to call the police,

Lopez followed her to her room, pushed her “through the wall[,]” took the

telephone from her, and ended the call. Tr. Vol. II p. 13. One of Moreno’s

other children was in the daughter’s room at the time. Meanwhile, Moreno

had found a broom, struck Lopez with it, and managed to get outside and

summon help. It was later determined that a no-contact order prohibiting

Lopez from having contact with Moreno was in effect on February 16, 2018,

and had been since 2014.

[4] On February 23, 2018, the State charged Lopez with Level 5 felony battery

resulting in bodily injury to a person under fourteen years old, Level 6 felony

domestic battery committed in the presence of a child under sixteen years old,

Level 6 felony strangulation, Class A misdemeanor interference with the

reporting of a crime, and Class A misdemeanor invasion of privacy. On June

19, 2018, the trial court found Lopez guilty as charged. On July 27, 2018, the

trial court sentenced Lopez to four years of incarceration for battery, two years

for domestic battery, two years for strangulation, one year for interference with

the reporting of a crime, and one year for invasion of privacy, all sentences to

be served concurrently.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1940 | December 20, 2018 Page 3 of 5 Discussion and Decision [5] Lopez contends that his four-year aggregate sentence is inappropriately harsh.

This court will revise a sentence only if, upon “due consideration of the trial

court’s decision” it nonetheless appears that “the sentence is inappropriate in

light of the nature of the offense and the character of the offender.” Ind.

Appellate Rule 7(B); Anglemyer v. State, 868 N.E.2d 482, 490–91 (Ind. 2007),

clarified on reh’g, 875 N.E.2d 218 (2007). The “nature of the offense” refers to

the defendant’s acts in comparison with the elements of his offense, Cardwell v.

State, 895 N.E.2d 1219, 1224 (Ind. 2008), while “character of the offender”

refers to general sentencing considerations and the relevant aggravating and

mitigating circumstances. Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014).

Lopez has the burden to show his sentence is inappropriate in light of both the

nature of the offense and his character. Gil v. State, 988 N.E.2d 1231, 1237

(Ind. Ct. App. 2013). This may be done with “compelling evidence portraying

in a positive light the nature of the offense […] and the defendant’s character[.]”

Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). Lopez was convicted of five

crimes, the most serious being a Level 5 felony (with an advisory sentence of

three years and a maximum of six), and was given an aggregate sentence of four

years of incarceration. See Ind. Code § 35-50-2-6(b).

[6] The nature of Lopez’s offenses justifies his sentence. Lopez became intoxicated

and argued with a waitress and Moreno at a restaurant, prompting his entire

party to leave. Soon thereafter, when Moreno told Lopez to leave their home,

he struck her in the mouth, pushed her repeatedly, and strangled her. Lopez

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1940 | December 20, 2018 Page 4 of 5 committed his crimes in the presence of two of Moreno’s children, one of

whom also felt his wrath as she attempted to contact police. It is worth noting

that Lopez should not have been with Moreno and the children at all because

he had an active no-contact order in place at the time he committed the

offenses.

[7] As for Lopez’s character, it also justifies his sentence. Lopez’s criminal history

begins in 2003 and includes misdemeanor convictions for public intoxication,

two counts of operating a vehicle with a BAC of 0.15 g/mL or greater, two

counts of domestic violence in Ohio, control of a motor vehicle while under the

influence in Ohio, domestic battery, and driving while under the influence of

alcohol or drugs in Ohio, eight convictions altogether. Despite Lopez receiving

probation for a number of these offenses—all of which involved substance

abuse or domestic violence—the instant offenses reveal that probation has not

caused Lopez to reform himself. Lopez’s character, as revealed by his criminal

history and his propensity for committing the same types of offenses, justifies

his four-year sentence. In light of the nature of Lopez’s five offenses and his

character, he has failed to establish that his four-year aggregate sentence is

inappropriate.

[8] The judgment of the trial court is affirmed.

Bailey, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1940 | December 20, 2018 Page 5 of 5