Jesse Cantu v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 21, 2017
• Docket: 34A05-1701-CR-94
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Jun 21 2017, 8:32 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 Donald E.C. Leicht Curtis T. Hill, Jr. Kokomo, Indiana Attorney General of Indiana Laura Anderson Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jesse Cantu, June 21, 2017 Appellant-Defendant, Court of Appeals Case No. 34A05-1701-CR-94 v. Appeal from the Howard Circuit Court State of Indiana, The Honorable Lynn Murray, Appellee-Plaintiff Judge Trial Court Cause No. 34C01-1510-F3-168

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 34A05-1701-CR-94 | June 21, 2017 Page 1 of 6 [1] Jesse Cantu appeals the sentence imposed by the trial court after he pleaded

guilty to Rape, a Level 3 felony.1 Cantu argues that pursuant to Indiana

Appellate Rule 7(B), the sentence imposed is inappropriate in light of the nature

of the offense and his character. Finding that Mr. Cantu’s sentence is not

inappropriate, we affirm.

Facts [2] Sixteen-year-old Cantu visited sixteen-year-old E.S. at her home on the

afternoon of October 13, 2015. Cantu and E.S. had been dating for two months.

E.S. told Cantu that she wanted to end their relationship, and, after she closed

the door to her room, they briefly cuddled as they sat on her bed. Shortly

thereafter, Cantu pinned her arms to the bed, pulled down her pants and

underwear, and penetrated her with his penis for between thirty seconds and

one minute. She repeatedly said, “No, no, stop, get off me!” during the

incident. Appellant’s App. Vol. II p. 22. Cantu then left E.S.’s home, and E.S.

told her mother what had happened. E.S.’s parents reported the incident to the

police and took E.S. to the hospital.

[3] On October 16, 2016, the State charged Cantu with Level 3 felony rape and

Level 6 felony sexual battery. Cantu posted bond and was released from

1 Ind. Code § 35-42-4-1.

Court of Appeals of Indiana | Memorandum Decision 34A05-1701-CR-94 | June 21, 2017 Page 2 of 6 custody. Upon Cantu’s release, the court put a no-contact order in place,

preventing Cantu from having any contact with E.S. and her family.

[4] E.S.’s family reported several break-ins and trespasses on their property over the

following weeks. In March 2016, E.S.’s parents positively identified Cantu to

the police from security camera footage filmed outside their home, and Cantu

was arrested. The court subsequently revoked Cantu’s bond.

[5] Cantu agreed to plead guilty to rape in exchange for the dismissal of the sexual

battery charge. On December 16, 2016, the trial court sentenced Cantu to

fifteen years, with nine years suspended to probation. Cantu now appeals.

Discussion and Decision [6] Cantu argues that the sentence is inappropriate in light of the nature of the

offense and his character pursuant to Indiana Appellate Rule 7(B). This Court

must “conduct [its] review with substantial deference and give ‘due

consideration’ to the trial court’s decision—since the ‘principal role of [its]

review is to attempt to leaven the outliers,’ and not to achieve a perceived

‘correct’ sentence[.]” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014) (quoting

Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal citations

omitted).

[7] A person who commits a Level 3 felony may be imprisoned for a minimum of

three years and a maximum of sixteen years, with the advisory sentence being

nine years. Ind. Code § 35-50-2-5. Cantu’s fifteen-year sentence with six years

executed and nine suspended falls within the statutory requirement. His Court of Appeals of Indiana | Memorandum Decision 34A05-1701-CR-94 | June 21, 2017 Page 3 of 6 executed sentence is below the advisory sentence for a Level 3 felony. We do

not find that his sentence is an outlier as described in Knapp.

[8] The nature of the offense, while not as severe as some cases, is still serious. The

crime has caused E.S. significant trauma with which she is still dealing. E.S.

had never had sex before she was raped. Cantu admitted that he knew she did

not want to have sex at the time, but he nonetheless forced himself on her. E.S.

testified that before the rape, she enjoyed school and had an active social life.

Now she is no longer able to concentrate on her classes and cannot maintain

friendships. Her mood is unstable, she cannot sleep because of night terrors,

and she has attempted to physically harm herself. Cantu preyed on this teenage

girl, violating her trust and her body and causing lasting trauma to her and her

family. The nature of the offense does not aid Cantu’s inappropriateness

argument.

[9] As for Cantu’s character, while he had no prior criminal history, he committed

multiple new offenses while on bond for this case. He repeatedly violated the

no-contact order taken out against him by E.S.’s family. He attempted to break

into her house on several occasions and sometimes succeeded, stealing items of

personal property which were later recovered from his possession. E.S. and her

parents set up burglar alarms, installed security cameras, and changed their

locks to protect themselves against Cantu, but he persisted, frequently

damaging their property and security system at great expense to them. Only

when Cantu’s bond was revoked and he was placed in custody did his behavior

Court of Appeals of Indiana | Memorandum Decision 34A05-1701-CR-94 | June 21, 2017 Page 4 of 6 stop. Cantu’s actions evidence a desire to harass and abuse E.S. and her family

and do not reflect well on his character.

[10] Furthermore, Cantu has repeatedly sent threats to E.S. On the night of the rape,

E.S. sent an electronic message to Cantu stating that she wanted to tell her

mother what had happened. Cantu attempted to intimidate her into remaining

silent, writing: “I will kill myself. Tell her things got a bit carried away but

please don’t tell her I raped you.” Appellant’s Vol. II p. 24. When E.S. replied

that she would not lie about the rape, Cantu wrote: “Then I’m going to kill

myself.” Appellant’s App. Vol. IV p. 13–14. Cantu also sent messages to other

individuals, asking them to batter E.S. Cantu’s attempts to avoid culpability by

threatening and manipulating E.S. do not indicate to us that his sentence should

be reduced based on his character. His callous and menacing statements show a

lack of remorse for the trauma he has caused.

[11] Cantu argues that the trial court should have considered the fact that he did not

subject E.S. to beating, torture, confinement or multiple sexual assaults as a

positive reflection of his character. We do not see how the fact that his crime

was not worse is a positive reflection on Cantu’s character. He also suggests

that his age at the time of the crime and his ADHD diagnosis render the

sentence appropriate. His age and any mental conditions he suffers from have

not tempered the vindictiveness with which he has pursued E.S. and her family.

The facts before us do not recommend a reduction in Cantu’s sentence.

Court of Appeals of Indiana | Memorandum Decision 34A05-1701-CR-94 | June 21, 2017 Page 5 of 6 [12] We therefore find that Cantu’s sentence was not inappropriate in light of the

nature of the offense and his character.

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

Barnes, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 34A05-1701-CR-94 | June 21, 2017 Page 6 of 6