John Guajardo v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 16, 2018
• Docket: 54A01-1711-CR-2749
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jul 16 2018, 10:48 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Justin L. Froedge Curtis T. Hill, Jr. Goebel Law Office Attorney General of Indiana Crawfordsville, Indiana Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

John Guajardo, July 16, 2018 Appellant-Defendant, Court of Appeals Case No. 54A01-1711-CR-2749 v. Appeal from the Montgomery Superior Court State of Indiana, The Honorable Heather Barajas, Appellee-Plaintiff. Judge Trial Court Cause No. 54D01-1610-F6-2797

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2749 | July 16, 2018 Page 1 of 12 Case Summary and Issue [1] Following a jury trial, John Guajardo was convicted of two counts of battery by

an adult against a child, both as Level 6 felonies. The trial court sentenced

Guajardo to an aggregate term of five years in the Indiana Department of

Correction. On appeal, Guajardo challenges the sufficiency of the evidence

supporting his convictions and his sentence. Concluding that the evidence

produced at trial supports Guajardo’s convictions and that his sentence is not

inappropriate in light of the nature of his offenses and his character, we affirm.

Facts and Procedural History [2] In the late summer of 2016, eleven-year-old H.J. and her mother C.J. planned

to move to Crawfordsville to be closer to family and so that C.J. could continue

her education and work. H.J. was to attend middle school in Crawfordsville as

well. In order to facilitate H.J.’s school attendance before their actual move,

C.J. arranged for H.J. to stay with H.J.’s aunt, C.C., in Crawfordsville. C.C.’s

twenty-six-year-old boyfriend, Guajardo, and the couple’s six-year-old son also

lived in the household. H.J. was close with her aunt C.C. and with Guajardo,

who she called uncle. H.J. trusted Guajardo.

[3] When she stayed with C.C. and Guajardo, H.J. slept on one of two couches in

the living room. On August 31, 2016, H.J. was awakened around 4:35 a.m. by

the slamming of a door. Guajardo and a female friend entered the living room.

Guajardo initially sat on the living room’s unoccupied couch. The female

Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2749 | July 16, 2018 Page 2 of 12 friend went into C.C.’s bedroom and closed the door. Guajardo moved to the

edge of the couch occupied by H.J., lifted her legs, and placed her legs over his

lap. Guajardo touched H.J.’s inner thighs and buttocks for between twenty and

thirty minutes. H.J. felt uncomfortable and confused when Guajardo touched

her in this manner. H.J. attempted to move away from Guajardo. Guajardo

ceased touching H.J. when C.C. came out of her bedroom and entered the

living room.

[4] H.J. attended school on September 1, 2016, as scheduled. At bedtime that

evening, H.J. felt scared, uncomfortable, and confused. H.J. went to bed again

on the living room couch. Although she attempted to stay awake the entire

night, H.J. fell asleep and was again awoken between 4:00 a.m. and 5:00 a.m.

by the slamming of a door. Guajardo and the same female friend entered the

living room, where Guajardo sat on the unoccupied couch. As soon as the

friend went into C.C.’s bedroom, Guajardo sat on the edge of the couch where

H.J. slept. Guajardo again lifted and placed H.J.’s legs on his lap. Guajardo

touched H.J.’s thighs and buttocks. Guajardo also placed his hand under H.J.’s

shirt and attempted to feel under her bra but was only successful in touching her

chest on her bra line. H.J. tried to move away from Guajardo by forcing her

body into the crevices of the sofa. When C.C.’s bedroom door opened,

Guajardo moved over to the other couch.

[5] H.J. feigned illness later that day so that her mother would retrieve her. After

sleeping a few hours, H.J. reported Guajardo’s actions to her mother, who

Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2749 | July 16, 2018 Page 3 of 12 contacted the authorities. The State charged Guajardo with two counts of

Level 6 battery by an adult on a child under the age of fourteen.

[6] At a jury trial that took place on August 22, 2017, H.J. testified regarding the

details of the offenses. Guajardo’s trial counsel cross-examined H.J. about her

vivid imagination, her habit of viewing crime-related television shows, her

desire to spend less time away from her mother, and about the fact that she

experienced nightmares. During his own testimony, Guajardo denied sitting on

the couch where H.J. slept and denied making contact with her clothing or

body. According to Guajardo, he may have placed a blanket on H.J. while she

slept but there could have been no misunderstanding about his actions on either

night. The jury found Guajardo guilty of both offenses. The trial court

scheduled Guajardo’s sentencing hearing for September 29, 2017.

[7] A pre-sentence investigation report (“PSI”) was prepared and filed with the trial

court in advance of Guajardo’s sentencing. Guajardo appeared at his

September 29, 2017, sentencing hearing under the influence of

methamphetamines. The trial court found him in contempt of court and

ordered him to serve thirty days in the county jail. Guajardo’s second

sentencing hearing was held on October 26, 2017. Guajardo’s juvenile criminal

history consisted of a referral for reckless possession of paraphernalia and

adjudications for trespass, mischief, possession of marijuana, resisting law

enforcement, and illegal consumption. Guajardo had two instances of

runaway. Guajardo had received a referral to the Teen Court and the Parent

Project, but he did not complete the Parent Project. Guajardo also received

Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2749 | July 16, 2018 Page 4 of 12 probation for the true-findings which he violated and did not complete

successfully. As an adult, Guajardo had convictions in 2008 for theft and

burglary of a vehicle in the state of Utah for which he received twelve months

of probation. In 2008, Guajardo was also convicted of possession of marijuana

and illegal possession of alcohol. Guajardo had an additional conviction for

illegal possession of alcohol. Guajardo’s work history consisted of two years of

part-time service at a fast food restaurant and another three months of

employment at another business prior to being held in contempt of court in this

matter. At his sentencing hearing, Guajardo expressed his willingness to

participate in substance abuse treatment and spoke about his ability to comply

with the requirements of any probation that he was granted. After apologizing

for “what has happened,” “everything I have caused,” “[a]ll the damage,” “my

actions,” and for giving H.J. nightmares, Guajardo admitted in response to

questioning by the prosecutor that he had touched H.J. inappropriately.

Transcript at 161, 163-64.

[8] The trial court found as aggravating circumstances that Guajardo had been in a

position of trust with H.J., two separate offenses occurred, H.J. was under the

age of twelve, H.J. had incurred a great deal of emotional harm, Guajardo had

attended his first sentencing hearing under the influence of methamphetamines,

Guajardo had exhibited a low level of remorse, and Guajardo had been sober

when he committed the offenses. The trial court found as a mitigating

circumstance that Guajardo had a young son who would be negatively

impacted by Guajardo’s incarceration. The trial court found that the

Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2749 | July 16, 2018 Page 5 of 12 aggravating circumstances significantly outweighed the mitigating

circumstance. The trial court sentenced Guajardo to two and one-half years for

each conviction, to be served consecutively. Guajardo now appeals his

convictions and his sentence.

Discussion and Decision I. Sufficiency of Evidence A. Standard of Review [9] Guajardo first contends the evidence was insufficient to support his two

convictions for battery by an adult against a child. “Sufficiency-of-the-evidence

claims face a steep standard of review: we consider only the evidence and

reasonable inferences most favorable to the convictions, neither reweighing

evidence nor reassessing witness credibility.” Griffith v. State, 59 N.E.3d 947,

958 (Ind. 2016). The reviewing court affirms the judgment unless no reasonable

factfinder could find the defendant guilty. Id. “We may, and ordinarily do,

uphold findings of guilt beyond a reasonable doubt supported only by the

uncorroborated testimony of a single witness, even the victim’s.” C.S. v. State,

71 N.E.3d 848, 851 (Ind. Ct. App. 2017).

B. Evidence of Battery [10] Level 6 felony battery by an adult against a child is committed when a person

eighteen years of age or older knowingly or intentionally touches another

person less than fourteen years of age in a rude, insolent, or angry manner. Ind.

Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2749 | July 16, 2018 Page 6 of 12 Code § 35-42-2-1(c), (e)(3). The evidence at trial showed that H.J. was eleven

years old and Guajardo was twenty-six years old when the offenses occurred.

H.J. testified that on August 31, 2017, Guajardo touched her inner thigh and

buttocks for twenty to thirty minutes, causing her to feel discomfort and

confusion such that she tried to move away from him. She also testified that on

September 1, 2017, Guajardo touched her thighs, buttocks, and her chest,

scaring H.J. and causing H.J. discomfort such that she tried to evade Guajardo

by squirming into the crevices of the couch. The jury could have reasonably

concluded from this evidence that Guajardo touched H.J. in a rude or insolent

manner on the dates in question.

[11] On appeal, Guajardo argues that this evidence was insufficient to show that a

crime had been committed or that it was he who committed the offenses.

Appellant’s Brief at 11. We disagree. H.J. identified Guajardo as the person

who touched her on two successive days, causing her discomfort. This was

substantial, probative evidence of Guajardo’s guilt sufficient to uphold the

jury’s verdict. See C.S., 71 N.E.3d at 851.

[12] Guajardo acknowledges our standard of review and assures us that he does not

request that we reweigh the evidence, see Appellant’s Br. at 8-9, but he then goes

on to draw our attention to evidence that does not support the jury’s verdict and

to what he contends are inconsistencies in H.J.’s testimony. Guajardo does not

argue on appeal that H.J.’s testimony was incredibly dubious. Rather,

Guajardo asks us to distinguish the facts of this this case from Walker v. State,

678 N.E.2d 402 (Ind. Ct. App. 1997). Appellant’s Br. at 9. We find that we

Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2749 | July 16, 2018 Page 7 of 12 cannot make such a distinction, as another panel of this court found that the

uncorroborated testimony of Walker’s victim was sufficient to sustain his rape

conviction. Id. at 404. The fact that the Walker panel went on to note the

presence of other, corroborating evidence in the record does not alter its

conclusion that the victim’s testimony alone was sufficient to uphold the

conviction. The second case cited by Guajardo in this section of his argument,

Vest v. State, 621 N.E.2d 1094 (Ind. 1993), is distinguishable, however, as the

victim in that case did not testify at trial. Id. at 1096.

[13] Here, the jury was presented with two squarely different versions of the events

at issue. The jury resolved the conflict between those two versions in favor of

H.J. Given our standard of review, we must uphold the jury’s verdict. Griffith,

59 N.E.3d at 958.

II. Sentencing 1

A. Standard of Review [14] Although Guajardo briefly contends that the trial court abused its discretion by

overlooking what he argues were mitigating factors supported by the record, on

appeal he cites only to the standard of review for assessing the

1 [1] We decline to find waiver of Guajardo’s sentencing claim for his failure to include his PSI in his Appellant’s Appendix as urged by the State. Appellee’s Brief at 14-15. Although the PSI should have been included in Appellant’s Appendix pursuant to Indiana Appellate Rule 50(B), we do not find that our review in this case was materially impaired by its absence since the trial court summarized Guajardo’s criminal record on the record at his sentencing hearing.

Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2749 | July 16, 2018 Page 8 of 12 inappropriateness of his sentence. Appellant’s Br. at 11, 14-15. Thus, we find

that his sentencing claim is a request to determine if his sentence is

inappropriate given the nature of his offenses and his character and address it as

such.

[15] “The Court may revise a sentence authorized by statute if, after due

consideration of the trial court’s decision, the Court finds that the sentence is

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

offender.” Ind. Appellate Rule 7(B). The burden is on the defendant to

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

1073, 1080 (Ind. 2006). Though we exercise our independent judgment in

assessing an inappropriate sentence claim, sentencing is principally a

discretionary function in which the trial court’s judgment should receive

considerable deference. Hines v. State, 30 N.E.3d 1216, 1225 (Ind. 2015). We

may look to any factors appearing in the record in examining the nature of the

offense and the character of the offender. Spitler v. State, 908 N.E.2d 694, 696

(Ind. Ct. App. 2009), trans. denied. “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 myriad

other factors that come to light in a given case.” Hines, 30 N.E.3d at 1225

(citation omitted).

Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2749 | July 16, 2018 Page 9 of 12 B. Inappropriate Sentence [16] Guajardo was found guilty of two Level 6 felonies. The sentencing range for a

Level 6 felony is six months to two and one-half years, with the advisory

sentence being one year. Ind. Code § 35-50-2-7(b). The trial court sentenced

Guajardo to two and one-half years for each conviction, to be served

consecutively. Therefore, Guajardo received the maximum possible sentence

for his convictions.

[17] Concerning the nature of Guajardo’s offenses, we find it significant that

Guajardo was in a position of trust with H.J. when he committed the offenses.

H.J. knew and trusted Guajardo, who she considered to be her uncle. H.J. was

placed in Guajardo’s care so that H.J.’s mother could work and further her

education. Guajardo used this position of trust to gain access to H.J. to commit

the offenses while H.J. was in the vulnerable position of attempting to sleep.

We note that H.J. was eleven years old at the time of the offense, which was

younger than necessary to have proven the offense. We further note that these

offenses were not brief lapses in judgment on Guajardo’s part. The August 31

offense went on for up to thirty minutes, and on both occasions, Guajardo only

ceased touching H.J. because someone interrupted him. Guajardo’s conduct

escalated between the offenses, as he also touched H.J. under her clothing

during the second offense. On appeal, Guajardo offers no argument that his

sentence is inappropriate in light of the nature of his offenses. Thus, we find

that Guajardo has failed to meet his burden of persuasion on appeal regarding

the nature of his offenses. Childress, 848 N.E.2d at 1080.

Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2749 | July 16, 2018 Page 10 of 12 [18] As to the character of the offender, Guajardo has a criminal record consisting of

both juvenile and adult offenses. As a juvenile, Guajardo had a referral for

reckless possession of paraphernalia, had adjudications for trespass, mischief,

possession of marijuana, resisting law enforcement, illegal consumption, and

had two instances of runaway. As an adult, Guajardo was convicted of theft

and burglary of a vehicle, both in Utah. Guajardo also had convictions for

marijuana and alcohol offenses. Guajardo received probation in the past which

he violated, which undercuts his argument on appeal that he was a good

candidate for probation. Although Guajardo argues on appeal that he had led a

law-abiding life for a significant period of time prior to the instant offenses, the

fact that he appeared for his first sentencing hearing under the influence of

methamphetamines shows that he was not, in fact, a law-abiding citizen despite

his lack of criminal convictions for the prior eight years. Furthermore, the

record is devoid of evidence that Guajardo sought any treatment on his own for

his substance abuse issues. In addition, we find that Guajardo’s halting and

incomplete apologies at his sentencing hearing indicate that his remorse for his

actions is not profound. In short, we find nothing about the nature of

Guajardo’s offenses or his character renders the sentence imposed by the trial

court inappropriate.

Conclusion [19] Given the substantial evidence supporting Guajardo’s convictions, we affirm

the jury’s verdicts. In light of our independent review of the nature of

Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2749 | July 16, 2018 Page 11 of 12 Guajardo’s offenses and the nature of his character, we hold that his five-year

aggregate sentence is not inappropriate, and the judgment of the trial court is

also affirmed.

[20] Affirmed.

Najam, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2749 | July 16, 2018 Page 12 of 12