MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 31 2018, 7:48 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Marielena Duerring Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Kelly A. Loy Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Leobardo Mercado, December 31, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1280 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Teresa L. Cataldo, Judge Trial Court Cause No. 20D03-1510-FA-23
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1280 | December 31, 2018 Page 1 of 23 [1] Leobardo Mercado (“Mercado”) appeals his convictions and sentence for Class
A felony attempted child molesting1 and Level 1 felony child molesting.2 He
raises four issues, which we restate as follows:
[2] I. Whether the trial court denied Mercado’s constitutional rights to present a defense and cross examine witnesses when it denied his request to ask the victim’s parents about their immigration status and denied his request to submit his bank records into evidence;
[3] II. Whether the trial court abused its discretion when it allowed the victim’s step-father to testify about the victim’s reputation for truthfulness, and whether it committed fundamental error in allowing the victim’s mother to testify about the victim’s reputation for truthfulness; and
[4] III. Whether Mercado’s aggregate sentence of eighty years, with seventy years executed, is inappropriate.
We affirm in part and reverse in part.
Facts and Procedural History [5] M.F., who was born in September of 2000, lived with her mother Laura
(“Mother”), step-father Francisco (“Francisco”) (collectively “parents”), and
her two younger siblings in Elkhart, Indiana and had lived there since she
moved from Mexico at age six or seven. Tr. Vol. II at 55-58, 61, 107. Mother’s
1 See Ind. Code § 35-42-4-3(a)(1) (2007). 2 See Ind. Code § 35-42-4-3(a)(1) (2014).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1280 | December 31, 2018 Page 2 of 23 sister Beatriz (“Beatriz”) lived in Chicago with her husband Mercado at this
time, and M.F. referred to Mercado as “Uncle.” Id. at 59-61, 87, 144-45. Over
the years, Mercado, Beatriz, and their children would visit M.F. and her family
in Elkhart. They would stay in Mother’s and Francisco’s apartment during
holidays, summer vacations, and for M.F.’s birthdays. Id. at 99, 145, 169, 220.
Sometimes, Mercado and Beatriz would pick up M.F. in Elkhart and bring her
to Chicago to spend time with them. Id. at 99, 110, 145.
[6] Mercado began grooming M.F. at an early age. He and Beatriz treated M.F.
differently than her siblings. They paid more attention to her, took her places
that they did not take the other children, and bought her gifts that they would
not buy the other children. Id. at 148, 169; Tr. Vol. III at 48. When Mercado
and his family visited M.F. and her family, Mercado would reach under
M.F.’s underwear to touch her breasts and to digitally penetrate her vagina.
Tr. Vol. II at 83-85, 100, 105-106
[7] Mercado and his family visited M.F. and her family to celebrate M.F.’s
fourteenth birthday. Id. at 86, 113-14, 135, 220. One evening, the family,
including Mercado and M.F., were watching television in the living room. Id.
at 89. M.F. fell asleep on the couch, and she awoke to find Mercado kneeling
beside her and touching her. Id. at 89-90, 98. M.F. tried to get up and Mercado
asked where she was going. Id. at 91. M.F. told him she wanted to go upstairs,
but Mercado told her to not leave and held her down on the couch. Id. As
M.F. tried to push him away, Mercado put one hand under her shirt and started
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1280 | December 31, 2018 Page 3 of 23 moving his hand toward her breasts and put his other hand down her pants,
rubbed her vagina, and penetrated it with his fingers. Id. at 88-92, 114.
[8] Mercado told M.F. not to tell anyone, saying no one would believe her
because he was an adult, and she was just a child. Id. at 78-79, 98. Mercado
also told M.F. that if she told others what Mercado had done, M.F. would
never see Beatriz again, which M.F. interpreted as a threat to Beatriz. Id. at
117.
[9] After she turned fourteen, M.F. began first communion classes at her family’s
Catholic parish. Id. at 74-75, 172, 229-31. Before M.F. could take her first
communion, she was required to confess to her priest. Id. at 74-77. During
her confession, M.F. told the priest that she thought she was a bad daughter
because her uncle had touched her inappropriately. Id. at 78. The priest
encouraged M.F. to tell her parents. Id.
[10] Later that week, M.F. was in the dining room with Mother talking about
selecting godparents for her first communion, and her mother suggested Beatriz
and Mercado; M.F. began to cry. Id. at 78-79, 151. M.F. explained that
Mercado had been touching her inappropriately. Id. at 150. Her parents took
her to the police to make a report. Id. at 80, 175.
[11] The State charged Mercado with two counts of child molesting under Indiana
Code section 35-42-4-3(a)(1), one as a Class A felony for an offense that
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1280 | December 31, 2018 Page 4 of 23 occurred before July 1, 2014, and one as a Level 1 felony, for an offense that
occurred after July 1, 2014. Appellant’s Conf. App. Vol II at 194.
[12] The State later filed a motion in limine to prevent Mercado from asking the
parents at trial about the family’s immigration status, including whether they
had consulted an immigration attorney before the allegations against Mercado
came to light, and whether M.F. fabricated the allegations so that she and her
family could obtain a “U-Visa,”3 a type of visa that can prevent an
undocumented person from being deported if they are a victim of certain crimes
and if they help law enforcement investigate the crime. Id. at 148-49. Mercado
responded that he only intended to ask whether M.F. or her family consulted an
immigration attorney either before or during the pendency of the charges - “it’s
that simple.” Tr. Vol II at 9. The trial court decided to “preliminarily keep it
out” and would re-address the issue if “the door is opened or I feel it is
appropriate, then it will be addressed at that time.” Id. at 13.
[13] Mercado proceeded to a jury trial, and in his opening statement, his counsel
challenged M.F.’s truthfulness:
Good morning. You just heard that M.F. is a Catholic. As a Catholic, you know ‘thou shall not bear false witness against thy neighbor.’
3 See 8 C.F.R. § 214.14 (2013).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1280 | December 31, 2018 Page 5 of 23 That’s what this case is about. This case is about a young lady bearing false witness against her uncle, Leobardo Mercado, turning his life upside down with these false accusations.
Id. at 52. Later during opening argument, Mercado’s counsel emphasized that
the State’s case rested solely on M.F.’s testimony: “All they have is her word,
her word.” Id. at 54.
[14] Both Francisco and Mother testified through a Spanish-speaking translator.
The State asked Francisco, “based on your knowledge of [M.F.] and having
raised her, tell us about her reputation for honesty.” Id. at 155. Before
Francisco could respond, defense counsel objected, stating, “Judge, we’re
getting into character reference here. Her reputation for truthfulness; she’s
already testified.” Id. at 156. The State argued this testimony was admissible
under Indiana Evidence Rule 608(a) because the defense counsel had
challenged M.F.’s truthfulness in his opening statement and during cross
examination. Id. The trial court agreed with the State and overruled
Mercado’s objection. The State then rephrased its question, asking Francisco,
“How would you describe [M.F.’s] reputation for honesty?” Id. at 157.
Francisco responded, “Good. Good because she trusts a lot in us and would
always tell us things and wasn’t one to keep secrets from us.” Id. at 157.
Mercado did not object. The State followed with a question about whether
M.F. was the type of child that would lie to avoid trouble, asking, “Was she
the type to do that?” Id. at 158. Francisco answered, “No. I don’t recall her
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1280 | December 31, 2018 Page 6 of 23 ever being that way.” Id. Again, Mercado did not object. During Mother’s
testimony, the State asked her to describe M.F.’s character for truthfulness. Id.
at 166. Mother responded that M.F. was “very sincere. She doesn’t know
how to lie.” Id. Mercado did not object.
[15] Before Mercado took the stand, his lawyer notified the trial court that he had
just received a copy of Mercado’s bank statement, which listed bank
transactions dating to the last half of September of 2014, around the time of
M.F.’s fourteenth birthday. Id. at 246. Although the trial court judge, the
prosecutor, and Mercado’s counsel discussed the bank records at length, the
defense eventually declined to introduce the records as evidence. Tr. Vol. III at
2-5.
[16] During the trial, the State requested to amend Count I to attempted child
molesting. Tr. Vol. II at 240. The trial court granted the request. Id. at 243.
The jury returned guilty verdicts on both counts, attempted child molesting
(Count I) and child molesting (Count II). Tr. Vol. III at 100.
[17] At the sentencing hearing, Mercado presented thirty letters of support from a
priest, co-workers, friends, family members, and his bail bondsman. Appellant’s
Conf. App. Vol. II at 34-66. Mercado also presented testimony from his wife,
Beatriz, and a friend. Tr. Vol. III at 109-17. Regarding Count I, the trial court
found, inter alia: 1) M.F. was less than twelve years old; 2) the molesting began
when she was very young and continued until before her fourteenth birthday; 3)
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1280 | December 31, 2018 Page 7 of 23 there were allegations of other occurrences that did not result in charges; 4) the
molesting was painful; 5) Mercado secured M.F.’s silence by threatening her; 6)
Mercado groomed M.F.; and 6) Mercado exploited a position of trust. Id. at
122-25. As mitigating factors, the trial court cited the character letters and the
testimony of two character witnesses at the sentencing hearing. Id. at 125. The
trial court sentenced Mercado to forty years on each count to run consecutively,
with 10 years suspended to probation. Id. at 126.
Discussion and Decision [18] “Whether rooted directly in the Due Process Clause of the Fourteenth
Amendment or in the Compulsory Process or Confrontation clauses of the
Sixth Amendment, the Constitution guarantees criminal defendants ‘a
meaningful opportunity to present a complete defense.’” Kubsch v. State, 784
N.E.2d 905, 923-24 (Ind. 2003) (quoting Crane v. Kentucky, 476 U.S. 683, 690
(1986)). “When competent, reliable evidence is excluded that is central to the
defendant’s case, this right is abridged.” Hyser v. State, 996 N.E.2d 443, 448
(Ind. Ct. App. 2013) (citing Crane, 476 U.S. at 690). Exposing a witness’s
motivation in testifying is an important function of cross-examination.
Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986).
[19] While a defendant’s right to present a defense “is of the utmost importance, it
is not absolute.” Marley v. State, 747 N.E.2d 1123, 1132 (Ind. 2001). “The
accused does not have an unfettered right to offer [evidence] that is
incompetent, privileged, or otherwise inadmissible under standard rules of
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1280 | December 31, 2018 Page 8 of 23 evidence.” Taylor v. Illinois, 484 U.S. 400, 410 (1988). Evidentiary rulings are
entrusted to the discretion of the trial court. Collins v. State, 966 N.E.2d 96, 104
(Ind. Ct. App. 2012). An abuse of discretion occurs if the decision is clearly
against the logic and effect of the facts and circumstances before the court. Id.
However, when an evidentiary claim raises a constitutional issue, the standard
of review is de novo. Jones v. State, 982 N.E.2d 417, 421-22 (Ind. Ct. App.
2013), trans. denied.
I. Right to Present a Defense and to Cross Examine [20] Mercado argues that the trial court denied his constitutional rights to cross
examine witnesses and to present a defense by: 1) ruling that Mercado could
not question M.F.’s parents about their immigration status; and 2) its purported
ruling that allegedly barred Mercado from introducing his bank account
statements.
[21] Mercado describes his defense as “the proposition that M.F.’s parents had
concocted this scheme so that they could resolve immigration issues.”
Appellant’s Br. at 10. Without establishing that the family was actually at risk
for deportation, Mercado’s theory was that the family could reduce the risk of
removal by obtaining U-Visas. Mercado contends this gave Mother and
Francisco a motive to get M.F. to fabricate a story that Mercado molested her.
Thus, Mercado claims it was essential for him to ask Mother and Francisco
about the family’s immigration status, and specifically about U-Visas, because it
would reveal a potential motive to persuade M.F. to lie. Thus, Mercado
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1280 | December 31, 2018 Page 9 of 23 contends, when the trial court barred him from asking immigration-related
questions, it prevented him from bolstering his defense - that M.F. had lied
about the allegations - and this restriction on his questioning undermined his
right to present a defense.
[22] As to the bank statements, Mercado contends that even if he did commit Count
II, the bank records were vital to proving that he could have committed the
offense only after M.F. had turned fourteen years old, which would have
prevented the State from charging Count II as anything more than Level 4
felony, which carries a maximum sentence of only twelve years. Mercado
explains that the bank records would show toll charges in Portage, Indiana on
September 23, 2014, six days after M.F.’s birthday, which would have been
incurred on Mercado’s return trip to Chicago from Elkhart.
[23] Here, the trial court’s rulings did not violate Mercado’s right to cross-examine
or his right to present a defense. As to the evidence regarding the family’s
immigration status, Mercado argued for the admission of this evidence only
during the hearing on the State’s motion in limine, where the trial court ruled
that it would preliminarily keep such evidence out but would revisit the issue
depending on whether the State opened the door or some other reason that
justified taking another look at the issue. Tr. Vol. II at 12-13. During trial,
Mercado did not tender this evidence or argue for its admission. Thus, the only
ruling on the immigration status of the family occurred during the hearing on
State’s motion in limine. A “ruling on a motion in limine is not a final ruling
on the admissibility of evidence; it thus is not assignable as error standing
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1280 | December 31, 2018 Page 10 of 23 alone.” Mason v. State, 539 N.E.2d 468, 470 (Ind. 1989). To preserve a ruling
on a motion in limine, “a party must contemporaneously reassert the party’s
objection at trial so as to allow the trial court an opportunity to make a final
ruling on the matter in the proper context.” Vehorn v. State, 717 N.E.2d 869,
872 (Ind. 1999). Because Mercado did not raise this evidentiary issue during
the trial, he has failed to present a properly preserved issue that we may review
on appeal.
[24] Likewise, the trial court’s ruling that the bank records were inadmissible did not
deny Mercado’s right to cross examine or present a defense. Although the trial
court, the state, and Mercado discussed the records at length, Mercado
eventually declined to introduce the records as evidence. Tr. Vol. III at 2-5.
Therefore, there is no ruling for us to review on appeal.
II. Reputation Evidence [25] Mercado contends that the trial court abused its discretion when it admitted
Francisco’s statement regarding M.F.’s reputation for honesty, where
Francisco, when asked about M.F.’s reputation for truthfulness, stated, “Good.
Good because she trusts a lot in us and would always tell us things and wasn’t
one to keep secrets from us.” Id. at 157. Mercado did not object to this
testimony and does not argue here that admission of this testimony was
fundamental error. Even so, Mercado argues that the trial court should have
excluded this testimony because the State did not establish the proper
foundation. Mercado also argues that the trial court committed fundamental
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1280 | December 31, 2018 Page 11 of 23 error in admitting what he characterizes as “vouching” when Mother testified
that M.F. “doesn’t know how to lie.” Id. at 166.
[26] The State contends that Francisco’s statement was admissible because he
opened the door to the testimony by saying, during opening argument, that
M.F. was “bearing false witness” against Mercado and by cross-examining her
about the accuracy of her memory about when the molestations occurred. Id. at
52. As to Mother’s testimony that M.F. “doesn’t know how to lie,” the State
denies that this amounts to fundamental error. Id. at 166.
[27] Indiana Evidence Rule 608(a) provides:
A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.
A reputation is not “attacked” by “[s]imple contradiction of a witness . . . .” 12
Robert L. Miller, Jr., Indiana Practice, Indiana Evidence 876 (4th ed. 2016).
[28] “Opening the door refers to the principle that where one party introduces
evidence of a particular fact, the opposing party is entitled to introduce evidence
in explanation or rebuttal thereof, even though the rebuttal evidence otherwise
would have been inadmissible.” Sampson v. State, 38 N.E.3d 985, 992 n.4 (Ind.
2015) (emphasis added). “An opening statement is not evidence to be
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1280 | December 31, 2018 Page 12 of 23 considered by the jury.” Doe v. State, 451 N.E.2d 1096, 1099 (Ind. Ct. App.
1983).
[29] When testifying about a person’s reputation for truthfulness, the proponent of
the reputation evidence must identify a readily definable community that has an
adequate basis to form an opinion and that the person testifying to the person’s
reputation must have sufficient contact with that community to qualify as
knowledgeable of the general reputation of the person whose character is
attacked or supported. Bowles v. State, 737 N.E.2d 1150, 1153 (Ind. 2000) and
Norton v. State, 785 N.E.2d 625, 629-30 (Ind. Ct. App. 2003).
[30] Under Indiana Evidence Rule 704(b), “[w]itnesses may not testify to opinions
concerning intent, guilt, or innocence in a criminal case; the truth or falsity of
allegations; whether a witness has testified truthfully; or legal conclusions.”
(Emphasis added). Such vouching invades the province of the jurors to
determining what weight they should place upon a witness’s testimony. Alvarez-
Madrigal v. State, 71 N.E.3d 887, 892 (Ind. Ct. App. 2017), trans. denied. This
rule only prohibits a witness from testifying about whether a witness has testified
truthfully. Halliburton v. State, 1 N.E.3d 670, 680-81 (Ind. 2013).
[31] Here, we disagree with the State’s contention that Mercado opened the door to
Francisco’s testimony about M.F.’s reputation for truthfulness. Mercado’s
opening statement did not constitute “evidence” challenging M.F.’s reputation;
indeed, the trial court instructed the jury to not consider the opening statements
as evidence. Tr. Vol. II at 41-42. Likewise, Mercado’s cross-examination of
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1280 | December 31, 2018 Page 13 of 23 M.F. did not introduce evidence that challenged M.F.’s truthfulness but merely
questioned the accuracy of her memory concerning when the molestation
occurred. See Sampson, 38 N.E.3d at 992 n.4; Doe, 451 N.E.2d at 1099.
Similarly, Mercado did not “attack” M.F.’s reputation by trying to impeach and
contradict her testimony. See 12 Miller, supra, at 876.
[32] Further, Mercado is correct that before reputation evidence is admissible, the
proponent of the evidence must first establish a foundation that identifies, inter
alia, a readily definable community within which the reputation exists and that
the person testifying to the other person’s reputation for truthfulness has
sufficient contact with the community to know about the person’s reputation
within that community. See Bowles, 737 N.E.2d at 1153. The State did not
meet, let alone attempt to meet, this foundational requirement.
[33] However, Mercado has waived this issue for two reasons. First, Mercado did
not object to Francisco’s testimony that M.F.’s reputation for truthfulness was
good. Second, Mercado raises this foundational requirement for the first time
on appeal. While he challenged the State’s first attempt to elicit testimony from
Francisco about M.F.’s reputation for truthfulness, his objection was vague and
said nothing about the foundational requirements for testimony about a
person’s reputation for truthfulness. See Tr. Vol. II at 156. Grounds for
objection must be specific and any grounds not raised in the trial court are not
available on appeal. Williams v. State, 690 N.E.2d 162, 173 (Ind. 1997). When
the State asked Francisco a second time about M.F.’s reputation for
truthfulness, Mercado lodged no objection, let alone an objection that alleged
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1280 | December 31, 2018 Page 14 of 23 the State had failed to establish the necessary foundation. Accordingly,
Mercado has waived his issue. See Grace v. State, 731 N.E.2d 442, 444 (Ind.
2000).
[34] Waiver aside, if admission of Francisco’s testimony about M.F.’s reputation for
truthfulness was error, it was harmless error. The testimony at issue was
contained in two sentences; Francisco’s testimony regarding M.F.’s truthful
character was brief and isolated. Within the context of a two-day trial where
Mercado vigorously cross-examined M.F., the impact of such testimony was
likely small. Cf. Greenwell v. State, 588 N.E.2d 1269, 1270-71 (Ind. 1992)
(excluding evidence of reputation for violence of defendant’s girlfriend, who
testified for prosecution, was harmless). Also, while Francisco did attest to
M.F.’s truthfulness, he did so indirectly, stating only that she “wasn’t one to
keep secrets from us.” Tr. Vol. II at 157. We find the impact of Francisco’s
testimony was modest because a jury would likely give less credence to a
parent’s testimony about their child’s reputation for truthfulness than similar
testimony from a priest, pastor, teacher or counselor.
[35] As to Mother’s testimony, Mercado contends admission of her testimony was
fundamental error. “Failure to object at trial waives the issue on review unless
fundamental error occurred. Fundamental error is an extremely narrow
exception that applies only when the error amounts to a blatant violation of
basic principles, the harm or potential for harm is substantial, and the resulting
error denies the defendant fundamental due process. The claimed error must be
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1280 | December 31, 2018 Page 15 of 23 so prejudicial to the rights of a defendant as to make a fair trial impossible.”
Baumholser, 62 N.E.3d at 414 (citations omitted).
[36] Mercado mischaracterizes Mother’s testimony as vouching, and the State
makes the same mistake. See Appellant’s Br. at 7, 15-18; Appellee’s Br. at 20-24.
The prohibition on vouching rests within Evidence Rule 704(b) and concerns
only statements that attest to the truthfulness of a person’s testimony. The
admissibility of testimony about a person’s reputation for truthfulness is
governed by Evidence Rule 608. 13 Robert L. Miller, Jr., Indiana Practice,
Indiana Evidence at 186 (4th ed. 2016). Here, Mother only testified about
M.F.’s reputation for truthfulness, not the truth of her testimony. Thus, the
issue here is whether Mother’s testimony was fundamental error under
Evidence Rule 608(a), not Evidence Rule 704(b). Because Mercado does not
argue that Mother’s testimony was fundamental error under Evidence Rule
608(a), he has waived this issue. Cf. Smith v. State, 822 N.E.2d 193, 202-03 (Ind.
Ct. App. 2005) (party waives issue by failing to make cogent argument).
[37] Waiver notwithstanding, this case is like Alvarez-Madrigal, 71 N.E.3d at 891,
where we found that a pediatrician did not vouch for the victim when the
pediatrician testified that “some statistics will quote that less than two to three
children out of a thousand are making up claims [about being molested].” Id. at
892. The pediatrician did not vouch for the child because the pediatrician’s
testimony was not an opinion about the truth of the allegations or the credibility
of the child. Id. at 893.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1280 | December 31, 2018 Page 16 of 23 [38] Even more pertinent to our analysis is Baumholser, 62 N.E.3d at 415, where we
found that Baumholser failed to prove fundamental error when he argued the
trial court erroneously admitted vouching testimony prohibited by Evidence
Rule 704(b). Baumholser claimed that a forensic interviewer vouched for the
victim by testifying about the propensity of child molesting victims to delay
disclosure of the event. See id. at 414-15. We found that the forensic
interviewer’s testimony was not vouching because it did not relate to the truth
or falsity of the allegations but instead made a statement about how victims of
child molestation behave in general. Id. at 416. Thus, we found no error,
fundamental or otherwise.
[39] We reach the same result here. Mother’s testimony that M.F. did not know
how to lie was not vouching testimony under Evidence Rule 704(b) because
Mother did not say that the allegations against the State were true or that
M.F.’s testimony was true. Instead, she testified about M.F.’s reputation for
truthfulness. The restrictions on such testimony are delineated under Evidence
Rule 608(a). Thus, Mercado should have argued that admission of this
testimony was error (and fundamental error) under Evidence Rule 608(a). He
failed to do so, and, thus, he has failed to demonstrate error, fundamental or
otherwise.
[40] Finally, as was true of Francisco’s testimony, Mother’s testimony was brief and
isolated. Mercado has failed to show that this testimony, within the context of
a two-day trial where he vigorously cross-examined M.F., undermined his
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1280 | December 31, 2018 Page 17 of 23 substantial rights and made it impossible for him to receive a fair trial. See
Baumholser, 62 N.E.3d at 414.
III. Sentence [41] Under Indiana Appellate Rule 7(B), we may revise a sentence if, after due
consideration of the trial court’s decision, we find the sentence inappropriate
considering the nature of the offense and the character of the offender.
Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218 (2007). We consider not only the aggravators and mitigators found by the
trial court but also any other factors appearing in the record. Johnson v. State,
986 N.E.2d 852, 856 (Ind. Ct. App. 2013). We defer to the trial court’s
decision, and our goal is to determine whether the sentence is inappropriate,
not whether some other sentence would be more appropriate. Conley v. State,
972 N.E.2d 864, 876 (Ind. 2012). We seek to leaven the outliers, not to achieve
a perceived correct result. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).
Thus, “deference should prevail unless overcome by compelling evidence
portraying in a positive light the nature of the offense (such as accompanied by
restraint, regard, and lack of brutality) and the defendant’s character (such as
substantial virtuous traits or persistent examples of good character).” Stephenson
v. State, 29 N.E.3d 111, 122 (Ind. 2015). Ultimately, our review should focus
on the aggregate sentence; that is, we “should focus on the forest - the aggregate
sentence - rather than the trees - consecutive or concurrent, number of counts,
or length of the sentence on any individual count.” Cardwell, 895 N.E.2d at
1225.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1280 | December 31, 2018 Page 18 of 23 [42] Mercado initially focuses on the length of his aggregate sentence, seventy years
plus ten years suspended to probation. Mercado contends that since he was
forty-four years old when he was sentenced, his punishment amounts to a life
sentence.
[43] As to the nature of the offense, Mercado does not minimize the severity of child
molesting. However, he contends the nature of his offense makes his sentence
inappropriate. For instance, he contends that since there was no evidence
submitted at the sentencing hearing about emotional trauma M.F. may have
suffered, the nature of his offense was such that his seventy-year sentence is
inappropriate.
[44] Mercado likewise contends that his character makes his sentence inappropriate.
He notes that 1) this is his first conviction, 2) he was gainfully employed as an
accountant, and 3) he has supported his wife and two children. He also points
to the thirty letters, written on his behalf, that vouched for his good character.
Those letters were written by co-workers, a priest, college friends, relatives, a
godson, and even Mercado’s bail bondsman. Conf. App. Vol. II at 34-66. The
letters describe Mercado as a hard-working, devoted, family man who was
active in the community and local Catholic parish. Id. They also described him
as man of high moral character. Id. Two witnesses, including Beatriz, testified
at the sentencing hearing about Mercado’s high moral character. Tr. Vol. III at
109-17.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1280 | December 31, 2018 Page 19 of 23 [45] We disagree with Mercado that the nature of his offense makes his seventy-year
executed sentence inappropriate. Even though the State filed only two charges
against Mercado, he clearly touched M.F. inappropriately many times over
several years. He engaged in grooming behavior, showering M.F. with gifts,
special events, and constant attention. See Harlan v. State, 971 N.E.2d 163, 171-
72 (Ind. Ct. App. 2012). As her uncle, he exploited his position of trust. See
Rodriguez v. State, 868 N.E.2d 551, 555 (Ind. Ct. App. 2007). He threatened
M.F. that she would never again see Beatriz, M.F.’s aunt, if M.F. told anyone
that Mercado had molested her. Tr. Vol II at 117.
[46] However, we agree that Mercado’s sentence is inappropriate considering his
character.4 Mercado essentially has no criminal record. While he was charged
in Illinois in 1992 for violating the Illinois Liquor Control Act, it is not clear
how this case was resolved. Appellant’s Conf. App. Vol. II at 70. As noted above,
Mercado has been gainfully employed, supported his family, and participated in
community and church activities. All thirty character letters, including the
letters from the priest and Mercado’s bail bondsman, spoke highly of Mercado,
highlighting his work ethic, devotion to family, and community involvement.
Attempting to minimize the letters, the State describes the letters as “mainly
from people that did not believe that Mercado was guilty or believed that he
had not received a fair trial.” Appellee’s Br. at 27. We take issue with this
4 While we must consider both the nature of the offense and the character of the offender in determining whether a sentence is inappropriate, a defendant need not necessarily prove both prongs for us to find a sentence inappropriate. See Conner v. State, 58 N.E.3d 215, 218-19 (Ind. Ct. App. 2016).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1280 | December 31, 2018 Page 20 of 23 characterization. Only one-third of the letters posited that Mercado was
innocent and that his trial was unfair. Moreover, these letters did not dwell on
the propriety of the trial or conviction but instead, like all the letters, focused
almost solely on Mercado’s good character. Appellant’s Conf. App. Vol. II at 34-
66.
[47] Finally, because our review of sentences “should focus on the forest – the
aggregate sentence – rather than the trees” - see Cardwell, 895 N.E.2d at 1225 -
we agree with Mercado that his seventy-year executed sentence, plus ten years
of probation, effectively makes his sentence a life sentence. Thus, because
Mercado’s sentence is inappropriate considering his character and the length of
the aggregate sentence, we invoke our authority under Appellate Rule 7(B) and
revise Mercado’s sentence to concurrent terms of forty years.
[48] Affirmed in part and reversed in part.
Riley, J., concurs.
Vaidik, C.J., concurs in part and dissents in part with separate opinion.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1280 | December 31, 2018 Page 21 of 23 IN THE COURT OF APPEALS OF INDIANA
Leobardo Mercado, Appellant-Defendant, Court of Appeals Case No. 18A-CR-1280 v.
State of Indiana, Appellee-Plaintiff
Vaidik, Chief Judge, concurring in part and dissenting in part.
[49] I concur with the majority as to all issues except one. That is, I disagree with
the majority’s decision to revise Mercado’s sentence to concurrent terms of
forty years. Although I agree with the majority’s conclusion that Mercado’s
original sentence of eighty years, with seventy years executed and ten years
suspended to probation, is inappropriate, I would reduce his sentence
differently.
[50] To an extent, I agree with Mercado’s assertion that an appropriate sentence
would include “substantial time under court supervision.” Appellant’s Br. p.
20. Given the nature of his offenses, I believe that Mercado needs to be
supervised as he transitions from prison into the community. Not only does Court of Appeals of Indiana | Memorandum Decision 18A-CR-1280 | December 31, 2018 Page 22 of 23 building a probationary period into Mercado’s sentence ensure that he will be
supervised by a probation officer, but it also gives him the opportunity to get
help as he reintegrates into the community. I would therefore revise Mercado’s
sentence to include a period of probation, as follows:
[51] For Count I: Class A felony attempted child molesting, I would revise
Mercado’s sentence to fifty years, with forty years to be executed at the Indiana
Department of Correction (DOC) and ten years suspended to probation. For
Count II: Level 1 felony child molesting, I would revise Mercado’s sentence to
forty years, with all forty years to be executed at the DOC, and order that
Count II be served concurrent to Count I.
[52] Accordingly, I would reduce Mercado’s aggregate sentence to fifty years, with
forty years to be executed at the DOC and ten years suspended to probation. I
otherwise concur in full with the majority.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1280 | December 31, 2018 Page 23 of 23