FILED Feb 23 2024, 8:37 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Yvette M. LaPlante Theodore E. Rokita Evansville, Indiana Indiana Attorney General Indianapolis, Indiana Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Oscar Contreras Zamilpa, February 23, 2024 Appellant-Defendant, Court of Appeals Case No. 23A-CR-1309 v. Appeal from the Vanderburgh Superior Court State of Indiana, The Honorable Robert J. Pigman, Appellee-Plaintiff Judge Trial Court Cause No. 82D03-2202-F3-001011
Opinion by Judge May Judges Bailey and Felix concur.
May, Judge.
Court of Appeals of Indiana | Opinion 23A-CR-1309 | February 23, 2024 Page 1 of 22 [1] Oscar Contreras Zamilpa appeals his convictions of Level 3 felony rape, 1 Level
5 felony criminal confinement, 2 and three counts of Level 6 felony sexual
battery. 3 Zamilpa presents two issues for appeal, which we revise, reorder, and
restate as:
1. Whether the trial court violated Zamilpa’s protection against
substantive double jeopardy by entering convictions of:
1.1 both rape and criminal confinement, and
1.2 three counts of sexual battery; and
2. Whether Zamilpa’s sentence is inappropriate given the nature of his
offenses and his character.
We affirm in part, reverse in part, and remand.
Facts and Procedural History [2] Zamilpa and C.M. were both residents of an assisted living facility in
Evansville, Indiana. They lived in separate apartments on the facility’s third
floor, and they would occasionally spend time together in a lobby located at the
end of the hallway. On February 18, 2022, C.M. told Zamilpa that she was
1 Ind. Code § 35-42-4-1(a) (2014). 2 Ind. Code § 35-42-3-3(b)(1) (2019). 3 Ind. Code § 35-42-4-8(a) (2014).
Court of Appeals of Indiana | Opinion 23A-CR-1309 | February 23, 2024 Page 2 of 22 replacing a loveseat in her apartment with a new sofa, and she offered her old
loveseat to Zamilpa. Zamilpa said that he did not think he had enough room in
his apartment, but he invited C.M. to his apartment for her to see if there was
enough room for the loveseat.
[3] After C.M. entered Zamilpa’s apartment, Zamilpa closed his apartment door
and shoved C.M. against the wall. Zamilpa took C.M.’s walker and “slung” it
into another room. (Tr. Vol. II at 79.) Zamilpa pulled C.M.’s hair and licked
her neck. He also took off her top and bra and started “sucking tight” or
“biting” her breasts. (Id.) In addition, Zamilpa pulled down C.M.’s pants.
C.M. fought him and “kept saying please stop it. Leave me alone! I don’t want
you doing this. Please leave me alone.” (Id.) However, Zamilpa continued
assaulting C.M. He took his penis out of his pants and tried to insert it into
C.M.’s vagina. Zamilpa scratched C.M.’s vagina with his fingernails while
trying to insert his penis into her vagina. The assault stopped when another
resident knocked on Zamilpa’s apartment door. Zamilpa answered the door,
and the woman told Zamilpa that she had soup for him in her apartment.
Zamilpa and C.M. exited Zamilpa’s apartment shortly thereafter. Zamilpa left
to eat his soup, and C.M. sat down in the lobby. Other residents stopped and
talked with C.M. while she was sitting in the lobby, and she told them about the
incident with Zamilpa.
[4] Someone reported the incident using an anonymous tipline, and Officer Jacob
Hassler of the Evansville Police Department went to the assisted living facility
to investigate. Officer Hassler spoke with C.M. and advised her to go to the
Court of Appeals of Indiana | Opinion 23A-CR-1309 | February 23, 2024 Page 3 of 22 hospital. At the hospital, a nurse performed a sexual assault examination on
C.M. The nurse observed bruises on C.M.’s breasts and abrasions in C.M.’s
vaginal area. The nurse also collected DNA samples from C.M. during the
examination, and the samples revealed the presence of Zamilpa’s DNA on
C.M.’s left breast, right breast, and neck. The external genital swabs of C.M.’s
vagina indicated the possible presence of male DNA, but the quantity was
insufficient to determine whether the DNA belonged to Zamilpa. Detective
Robert Waller interviewed Zamilpa at the police station, and Zamilpa denied
having sexual contact with C.M. Detective Waller noticed during the interview
that Zamilpa’s fingernails were freshly cut.
[5] On February 23, 2022, the State charged Zamilpa with Level 3 felony
attempted rape, Level 5 felony criminal confinement, and three counts of Level
6 felony sexual battery. On February 17, 2023, the State amended the charging
information to change the Level 3 felony charge from attempted rape to rape.
The trial court then held a jury trial beginning on April 13, 2023. During the
State’s opening statement, the deputy prosecutor explained the charges to the
jury:
Rape, it’s where he put his finger inside her vagina . . . I have him charged with Criminal Confinement for keeping her against the wall so she can’t leave. I have him charged with three counts of Sexual Battery. One for her left breast, one for right breast, and one for where he tried to insert his penis into her vagina.
(Id. at 26.) The State presented surveillance footage from the hallway of the
assisted living community that showed C.M. entered Zamilpa’s apartment at
Court of Appeals of Indiana | Opinion 23A-CR-1309 | February 23, 2024 Page 4 of 22 approximately 5:02 p.m. on February 18, 2022, and the woman knocked on
Zamilpa’s door to tell him about the soup at approximately 5:09 p.m. The jury
returned a verdict finding Zamilpa guilty as charged, and the trial court entered
a judgment of conviction on each count.
[6] The trial court held Zamilpa’s sentencing hearing on May 12, 2023. C.M.
testified at the sentencing hearing that after Zamilpa assaulted her, she began
“having a fear of being out in the open around other people[.]” (Id. at 143.)
C.M. also testified that prior to the assault, she and another resident had “told
the office about [Zamilpa] grabbing at our legs and . . . our heinies and
everything like that” but the assisted living facility did not act on their
complaints. (Id. at 145.) The trial court found C.M.’s advanced age and
infirmity and Zamilpa’s criminal record to be aggravating factors. The trial
court also commented that “[t]he nature and circumstances of the offense are
aggravating” and noted that C.M.’s wounds “were still bleeding five hours after
the assault[.]” (Id. at 158.) The trial court did not find any mitigating factors.
The trial court sentenced Zamilpa to a term of twelve years for his Level 3
felony rape conviction, four years for his Level 5 felony criminal confinement
conviction, and two years for each of his three Level 6 felony sexual battery
convictions. The trial court ordered Zamilpa to serve all the sentences
concurrently, for an aggregate term of twelve years.
Discussion and Decision
Court of Appeals of Indiana | Opinion 23A-CR-1309 | February 23, 2024 Page 5 of 22 1. Double Jeopardy [7] Zamilpa asserts the trial court violated his protection against substantive double
jeopardy by, first, entering convictions of both criminal confinement and rape,
and second, by entering convictions of three counts of sexual battery. We
review such challenges de novo. Hessler v. State, 213 N.E.3d 511, 524 (Ind. Ct.
App. 2023), trans. denied.
1.1 Convictions of Criminal Confinement and Rape
[8] Both the Indiana Constitution4 and the United States Constitution 5 prohibit
double jeopardy. Initially, this protection served only as a procedural bar to a
subsequent prosecution for the same offense following an acquittal or
conviction, but “[o]ver time, the protection evolved beyond the procedural
context to embody a substantive bar to multiple convictions or punishments for
the same offense in a single trial.” Wadle v. State, 151 N.E.3d 227, 235 (Ind.
2020). In Wadle, our Indiana Supreme Court announced a new framework for
analyzing substantive double jeopardy challenges when the defendant’s
criminal conduct implicates multiple criminal statutes. Id. The Court
explained:
This framework, which applies when a defendant’s single act or transaction implicates multiple criminal statutes (rather than a
4 “No person shall be put in jeopardy twice for the same offense.” Ind. Const. Art. 1, § 14. 5 “No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb[.]” U.S. Const. amend. V.
Court of Appeals of Indiana | Opinion 23A-CR-1309 | February 23, 2024 Page 6 of 22 single statute), consists of a two-part inquiry: First, a court must determine, under our included-offense statutes, whether one charged offense encompasses another charged offense. Second, a court must look at the underlying facts—as alleged in the information and as adduced at trial—to determine whether the charged offenses are the “same.” If the facts show two separate and distinct crimes, there’s no violation of substantive double jeopardy, even if one offense is, by definition, “included” in the other. But if the facts show only a single continuous crime, and one statutory offense is included in the other, then the presumption is that the legislation intends for alternative (rather than cumulative) sanctions. The State can rebut this presumption only by showing that the statute—either in express terms or by unmistakable implication—clearly permits multiple punishment.
Id. (emphasis in original).
[9] With the Wadle framework in mind, our first step in analyzing Zamilpa’s
challenge to the trial court’s entry of judgments of conviction for both rape and
criminal confinement is to determine whether the crime of rape encompasses
criminal confinement. Here, the statute prohibiting rape, in relevant part,
states:
a person who knowingly or intentionally has sexual intercourse with another person or knowingly or intentionally causes another person to perform or submit to other sexual conduct (as defined in IC 35-31.5-2-221.5) when:
(1) the other person is compelled by force or imminent threat of force;
*****
Court of Appeals of Indiana | Opinion 23A-CR-1309 | February 23, 2024 Page 7 of 22 commits rape, a Level 3 felony.
Ind. Code § 35-42-4-1. Indiana Code section 35-31.5-2-221.5 states: “‘Other
sexual conduct’ means an act involving: (1) a sex organ of one (1) person and
the mouth or anus of another person; or (2) the penetration of the sex organ or
anus of a person by an object.” The statute outlawing criminal confinement
provides: “A person who knowingly or intentionally confines another person
without the other person’s consent commits criminal confinement.” Ind. Code
§ 35-42-3-3(a). The offense is a Level 5 felony if “it results in bodily injury to a
person other than the confining person[.]” Ind. Code § 35-42-3-3(b)(1)(C).
Neither statute clearly permits multiple punishment.
[10] We look to “the included offense statutes to determine whether one offense is
included in the other, either inherently or as charged.” Hendricks v. State, 162
N.E.3d 1123, 1139 (Ind. Ct. App. 2021), reh’g denied, trans. denied. Indiana
Code section 35-38-1-6 states: “Whenever . . . a defendant is charged with an
offense and an included offense in separate counts; and . . . the defendant is
found guilty of both counts; judgment and sentence may not be entered against
the defendant for the included offense.” Our legislature has defined an included
offense as an offense that:
(1) is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged;
(2) consists of an attempt to commit the offense charged or an offense otherwise included therein; or
Court of Appeals of Indiana | Opinion 23A-CR-1309 | February 23, 2024 Page 8 of 22 (3) differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser kind of culpability, is required to establish its commission.
Ind. Code § 35-31.5-2-168.
[11] It is the first category of included offense that is relevant to this case. While the
rape statute does not explicitly recite confinement as an element of the offense,
the act of forcible rape necessarily entails some degree of confinement. See
Griffin v. State, 583 N.E.2d 191, 194-95 (Ind. Ct. App. 1991) (“If a person is
forcibly raped, or raped by the threat of force—the element of force—whether
actual, threatened, or constructive, constitutes the crime of confinement defined
as a substantial interference with a person’s liberty.”), reh’g denied. We held in
Stover v. State that the State presented insufficient evidence to support the
defendant’s conviction of criminal confinement when the State failed to prove
the defendant confined the victim beyond what was inherent in the act of rape.
621 N.E.2d 664, 668 (Ind. Ct. App. 1993). Conversely, in Parks v. State, we
held the defendant’s convictions of both rape and criminal confinement did not
run afoul of Indiana Code section 35-38-1-6 because the defendant confined the
victim beyond what was necessary to effectuate the rape. 734 N.E.2d 694, 701
(Ind. Ct. App. 2000), trans. denied. Thus, the offense of criminal confinement
may constitute an included offense of rape. If Zamilpa’s acts of criminal
confinement and rape were “so compressed in terms of time, place, singleness
of purpose, and continuity of action as to constitute a single transaction,” then
entering convictions of both offenses constitutes double jeopardy. Wadle, 151
Court of Appeals of Indiana | Opinion 23A-CR-1309 | February 23, 2024 Page 9 of 22 N.E.3d at 249. “If the facts show two separate and distinct crimes, there’s no
violation of substantive double jeopardy, even if one offense is, by definition,
‘included’ in the other.” Id.
[12] The State urges us to confine our analysis of whether the crimes of criminal
confinement and rape constitute separate and distinct crimes to the charging
information, and the State argues “there is nothing in the charging information
suggesting that the same force was used to commit criminal confinement and
rape.” (Appellee’s Br. at 14.) However, there is also nothing in the charging
information differentiating the force used to commit criminal confinement from
the force used to commit rape. The trial court recited the charging information
in its preliminary jury instructions:
The Information in Count 1, omitting the formal parts, reads as follows:
In Vanderburgh County, State of Indiana, on or about February 18, 2022, Oscar Contreras Zamilpa did knowingly or intentionally have other sexual conduct with [C.M.]; when such person was compelled by force or the imminent threat of force.
The Information in Count 2, omitting the formal parts, reads as follows:
In Vanderburgh County, State of Indiana, on or about February 18, 2022, Oscar Contreras Zamilpa did knowingly or intentionally confine [C.M.] without the consent of [C.M.], said act resulting in bodily injury to [C.M.].
Court of Appeals of Indiana | Opinion 23A-CR-1309 | February 23, 2024 Page 10 of 22 (App. Vol. II at 60.) We cannot determine from the charging information
whether the two offenses are separate and distinct. Therefore, we must look at
how the State presented the charges at trial and the facts adduced at trial to
determine whether the offenses are the same. See, e.g., Thurman v. State, 158
N.E.3d 372, 378 (Ind. Ct. App. 2020) (noting the charging information did not
indicate that the facts underlying three charges were different and looking at the
State’s closing argument and the facts adduced at trial to determine whether the
offenses were separate and distinct crimes).
[13] The only time the deputy prosecutor directly addressed the evidence underlying
the criminal confinement charge was during the State’s opening statement when
he stated: “I have him charged with Criminal Confinement for keeping her
against the wall so she can’t leave.” (Tr. Vol. II at 26.) Based on this comment,
Zamilpa argues that “the act of holding C.M. against the wall was part of one
singular act that constituted the rape.” (Appellant’s Br. at 15.) The State
counters that despite the deputy prosecutor’s minimal explanation, the facts
adduced at trial still support both convictions because Zamilpa’s act of pinning
C.M. against the wall “extended for a period far beyond what was necessary to
commit rape because [Zamilpa] also held C.M. in place against the wall as he
battered her breasts and licked her neck.” (Appellee’s Br. at 16.)
[14] However, we cannot confidently say that the jury parsed the facts in the same
sort of highly technical manner the State advances on appeal. The pre-Wadle
actual evidence test required us to evaluate the evidence from the jury’s
perspective. Hines v. State, 30 N.E.3d 1216, 1222 (Ind. 2015). We considered
Court of Appeals of Indiana | Opinion 23A-CR-1309 | February 23, 2024 Page 11 of 22 the charging information, the arguments of counsel, the jury instructions, and
any other factors that may have guided the jury’s determination. Id. Our
objective was to ensure there was no “reasonable possibility that the evidentiary
facts used by the factfinder to establish the essential elements of an offense for
which the defendant was convicted or acquitted may also have been used to
establish all the essential elements of a second challenged offense.” Id. If the
State did not present the facts in a way that forced the jury to distinguish
between the two crimes before declaring the defendant guilty of both, we would
not uphold both convictions. See, e.g., id. at 1223 (holding defendant’s
convictions of both criminal confinement and battery constituted double
jeopardy when “at trial the State failed to specifically allege and communicate
to the jury what different evidence supported what charge” and there was a
reasonable possibility that the jury based the battery conviction and the criminal
confinement conviction on one continuous assault).
[15] More recently, we have interpreted the second step of the Wadle analysis to
require both that the State present the crimes as separate and distinct to the jury
and that the facts show that the two crimes are separate and distinct. In Phillips
v. State, the trial court entered convictions of both possession of
methamphetamine and dealing in methamphetamine, and we vacated the
defendant’s possession of methamphetamine conviction because the
methamphetamine the State alleged the defendant possessed was the same
methamphetamine the State charged him with dealing. 174 N.E.3d 635, 647
(Ind. Ct. App. 2021). We noted “the State specifically advised the jury during
Court of Appeals of Indiana | Opinion 23A-CR-1309 | February 23, 2024 Page 12 of 22 closing statements that ‘[i]f you’re dealing you’re in possession’ when
describing the evidence of the two offenses.” Id. Likewise, in Harris v. State,
we vacated the defendant’s pointing a firearm conviction when the State stated
in its closing argument that it was relying on the defendant’s single act of
pointing a handgun at the victim to support convictions of both pointing a
firearm and intimidation with a deadly weapon. 186 N.E.3d 604, 612 (Ind. Ct.
App. 2022). Because neither the charging information nor the way the State
presented the charges to the jury differentiated between the force Zamilpa used
in raping C.M. and the additional degree of force meant to support the criminal
confinement conviction, we hold the trial court erred in entering convictions of
both rape and criminal confinement. See, e.g., D.M. v. State, 222 N.E.3d 404,
410 (Ind. Ct. App. 2023) (holding juvenile court’s true findings of both
possession of a firearm on school property and dangerous possession of a
firearm violated the prohibition against double jeopardy because both findings
were premised on the defendant possessing the same firearm on the same day
and during the same period). We affirm Zamilpa’s rape conviction but reverse
his criminal confinement conviction. See Demby v. State, 203 N.E.3d 1035, 1046
(Ind. Ct. App. 2021) (“Where a defendant is found guilty of both the greater
offense and the lesser-included offense, the proper procedure is to vacate the
conviction for the lesser-included offense and enter a judgment of conviction
and sentence only upon the greater offense.”), trans. denied.
Court of Appeals of Indiana | Opinion 23A-CR-1309 | February 23, 2024 Page 13 of 22 1.2 Three Convictions of Sexual Battery
[16] Zamilpa’s second substantive double jeopardy challenge concerns the trial
court’s entry of three convictions of sexual battery. He asserts he “was
punished thrice for the same conduct” and “the acts were so compressed in
time, place, singleness of purpose and continuity of action as to constitute a
single transaction.” (Appellant’s Br. at 8.)
[17] On the same day that our Indiana Supreme Court decided Wadle, it also laid
out the framework for deciding substantive double jeopardy claims “when a
single criminal act or transaction violates a single statute and results in multiple
injuries.” Powell v. State, 151 N.E.3d 256, 263 (Ind. 2020). The Court decreed
that such substantive double jeopardy claims should be analyzed using a two-
step inquiry:
First, we review the text of the statute itself. If the statute, whether expressly or by judicial construction, indicates a unit of prosecution, then we follow the legislature’s guidance and our analysis is complete. But if the statute is ambiguous, then we proceed to the second step of our analysis.
Under this second step, a court must determine whether the facts—as presented in the charging instrument and as adduced at trial—indicate a single offense or whether they indicate distinguishable offenses. To answer this question, we ask whether the defendant’s actions are so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction. If the defendant’s criminal acts are sufficiently distinct, then multiple convictions may stand; but if those acts are continuous and indistinguishable, a court may
Court of Appeals of Indiana | Opinion 23A-CR-1309 | February 23, 2024 Page 14 of 22 impose only a single conviction. Any doubt counsels against turning a single transaction into multiple offenses.
Id. at 264-65 (internal footnote, quotation marks, and citations omitted).
[18] With respect to the first step of the inquiry, the Court proclaimed that when a
statute does not expressly indicate a unit of prosecution, “whether a single
criminal statute permits multiple punishments for multiple victims” depends
upon whether the statute is conduct-based or result-based. Id. at 265. The
Court explained that “under a conduct-based statute, a single discrete incident
can be the basis for only one conviction, no matter how many individuals are
harmed.” Id. at 266 (internal quotation marks omitted). In contrast, under a
result-based statute, “where several deaths or injuries occur in the course of a
single incident, the prohibited offense has been perpetrated several times over.
The separate victims represent different offenses because conduct has been
directed at each particular victim.” Id. (internal citation and quotation marks
omitted).
[19] Both parties direct us to the Powell analysis to decide Zamilpa’s second
substantive double jeopardy claim. The State contends the sexual battery
statute 6 is a result-based statute, and therefore the first step of the Powell analysis
6 Indiana Code section 35-42-4-8(a) defines Level 6 felony sexual battery, in relevant part, as:
Court of Appeals of Indiana | Opinion 23A-CR-1309 | February 23, 2024 Page 15 of 22 is dispositive. However, we do not see this case as fitting neatly in the Powell
box. See Jones v. State, 159 N.E.3d 55, 67 (Ind. Ct. App. 2020) (J. Vaidik
concurring) (observing that neither the Wadle test nor the Powell test applied
neatly to the defendant’s circumstances), trans. denied.
[20] “[H]ow [a] result-based statute applies when there is a single victim who
suffered multiple, substantially similar injuries because of multiple instances of
the same act is ambiguous.” Madden v. State, 162 N.E.3d 549, 560 (Ind. Ct.
App. 2021). In Madden, we faced the question of whether the trial court erred
by entering two aggravated battery convictions when the defendant threw two
pots of hot water at a single victim. Id. at 560. Even though we held the
aggravated battery statute was a result-based statute, we still proceeded to the
second step of the Powell test and analyzed whether the two instances of the
defendant throwing hot water on the victim were part of the same continuous
transaction. Id. Likewise, we look to see whether Zamilpa’s three sexual
batteries of C.M. were part of the same continuous transaction.
A person who, with intent to arouse or satisfy the person’s own sexual desires or the sexual desires of another person:
(1) touches another person when that person is:
(A) compelled to submit to the touching by force or the imminent threat of force[.]
Court of Appeals of Indiana | Opinion 23A-CR-1309 | February 23, 2024 Page 16 of 22 [21] The State contends that “each time [Zamilpa] battered C.M. supports a separate
sexual battery claim.” (Appellee’s Br. at 10.) As the State explained in its
opening statement, it charged Zamilpa with a count of sexual battery for each
sexual touch: “I have him charged with three counts of Sexual Battery. One for
her left breast, one for her right breast, and one for where he tried to insert his
penis into her vagina.” (Tr. Vol. II at 26.) However, the State’s argument is
analogous to the argument our Indiana Supreme Court expressly rejected in
Powell that “each pull of [the defendant’s] trigger amounted to ‘separate acts’
designed to kill each person in [the target] car.” 151 N.E.3d at 269 (citing with
approval Nunn v. State, 695 N.E.2d 124, 125 (Ind. Ct. App. 1998) (observing
that a defendant who discharges fifty rounds in “one burst” of an automatic
weapon at a single victim should not be charged with and convicted of fifty
attempted murders)).
[22] The three sexual touches occurred during the same assault in the same
apartment and the objective of each was to satisfy Zamilpa’s own sexual
desires. Thus, they were part of the same continuous transaction, and the trial
court should have entered only one conviction of sexual battery. 7 Cf. Madden,
162 N.E.3d at 560 (holding defendant’s two acts of throwing hot water on the
7 We also find it problematic that the trial court entered convictions of both rape and sexual battery of C.M.’s vagina because both were based on Zamilpa’s finger touching C.M.’s vagina. While the acts of touching C.M.’s breasts were separate and distinct from his act of raping C.M. by inserting his finger into her vagina, his act of touching C.M.’s vagina was not separate and distinct from his act of inserting his finger into it. See, e.g., D.M., 222 N.E.3d at 410 (holding juvenile’s delinquency adjudications constituted double jeopardy because the facts underlying both charges constituted a single transaction). Accordingly, one of the sexual battery convictions that the trial court should vacate is the count that alleged Zamilpa battered C.M.’s vagina.
Court of Appeals of Indiana | Opinion 23A-CR-1309 | February 23, 2024 Page 17 of 22 same victim did not constitute a single transaction when the two acts “did not
occur at the same time, in the same place, and did not share a purpose”).
Therefore, we reverse the trial court’s entry of multiple convictions of sexual
battery and remand with instructions for the trial court to vacate two of the
three convictions. See, e.g., Starks v. State, 210 N.E.3d 818, 823 (Ind. Ct. App.
2023) (reversing conviction that violated Indiana’s prohibition on double
jeopardy and instructing the trial court to vacate the conviction).
2. Inappropriate Sentence [23] Zamilpa also contends his aggregate twelve-year sentence is inappropriate given
the nature of his offenses and his character. Our standard of review regarding
such claims is well-settled:
Indiana Appellate Rule 7(B) gives us the authority to revise a sentence if it is inappropriate in light of the nature of the offense and the character of the offender. Our review is deferential to the trial court’s decision, and our goal is to determine whether the appellant’s sentence is inappropriate, not whether some other sentence would be more appropriate.
George v. State, 141 N.E.3d 68, 73-74 (Ind. Ct. App. 2020) (internal citations
omitted), trans. denied. We may look at any factors appearing in the record
when assessing the nature of the offense and character of the offender. Boling v.
State, 982 N.E.2d 1055, 1060 (Ind. Ct. App. 2013). The defendant bears the
burden of persuading us that his sentence is inappropriate. Hubbert v. State, 163
N.E.3d 958, 960 (Ind. Ct. App. 2021), trans. denied.
Court of Appeals of Indiana | Opinion 23A-CR-1309 | February 23, 2024 Page 18 of 22 [24] “Our analysis of the nature of the offense requires us to look at the nature,
extent, heinousness, and brutality of the offense.” Pritcher v. State, 208 N.E.3d
656, 668 (Ind. Ct. App. 2023). As our Indiana Supreme Court has explained,
“compelling evidence portraying in a positive light the nature of the offense
(such as accompanied by restraint, regard, and lack of brutality)” may lead to a
downward revision of the defendant’s sentence. Stephenson v. State, 29 N.E.3d
111, 122 (Ind. 2015). When we evaluate whether a sentence is inappropriate
given the nature of the offense, we first look to the advisory sentence.
Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218 (Ind. 2007). A person convicted of a Level 3 felony “shall be imprisoned
for a fixed term of between three (3) and sixteen (16) years, with the advisory
sentence being nine (9) years.” Ind. Code § 35-50-2-5(b). A person convicted of
a Level 5 felony “shall be imprisoned for a fixed term of between one (1) and
six (6) years, with the advisory sentence being three (3) years.” Ind. Code § 35-
50-2-6(b). A person convicted of a Level 6 felony “shall be imprisoned for a
fixed term of between six (6) months and two and one-half (2 ½) years, with the
advisory sentence being one (1) year.” Ind. Code § 35-50-2-7.
[25] The trial court sentenced Zamilpa to a term above the advisory sentence but
below the maximum sentence for each crime – twelve years for Level 3 felony
rape, four years for Level 5 felony criminal confinement, and two years for
Level 6 felony sexual battery. The trial court ordered Zamilpa to serve all the
sentences concurrently. Therefore, even though we held above that two of
Zamilpa’s three sexual battery convictions and his criminal confinement
Court of Appeals of Indiana | Opinion 23A-CR-1309 | February 23, 2024 Page 19 of 22 conviction should be vacated, Zamilpa’s aggregate sentence remains twelve
years, and we consider whether twelve years is inappropriate for convictions of
Level 3 felony rape and one count of Level 6 felony sexual battery.
[26] Zamilpa asserts that his act of inserting his finger into C.M.’s vagina was “the
bare minimum to constitute the crime of rape.” (Appellant’s Br. at 17.)
However, this characterization vastly oversimplifies the brutality of Zamilpa’s
crimes. Zamilpa lured C.M. into his apartment on false pretenses and shut the
door after she entered. He took advantage of her lack of mobility by throwing
her walker into another room. Zamilpa also continued to attack C.M. after she
pleaded with him to stop and attempted to push him off her. He bruised her
breasts, and he scratched her vagina with his fingernails while trying to insert
his penis into it. The scratches caused C.M. severe pain, and the scratches were
still bleeding when C.M. visited the hospital hours later. The nature of
Zamilpa’s crimes does not merit a lesser sentence. See, e.g., Gale v. State, 882
N.E.2d 808, 820 (Ind. Ct. App. 2008) (holding the nature of the defendant’s
offense did not merit a lesser sentence when the defendant continued raping an
unconscious woman after being told to stop by bystanders and the rape resulted
in numerous bruises and abrasions).
[27] We next turn to Zamilpa’s character. Zamilpa argues his sentence is
inappropriate given his advanced age, his physical infirmities, and his self-
reported mental health issues. However, a lengthy prison sentence is not
necessarily inappropriate simply because the defendant is elderly and in poor
health. See Garner v. State, 7 N.E.3d 1012, 1016 (Ind. Ct. App. 2004) (holding
Court of Appeals of Indiana | Opinion 23A-CR-1309 | February 23, 2024 Page 20 of 22 that “[w]hile we recognize that [the defendant’s] age and infirmities are
relevant,” the defendant’s sixty-year sentence was not inappropriate). In
addition, “[w]hen considering the character of the offender, one relevant fact is
the defendant’s criminal history.” Johnson v. State, 986 N.E.2d 852, 857 (Ind.
Ct. App. 2013). “Even a minor criminal history is a poor reflection of a
defendant’s character.” Prince v. State, 148 N.E.3d 1171, 1174 (Ind. Ct. App.
2020). The pre-sentence investigation report indicates Zamilpa was convicted
of making a terroristic threat in California in 1997, and Zamilpa self-reported a
second conviction involving an unspecified felony in California in 1979. Even
though these past convictions are substantially removed in time from Zamilpa’s
current offenses, they still reflect poorly on his character. Thus, we cannot say
Zamilpa’s aggregate twelve-year sentence is inappropriate. See, e.g., Gale, 882
N.E.2d at 821 (holding defendant’s sentence was not inappropriate given his
criminal history).
Conclusion [28] We affirm Zamilpa’s convictions of rape and one count of sexual battery.
However, we reverse his criminal confinement conviction and two of his sexual
battery convictions because those additional convictions violated Zamilpa’s
right to be free of double jeopardy. Therefore, we remand with instructions for
the trial court to vacate those three convictions.
[29] Affirmed in part, reversed in part, and remanded.
Court of Appeals of Indiana | Opinion 23A-CR-1309 | February 23, 2024 Page 21 of 22 Bailey, J., and Felix, J., concur.
Court of Appeals of Indiana | Opinion 23A-CR-1309 | February 23, 2024 Page 22 of 22