MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this FILED Memorandum Decision shall not be regarded as Jul 03 2019, 5:30 am precedent or cited before any court except for the CLERK purpose of establishing the defense of res judicata, Indiana Supreme Court Court of Appeals collateral estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Stacy R. Uliana Curtis T. Hill, Jr. Bargersville, Indiana Attorney General of Indiana Henry A. Flores, Jr. Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Ramiro Aguirre, July 3, 2019
Appellant-Defendant, Court of Appeals Cause No. 18A-CR-2456 v. Appeal from the Hamilton Superior Court State of Indiana, The Honorable Steven R. Nation, Judge Appellee-Plaintiff Trial Court No. 29D01-1804-F1- 2906
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019 Page 1 of 27 STATEMENT OF THE CASE [1] Appellant-Defendant, Ramiro Aguirre (Aguirre), appeals his conviction and
sentence for ten Counts of child molesting, Level 1 felonies, Ind. Code § 35-42-
4-3(a)(1).
[2] We affirm in part, reverse in part, and remand with instructions.
ISSUES [3] Aguirre presents four issues on appeal, which we restate as:
(1) Whether the trial court abused its discretion by admitting certain
evidence;
(2) Whether the State presented sufficient evidence beyond a reasonable
doubt to sustain some of his convictions;
(3) Whether the trial court abused its discretion at sentencing; and
(4) Whether Aguirre’s sentence is inappropriate in light of the nature of the
offenses and his character.
FACTS AND PROCEDURAL HISTORY [4] In 2016, seven-year-old A.G. lived with her mother (Mother), her two brothers,
and her sister in Noblesville, Indiana. In November 2016, Mother married
Aguirre, and Aguirre moved into A.G.’s home. Mother’s children, including
A.G., called Aguirre “[p]oppy” or “[d]ad.” (Transcript Vol. II, p. 230). Mother Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019 Page 2 of 27 was a lab technician and worked two jobs. Aguirre worked full-time during the
evenings at Wal-Mart.
[5] Between November 2016 and April 2018, when A.G. was seven or eight years
old, Aguirre committed multiple acts of molestation upon A.G. during his time
alone with her. Specifically, Aguirre put his penis on A.G.’s vagina. He also
put his penis inside A.G.’s mouth and touched A.G.’s vagina with his hands.
A.G. indicated that the molestation events that occurred in three rooms,
happened “a lot.” (Tr. Vol. III, p. 36). Aguirre instructed A.G. not to disclose
his acts to anyone.
[6] On April 6, 2018, Mother drove Aguirre to the airport. Aguirre was flying to
Guatemala for medical treatment. On April 18, 2018, and while Aguirre was
still in Guatemala, A.G.’s school guidance counselor (Counselor) received a
report from a concerned parent regarding something A.G. had told her
daughter on the school bus. After talking with A.G. about the report, the
Counselor contacted the Department of Child Services (DCS) to report a
possible case of child abuse. The school also called A.G.’s mother who left
work to pick up A.G. After picking up A.G., Mother took A.G. to the child
advocacy center in Hamilton County for a forensic interview. A sexual assault
kit was thereafter performed. A.G.’s results were normal since they showed no
signs of trauma.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019 Page 3 of 27 [7] On April 23, 2018, after Aguirre had returned from his Guatemala trip, the
State filed an Information, charging Aguirre with Counts I-X, child molesting,
Level 1 felonies, and Counts XI-XII, child molesting, Level 4 felonies. On July
11, 2018, a jury trial was conducted, and Aguirre was found guilty as charged.
Due to double jeopardy concerns, the trial court declined to enter judgment of
convictions for the Level 4 felony child molesting convictions.
[8] On September 13, 2018, the trial court conducted a sentencing hearing. At the
close of the evidence, the trial court sentenced Aguirre to forty years on each
Count to be served in the Department of Correction (DOC). Aguirre’s sentence
is to be executed as follows: concurrent terms on Counts I through IV, but
consecutive to Counts V through X; concurrent terms for Counts V through
VIII, but consecutive to Counts I through X; Counts IX and X, are to run
consecutive to each other, and consecutive to Counts I through VIII. Thus, the
trial court imposed four consecutive forty-year sentences for an aggregate
sentence of 160 years.
[9] Aguirre now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION I. Admission of A.G.’s Video Forensic Interview
[10] Aguirre argues that the trial court abused its discretion by admitting A.G.’s
video forensic interview as a prior consistent statement pursuant to Indiana
Rule of Evidence 801(d)(1). Trial courts have broad discretion to rule on the Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019 Page 4 of 27 admissibility of evidence. Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). On
appellate review, we review the trial court’s ruling “‘for abuse of that discretion
and reverse only when admission is clearly against the logic and effect of the
facts and circumstances and the error affects a party’s substantial rights.’” Id.
(quoting Clark v. State, 994 N.E.2d 252, 259-60 (Ind. 2013)). The trial court’s
broad discretion extends to situations involving the admissibility of purported
hearsay. Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014).
[11] “Hearsay is an out-of-court statement offered for ‘the truth of the matter
asserted,’ and it is generally not admissible as evidence.” Id. at 565 (quoting
Ind. Evidence Rule 802). “‘Whether a statement is hearsay . . . will most often
hinge on the purpose for which it is offered.’” Id. (quoting United States v.
Linwood, 142 F.3d 418, 425 (7th Cir. 1998)).
[12] Indiana Evidence Rule 801(d)(1) provides:
(d) . . . a statement is not hearsay if:
(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement: (A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition; (B) is consistent with the declarant's testimony, and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019 Page 5 of 27 (C) is an identification of a person shortly after perceiving the person.
[13] Cases that have applied Indiana Rule 801(d)(1), governing the substantive use
of prior consistent statements by a witness and whether there has been an
express or implied charge of recent fabrication or improper influence or motive,
have made it clear that there is a difference between merely challenging a
witness’s credibility versus making an express or implied charge of fabricated
testimony or improper influence or motive. Corbally v. State, 5 N.E.3d 463, 469
(Ind. Ct. App. 2014). Considering Corbally, we must therefore determine if
there was an express or implied charge of fabricated testimony or improper
influence or motive.
[14] At the end of A.G.’s direct examination, the State asked, “did anyone tell you
what to say today?” (Tr. Vol. III, p. 43). A.G. responded, “I don’t remember.”
(Tr. Vol. III, p. 43). During A.G.’s cross-examination, the following exchange
occurred:
Q. Okay. And did you talk to anybody about what you were going to say today? A. Uh, you know what you mean? What you mean? Q. Yeah, have you talked to anybody about what to say today before you came into the courtroom? A. No. Q. You didn’t know what you were going to say? You didn’t know what questions people were going to ask you? A. I know what I was going to say to Miss Jessica [(the deputy prosecutor)]. Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019 Page 6 of 27 Q. Miss Jessica, okay. A. Yes. Q. So[,] she kind of helped you with that? A. Yeah, we practiced last time in the courtroom. Q. Oh, okay. A. And we practiced sometime in her room, in her office. *** Q. And you understand that you need to tell the truth, right? A. Yes. Q. Okay. And have you been doing that? A. Yes. Q. Okay. And is a lot of the things that you’re saying is because, that you know what to say is because you had, you were in Ms. Paxton’s office? A. I don’t know what Paxton office means. Q. In [Miss] Jessica’s office. A. Oh. I don’t know. Q. Okay. Is it possible? A. I don’t know what you mean by that. Q. Oh, okay. Is what you’re saying today, okay, is that things that you had, you spoke with or talked with Jessica about in her office? A. Yes. Q. Okay. And so you remember what to say because you recently said that with Miss Jessica, right? A. Yes. *** Q. Okay, thank you. Just one last question, A.G. A. Okay. Q. And then I’m done, all right? A. Okay. Q. You said that you talked to Jessica once in her office and once in this courtroom? A. I talked to her last time, two times in her office last time. Q. Okay. And when was the last time you spoke with her? Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019 Page 7 of 27 A. Last time when I spoke? Q. Yeah. A. Talking about [Aguirre] touched [sic] my private body? Q. Yes. A. Oh, I started speaking because it wasn’t good for me, because I could have been sick or get hurt. Q. Okay. So did you talk to Miss Jessica in a courtroom like this? A. No, but in her office. But -- Q. Go ahead. A. In her office. Q. In her office, okay. Was anybody else with you? A. Andre ([deputy prosecutor)]. Q. Who’s Andre? A. He’s right there. Q. Oh, right there. Oh, he was with you. Oh, okay. A. And Hailey ([A.G.’s private counsel]) was in there with me also. Q. Hailey was or was not? A. Yes. Q. She was with you. So it was you Hailey, Andre, and Jessica? A. Yes, and Jessica let me grab a beanie-boo that I could play with, but I had to talk also. Q. And did you go over that picture with her? The picture that I showed you with the drawing? A. Oh, yeah, she showed me it. And she showed me the picture of the girl private body, but she wasn’t able to show me the boy private because it wasn’t made yet.
(Tr. Vol. III, pp. 54-55, 62-63, 68-70).
[15] After A.G. testified, the State called Courtney Bachus (Bachus), the forensic
interviewer who questioned A.G, to testify. During the Bachus’ direct
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019 Page 8 of 27 examination, the State moved to admit A.G.’s video interview as a prior
consistent statement, pursuant to Indiana Evidence Rule 801(d)(1)(B), arguing
that Aguirre had “opened the door” when his questions to “A.G. seemed to
suggest that her meeting with” the State before trial, implied that it had coached
A.G.’s testimony. (Tr. Vol. III, p. 89). The parties engaged in a sidebar, and at
the end of the parties’ arguments, the trial court allowed the State to publish
A.G.’s video forensic interview to the jury.
[16] On appeal, Aguirre argues that he “objected on multiple grounds, including that
his cross-examination [of A.G.] did not open the door to her forensic interview”
to come in “as a prior consistent statement, and even if he did, the State should
[have] rehabilitated A.G. by reading certain prior consistent statements rather
than playing the entire video statement.” (Appellant’s Br. p. 16). He continues,
“[E]ven though [he] implied that the meetings with the prosecutors influenced
[A.G.’s] testimony by helping her []remember[] what to say, he never implied
that such meetings were improper to have with a child.” (Appellant’s Bp. P.
16).
[17] At Aguirre’s jury trial, the State argued that Aguirre’s counsel’s extensive
questioning of A.G. gave the jury the impression that it had improperly
influenced A.G.’s testimony. Following the parties’ arguments, the trial court
concluded in its sound discretion that Aguirre’s line of question crossed the line
from impeaching for credibility into the realm of implicitly charging A.G. with
fabricating her testimony. Our reading of the record supports the State’s Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019 Page 9 of 27 contention, and while Aguirre maintains that was not his trial counsel’s
intention, that is irrelevant. “‘The fact that . . . counsel may not have intended
to imply that [the witness’s] story was fabricated . . . is irrelevant if that
inference fairly arises from the line of questioning he pursued.’” See Horan v.
State, 682 N.E.2d 502, 511-12 (Ind. 1997) (quoting U.S. v. Baron, 602 F.2d 1248,
1253 (7th Cir. 1979). See also Brim v. State, 624 N.E.2d 27, 33 (Ind. Ct. App.
1993) (victim’s prior statement to police identifying Brim was admissible to
rebut accusation that the identification was not the result of her own
independent knowledge, but instead was the product of suggestions made by
her mother and others). Thus, we hold that the trial court properly admitted
A.G.’s video interview to rebut Aguirre’s allegation that A.G.’s testimony was
the result of a recent improper influence by the State.
[18] Even assuming the trial court erred by admitting A.G.’s video forensic
interview in this case, we find that the admission was harmless. See Pavey v.
State, 764 N.E.2d 692, 703 (Ind. Ct. App. 2002) (holding that the erroneous
admission of evidence may be harmless if it is merely cumulative of other
evidence in the record), trans. denied. Here, the videotape was admitted into
evidence after A.G. had testified. A comparison of the video interview with
A.G.’s trial testimony reveals that the video interview did not supply any
information that the jury had not already heard when A.G. testified. Although
cumulative and therefore of minimal probative value, the prejudicial effect of
admitting A.G.’s videotaped interview was not significant in the face of her live
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019 Page 10 of 27 testimony which was sufficient to justify Aguirre’s convictions. Accordingly,
we hold that any error in the trial court’s admission of A.G.’s video forensic
interview was harmless.
II. Sufficiency of the Evidence
[19] On appeal, Aguirre argues that the State failed to prove beyond a reasonable
doubt, his convictions for Counts VI through VIII, and Count X.
[20] When reviewing a claim of insufficient evidence, it is well-established that our
court does not reweigh evidence or assess the credibility of witnesses. Walker v.
State, 998 N.E.2d 724, 726 (Ind. 2013). Instead, we consider all the evidence,
and any reasonable inferences that may be drawn therefrom, in a light most
favorable to the verdict. Id. We will uphold the conviction “‘if there is
substantial evidence of probative value supporting each element of the crime
from which a reasonable trier of fact could have found the defendant guilty
beyond a reasonable doubt.’” Id. (quoting Davis v. State, 813 N.E.2d 1176, 1178
(Ind. 2004)).
[21] Indiana Code section 35-42-4-3 (a) provides, in pertinent part, that
A person who, with a child under fourteen (14) years of age, knowingly or intentionally performs or submits to sexual intercourse or other sexual conduct (as defined in [I.C.§] 35-31.5- 2-221.5) commits child molesting, a Level 3 felony. However, the offense is a Level 1 felony if:
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019 Page 11 of 27 (1) it is committed by a person at least twenty-one (21) years of age[.]
[22] Indiana code section 35-31.5-2-221.5 defines “other sexual conduct as an act
involving a sex organ of one person and the mouth or anus of another person;
or the penetration of the sex organ or anus of a person by an object. Indiana
case law has established that the female sex organ includes the external
genitalia and that the slightest penetration of the female sex organ constitutes
child molesting. See, e.g., Short v. State, 564 N.E.2d 553, 559 (Ind. Ct. App.
1991) (concluding that penetration of the female sex organ includes penetration
of external genitalia); Stetler v. State, 972 N.E.2d 404, 407-08 (Ind. Ct. App.
2012) (concluding that touching clitoral hood with finger supported jury’s
finding that Stetler penetrated the victim’s sex organ), trans. denied.
A. Counts VI through VIII
[23] For Counts VI through VIII, the State alleged that
between November 1, 2016[,] and April 8, 2018, [] Aguirre, a person of at least twenty-one (21) years of age, did perform other sexual conduct as defined in Indiana Code [s]ection 35-31.5-2- 221.5 with A.G., a child under the age of fourteen (14) years, to- wit: six (6) to eight (8) years old, specifically an act that involved the penis of [] Aguirre and the genitalia of A.G.
(Appellant’s App. Vol. II, p. 19). In all three Counts, the State alleged that the
offenses occurred “at a time separate.” (Appellant’s App. Vol. II, p. 19).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019 Page 12 of 27 [24] Aguirre argues that “A.G.’s repeated claims that [he] touched her with his
private body is not sufficient evidence of sexual intercourse.” (Appellant’s Br.
p. 14). He continues, “[b]ecause A.G. only described one instance in which
[he] put his private body in her private body, he should only be convicted of one
[C]ount of child molesting.” (Appellant’s Br. p. 14). We disagree.
[25] The record shows that between November 2016 and April 2018, when A.G.
was seven or eight-years old, Aguirre committed multiple acts of molestation
upon A.G. during his time alone with her. The molestation occurred in A.G.’s
room, Mother’s room, and the living room. At trial, A.G. anatomically
identified the female and male genitalia, and she referred to both as “private
body.” (Tr. Vol. III, p. 30). Although A.G. made a single allegation that
Aguirre “touched [his] private body” and then he “put his private body in her
private body,” A.G. also recalled other sexual conduct as defined by Indiana
Code section 35-31.5-2-221.5, committed by Aguirre. (Tr. Vol. III, p. 34).
A.G. stated that Aguirre “made his private body go” into her “mouth” and that
Aguirre’s “private body” tasted like “[p]ee.” (Tr. Vol. III, p. 32). A.G. further
stated that Aguirre “licked” her “private body” with his mouth more than “two
times.” (Tr. Vol. III, p. 42). Moreover, A.G. stated that the molestation events
that occurred in the three rooms, happened “a lot.” (Tr. Vol. III, p. 36).
[26] In light of the above, we conclude that the State presented sufficient evidence
beyond a reasonable doubt to support Aguirre’s Level 1 felony child molesting
convictions in Counts VI through VIII. Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019 Page 13 of 27 B. Count X
[27] As for Count X, a Level 1 felony child molesting offense, the State charged
Aguirre as follows:
between November 1, 2016[,] and April 8, 2018[,] [] Aguirre, a person of at least twenty-one (21) years of age, did perform other sexual conduct as defined in Indiana Code [s]ection 35-31.5-2- 221.5 with A.G., a child under the age of fourteen (14) years, to- wit: six (6) to eight (8) years old, specifically an act that involved the fingers or hand of [] Aguirre and the genitalia of A.G.
(Appellant’s App. Vol. II, p. 19). Relying on Adcock v. State, 22 N.E.3d 720,
728-29 (Ind. Ct. App. 2014), Aguirre argues that while A.G. testified that he
touched or massaged her vagina several times with his hand, there was no
evidence of “digital penetration.” (Appellant’s Br. p. 14). Aguirre adds
even if it could be, A.G. circled the entire female genitalia as her “private body.” [] The [State] never asked A.G. what part of her private body did Aguirre touch. Thus, A.G.’s testimony is not substantial evidence of probative value from which to infer beyond a reasonable doubt that Aguirre penetrated her genitalia to support a Level 1 felony conviction.
(Appellant’s Br. p. 15).
[28] In Adcock, a twenty-year-old witness testified regarding earlier molestations and
indicated that the abuse escalated to the defendant rubbing his penis against her
“private area, my vagina”; “[victim] had the capability of describing such
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019 Page 14 of 27 penetration by Adcock’s penis if it had occurred, but she did not” and there was
no medical or physical evidence of penetration. Adcock, 22 N.E.3d at 728-29.
[29] We find the present case sufficiently distinct from Adcock. Unlike the victim in
Adcock who was twenty-one years old when she testified, A.G. was nine years
old during Aguirre’s trial. A.G.’s limited ability to understand and differentiate
between various areas of her genitals is understandable given her young age.
Moreover, we have held that a conviction for child molesting will be sustained
when it is apparent from the circumstances and the victim’s limited vocabulary
that the victim described an act which involved penetration of the sex organ.
See Short v. State, 564 N.E.2d 553, 558 (Ind. Ct. App. 1991) (holding that it was
reasonable for the trier of fact to infer from child's testimony that defendant
touched her “butt” with his “front butt”—when considered in the context of the
entirety of the evidence and the child's limited vocabulary regarding sex organs
and sexual matters—that the defendant had touched the child's genitalia with
his penis, and noting that “[a] conviction for child molesting/sexual intercourse
will be sustained when it is apparent from the circumstances and the victim's
limited sexual vocabulary that the victim described an act of sexual
intercourse”). Also, we note that “[A] detailed anatomical description of
penetration is unnecessary.” Smith v. State, 779 N.E.2d 111, 115 (Ind. Ct. App.
2002), trans. denied.
[30] With her limited vocabulary, A.G. provided a detailed testimony pertaining to
the allegations in Count X—i.e., Aguirre used his fingers or hand to penetrate Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019 Page 15 of 27 her genitalia. A.G. clearly unequivocally testified that while she was in
Mother’s room, Aguirre “touched her private body” with “[h]is hands” and she
described Aguirre’s touching like a “massage.” (Tr. Vol. III, p. 33). A.G. even
demonstrated the massage in open court. A.G. added that while on the couch
in the living room, Aguirre also touched her “private body with his hands.”
(Tr. Vol. III, p. 36). A.G. testified that while Aguirre was touching her “private
body” with his hand, he would ask her, “does this feel good, or [do] you want it
harder.” (Tr. Vol. III, p. 35). Based on A.G.’s testimony, we hold that the jury
had sufficient evidence beyond a reasonable doubt from which it could
conclude that Aguirre penetrated A.G.’s sex organ with an object—that is, his
hand or finger.
III. Abuse of Sentencing Discretion
[31] Aguirre argues that the trial court abused its discretion by failing to consider his
failing health as a mitigating factor at his sentencing hearing. Additionally, he
contends that the trial court abused its discretion in finding him at a high risk to
reoffend.
[32] Sentencing decisions “rest within the sound discretion of the trial court and are
reviewed on appeal only for an abuse of discretion.” Anglemyer v. State, 868
N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007). “An
abuse of discretion occurs if the decision is clearly against the logic and effect of
the facts and circumstances before the court, or the reasonable, probable, and
actual deductions to be drawn therefrom.” Id. (quotations and citation Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019 Page 16 of 27 omitted). A trial court may abuse its discretion by failing to enter a sentencing
statement, entering findings of aggravating and mitigating factors unsupported
by the record, omitting factors clearly supported by the record and advanced for
consideration, or giving reasons that are improper as a matter of law. Id. at
490-91. “Under those circumstances, remand for resentencing may be the
appropriate remedy if we cannot say with confidence that the trial court would
have imposed the same sentence had it properly considered reasons that enjoy
support in the record.” Id. at 491.
[33] Additionally, a trial court is under no obligation “to accept a defendant’s claim
as to what constitutes a mitigating circumstance.” Weedman v. State, 21 N.E.3d
873, 893 (Ind. Ct. App. 2014), trans. denied. In fact, “[w]here the trial court
does not find the existence of a mitigating factor after it has been argued by
counsel, the trial court is not obligated to explain why it has found that the
factor does not exist.” Phelps v. State, 969 N.E.2d 1009, 1019 (Ind. Ct. App.
2012), trans. denied. “A claim that the trial court failed to find a mitigating
circumstance requires the defendant to establish that the mitigating evidence is
both significant and clearly supported by the record.” Weedman, 21 N.E.3d at
893. Ultimately, if we find that the trial court has abused its sentencing
discretion, our court will remand for resentencing “if we cannot say with
confidence that the trial court would have imposed the same sentence had it
properly considered reasons that enjoy support in the record.” Anglemyer, 868
N.E.2d at 491.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019 Page 17 of 27 [34] At his sentencing hearing, Aguirre presented evidence that in October 2017,
doctors in Guatemala diagnosed him with a “lesion on the right side of his
brain.” (Tr. Vol. III, p. 227). Aguirre indicated that he had planned to go back
to Guatemala for further treatment which was scheduled for September 2018.
Aguirre’s sister stated that since Aguirre was diagnosed with a lesion in his
brain, his health has deteriorated with each passing day. Aguirre’s mother
added that Aguirre suffered from “migraines, shaking in hands, sleep apnea,
high blood pressure, and lack of oxygen to his brain.” (Tr. Vol. III, p. 213).
Aguirre’s counsel also indicated that Aguirre could not receive adequate
treatment for all his health conditions in jail, and that the county jail could not
permit him to sleep with his “CPAP.” (Appellant’s Br. p. 25, Tr. Vol. III, p.
227). Aguirre contends that “[d]espite the medical records, his family’s
assertion, [] the trial court’s knowledge of [his] medication issues [], and his
attorney’s argument, the trial court did not address [his] health in [its]
sentencing decision.” (Appellant’s Br. p. 25).
[35] Notwithstanding Aguirre’s claims to his poor health, the pre-sentence
investigation (PSI) reveals that Aguirre’s medical history could not be verified,
and that the only medication he reported taking was a blood pressure
medication. Since there was no evidence in the record establishing that
Aguirre’s multiple health problems should be a factor in determining an
appropriate period of incarceration, or that his medical conditions would be
untreatable during incarceration, or would render incarceration a hardship, we
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019 Page 18 of 27 conclude that the trial court did not abuse its discretion in declining to consider
Aguirre’s health to be a mitigating circumstance.
[36] Aguirre further contends that the trial court abused its discretion by improperly
considering the probation department’s risk assessment that he was at a high
risk to reoffend. The PSI stated that Aguirre “was found to be a low risk to
reoffend. However, based on the policy of Hamilton County Department of
Probation Services regarding sex offenses, [Aguirre’s] risk level was overridden
to high.” (Appellant’s App. Conf. Vol. II, p. 235). In the sentencing order, the
trial court identified as an aggravating circumstance, among others, that
Aguirre’s expressions of joy and pleasure during the testimony of A.G.
indicated that he was at a high risk to reoffend.
[37] As noted, the trial court allowed A.G.’s video forensic interview to be played
for the jury during Aguirre’s trial. At sentencing, the trial court stated
there was testimony concerning the video recording of the child during these sexual acts to her. The [c]ourt is concerned that in observations from this bench during the trial that [Aguirre’s] expressions during the testimony of the little girl showed joy and pleasure. So the [c]ourt deems that he would have a high risk of doing this again.
(Tr. Vol. III, p. 236). The trial court was in the best position to judge Aguirre’s
demeanor at trial, and its reasoning and finding is supported by the record.
Even if we conclude that the trial court improperly considered Aguirre’s
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019 Page 19 of 27 demeanor and associated it with his ability to reoffend, this was unduly one of
the aggravating factors identified by the trial court.
[38] “When a trial court improperly applies an aggravator, but other valid
aggravating circumstances exist, a sentence enhancement may still be upheld.”
Hackett v. State, 716 N.E.2d 1273, 1278 (Ind. 1999). The question is whether we
are confident the trial court would have imposed the same sentence even if it
had not found the improper aggravator. Id. In the instant case, the trial court
found that Aguirre held a position of trust, which he abused when he molested
A.G. The trial court also considered A.G.’s tender age when she was molested,
and that Aguirre took steps to avoid detection. Aguirre does not claim that
these circumstances are improper aggravators. See Edrington v. State, 909
N.E.2d 1093, 1101 (Ind. Ct. App. 2009) (proper to affirm sentence even if
improper aggravator is considered, if we have “confidence the trial court would
have imposed the same sentence” regardless), trans. denied. Based on the
foregoing, we are confident the trial court would have imposed the same
sentence even if it had not found the aggravator Aguirre challenges. Therefore,
we conclude that the trial court did not abuse its discretion at sentencing.
IV. Inappropriate Sentence
[39] Lastly, Aguirre argues that his aggregate 160-year sentence for his ten Counts of
Level 1 felony child molesting convictions is inappropriate in light of the nature
of the offenses and his character.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019 Page 20 of 27 [40] We may revise a sentence if it is inappropriate in light of the nature of the
offense and the character of the offender. Ind. Appellate Rule 7(B). The
defendant has the burden of persuading us that his sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a
Rule 7(B) review “should be to attempt to leaven the outliers and identify some
guiding principles for trial courts and those charged with improvement of the
sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “Appellate Rule 7(B)
analysis is not to determine whether another sentence is more appropriate but
rather whether the sentence imposed is inappropriate.” Conley v. State, 972
N.E.2d 864, 876 (Ind. 2012) (internal quotation marks and citation omitted),
reh’g denied. Whether a sentence is inappropriate turns on “the culpability of the
defendant, the severity of the crime, the damage done to others, and a myriad
of other factors that come to light in a given case.” Cardwell, 895 N.E.2d at
1224.
[41] When determining whether a sentence is inappropriate, we acknowledge that
the advisory sentence “is the starting point the Legislature has selected as an
appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081.
For his Level 1 felony child molesting offenses, Aguirre faced a sentencing
range of twenty to forty years, with the advisory sentence being thirty years.
I.C. § 35-50-2-4. The trial court sentenced Aguirre to the maximum forty years
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019 Page 21 of 27 for each of the ten Level 1 felonies, some running concurrently, and others
consecutive for a total of 160 years executed.
[42] When exercising our power to review and revise a sentence, we are not required
to compare a defendant’s sentence with sentences received by other defendants
in similar cases. Corbally, 5 N.E.3d at 471-72. “However, comparison of
sentences among those convicted of the same or similar offenses can be a proper
consideration when deciding whether a particular sentence is inappropriate.”
Id. at 472. “[A] respectable legal system attempts to impose similar sentences
on perpetrators committing the same acts who have the same backgrounds.”
Serino v. State, 798 N.E.2d 852, 854 (Ind. 2003).
[43] In Tyler v. State, 903 N.E.2d 463, 465 (Ind. 2009), the defendant was convicted
of two Counts of Class A felony child molesting, two Counts of Class C felony
child molesting, and one Count of Class D felony vicarious sexual gratification
for an incident involving five different children. He was sentenced to a total
term of 110 years, which included an habitual offender enhancement. Id. Our
supreme court reduced the sentence to a total of sixty-seven and one-half years.
Id. It based the reduction upon the fact that the defendant did not use force on
or physically injure the children, that he was not in a position of trust, and he
had no prior sex offense convictions. Id. at 469.
[44] In Monroe, Monroe was convicted of five Counts of Class A felony child
molesting. The trial court sentenced him to twenty-two years on each Count
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019 Page 22 of 27 with two years suspended to probation and ordered the sentences to be served
consecutively for an aggregate sentence of 100 years. In considering the nature
of the offense on appeal, our supreme court noted that Monroe was in a
position of trust with his victim and molested the child repeatedly for over two
years. Id. at 580. However, the court also observed that the five Counts were
identical and involved the same child. Id. Regarding Monroe’s character, the
court noted that although he had a prior criminal history, all of his convictions
were driving related, so his criminal history did not justify the imposition of
consecutive sentences. Id. Based on these facts and circumstances, the supreme
court concluded that the nature of the offenses and Monroe’s character
warranted enhanced, but not consecutive, sentences. Id. at 581. The supreme
court revised Monroe’s sentence to a maximum fifty-year term for each of the
five Counts but ordered that they be served concurrently. Id.
[45] In Harris v. State, 897 N.E.2d 927 (Ind. 2008), Harris was convicted of two
Counts of Class A felony child molesting and sentenced to consecutive fifty-
year terms. Id. Our supreme court noted that Harris had occupied a position of
trust with the eleven-year-old victim and had committed multiple uncharged
acts of sexual misconduct that occurred over a period of time. Id. However, as
in Monroe, the court observed that the two Counts of child molesting were
identical and involved sexual intercourse with the same child. Id. Although
Harris had a prior criminal record, the supreme court emphasized that he had
no prior sex offenses in his record and concluded that his criminal history was
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019 Page 23 of 27 not a significant aggravator. Id. at 930. Based on the facts and circumstances
of the case, the supreme court held that consecutive sentences were not
warranted and revised Harris’ sentence to two concurrent fifty-year terms. Id.
[46] The final case we mention for comparison purposes is Pierce v. State, 949 N.E.2d
349, 351 (Ind. 2011). In that case, the defendant repeatedly molested the ten-
year-old daughter of his live-in girlfriend over the course of a year. He was
convicted of three Counts of Class A felony child molesting, one Count of Class
C felony child molesting, and was found to be a repeat sexual offender based
upon a prior Class C felony molesting conviction. He received a total sentence
of 124 years, but our supreme court reduced it to a total of eighty years. Id. at
353. It acknowledged the defendant’s position of trust over the victim and that
the offenses occurred repeatedly, but also noted that only one child was
harmed. Id. It also noted that, aside from the prior molesting conviction that
formed the basis of the repeat sexual offender enhancement, the defendant had
no prior criminal history. Id.
[47] Turning to the nature of Aguirre’s offenses, in a span of two years, Aguirre
repeatedly molested A.G. who was seven or eight years old at the time.
[48] As for his character, we note that Aguirre maintained steady employment prior
to being charged with the instant offenses. Aguirre’s family also attested to his
positive character traits. Further, we acknowledge Aguirre is an involved father
in the lives of his two biological daughters from his previous marriage.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019 Page 24 of 27 Although Aguirre has a criminal history, it is limited: he has one prior arrest in
Illinois for driving with a suspended license. His PSI report reflects that he has
two additional pending charges which were committed after the instant
offenses—i.e., Level 6 felony criminal confinement, and Class A misdemeanor
intimidation.
[49] Aguirre claims that he did not use force when he committed the offenses, and
that A.G. was the only victim. As such, he claims that his consecutive
sentences are inappropriate in light of the nature of the offenses and his
character.
[50] At the time of sentencing, Aguirre was thirty-three years old, and had a
minimal criminal history, however, his prior convictions were not sex offenses.
See Monroe, 886 N.E.2d at 580 (finding “six driving related misdemeanor
offenses” unconnected to the charged molestations was “not substantial” and
did not justify consecutive sentences). As was the case in Harris and Pierce, the
ten Counts of child molestation were identical in some respect and involved the
same child. See also Monroe, 886 N.E.2d at 580 (consecutive sentence of 100
years for five Counts of child molesting manifestly unreasonable in part because
all Counts were identical and involved the same child). Further, although
Aguirre asked A.G. to keep his acts secret, as was the case in Tyler, there was
no evidence Aguirre used force or threats against A.G. when he committed
these offenses.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019 Page 25 of 27 [51] The principle role of review under Rule 7(B) is to attempt to leaven the outliers.
Merida v. State, 987 N.E.2d 1091, 1092 (Ind. 2013). In the instant case, the trial
court ordered four consecutive sentences of forty years to four Counts out of the
ten Counts, for a total executed sentence of 160 years. We are cognizant that
crimes against children are particularly heinous. See Pierce, 949 N.E.2d at 352.
Aguirre’s position of trust over A.G. and the fact that there were repeated
incidents of molestation, are egregious circumstances, but are similar to those in
Tyler, Harris, Monroe, and Pierce. Indeed, the repeated occurrences and
Aguirre’s position of trust over A.G. warrant an enhanced sentence.
[52] In considering the general guidelines enunciated in Merida and other cases
involving ongoing molesting of a child in a position of trust by a defendant with
little prior criminal history, we find that ordering some, but not all, of Aguirre’s
sentences to run consecutive, is warranted. Accordingly, we revise Aguirre’s
sentence to: concurrent terms for Counts I through IX, but consecutive to
Count X. Thus, Aguirre’s aggregate sentence is 80 years. See Smith v. State, 889
N.E.2d 261, 264 (Ind. 2008) (holding that a defendant’s “repeated molestations
. . . together with his violation of his position of trust [], warrant the sentence on
one of these counts being imposed consecutive to one of the other counts”).
CONCLUSION [53] Based on the foregoing, we conclude that the trial court did not abuse its
discretion by admitting A.G.’s video forensic interview. Also, we hold that the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019 Page 26 of 27 State presented sufficient evidence beyond a reasonable doubt to convict
Aguirre of the child molesting offenses which he challenges on appeal. Further,
we conclude that the trial court did not abuse its discretion at sentencing.
However, we hold that Aguirre’s 160-year aggregate sentence is inappropriate
in light of the nature of the offenses and his character. Thus, we remand this
case to the trial court with instructions to issue an amended sentencing order
revising Aguirre’s sentence to an aggregate sentence of 80 years.
[54] Affirmed in part, reversed in part, and remanded with instructions.
[55] Bailey, J. and Pyle, J. concur
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019 Page 27 of 27