Pursuant to Ind. Appellate Rule 65(D), Aug 19 2013, 5:41 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
VALERIE K. BOOTS GREGORY F. ZOELLER Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana GEORGE P. SHERMAN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
YONI SOLIS, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1212-CR-971 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Carol J. Orbison, Judge Cause No. 49G22-1112-FA-87521
August 19, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
GARRARD, Senior Judge Yoni Solis appeals his convictions and sentence for molesting his girlfriend’s
young daughter. We affirm.
In September 2005, Concepcion Olivares left her husband Armando Nabor and
took their two-year-old daughter Y.N. with her. At the time, Olivares was pregnant with
their second daughter. While Y.N. was still two, Nabor found them and was allowed to
visit Y.N. regularly for a few months. Olivares and Y.N. then disappeared again, and
after that Nabor saw Y.N. only when he could find her and when Olivares would allow it.
Y.N. and her sister later lived in Mexico with Nabor’s mother, but Olivares then
took them without informing Nabor. He later found them in Indianapolis, but Olivares
did not allow him to see his daughters much and told them he was just a friend. Nabor
hired an attorney, and by March 2011, he exercised regular parenting time with the girls.
Meanwhile, Solis began a relationship with Olivares in December 2009 and lived
with her and her children as a family.1 When Y.N. was seven, Solis molested her several
times. He performed oral sex on her, put his fingers inside her vagina and anus, made her
touch his penis, and kissed her body. Y.N. responded by kicking, pushing, and running
away from him, hiding under the bed, and telling him to stop and to go away.
As a result of the molestations, Olivares took her children and moved in with her
mother in June 2011. She told Nabor about the abuse and took Y.N. to a hospital. There,
Olivares agreed to a safety plan in which Y.N. would have no unsupervised contact with
Solis. The police were unable to locate Solis, and a warrant was later issued for his
arrest.
1 Olivares had a third child before meeting Solis and soon had a fourth child with him. 2 Despite moving out, Olivares continued to talk with Solis on the phone. When she
told him what Y.N. had said about him, he was scared and said he was going to move to
Chicago. Olivares did not like living with her mother, and Solis subsequently arranged
for her and the children to move into an apartment. At some point, Solis moved into the
apartment as well and resumed molesting Y.N. He put his finger inside her vagina,
touched her anus, and kissed her on the mouth.
Nabor knew Solis was to have no contact with Y.N. but saw him around the
apartment when he went to get his daughters. Y.N. denied to her father that Solis was
living there because Olivares told her that if she said anything, the police would take her
family away. When Nabor saw Solis around the apartment again, Y.N. admitted he was
living with them and later told her father that he was still touching her. Nabor called the
police. When the police went to the apartment, Solis fled out the back door but was
detained. He gave the police a fake name, but he was identified by his tattoos.
The State charged Solis with seven counts of child molesting, four as Class A
felonies and three as Class C felonies. On the first day of his jury trial in October 2012,
Solis informed the trial court of his intent to introduce evidence that Nabor had
immigration problems and wanted to use his children as a reason to stay in the country.
The State asked the court to prohibit evidence of Nabor’s immigration status. In a
preliminary ruling, the court said, “I don’t see what the immigration issue has to do with
this, and I won’t allow it.” Tr. p. 33.
During trial, after the State’s direct examination of Nabor, Solis made an offer of
proof concerning the admissibility of Nabor’s immigration issues. Outside the jury’s
3 presence, Solis elicited evidence from Nabor that he had had immigration issues since
2006 when he was arrested for public intoxication and that a deportation proceeding was
scheduled for July 2013. Nabor acknowledged that his attorney told him that showing he
had family in the United States would help in the immigration proceedings. Solis asked,
“So, establishing being their father and being the person that they live with would help
you in your Immigration proceedings; isn’t that correct?” Id. at 124. Nabor responded,
“That’s right.” Id. The State immediately followed up with:
Q. Armando, if your children lived with their mother and not with you, your Immigration issues would be affected the same; is that right? A. That’s right. Q. So, they don’t have to live in your home in order for you to avoid being deported? A. Yes. .... Q. And in fact, you told the defense attorneys in this case at a deposition that you haven’t talked to your lawyer about this case and [Y.N.]? A. No.
Id. at 124-25. The court again prohibited the evidence.
Solis later asked Olivares, outside the jury’s presence, why Nabor came back
around to see his children. Olivares said Nabor told her he wanted to see his daughters
and needed proof that he had children in the country in order to stay in the country. The
court again ruled that evidence about Nabor’s immigration issues was inadmissible.
The jury found Solis guilty as charged, and the court sentenced him to an
aggregate term of eighty years, with seventy years executed and ten years suspended.
4 Solis now appeals, raising two issues for our review: (1) whether the trial court
violated his constitutional rights by excluding evidence of Nabor’s immigration issues,
and (2) whether his sentence is inappropriate.
I. EXCLUSION OF EVIDENCE
Solis contends the exclusion of evidence of Nabor’s immigration issues violated
his constitutional rights to confrontation,2 to have a jury determine the facts,3 and to
present a defense.4 These constitutional rights, however, are subject to reasonable
limitations placed at the discretion of the trial court. See Standifer v. State, 718 N.E.2d
1107, 1110 (Ind. 1999) (“A criminal defendant’s Sixth Amendment right to confront
witnesses is nevertheless subject to reasonable limitations placed at the discretion of the
trial court to address concerns about harassment, prejudice, confusion or interrogation on
issues only marginally relevant.”).
Solis argues the trial court should not have prohibited him from cross-examining
Nabor on his immigration issues or otherwise excluded such evidence. Specifically, Solis
intended to challenge the credibility of both Y.N. and Nabor by showing that Nabor faced
deportation proceedings, learned from his attorney that having his daughters living with
him would help him stay in the country, and thus convinced Y.N. to falsely accuse Solis
of molesting her so that Nabor could gain custody.
2 Solis cites the confrontation clauses of both the federal and state constitutions.
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Pursuant to Ind. Appellate Rule 65(D), Aug 19 2013, 5:41 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
VALERIE K. BOOTS GREGORY F. ZOELLER Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana GEORGE P. SHERMAN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
YONI SOLIS, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1212-CR-971 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Carol J. Orbison, Judge Cause No. 49G22-1112-FA-87521
August 19, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
GARRARD, Senior Judge Yoni Solis appeals his convictions and sentence for molesting his girlfriend’s
young daughter. We affirm.
In September 2005, Concepcion Olivares left her husband Armando Nabor and
took their two-year-old daughter Y.N. with her. At the time, Olivares was pregnant with
their second daughter. While Y.N. was still two, Nabor found them and was allowed to
visit Y.N. regularly for a few months. Olivares and Y.N. then disappeared again, and
after that Nabor saw Y.N. only when he could find her and when Olivares would allow it.
Y.N. and her sister later lived in Mexico with Nabor’s mother, but Olivares then
took them without informing Nabor. He later found them in Indianapolis, but Olivares
did not allow him to see his daughters much and told them he was just a friend. Nabor
hired an attorney, and by March 2011, he exercised regular parenting time with the girls.
Meanwhile, Solis began a relationship with Olivares in December 2009 and lived
with her and her children as a family.1 When Y.N. was seven, Solis molested her several
times. He performed oral sex on her, put his fingers inside her vagina and anus, made her
touch his penis, and kissed her body. Y.N. responded by kicking, pushing, and running
away from him, hiding under the bed, and telling him to stop and to go away.
As a result of the molestations, Olivares took her children and moved in with her
mother in June 2011. She told Nabor about the abuse and took Y.N. to a hospital. There,
Olivares agreed to a safety plan in which Y.N. would have no unsupervised contact with
Solis. The police were unable to locate Solis, and a warrant was later issued for his
arrest.
1 Olivares had a third child before meeting Solis and soon had a fourth child with him. 2 Despite moving out, Olivares continued to talk with Solis on the phone. When she
told him what Y.N. had said about him, he was scared and said he was going to move to
Chicago. Olivares did not like living with her mother, and Solis subsequently arranged
for her and the children to move into an apartment. At some point, Solis moved into the
apartment as well and resumed molesting Y.N. He put his finger inside her vagina,
touched her anus, and kissed her on the mouth.
Nabor knew Solis was to have no contact with Y.N. but saw him around the
apartment when he went to get his daughters. Y.N. denied to her father that Solis was
living there because Olivares told her that if she said anything, the police would take her
family away. When Nabor saw Solis around the apartment again, Y.N. admitted he was
living with them and later told her father that he was still touching her. Nabor called the
police. When the police went to the apartment, Solis fled out the back door but was
detained. He gave the police a fake name, but he was identified by his tattoos.
The State charged Solis with seven counts of child molesting, four as Class A
felonies and three as Class C felonies. On the first day of his jury trial in October 2012,
Solis informed the trial court of his intent to introduce evidence that Nabor had
immigration problems and wanted to use his children as a reason to stay in the country.
The State asked the court to prohibit evidence of Nabor’s immigration status. In a
preliminary ruling, the court said, “I don’t see what the immigration issue has to do with
this, and I won’t allow it.” Tr. p. 33.
During trial, after the State’s direct examination of Nabor, Solis made an offer of
proof concerning the admissibility of Nabor’s immigration issues. Outside the jury’s
3 presence, Solis elicited evidence from Nabor that he had had immigration issues since
2006 when he was arrested for public intoxication and that a deportation proceeding was
scheduled for July 2013. Nabor acknowledged that his attorney told him that showing he
had family in the United States would help in the immigration proceedings. Solis asked,
“So, establishing being their father and being the person that they live with would help
you in your Immigration proceedings; isn’t that correct?” Id. at 124. Nabor responded,
“That’s right.” Id. The State immediately followed up with:
Q. Armando, if your children lived with their mother and not with you, your Immigration issues would be affected the same; is that right? A. That’s right. Q. So, they don’t have to live in your home in order for you to avoid being deported? A. Yes. .... Q. And in fact, you told the defense attorneys in this case at a deposition that you haven’t talked to your lawyer about this case and [Y.N.]? A. No.
Id. at 124-25. The court again prohibited the evidence.
Solis later asked Olivares, outside the jury’s presence, why Nabor came back
around to see his children. Olivares said Nabor told her he wanted to see his daughters
and needed proof that he had children in the country in order to stay in the country. The
court again ruled that evidence about Nabor’s immigration issues was inadmissible.
The jury found Solis guilty as charged, and the court sentenced him to an
aggregate term of eighty years, with seventy years executed and ten years suspended.
4 Solis now appeals, raising two issues for our review: (1) whether the trial court
violated his constitutional rights by excluding evidence of Nabor’s immigration issues,
and (2) whether his sentence is inappropriate.
I. EXCLUSION OF EVIDENCE
Solis contends the exclusion of evidence of Nabor’s immigration issues violated
his constitutional rights to confrontation,2 to have a jury determine the facts,3 and to
present a defense.4 These constitutional rights, however, are subject to reasonable
limitations placed at the discretion of the trial court. See Standifer v. State, 718 N.E.2d
1107, 1110 (Ind. 1999) (“A criminal defendant’s Sixth Amendment right to confront
witnesses is nevertheless subject to reasonable limitations placed at the discretion of the
trial court to address concerns about harassment, prejudice, confusion or interrogation on
issues only marginally relevant.”).
Solis argues the trial court should not have prohibited him from cross-examining
Nabor on his immigration issues or otherwise excluded such evidence. Specifically, Solis
intended to challenge the credibility of both Y.N. and Nabor by showing that Nabor faced
deportation proceedings, learned from his attorney that having his daughters living with
him would help him stay in the country, and thus convinced Y.N. to falsely accuse Solis
of molesting her so that Nabor could gain custody.
2 Solis cites the confrontation clauses of both the federal and state constitutions. 3 Solis cites Article 1, Section 19 of the Indiana Constitution, which states, “In all criminal cases whatever, the jury shall have the right to determine the law and the facts.” 4 Solis cites the federal due process, compulsory process, and confrontation clauses. 5 Solis’s offer of proof, however, failed to show this alleged ulterior motive.
Although Nabor admitted that he faced deportation proceedings and that his attorney told
him having family in the country would help his case, he also stated that it did not matter
whether his daughters lived with him or Olivares. Indeed, he had not even spoken to his
attorney about Solis’s abuse of Y.N. Solis’s questioning of Olivares similarly failed to
produce the desired testimony. Olivares simply stated that Nabor told her he needed
proof that he had children in the country. None of this evidence shows any ulterior
motive for the accusations or any bias or prejudice on the part of Y.N. or Nabor.
Solis nonetheless argues that Nabor gave evidence of an ulterior motive by
responding affirmatively when asked, “So, establishing being their father and being the
person that they live with would help you in your Immigration proceedings; isn’t that
correct?” Tr. p. 124 (emphasis added). This argument fails for the simple fact that Nabor
immediately clarified that whether his daughters lived with him had no bearing on his
immigration issues.
We therefore conclude that the trial court did not abuse its discretion by excluding
evidence of Nabor’s immigration issues. See Kirk v. State, 797 N.E.2d 837, 840-41 (Ind.
Ct. App. 2003) (trial court did not abuse discretion in restricting scope of cross-
examination where offer of proof failed to show victim had any ulterior motive in
accusing defendant of sexual misconduct), trans. denied.
II. INAPPROPRIATE SENTENCE
Solis also contends his sentence is inappropriate. Although a trial court may have
acted within its lawful discretion in imposing a sentence, Article 7, Sections 4 and 6 of
6 the Indiana Constitution authorize independent appellate review and revision of sentences
through Indiana Appellate Rule 7(B), which provides that a court “may revise a sentence
authorized by statute if, after due consideration of the trial court’s decision, the Court
finds that the sentence is inappropriate in light of the nature of the offense and the
character of the offender.” Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007) (citing
Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218
(2007)). The defendant has the burden of persuading us that his sentence is
inappropriate. Id.
We first look to the statutory ranges established for the classes of the offenses.
Solis was convicted of four Class A felonies and three Class C felonies. The statutory
range for a Class A felony is between twenty and fifty years, with the advisory sentence
being thirty years. Ind. Code § 35-50-2-4 (2005). The statutory range for a Class C
felony is between two and eight years, with the advisory sentence being four years. Ind.
Code § 35-50-2-6(a) (2005). The trial court sentenced Solis to an aggregate term of
eighty years, with seventy years executed and ten years suspended, and designated him a
credit restricted felon.
We next look to the nature of the offenses and Solis’s character. Although Solis’s
presentence investigation report reveals no prior criminal history, the nature of the
offenses alone justifies the sentence imposed by the trial court. Solis abused a position of
trust to repeatedly molest his girlfriend’s young daughter over an extended period of
time. Y.N. kicked, pushed, and ran away from him, hid under the bed, and told him to
stop and to go away, but Solis nonetheless continued a pattern of abuse. In addition, it
7 speaks volumes of his character that he moved back into the home and continued to
subject Y.N. to abuse even after she was examined at the hospital and the police began its
investigation. Solis has failed to persuade us that his sentence is inappropriate.
We therefore affirm Solis’s convictions and sentence.
NAJAM, J., and VAIDIK, J., concur.