Opinion
24A-CR-1490
12-06-2024
Aurelaio De Leon, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEYS FOR APPELLANT TALISHA R. GRIFFIN INDIANAPOLIS, INDIANA. TIMOTHY J. O'CONNOR O'CONNOR & AUERSCH INDIANAPOLIS, INDIANA ATTORNEYS FOR APPELLEE THEODORE E. ROKITA INDIANA ATTORNEY GENERAL CATHERINE BRIZZI DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Marc T. Rothenberg, Judge The Honorable Matthew E. Symons, Magistrate Trial Court Cause No. 49D29-2301-FC-001123
ATTORNEYS FOR APPELLANT TALISHA R. GRIFFIN INDIANAPOLIS, INDIANA. TIMOTHY J. O'CONNOR O'CONNOR & AUERSCH INDIANAPOLIS, INDIANA
ATTORNEYS FOR APPELLEE THEODORE E. ROKITA INDIANA ATTORNEY GENERAL CATHERINE BRIZZI DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA
MEMORANDUM DECISION
Felix, Judge
Statement of the Case
[¶1] Aurelaio De Leon was convicted of child molesting for an act involving J.E., his step-granddaughter. The trial court sentenced De Leon to three years of incarceration. De Leon now appeals his sentence, raising one issue for our review: Whether the trial court abused its discretion in identifying an aggravating factor.
[¶2] We affirm.
Facts and Procedural History
[¶3] Between 2011 and 2014, when J.E. was between five and eight years old, J.E.'s grandmother and De Leon would babysit J.E. and her siblings. One day during this time, J.E.'s grandmother was in a store while J.E. and G.E., her older sister, waited in the vehicle with De Leon. De Leon was sitting in the front driver's seat, J.E. was sitting in the front passenger seat, and G.E. was sitting in the back seat. J.E. told De Leon that "his ears were hairy," to which De Leon responded that "something else was hairy as well." Tr. Vol. II at 49. De Leon then "pulled out his penis," grabbed J.E.'s hand, and "touched his penis with it." Id. On another occasion, De Leon called J.E. into the bathroom and exposed his naked body to her. Additionally, there was more than one instance when De Leon would lift J.E.'s dress or skirt and "tickle" her "everywhere," including her "lower stomach" while they were alone in De Leon's bedroom. Id. at 46.
[¶4] In 2022, J.E. told her mother and then law enforcement about these events. The State charged De Leon with two counts of child molesting as Class C felonies: the first count concerned De Leon tickling J.E. (the "Tickling Count"), and the second count concerned De Leon making J.E. touch his penis (the "Touching Count"). After a bench trial, the trial court found him not guilty on the Tickling Count and guilty on the Touching Count.
Ind. Code § 35-42-4-3(b) (effective July 1, 2007 to June 30, 2014).
[¶5] After the sentencing hearing, the trial court identified four mitigating factors: (1) De Leon's lack of criminal history, (2) his "strong support group," (3) incarceration "would pose hardships on his dependents," and (4) short-term incarceration or probation would likely benefit him. Tr. Vol. II at 112. The trial court identified two aggravating factors: (1) De Leon "was in a position of care and trust at the time that the offense occurred," and (2) he committed the offense "in the presence of a child who was less than 16 years of age who was not the victim of the offense." Id. The trial court entered a mitigated three-year sentence against De Leon. This appeal ensued.
Discussion and Decision
Any Error in Identifying the Presence of Another Minor Person During De Leon's Molestation of J.E. as an Aggravating Factor Was Harmless
[¶6] De Leon contends that the trial court erred in identifying as an aggravating circumstance that he molested J.E. in the presence of another person who was a minor. We review a trial court's sentencing decision for an abuse of discretion. Owen v. State, 210 N.E.3d 256, 269 (Ind. 2023) (quoting Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), as amended (July 10, 2007), decision clarified on reh'g, 875 N.E.2d 218 (Ind. 2007)), reh'g denied (Aug. 17, 2023). "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. (quoting Anglemyer, 868 N.E.2d at 490). "A court does not abuse its discretion if the record supports its reasons for imposing a sentence and those reasons are proper as a matter of law." Id. (citing Anglemyer, 868 N.E.2d at 490-91).
[¶7] De Leon contends that the trial court erred in considering as an aggravator that he molested J.E. in the presence of someone else who was younger than 18. In particular, De Leon asserts that the evidence does not support this aggravator because the trial court did not identify who the other person was and, assuming the trial court was referring to G.E., there was no evidence about G.E.'s age presented at trial or at the sentencing hearing. We observe that De Leon challenges only one of the two aggravating circumstances the trial court identified. "[W]hen a defendant challenges some, but not all, of the aggravating circumstances found by the trial court, we will not remand for resentencing if we can say with confidence the trial court would have imposed the same sentence had it not considered the purportedly erroneous aggravators." Owen, 210 N.E.3d at 269 (citing McDonald v. State, 868 N.E.2d 1111, 1114 (Ind. 2007)).
The trial judge found the offense was "committed in the presence of a child who was less than 16 years of age who was not the victim of the offense." However, Indiana Code section 35-38-1-7.1(a)(4) permits a court to find an aggravator when a crime of violence-and the Touching Count is a crime of violence-occurs in the presence of an individual less than 18 years of age who was not the victim of the offense.
[¶8] Here, the trial court identified the following unchallenged aggravating factor: De Leon "was in a position of care and trust at the time that the offense occurred," Tr. Vol. II at 112. Given that the trial court imposed a mitigated sentence of three years, we believe it would have imposed the same sentence even if it had only considered the one unchallenged aggravating circumstance. Accordingly, even if the trial court erroneously identified as an aggravating circumstance that De Leon molested J.E. in the presence of a person who was less than 18 years old, any error was harmless because the unchallenged aggravating factor supports the mitigated sentence the trial court imposed. We therefore affirm the trial court.
The advisory sentence for a Class C felony is four years. I.C. § 35-50-2-6(a).
There is nothing in the record that clearly identifies G.E.'s age at the time of the Touching Count. However, throughout the trial, G.E. was identified as a "child" or a "kid."
[¶9] Affirmed.
Pyle, J., and Weissmann, J., concur.