Opinion
No. 45A03-1011-CR-607
09-09-2011
MANUEL ROSAS, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT : MARK A. BATES Crown Point, Indiana ATTORNEYS FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana ANN L. GOODWIN Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), 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:
MARK A. BATES
Crown Point, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
ANN L. GOODWIN
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Kathleen A. Sullivan, Judge Pro Tempore
Cause No. 45G02-0607-FC-88
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN , Judge
STATEMENT OF THE CASE
Manuel Rosas appeals his conviction and sentence for child molesting, a class C felony.
We affirm.
ISSUES
1. Whether Rosas's conviction is supported by sufficient evidence.
2. Whether the trial court abused its discretion in allowing the State to present certain hearsay evidence for impeachment purposes.
3. Whether the four-year sentence is inappropriate.
FACTS
On the night of June 12, 2006, the nine-year-old victim spent the night at the Rosas's family home. Y.G. frequently spent time at the home, including sleepovers with Rosas's two daughters, L.R. and B.R. Y.G. viewed Rosas and his wife, Sondra, as her uncle and aunt, and their two daughters as her cousins.
Sometime during the night of June 12, 2006, while Sondra was at work, Rosas awakened Y.G. and told her that he wanted "to show [her] something." (Tr. 49). Y.G., who was sharing a bed with Rosas's daughters in their joint bedroom, followed Rosas to his bedroom. At Rosas's direction, Y.G. lay on her side on Rosas's bed. Rosas positioned himself on the bed beside Y.G. and put his hand into the front of her shirt. Y.G. removed Rosas's hand from her shirt. Rosas then rolled Y.G. onto her back and started kissing her stomach. Rosas told Y.G. to remove her shirt, and he directed her to touch his penis. However, Y.G. refused.
Y.G. told Rosas that she had to use the bathroom, and he allowed her to do so. However, as Y.G. tried to leave the bathroom, Rosas attempted to block her with his body. Y.G. pushed past Rosas and went to L.R. and B.R.'s bedroom. Rosas followed her to the bedroom and told her that he would not allow her to see his daughters if she did not return to his room with him. Even though Rosas persisted in his attempts to force Y.G. to return to his bedroom, Y.G. refused. Rosas eventually left, and Y.G. awakened L.R. and told her what her father had done. L.R. told Y.G. that her father was probably drunk and that he mistook Y.G. for Sondra.
The next day, Y.G. told her mother, L.J., what Rosas had done. L.J. and Sondra were good friends, so she called Sondra and set up a meeting at a local park. After leaving the park, Sondra went back to her house and told Rosas about the meeting and of L.J.'s intention to inform the police about the molestation. Sondra and Rosas went to L.J.'s house, where Rosas repeatedly told L.J. that he was sorry and that he would pay for Y.G.'s therapy. When L.J. insisted on calling the police, Rosas begged her not to for the sake of his children. L.J. reminded him that he had showed no compassion for Y.G..
L.J. did call the police, and Y.G. was interviewed by an investigator on June 21, 2006. A representative of the Department of Child Services, Twan Stokes, interviewed L.R. as part of the investigation. On July 25, 2006, the State charged Rosas with class C felony child molesting.
At the 2010 jury trial, L.R. testified in her father's defense. L.R. stated that when Y.G. talked to her on the night of June 12, 2006, Y.G. could not explain what was wrong and stated only that Rosas "tried touching me." (Tr. 242). L.R. denied that Y.G. told her anything else about the offense. On cross-examination, L.R. acknowledged that she had been interviewed by Stokes. When the State attempted to ask L.R. about what she had told Stokes about Y.G.'s statements, defense counsel raised a hearsay objection. The State responded that it was offering the evidence for impeachment purposes, and after the trial court admonished the jury that the statement was "not being used to prove the truth of what was said to [Stokes], but [was] being used to show a discrepancy or an inconsistency in what was testified to here in court," the prosecutor asked L.R. if she remembered telling Stokes that Y.G. said that Rosas put his hand under her shirt and rubbed her breast. (Tr. 260). When L.R. denied saying these things to Stokes, the prosecutor changed the focus of her questioning.
The State called Stokes as a rebuttal witness. When the prosecutor attempted to ask what L.R. had told Stokes during the investigatory interview, defense counsel raised a hearsay objection. The trial court allowed the question for impeachment purposes, issuing an admonishment similar to the one it had previously directed to the jury. Stokes then testified that L.R. told her that Y.G. had said that Rosas placed his hand under Y.G.'s shirt and rubbed her breasts.
The jury found Rosas guilty of the charged offense. After a pre-sentence investigation and a sentencing hearing, the trial court sentenced Rosas to the advisory sentence of four years in prison.
Indiana Code section 35-50-2-6(a) provides that a person who commits a class C felony "shall be imprisoned for a fixed term of between two (2) and eight (8) years, with the advisory sentence being four (4) years."
Additional facts will be provided as necessary.
DECISION
1. Sufficiency of the Evidence
Rosas contends that there was insufficient evidence to support his conviction. He argues that the evidence showed only that he put his hand in Y.G.'s shirt without touching her body. Citing McCoy v. State, 574 N.E.2d 304 (Ind. Ct. App. 1989) and DeBruhl v. State, 544 N.E.2d 542 (Ind. Ct. App. 1989), he further argues that evidence of kissing Y.G.'s stomach is not sufficient to support a child molesting conviction.
Our standard of review for sufficiency claims is well settled. In reviewing sufficiency of the evidence claims, this court does not reweigh the evidence or assess the credibility of witnesses. Davis v. State, 791 N.E.2d 266, 269 (Ind. Ct. App. 2003), trans. denied. We consider only the evidence most favorable to the judgment, together with all reasonable and logical inferences drawn therefrom. Id. at 269-70. The conviction will be affirmed if there is substantial evidence of probative value to support the conclusion of the trier of fact. Id. at 270.
Child molesting as a class C felony is established by evidence showing that a person, with a child under fourteen years of age, performed or submitted to any fondling or touching of either the child or the older person with intent to arouse or to satisfy the sexual desires of either the child or the older person. I.C. § 35-42-4-3(b). Mere touching alone is not sufficient to constitute child molesting. Clark v. State, 695 N.E.2d 999, 1002 (Ind. Ct. App. 1995), trans. denied. The evidence must show beyond a reasonable doubt that the act of touching was accompanied by the specific intent to arouse or satisfy sexual desires. Bowles v. State, 737 N.E.2d 1150, 1152 (Ind. 2000). The required intent may be established by circumstantial evidence and may be inferred "from the actor's conduct and the natural and usual sequence to which such conduct usually points." Kanady v. State, 810 N.E.2d 1068, 1069-70 (Ind. Ct. App. 2004) (quoting Nuerge v. State, 677 N.E.2d 1043, 1048 (Ind. Ct. App. 1997), trans. denied).
a. Touching under the shirt
Y.G. testified that Rosas placed his hand into her shirt while she was lying on her side, moved her to her back, and then kissed her stomach. Y.G. further testified that Rosas asked her to remove her shirt and to touch his penis. On cross-examination, Y.G. testified that "so first he was like he was touching me and then when he kissed my stomach, that's when I was on my back." (Tr. 89).
During the State's case-in-chief, the deputy prosecutor asked L.J. about the incident, and L.J. responded, "She [Y.G.] told me that he touched her breasts, and he also tried to let her touch him in his private parts." (R. 111). This testimony came in without objection.
Furthermore, defense counsel entered into evidence: (1) Defense Exhibit #1 ("Hammond Police Department Supplemental Report"), wherein Hammond Police Detective Mark Biller stated that he "learned that [the] nine-year-old [victim's] breasts were fondled by a male she considered to be her uncle" and that "Rosas [reached] beneath [Y.G.'s] T-shirt and touched her breasts" (Tr. 422-23); (2) Defense Exhibit #2 ("Hammond Police Department Supplemental Report"), wherein Hammond Police Officer Moore stated that "[Rosas] put his hands under [Y.G.'s] clothes and fondled [Y.G.'s] chest area" (Tr. 423-24); and (3) Defendant's Exhibit #9 ("Probable Cause Affidavit"), wherein Detective Biller stated that "Rosas reached under [Y.G.'s] tee shirt and touched her on her bare chest and breasts" (Tr. 430-31).
Portions of these documents were used by defense counsel to impeach State witnesses, and the documents, in their entirety, were made part of the evidence at defense counsel's request. However, no restriction was placed on the use of the documents.
From Y.G.'s testimony and the other evidence, the jury could have reasonably inferred that Rosas touched Y.G.'s breasts before requesting that she remove her shirt and touch his penis. The jury therefore could have reasonably drawn the conclusion that the circumstantial evidence showed that Rosas touched Y.G. with the intent either to arouse Y.G. or satisfy his sexual desires.
b. Kissing the stomach
Additionally, we note that Rosas's reliance on McCoy and DeBruhl is misplaced. In DeBruhl, which formed the basis for the McCoy decision, DeBruhl pinned the fourteen-year-old victim to the living room floor and kissed her neck. He then dragged her by her wrists to his bedroom. Again pinning the victim to the floor, DeBruhl resumed kissing her neck. He then removed her clothing and forced her to perform fellatio, submit to cunnilingus, and engage in sexual intercourse. 544 N.E.2d at 544. Debruhl subsequently was charged with various offenses, including child molesting by performing the touching of the victim with intent to arouse or satisfy his sexual desires. Id. at 544-45. This court stated that the record was "devoid of any evidence from which a factfinder could reasonably conclude that DeBruhl either removed [the victim's] clothing or kissed her neck with the intent to thereby gratify his sexual desires." Id. at 546. The court opined, "Here, a reasonable factfinder could conclude only that DeBruhl kissed [the victim's] neck and removed her clothing to facilitate his eventual sexual gratification by subsequent sexual conduct rather than to achieve sexual gratification from the kissing and clothing removal itself." Id.
In McCoy, we held that a deputy prosecutor misstated the law when the deputy prosecutor argued in closing argument that McCoy's admission that he kissed the victim was "by itself enough to obtain a conviction for fondling or touching." 574 N.E.2d at 308. We cited DeBruhl in support of this holding. Id.
However, in Nuerge v. State, 677 N.E.2d at 1049, we distinguished DeBruhl, stating:
One could interpret DeBruhl for the proposition that where a defendant touches a child and removes her clothing and this conduct escalates to rape or other acts of a sexual nature, the clear intent to commit the latter acts for the purpose of sexual gratification leads to the conclusion that the initial acts were not done with the intent to satisfy sexual desires. The case should not be extended to mean that under no circumstances can acts such as the initial acts be done with the intent to satisfy sexual desires.We then held that kisses near an erogenous zone may be acts of sexual gratification or attempts to arouse the victim. Id.
The Nuerge court also distinguished McCoy, stating:
McCoy should not be read to support the proposition that kissing and touching could never include the intent element. In McCoy, the prosecutor did not address whether the intent element was satisfied, but instead misrepresented that the act of kissing a child constituted child molesting without considering the intent of the act.Id. at 1049 n.3.
From the evidence, the jury could have reasonably inferred that Rosas kissed Y.G.'s stomach--an area on a nine-year-old that is near the erogenous zones of the breasts and vagina--with the intent to either satisfy his sexual desires or to arouse those of Y.G.. This is especially true given his requests that she remove her shirt and touch his penis.
2. Impeachment of L.R.
Rosas contends that the trial court abused its discretion in allowing the State to impeach L.R. by asking her a question that required a hearsay answer. Rosas further contends that the trial court abused its discretion by calling Stokes on rebuttal to impeach L.R. by testifying that Y.G. told L.R. that Rosas touched Y.G.'s breasts. Rosas claims that the impeachment testimony was prejudicial because it was the only evidence from which the jury could determine that he touched Y.G.'s breasts.
This court reviews a trial court's evidentiary rulings for an abuse of discretion. McHenry v. State, 820 N.E.2d 124, 128 (Ind. 2005). An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court. Carpenter v. State, 786 N.E.2d 696, 703 (Ind. 2003). Indiana Evidence Rule 607 provides that the credibility of a witness may be attacked by any party. A prior inconsistent statement by a witness offered for impeachment is not hearsay because it is not offered for the truth of the matter asserted. Martin v. State, 736 N.E.2d 1213, 1217 (Ind. 2000). A jury is presumed to have followed a trial court's admonishment. Kocielko v. State, 938 N.E.2d 243, 252 (Ind. Ct. App. 2010), trans. denied.
Here, there is no indication that the trial court's admonishment was ineffectual or that Rosas was unduly prejudiced by the impeachment of L.R. As discussed above, there was abundant evidence from which the jury could infer that Rosas touched Y.G.'s breasts and kissed her stomach with the intent either to arouse Y.G. or to satisfy his sexual desires.
3. Inappropriate Sentence
Rosas asserts that his sentence is inappropriate. 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). It is the defendant's burden to "'persuade the appellate court that his or her sentence has met th[e] inappropriateness standard of review.'" Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007) (quoting Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)).
In determining whether a sentence is inappropriate, 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. Rosas received the four-year advisory sentence for a class C felony. The maximum sentence is eight years.
Regarding the nature of the offense, the trial court found that Rosas, who acted as an "uncle" to Y.G., was in a position of trust at the time he committed the offense. This circumstance alone is sufficient to support a maximum sentence for child molesting, let alone the advisory sentence imposed here. See Singer v. State, 674 N.E.2d 11, 14 (Ind. Ct. App. 1996). The trial court also found the specialized circumstance that the nine-year-old victim was much younger than the age of fourteen set as the upper limit of the child molesting statute. The molestation of such an innocent and defenseless child indicates an exceptional level of culpability. Furthermore, Rosas used threats in an attempt to accomplish his goal, another indication of heightened culpability.
Although Y.G.'s age is an element of the offense, the particularized factual circumstances of the crime, including a victim's young age, may be considered as aggravating circumstances. See Edrington v. State, 909 N.E.2d 1093, 1097 (Ind. Ct. App. 2009) (holding that "in some instances the 'tender age' of a victim in a child molesting case may be considered an aggravating factor as a particularized circumstance of the crime").
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Regarding Rosas's conduct, we acknowledge that this conviction is Rosas's first felony offense. However, Rosas attempted to make the offense go away by offering to pay for Y.G.'s therapy. Furthermore, he used the welfare of his children as an argument that Y.G.'s mother should not report the crime to the police, a fact which is particularly ironic because another person's child was his victim.
Rosas emphasizes the hardship on his family as a circumstance that renders the sentence inappropriate. We note that "[m]any persons convicted of serious crimes have one or more children and, absent special circumstances, trial courts are not required to find that imprisonment will result in undue hardship." Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999). Although Rosas's nearly grown children will suffer hardship because of the sentence, we cannot say that there are special circumstances that result in undue hardship.
Rosas also emphasizes the trial court' decision not to place him on probation or sentence him to community corrections. He notes that the trial court considered him a flight risk because he knows will be deported upon release. He points out, however, that he did not flee while he was on bond during the years it took this case to come to trial. Under the circumstances, where Rosas did not meet the criteria for community corrections and where he is now a convicted child molester with reason to flee, we cannot say that the trial court's reasoning renders the sentence inappropriate.
In light of the nature of the offense and the character of the offender, we cannot conclude that Rosas's total sentence is inappropriate, particularly as it is not the maximum sentence possible.
Affirmed. FRIEDLANDER, J., and VAIDIK, J., concur.