Opinion
23A-CR-2282
09-06-2024
Rodolfo M. Jimenez, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
Attorney for Appellant Eric J. Massey Banks & Brower, LLC Indianapolis, Indiana Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Jennifer Anwarzai 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Tippecanoe Superior Court The Honorable Laura Zeman, Senior Judge Trial Court Cause No. 79D02-2106-F1-12
Attorney for Appellant Eric J. Massey Banks & Brower, LLC Indianapolis, Indiana
Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana
Jennifer Anwarzai Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BAKER, SENIOR JUDGE
Statement of the Case
[¶1] M.G. and C.G. disclosed that their grandfather, Rodolfo M. Jimenez, had repeatedly molested them in the family home. He appeals his convictions of three counts of child molesting, two as Level 1 felonies and one as a Class C felony; and two counts of sexual misconduct with a minor, both Level 4 felonies. Jimenez also appeals his seventy-year sentence. Concluding that Jimenez has failed to demonstrate reversible error but that the sentencing order needs to be amended, we affirm and remand with instructions.
Issues
I. Whether the State submitted sufficient evidence to sustain Jimenez's convictions.
II. Whether the trial court fundamentally erred in admitting certain evidence.
III. Whether the trial court abused its sentencing discretion.
IV. Whether Jimenez's sentence is inappropriate.
Facts and Procedural History
[¶2] Jimenez and his wife, Alejandra, lived in West Point, Indiana. They raised several daughters, including M.G. and C.G.'s mother. When M.G. was three or four years old, she, her parents, and her five siblings moved in with Jimenez and Alejandra.
[¶3] When M.G. was six, and about to enter first grade, Jimenez asked her to watch television in his bedroom. He closed and locked the door, pulled M.G.'s pants down, and made her bend over the bed. Jimenez then penetrated her vagina with his penis.
[¶4] Jimenez required M.G. to submit to vaginal intercourse approximately fifty times from when she was six until she was ten. After M.G. turned ten, Jimenez abused her approximately twenty times over the next several years. On the final occasion, after M.G. turned fourteen, Jimenez asked her to go to his bedroom to watch television, and he penetrated her vagina with his hands.
[¶5] Jimenez told M.G. not to tell anyone because he would get in trouble. Also, after he abused her, he occasionally took her and her siblings to the store to get candy or snacks.
[¶6] When M.G.'s sister, C.G., was twelve, she was in Jimenez's bedroom when he bent her over the bed and put his penis in her vagina. On subsequent occasions, Jimenez penetrated her vagina with his penis or had her perform oral sex on him. Jimenez made her submit to vaginal intercourse around twenty times, and he required her to perform oral sex upon him weekly. Jimenez assaulted C.G. for the final time when she was fourteen, requiring her to submit to vaginal intercourse in a pole barn on his property.
[¶7] Jimenez occasionally gave C.G. money after molesting her. C.G. told no one because she was worried about her immediate family being forced to move out of her grandparents' home.
[¶8] On March 13, 2021, C.G. had a panic attack at a dance competition and told some of her teammates about her grandfather's abuse. M.G., upon hearing about C.G.'s statements, disclosed that Jimenez had also molested her.
[¶9] The State charged Jimenez with twelve felonies related to his abuse of M.G. and C.G. The jury determined Jimenez was guilty as charged, and the trial court entered a judgment of conviction. At the sentencing hearing, citing double jeopardy issues, the trial court expressed an intent to enter judgment as to only five offenses: three counts of child molesting and two counts of sexual misconduct with a minor. The court imposed a seventy-year sentence. This appeal followed.
Discussion and Decision
I. Sufficiency of the Evidence
[¶10] Jimenez challenges the sufficiency of the evidence supporting nine of the charges. The State argues the trial court entered a judgment of conviction for only the five charges described above. We disagree. In its order on the jury trial, the court entered "judgment of convictions" as to all twelve charges. Appellant's App. Vol. 2, p. 227; see also Tr. Vol. 3, p. 96 (orally entering "judgments of conviction" on all twelve charges). At sentencing, the court indicated it would "enter judgments" as to only five charges. Tr. Vol. 3, p. 114. The court's sentencing order stated that the other seven charges merged into the five charges, and the court "decline[d] to enter judgment of convictions" as to those charges. Appellant's App. Vol. 3, p. 95. But the court had already entered a judgment of conviction on all twelve charges.
[¶11] If a trial court enters a judgment of conviction on a jury's guilty verdict, then merging the offenses at a later date is insufficient to address double jeopardy concerns. See Kovats v. State, 982 N.E.2d 409, 414-15 (Ind.Ct.App. 2013) (determining vacatur of certain convictions was required because trial court had issued judgment of conviction). Here, to carry out the trial court's intent to enter a judgment of conviction for only five counts, the court must vacate the judgment of conviction for the other seven counts and merge them with the remaining five counts. We remand with instructions to issue an amended sentencing order. Meanwhile, we address Jimenez's challenge to the sufficiency of the evidence as to three of the five charges for which the court intended to enter judgment at sentencing.
Jimenez concedes the State presented sufficient evidence to sustain Count IV, one of the Level 1 felony child molest charges, which involved C.G. Appellant's Br. p. 18. In addition, he does not ask the Court to reverse his conviction as to Count II, the Class C felony child molest charge, which involved M.G. Id. at 15.
[¶12] "In assessing whether there was sufficient evidence to support a conviction, we consider the probative evidence in the light most favorable to the verdict." Mehringer v. State, 152 N.E.3d 667, 672 (Ind.Ct.App. 2020), trans. denied. "It is not our role as an appellate court to assess witness credibility or to weigh the evidence." Holden v. State, 149 N.E.3d 612, 616 (Ind.Ct.App. 2020), trans. denied. "We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt." Id. "[T]he testimony of a sole child witness is sufficient to sustain a conviction for molestation." Hale v. State, 128 N.E.3d 456, 461 (Ind.Ct.App. 2019), trans. denied.
[¶13] To obtain a conviction of Level 1 felony child molesting as alleged in Count I, the State was required to prove beyond a reasonable doubt that: (1) Jimenez (2) a person older than twenty-one years of age (3) knowingly (4) performed or submitted (5) to sexual intercourse or other sexual conduct (6) with M.G. (7) a child under fourteen years of age. See Ind. Code § 35-42-4-3(a) (2015); Appellant's App. Vol. 2, p. 56. The State further alleged Jimenez committed this offense between January 1, 2018 and May 23, 2018. Appellant's App. Vol. 2, p. 56.
[¶14] M.G. testified that Jimenez penetrated her vagina with his penis at their home approximately twenty times when she was between ten and thirteen years old. The timing of the later incidents coincides with the range of dates set forth for the charge. There is sufficient evidence to sustain this conviction beyond a reasonable doubt.
[¶15] To obtain a conviction of Level 4 felony sexual misconduct with a minor as alleged in Count VIII, the State was required to prove beyond a reasonable doubt that (1) Jimenez (2) a person older than twenty-one years of age (3) knowingly (4) performed or submitted to sexual intercourse or other sexual conduct (5) with M.G., (6) a child between fourteen and sixteen years of age. See Ind. Code § 35-42-4-9(a) (2018); Appellant's App. Vol. 2, p. 70. The State further alleged Jimenez committed this offense between May 24, 2018 and December 31, 2018. Appellant's App. Vol. 2, p. 70. The General Assembly has defined "other sexual conduct" as "an act involving . . . a sex organ of one (1) person and the mouth or anus of another person; or the penetration of the sex organ or anus of a person by an object." Ind. Code § 35-31.5-2-221.5 (2014).
The General Assembly amended I.C. § 35-42-4-9 during this range of dates, but the amendment is irrelevant to this case.
[¶16] M.G. said Jimenez required her to submit to sexual abuse one final time after she turned fourteen, in the summer before she began high school. He asked her to watch television in his bedroom. Jimenez had M.G. lay down on the bed, and he penetrated her vagina with his hands. This is sufficient evidence of "other sexual conduct" to sustain the conviction beyond a reasonable doubt. See Sorgdrager v. State, 208 N.E.3d 646, 651 (Ind.Ct.App. 2023) (evidence that defendant penetrated victim's vagina with his finger sufficient to support conviction of child molesting by other sexual conduct), trans. denied.
[¶17] Finally, to obtain a conviction of Level 4 felony sexual misconduct with a minor as alleged in Count X, the State was required to prove beyond a reasonable doubt that (1) Jimenez (2) a person older than twenty-one years of age (3) knowingly (4) performed or submitted to sexual intercourse or other sexual conduct (5) with C.G., (6) a child between fourteen and sixteen years of age. See I.C. § 35-42-4-9(a) (2019); Appellant's App. Vol. 2, p. 72. The State further alleged Jimenez committed this offense between April 11, 2020, and December 31, 2020. Appellant's App. Vol. 2, p. 72.
[¶18] C.G. told the jury that after she turned fourteen, Jimenez molested her in a pole barn on her grandparents' property. Jimenez made her lean over "against a chair" and penetrated her vagina with his penis. Tr. Vol. 2, p, 190. This evidence is sufficient to sustain the conviction beyond a reasonable doubt. In sum, we reject Jimenez's challenge to the sufficiency of the evidence.
II. Admission of Evidence
[¶19] Jimenez argues the trial court erred in allowing M.G. and C.G. to testify about "more instances of abuse than [were] charged." Appellant's Br. p. 22. "Ordinarily, we review evidentiary rulings for an abuse of discretion and reverse only when admission is clearly against the logic and effect of the facts and circumstances." Johnson v. State, 157 N.E.3d 1199, 1203 (Ind. 2020). But Jimenez did not object to the admission of the testimony he now seeks to challenge on appeal. If a party fails to timely object at trial to admission of the challenged evidence, "the issue is waived for appeal unless the admission constitutes fundamental error." Richey v. State, 210 N.E.3d 329, 342 (Ind.Ct.App. 2023). "Fundamental error is an extremely narrow exception to the waiver rule where the defendant faces the heavy burden of showing that the alleged errors are so prejudicial to the defendant's rights as to 'make a fair trial impossible.'" Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014) (quoting Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002)). "In assessing whether fundamental error has occurred, '[o]ur task is to look at all that happened, including the erroneous action, and decide whether the error had substantial influence upon the verdict to determine whether the trial was unfair.'" Hornsby v. State, 202 N.E.3d 1135, 1149 (Ind.Ct.App. 2023) (quoting Townsend v. State, 632 N.E.2d 727, 730 (Ind. 1994)), trans. denied.
[¶20] Jimenez argues the trial court fundamentally erred in admitting testimony about the dozens of acts of molestation he perpetrated against M.G. and C.G. because the evidence: (1) amounted to negative character evidence or evidence of prior bad acts; and (2) impermissibly bolstered the witnesses' credibility. The State responds that M.G. and C.G.'s testimony was neither negative character evidence nor evidence of prior bad acts but was instead direct proof of the crimes with which he had been charged. We agree with the State.
[¶21] In Marshall v. State, 893 N.E.2d 1170, 1173, (Ind.Ct.App. 2008), the State charged Marshall with five counts of child molestation related to the sexual abuse of his girlfriend's two daughters. Each of the charges alleged the misconduct occurred within a range of years. The two victims testified Marshall had committed repeated acts of molestation during the range of years relevant to the charges. The jury determined Marshall was guilty as charged.
[¶22] On appeal, Marshall argued the trial court should not have allowed the victims to testify about the large number of acts he committed, arguing they amounted to evidence of uncharged misconduct or prior bad acts. The Court disagreed, noting that the acts described by the witnesses fell within the time periods outlined for the charges. The Court concluded the testimony was admissible because it was "direct evidence of the charges against Marshall." Id. at 1175.
[¶23] In Jimenez's case, M.G. and C.G.'s descriptions of Jimenez's repeated acts of molestation also fell within the charged time frames. Their testimony was direct evidence in support of the charges rather than evidence of prior bad acts or character evidence. Following the holding in Marshall, we conclude Jimenez has failed to demonstrate error, let alone fundamental error, in the trial court's admission of M.G. and C.G.'s testimony.
III. Sentencing - Trial Court's Discretion
[¶24] Jimenez challenges the trial court's identification of aggravating sentencing factors and imposition of consecutive sentences. "Sentencing decisions lie within the sound discretion of the trial court." Hale, 128 N.E.3d at 463. "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 Gross v. State, 22 N.E.3d 863, 869 (Ind.Ct.App. 2014), trans. denied). As the Court has explained:
When reviewing the aggravating and mitigating circumstances identified by the trial court in its sentencing statement, we will remand only if 'the record does not support the reasons, or the sentencing statement omits reasons that are clearly supported by the record, and advanced for consideration, or the reasons given are improper as a matter of law.'Baumholser v. State, 62 N.E.3d 411, 416 (Ind.Ct.App. 2016) (quoting Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (2007)), trans. denied.
[¶25] Similarly, "[t]he decision to impose consecutive sentences lies within the discretion of the trial court." Gross, 22 N.E.3d at 869. "A trial court is required to state its reasons for imposing consecutive sentences or enhanced terms." Id. "Whether the counts involve one or multiple victims is highly relevant to the decision to impose consecutive sentences if for no other reason than to preserve potential deterrence of subsequent offenses." Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).
[¶26] The trial court's sentencing order identifies the following aggravating circumstances: "the harm suffered by victims and family members, repetitive nature, and defendant was in a position of trusts [sic]." Appellant's App. Vol. III, p. 94. Jimenez claims there is insufficient evidence to support the aggravating factor of harm to the victims. He argues the record fails to show M.G. and C.G. experienced harm beyond the circumstances necessary to prove the offense.
[¶27] "A trial court may not use a material element of the offense as an aggravating factor, but it may find the nature and particularized circumstances surrounding the offense to be an aggravating factor." Gober v. State, 163 N.E.3d 347, 354 (Ind.Ct.App. 2021), trans. denied. Thus, a trial court may assign aggravating weight to "the harm, injury, loss or damages suffered by the victim if such harm was significant and greater than the elements necessary to prove the commission of the offense." Sharkey v. State, 967 N.E.2d 1074, 1078 (Ind.Ct.App. 2012).
[¶28] In her sentencing statement to the trial court, C.G. said she had experienced repeated panic attacks and suicidal ideation as a result of Jimenez's abuse. And she felt additional trauma when her extended family broke apart after she disclosed the abuse because her grandmother and aunts did not believe her. M.G. also submitted a sentencing statement, in which she told the court that Jimenez took away a piece of her she will "never get back." Appellant's Conf. App. Vol. III, p. 9. She also said she did not feel "safe with my own thoughts." Id. M.G. further said that during the molestations, she would mentally put herself in a "completely pitch black" place in her head where she could escape the abuse, and she still felt like she wanted to go to that place. Id. And M.G. noted that she had cried on her birthday because she "didn't think [she'd] make it that far[.]" Id.
[¶29] The trial court referred to M.G. and C.G.'s statements, noting: "in reading their letters their sense of hopelessness and helplessness they expressed is just crushing." Tr. Vol. 3, p. 113. There is ample evidentiary support for the "harm to victims" aggravating circumstance. See Sharkey, 967 N.E.2d at 1078-79 (trial court did not err in identifying harm to victims as aggravating sentencing factor; court relied on victim letter, which described harm beyond what was necessary to prove offense).
[¶30] Next, Jimenez argues the trial court failed to explain why it ordered him to serve his sentences for offenses against M.G. consecutively to his sentences for offenses against C.G. We agree the court did not specify which aggravating circumstance supported imposing consecutive sentences. But the court repeatedly referred to both victims during sentencing, as follows:
These crimes will have a, a lifetime of pain for these girls.... There are certainly significant aggravators in this case. The harm suffered is extremely significant. The repetitive nature and it goes on beyond what was necessary to prove these crimes, they will continue, likely to continue, these girls the rest of their lives and it will effect [sic] not just them but generations to come. Their mother thought she could trust her own father with her children. What are they gonna think when they eventually fall in love, marry, and have their own children. Can I trust my father? I know my grandfather was not to be trusted. That's something they will carry for the rest of their lives. They were, these crimes were long term and ongoing and probably I think the most significant aggravator is, you were in a position of trust. These were your little granddaughters. Grandpas, papas, are supposed to be the fun one in the family not the one that causes this kind of pain.Tr. Vol. 3, pp. 112-13. Based on the trial court's numerous references to multiple victims, we are confident the court would have imposed the same sentence had it more fully articulated the aggravating circumstances supporting consecutive sentences. Consequently, we need not remand for a new sentencing statement. See Lewis v. State, 31 N.E.3d 539, 543 (Ind.Ct.App. 2015) (declining to remand for resentencing despite trial court's failure to explain why consecutive sentences were necessary; there were two victims, and the rationale for consecutive sentences was "apparent on the face of the record"). The trial court did not abuse its sentencing discretion.
IV. Sentencing Review - Appellate Rule 7(B)
[¶31] Jimenez asks the Court to exercise its authority to reduce his sentence by an unspecified amount. Article 7, section 6 of the Indiana Constitution authorizes the Court to review and revise sentences. Indiana Appellate Rule 7(B) implements this authority, stating the Court may revise a sentence "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."
[¶32] "Sentence modification under Rule 7(B) . . . is reserved for 'a rare and exceptional case.'" Wilmsen v. State, 181 N.E.3d 469, 472 (Ind.Ct.App. 2022) (quoting Livingston v. State, 113 N.E.3d 611, 612 (Ind. 2018)). When conducting our review, "we generally defer to the sentence imposed by the trial court." Id. Our deference to the trial court will prevail "unless the defendant persuades us the sentence is inappropriate by producing compelling evidence portraying in a positive light the nature of the offense-such as showing restraint or a lack of brutality-and the defendant's character-such as showing substantial virtuous traits or persistent examples of positive attributes." Id. at 472-73. "We consider the aggravators and mitigators found by the trial court and also any other factors appearing in the record." Williams v. State, 170 N.E.3d 237, 245 (Ind.Ct.App. 2021), trans. denied.
[¶33] When Jimenez committed his offenses, a person found guilty of a Level 1 felony could be sentenced to a minimum term of twenty years, a maximum term of forty years, and an advisory sentence of thirty years. Ind. Code § 35-50-2-4(b) (2014). A person convicted of a Class C felony could be imprisoned for a fixed term of between two and eight years, with the advisory sentence being four years. Ind. Code § 35-50-2-6(a) (2005). And a person convicted of a Level 4 felony could be imprisoned for a fixed term of between two and twelve years, with the advisory sentence being six years. Ind. Code § 35-50-2-5.5 (2014).
[¶34] The trial court sentenced Jimenez to thirty-five years for each of his Level 1 felony child molest convictions (one involving M.G., the other involving C.G.). Next, the court sentenced Jimenez to four years for the Class C felony (involving M.G.). And the court sentenced Jimenez to six years for each Level 4 felony conviction of sexual misconduct with a minor (one involving M.G., the other involving C.G.). Finally, the court directed that Jimenez will serve the three sentences involving M.G. concurrently, and the two sentences involving C.G. concurrently. But Jimenez will serve the two Level 1 sentences consecutively, for a total sentence of seventy years. His sentence is far short of the maximum of 112 years.
[¶35] "Our analysis of the 'nature of the offense' requires us to look at the nature, extent, heinousness, and brutality of the offense." Pritcherv. State, 208 N.E.3d 656, 668 (Ind.Ct.App. 2023). Jimenez began abusing M.G. when she was only six years old, well below the fourteen-year age limit for Level 1 felony child molesting. I.C. § 35-42-4-3. Jimenez continued to assault M.G. until she was fourteen, a span of eight years. In addition, he began abusing C.G. when she was twelve, and he continued to do so weekly until just after she turned fourteen. Jimenez had many chances to reconsider his criminal acts but chose to continue. He used his position of power and trust over his granddaughters to facilitate his crimes and to attempt to silence them.
[¶36] In addition, Jimenez had tried abusing others during this period. In a sentencing statement, one of M.G. and C.G.'s sisters, S.G., told the trial court that on one occasion, Jimenez asked her to go into his bedroom. M.G. told him no, saying that S.G. needed to stay downstairs and fold laundry. S.G. believes her sister "was trying to save me from whatever [Jimenez] might have done." Appellant's Conf. App. Vol. III, p. 11.
[¶37] It is also noteworthy that Jimenez committed almost all of his acts against the girls in their home, where they should have felt the safest. After M.G. and C.G. disclosed the abuse, they had to move out of the home where they had lived since they were very young. And their relationship with their grandmother and aunts ended because those relatives refused to believe that Jimenez had abused them. His acts shattered M.G. and C.G.'s extended family. Finally, Jimenez's abuse has had long-lasting traumatic effects on M.G. and C.G., as discussed above.
[¶38] "Our analysis of the character of the offender involves a broad consideration of a defendant's qualities, including the defendant's age, criminal history, background, past rehabilitative efforts, and remorse." Pritcher, 208 N.E.3d at 668. At sentencing, Jimenez was seventy-three years old. He had a steady work history and had been active in his religious community. Jimenez also had substantial community support and the support of some of his family, as shown by thirty-four letters of support. But M.G. and C.G., along with their mother and sisters, also submitted letters portraying Jimenez as adept at hiding his criminal behavior from others.
[¶39] Jimenez has no formal criminal record, and he argues that factor justifies a reduced sentence. We disagree, because the record reflects that he committed dozens of acts of molestation for which he was not separately charged. Jimenez's uncharged misconduct undercuts his lack of a criminal history. See Chastain v. State, 165 N.E.3d 589, 601 (Ind.Ct.App. 2021) (Chastain's lawabiding life not entitled to substantial weight because he also had history of uncharged misconduct), trans. denied.
[¶40] Next, Jimenez cites Granger v. State, 946 N.E.2d 1209 (Ind.Ct.App. 2011), and Sanchez v. State, 938 N.E.2d 720 (Ind. 2010), to support his request for sentence revision. In both cases, the appellant was convicted of multiple counts of child molestation, but the appellate court revised their sentences, noting the appellants lacked a prior criminal record and their victims did not experience physical harm. Those cases are distinguishable. In Granger and Sanchez, the appellants molested their victims for under two years (Granger) or on only three occasions total (Sanchez). Jimenez abused M.G. for eight years and C.G. for over two years. In addition, although M.G. and C.G. appear to have not been physically harmed by Jimenez's molestations, the record reflects they have experienced profound psychological trauma, including suicidal ideation. Considering the troubling nature of Jimenez's offenses along with his character, he has failed to persuade us this is a "rare and exceptional" case that merits sentence revision under Appellate Rule 7(B).
Conclusion
[¶41] For the reasons stated above, we affirm the judgment of the trial court, but we remand with instructions to issue an amended sentencing order vacating the judgment of conviction for all but the five charges for which the trial court intended to impose sentence.
[¶42] Affirmed and remanded with instructions.
Bailey, J., and May, J., concur.