Hector G. Lopez v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this
Dec 20 2018, 8:48 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
purpose of establishing the defense of res judicata, Court of Appeals
and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr. Curtis T. Hill, Jr.
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Hector G. Lopez, December 20, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1940
v. Appeal from the Allen Superior
Court
State of Indiana, The Hon. Frances C. Gull, Judge
Appellee-Plaintiff. Trial Court Cause No.
02D05-1802-F5-57
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1940 | December 20, 2018 Page 1 of 5
Case Summary
[1] In February of 2018, Hector Lopez struck and strangled Yolanda Moreno, with
whom he has two children, during an argument. Lopez shoved one of
Moreno’s children when she attempted to telephone the police, an incident
witnessed by another of Moreno’s children. As it happens, a no-contact order
concerning Lopez and Moreno was in effect at the time. The State charged
Lopez with Level 5 felony battery resulting in bodily injury to a person under
fourteen years old, Level 6 felony domestic battery committed in the presence
of a child under sixteen years old, Level 6 felony strangulation, Class A
misdemeanor interference with the reporting of a crime, and Class A
misdemeanor invasion of privacy. The trial court found Lopez guilty as
charged and sentenced him to four years of incarceration, a sentence Lopez
contends is inappropriately harsh. Because we disagree, we affirm.
Facts and Procedural History
[2] On February 16, 2018, Moreno lived in Allen County with her five children and
Lopez, the father of two of her children. The party of seven went out to dinner,
and Lopez, who was intoxicated, became angry and argued with a waitress and
Moreno after one of the children vomited. When the group returned home,
Moreno sent four of the children upstairs, gave the oldest her telephone, and
told her to go outside “just in case something happened[.]” Tr. Vol. II p. 6.
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[3] When Moreno told Lopez to leave, he pushed her in the back and then struck
her in the mouth, drawing blood. When Moreno again told Lopez to leave and
tried to put some of his clothing onto a bed, he pushed her down and strangled
her for approximately forty seconds, which was witnessed by Moreno’s oldest
child, who was not yet fourteen years old. Moreno could not breathe and
scratched Lopez’s back. When Moreno told her daughter to call the police,
Lopez followed her to her room, pushed her “through the wall[,]” took the
telephone from her, and ended the call. Tr. Vol. II p. 13. One of Moreno’s
other children was in the daughter’s room at the time. Meanwhile, Moreno
had found a broom, struck Lopez with it, and managed to get outside and
summon help. It was later determined that a no-contact order prohibiting
Lopez from having contact with Moreno was in effect on February 16, 2018,
and had been since 2014.
[4] On February 23, 2018, the State charged Lopez with Level 5 felony battery
resulting in bodily injury to a person under fourteen years old, Level 6 felony
domestic battery committed in the presence of a child under sixteen years old,
Level 6 felony strangulation, Class A misdemeanor interference with the
reporting of a crime, and Class A misdemeanor invasion of privacy. On June
19, 2018, the trial court found Lopez guilty as charged. On July 27, 2018, the
trial court sentenced Lopez to four years of incarceration for battery, two years
for domestic battery, two years for strangulation, one year for interference with
the reporting of a crime, and one year for invasion of privacy, all sentences to
be served concurrently.
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Discussion and Decision
[5] Lopez contends that his four-year aggregate sentence is inappropriately harsh.
This court will revise a sentence only if, upon “due consideration of the trial
court’s decision” it nonetheless appears that “the sentence is inappropriate in
light of the nature of the offense and the character of the offender.” Ind.
Appellate Rule 7(B); Anglemyer v. State, 868 N.E.2d 482, 490–91 (Ind. 2007),
clarified on reh’g, 875 N.E.2d 218 (2007). The “nature of the offense” refers to
the defendant’s acts in comparison with the elements of his offense, Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008), while “character of the offender”
refers to general sentencing considerations and the relevant aggravating and
mitigating circumstances. Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014).
Lopez has the burden to show his sentence is inappropriate in light of both the
nature of the offense and his character. Gil v. State, 988 N.E.2d 1231, 1237
(Ind. Ct. App. 2013). This may be done with “compelling evidence portraying
in a positive light the nature of the offense […] and the defendant’s character[.]”
Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). Lopez was convicted of five
crimes, the most serious being a Level 5 felony (with an advisory sentence of
three years and a maximum of six), and was given an aggregate sentence of four
years of incarceration. See Ind. Code § 35-50-2-6(b).
[6] The nature of Lopez’s offenses justifies his sentence. Lopez became intoxicated
and argued with a waitress and Moreno at a restaurant, prompting his entire
party to leave. Soon thereafter, when Moreno told Lopez to leave their home,
he struck her in the mouth, pushed her repeatedly, and strangled her. Lopez
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committed his crimes in the presence of two of Moreno’s children, one of
whom also felt his wrath as she attempted to contact police. It is worth noting
that Lopez should not have been with Moreno and the children at all because
he had an active no-contact order in place at the time he committed the
offenses.
[7] As for Lopez’s character, it also justifies his sentence. Lopez’s criminal history
begins in 2003 and includes misdemeanor convictions for public intoxication,
two counts of operating a vehicle with a BAC of 0.15 g/mL or greater, two
counts of domestic violence in Ohio, control of a motor vehicle while under the
influence in Ohio, domestic battery, and driving while under the influence of
alcohol or drugs in Ohio, eight convictions altogether. Despite Lopez receiving
probation for a number of these offenses—all of which involved substance
abuse or domestic violence—the instant offenses reveal that probation has not
caused Lopez to reform himself. Lopez’s character, as revealed by his criminal
history and his propensity for committing the same types of offenses, justifies
his four-year sentence. In light of the nature of Lopez’s five offenses and his
character, he has failed to establish that his four-year aggregate sentence is
inappropriate.
[8] The judgment of the trial court is affirmed.
Bailey, J., and Brown, J., concur.
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