Jesse Cantu v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Jun 21 2017, 8:32 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald E.C. Leicht Curtis T. Hill, Jr.
Kokomo, Indiana Attorney General of Indiana
Laura Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jesse Cantu, June 21, 2017
Appellant-Defendant, Court of Appeals Case No.
34A05-1701-CR-94
v. Appeal from the Howard Circuit
Court
State of Indiana, The Honorable Lynn Murray,
Appellee-Plaintiff Judge
Trial Court Cause No.
34C01-1510-F3-168
Baker, Judge.
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[1] Jesse Cantu appeals the sentence imposed by the trial court after he pleaded
guilty to Rape, a Level 3 felony.1 Cantu argues that pursuant to Indiana
Appellate Rule 7(B), the sentence imposed is inappropriate in light of the nature
of the offense and his character. Finding that Mr. Cantu’s sentence is not
inappropriate, we affirm.
Facts
[2] Sixteen-year-old Cantu visited sixteen-year-old E.S. at her home on the
afternoon of October 13, 2015. Cantu and E.S. had been dating for two months.
E.S. told Cantu that she wanted to end their relationship, and, after she closed
the door to her room, they briefly cuddled as they sat on her bed. Shortly
thereafter, Cantu pinned her arms to the bed, pulled down her pants and
underwear, and penetrated her with his penis for between thirty seconds and
one minute. She repeatedly said, “No, no, stop, get off me!” during the
incident. Appellant’s App. Vol. II p. 22. Cantu then left E.S.’s home, and E.S.
told her mother what had happened. E.S.’s parents reported the incident to the
police and took E.S. to the hospital.
[3] On October 16, 2016, the State charged Cantu with Level 3 felony rape and
Level 6 felony sexual battery. Cantu posted bond and was released from
1
Ind. Code § 35-42-4-1.
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custody. Upon Cantu’s release, the court put a no-contact order in place,
preventing Cantu from having any contact with E.S. and her family.
[4] E.S.’s family reported several break-ins and trespasses on their property over the
following weeks. In March 2016, E.S.’s parents positively identified Cantu to
the police from security camera footage filmed outside their home, and Cantu
was arrested. The court subsequently revoked Cantu’s bond.
[5] Cantu agreed to plead guilty to rape in exchange for the dismissal of the sexual
battery charge. On December 16, 2016, the trial court sentenced Cantu to
fifteen years, with nine years suspended to probation. Cantu now appeals.
Discussion and Decision
[6] Cantu argues that the sentence is inappropriate in light of the nature of the
offense and his character pursuant to Indiana Appellate Rule 7(B). This Court
must “conduct [its] review with substantial deference and give ‘due
consideration’ to the trial court’s decision—since the ‘principal role of [its]
review is to attempt to leaven the outliers,’ and not to achieve a perceived
‘correct’ sentence[.]” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014) (quoting
Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal citations
omitted).
[7] A person who commits a Level 3 felony may be imprisoned for a minimum of
three years and a maximum of sixteen years, with the advisory sentence being
nine years. Ind. Code § 35-50-2-5. Cantu’s fifteen-year sentence with six years
executed and nine suspended falls within the statutory requirement. His
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executed sentence is below the advisory sentence for a Level 3 felony. We do
not find that his sentence is an outlier as described in Knapp.
[8] The nature of the offense, while not as severe as some cases, is still serious. The
crime has caused E.S. significant trauma with which she is still dealing. E.S.
had never had sex before she was raped. Cantu admitted that he knew she did
not want to have sex at the time, but he nonetheless forced himself on her. E.S.
testified that before the rape, she enjoyed school and had an active social life.
Now she is no longer able to concentrate on her classes and cannot maintain
friendships. Her mood is unstable, she cannot sleep because of night terrors,
and she has attempted to physically harm herself. Cantu preyed on this teenage
girl, violating her trust and her body and causing lasting trauma to her and her
family. The nature of the offense does not aid Cantu’s inappropriateness
argument.
[9] As for Cantu’s character, while he had no prior criminal history, he committed
multiple new offenses while on bond for this case. He repeatedly violated the
no-contact order taken out against him by E.S.’s family. He attempted to break
into her house on several occasions and sometimes succeeded, stealing items of
personal property which were later recovered from his possession. E.S. and her
parents set up burglar alarms, installed security cameras, and changed their
locks to protect themselves against Cantu, but he persisted, frequently
damaging their property and security system at great expense to them. Only
when Cantu’s bond was revoked and he was placed in custody did his behavior
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stop. Cantu’s actions evidence a desire to harass and abuse E.S. and her family
and do not reflect well on his character.
[10] Furthermore, Cantu has repeatedly sent threats to E.S. On the night of the rape,
E.S. sent an electronic message to Cantu stating that she wanted to tell her
mother what had happened. Cantu attempted to intimidate her into remaining
silent, writing: “I will kill myself. Tell her things got a bit carried away but
please don’t tell her I raped you.” Appellant’s Vol. II p. 24. When E.S. replied
that she would not lie about the rape, Cantu wrote: “Then I’m going to kill
myself.” Appellant’s App. Vol. IV p. 13–14. Cantu also sent messages to other
individuals, asking them to batter E.S. Cantu’s attempts to avoid culpability by
threatening and manipulating E.S. do not indicate to us that his sentence should
be reduced based on his character. His callous and menacing statements show a
lack of remorse for the trauma he has caused.
[11] Cantu argues that the trial court should have considered the fact that he did not
subject E.S. to beating, torture, confinement or multiple sexual assaults as a
positive reflection of his character. We do not see how the fact that his crime
was not worse is a positive reflection on Cantu’s character. He also suggests
that his age at the time of the crime and his ADHD diagnosis render the
sentence appropriate. His age and any mental conditions he suffers from have
not tempered the vindictiveness with which he has pursued E.S. and her family.
The facts before us do not recommend a reduction in Cantu’s sentence.
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[12] We therefore find that Cantu’s sentence was not inappropriate in light of the
nature of the offense and his character.
[13] The judgment of the trial court is affirmed.
Barnes, J., and Crone, J., concur.
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