John Guajardo v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jul 16 2018, 10:48 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Justin L. Froedge Curtis T. Hill, Jr.
Goebel Law Office Attorney General of Indiana
Crawfordsville, Indiana
Ian McLean
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John Guajardo, July 16, 2018
Appellant-Defendant, Court of Appeals Case No.
54A01-1711-CR-2749
v. Appeal from the Montgomery
Superior Court
State of Indiana, The Honorable Heather Barajas,
Appellee-Plaintiff. Judge
Trial Court Cause No.
54D01-1610-F6-2797
Robb, Judge.
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Case Summary and Issue
[1] Following a jury trial, John Guajardo was convicted of two counts of battery by
an adult against a child, both as Level 6 felonies. The trial court sentenced
Guajardo to an aggregate term of five years in the Indiana Department of
Correction. On appeal, Guajardo challenges the sufficiency of the evidence
supporting his convictions and his sentence. Concluding that the evidence
produced at trial supports Guajardo’s convictions and that his sentence is not
inappropriate in light of the nature of his offenses and his character, we affirm.
Facts and Procedural History
[2] In the late summer of 2016, eleven-year-old H.J. and her mother C.J. planned
to move to Crawfordsville to be closer to family and so that C.J. could continue
her education and work. H.J. was to attend middle school in Crawfordsville as
well. In order to facilitate H.J.’s school attendance before their actual move,
C.J. arranged for H.J. to stay with H.J.’s aunt, C.C., in Crawfordsville. C.C.’s
twenty-six-year-old boyfriend, Guajardo, and the couple’s six-year-old son also
lived in the household. H.J. was close with her aunt C.C. and with Guajardo,
who she called uncle. H.J. trusted Guajardo.
[3] When she stayed with C.C. and Guajardo, H.J. slept on one of two couches in
the living room. On August 31, 2016, H.J. was awakened around 4:35 a.m. by
the slamming of a door. Guajardo and a female friend entered the living room.
Guajardo initially sat on the living room’s unoccupied couch. The female
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friend went into C.C.’s bedroom and closed the door. Guajardo moved to the
edge of the couch occupied by H.J., lifted her legs, and placed her legs over his
lap. Guajardo touched H.J.’s inner thighs and buttocks for between twenty and
thirty minutes. H.J. felt uncomfortable and confused when Guajardo touched
her in this manner. H.J. attempted to move away from Guajardo. Guajardo
ceased touching H.J. when C.C. came out of her bedroom and entered the
living room.
[4] H.J. attended school on September 1, 2016, as scheduled. At bedtime that
evening, H.J. felt scared, uncomfortable, and confused. H.J. went to bed again
on the living room couch. Although she attempted to stay awake the entire
night, H.J. fell asleep and was again awoken between 4:00 a.m. and 5:00 a.m.
by the slamming of a door. Guajardo and the same female friend entered the
living room, where Guajardo sat on the unoccupied couch. As soon as the
friend went into C.C.’s bedroom, Guajardo sat on the edge of the couch where
H.J. slept. Guajardo again lifted and placed H.J.’s legs on his lap. Guajardo
touched H.J.’s thighs and buttocks. Guajardo also placed his hand under H.J.’s
shirt and attempted to feel under her bra but was only successful in touching her
chest on her bra line. H.J. tried to move away from Guajardo by forcing her
body into the crevices of the sofa. When C.C.’s bedroom door opened,
Guajardo moved over to the other couch.
[5] H.J. feigned illness later that day so that her mother would retrieve her. After
sleeping a few hours, H.J. reported Guajardo’s actions to her mother, who
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contacted the authorities. The State charged Guajardo with two counts of
Level 6 battery by an adult on a child under the age of fourteen.
[6] At a jury trial that took place on August 22, 2017, H.J. testified regarding the
details of the offenses. Guajardo’s trial counsel cross-examined H.J. about her
vivid imagination, her habit of viewing crime-related television shows, her
desire to spend less time away from her mother, and about the fact that she
experienced nightmares. During his own testimony, Guajardo denied sitting on
the couch where H.J. slept and denied making contact with her clothing or
body. According to Guajardo, he may have placed a blanket on H.J. while she
slept but there could have been no misunderstanding about his actions on either
night. The jury found Guajardo guilty of both offenses. The trial court
scheduled Guajardo’s sentencing hearing for September 29, 2017.
[7] A pre-sentence investigation report (“PSI”) was prepared and filed with the trial
court in advance of Guajardo’s sentencing. Guajardo appeared at his
September 29, 2017, sentencing hearing under the influence of
methamphetamines. The trial court found him in contempt of court and
ordered him to serve thirty days in the county jail. Guajardo’s second
sentencing hearing was held on October 26, 2017. Guajardo’s juvenile criminal
history consisted of a referral for reckless possession of paraphernalia and
adjudications for trespass, mischief, possession of marijuana, resisting law
enforcement, and illegal consumption. Guajardo had two instances of
runaway. Guajardo had received a referral to the Teen Court and the Parent
Project, but he did not complete the Parent Project. Guajardo also received
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probation for the true-findings which he violated and did not complete
successfully. As an adult, Guajardo had convictions in 2008 for theft and
burglary of a vehicle in the state of Utah for which he received twelve months
of probation. In 2008, Guajardo was also convicted of possession of marijuana
and illegal possession of alcohol. Guajardo had an additional conviction for
illegal possession of alcohol. Guajardo’s work history consisted of two years of
part-time service at a fast food restaurant and another three months of
employment at another business prior to being held in contempt of court in this
matter. At his sentencing hearing, Guajardo expressed his willingness to
participate in substance abuse treatment and spoke about his ability to comply
with the requirements of any probation that he was granted. After apologizing
for “what has happened,” “everything I have caused,” “[a]ll the damage,” “my
actions,” and for giving H.J. nightmares, Guajardo admitted in response to
questioning by the prosecutor that he had touched H.J. inappropriately.
Transcript at 161, 163-64.
[8] The trial court found as aggravating circumstances that Guajardo had been in a
position of trust with H.J., two separate offenses occurred, H.J. was under the
age of twelve, H.J. had incurred a great deal of emotional harm, Guajardo had
attended his first sentencing hearing under the influence of methamphetamines,
Guajardo had exhibited a low level of remorse, and Guajardo had been sober
when he committed the offenses. The trial court found as a mitigating
circumstance that Guajardo had a young son who would be negatively
impacted by Guajardo’s incarceration. The trial court found that the
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aggravating circumstances significantly outweighed the mitigating
circumstance. The trial court sentenced Guajardo to two and one-half years for
each conviction, to be served consecutively. Guajardo now appeals his
convictions and his sentence.
Discussion and Decision
I. Sufficiency of Evidence
A. Standard of Review
[9] Guajardo first contends the evidence was insufficient to support his two
convictions for battery by an adult against a child. “Sufficiency-of-the-evidence
claims face a steep standard of review: we consider only the evidence and
reasonable inferences most favorable to the convictions, neither reweighing
evidence nor reassessing witness credibility.” Griffith v. State, 59 N.E.3d 947,
958 (Ind. 2016). The reviewing court affirms the judgment unless no reasonable
factfinder could find the defendant guilty. Id. “We may, and ordinarily do,
uphold findings of guilt beyond a reasonable doubt supported only by the
uncorroborated testimony of a single witness, even the victim’s.” C.S. v. State,
71 N.E.3d 848, 851 (Ind. Ct. App. 2017).
B. Evidence of Battery
[10] Level 6 felony battery by an adult against a child is committed when a person
eighteen years of age or older knowingly or intentionally touches another
person less than fourteen years of age in a rude, insolent, or angry manner. Ind.
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Code § 35-42-2-1(c), (e)(3). The evidence at trial showed that H.J. was eleven
years old and Guajardo was twenty-six years old when the offenses occurred.
H.J. testified that on August 31, 2017, Guajardo touched her inner thigh and
buttocks for twenty to thirty minutes, causing her to feel discomfort and
confusion such that she tried to move away from him. She also testified that on
September 1, 2017, Guajardo touched her thighs, buttocks, and her chest,
scaring H.J. and causing H.J. discomfort such that she tried to evade Guajardo
by squirming into the crevices of the couch. The jury could have reasonably
concluded from this evidence that Guajardo touched H.J. in a rude or insolent
manner on the dates in question.
[11] On appeal, Guajardo argues that this evidence was insufficient to show that a
crime had been committed or that it was he who committed the offenses.
Appellant’s Brief at 11. We disagree. H.J. identified Guajardo as the person
who touched her on two successive days, causing her discomfort. This was
substantial, probative evidence of Guajardo’s guilt sufficient to uphold the
jury’s verdict. See C.S., 71 N.E.3d at 851.
[12] Guajardo acknowledges our standard of review and assures us that he does not
request that we reweigh the evidence, see Appellant’s Br. at 8-9, but he then goes
on to draw our attention to evidence that does not support the jury’s verdict and
to what he contends are inconsistencies in H.J.’s testimony. Guajardo does not
argue on appeal that H.J.’s testimony was incredibly dubious. Rather,
Guajardo asks us to distinguish the facts of this this case from Walker v. State,
678 N.E.2d 402 (Ind. Ct. App. 1997). Appellant’s Br. at 9. We find that we
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cannot make such a distinction, as another panel of this court found that the
uncorroborated testimony of Walker’s victim was sufficient to sustain his rape
conviction. Id. at 404. The fact that the Walker panel went on to note the
presence of other, corroborating evidence in the record does not alter its
conclusion that the victim’s testimony alone was sufficient to uphold the
conviction. The second case cited by Guajardo in this section of his argument,
Vest v. State, 621 N.E.2d 1094 (Ind. 1993), is distinguishable, however, as the
victim in that case did not testify at trial. Id. at 1096.
[13] Here, the jury was presented with two squarely different versions of the events
at issue. The jury resolved the conflict between those two versions in favor of
H.J. Given our standard of review, we must uphold the jury’s verdict. Griffith,
59 N.E.3d at 958.
II. Sentencing 1
A. Standard of Review
[14] Although Guajardo briefly contends that the trial court abused its discretion by
overlooking what he argues were mitigating factors supported by the record, on
appeal he cites only to the standard of review for assessing the
1
[1] We decline to find waiver of Guajardo’s sentencing claim for his failure to include his PSI in his
Appellant’s Appendix as urged by the State. Appellee’s Brief at 14-15. Although the PSI should have been
included in Appellant’s Appendix pursuant to Indiana Appellate Rule 50(B), we do not find that our review
in this case was materially impaired by its absence since the trial court summarized Guajardo’s criminal
record on the record at his sentencing hearing.
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inappropriateness of his sentence. Appellant’s Br. at 11, 14-15. Thus, we find
that his sentencing claim is a request to determine if his sentence is
inappropriate given the nature of his offenses and his character and address it as
such.
[15] “The Court may revise a sentence authorized by statute 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.” Ind. Appellate Rule 7(B). The burden is on the defendant to
persuade us his or her sentence is inappropriate. Childress v. State, 848 N.E.2d
1073, 1080 (Ind. 2006). Though we exercise our independent judgment in
assessing an inappropriate sentence claim, sentencing is principally a
discretionary function in which the trial court’s judgment should receive
considerable deference. Hines v. State, 30 N.E.3d 1216, 1225 (Ind. 2015). We
may look to any factors appearing in the record in examining the nature of the
offense and the character of the offender. Spitler v. State, 908 N.E.2d 694, 696
(Ind. Ct. App. 2009), trans. denied. “Whether we regard a sentence as
appropriate at the end of the day turns on our sense of the culpability of the
defendant, the severity of the crime, the damage done to others, and myriad
other factors that come to light in a given case.” Hines, 30 N.E.3d at 1225
(citation omitted).
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B. Inappropriate Sentence
[16] Guajardo was found guilty of two Level 6 felonies. The sentencing range for a
Level 6 felony is six months to two and one-half years, with the advisory
sentence being one year. Ind. Code § 35-50-2-7(b). The trial court sentenced
Guajardo to two and one-half years for each conviction, to be served
consecutively. Therefore, Guajardo received the maximum possible sentence
for his convictions.
[17] Concerning the nature of Guajardo’s offenses, we find it significant that
Guajardo was in a position of trust with H.J. when he committed the offenses.
H.J. knew and trusted Guajardo, who she considered to be her uncle. H.J. was
placed in Guajardo’s care so that H.J.’s mother could work and further her
education. Guajardo used this position of trust to gain access to H.J. to commit
the offenses while H.J. was in the vulnerable position of attempting to sleep.
We note that H.J. was eleven years old at the time of the offense, which was
younger than necessary to have proven the offense. We further note that these
offenses were not brief lapses in judgment on Guajardo’s part. The August 31
offense went on for up to thirty minutes, and on both occasions, Guajardo only
ceased touching H.J. because someone interrupted him. Guajardo’s conduct
escalated between the offenses, as he also touched H.J. under her clothing
during the second offense. On appeal, Guajardo offers no argument that his
sentence is inappropriate in light of the nature of his offenses. Thus, we find
that Guajardo has failed to meet his burden of persuasion on appeal regarding
the nature of his offenses. Childress, 848 N.E.2d at 1080.
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[18] As to the character of the offender, Guajardo has a criminal record consisting of
both juvenile and adult offenses. As a juvenile, Guajardo had a referral for
reckless possession of paraphernalia, had adjudications for trespass, mischief,
possession of marijuana, resisting law enforcement, illegal consumption, and
had two instances of runaway. As an adult, Guajardo was convicted of theft
and burglary of a vehicle, both in Utah. Guajardo also had convictions for
marijuana and alcohol offenses. Guajardo received probation in the past which
he violated, which undercuts his argument on appeal that he was a good
candidate for probation. Although Guajardo argues on appeal that he had led a
law-abiding life for a significant period of time prior to the instant offenses, the
fact that he appeared for his first sentencing hearing under the influence of
methamphetamines shows that he was not, in fact, a law-abiding citizen despite
his lack of criminal convictions for the prior eight years. Furthermore, the
record is devoid of evidence that Guajardo sought any treatment on his own for
his substance abuse issues. In addition, we find that Guajardo’s halting and
incomplete apologies at his sentencing hearing indicate that his remorse for his
actions is not profound. In short, we find nothing about the nature of
Guajardo’s offenses or his character renders the sentence imposed by the trial
court inappropriate.
Conclusion
[19] Given the substantial evidence supporting Guajardo’s convictions, we affirm
the jury’s verdicts. In light of our independent review of the nature of
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Guajardo’s offenses and the nature of his character, we hold that his five-year
aggregate sentence is not inappropriate, and the judgment of the trial court is
also affirmed.
[20] Affirmed.
Najam, J., and Altice, J., concur.
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