Jose F. Medina v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be Jul 30 2013, 7:35 am
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: ATTORNEYS FOR APPELLEE:
MARIELENA DUERRING GREGORY F. ZOELLER
Duerring Law Offices Attorney General of Indiana
South Bend, Indiana
CYNTHIA L. PLOUGHE
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JOSE F. MEDINA, )
)
Appellant-Defendant, )
)
vs. ) No. 20A04-1210-CR-525
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ELKHART SUPERIOR COURT
The Honorable George W. Biddlecome, Judge
Cause No. 20D03-0802-FC-14
July 30, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
Jose Medina appeals his conviction of and sentence for Class A felony attempted child
molesting.1 He presents three issues for review:
1. Whether there was sufficient evidence Medina committed attempted child
molesting;
2. Whether the trial court committed fundamental error when it did not instruct
the jury on specific intent; and
3. Whether Medina’s sentence is inappropriate in light of his character and
offense.
We affirm.
FACTS AND PROCEDURAL HISTORY
On November 3, 2007, when S.P. was ten years old, her mother took her and her
siblings to spend the night at their aunt’s house. Medina was the aunt’s live-in boyfriend.
S.P. and her siblings were familiar with Medina and considered him their uncle. That night,
after S.P. fell asleep on the couch, Medina took her into a bedroom, where he unzipped her
pants and placed his hand inside her underwear. S.P. woke up when she felt his fingers
touching the outside of her genitalia. S.P. said Medina’s name, at which point Medina
stopped touching her. S.P. then left the bedroom crying and returned to the couch next to her
brother. The next time S.P.’s mother prepared to take S.P. and her siblings to their aunt’s
house, S.P. refused, began shaking and crying, and appeared scared. Her mother asked her
what was wrong and within ten minutes S.P. told her what Medina had done. S.P.’s mother
1
Ind. Code §35-42-4-3(a)(1).
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took S.P. to the emergency room and a doctor there notified the police.
Medina was charged with Class C felony child molesting,2 then the State amended the
information to charge Medina with Class A felony attempted child molesting. A jury found
Medina guilty of the Class A felony. The trial court entered the conviction and pronounced a
forty-year sentence.
DISCUSSION AND DECISION
1. Sufficiency of the Evidence
Medina contends the State did not present sufficient evidence to support his
conviction. When we review sufficiency of evidence we do not reweigh evidence or assess
witness credibility. Boling v. State, 982 N.E.2d 1055, 1057-58 (Ind. Ct. App. 2013). “We
consider only the probative evidence and reasonable inferences supporting the verdict.” Id.
The evidence need not overcome every reasonable hypothesis of innocence. Id. Evidence is
sufficient if it permits a reasonably drawn inference that supports the verdict. Id. The
conviction will be affirmed unless no reasonable fact-finder could find the elements of the
crime proven beyond a reasonable doubt. Id.
An attempt to commit a crime occurs when a person, with the requisite culpability,
engages in conduct that constitutes a substantial step toward the commission of the crime.
Ind. Code § 35-41-5-1(a). The State charged Medina with violation of Ind. Code § 35-42-4-
3(a). In Boling, under facts similar to those present here, we explained:
2
Ind. Code 35-42-4-3(b).
3
The statute under which [the defendant] was charged provides that a
person who, with a child under fourteen (14) years of age, performs or submits
to sexual intercourse or deviate sexual conduct commits child molesting
[which is] a Class A felony if . . . it is committed by a person at least twenty-
one (21) years of age. . . . Ind. Code § 35-42-4-3(a)(1). Deviate sexual
conduct means an act involving . . . the penetration of the sex organ . . . of a
person by an object. Ind. Code § 35-31.5-2-94(2). A finger is an object within
the meaning of this definition. Gasper v. State, 833 N.E.2d 1036, 1044 (Ind.
Ct. App. 2005), trans. denied. An attempt is made when a person, acting with
the culpability required for commission of the crime, . . . engages in conduct
that constitutes a substantial step toward commission of the crime. Ind. Code §
35-41-5-1(a). The culpability requirement of the child molesting statute is
knowingly or intentionally, see Louallen v. State, 773 N.E.2d 794, 798 (Ind.
2002), although the State charged [defendant] only with knowing conduct. A
person engages in conduct knowingly if, when he engages in the conduct, he is
aware of a high probability that he is doing so. Ind. Code § 35-41-2-2(b).
Thus, the State must have proved that [defendant] knowingly attempted to
commit child molesting and engaged in an overt act constituting a substantial
step toward the commission of the crime. Noble v. State, 725 N.E.2d 842, 845
(Ind. 2000).
982 N.E.2d at 1057.
In Boling, the victim testified Boling “touched her ‘front private’ first over her
underwear and then under her underwear, directly on her skin.” 982 N.E.2d at 1057-58. We
held that conduct constituted a substantial step toward commission of deviate sexual conduct,
so a reasonable jury could find Boling attempted to commit deviate sexual conduct based on
that testimony. Id.
As in Boling, the State charged Medina only with knowing conduct. Thus it was
required to prove beyond a reasonable doubt Medina attempted to engage in an act of deviate
sexual conduct against S.P., who was under the age of fourteen, and he knowingly engaged in
an overt act constituting a substantial step towards that crime. See id.
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S.P. testified Medina unzipped her pants, placed his hand under her underwear, and
touched her genitalia. The natural and usual sequence of Medina’s conduct indicates he
knowingly took a substantial step toward inserting his finger in S.P.’s sex organ. See Boling,
982 N.E.2d at 1058 (Boling’s contact with minor’s genitalia over and under her underwear
without penetration sufficient to support a conviction of Class A felony attempted child
molestation based on that conduct constituting a substantial step toward knowing
penetration). Medina’s argument is an invitation for us to reweigh the evidence, which we
cannot do. See id. at 1057.
2. Jury Instruction
Jury instructions are within the sound discretion of trial courts and will be reversed
only if, taken as a whole, they misstate the law or mislead the jury. Champlain v. State, 717
N.E.2d 567, 569 (Ind. 1999). Failure to object to a jury instruction generally results in a
waiver of the issue on appeal, Brown v. State, 691 N.E.2d 438, 444 (Ind. 1998), unless the
error is “fundamental.” Winegeart v. State, 665 N.E.2d 893, 896 (Ind. 1996). To be
fundamental, the error must be “a substantial blatant violation of basic principles that renders
a trial unfair to a defendant. Fundamental error must be so prejudicial to the rights of the
defendant as to make a fair trial impossible.” Geiger v. State, 721 N.E.2d 891, 895 (Ind. Ct.
App. 1999) (citation omitted).
Medina contends the omission from the jury instruction of a requirement that the jury
find he acted with “specific intent” was fundamental error. We disagree. Medina relies on
Spradlin v. State, 569 N.E.2d 948 (Ind. 1991), for the proposition that the State must prove
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“specific intent” in attempt cases. However, the Spradlin rule is limited to attempted murder
cases. Richeson v. State, 704 N.E.2d 1008, 1010 (Ind. 1998). As Spradlin is inapposite,
Medina has not demonstrated fundamental error occurred.
3. Nature of the Offense and the Character of the Offender
Medina also contends his sentence was inappropriate. Under Indiana Appellate Rule
7(B), we 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.” Although we may review and revise a sentence,
“[t]he principal role of appellate review should be to attempt to leaven the outliers, and
identify some guiding principles for trial courts and those charged with improvement of the
sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.” Cardwell v.
State, 895 N.E.2d 1219, 1225 (Ind. 2008). We must give “deference to a trial court’s
sentencing decision, both because Rule 7(B) requires us to give due consideration to that
decision and because we understand and recognize the unique perspective a trial court brings
to its sentencing decisions.” Trainor v. State, 950 N.E.2d 352, 355-56 (Ind. Ct. App. 2011)
(quoting Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007)) (internal quotation
marks omitted), trans. denied.
When we review appropriateness of a sentence, we consider “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.” Cardwell, 895 N.E.2d at 1224. The defendant has the
“burden to persuade us that the sentence imposed by the trial court is inappropriate.” Shell v.
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State, 927 N.E.2d 413, 422 (Ind. Ct. App. 2010).
An advisory sentence serves as a helpful guidepost for ensuring fairness,
proportionality, and transparency in sentencing. Ind. Code § 35-50-2-1.3(a). Medina was
convicted of a Class A felony, which carries a fixed term of between twenty and fifty years,
with an advisory sentence of thirty years. Ind. Code §35-50-2-4. The court imposed a forty-
year sentence.
As to the nature of the offense, Medina violated a position of trust. That, standing
alone, justifies a sentence greater than the advisory. McCoy v. State, 856 N.E.2d 1259, 1262
(Ind. Ct. App. 2006) (violation of position of trust, standing alone, is sufficient to support
maximum enhancement of sentence for child molesting). An adult defendant violates a
position of trust when there is at least an inference he has authority over the minor victim.
Rodriguez v. State, 868 N.E.2d 551, 555 (Ind. Ct. App. 2007). A defendant is in a position of
trust when the relationship with the minor is “more than [a] casual relationship.” Id.
Medina occupied a position of trust with S.P. He cohabited with her aunt, had
authority over S.P. while she stayed at their house overnight, and was regarded by S.P. as her
uncle. Theirs was more than a causal relationship. Medina’s actions during S.P.’s overnight
stay with him and her aunt were a violation of his position of trust with S.P. Therefore, we
cannot say Medina’s sentence is inappropriate based on the nature of the crime.
When considering the character of the offender, one relevant fact is the defendant’s
criminal history. Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011). The
significance of a defendant’s prior criminal history as an aggravating factor will vary based
7
on the gravity, nature, and number of his prior offenses and their relation to the current
offense. Prickett v. State, 856 N.E.2d 1203, 1209 (Ind. 2006). For example, a criminal
history that does not include sexual misconduct does not, by itself, support a maximum
sentence for a sexual misconduct conviction. Simmons v. State, 746 N.E.2d 81 (Ind. Ct. App.
2001) (reducing maximum sentence to forty years), trans. denied. That, however, does not
mean unrelated criminal history has no bearing. See Harris v. State, 897 N.E.2d 927, 930
(Ind. 2008) (unrelated criminal history is not inconsequential).
Medina contends his criminal history is remote and unrelated to the charged offense,
and should, therefore, have little bearing on our consideration of his character. Medina’s
prior criminal offenses are different in nature and gravity from this attempted child
molestation. His criminal history includes a felony conviction in 2010 of resisting law
enforcement; misdemeanor convictions in 2001 of operating while intoxicated and reckless
driving; misdemeanor convictions in 2003 of carrying a concealed weapon and driving while
suspended; and a misdemeanor conviction in 2004 of petty theft. Medina resides in this
country illegally, which indicates disregard for immigration laws. See Samaniego-Hernandez
v. State, 839 N.E.2d 798, 806 (Ind. Ct. App. 2005) (status as an illegal alien is a proper
aggravator).
Medina also contends his employment history, dependent children, the isolated nature
of the offense, his inebriation during the offense, the absence of threat to S.P., and the fact
that he was originally charged with a lesser offense should support revision of his sentence.
We disagree; none of these considerations so outweigh his violation of his position of trust or
8
his criminal history as to make his sentence inappropriate. See Hamilton, 955 N.E.2d at 727
(finding a violation of position of trust warranted a sentence enhancement notwithstanding
fact that sexual misconduct was an isolated occurrence, the victim was young but not of
tender years, defendant had limited and remote criminal history, and there was no specific
threat to the victim). Based on Medina’s character, we cannot say his sentence was
inappropriate.
Medina has not demonstrated his forty-year sentence is inappropriate in light of his
character and offense, and we accordingly affirm.
CONCLUSION
The State proved Medina had the requisite culpability and took a substantial step
towards attempting to molest S.P. As a “specific intent” instruction is not warranted in a
prosecution for attempted child molestation, the trial court did not err in declining to give
such an instruction. Further, Medina has not shown his sentence is inappropriate based on
his character or the nature of his offense. Accordingly, we affirm the judgment of the trial
court.
Affirmed.
BAKER, J., and MATHIAS, J., concur.
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