Armando M. Bruno v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), May 12 2017, 7:58 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kimberly A. Jackson Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Armando M. Bruno, May 12, 2017
Appellant-Defendant, Court of Appeals Case No.
14A01-1606-CR-1530
v. Appeal from the Daviess Superior
Court
State of Indiana, The Honorable Dean A. Sobecki,
Appellee-Plaintiff Judge
Trial Court Cause No.
14D01-1502-FA-172
Altice, Judge.
Case Summary
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[1] Following a jury trial, Armando M. Bruno was convicted of two counts of child
molesting as Class A felonies and two counts of child molesting as Class C
felonies. Bruno was sentenced to an aggregate term of eighty years
imprisonment. Bruno presents five issues for our review, which we restate as:
1. Did the trial court abuse its discretion in admitting Bruno’s
recorded statement into evidence?
2. Did the trial court abuse its discretion in excluding certain
evidence pursuant to the Rape Shield Rule?
3. Is the evidence sufficient to support Bruno’s Class A felony
child molesting convictions?
4. Did the trial court err in sentencing Bruno?
5. Is Bruno’s sentence inappropriate?
6. Did the trial court abuse its discretion in ordering Bruno to
pay restitution to the State?
[2] We affirm in part and reverse in part.
Facts & Procedural History
[3] Bruno was born on December 4, 1959 and is a native of Guatemala. Bruno
came to the United States in 2003. In 2006, Bruno became the pastor of a small
church in Washington, Indiana. Initially, Bruno lived with a family at their
home on Grand Avenue, and Bruno’s church met in the family’s basement.
The family had a six-year-old son, D.A., who was born in December of 2000.
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[4] Bruno had an extremely close relationship with the family and would often care
for D.A. and his siblings while D.A.’s parents were away. One evening during
the time Bruno lived with D.A.’s family and while Bruno was babysitting D.A.,
Bruno called D.A. into D.A.’s room. After D.A. complied with Bruno’s
instructions to pull his pants down and bend over his bed, Bruno inserted his
penis into D.A.’s anus. The assault ended abruptly when the phone rang.
Bruno instructed D.A. to go to the bathroom and clean himself before his
parents returned.
[5] After approximately a year of operating the church out of the family’s
basement, D.A.’s family purchased a building on Main Street to house Bruno’s
church. Bruno had a room in the building and thus, moved from the family’s
home. Even after Bruno moved from the family’s home, he visited D.A. and
the family daily and would spend the night at their house on a regular basis.
[6] At some point D.A.’s family moved from the Grand Avenue home. Shortly
thereafter, D.A. told his father about what Bruno had done to him—
specifically, that Bruno had placed his penis in his anus. D.A.’s father
confronted Bruno, who denied the inappropriate encounter and claimed that
D.A. was lying and was possessed by the devil. Bruno shared with D.A.’s
father an excerpt from a book titled “Lucifer Dethroned” and convinced him
that D.A. “was in bad shape.” Transcript Vol. I at 133. D.A.’s father apologized
to Bruno and did not further pursue D.A.’s allegation.
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[7] After moving from the Grand Avenue home, D.A. and his family moved to a
home on John Street and then moved in with D.A.’s maternal grandparents for
a short time. D.A. maintains that Bruno did not assault him while the family
lived at either of these locations. In June or July of 2010, D.A.’s family moved
into a three-bedroom mobile home in Southview Homes in Washington.
Bruno continued his close relationship with D.A.’s family and would often visit
and stay overnight at the Southview home. When Bruno stayed over, he would
sleep in the room closest to the children’s room.
[8] Within weeks after D.A.’s family moved to the Southview home, Bruno
resumed his sexual assaults of D.A. Over the course of the next four years,
Bruno repeatedly sexually assaulted D.A. The assaults occurred at night when
Bruno would go into the room D.A. shared with his siblings. While D.A.’s
siblings were sleeping, Bruno would fondle D.A.’s penis with his hand or have
D.A. touch his penis and masturbate him. On more than fifteen occasions,
Bruno had D.A. bend over his bed and then Bruno inserted his penis into
D.A.’s anus. D.A. reported that Bruno would put a cream or his own saliva on
his own penis before doing so. Bruno would ejaculate during some of the
encounters, and D.A. would then go to the bathroom to clean himself. Bruno
told D.A. not to tell anyone about their encounters or he would “do it harder.”
Id. at 211.
[9] In the summer of 2014, when D.A. was thirteen years old, D.A. told his father
about the ongoing sexual abuse perpetrated by Bruno. D.A.’s father, along
with D.A., confronted Bruno, who again denied all of D.A.’s allegations. D.A.
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began to cry and, pointing at Bruno, implored, “You know the truth.” Id. at
138. After D.A. left the room, Bruno then began to cry and admitted to D.A.’s
father that he had touched D.A. and asked D.A.’s father for forgiveness.
[10] About a month later, Bruno met with D.A.’s parents at the family’s Southview
home. Unbeknownst to Bruno, D.A.’s father recorded the conversation. Bruno
admitted he was guilty of unspecified acts and begged for the family’s
forgiveness. After this meeting, Bruno sent text messages to D.A.’s father
apologizing and acknowledging again that he was “guilty of what occurred.”
State’s Exhibit 16.
[11] D.A.’s father did not immediately report the molestation out of concern for the
church and because Bruno was seeking forgiveness. Approximately six months
later, Bruno made disparaging comments about D.A.’s family to the church
congregation and as a result, D.A.’s family decided to leave the church. On
January 30, 2015, D.A. and his father went to the police station to report the
sexual abuse.
[12] After receiving the report, Detective Daniel Christie of the Washington City
Police Department, along with other officers, went to Bruno’s house. It was
late and Bruno was asleep. Bruno was asked if he would come to the police
station and answer some questions, and he agreed. After Bruno changed his
clothes, he was transported to the police station in the back of a patrol car.
Bruno was never placed in handcuffs. Once at the police station, Bruno was
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placed in an interview room. Bruno speaks, reads, and writes very little
English, so he was provided with an interpreter for the interview.
[13] Before the interview began, the interpreter translated an advisement of rights
and waiver form to Bruno as Detective Christie read it aloud. Bruno nodded
indicating he understood his rights and the waiver thereof. Detective Christie
then asked him to sign the form indicating his understanding. Bruno signed the
written waiver form, which was written entirely in English. During the
interview, Bruno admitted to Detective Christie that he had fondled D.A.’s
penis and D.A. had touched his penis on several occasions. Bruno claimed that
he never hurt D.A., but admitted that he knew what he was doing was wrong.
Bruno’s entire statement to Detective Christie was recorded. Following his
statement, Detective Christie arrested Bruno.
[14] During the investigation of D.A.’s allegations, the police were made aware of
the conversation between Bruno and D.A.’s parents that D.A.’s father had
recorded with his cell phone. After the recording was obtained, the State had
the conversation translated and transcribed.
[15] On February 4, 2015, the State charged Bruno with one count of child
molesting as a Class A felony (Count I) and two counts of child molesting as
Class C felonies (Counts II and III). The State later filed an additional count of
Class A felony child molesting (Count IV) and two additional counts of Class C
felony child molesting (Counts V and VI). Prior to trial, the court granted the
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State’s oral motion to dismiss Counts II and III. Counts IV, V, and VI were
renumbered as Counts II, III, and IV respectively.
[16] On February 18, 2016, Bruno filed a motion to suppress his statement to police
alleging that he did not knowingly waive his Miranda rights. Initially, Bruno
claimed that he was never advised of his rights, but after he was confronted
with the recording of his interview, he acknowledged that his rights may have
been read to him. Bruno also argued that his signature on the waiver of rights
form is of no import because the waiver form is written in English. After a
hearing, the trial court denied the motion, finding that Bruno was properly
advised and voluntarily waived his rights. At trial, Bruno objected to admission
of his statement on the same grounds. The trial court overruled Bruno’s
objection.
[17] On March 28, 2016, Bruno filed a motion requesting that he be permitted to
introduce evidence of alleged past molestation of a witness, to which the State
objected. At a hearing on this motion, Bruno claimed that D.A.’s mother and
D.A.’s aunts had allegedly been molested by D.A.’s grandfather. Bruno
asserted that he wanted to introduce such evidence to show that someone other
than him, i.e., D.A.’s grandfather, molested D.A. The trial court denied
Bruno’s motion, finding such evidence inadmissible for several reasons.
[18] A four-day jury trial commenced on April 5, 2016, and concluded with the jury
finding Bruno guilty as charged. The trial court held a sentencing hearing on
June 2, 2016. In sentencing Bruno, the trial court identified several aggravating
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factors. The “most important” aggravating factor for the court was Bruno’s
abuse of his position of trust as a pastor and as a family friend. Transcript Vol. II
at 96. The court also noted that the acts were committed over a long period of
time, D.A.’s young age at the time of the first molestation, and the excessive
harm to D.A., both psychologically and physically. Although affording it little
weight, the trial court also acknowledged Bruno’s illegal immigration status.
As mitigating, the trial court noted Bruno’s lack of criminal history while living
in the United States.
[19] Finding that the aggravating circumstances outweighed the mitigating
circumstances, the trial court sentenced Bruno to consecutive terms of forty
years imprisonment on Counts I and II, the Class A felony convictions. As to
Counts III and IV, the Class C felony convictions, the trial court sentenced
Bruno to concurrent terms of six years for each conviction and ordered the
sentences be served concurrent with the forty-year sentence for Count II. The
trial court also ordered Bruno to pay $5,000 in restitution to the State for
transcription and translation expenses incurred with regard to the recorded
conversation between Bruno and D.A.’s family. Bruno now appeals.
Additional facts will be provided as necessary.
1. Admission of Evidence
[20] Bruno argues that the trial court abused its discretion in admitting his statement
to police. Our standard of review is well-settled.
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The trial court has broad discretion in ruling on the admissibility
of evidence, and we will reverse the trial court’s ruling only when
the trial court abuses that discretion. Fuqua v. State, 984 N.E.2d
709, 713-14 (Ind. Ct. App. 2013), trans. denied. The trial court
abuses its discretion only if its decision regarding the admission
of evidence is clearly against the logic and effect of the facts and
circumstances before it, or if the court has misinterpreted the law.
Id. Regardless of whether the challenge is made through a
pretrial motion to suppress or by an objection at trial, our review
of rulings on the admissibility of evidence is essentially the same:
we do not reweigh the evidence, and we consider conflicting
evidence in a light most favorable to the trial court’s ruling, but
we may also consider any undisputed evidence that is favorable
to the defendant. Id. Additionally, we may consider
foundational evidence introduced at trial in conjunction with any
evidence from a suppression hearing that is not in direct conflict
with the trial evidence. Kelley v. State, 825 N.E.2d 420, 427 (Ind.
Ct. App. 2005).
Hicks v. State, 5 N.E.3d 424, 427 (Ind. 2014), trans. denied.
[21] Bruno argues that his statement was inadmissible because he did not
knowingly, voluntarily, and intelligently waive his Miranda rights.1 A waiver of
one’s Miranda rights occurs when the defendant, after being advised of those
rights and acknowledging that he understands them, proceeds to make a
statement without taking advantage of those rights. Ringo v. State, 736 N.E.2d
1209, 1211-12 (Ind. 2000). As our Supreme Court has stated:
1
As a precursor to this argument, Bruno argues that he was in custody for purposes of invoking the
protections afforded by Miranda. The State argues that Bruno was not in custody. Herein, we will assume,
without deciding, that Bruno was in custody when he was interviewed by Detective Christie.
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[t]he admissibility of a confession is controlled by determining
from the totality of the circumstances whether the confession was
made voluntarily and was not induced by violence, threats, or
other improper influences that overcame the defendant’s free
will. See Wilcoxen v. State, 619 N.E.2d 574, 577 (Ind. 1993). The
same test determines whether Miranda rights were voluntarily
waived. See Gregory v. State, 540 N.E.2d 585, 592 (Ind. 1989).
Thus, the voluntariness of a defendant’s waiver of rights is judged
by the totality of the circumstances. See Allen v. State, 686 N.E.2d
760, 770 (Ind. 1997), cert. denied, 525 U.S. 1073, 119 S. Ct. 807,
142 L. Ed. 2d 667 (1999).
Id. at 1212. A signed waiver form is one item of evidence showing the accused
was aware of and understood his rights. Id. An express written waiver of
rights, however, is not necessary to establish a waiver of Miranda rights. Carter
v. State, 730 N.E.2d 155, 157 (Ind. 2000).
[22] Bruno presents his challenge under both the United States and Indiana
Constitutions. Under the United States Constitution, the State must prove the
statement was voluntarily given by a preponderance of the evidence. Malloch v.
State, 980 N.E.2d 887, 901 (Ind. Ct. App. 2012) (citing Pruitt v. State, 834
N.E.2d 90, 114 (Ind. 2005)), trans. denied. The Indiana Constitution, however,
requires the State to prove beyond a reasonable doubt that the defendant
voluntarily waived his rights and that the confession was voluntarily given. Id.
[23] Bruno first argues that the interpretation of his rights was deficient because the
interpreter told him that his statements “could be used against him,” Transcript
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Vol. I at 46,2 rather than “can and will” be used against him as required by
Miranda, 384 U.S. at 469.
[24] Our Supreme Court has previously held that the omission of the word “will”
did not create a fatal variance so as to require suppression of the defendant’s
statement. See Myers v. State, 510 N.E.2d 1360, 1365 (Ind. 1987); see also
Santana v. State, 679 N.E.2d 1355, 1358 (Ind. Ct. App. 2007). In both cases, the
courts relied upon the fact that the advisements were in all other respects in
conformance with Miranda and the fact that circumstances surrounding the
defendant’s waiver indicated the defendants voluntarily waived their rights.
Here, the same result obtains. There is perhaps some error in the Spanish
translation of Bruno’s Miranda rights, but Bruno himself acknowledges that he
was at least advised in Spanish that his statement “could” be used against him.
Bruno makes no other challenge to the accuracy of the advisement of his rights
or waiver thereof.
[25] With regard to the circumstances surrounding his interview, the record clearly
reflects that Detective Christie read Bruno his Miranda rights and the standard
waiver language and that an interpreter translated those rights into Spanish.
Detective Christie stated multiple times that he wanted to make sure Bruno
understood his rights and the interpreter conveyed such statements to Bruno.
2
At the suppression hearing, a different Spanish-language interpreter was asked to translate how the
interpreter during the interview translated to Bruno what Detective Christie was saying. This is that
interpreter’s translation.
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Although Bruno had varying responses, both verbal and non-verbal, he never
indicated or demonstrated that he did not understand his rights as they were
interpreted for him. It was also explained to Bruno that signing the advisement
of rights form, although written in English, was an acknowledgment that he
understood his rights.3 Bruno then signed the advisement of rights form and
proceeded to voluntarily answer Detective Christie’s questions. There is
nothing in the record that suggests Detective Christie engaged in any violent,
coercive, or threatening conduct prior to or during his interview of Bruno.
[26] Bruno also makes much of the fact that the written advisement form that he
signed was in English. As noted above, while a signed waiver form is one item
of evidence showing the accused was aware of and understood his rights, an
express written waiver is not necessary to establish a waiver of Miranda rights.
Carter v. State, 730 N.E.2d at 157; cf. Morales v. State, 749 N.E.2d 1260, 1267
(suggesting in dicta that “both the defendant’s rights and effective law
enforcement would be better served if standardized forms containing Miranda
warnings and waivers written in Spanish were created and distributed to all law
enforcement agencies”). Thus, the signed waiver form, whether in English or
Spanish, was not necessary to establish that Bruno voluntarily waived his rights.
The record makes clear that Bruno was orally advised in Spanish of the
implications of signing the waiver form and that he indicated that he was
3
As interpreted at the suppression hearing, Bruno was told “Okay. You understand your rights and you can
sign.” Transcript, Volume 1 at 47.
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willing to talk to Detective Christie. Bruno then signed the form and
voluntarily answered Detective Christie’s questions. It is evident from the
record that Bruno understood and voluntarily waived his rights. The fact that
the waiver form was written in English does not change this result.
[27] We further note that Bruno is an adult who was educated through the 11 th grade
and can speak, read, and write in Spanish. Bruno came to the United States in
2003 and has served as a pastor of his own church. Bruno did not appear
distressed or confused at the time of the interview. Further, he did not seek
clarification during the simultaneous translation of the interview. In fact, he
even challenged some of the questions that he felt were unfair.
[28] There is nothing in the record to suggest that Bruno’s statement was induced by
violence, threats, or other improper influences that overcame his free will.
Bruno was clearly advised of his rights and waiver thereof in Spanish prior to
answering Detective Christie’s questions. Considering the totality of the
circumstances, we conclude that the State has proved beyond a reasonable
doubt that Bruno knowingly, voluntarily, and intelligently waived his rights.4
The trial court did not abuse its discretion in admitting Bruno’s statement into
evidence.
4
Having concluded that the State proved beyond a reasonable doubt that Bruno voluntarily waived his rights
for purposes of the Indiana Constitution, it follows that there is likewise no violation under the
preponderance of the evidence standard for review of such claims under the United States Constitution.
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2. Exclusion of Evidence - Rape Shield Statute
[29] Bruno argues that the trial court abused its discretion in excluding evidence that
another person may have perpetrated the sexual abuse against D.A.
Specifically, Bruno sought to introduce evidence that D.A.’s grandfather
allegedly molested D.A.’s mother and aunts when they were younger. Bruno
notes that D.A. and his family resided in D.A.’s grandfather’s home shortly
after D.A. made the first allegations against Bruno. As part of his defense,
Bruno wanted to suggest that it was D.A.’s grandfather who perpetrated the
acts of molestation and was responsible for any injury to D.A.
[30] Ind. Evidence Rule 412, also known as the Rape Shield Rule, generally bars the
admission of evidence regarding a victim’s or witness’s prior sexual conduct.
Evid. Rule 412 sets out very limited exceptions to this rule with regard to
admission of evidence in a criminal case. Specifically, Rule 412(b)(1)(A) does
not bar the admission of evidence of “specific instances of a victim’s or
witness’s sexual behavior, if offered to prove that someone other than the
defendant was the source of semen, injury, or other physical evidence.” See also
Ind. Code § 35-37-4-4 (Rape Shield Act); Sallee v. State, 785 N.E.2d 645, 651
(Ind. Ct. App. 2003) (noting that “[t]o the extent there is a difference between
the two, the rule controls”).
[31] This exception to the Rape Shield Rule is not applicable in this case. Bruno
claims, without any supporting evidence, that D.A.’s mother disclosed to him
that D.A.’s grandfather had molested her and her sisters when they were
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younger. As found by the trial court in denying Bruno’s motion seeking to
proffer such evidence, such allegations were at least hearsay as it concerned
D.A.’s aunts. Secondly, Bruno offered no “specific instances” of sexual
behavior by D.A.’s grandfather toward D.A.’s mother and his aunts other than
his own self-serving allegations. Further, we note that the evidence Bruno
sought to admit concerned matters that were remote in time and pertained to a
different type of conduct. Bruno cannot show how such evidence has any
bearing on any physical evidence introduced by the State relating to the source
of semen in the victim, injury to the victim, or other physical evidence.
[32] Even if the evidence was erroneously excluded, the error was harmless. An
error in the exclusion of evidence is harmless when its probable impact on the
jury, in light of all the evidence in the case, is sufficiently minor so as not to
affect the substantial rights of the parties. See Barnhart v. State, 15 N.E.3d 138,
143 (Ind. Ct. App. 2014). Here, D.A. gave a clear account of what Bruno did
to him and he never equivocated on the identity of his abuser. The first
instance involving anal penetration occurred when D.A. was just six years old
and prior to the time when D.A. and his family lived with D.A.’s grandfather.
At the relevant times, Bruno had complete access to D.A. Further, Bruno
admitted to D.A.’s father, in his statement to police, and in his testimony at
trial that he had molested D.A. Whether the jury believed Bruno’s denial of
anal penetration or D.A.’s testimony that Bruno inserted his penis into D.A.’s
anus is a matter of credibility as to those witnesses. Bruno’s suppositions
concerning D.A.’s grandfather’s conduct toward D.A.’s mother and aunts
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would have had no impact on such determination. Thus, any error in
excluding the challenged evidence would have been harmless.
3. Sufficiency
[33] Bruno argues that the State presented insufficient evidence to support his
convictions for child molesting as Class A felonies. 5 In reviewing a challenge to
the sufficiency of the evidence, we neither reweigh the evidence nor judge the
credibility of witnesses. Atteberry v. State, 911 N.E.2d 601, 609 (Ind. Ct. App.
2009). Instead, we consider only the evidence supporting the conviction and
the reasonable inferences flowing therefrom. Id. If there is substantial evidence
of probative value from which a reasonable trier of fact could have drawn the
conclusion that the defendant was guilty of the crime charged beyond a
reasonable doubt, the judgment will not be disturbed. Baumgartner v. State, 891
N.E.2d 1131, 1137 (Ind. Ct. App. 2008). It is not necessary that the evidence
overcome every reasonable hypothesis of innocence; rather, the evidence is
sufficient if an inference may reasonably be drawn from it to support the
conviction. Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007). The
uncorroborated testimony of a victim alone is sufficient to support a conviction.
Jenkins v. State, 34 N.E.3d 258, 262 (Ind. Ct. App. 2015), trans. denied.
5
Acknowledging his admission to fondling D.A., Bruno does not challenge his convictions for child
molesting as Class C felonies.
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[34] To sustain Bruno’s convictions for Class A felony child molesting, the State’s
evidence must have proved beyond a reasonable doubt that Bruno, who was at
least 21 years of age, knowingly performed deviate sexual conduct with D.A., a
child under the age of fourteen. See I.C. § 35-42-4-3. Deviate sexual conduct is
an act involving “a sex organ of one (1) person and the mouth or anus of
another person[] or (2) the penetration of the sex organ or anus of a person by
an object.”6 Ind. Code § 35-31.5-2-94 (2014).
[35] Bruno argues that while he admitted to fondling D.A., he consistently denied
any anal intercourse and further argues that D.A.’s testimony to the contrary
lacked specificity and was incredibly dubious. Under the incredible dubiosity
rule, a court will impinge upon the factfinder’s responsibility to judge the
credibility of witnesses only when confronted with inherently improbable
testimony or coerced, equivocal, wholly uncorroborated testimony of incredible
dubiosity. Whatley v. State, 908 N.E.2d 276, 282 (Ind. Ct. App. 2009), trans.
denied. In other words, the evidence presented must be so unbelievable,
incredible, or improbable that no reasonable person could ever reach a guilty
verdict based upon that evidence alone. Moore v. State, 27 N.E.3d 749, 751 (Ind.
2015). We also note that application of this rule is limited to cases where a
single witness presents inherently contradictory testimony which is equivocal or
6
Bruno committed his crimes prior to the repeal of the deviate sexual conduct definition and replacement
with the term “other sexual conduct.” “Other sexual conduct” has an identical definition as deviate sexual
conduct previously had. See Ind. Code § 35-31.5-2-221.5.
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the result of coercion and there is a complete lack of circumstantial evidence of
guilt. Id.
[36] Here, D.A. testified that Bruno performed anal sex on him numerous times
throughout the years. D.A. described the first encounter as taking place at the
Grand Avenue house where Bruno lived with D.A.’s family in 2006 and as
repeatedly occurring from 2010 through 2013 when D.A.’s family lived in their
Southview home. D.A.’s testimony that some of the encounters happened
while his siblings slept in the same room is not an uncommon occurrence in
child molesting cases, and unfortunately, not counter to human experience.
There is nothing inherently contradictory or equivocal about D.A.’s testimony.
Bruno’s arguments simply amount to blatant requests for this court to reweigh
the evidence and judge the credibility of witnesses. We will not indulge such a
request on appeal.
Sentencing
[37] Bruno challenges his sentence in two respects. He first argues that the trial
court abused its discretion in finding aggravating circumstances and imposing
consecutive sentences. He also argues that his sentence is inappropriate in light
of the nature of the offense and his character. “As our Supreme Court has
made clear, inappropriate sentence and abuse of discretion claims are to be
analyzed separately.” King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008).
We will address each in turn.
4. Abuse of Discretion
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[38] Sentencing decisions rest within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218. So long as the sentence is within the statutory range, it is subject to review
only for an abuse of discretion. Id. “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. at 490 (quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)).
[39] A trial court may abuse its sentencing discretion in a number of ways,
including: (1) failing to enter a sentencing statement at all; (2) entering a
sentencing statement that includes aggravating and mitigating factors that are
unsupported by the record; (3) entering a sentencing statement that omits
reasons that are clearly supported by the record; or (4) entering a sentencing
statement that includes reasons that are improper as a matter of law. Id. at 490-
91. If the trial court abuses its discretion in one of these or another way,
remand for resentencing is the appropriate remedy “if we cannot say with
confidence that the trial court would have imposed the same sentence had it
properly considered reasons that enjoy support in the record.” Id. at 491.
[40] Bruno’s sole argument with respect to the aggravating circumstances is that the
trial court abused its discretion when it found that the harm to D.A. exceeded
that required for a conviction. See Ind. Code § 35-38-1-7.1(a)(1) (a trial court
may consider harm, injury, loss, or damage suffered by the victim that is
significant and greater than the elements necessary to prove the commission of
the offense). Bruno maintains that the psychological impact of Bruno’s actions
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on D.A. was not out of the ordinary for a child subjected to such conduct. He
further argues that the State presented no evidence linking any physical harm to
Bruno’s actions.
[41] With regard to the psychological harm, we note that Bruno was a spiritual
leader who used his closeness with D.A.’s family to take advantage of D.A.
beginning when D.A. was just six years old. Even after D.A. summoned the
courage to tell his father of the abuse he suffered at the hands of Bruno, Bruno
convinced D.A.’s father that D.A. was possessed by the devil, which destroyed
D.A.’s trust in his father. Bruno later engaged in a pattern of sexual abuse of
D.A. that involved anal penetration and having D.A. masturbate him. All the
while, D.A. had to endure Bruno as his family’s minister and as being treated
like a member of the family. The testimony and evidence presented by the State
at sentencing clearly demonstrates that the circumstances under which Bruno
perpetrated his crimes had a significant psychological impact on D.A.
[42] With regard to physical harm, even Bruno acknowledges that the State
presented evidence that D.A. suffered from and was treated for encopresis 7 and
that encopresis can be a sign of sexual abuse. Bruno argues, however, that such
is an improper aggravating circumstance in this case because the State
presented no evidence linking this physical condition to Bruno’s conduct.
Despite the lack of an explicit connection between D.A.’s physical condition
7
Encopresis is defined as “involuntary defecation.” Dictionary.com,
http://www.dictionary.com/browse/encopresis (last visited May 5, 2017).
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and Bruno’s conduct, there was ample evidence from which the trial court
could have properly found the harm D.A. suffered was significant and greater
than that necessary for the offense. D.A. recounted the numerous times Bruno
anally penetrated him with his penis. D.A. told a nurse who examined him
that it was “really hurting [his] bottom” and that he was “having problems
when [he had] loose poop.” State’s Sentencing Exhibit 1. The trial court did not
abuse its discretion in finding as an aggravating circumstance that the harm
inflicted was greater than that required for the offense.
[43] Bruno next argues that the trial court abused its discretion in imposing
consecutive sentences. Bruno maintains that the trial court fell short of the
requirement that it explain its reasons for the sentence imposed by not
explaining why the aggravating circumstances warranted consecutive sentences
as opposed to simply enhanced concurrent sentences.
[44] Trial courts are permitted to impose consecutive sentences if warranted by the
aggravating circumstances. Monroe v. State, 886 N.E.2d 578, 579 (Ind. 2008).
In doing so, however, a trial court must articulate, explain, and evaluate the
aggravating circumstances that support the sentence. Id. Where the trial
court’s sentencing statement lacks specificity with regard to an explanation for
imposition of consecutive sentencing, remand for resentencing is not required
where the rationale for consecutive sentences is apparent on the face of the
record. Lewis v. State, 31 N.E.3d 539, 543 (Ind. Ct. App. 2015).
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[45] Here, in arguing for consecutive sentences, the State emphasized that this was
not a single act of molestation, noting that Bruno first molested D.A. sometime
between 2006 and 2007 and then again, years later, engaged in repeated acts of
molestation. In its sentencing statement, the trial court found that the acts
occurred over a long period of time and were “not a single mistake.” Transcript
Volume II at 96. As our Supreme Court has held, “additional criminal activity
directed to the same victim should not be free of consequences.” Horton v. State,
949 N.E.2d 346, 348 (Ind. 2011). The trial court’s order of consecutive
sentences demonstrates the trial court’s acknowledgment of the two distinct
time periods during which the molestations occurred. The trial court’s rationale
is apparent from the record and its imposition of consecutive sentences was not
an abuse of discretion.
5. Inappropriate Sentence
[46] Bruno argues that his sentence is inappropriate. Article 7, section 4 of the
Indiana Constitution grants our Supreme Court the power to review and revise
criminal sentences. See Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014), cert.
denied, 135 S. Ct. 978 (2015). Pursuant to Ind. Appellate Rule 7, the Supreme
Court authorized this court to perform the same task. Cardwell v. State, 895
N.E.2d 1219, 1224 (Ind. 2008). Per App. R. 7(B), we 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.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R.
7). “Sentencing review under Appellate Rule 7(B) is very deferential to the trial
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court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). The defendant bears
the burden on appeal of persuading us that his sentence is inappropriate. See id.
[47] The determination of whether we regard a sentence as inappropriate “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.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell, 895
N.E.2d at 1224). Moreover, “[t]he principal role of such review is to attempt to
leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). It is
not our goal in this endeavor to achieve the perceived “correct” sentence in
each case. Knapp, 9 N.E.3d at 1292. Accordingly, “the question under
Appellate Rule 7(B) is not whether another sentence is more appropriate; rather,
the question is whether the sentence imposed is inappropriate.” King v. State,
894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in original).
[48] In order to assess the appropriateness of a sentence, we first look to the
statutory range established for the classification of the relevant offense. Bruno
was convicted of two Class A felonies and two Class C felonies. The relevant
statutes provide a sentencing range of twenty to fifty years with an advisory
sentence of thirty years for a Class A felony and two to eight years with an
advisory sentence of four years for a Class C felony. Ind. Code §§ 35-50-2-4, -6.
Here, the trial court imposed enhanced sentences for each conviction and
ordered the convictions for the Class A felonies to run consecutively as an
acknowledgement that the crimes were committed during two separate and
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distinct time periods against the same victim. Bruno’s total aggregate sentence
is eighty years.
[49] We begin with the nature of the offense. Bruno’s offenses are particularly
reprehensible. Bruno held himself out to be a man of God and used his position
to ingratiate himself into D.A.’s family. D.A.’s parents trusted Bruno,
providing him with a place to live, financially supporting the start-up of his
church, and allowing him to care for their children, including D.A. D.A.’s
father described Bruno as being like family. Bruno violated his extraordinary
position of trust when he began molesting D.A. at just six years old. After D.A.
courageously reported the abuse to his father, Bruno lied and covered up his
actions by convincing D.A.’s father that D.A. was demonically possessed. A
few years later, Bruno, who remained close with D.A.’s family, resumed his
molestations of D.A. Over the course of the next several years, Bruno
repeatedly molested D.A. by anal penetration and fondling. D.A. again
summoned the courage to tell his father about Bruno’s actions. When
confronted again, Bruno initially denied having engaged in the alleged conduct.
Although Bruno finally admitted to touching D.A., he continually denied that
any anal penetration occurred.
[50] Bruno incorrectly argues that there was no proof of physical harm to D.A.
There is evidence that D.A. suffered from encopresis and that, at one point,
D.A. had a dilated anus. As noted above, D.A. told a nurse examiner about the
sexual abuse and reported that “[i]t was really hurting my bottom and I am
having problems when I have loose poop, it will leak some.” State’s Sentencing
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Exhibit 1. Despite Bruno’s desire to downplay this evidence, it is sufficient to
establish that there was physical harm. We further note that the psychological
harm of a spiritual leader and close family friend molesting a child over a
period of years goes above and beyond the physical ramifications.
[51] Finally, we observe that the molestations occurred during two distinct time
periods, the first occurring when D.A. was six years old. Years later, Bruno
resumed his molestation of D.A. As noted above, the imposition of consecutive
sentences accounts for the fact that Bruno molested a six-year-old D.A., had
time (i.e., years) to reflect upon his actions, and yet began molesting D.A.
again. Bruno has failed to show that the nature of his offense is deserving of a
lesser sentence.
[52] With regard to the character of the offender, we note that Bruno is an
undocumented immigrant. Aside from his repeated molestation of D.A. over a
period of time, there is no evidence that he engaged in other criminal activity.
More telling of his character, however, is that Bruno used his position of power
as a spiritual leader to gain favor with D.A. and his family. He then abused
their trust by molesting D.A. After D.A.’s first disclosure of the molestation,
Bruno damaged the trust between D.A. and his father when Bruno convinced
D.A.’s father that D.A.’s allegations were a result of being demonically
possessed. In the end, Bruno did not voluntarily disclose his actions, but
admitted to fondling D.A. only after confronted. Even then, he continued to
downplay his actions while begging for forgiveness.
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[53] Bruno has failed to demonstrate that his aggregate eighty-year sentence is
inappropriate in light of the nature of the offense or his character.
5. Restitution
[54] Bruno argues that the trial court erred in ordering him to pay $5000 in
restitution to the State. The restitution order covered the State’s expenses for
translation and transcription of the recorded conversation between D.A.’s
father and Bruno that was taken from D.A.’s father’s cell phone.
[55] As part of a sentence or as a condition of probation, a trial court may order a
defendant to pay restitution to a victim. Bailey v. State, 717 N.E.2d 1, 4 (Ind.
1999). We review a trial court’s order of restitution for an abuse of discretion.
Rich v. State, 890 N.E.2d 44, 49 (Ind. Ct. App. 2008), trans. denied.
[56] Ind. Code § 35-50-5-3 sets forth the requirements for a restitution order, in
pertinent part as follows:
(a) Except as provided in subsection (i), (j), (l), or (m), in
addition to any sentence imposed under this article for a felony
or misdemeanor, the court may, as a condition of probation or
without placing the person on probation, order the person to
make restitution to the victim of the crime, the victim’s estate, or
the family of a victim who is deceased. The court shall base its
restitution order upon a consideration of:
(1) property damages of the victim incurred as a result of
the crime, based on the actual cost of repair (or
replacement if repair is inappropriate);
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(2) medical and hospital costs incurred by the victim
(before the date of sentencing) as a result of the crime;
(3) the cost of medical laboratory tests to determine if the
crime has caused the victim to contract a disease or other
medical condition;
(4) earnings lost by the victim (before the date of
sentencing) as a result of the crime including earnings lost
while the victim was hospitalized or participating in the
investigation or trial of the crime; and
(5) funeral, burial, or cremation costs incurred by the
family or estate of a homicide victim as a result of the
crime.
[57] The trial court abused its discretion in ordering Bruno to pay restitution. “[T]he
principal purpose of restitution is to vindicate the rights of society and to
impress upon the defendant the magnitude of the loss the crime has caused, and
that restitution also serves to compensate the victim.” Iltzsch v. State, 981 N.E.2d
55, 56 (Ind. 2013) (emphasis supplied). I.C. § 35-50-5-3(a) authorizes
restitution only to the victim of the crime, the victim’s estate, or the family of a
victim who is deceased. While a State entity may be considered a victim for
purposes of the restitution statute, the State must first make a showing as to
how its entity was a victim. Lohmiller v. State, 884 N.E.2d 903, 916 (Ind. Ct.
App. 2008). Where the State makes no such showing, the State is not a victim
entitled to restitution. Id. (citing Green v. State, 811 N.E.2d 874, 879 (Ind. Ct.
App. 2004)).
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[58] Here the State merely requested restitution and submitted invoices for the
translation and transcription services provided. The State did not show how it
was a victim. The State is therefore not a victim entitled to restitution.
[59] Further, we note that I.C. § 35-50-5-3 provides for restitution for property
damage, medical costs, cost of laboratory tests, lost earnings, and funeral and
burial expenses. Here, the State is seeking reimbursement for costs associated
with its investigation. As was noted by this court in Green, if the State were
entitled to restitution any time it elects to spend money to obtain criminal
evidence, then the State would seek restitution for any and all of its discovery
costs. This is contrary to I.C. § 35-50-5-3 and the purposes of restitution. The
trial court’s restitution order is improper as a matter of law. We therefore
reverse the trial court’s order that Bruno pay $5000 in restitution to the State.
[60] Judgment affirmed in part and reversed in part.
Riley, J. and Crone, J., concur.
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