MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                               Dec 21 2017, 9:18 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
Ellen M. O’Connor                                       Curtis T. Hill, Jr.
Marion County Public Defender Agency                    Attorney General of Indiana
Indianapolis, Indiana
                                                        Michael Gene Worden
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Andy Sosa-Lopez,                                        December 21, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1704-CR-729
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Stanley E. Kroh,
Appellee-Plaintiff                                      Magistrate
                                                        Trial Court Cause No.
                                                        49G03-1607-F4-26150



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-729 | December 21, 2017          Page 1 of 5
                                             Case Summary
[1]   Andy Sosa-Lopez (“Lopez”) appeals his conviction following a jury trial for

      level 4 felony child molesting. The sole issue presented for our review is

      whether the State presented sufficient evidence to sustain the conviction.

      Finding the evidence sufficient, we affirm.


                                 Facts and Procedural History
[2]   Lopez is the stepfather of Cesar Juarez. Juarez’s wife, Abigail Smiddy, has a

      son, C.S., and a twelve-year-old daughter, N.S.1 Juarez considers himself to be

      N.S.’s father. In July 2016, Juarez, Abigail, C.S., and N.S. lived in an

      Indianapolis home with Lopez, his wife Maria, their two sons, and Maria’s

      three sons. N.S. and C.S. shared a downstairs bedroom with their mother and

      Juarez. The two children slept on a pull-out couch in that bedroom.


[3]   On July 4, 2016, the entire family attended a fireworks show and then came

      home and went to bed. The next morning, Abigail took Juarez to work around

      7:30 a.m. While Abigail was gone, Lopez entered the downstairs bedroom and

      fondled N.S.’s vagina while she was sleeping. The fondling woke N.S. up, and

      she saw Lopez run out of the bedroom and go up the stairs. N.S. told her

      mother about the incident when she returned home. Abigail immediately

      called Juarez.




      1
       Abigail testified that she and Juarez were “engaged” and had “a commitment ceremony” four years ago.
      Tr. Vol. 2 at 58-59. Juarez testified that he and Abigail were “married.” Id. at 85.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-729 | December 21, 2017      Page 2 of 5
[4]   That evening, the family confronted Lopez about the incident. Lopez admitted

      that he went into the bedroom where N.S. was sleeping and stated that he

      touched her to wake her up and to ask her if she knew where Juarez was.

      Juarez did not believe this explanation because Lopez already knew that Juarez

      was working that morning because they had just talked about it the Sunday

      before. Abigail immediately called the police. When an officer arrived, Lopez

      stood up, turned around, and placed his hands behind his back to be handcuffed

      without any prior direction from the officer.


[5]   The State charged Lopez with level 4 felony child molesting. Following a trial,

      the jury found Lopez guilty as charged. The trial court sentenced Lopez to four

      years’ imprisonment. This appeal ensued.


                                     Discussion and Decision
[6]   Lopez contends that the State presented insufficient evidence to support his

      conviction. When reviewing a claim of insufficient evidence, we neither

      reweigh the evidence nor assess witness credibility. Bell v. State, 31 N.E.3d 495,

      499 (Ind. 2015). We look to the evidence and reasonable inferences drawn

      therefrom that support the conviction, and will affirm if there is probative

      evidence from which a reasonable factfinder could have found the defendant

      guilty beyond a reasonable doubt. Id. In short, if the testimony believed by the

      trier of fact is enough to support the conviction, then the reviewing court will

      not disturb it. Id. at 500.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-729 | December 21, 2017   Page 3 of 5
[7]   Indiana Code section 35-42-4-3(b) provides that a person who, “with a child

      under fourteen (14) years of age, performs or submits to any fondling or

      touching, of either the child or the older person, with intent to arouse or to

      satisfy the sexual desires of either the child or the older person, commits child

      molesting, a Level 4 felony.” “The intent element of child molesting may be

      established by circumstantial evidence and may be inferred from the actor’s

      conduct and the natural and usual sequence to which such conduct usually

      points.” Bass v. State, 947 N.E.2d 456, 460 (Ind. Ct. App. 2011), trans. denied.

      Moreover, a conviction can be sustained on only the uncorroborated testimony

      of a single witness, even when that witness is the victim. Bailey v. State, 979

      N.E.2d 133, 135 (Ind. 2012).


[8]   N.S. testified that on the morning of July 5, 2016, when she was twelve years

      old, she was sleeping wrapped in a blanket on the pull-out couch with her

      brother. She awoke to the feeling of a hand touching her vagina in a circular

      motion on the outside of her underwear. When she pushed the blanket off her

      face, she saw Lopez running out of the bedroom and up the stairs. The jury

      could reasonably infer from this testimony that Lopez touched N.S. and that he

      did so with the intent to arouse or to satisfy his or her sexual desires. N.S.’s

      testimony is alone sufficient to support Lopez’s conviction for level 4 felony

      child molesting.


[9]   Lopez suggests that perhaps N.S was “dreaming” or perhaps the sensations she

      felt were related to her “eczema.” Appellant’s Br. at 14. This is merely a



      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-729 | December 21, 2017   Page 4 of 5
       request for us to reweigh the evidence, a task not within our prerogative on

       appeal. The State presented sufficient evidence to support Lopez’s conviction.


[10]   Affirmed.


       Robb, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-729 | December 21, 2017   Page 5 of 5
