MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any                       Aug 10 2017, 8:55 am
court except for the purpose of establishing                         CLERK
the defense of res judicata, collateral                          Indiana Supreme Court
                                                                    Court of Appeals
estoppel, or the law of the case.                                     and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jeffery A. Earl                                          Curtis T. Hill, Jr.
Danville, Indiana                                        Attorney General of Indiana

                                                         Jodi Kathryn Stein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Reyes,                                           August 10, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         32A01-1701-CR-101
        v.                                               Appeal from the Hendricks
                                                         Superior Court
State of Indiana,                                        The Honorable Karen M. Love,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         32D03-1603-F4-11



Barnes, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 32A01-1701-CR-101 | August 10, 2017    Page 1 of 8
[1]   Michael Reyes appeals his ten-year sentence for Level 4 felony child

      molestation and Class A misdemeanor invasion of privacy. We affirm.


                                                      Issue

[2]   The sole issue on appeal is whether the sentence imposed was inappropriate in

      light of the nature of the offense and the character of the offender.


                                                      Facts

[3]   On March 8, 2016, M.P., mother of eleven-year-old M.M. and wife of Reyes,

      invited Reyes over to her house in Hendricks County to spend time with their

      son.1 A protective order had previously been established, which prohibited

      Reyes from entering M.P.’s home. Reyes violated the order on multiple

      occasions. While M.P. was in her bedroom upstairs, Reyes removed his jeans

      and touched M.M. on her breast and her vagina. M.P. came downstairs and

      saw Reyes kissing M.M.’s neck and rubbing her vagina. M.P. screamed at

      Reyes to stop and then told him to leave. Reyes asked M.P. not to contact the

      police. M.P. then took M.M. upstairs to her bedroom. While in M.P.’s room,

      M.P. asked M.M. why she did not scream, and M.M. told her it was because

      Reyes had threatened to kill M.P. M.P. reported the crime to police.


[4]   On March 10, 2016, the State charged Reyes with Level 4 felony child

      molesting, fondling or touching a child under fourteen, and Class A




      1
          M.M. is Reyes’s step-daughter.


      Court of Appeals of Indiana | Memorandum Decision 32A01-1701-CR-101 | August 10, 2017   Page 2 of 8
      misdemeanor invasion of privacy. Reyes pled guilty to both counts. A

      sentencing hearing was held on December 20, 2016. During the hearing, M.P.

      testified that, since the incident, “[M.M.]’s a totally different child. … She says

      she doesn’t care about life anymore. She doesn’t like to take baths. And her

      grades have gone down.” Tr. p. 34. M.P. testified that M.M. liked school

      before this incident and made A’s and B’s. Now M.M. makes C’s, D’s, and

      F’s. She stated that M.M. would go days without bathing because she did not

      want to look good and that she is afraid that she will attract the attention of

      men. M.P. stated that M.M. is currently receiving counseling, and M.M.’s

      counselor suggested M.M. should not attend the hearing.


[5]   Reyes testified during the hearing and admitted to touching M.M. on her breast

      and vagina. He denied ever threatening M.M. or M.P. Reyes stated,

              I am very sorry about what happened and I’m really embarrassed
              about what happened. I have learned the lesson and I wish she
              was here so I could ask for her forgiveness. I am sure this is not
              going to happen again and I want to tell the Court that I am
              sorry. I want to apologize to the court.


      Id. at 46.

[6]   At the conclusion of the hearing, the trial court found Reyes’s guilty plea,

      acceptance of responsibility, and Reyes’s refusal to allow M.M. or his wife to be

      deposed as mitigating circumstances. The trial court also acknowledged

      Reyes’s working to support his son, prior to this incident, as a mitigating

      circumstance. The trial court found Reyes’s relationship to M.M., as her step-

      father, as an aggravating circumstance. The trial court noted that Reyes not
      Court of Appeals of Indiana | Memorandum Decision 32A01-1701-CR-101 | August 10, 2017   Page 3 of 8
      only violated a protective order by being in the house at the time the incident

      occurred, but also violated his position of trust. The trial court also found that

      the incident taking place in M.M.’s home, while her mother was in the home,

      was an aggravating circumstance. Although the State asked the trial court to

      consider M.M.’s age as aggravating, the trial court was reluctant to do so

      because the age of the victim is an element of the crime. 2 The trial court stated

      Reyes needs rehabilitation and that the Department of Correction (“DOC”) has

      a good program available for sex offenders. The trial court sentenced Reyes to

      ten years in the DOC with 545 days suspended to probation for the Level 4

      felony child molesting conviction, and a concurrent sentence of 286 days for the

      Class A misdemeanor invasion of privacy conviction. Reyes now appeals.


                                                          Analysis

[7]   Reyes contends that his sentence is inappropriate in light of the nature of the

      offense and his character. However, there are arguments in his brief that

      reference an abuse of discretion standard. Specifically, Reyes argues that the

      trial court improperly considered M.M.’s age and his criminal history as

      aggravating factors and that the trial court improperly weighed other factors.

      Our supreme court, however, has made clear that inappropriate sentence and




      2
        The trial court stated, “It’s true the child is age 11, that’s under 12, however in a certain sense that’s part of
      the statute itself that makes this a felony because it’s –a Level 4 felony because its—she’s under 14 so I give
      that some weight.” Tr. p. 64.

      Court of Appeals of Indiana | Memorandum Decision 32A01-1701-CR-101 | August 10, 2017                    Page 4 of 8
      abuse of discretion claims are to be analyzed separately. 3 See Anglemyer v. State,

      868 N.E.2d 482, 490-491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind.

      2007). An inappropriate sentence analysis does not involve an argument that

      the trial court abused its discretion in sentencing the defendant. King v. State,

      894 N.E.2d 265, 267 (Ind. Ct. App. 2008); see also Harman v. State, 4 N.E.3d

      209, 218 (Ind. Ct. App. 2014), trans. denied. An inappropriate sentence analysis

      includes only whether Reyes’s sentence is inappropriate in light of the nature of

      the offense and the character of the offender. See Ind. Appellate Rule 7(B); see

      also Anglemyer, 868 N.E.2d at 491. Because Reyes does not cite the proper

      authority or fully develop his arguments concerning the trial court’s assessment

      of aggravating and mitigating factors, we will only consider whether the

      sentence is inappropriate in light of the offense and the character of the

      defendant. See Keller v. State, 987 N.E.2d 1099, 1121 n. 11 (Ind. Ct. App. 2013),

      trans. denied.


[8]   Although Rule 7(B) does not require us to be “extremely” deferential to a trial

      court’s sentencing decision, we still must give due consideration to that

      decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We

      also understand and recognize the unique perspective a trial court brings to its




      3
        A trial court can be said to have abused its discretion by “failing to enter a sentencing statement at all …
      entering a statement that explains reasons for imposing a sentence—including a finding of aggravating and
      mitigating factors if any—but the record does not support the reasons, or the sentence statement omits
      reasons that are clearly supported by the record and advanced for consideration, or the reasons given are
      improper as a matter of law.” Anglemyer, 868 N.E.2d at 490-491.

      Court of Appeals of Indiana | Memorandum Decision 32A01-1701-CR-101 | August 10, 2017                Page 5 of 8
       sentencing decisions. Id. “Additionally, a defendant bears the burden of

       persuading the appellate court that his or her sentence is inappropriate.” Id.


[9]    The principal role of Rule 7(B) 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 “should focus on the forest—the aggregate sentence—rather than

       the trees—consecutive or concurrent, number of counts, or length of the

       sentence on any individual count.” Id. Whether a sentence is inappropriate

       ultimately turns on the culpability of the defendant, the severity of the crime,

       the damage done to others, and a myriad of other factors that come to light in a

       given case. Id. at 1224. When reviewing the appropriateness of a sentence

       under Rule 7(B), we may consider all aspects of the penal consequences

       imposed by the trial court in sentencing the defendant, including whether a

       portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,

       1025 (Ind. 2010).


[10]   The advisory sentence is the starting point to determine the appropriateness of

       the sentence. See Anglemyer, 868 N.E.2d at 494. The sentencing range for a

       Level 4 felony conviction is between two and twelve years, with the advisory

       sentence being six years. Ind. Code § 35-50-2-5.5. The sentencing range for a

       Class A misdemeanor is not more than one year. I.C. § 35-50-3-2. Reyes

       received a sentence that was higher than the advisory sentence but lower than



       Court of Appeals of Indiana | Memorandum Decision 32A01-1701-CR-101 | August 10, 2017   Page 6 of 8
       the maximum sentence available for the Level 4 felony, and he received lower

       than the advisory sentence for the Class A misdemeanor.


[11]   In regard to the nature of the offense, Reyes contends that “aside from the fact

       that [he] was in a position of trust with respect to M.M., there is nothing in the

       record to show that [his] crimes were particularly atrocious or deserving of a

       sentence 4 years higher than the advisory sentence for his crime.” Appellant’s

       Br. p. 9. The nature of the offense reveals, however, that Reyes molested his

       eleven-year-old step-daughter, by touching M.M. on her breast and vagina,

       while his wife and son were in the home. As Reyes was committing these

       offenses, he threatened to kill his wife if his step-daughter said anything. M.P.

       witnessed Reyes kissing M.M. on her neck and touching her vagina, and Reyes

       only stopped touching M.M. after being caught by his wife. After the incident,

       M.M.’s grades fell, she refused to bathe, and she felt threatened by men. M.M.

       was also unable to attend the hearing because her counselor was concerned it

       would be too much for her to handle. The nature of the offense was egregious.


[12]   The character of the offender reveals that Reyes was previously convicted of

       distribution of cocaine in Puerto Rico. Reyes committed the instant offense at

       M.M.’s home, which violated a long-standing protective order, and a position

       of trust, as M.M’s step-father. He also admitted to intentionally violating the

       protective order on multiple occasions, prior to this incident. Although we

       acknowledge Reyes’s guilty plea and acceptance of responsibility, he has not

       persuaded us that his character warrants a revised sentence.



       Court of Appeals of Indiana | Memorandum Decision 32A01-1701-CR-101 | August 10, 2017   Page 7 of 8
[13]   Given the nature of the offense and Reyes’s character, we find that the sentence

       imposed was appropriate, especially considering the trial court imposed

       concurrent sentences and suspended one-and-one-half years to probation.


                                                   Conclusion

[14]   The sentence imposed was not inappropriate in light of the nature of the offense

       and Reyes’s character. We affirm.


[15]   Affirmed.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 32A01-1701-CR-101 | August 10, 2017   Page 8 of 8
