MEMORANDUM DECISION
                                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            Apr 19 2016, 7:26 am

regarded as precedent or cited before any                                             CLERK
                                                                                  Indiana Supreme Court
court except for the purpose of establishing                                         Court of Appeals
                                                                                       and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Elizabeth A. Bellin                                      Gregory F. Zoeller
Elkhart, Indiana                                         Attorney General of Indiana

                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jose Jesus Macias,                                       April 19, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1506-CR-758
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Teresa L. Cataldo,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         20D03-1109-FA-26



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-758| April 19, 2016             Page 1 of 18
                                       Statement of the Case
[1]   Jose Jesus Macias appeals his convictions and sentence for seven counts of

      child molesting, each as a Class A felony; one count of vicarious sexual

      gratification, as a Class B felony; two counts of child molesting, each as a Class

      C felony; and one count of dissemination of matter harmful to minors, a Class

      D felony, following a jury trial. Macias raises three issues for our review, which

      we restate as follows:


              1.       Whether Macias preserved for appellate review his claim
                       that the trial court abused its discretion in the admission of
                       certain evidence;


              2.       Whether his conviction for child molesting, as a Class A
                       felony, as charged in Count VIII, violates his right to be
                       free from double jeopardy under the Indiana Constitution;
                       and


              3.       Whether his aggregate sentence of 200 years and six
                       months is inappropriate in light of the nature of the
                       offenses and his character.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In 2008, Macias moved in with his soon-to-be-wife, S.P., and her four children.

      Two of her children, I.A. and J.A.R., were, respectively, about nine and eight

      years old at that time. I.A. and J.A.R. saw Macias as a father figure. I.A. and

      J.A.R. were close friends with A.U., a neighbor who was also about nine years


      Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-758| April 19, 2016   Page 2 of 18
      old in 2008. A.U. was at I.A. and J.A.R.’s house on a daily basis; A.U. felt I.A.

      and J.A.R. were “brothers” to him. Tr. at 492.


[4]   Between 2009 and 2011, Macias repeatedly molested A.U., I.A., and J.A.R.

      During that time, Macias had A.U. perform oral sex on him, and he performed

      oral sex on A.U. Macias fondled A.U.’s penis. Macias anally penetrated A.U.

      and had A.U. anally penetrate him. On one occasion, A.U. “blacked out” from

      the pain of the penetration. Id. at 472. Another time, Macias showed

      pornographic material to A.U. and made A.U. lick Macias’ anus. And, on

      another occasion, Macias had A.U. and I.A. perform oral sex on each other

      while he watched. “[T]his type of stuff . . . between [A.U.] and [Macias]” went

      on for “[a]round two years.” Id. at 491.


[5]   Also during that time, Macias performed oral sex on I.A. and had I.A. perform

      oral sex on him. Macias fondled I.A.’s penis and had I.A. fondle Macias’

      penis. Macias also fondled J.A.R.’s penis and had J.A.R. fondle Macias’ penis.

      This happened “[a]lmost every day” for “about a year.” Id. at 403. On other

      occasions, Macias made J.A.R. perform oral sex on him.


[6]   On September 14, 2011, the State filed its charging information against Macias.

      As amended, the State charged Macias with the following eleven offenses:


           Count I: Child Molesting, as a Class A felony, for knowingly performing
            or submitting to deviate sexual conduct with A.U. sometime between
            September 1, 2009, and March 30, 2011, “on a date separate” than the
            offenses alleged in other counts.
           Count II: Child Molesting, as a Class A felony, for knowingly
            performing or submitting to deviate sexual conduct with A.U. sometime
      Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-758| April 19, 2016   Page 3 of 18
        between September 1, 2009, and March 30, 2011, “on a date separate”
        than the offenses alleged in other counts.
       Count III: Child Molesting, as a Class A felony, for knowingly
        performing or submitting to deviate sexual conduct with A.U. sometime
        between September 1, 2009, and March 30, 2011.
       Count IV: Child Molesting, as a Class A felony, for knowingly
        performing or submitting to deviate sexual conduct with A.U. sometime
        between September 1, 2009, and March 30, 2011.
       Count V: Dissemination of Matter Harmful to Minors, a Class D felony,
        for knowingly or intentionally displaying harmful matter to A.U.
        sometime between September 1, 2009, and March 30, 2011.
       Count VI: Child Molesting, as a Class A felony, for knowingly
        performing or submitting to deviate sexual conduct with J.A.R.
        sometime between November 1, 2008, and March 30, 2011.
       Count VII: Child Molesting, as a Class C felony, for knowingly
        performing or submitting to any fondling or touching of either J.A.R. or
        Macias with the intent to arouse or satisfy the sexual desires of either
        sometime between November 1, 2008, and March 30, 2011.
       Count VIII: Child Molesting, as a Class A felony, for knowingly
        performing or submitting to deviate sexual conduct with J.A.R.
        sometime between November 1, 2008, and March 30, 2011, “on a date
        separate” than the offenses alleged in other counts.
       Count IX: Child Molesting, as a Class A felony, for knowingly
        performing or submitting to deviate sexual conduct with I.A. sometime
        between January 1, 2010, and March 30, 2011, “on a date separate” than
        the offenses alleged in other counts.
       Count X: Child Molesting, as a Class C felony, for knowingly
        performing or submitting to any fondling or touching of either I.A. or
        Macias with the intent to arouse or satisfy the sexual desires of either
        sometime between January 1, 2010, and March 30, 2011, “on a date
        separate” than the offenses alleged in other counts.
       Count XI: Vicarious Sexual Gratification, as a Class B felony, for
        knowingly directing, aiding, inducing, or causing I.A. to engage in
        deviate sexual conduct with A.U. with the intent to arouse or satisfy the
        sexual desire of either I.A. or Macias sometime between January 1, 2010,
        and March 30, 2011.

Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-758| April 19, 2016   Page 4 of 18
      Appellant’s App. at 265-67. After a jury trial in which each of the children

      testified, the jury found Macias guilty as charged.


[7]   Following a sentencing hearing, the court sentenced Macias to 200 years and

      six months in the Indiana Department of Correction. The court explained

      Macias’ sentence as follows:


              In arriving at the sentences imposed herein, the court notes that
              the defendant began consuming alcoholic beverages at the age of
              17 or 18[] and that he has ingested marijuana in the past. Even
              though there was no evidence that either one of those substances
              was used by the defendant prior to his criminal conduct in this
              case, the court finds that it shows a disdain on the part of the
              defendant for the law. The court also considers as aggravators
              the fact that there are multiple counts in this case involving
              multiple victims. The court also notes as aggravating factors that
              the defendant subjected his victims to various acts of sexual
              molestation over a significant period of time[] and that the
              defendant took the innocence of these children, which is
              something that can never be returned to them. The
              victims . . . were quite young when these acts of molestation were
              first perpetrated upon them; [J.A.R.] was seven or eight years of
              age, and [A.U.] and [I.A.] were nine years old. The court notes
              that the innocence and joy of a child of that age can never be
              restored. In addition, the defendant was a person who was in a
              position of having care, custody, or control over his victims,
              especially [J.A.R.] and [I.A.] who were the defendant’s stepsons.
              The defendant violated the position of trust he held with respect
              to his victims by molesting them repeatedly and forcing these
              children to perform sexual acts upon each other while he
              watched. Finally, the court has considered the fact that the
              defendant’s criminal history includes a conviction for the crime
              of Battery, which is a criminal offense involving violence. The
              court finds that the defendant’s criminal conduct in this case is an
              escalation of that same type of act of violence, as Child
      Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-758| April 19, 2016   Page 5 of 18
        Molestation is a crime of violence as set out in Indiana Code 35-
        50-1-2. The court finds all the foregoing to be aggravators in this
        case. The court does find the existence of mitigators in this case,
        as well, in the statement of the defendant himself and the
        statements presented on his behalf by his counsel. In addition,
        the court does take the eighty-some letters that were received
        from the defendant’s family and friends as a mitigator; however,
        the court finds that all of the mitigators taken as a whole do not
        outweigh any one of the aggravating factors . . . . Therefore, the
        court finds the aggravated sentences imposed herein are
        appropriate.


         . . . [W]ith respect to Count I, the defendant is sentenced . . . for
        a period of thirty (30) years. With respect to Count II, the
        defendant is sentenced . . . for a period of thirty (30) years,
        consecutive to Count I. . . . With respect to Count III, the
        defendant is sentenced . . . for a period of thirty (30) years,
        consecutive to Counts I and II. . . . With respect to Count IV,
        the defendant is sentenced . . . for a period of thirty (30) years, to
        be served concurrently with the sentence imposed for Count I.
        With regard to Count V, the defendant is sentenced to one and a
        half (1 1/2) years . . . consecutive to Counts I, II, and III. With
        regard to Count VI, the defendant is sentenced . . . for a period of
        thirty (30) years, consecutive to Counts I, II, III and V. With
        respect to Count VII, the defendant is sentenced . . . for a period
        of four (4) years[,] concurrent with Count VI. With respect to
        Count VIII, the defendant is sentenced . . . for a period of thirty
        (30) years, consecutive to Counts I, II, III, V, and VI. With
        respect to Count IX, the defendant is sentenced . . . for a period
        of thirty (30) years, consecutive to Counts I, II, III, V, VI, and
        VIII. With respect to Count X, the defendant is sentenced . . . for
        a period of four (4) years, consecutive to Counts I, II, III, V, VI,
        VIII, and IX. With regard to Count XI, the defendant is
        sentenced . . . for a period of fifteen (15) years, consecutive to
        Counts I, II, III, V, VI, VIII, IX[,] and X. The court notes that
        all of these charges could have been run consecutively as there

Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-758| April 19, 2016   Page 6 of 18
              was enough evidence presented at trial to prove each was a
              separate and distinct act; however, the court in its discretion has
              chosen not to run several of the counts concurrent as opposed to
              consecutive.


      Id. at 32-33. In other words, the court sentenced Macias to a term of ninety-one

      and one-half years (not including Count XI) for his offenses against A.U.; sixty

      years for his offenses against J.A.R.; and forty-nine years (including Count XI)

      for his offenses against I.A., with the term imposed for each of Macias’ victims

      to run consecutively for an aggregate term of 200 years and six months. This

      appeal ensued.


                                     Discussion and Decision
                                   Issue One: Admission of Evidence

[8]   On appeal, Macias first argues that the trial court abused its discretion when it

      permitted Goshen Police Department Detective Thomas Fuller to testify as to

      out-of-court statements I.A. made to him during Detective Fuller’s investigation

      into Macias’ acts. The trial court has discretionary power on the admission of

      evidence, and its decisions are reviewed only for an abuse of that discretion.

      Wilson v. State, 765 N.E.2d 1265, 1270 (Ind. 2002).


[9]   However, the failure to make a contemporaneous objection to the admission of

      evidence at trial, so as to provide the trial court an opportunity to make a final

      ruling on the matter in the context in which the evidence is introduced, results

      in waiver of the alleged error on appeal. Jackson v. State, 735 N.E.2d 1146, 1152

      (Ind. 2000). Here, at trial Macias made no contemporaneous objection to

      Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-758| April 19, 2016   Page 7 of 18
       Detective Fuller’s description of I.A.’s out-of-court statements. Accordingly,

       Macias did not preserve this issue for our review, and we will not consider it. 1

       Id.


                                           Issue Two: Double Jeopardy

[10]   Macias next asserts that the trial court violated his right to be free from double

       jeopardy under Article 1, Section 14 of the Indiana Constitution when it

       entered its judgment of conviction against him on both Count VI and Count

       VIII.2 As our supreme court has explained:


                 In Richardson v. State, 717 N.E.2d 32 (Ind.1999)[,] this Court
                 concluded that two or more offenses are the same offense in
                 violation of article 1, section 14 if, with respect to either the
                 statutory elements of the challenged crimes or the actual evidence
                 used to obtain convictions, the essential elements of one
                 challenged offense also establish the essential elements of another
                 challenged offense. Under the actual evidence test, we examine
                 the actual evidence presented at trial in order to determine
                 whether each challenged offense was established by separate and
                 distinct facts. Id. at 53. To find a double jeopardy violation
                 under this test, we must conclude that there is “a reasonable
                 possibility that the evidentiary facts used by the fact-finder to
                 establish the essential elements of one offense may also have
                 been used to establish the essential elements of a second
                 challenged offense.” Id. The actual evidence test is applied to all
                 the elements of both offenses. “In other words . . . the Indiana
                 Double Jeopardy Clause is not violated when the evidentiary
                 facts establishing the essential elements of one offense also



       1
           Macias does not assert that the admission of this evidence constituted fundamental error.
       2
           We note that Macias styles this argument as insufficient evidence to support Count VIII.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-758| April 19, 2016             Page 8 of 18
                establish only one or even several, but not all, of the essential
                elements of a second offense.” Spivey v. State, 761 N.E.2d 831,
                833 (Ind. 2002).


                Our precedents “instruct that a ‘reasonable possibility’ that the
                jury used the same facts to reach two convictions requires
                substantially more than a logical possibility.” Lee v. State, 892
                N.E.2d 1231, 1236 (Ind. 2008) (citing cases). The reasonable
                possibility standard “fairly implements the protections of the
                Indiana Double Jeopardy Clause and also permits convictions for
                multiple offenses committed in a protracted criminal episode
                when the case is prosecuted in a manner that insures that
                multiple guilty verdicts are not based on the same evidentiary
                facts.” Richardson, 717 N.E.2d at 53 n.46. The existence of a
                “‘reasonable possibility’ turns on a practical assessment of
                whether the [fact finder] may have latched on to exactly the same
                facts for both convictions.” Lee, 892 N.E.2d at 1236. We
                evaluate the evidence from the jury’s perspective and may
                consider the charging information, jury instructions, and
                arguments of counsel. Id. at 1234.


       Garrett v. State, 992 N.E.2d 710, 719-20 (Ind. 2013) (last alteration original).3


[11]   There is not a reasonable possibility that the jury latched onto exactly the same

       facts when it found Macias guilty under Count VI and Count VIII. The

       charging information for Count VIII was explicitly premised on the facts

       underlying that charge occurring “on a date separate than as alleged in Count[]

       VI . . . .” Appellant’s App. at 266. The court read Count VIII to the jurors

       while giving them final instructions. And, during her closing argument, the


       3
         Macias does not challenge the validity of his convictions under either the United States Constitution or the
       statutory elements test of the Indiana Constitution.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-758| April 19, 2016               Page 9 of 18
       prosecutor separately described the factual bases for Count VI and Count VIII.

       For Count VI, she stated that “at times [Macias] would have [J.A.R.] touch and

       fondle [Macias’] penis and then place [Macias’] penis in [J.A.R.’s] mouth.” Tr.

       at 629. For Count VIII, she stated that at “one particular time in the

       garage . . . [J.A.R.] was caused to put his mouth on [Macias’] penis.” Id. In

       light of the charging information, jury instructions, and the arguments of

       counsel, there is not a reasonable possibility that the jury relied on exactly the

       same facts to support its verdict for both Count VI and Count VIII.


[12]   Moreover, Macias’ argument on this issue is based on the premise that J.A.R.

       testified that Macias had made J.A.R. perform oral sex on him one time. But

       this is not an accurate interpretation of J.A.R.’s testimony. Rather, J.A.R.

       made clear that Macias made him perform oral sex “off and on for about a

       year.” Id. at 407. Accordingly, we reject Macias’ argument under Article 1,

       Section 14 of the Indiana Constitution.


                     Issue Three: Whether Macias’ Sentence is Inappropriate

[13]   Finally, Macias asserts that his aggregate term of 200 years and six months is

       inappropriate in light of the nature of the offenses and his character. We cannot

       agree.


[14]   Indiana Appellate Rule 7(B) permits an Indiana appellate court to “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.” We assess the trial court’s


       Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-758| April 19, 2016   Page 10 of 18
       recognition or non-recognition of aggravators and mitigators as an initial guide

       to determining whether the sentence imposed was inappropriate. Gibson v.

       State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006). The principal role of appellate

       review is to attempt to “leaven the outliers.” Cardwell v. State, 895 N.E.2d 1219,

       1225 (Ind. 2008). A defendant must persuade the appellate court that his or her

       sentence has met the inappropriateness standard of review. Roush v. State, 875

       N.E.2d 801, 812 (Ind. Ct. App. 2007).


[15]   We initially note that, for seven Class A felony convictions, one Class B felony

       conviction, two Class C felony convictions, and one Class D felony conviction,

       Macias faced a maximum possible term of 389 years. See Ind. Code §§ 35-50-2-

       4 to -7 (2008). Indeed, just considering the sentences actually imposed here,

       Macias could have received 234 years and six months had the trial court

       ordered all sentences to run consecutively. We also note that Macias received

       the advisory sentence for each of his convictions except his conviction on Count

       XI, Class B felony vicarious sexual gratification, which the trial court enhanced

       to fifteen years, five years below the maximum sentence for a Class B felony.


[16]   In imposing Macias’ sentence, the trial court found the following aggravating

       circumstances:


            Macias’ “disdain . . . for the law”;
            That there were multiple counts involving multiple victims;
            That Macias committed “various acts of sexual molestation over a
             significant period of time”;
            That Macias “took the innocence of these children”;
            That the victims were each “quite young”;

       Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-758| April 19, 2016   Page 11 of 18
            That Macias held a position of trust over his victims; and
            That Macias had a criminal history of an offense against the person.

       Appellant’s App. at 32. And, as mitigators, the court noted Macias’ statement,

       and the statement of his counsel, during sentencing, as well as the support

       Macias had from friends and family. However, the court found that any one of

       the aggravating circumstances outweighed all of the mitigating circumstances.


[17]   With those concerns in mind, we turn to the merits of Macias’ arguments on

       appeal. We first consider Macias’ assertion that both this court and the Indiana

       Supreme Court have “repeatedly exercised [their] power under Ind. App. Rule

       7([B]) to allow for concurrent sentences in situations where there are multiple

       counts involving the same victim.” Appellant’s Br. at 17. We interpret this

       argument to be that this court should revise Macias’ sentence for each of the

       victims to thirty years, the longest single sentence he received against each of

       his victims, with all other sentences against that victim to run concurrent with

       that term.


[18]   We reject that argument. There is no mandate from the Indiana Supreme

       Court on similar facts that multiple sex crimes against a single victim result in

       concurrent sentencing. Indeed, our supreme court has emphasized that

       appellate review under Rule 7(B) “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.” Cardwell, 895 N.E.2d at

       1225.



       Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-758| April 19, 2016   Page 12 of 18
[19]   In any event, our holding in Remy v. State, 17 N.E.3d 396, 402-03 (Ind. Ct. App.

       2014), trans. denied, demonstrates that none of Macias’ sentences with respect to

       each of his three victims is an outlier. In Remy, a jury found the defendant

       guilty of three counts of child molesting, each as a Class A felony; one count of

       child molesting, as a Class C felony; and one count of performing sexual

       conduct in the presence of a minor, a Class D felony. Each of the defendant’s

       convictions was based on conduct toward one victim, his girlfriend’s child. The

       trial court imposed the advisory sentence on each count but ordered the

       sentences to run consecutively for an aggregate term of ninety-five and one-half

       years.


[20]   In affirming the defendant’s sentence on appeal, we stated:

                Although they involve the same victim, the charged acts spanned
                two years and were based on a variety of appalling and degrading
                sex acts. . . .


                The trial court identified five aggravators here: (1) [the
                defendant] abused a position of trust with the victim; (2) the
                number of times the activities occurred; (3) the opportunistic way
                in which [the defendant] perpetrated the crimes; (4) the many
                locations in which the crimes occurred; and (5) the heinous
                nature of the activities to which [the defendant] subjected [the
                child.] [The defendant’s] lack of criminal history was the only
                mitigator. As the States points out, our case law recognizes
                several of these as valid aggravating factors in child molest cases.
                [The defendant] has not convinced us that his sentence is
                inappropriate in light of the nature of his offenses and his
                character.



       Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-758| April 19, 2016   Page 13 of 18
       Id. (citations and footnote omitted).


[21]   Similarly here, Macias’ criminal acts spanned two years and were based on a

       variety of appalling and degrading sex acts. As the State correctly observes,

       Macias’ offenses were “deplorable,” “egregious[,]” and “humiliating.”

       Appellee’s Br. at 20-21. Macias abused a position of trust over the victims, and

       he did so repeatedly. And, with the exception of Count XI, as in Remy here the

       trial court imposed advisory sentences that it then ordered to be served

       consecutively. However, unlike in Remy, Macias does have a criminal history,

       namely, a prior conviction for battery, as a Class D felony, and the trial court

       additionally found that Macias has “disdain . . . for the law.” Appellant’s App.

       at 32.


[22]   Accordingly, we cannot say that Macias’ term of ninety-one and one-half years

       (not including Count XI) for his offenses against A.U., sixty years for his

       offenses against J.A.R., or forty-nine years (including Count XI) for his offenses

       against I.A. are inappropriate in light of the nature of Macias’ offenses against

       them.4 Neither can we say that Macias’ 200-year-and-six-month sentence is

       inappropriate in light of the nature of his sustained offenses against his several

       victims.


[23]   Still, Macias additionally argues that his sentence is inappropriate with respect

       to the nature of the offenses because the “offenses were all part of an episode of



       4
           We note that our disposition is not affected by allocating the sentence for Count XI to A.U., I.A., or both.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-758| April 19, 2016                 Page 14 of 18
       criminal conduct” and “[t]he fact that one offense occurred on a different date

       than another is of no import” here. Appellant’s Br. at 18. Macias’ actions

       spanned more than two years and were directed at three victims. We are not at

       all persuaded by his assertion that his actions were “so closely related in time,

       place, and circumstance that a complete account of one charge cannot be

       related without referring to details of the other charge.” Johnican v. State, 804

       N.E.2d 211, 217 (Ind. Ct. App. 2004). As such, we reject this argument.


[24]   Macias also asserts that, with his status as a credit-restricted felon,5 his

       aggregate sentence is, “[e]ssentially, . . . the equivalent [of] a sentence of

       life . . . without the possibility of parole.” Appellant’s Br. at 20. It is not clear

       what Macias’ complaint here is; the trial court did not impose an illegal

       sentence. We conclude that Macias’ assertion is not supported by cogent

       reasoning, and we do not consider it.6 Ind. Appellate Rule 46(A)(8)(a).


[25]   Finally, Macias argues that his sentence is inappropriate in light of his

       character. But this argument simply asks this court to, in effect, give more

       weight to the mitigators found by the trial court than the trial court gave them,

       which we will not do. Rather, we agree with the State that the evidence

       thoroughly demonstrates Macias’ poor character. In particular, he abused a




       5
           Macias earns one day of credit time for every six days imprisoned.
       6
         Macias was forty years old at the time of sentencing and, as discussed above, appears to argue that thirty-
       year terms for each of his victims, or ninety years total if those terms were to run consecutively, would be an
       appropriate sentence. Thus, under Macias’ own argument, his release date would be sometime after he
       turned 116 years old.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-758| April 19, 2016               Page 15 of 18
       position of trust to commit sex crimes against two of his stepsons and their

       friend. We cannot say that Macias’ aggregate sentence of 200 years and six

       months is inappropriate.


[26]   In sum, we affirm Macias’ convictions and sentence.


[27]   Affirmed.


       May, J., concurs.

       Riley, J., concurs in part and dissents in part with separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-758| April 19, 2016   Page 16 of 18
                                           IN THE
    COURT OF APPEALS OF INDIANA

Jose Jesus Macias,                                       Court of Appeals Case No.
                                                         20A03-1506-CR-758
Appellant-Defendant,

        v.

State of Indiana,
Appellee-Plaintiff.




Riley, Judge, concurring in part and dissenting in part


While I concur with the majority’s decision to affirm Macias’ convictions, I

respectfully dissent from the decision to affirm his aggregate sentence of 200

years and six months.


As noted by the majority, Indiana Appellate Rule 7(B) allows an appellate court

to revise a sentence authorized by statute if, after due consideration of the trial

court’s decision, the appellate court finds the sentence is inappropriate in light

of the nature of the offense and the character of the offender. See Slip op. p. 10.
Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-758| April 19, 2016   Page 17 of 18
Based on the evidence before me, I agree with the trial court’s sentence as to

each individual Count; however, I disagree with the way the trial court—

affirmed by the majority—runs the Counts with respect to each other. I would

advise to run the sentences of Counts II, III, IV, and V concurrent with the

thirty year sentence of Count I. Likewise, I advise to run the sentences of

Counts VII and VIII concurrent to the thirty year sentence of Count VI, and the

sentences of Counts X and XI concurrent to the thirty year sentence of Count

IX. The sentences of Counts I, VI, and IX should run consecutive to each

other, for an aggregate sentence of ninety years. In other words, I would revise

Macias’ sentence for each of the victims to thirty years, with all other sentences

against that same victim to run concurrent with that term, and consecutive to

the terms of the other victims.




Court of Appeals of Indiana | Memorandum Decision 20A03-1506-CR-758| April 19, 2016   Page 18 of 18
