MEMORANDUM DECISION
                                                                              FILED
Pursuant to Ind. Appellate Rule 65(D), this
                                                                         Dec 20 2018, 8:48 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                            CLERK
                                                                          Indiana Supreme Court
purpose of establishing the defense of res judicata,                         Court of Appeals
                                                                               and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr.                                 Curtis T. Hill, Jr.
Deputy Public Defender                                 Attorney General of Indiana
Fort Wayne, Indiana                                    J.T. Whitehead
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Hector G. Lopez,                                           December 20, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-1940
        v.                                                 Appeal from the Allen Superior
                                                           Court
State of Indiana,                                          The Hon. Frances C. Gull, Judge
Appellee-Plaintiff.                                        Trial Court Cause No.
                                                           02D05-1802-F5-57



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1940 | December 20, 2018                 Page 1 of 5
                                          Case Summary
[1]   In February of 2018, Hector Lopez struck and strangled Yolanda Moreno, with

      whom he has two children, during an argument. Lopez shoved one of

      Moreno’s children when she attempted to telephone the police, an incident

      witnessed by another of Moreno’s children. As it happens, a no-contact order

      concerning Lopez and Moreno was in effect at the time. The State charged

      Lopez with Level 5 felony battery resulting in bodily injury to a person under

      fourteen years old, Level 6 felony domestic battery committed in the presence

      of a child under sixteen years old, Level 6 felony strangulation, Class A

      misdemeanor interference with the reporting of a crime, and Class A

      misdemeanor invasion of privacy. The trial court found Lopez guilty as

      charged and sentenced him to four years of incarceration, a sentence Lopez

      contends is inappropriately harsh. Because we disagree, we affirm.



                            Facts and Procedural History
[2]   On February 16, 2018, Moreno lived in Allen County with her five children and

      Lopez, the father of two of her children. The party of seven went out to dinner,

      and Lopez, who was intoxicated, became angry and argued with a waitress and

      Moreno after one of the children vomited. When the group returned home,

      Moreno sent four of the children upstairs, gave the oldest her telephone, and

      told her to go outside “just in case something happened[.]” Tr. Vol. II p. 6.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1940 | December 20, 2018   Page 2 of 5
[3]   When Moreno told Lopez to leave, he pushed her in the back and then struck

      her in the mouth, drawing blood. When Moreno again told Lopez to leave and

      tried to put some of his clothing onto a bed, he pushed her down and strangled

      her for approximately forty seconds, which was witnessed by Moreno’s oldest

      child, who was not yet fourteen years old. Moreno could not breathe and

      scratched Lopez’s back. When Moreno told her daughter to call the police,

      Lopez followed her to her room, pushed her “through the wall[,]” took the

      telephone from her, and ended the call. Tr. Vol. II p. 13. One of Moreno’s

      other children was in the daughter’s room at the time. Meanwhile, Moreno

      had found a broom, struck Lopez with it, and managed to get outside and

      summon help. It was later determined that a no-contact order prohibiting

      Lopez from having contact with Moreno was in effect on February 16, 2018,

      and had been since 2014.


[4]   On February 23, 2018, the State charged Lopez with Level 5 felony battery

      resulting in bodily injury to a person under fourteen years old, Level 6 felony

      domestic battery committed in the presence of a child under sixteen years old,

      Level 6 felony strangulation, Class A misdemeanor interference with the

      reporting of a crime, and Class A misdemeanor invasion of privacy. On June

      19, 2018, the trial court found Lopez guilty as charged. On July 27, 2018, the

      trial court sentenced Lopez to four years of incarceration for battery, two years

      for domestic battery, two years for strangulation, one year for interference with

      the reporting of a crime, and one year for invasion of privacy, all sentences to

      be served concurrently.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1940 | December 20, 2018   Page 3 of 5
                                Discussion and Decision
[5]   Lopez contends that his four-year aggregate sentence is inappropriately harsh.

      This court will revise a sentence only if, upon “due consideration of the trial

      court’s decision” it nonetheless appears that “the sentence is inappropriate in

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

      Appellate Rule 7(B); Anglemyer v. State, 868 N.E.2d 482, 490–91 (Ind. 2007),

      clarified on reh’g, 875 N.E.2d 218 (2007). The “nature of the offense” refers to

      the defendant’s acts in comparison with the elements of his offense, Cardwell v.

      State, 895 N.E.2d 1219, 1224 (Ind. 2008), while “character of the offender”

      refers to general sentencing considerations and the relevant aggravating and

      mitigating circumstances. Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014).

      Lopez has the burden to show his sentence is inappropriate in light of both the

      nature of the offense and his character. Gil v. State, 988 N.E.2d 1231, 1237

      (Ind. Ct. App. 2013). This may be done with “compelling evidence portraying

      in a positive light the nature of the offense […] and the defendant’s character[.]”

      Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). Lopez was convicted of five

      crimes, the most serious being a Level 5 felony (with an advisory sentence of

      three years and a maximum of six), and was given an aggregate sentence of four

      years of incarceration. See Ind. Code § 35-50-2-6(b).


[6]   The nature of Lopez’s offenses justifies his sentence. Lopez became intoxicated

      and argued with a waitress and Moreno at a restaurant, prompting his entire

      party to leave. Soon thereafter, when Moreno told Lopez to leave their home,

      he struck her in the mouth, pushed her repeatedly, and strangled her. Lopez


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1940 | December 20, 2018   Page 4 of 5
      committed his crimes in the presence of two of Moreno’s children, one of

      whom also felt his wrath as she attempted to contact police. It is worth noting

      that Lopez should not have been with Moreno and the children at all because

      he had an active no-contact order in place at the time he committed the

      offenses.


[7]   As for Lopez’s character, it also justifies his sentence. Lopez’s criminal history

      begins in 2003 and includes misdemeanor convictions for public intoxication,

      two counts of operating a vehicle with a BAC of 0.15 g/mL or greater, two

      counts of domestic violence in Ohio, control of a motor vehicle while under the

      influence in Ohio, domestic battery, and driving while under the influence of

      alcohol or drugs in Ohio, eight convictions altogether. Despite Lopez receiving

      probation for a number of these offenses—all of which involved substance

      abuse or domestic violence—the instant offenses reveal that probation has not

      caused Lopez to reform himself. Lopez’s character, as revealed by his criminal

      history and his propensity for committing the same types of offenses, justifies

      his four-year sentence. In light of the nature of Lopez’s five offenses and his

      character, he has failed to establish that his four-year aggregate sentence is

      inappropriate.


[8]   The judgment of the trial court is affirmed.


      Bailey, J., and Brown, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1940 | December 20, 2018   Page 5 of 5
