MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
                                                                             FILED
Memorandum Decision shall not be regarded as                             Jul 03 2019, 5:30 am
precedent or cited before any court except for the
                                                                             CLERK
purpose of establishing the defense of res judicata,                     Indiana Supreme Court
                                                                            Court of Appeals
collateral estoppel, or the law of the case.                                  and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Stacy R. Uliana                                           Curtis T. Hill, Jr.
Bargersville, Indiana                                     Attorney General of Indiana
                                                          Henry A. Flores, Jr.
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Ramiro Aguirre,                                           July 3, 2019

Appellant-Defendant,                                      Court of Appeals Cause No.
                                                          18A-CR-2456
        v.                                                Appeal from the Hamilton Superior
                                                          Court
State of Indiana,                                         The Honorable Steven R. Nation,
                                                          Judge
Appellee-Plaintiff
                                                          Trial Court No. 29D01-1804-F1-
                                                          2906




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019                     Page 1 of 27
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Ramiro Aguirre (Aguirre), appeals his conviction and

      sentence for ten Counts of child molesting, Level 1 felonies, Ind. Code § 35-42-

      4-3(a)(1).


[2]   We affirm in part, reverse in part, and remand with instructions.


                                                   ISSUES
[3]   Aguirre presents four issues on appeal, which we restate as:


          (1) Whether the trial court abused its discretion by admitting certain

              evidence;


          (2) Whether the State presented sufficient evidence beyond a reasonable

              doubt to sustain some of his convictions;


          (3) Whether the trial court abused its discretion at sentencing; and


          (4) Whether Aguirre’s sentence is inappropriate in light of the nature of the

              offenses and his character.


                      FACTS AND PROCEDURAL HISTORY
[4]   In 2016, seven-year-old A.G. lived with her mother (Mother), her two brothers,

      and her sister in Noblesville, Indiana. In November 2016, Mother married

      Aguirre, and Aguirre moved into A.G.’s home. Mother’s children, including

      A.G., called Aguirre “[p]oppy” or “[d]ad.” (Transcript Vol. II, p. 230). Mother
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019   Page 2 of 27
      was a lab technician and worked two jobs. Aguirre worked full-time during the

      evenings at Wal-Mart.


[5]   Between November 2016 and April 2018, when A.G. was seven or eight years

      old, Aguirre committed multiple acts of molestation upon A.G. during his time

      alone with her. Specifically, Aguirre put his penis on A.G.’s vagina. He also

      put his penis inside A.G.’s mouth and touched A.G.’s vagina with his hands.

      A.G. indicated that the molestation events that occurred in three rooms,

      happened “a lot.” (Tr. Vol. III, p. 36). Aguirre instructed A.G. not to disclose

      his acts to anyone.


[6]   On April 6, 2018, Mother drove Aguirre to the airport. Aguirre was flying to

      Guatemala for medical treatment. On April 18, 2018, and while Aguirre was

      still in Guatemala, A.G.’s school guidance counselor (Counselor) received a

      report from a concerned parent regarding something A.G. had told her

      daughter on the school bus. After talking with A.G. about the report, the

      Counselor contacted the Department of Child Services (DCS) to report a

      possible case of child abuse. The school also called A.G.’s mother who left

      work to pick up A.G. After picking up A.G., Mother took A.G. to the child

      advocacy center in Hamilton County for a forensic interview. A sexual assault

      kit was thereafter performed. A.G.’s results were normal since they showed no

      signs of trauma.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019   Page 3 of 27
[7]    On April 23, 2018, after Aguirre had returned from his Guatemala trip, the

       State filed an Information, charging Aguirre with Counts I-X, child molesting,

       Level 1 felonies, and Counts XI-XII, child molesting, Level 4 felonies. On July

       11, 2018, a jury trial was conducted, and Aguirre was found guilty as charged.

       Due to double jeopardy concerns, the trial court declined to enter judgment of

       convictions for the Level 4 felony child molesting convictions.


[8]    On September 13, 2018, the trial court conducted a sentencing hearing. At the

       close of the evidence, the trial court sentenced Aguirre to forty years on each

       Count to be served in the Department of Correction (DOC). Aguirre’s sentence

       is to be executed as follows: concurrent terms on Counts I through IV, but

       consecutive to Counts V through X; concurrent terms for Counts V through

       VIII, but consecutive to Counts I through X; Counts IX and X, are to run

       consecutive to each other, and consecutive to Counts I through VIII. Thus, the

       trial court imposed four consecutive forty-year sentences for an aggregate

       sentence of 160 years.


[9]    Aguirre now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                              I. Admission of A.G.’s Video Forensic Interview

[10]   Aguirre argues that the trial court abused its discretion by admitting A.G.’s

       video forensic interview as a prior consistent statement pursuant to Indiana

       Rule of Evidence 801(d)(1). Trial courts have broad discretion to rule on the
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019   Page 4 of 27
       admissibility of evidence. Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). On

       appellate review, we review the trial court’s ruling “‘for abuse of that discretion

       and reverse only when admission is clearly against the logic and effect of the

       facts and circumstances and the error affects a party’s substantial rights.’” Id.

       (quoting Clark v. State, 994 N.E.2d 252, 259-60 (Ind. 2013)). The trial court’s

       broad discretion extends to situations involving the admissibility of purported

       hearsay. Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014).


[11]   “Hearsay is an out-of-court statement offered for ‘the truth of the matter

       asserted,’ and it is generally not admissible as evidence.” Id. at 565 (quoting

       Ind. Evidence Rule 802). “‘Whether a statement is hearsay . . . will most often

       hinge on the purpose for which it is offered.’” Id. (quoting United States v.

       Linwood, 142 F.3d 418, 425 (7th Cir. 1998)).


[12]   Indiana Evidence Rule 801(d)(1) provides:


               (d) . . . a statement is not hearsay if:


               (1) A Declarant-Witness’s Prior Statement. The declarant testifies
               and is subject to cross-examination about a prior statement, and
               the statement:
               (A) is inconsistent with the declarant’s testimony and was given
               under penalty of perjury at a trial, hearing, or other proceeding or
               in a deposition;
               (B) is consistent with the declarant's testimony, and is offered to
               rebut an express or implied charge that the declarant recently
               fabricated it or acted from a recent improper influence or motive
               in so testifying; or
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019   Page 5 of 27
               (C) is an identification of a person shortly after perceiving the
               person.


[13]   Cases that have applied Indiana Rule 801(d)(1), governing the substantive use

       of prior consistent statements by a witness and whether there has been an

       express or implied charge of recent fabrication or improper influence or motive,

       have made it clear that there is a difference between merely challenging a

       witness’s credibility versus making an express or implied charge of fabricated

       testimony or improper influence or motive. Corbally v. State, 5 N.E.3d 463, 469

       (Ind. Ct. App. 2014). Considering Corbally, we must therefore determine if

       there was an express or implied charge of fabricated testimony or improper

       influence or motive.


[14]   At the end of A.G.’s direct examination, the State asked, “did anyone tell you

       what to say today?” (Tr. Vol. III, p. 43). A.G. responded, “I don’t remember.”

       (Tr. Vol. III, p. 43). During A.G.’s cross-examination, the following exchange

       occurred:


               Q. Okay. And did you talk to anybody about what you were
               going to say today?
               A. Uh, you know what you mean? What you mean?
               Q. Yeah, have you talked to anybody about what to say today
               before you came into the courtroom?
               A. No.
               Q. You didn’t know what you were going to say? You didn’t
               know what questions people were going to ask you?
               A. I know what I was going to say to Miss Jessica [(the deputy
               prosecutor)].
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019   Page 6 of 27
        Q. Miss Jessica, okay.
        A. Yes.
        Q. So[,] she kind of helped you with that?
        A. Yeah, we practiced last time in the courtroom.
        Q. Oh, okay.
        A. And we practiced sometime in her room, in her office.
        ***
        Q. And you understand that you need to tell the truth, right?
        A. Yes.
        Q. Okay. And have you been doing that?
        A. Yes.
        Q. Okay. And is a lot of the things that you’re saying is because,
        that you know what to say is because you had, you were in Ms.
        Paxton’s office?
        A. I don’t know what Paxton office means.
        Q. In [Miss] Jessica’s office.
        A. Oh. I don’t know.
        Q. Okay. Is it possible?
        A. I don’t know what you mean by that.
        Q. Oh, okay. Is what you’re saying today, okay, is that things
        that you had, you spoke with or talked with Jessica about in her
        office?
        A. Yes.
        Q. Okay. And so you remember what to say because you
        recently said that with Miss Jessica, right?
        A. Yes.
        ***
        Q. Okay, thank you. Just one last question, A.G.
        A. Okay.
        Q. And then I’m done, all right?
        A. Okay.
        Q. You said that you talked to Jessica once in her office and
        once in this courtroom?
        A. I talked to her last time, two times in her office last time.
        Q. Okay. And when was the last time you spoke with her?
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019   Page 7 of 27
               A. Last time when I spoke?
               Q. Yeah.
               A. Talking about [Aguirre] touched [sic] my private body?
               Q. Yes.
               A. Oh, I started speaking because it wasn’t good for me, because
               I could have been sick or get hurt.
               Q. Okay. So did you talk to Miss Jessica in a courtroom like
               this?
               A. No, but in her office. But --
               Q. Go ahead.
               A. In her office.
               Q. In her office, okay. Was anybody else with you?
               A. Andre ([deputy prosecutor)].
               Q. Who’s Andre?
               A. He’s right there.
               Q. Oh, right there. Oh, he was with you. Oh, okay.
               A. And Hailey ([A.G.’s private counsel]) was in there with me
               also.
               Q. Hailey was or was not?
               A. Yes.
               Q. She was with you. So it was you Hailey, Andre, and Jessica?
               A. Yes, and Jessica let me grab a beanie-boo that I could play
               with, but I had to talk also.
               Q. And did you go over that picture with her? The picture that I
               showed you with the drawing?
               A. Oh, yeah, she showed me it. And she showed me the picture
               of the girl private body, but she wasn’t able to show me the boy
               private because it wasn’t made yet.


       (Tr. Vol. III, pp. 54-55, 62-63, 68-70).


[15]   After A.G. testified, the State called Courtney Bachus (Bachus), the forensic

       interviewer who questioned A.G, to testify. During the Bachus’ direct

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019   Page 8 of 27
       examination, the State moved to admit A.G.’s video interview as a prior

       consistent statement, pursuant to Indiana Evidence Rule 801(d)(1)(B), arguing

       that Aguirre had “opened the door” when his questions to “A.G. seemed to

       suggest that her meeting with” the State before trial, implied that it had coached

       A.G.’s testimony. (Tr. Vol. III, p. 89). The parties engaged in a sidebar, and at

       the end of the parties’ arguments, the trial court allowed the State to publish

       A.G.’s video forensic interview to the jury.


[16]   On appeal, Aguirre argues that he “objected on multiple grounds, including that

       his cross-examination [of A.G.] did not open the door to her forensic interview”

       to come in “as a prior consistent statement, and even if he did, the State should

       [have] rehabilitated A.G. by reading certain prior consistent statements rather

       than playing the entire video statement.” (Appellant’s Br. p. 16). He continues,

       “[E]ven though [he] implied that the meetings with the prosecutors influenced

       [A.G.’s] testimony by helping her []remember[] what to say, he never implied

       that such meetings were improper to have with a child.” (Appellant’s Bp. P.

       16).


[17]   At Aguirre’s jury trial, the State argued that Aguirre’s counsel’s extensive

       questioning of A.G. gave the jury the impression that it had improperly

       influenced A.G.’s testimony. Following the parties’ arguments, the trial court

       concluded in its sound discretion that Aguirre’s line of question crossed the line

       from impeaching for credibility into the realm of implicitly charging A.G. with

       fabricating her testimony. Our reading of the record supports the State’s
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019   Page 9 of 27
       contention, and while Aguirre maintains that was not his trial counsel’s

       intention, that is irrelevant. “‘The fact that . . . counsel may not have intended

       to imply that [the witness’s] story was fabricated . . . is irrelevant if that

       inference fairly arises from the line of questioning he pursued.’” See Horan v.

       State, 682 N.E.2d 502, 511-12 (Ind. 1997) (quoting U.S. v. Baron, 602 F.2d 1248,

       1253 (7th Cir. 1979). See also Brim v. State, 624 N.E.2d 27, 33 (Ind. Ct. App.

       1993) (victim’s prior statement to police identifying Brim was admissible to

       rebut accusation that the identification was not the result of her own

       independent knowledge, but instead was the product of suggestions made by

       her mother and others). Thus, we hold that the trial court properly admitted

       A.G.’s video interview to rebut Aguirre’s allegation that A.G.’s testimony was

       the result of a recent improper influence by the State.


[18]   Even assuming the trial court erred by admitting A.G.’s video forensic

       interview in this case, we find that the admission was harmless. See Pavey v.

       State, 764 N.E.2d 692, 703 (Ind. Ct. App. 2002) (holding that the erroneous

       admission of evidence may be harmless if it is merely cumulative of other

       evidence in the record), trans. denied. Here, the videotape was admitted into

       evidence after A.G. had testified. A comparison of the video interview with

       A.G.’s trial testimony reveals that the video interview did not supply any

       information that the jury had not already heard when A.G. testified. Although

       cumulative and therefore of minimal probative value, the prejudicial effect of

       admitting A.G.’s videotaped interview was not significant in the face of her live

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019   Page 10 of 27
       testimony which was sufficient to justify Aguirre’s convictions. Accordingly,

       we hold that any error in the trial court’s admission of A.G.’s video forensic

       interview was harmless.


                                         II. Sufficiency of the Evidence

[19]   On appeal, Aguirre argues that the State failed to prove beyond a reasonable

       doubt, his convictions for Counts VI through VIII, and Count X.


[20]   When reviewing a claim of insufficient evidence, it is well-established that our

       court does not reweigh evidence or assess the credibility of witnesses. Walker v.

       State, 998 N.E.2d 724, 726 (Ind. 2013). Instead, we consider all the evidence,

       and any reasonable inferences that may be drawn therefrom, in a light most

       favorable to the verdict. Id. We will uphold the conviction “‘if there is

       substantial evidence of probative value supporting each element of the crime

       from which a reasonable trier of fact could have found the defendant guilty

       beyond a reasonable doubt.’” Id. (quoting Davis v. State, 813 N.E.2d 1176, 1178

       (Ind. 2004)).


[21]   Indiana Code section 35-42-4-3 (a) provides, in pertinent part, that


               A person who, with a child under fourteen (14) years of age,
               knowingly or intentionally performs or submits to sexual
               intercourse or other sexual conduct (as defined in [I.C.§] 35-31.5-
               2-221.5) commits child molesting, a Level 3 felony. However,
               the offense is a Level 1 felony if:



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019   Page 11 of 27
               (1) it is committed by a person at least twenty-one (21) years of
               age[.]


[22]   Indiana code section 35-31.5-2-221.5 defines “other sexual conduct as an act

       involving a sex organ of one person and the mouth or anus of another person;

       or the penetration of the sex organ or anus of a person by an object. Indiana

       case law has established that the female sex organ includes the external

       genitalia and that the slightest penetration of the female sex organ constitutes

       child molesting. See, e.g., Short v. State, 564 N.E.2d 553, 559 (Ind. Ct. App.

       1991) (concluding that penetration of the female sex organ includes penetration

       of external genitalia); Stetler v. State, 972 N.E.2d 404, 407-08 (Ind. Ct. App.

       2012) (concluding that touching clitoral hood with finger supported jury’s

       finding that Stetler penetrated the victim’s sex organ), trans. denied.


                                          A. Counts VI through VIII

[23]   For Counts VI through VIII, the State alleged that


               between November 1, 2016[,] and April 8, 2018, [] Aguirre, a
               person of at least twenty-one (21) years of age, did perform other
               sexual conduct as defined in Indiana Code [s]ection 35-31.5-2-
               221.5 with A.G., a child under the age of fourteen (14) years, to-
               wit: six (6) to eight (8) years old, specifically an act that involved
               the penis of [] Aguirre and the genitalia of A.G.


       (Appellant’s App. Vol. II, p. 19). In all three Counts, the State alleged that the

       offenses occurred “at a time separate.” (Appellant’s App. Vol. II, p. 19).


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019   Page 12 of 27
[24]   Aguirre argues that “A.G.’s repeated claims that [he] touched her with his

       private body is not sufficient evidence of sexual intercourse.” (Appellant’s Br.

       p. 14). He continues, “[b]ecause A.G. only described one instance in which

       [he] put his private body in her private body, he should only be convicted of one

       [C]ount of child molesting.” (Appellant’s Br. p. 14). We disagree.


[25]   The record shows that between November 2016 and April 2018, when A.G.

       was seven or eight-years old, Aguirre committed multiple acts of molestation

       upon A.G. during his time alone with her. The molestation occurred in A.G.’s

       room, Mother’s room, and the living room. At trial, A.G. anatomically

       identified the female and male genitalia, and she referred to both as “private

       body.” (Tr. Vol. III, p. 30). Although A.G. made a single allegation that

       Aguirre “touched [his] private body” and then he “put his private body in her

       private body,” A.G. also recalled other sexual conduct as defined by Indiana

       Code section 35-31.5-2-221.5, committed by Aguirre. (Tr. Vol. III, p. 34).

       A.G. stated that Aguirre “made his private body go” into her “mouth” and that

       Aguirre’s “private body” tasted like “[p]ee.” (Tr. Vol. III, p. 32). A.G. further

       stated that Aguirre “licked” her “private body” with his mouth more than “two

       times.” (Tr. Vol. III, p. 42). Moreover, A.G. stated that the molestation events

       that occurred in the three rooms, happened “a lot.” (Tr. Vol. III, p. 36).


[26]   In light of the above, we conclude that the State presented sufficient evidence

       beyond a reasonable doubt to support Aguirre’s Level 1 felony child molesting

       convictions in Counts VI through VIII.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019   Page 13 of 27
                                                    B. Count X

[27]   As for Count X, a Level 1 felony child molesting offense, the State charged

       Aguirre as follows:


               between November 1, 2016[,] and April 8, 2018[,] [] Aguirre, a
               person of at least twenty-one (21) years of age, did perform other
               sexual conduct as defined in Indiana Code [s]ection 35-31.5-2-
               221.5 with A.G., a child under the age of fourteen (14) years, to-
               wit: six (6) to eight (8) years old, specifically an act that involved
               the fingers or hand of [] Aguirre and the genitalia of A.G.


       (Appellant’s App. Vol. II, p. 19). Relying on Adcock v. State, 22 N.E.3d 720,

       728-29 (Ind. Ct. App. 2014), Aguirre argues that while A.G. testified that he

       touched or massaged her vagina several times with his hand, there was no

       evidence of “digital penetration.” (Appellant’s Br. p. 14). Aguirre adds


               even if it could be, A.G. circled the entire female genitalia as her
               “private body.” [] The [State] never asked A.G. what part of her
               private body did Aguirre touch. Thus, A.G.’s testimony is not
               substantial evidence of probative value from which to infer
               beyond a reasonable doubt that Aguirre penetrated her genitalia
               to support a Level 1 felony conviction.


       (Appellant’s Br. p. 15).


[28]   In Adcock, a twenty-year-old witness testified regarding earlier molestations and

       indicated that the abuse escalated to the defendant rubbing his penis against her

       “private area, my vagina”; “[victim] had the capability of describing such


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019   Page 14 of 27
       penetration by Adcock’s penis if it had occurred, but she did not” and there was

       no medical or physical evidence of penetration. Adcock, 22 N.E.3d at 728-29.


[29]   We find the present case sufficiently distinct from Adcock. Unlike the victim in

       Adcock who was twenty-one years old when she testified, A.G. was nine years

       old during Aguirre’s trial. A.G.’s limited ability to understand and differentiate

       between various areas of her genitals is understandable given her young age.

       Moreover, we have held that a conviction for child molesting will be sustained

       when it is apparent from the circumstances and the victim’s limited vocabulary

       that the victim described an act which involved penetration of the sex organ.

       See Short v. State, 564 N.E.2d 553, 558 (Ind. Ct. App. 1991) (holding that it was

       reasonable for the trier of fact to infer from child's testimony that defendant

       touched her “butt” with his “front butt”—when considered in the context of the

       entirety of the evidence and the child's limited vocabulary regarding sex organs

       and sexual matters—that the defendant had touched the child's genitalia with

       his penis, and noting that “[a] conviction for child molesting/sexual intercourse

       will be sustained when it is apparent from the circumstances and the victim's

       limited sexual vocabulary that the victim described an act of sexual

       intercourse”). Also, we note that “[A] detailed anatomical description of

       penetration is unnecessary.” Smith v. State, 779 N.E.2d 111, 115 (Ind. Ct. App.

       2002), trans. denied.


[30]   With her limited vocabulary, A.G. provided a detailed testimony pertaining to

       the allegations in Count X—i.e., Aguirre used his fingers or hand to penetrate
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019   Page 15 of 27
       her genitalia. A.G. clearly unequivocally testified that while she was in

       Mother’s room, Aguirre “touched her private body” with “[h]is hands” and she

       described Aguirre’s touching like a “massage.” (Tr. Vol. III, p. 33). A.G. even

       demonstrated the massage in open court. A.G. added that while on the couch

       in the living room, Aguirre also touched her “private body with his hands.”

       (Tr. Vol. III, p. 36). A.G. testified that while Aguirre was touching her “private

       body” with his hand, he would ask her, “does this feel good, or [do] you want it

       harder.” (Tr. Vol. III, p. 35). Based on A.G.’s testimony, we hold that the jury

       had sufficient evidence beyond a reasonable doubt from which it could

       conclude that Aguirre penetrated A.G.’s sex organ with an object—that is, his

       hand or finger.


                                      III. Abuse of Sentencing Discretion

[31]   Aguirre argues that the trial court abused its discretion by failing to consider his

       failing health as a mitigating factor at his sentencing hearing. Additionally, he

       contends that the trial court abused its discretion in finding him at a high risk to

       reoffend.


[32]   Sentencing decisions “rest within the sound discretion of the trial court and are

       reviewed on appeal only for an abuse of discretion.” Anglemyer v. State, 868

       N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007). “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. (quotations and citation
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019   Page 16 of 27
       omitted). A trial court may abuse its discretion by failing to enter a sentencing

       statement, entering findings of aggravating and mitigating factors unsupported

       by the record, omitting factors clearly supported by the record and advanced for

       consideration, or giving reasons that are improper as a matter of law. Id. at

       490-91. “Under those circumstances, remand for resentencing may be 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.


[33]   Additionally, a trial court is under no obligation “to accept a defendant’s claim

       as to what constitutes a mitigating circumstance.” Weedman v. State, 21 N.E.3d

       873, 893 (Ind. Ct. App. 2014), trans. denied. In fact, “[w]here the trial court

       does not find the existence of a mitigating factor after it has been argued by

       counsel, the trial court is not obligated to explain why it has found that the

       factor does not exist.” Phelps v. State, 969 N.E.2d 1009, 1019 (Ind. Ct. App.

       2012), trans. denied. “A claim that the trial court failed to find a mitigating

       circumstance requires the defendant to establish that the mitigating evidence is

       both significant and clearly supported by the record.” Weedman, 21 N.E.3d at

       893. Ultimately, if we find that the trial court has abused its sentencing

       discretion, our court will remand for resentencing “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.” Anglemyer, 868

       N.E.2d at 491.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019   Page 17 of 27
[34]   At his sentencing hearing, Aguirre presented evidence that in October 2017,

       doctors in Guatemala diagnosed him with a “lesion on the right side of his

       brain.” (Tr. Vol. III, p. 227). Aguirre indicated that he had planned to go back

       to Guatemala for further treatment which was scheduled for September 2018.

       Aguirre’s sister stated that since Aguirre was diagnosed with a lesion in his

       brain, his health has deteriorated with each passing day. Aguirre’s mother

       added that Aguirre suffered from “migraines, shaking in hands, sleep apnea,

       high blood pressure, and lack of oxygen to his brain.” (Tr. Vol. III, p. 213).

       Aguirre’s counsel also indicated that Aguirre could not receive adequate

       treatment for all his health conditions in jail, and that the county jail could not

       permit him to sleep with his “CPAP.” (Appellant’s Br. p. 25, Tr. Vol. III, p.

       227). Aguirre contends that “[d]espite the medical records, his family’s

       assertion, [] the trial court’s knowledge of [his] medication issues [], and his

       attorney’s argument, the trial court did not address [his] health in [its]

       sentencing decision.” (Appellant’s Br. p. 25).


[35]   Notwithstanding Aguirre’s claims to his poor health, the pre-sentence

       investigation (PSI) reveals that Aguirre’s medical history could not be verified,

       and that the only medication he reported taking was a blood pressure

       medication. Since there was no evidence in the record establishing that

       Aguirre’s multiple health problems should be a factor in determining an

       appropriate period of incarceration, or that his medical conditions would be

       untreatable during incarceration, or would render incarceration a hardship, we

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019   Page 18 of 27
       conclude that the trial court did not abuse its discretion in declining to consider

       Aguirre’s health to be a mitigating circumstance.


[36]   Aguirre further contends that the trial court abused its discretion by improperly

       considering the probation department’s risk assessment that he was at a high

       risk to reoffend. The PSI stated that Aguirre “was found to be a low risk to

       reoffend. However, based on the policy of Hamilton County Department of

       Probation Services regarding sex offenses, [Aguirre’s] risk level was overridden

       to high.” (Appellant’s App. Conf. Vol. II, p. 235). In the sentencing order, the

       trial court identified as an aggravating circumstance, among others, that

       Aguirre’s expressions of joy and pleasure during the testimony of A.G.

       indicated that he was at a high risk to reoffend.


[37]   As noted, the trial court allowed A.G.’s video forensic interview to be played

       for the jury during Aguirre’s trial. At sentencing, the trial court stated


               there was testimony concerning the video recording of the child
               during these sexual acts to her. The [c]ourt is concerned that in
               observations from this bench during the trial that [Aguirre’s]
               expressions during the testimony of the little girl showed joy and
               pleasure. So the [c]ourt deems that he would have a high risk of
               doing this again.


       (Tr. Vol. III, p. 236). The trial court was in the best position to judge Aguirre’s

       demeanor at trial, and its reasoning and finding is supported by the record.

       Even if we conclude that the trial court improperly considered Aguirre’s


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019   Page 19 of 27
       demeanor and associated it with his ability to reoffend, this was unduly one of

       the aggravating factors identified by the trial court.


[38]   “When a trial court improperly applies an aggravator, but other valid

       aggravating circumstances exist, a sentence enhancement may still be upheld.”

       Hackett v. State, 716 N.E.2d 1273, 1278 (Ind. 1999). The question is whether we

       are confident the trial court would have imposed the same sentence even if it

       had not found the improper aggravator. Id. In the instant case, the trial court

       found that Aguirre held a position of trust, which he abused when he molested

       A.G. The trial court also considered A.G.’s tender age when she was molested,

       and that Aguirre took steps to avoid detection. Aguirre does not claim that

       these circumstances are improper aggravators. See Edrington v. State, 909

       N.E.2d 1093, 1101 (Ind. Ct. App. 2009) (proper to affirm sentence even if

       improper aggravator is considered, if we have “confidence the trial court would

       have imposed the same sentence” regardless), trans. denied. Based on the

       foregoing, we are confident the trial court would have imposed the same

       sentence even if it had not found the aggravator Aguirre challenges. Therefore,

       we conclude that the trial court did not abuse its discretion at sentencing.


                                           IV. Inappropriate Sentence

[39]   Lastly, Aguirre argues that his aggregate 160-year sentence for his ten Counts of

       Level 1 felony child molesting convictions is inappropriate in light of the nature

       of the offenses and his character.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019   Page 20 of 27
[40]   We may revise a sentence if it is inappropriate in light of the nature of the

       offense and the character of the offender. Ind. Appellate Rule 7(B). The

       defendant has the burden of persuading us that his sentence is inappropriate.

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a

       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). “Appellate Rule 7(B)

       analysis is not to determine whether another sentence is more appropriate but

       rather whether the sentence imposed is inappropriate.” Conley v. State, 972

       N.E.2d 864, 876 (Ind. 2012) (internal quotation marks and citation omitted),

       reh’g denied. Whether a sentence is inappropriate 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.” Cardwell, 895 N.E.2d at

       1224.


[41]   When determining whether a sentence is inappropriate, we acknowledge that

       the advisory sentence “is the starting point the Legislature has selected as an

       appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081.

       For his Level 1 felony child molesting offenses, Aguirre faced a sentencing

       range of twenty to forty years, with the advisory sentence being thirty years.

       I.C. § 35-50-2-4. The trial court sentenced Aguirre to the maximum forty years



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019   Page 21 of 27
       for each of the ten Level 1 felonies, some running concurrently, and others

       consecutive for a total of 160 years executed.


[42]   When exercising our power to review and revise a sentence, we are not required

       to compare a defendant’s sentence with sentences received by other defendants

       in similar cases. Corbally, 5 N.E.3d at 471-72. “However, comparison of

       sentences among those convicted of the same or similar offenses can be a proper

       consideration when deciding whether a particular sentence is inappropriate.”

       Id. at 472. “[A] respectable legal system attempts to impose similar sentences

       on perpetrators committing the same acts who have the same backgrounds.”

       Serino v. State, 798 N.E.2d 852, 854 (Ind. 2003).


[43]   In Tyler v. State, 903 N.E.2d 463, 465 (Ind. 2009), the defendant was convicted

       of two Counts of Class A felony child molesting, two Counts of Class C felony

       child molesting, and one Count of Class D felony vicarious sexual gratification

       for an incident involving five different children. He was sentenced to a total

       term of 110 years, which included an habitual offender enhancement. Id. Our

       supreme court reduced the sentence to a total of sixty-seven and one-half years.

       Id. It based the reduction upon the fact that the defendant did not use force on

       or physically injure the children, that he was not in a position of trust, and he

       had no prior sex offense convictions. Id. at 469.


[44]   In Monroe, Monroe was convicted of five Counts of Class A felony child

       molesting. The trial court sentenced him to twenty-two years on each Count

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019   Page 22 of 27
       with two years suspended to probation and ordered the sentences to be served

       consecutively for an aggregate sentence of 100 years. In considering the nature

       of the offense on appeal, our supreme court noted that Monroe was in a

       position of trust with his victim and molested the child repeatedly for over two

       years. Id. at 580. However, the court also observed that the five Counts were

       identical and involved the same child. Id. Regarding Monroe’s character, the

       court noted that although he had a prior criminal history, all of his convictions

       were driving related, so his criminal history did not justify the imposition of

       consecutive sentences. Id. Based on these facts and circumstances, the supreme

       court concluded that the nature of the offenses and Monroe’s character

       warranted enhanced, but not consecutive, sentences. Id. at 581. The supreme

       court revised Monroe’s sentence to a maximum fifty-year term for each of the

       five Counts but ordered that they be served concurrently. Id.


[45]   In Harris v. State, 897 N.E.2d 927 (Ind. 2008), Harris was convicted of two

       Counts of Class A felony child molesting and sentenced to consecutive fifty-

       year terms. Id. Our supreme court noted that Harris had occupied a position of

       trust with the eleven-year-old victim and had committed multiple uncharged

       acts of sexual misconduct that occurred over a period of time. Id. However, as

       in Monroe, the court observed that the two Counts of child molesting were

       identical and involved sexual intercourse with the same child. Id. Although

       Harris had a prior criminal record, the supreme court emphasized that he had

       no prior sex offenses in his record and concluded that his criminal history was

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019   Page 23 of 27
       not a significant aggravator. Id. at 930. Based on the facts and circumstances

       of the case, the supreme court held that consecutive sentences were not

       warranted and revised Harris’ sentence to two concurrent fifty-year terms. Id.


[46]   The final case we mention for comparison purposes is Pierce v. State, 949 N.E.2d

       349, 351 (Ind. 2011). In that case, the defendant repeatedly molested the ten-

       year-old daughter of his live-in girlfriend over the course of a year. He was

       convicted of three Counts of Class A felony child molesting, one Count of Class

       C felony child molesting, and was found to be a repeat sexual offender based

       upon a prior Class C felony molesting conviction. He received a total sentence

       of 124 years, but our supreme court reduced it to a total of eighty years. Id. at

       353. It acknowledged the defendant’s position of trust over the victim and that

       the offenses occurred repeatedly, but also noted that only one child was

       harmed. Id. It also noted that, aside from the prior molesting conviction that

       formed the basis of the repeat sexual offender enhancement, the defendant had

       no prior criminal history. Id.


[47]   Turning to the nature of Aguirre’s offenses, in a span of two years, Aguirre

       repeatedly molested A.G. who was seven or eight years old at the time.


[48]   As for his character, we note that Aguirre maintained steady employment prior

       to being charged with the instant offenses. Aguirre’s family also attested to his

       positive character traits. Further, we acknowledge Aguirre is an involved father

       in the lives of his two biological daughters from his previous marriage.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019   Page 24 of 27
       Although Aguirre has a criminal history, it is limited: he has one prior arrest in

       Illinois for driving with a suspended license. His PSI report reflects that he has

       two additional pending charges which were committed after the instant

       offenses—i.e., Level 6 felony criminal confinement, and Class A misdemeanor

       intimidation.


[49]   Aguirre claims that he did not use force when he committed the offenses, and

       that A.G. was the only victim. As such, he claims that his consecutive

       sentences are inappropriate in light of the nature of the offenses and his

       character.


[50]   At the time of sentencing, Aguirre was thirty-three years old, and had a

       minimal criminal history, however, his prior convictions were not sex offenses.

       See Monroe, 886 N.E.2d at 580 (finding “six driving related misdemeanor

       offenses” unconnected to the charged molestations was “not substantial” and

       did not justify consecutive sentences). As was the case in Harris and Pierce, the

       ten Counts of child molestation were identical in some respect and involved the

       same child. See also Monroe, 886 N.E.2d at 580 (consecutive sentence of 100

       years for five Counts of child molesting manifestly unreasonable in part because

       all Counts were identical and involved the same child). Further, although

       Aguirre asked A.G. to keep his acts secret, as was the case in Tyler, there was

       no evidence Aguirre used force or threats against A.G. when he committed

       these offenses.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019   Page 25 of 27
[51]   The principle role of review under Rule 7(B) is to attempt to leaven the outliers.

       Merida v. State, 987 N.E.2d 1091, 1092 (Ind. 2013). In the instant case, the trial

       court ordered four consecutive sentences of forty years to four Counts out of the

       ten Counts, for a total executed sentence of 160 years. We are cognizant that

       crimes against children are particularly heinous. See Pierce, 949 N.E.2d at 352.

       Aguirre’s position of trust over A.G. and the fact that there were repeated

       incidents of molestation, are egregious circumstances, but are similar to those in

       Tyler, Harris, Monroe, and Pierce. Indeed, the repeated occurrences and

       Aguirre’s position of trust over A.G. warrant an enhanced sentence.


[52]   In considering the general guidelines enunciated in Merida and other cases

       involving ongoing molesting of a child in a position of trust by a defendant with

       little prior criminal history, we find that ordering some, but not all, of Aguirre’s

       sentences to run consecutive, is warranted. Accordingly, we revise Aguirre’s

       sentence to: concurrent terms for Counts I through IX, but consecutive to

       Count X. Thus, Aguirre’s aggregate sentence is 80 years. See Smith v. State, 889

       N.E.2d 261, 264 (Ind. 2008) (holding that a defendant’s “repeated molestations

       . . . together with his violation of his position of trust [], warrant the sentence on

       one of these counts being imposed consecutive to one of the other counts”).


                                             CONCLUSION
[53]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion by admitting A.G.’s video forensic interview. Also, we hold that the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019   Page 26 of 27
       State presented sufficient evidence beyond a reasonable doubt to convict

       Aguirre of the child molesting offenses which he challenges on appeal. Further,

       we conclude that the trial court did not abuse its discretion at sentencing.

       However, we hold that Aguirre’s 160-year aggregate sentence is inappropriate

       in light of the nature of the offenses and his character. Thus, we remand this

       case to the trial court with instructions to issue an amended sentencing order

       revising Aguirre’s sentence to an aggregate sentence of 80 years.


[54]   Affirmed in part, reversed in part, and remanded with instructions.


[55]   Bailey, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2456 | July 3, 2019   Page 27 of 27
