MEMORANDUM DECISION
                                                                               FILED
Pursuant to Ind. Appellate Rule 65(D),                                    Dec 28 2018, 8:11 am
this Memorandum Decision shall not be
                                                                               CLERK
regarded as precedent or cited before any                                  Indiana Supreme Court
                                                                              Court of Appeals
court except for the purpose of establishing                                    and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Steven E. Ripstra                                       Curtis T. Hill, Jr.
Ripstra Law Office                                      Attorney General of Indiana
Jasper, Indiana
                                                        Monika Prekopa Talbot
                                                        Supervising Deputy Attorney
                                                        General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Roger Salinas,                                          December 28, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1331
        v.                                              Appeal from the Dubois Circuit
                                                        Court
State of Indiana,                                       The Honorable Nathan A.
Appellee-Plaintiff.                                     Verkamp, Judge
                                                        Trial Court Cause No.
                                                        19C01-1607-F1-624



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1331 | December 28, 2018                  Page 1 of 18
                                       Statement of the Case
[1]   Roger Salinas appeals his convictions following a jury trial for four counts of

      rape, one as a Level 1 felony, one as a Level 3 felony, and two as Class B

      felonies; two counts of sexual misconduct with a minor, as Class B felonies; five

      counts of criminal confinement, one as a Level 3 felony, one as a Level 5

      felony, one as a Level 6 felony, and two as Class D felonies; and battery, as a

      Class A misdemeanor. Salinas presents three issues for our review:


              1.      Whether the trial court abused its discretion and violated
                      his right to cross-examine witnesses when it prohibited
                      certain questions regarding his minor victim’s prior sexual
                      history under the Rape Shield Rule.

              2.      Whether all but three of his convictions violate the
                      prohibition against double jeopardy.

              3.      Whether his sentence is inappropriate in light of the nature
                      of the offenses and his character.


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


                                 Facts and Procedural History
[3]   Salinas married S.C. in approximately 2001. S.C. had two young children from

      a prior relationship, including her daughter, S.M., who was born November 16,

      1998. After their marriage, Salinas and S.C. had two sons together. When

      S.M. was fifteen years old, Salinas began touching S.M. in inappropriate ways,

      including touching her “butt.” Tr. Vol. II at 111. And one day between March

      1, 2014, and April 30, 2014, Salinas took S.M. out of school and drove her to

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1331 | December 28, 2018   Page 2 of 18
      an apartment in Jasper. There, Salinas started “touching” S.M. and told her

      that “he wanted to be with [her].” Id. at 112. Salinas then “touched [S.M.’s]

      private area,” told her to take her clothes off, took his clothes off, and told her

      to get on the floor. Id. at 113. Salinas got on top of her and “put his fingers”

      and then his penis into S.M.’s vagina. Id. He stopped after about fifteen or

      twenty minutes. Salinas went to the bathroom, and S.M. began crying. After

      S.M. got her clothes back on, Salinas took her back to school. During the same

      time period in the spring of 2014, also in the middle of a school day, Salinas

      raped S.M. a second time at the same apartment in Jasper.


[4]   From October 1, 2014, through June 1, 2016, Salinas repeatedly forced S.M.

      into the basement of the family home and raped her. On several occasions,

      Salinas threatened S.M. with implements, including a hammer, a knife, and a

      bat. And Salinas once hit S.M. in her abdomen with the bat, and he sometimes

      hit and kicked S.M., leaving bruises. On June 2, 2016, Salinas threatened S.M.

      with a knife, hit her, and forced her to have intercourse.


[5]   On June 14, Salinas forcibly “took S.M. out of the state because he wanted

      [her] to leave with him.” Id. at 156. S.M. did not resist because Salinas had

      previously threatened to hurt her or her family if she did not do what he told

      her to do. Salinas started driving S.M. to Washington, but, after arguing with

      S.C. on the telephone, he returned S.M. home the next day. Upon their return,

      S.C. told Salinas to leave the family home, which he did. Soon thereafter, S.M.

      told S.C. about all of the sexual and physical abuse Salinas had inflicted on her

      over the years. Accordingly, S.C. contacted the Department of Child Services

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1331 | December 28, 2018   Page 3 of 18
      to report the molestations, and, on June 18, S.M. underwent a sexual assault

      examination. That examination did not reveal any physical evidence of the

      alleged rapes or any sexual activity. But the nurse observed bruises on S.M.’s

      arm and leg. In July, S.M. discovered that she was pregnant, and she aborted

      the fetus. DNA analysis of the fetus’ remains revealed that Salinas was the

      father.


[6]   On July 22, the State charged Salinas with fifteen counts, and on February 8,

      2018, the State amended the information and charged Salinas as follows: seven

      counts of rape, two as Level 1 felonies, two as Class B felonies, and three as

      Level 3 felonies (Counts 1-2 and 10-14); two counts of sexual misconduct with

      a minor, as Class B felonies (Counts 3-4); five counts of criminal confinement,

      one as a Level 3 felony, one as a Level 5 felony, one as a Level 6 felony, and

      two as Class D felonies (Counts 5-9); and battery, as a Class A misdemeanor

      (Count 15). Prior to trial, the State filed a motion in limine to bar evidence of

      S.M.’s prior sexual conduct, which the trial court granted. During trial, the

      nurse who had examined S.M. in June 2016 testified, and defense counsel

      wanted to question her about one of her notes stating that S.M. had had a

      consensual sexual encounter in April 2016. Outside the presence of the jury,

      defense counsel questioned the nurse about the note. Defense counsel hoped to

      elicit testimony that S.M. had told the nurse that she had had consensual sex

      with Salinas, but the nurse stated that she did not have enough information to

      answer that question and doubted that the consensual partner was Salinas. The

      State objected to the line of questioning, and the court sustained the objection.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1331 | December 28, 2018   Page 4 of 18
[7]   At the conclusion of trial, the jury found Salinas guilty of all charges but three

      of the rape charges (Counts 10, 12, and 14). At sentencing, the State informed

      the court that the two counts of sexual misconduct with a minor, Counts 3 and

      4, should be “merged” with the two rape counts covering the same dates,

      Counts 1 and 2. Tr. Vol. IV at 94. Nonetheless, the trial court entered

      judgment of conviction as follows: four counts of rape, one as a Level 1 felony,

      one as a Level 3 felony, and two as Class B felonies; two counts of sexual

      misconduct with a minor, as Class B felonies; five counts of criminal

      confinement, one as a Level 3 felony, one as a Level 5 felony, one as a Level 6

      felony, and two as Class D felonies; and battery, as a Class A misdemeanor.

      And the trial court imposed sentence as follows: ten years each for Counts 1

      through 4; one and one-half years each for Counts 5 and 6; nine years for Count

      7; three years for Count 8; one year for Count 9; thirty years for Count 11; nine

      years for Count 13; and one year for Count 15. The trial court stated that,

      “[f]or sentencing purposes, the Court orders Count 3 shall be merged with

      Count 1, and Count 4 shall be merged with Count 2.” Appellant’s App. Vol.

      III at 25. The trial court ordered some of the sentences to run concurrently and

      some to run consecutively for an aggregate term of fifty-two years executed.

      This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1331 | December 28, 2018   Page 5 of 18
                                     Discussion and Decision
                                      Issue One: Rape Shield Rule

[8]   Salinas contends that the trial court abused its discretion when it precluded him

      from questioning S.M. about her prior sexual conduct. As the Indiana Supreme

      Court has stated:


              Generally, a trial court’s ruling on the admission of evidence is
              accorded “a great deal of deference” on appeal. Tynes v. State,
              650 N.E.2d 685, 687 (Ind. 1995). “Because the trial court is best
              able to weigh the evidence and assess witness credibility, we
              review its rulings on admissibility for abuse of discretion” and
              only reverse “if a ruling is ‘clearly against the logic and effect of
              the facts and circumstances and the error affects a party’s
              substantial rights.’” Carpenter v. State, 18 N.E.3d 998, 1001 (Ind.
              2014) (quoting Clark v. State, 994 N.E.2d 252, 260 (Ind.2013)).


      Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015). But a trial court’s interpretation of

      a Rule of Evidence or a statute presents an issue of law that we review de novo.

      See Tyler v. State, 903 N.E.2d 463, 467 n.4 (Ind. 2009).


[9]   Indiana Evidence Rule 412, the Rape Shield Rule, incorporates the basic

      principles of Indiana Code Section 35-37-4-4 (2015), Indiana’s Rape Shield Act,

      and provides in relevant part as follows:


              (a) Prohibited Uses. The following evidence is not admissible in a
              civil or criminal proceeding involving alleged sexual misconduct:

                      (1) evidence offered to prove that a victim or witness
                      engaged in other sexual behavior; or



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1331 | December 28, 2018   Page 6 of 18
                       (2) evidence offered to prove a victim’s or witness’s
                       sexual predisposition.

               (b) Exceptions.

                       (1) Criminal Cases. The court may admit the
                       following evidence in a criminal case:

                                (A) evidence of specific instances of a
                                victim’s or witness’s sexual behavior, if
                                offered to prove that someone other
                                than the defendant was the source of
                                semen, injury, or other physical
                                evidence;

                                (B) evidence of specific instances of a
                                victim’s or witness’s sexual behavior
                                with respect to the person accused of the
                                sexual misconduct, if offered by the
                                defendant to prove consent or if offered
                                by the prosecutor; and

                                (C) evidence whose exclusion would
                                violate the defendant’s constitutional
                                rights.


[10]   On appeal, Salinas appears to suggest that, under Evidence Rule 412(b)(1)(B),

       he should have been permitted to question S.M. about her single episode of

       consensual sex with an unknown partner in approximately April 2016. Salinas

       maintains that S.M.’s “admitted history was relevant to the elements of consent

       and confinement” and that he “should have been allowed to question [S.M.]

       about her admission.” Appellant’s Br. at 26. However, Salinas did not make



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1331 | December 28, 2018   Page 7 of 18
       an offer of proof to show that S.M. would have testified that she had had

       consensual sex with Salinas.


[11]   An offer of proof allows the trial and appellate courts to determine the

       admissibility of the testimony and the potential for prejudice if it is excluded.

       Barnett v. State, 916 N.E.2d 280, 287 (Ind. Ct. App. 2009), trans. denied. “‘It is

       well settled that an offer of proof is required to preserve an error in the

       exclusion of a witness’ testimony.’” Id. (quoting Dowdell v. State, 720 N.E.2d

       1146, 1150 (Ind. 1999)). Accordingly, Salinas has waived review of this issue

       on appeal. See, e.g., id.


[12]   To the extent Salinas contends that he should have been allowed to question

       Sharon Livingston, the sexual assault nurse examiner (“SANE”), about S.M.’s

       history of consensual sex, he did make an offer of proof. But, in the offer of

       proof, Salinas asked Livingston whether S.M. had told her that she had had

       consensual sex with Salinas in April 2016. Livingston replied, “I honestly don’t

       think that that is what she—I can’t answer that with certainty at all. I really

       can’t.” Tr. Vol. III at 13. On redirect examination, Livingston clarified that

       she “believe[d]” that S.M. had had consensual sex with someone other than

       Salinas in approximately April 2016. Id. at 14. Accordingly, Salinas cannot




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1331 | December 28, 2018   Page 8 of 18
       show that the trial court abused its discretion when it excluded this line of

       questioning of Livingston at trial.1


[13]   Finally, to the extent Salinas contends that exclusion of the evidence of S.M.’s

       prior sexual history violated his right to confront witnesses under both the state

       and federal constitutions, which is an exception to the Rape Shield Rule under

       Evidence Rule 412(b)(1)(C), his contention is, again, without merit. In

       particular, Salinas asserts that,


                without permitting Salinas to introduce exculpatory evidence—
                that S.M. had engaged in consensual sex during the relevant
                periods charged in the Information—the only reasonable
                inference that the jury could have drawn from the evidence
                presented was that Salinas was the perpetrator in every Count
                and that S.M.’s accusations were true, because reasonable jurors
                would not think it typical that a young teenager was sexually
                active, after undergoing the trauma inflicted by her stepfather.


       Appellant’s Br. at 33-34. In support of this contention, Salinas cites to this

       court’s opinions in Davis v. State, 749 N.E.2d 552 (Ind. Ct. App. 2001), trans.

       denied, and Steward v. State, 636 N.E.2d 143 (Ind. Ct. App. 1994), aff’d, 652

       N.E.2d 490 (Ind. 1995).




       1
         We note that Salinas asserts that S.M.’s self-reported incident of consensual sex occurred “within the range
       of Counts 7, 8, 11, and 15.” Appellant’s Br. at 31. But the offenses underlying Counts 7, 8, and 11 took
       place in June 2016, and the one instance of consensual sex reported by S.M. occurred two months prior to
       the June 18, 2016, examination, or in approximately April 2016. Further, the offense underlying Count 15,
       which occurred between November 16, 2015, and June 1, 2016, was a battery, and Salinas does not explain
       how S.M.’s consensual sexual activity would be relevant to that offense.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1331 | December 28, 2018                 Page 9 of 18
[14]   In Steward, we observed that application of the Rape Shield Statute “‘complies

       with the dictates of the Confrontation and Due Process Clauses only if it does

       not actually impinge upon [the defendant’s right to] cross-examination.’” 636

       N.E.2d at 148 (quoting Saylor v. State, 559 N.E.2d 332, 335. (Ind. Ct. App.

       1990)). Thus, the trial court’s exclusion of evidence must not prevent the

       defendant from conducting a full, adequate, and effective cross-examination.

       Id.


[15]   But our holdings in Davis and Steward, that the trial courts violated the

       defendants’ right to cross-examine witnesses, are inapposite here. In Steward,

       we addressed the risk of mistaken identification of a child molester through

       “partial corroboration.” 636 N.E.2d at 149 (quoting Saylor, 559 N.E.2d at 334).

       “In partial corroboration, once there is evidence that sexual contact did occur,

       the witness’s credibility is automatically ‘bolstered.’” Id. (quoting Tague v.

       Richards, 3 F.3d 1133, 1138 (7th Cir. 1993)). “This bolstering evidence invites

       the inference that because the victim was accurate in stating that sexual contact

       occurred, the victim must be accurate in stating that the defendant was the

       perpetrator.” Id. Therefore, in such cases, the defendant must be allowed to

       rebut this inference by adducing evidence that another person was the

       perpetrator. See id.


[16]   In Steward,


               the State introduced expert testimony that [the victim’s] behavior
               was consistent with that of other victims of child sexual abuse
               syndrome. More importantly, the State produced evidence that

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1331 | December 28, 2018   Page 10 of 18
               [the victim’s] manifestations of child sexual abuse syndrome
               improved once she reported that Steward had molested her and
               that a victim of child sexual abuse often improves after
               identifying the molester.


       636 N.E.2d at 149-50. And in Davis,


               the State commented on L.P.’s prior sexual activity in its opening
               statement. L.P.’s grandmother testified that the doctor informed
               her on the night of the examination that L.P. had been sexually
               active. During the offer of proof, L.P. admitted having sex with
               another individual sometime in 1996. She acknowledged that
               this incident occurred before the hospital examination had been
               performed. Thus, while L.P. accused Davis of having sex with
               her, the jury was precluded from hearing that L.P. was having
               sex with others at age twelve. Such exclusion unfairly bolstered
               her testimony, inasmuch as the inference arises that, because L.P.
               was accurate in stating that sexual contact had occurred, as
               disclosed by the physical examination, she also must have been
               accurate in stating that Davis was the perpetrator of the charged
               offenses.


       749 N.E.2d at 555-56.


[17]   In contrast, here, Salinas does not direct us to any evidence presented at trial

       that “unfairly bolstered” S.M.’s testimony. Id. He does not contend that the

       State presented evidence of S.M.’s psychological condition to prove that the

       rapes had occurred. And, further, S.M. was seventeen years old when she had

       consensual sex with an unknown person in April 2016. Unlike the victim in

       Davis, who was sexually active at twelve years old, there is nothing unusual

       about a seventeen-year-old being conversant in details about sexual activity.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1331 | December 28, 2018   Page 11 of 18
       Salinas’ bare assertion that S.M.’s testimony was bolstered by partial

       corroboration is entirely unsupported and without merit. We hold that the trial

       court did not violate Salinas’ right to confront witnesses under either the state

       or federal constitution.


                                       Issue Two: Double Jeopardy

[18]   Salinas next contends that all but three of his convictions violate his right to be

       free from double jeopardy under Indiana law. Article 1, Section 14 of the

       Indiana Constitution provides that “[n]o person shall be put in jeopardy twice

       for the same offense.” Our Supreme Court has interpreted that clause to

       prohibit multiple convictions based on the same “actual evidence used to

       convict.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). To determine the

       actual evidence used to establish a conviction, we look to the “evidentiary

       facts” as they relate to “all” of the elements of both offenses. Spivey v. State, 761

       N.E.2d 831, 833 (Ind. 2002). In other words, the actual evidence test requires

       “the evidentiary footprint for all the elements required to prove one offense” to

       be “the same evidentiary footprint as that required to prove all the elements of

       another offense.” Thrash v. State, 88 N.E.3d 198, 208 (Ind. Ct. App. 2017)

       (quoting Berg v. State, 45 N.E.3d 506, 510 (Ind. Ct. App. 2015)).


[19]   The Indiana Supreme Court has also “long adhered to a series of rules of

       statutory construction and common law that are often described as double

       jeopardy[] but are not governed by the constitutional test set forth in

       Richardson.” Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002) (quotation

       marks omitted). One such rule prohibits “[c]onviction and punishment for a
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1331 | December 28, 2018   Page 12 of 18
       crime which consists of the very same act as another crime for which the

       defendant has been convicted and punished.” Id. In Taylor v. State, we

       acknowledged that the “very same act test” is different than the actual evidence

       test, and we held that the very same act test applies when the defendant’s

       “behavior” underlying one offense is “coextensive with the

       behavior . . . necessary to establish an element of” another offense. 101 N.E.3d

       865, 972 (Ind. Ct. App. 2018).


[20]   We first address Salinas’ two convictions for sexual misconduct with a minor,

       as Class B felonies, under Counts 3 and 4. The State concedes that those

       convictions are “duplicates” of the rape convictions under Counts 1 and 2, in

       that the exact same acts alleged to constitute two instances of sexual

       misconduct with a minor were also alleged to constitute two instances of rape.

       Appellee’s Br. at 16; see Taylor, 101 N.E.3d 865 at 972. Indeed, in an attempt to

       avoid violating double jeopardy principles, the trial court “merged” the

       convictions for Counts 3 and 4 with Counts 1 and 2, respectively, “[f]or

       sentencing purposes.” Appellant’s App. Vol. II at 25. But it is well settled that,

       where, as here, a trial court enters judgment of conviction on a guilty verdict,

       “simply merging the offenses is insufficient [to avoid a double jeopardy

       violation] and vacation of the offense is required.” Kovats v. State, 982 N.E.2d

       409, 415 (Ind. Ct. App. 2013). Accordingly, we reverse and remand with

       instructions to vacate Salinas’ convictions under Counts 3 and 4 for sexual

       misconduct with a minor.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1331 | December 28, 2018   Page 13 of 18
[21]   Next, Salinas contends that his convictions under Counts 1 and 2 violate double

       jeopardy because there is no evidence that he raped S.M. during the applicable

       time period other than one time, on April 7, 2014. But Salinas ignores S.M.’s

       unequivocal testimony that Salinas raped her on two separate days during the

       time period of March 1, 2014, to April 30, 2014. Salinas’ contention is without

       merit.


[22]   Salinas also suggests that his convictions under Counts 5 and 6, which alleged

       criminal confinement of S.M. on two occasions between March 1, 2014, and

       April 30, 2014, violate double jeopardy principles. Salinas avers that

       “[c]ompelling S.M. to submit ‘by force or imminent threat of force’ [relevant to

       his rape convictions for that date range] is the same as Confinement’s

       ‘nonconsensual substantial interference with [S.M.]’s liberty.’” Appellant’s Br.

       at 24. But, as the State correctly points out, “[a]ny confinement of a victim

       beyond that inherent in the force used to effectuate [a] rape constitutes a

       violation of the confinement statute apart from the violation inherent in the

       offense of forcible rape.” Parks v. State, 734 N.E.2d 694, 701 (Ind. Ct. App.

       2000), trans. denied. S.M. testified that Salinas took her to the apartment in

       Jasper against her will and kept her there against her will. Because the evidence

       shows that Salinas confined S.M. beyond that inherent in the force used to rape

       her, Salinas cannot show a double jeopardy violation on this ground. See id.

       For the same reasons, Salinas’ contention that Counts 7 (criminal confinement)

       and 11 (rape) violate double jeopardy is without merit.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1331 | December 28, 2018   Page 14 of 18
[23]   Salinas next contends that his convictions under Counts 11 (rape) and 15

       (battery) cannot stand because the battery is a lesser included offense of the

       rape. However, as the State correctly points out, the evidence shows that the

       rape in Count 11 occurred on June 2, 2016, and the battery in Count 15

       occurred between November 16, 2015, and June 1, 2016. There is no double

       jeopardy violation.


[24]   Finally, Salinas makes a bare contention that his conviction under Count 13

       (rape) cannot stand because “[t]here is no evidence in the record supporting a

       rape during the charged time period [October 1, 2014, and November 15,

       2015].” Appellant’s Br. at 26. Thus, he asserts, without citation to authority,

       that “this further subjects [him] to prosecution for other rape allegations that

       may fall within this range.” Id. But Salinas ignores S.M.’s testimony that

       Salinas penetrated her anus with his penis during the relevant date range.

       Salinas’ contention is without merit.


                                            Issue Three: Sentence

[25]   Finally, Salinas contends that his sentence is “unreasonable.” Appellant’s Br.

       at 34. As the State points out, Salinas sets out the standard of review applicable

       to an abuse of discretion in sentencing, but he makes no cogent argument in

       support of an abuse of discretion. Rather, Salinas appears to argue that his

       sentence is inappropriate under Indiana Appellate Rule 7(B), which provides

       that “[t]he Court may 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
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1331 | December 28, 2018   Page 15 of 18
       offender.” This court has recently held that “[t]he advisory sentence is the

       starting point the legislature has selected as an appropriate sentence for the

       crime committed.” Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017).

       And the Indiana Supreme Court has recently explained that:


               The principal role of appellate review should be to attempt to
               leaven the outliers . . . but not achieve a perceived “correct”
               result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
               2008). Defendant has the burden to persuade us that the
               sentence imposed by the trial court is inappropriate. [Anglemyer,
               868 N.E.2d at 494].


       Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).


[26]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment “should

       receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we

       regard a sentence as inappropriate at the end of the day turns on “our sense of

       the culpability of the defendant, the severity of the crime, the damage done to

       others, and myriad other facts that come to light in a given case.” Id. at 1224.

       The question is not whether another sentence is more appropriate, but rather

       whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,

       268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless

       overcome by compelling evidence portraying in a positive light the nature of the

       offense (such as accompanied by restraint, regard, and lack of brutality) and the

       defendant’s character (such as substantial virtuous traits or persistent examples

       of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1331 | December 28, 2018   Page 16 of 18
[27]   With respect to the nature of the offenses, Salinas maintains that, “[t]he

       multiple charges, though heinous, do not allege facts in excess of those

       necessary to prove the crimes; nor does the evidence contain extraordinary

       circumstances beyond the number of charges.” Appellant’s Br. at 41. And with

       respect to his character, Salinas emphasizes his lack of a criminal history, his

       religious faith, and his history of “be[ing] good to and with his family.” Id. at

       39.


[28]   We cannot say that Salinas’ aggregate sentence of fifty-two years executed is

       inappropriate in light of the nature of the offenses and his character. Salinas, a

       father-figure to S.M. since she was a small child, brutally raped and/or beat her

       repeatedly over the course of two years, kidnapped her and left the state, and

       impregnated her. As for his character, Salinas’ gross abuse of his position of

       trust with S.M., without more, supports his sentence. We decline Salinas’

       invitation to revise his sentence.


                                                   Conclusion

[29]   The trial court did not abuse its discretion or violate Salinas’ right to confront

       witnesses when it prohibited him from questioning either S.M. or Livingston

       regarding S.M.’s prior sexual history. Two of Salinas’ convictions violate the

       prohibition against double jeopardy, so we remand with instructions to the trial

       court to vacate his convictions on Counts 3 and 4 for sexual misconduct with a

       minor. And Salinas’ sentence is not inappropriate in light of the nature of the

       offenses or his character.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1331 | December 28, 2018   Page 17 of 18
[30]   Affirmed in part, reversed in part, and remanded with instructions.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1331 | December 28, 2018   Page 18 of 18
