      MEMORANDUM DECISION
                                                                       Sep 02 2015, 8:40 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Michael R. Cochren                                       Gregory F. Zoeller
      Reeves, Cochren & Moon                                   Attorney General of Indiana
      Princeton, Indiana
                                                               James B. Martin
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Ryan Nieves,                                             September 2, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               26A04-1501-CR-46
              v.                                               Appeal from the Gibson Superior
                                                               Court
                                                               The Honorable Earl G. Penrod,
      State of Indiana,                                        Judge
      Appellee-Plaintiff                                       Trial Court Cause No.
                                                               26D01-1403-FA-2




      Robb, Judge.



                                Case Summary and Issues
[1]   Following a jury trial, Ryan Nieves was found guilty of eight counts of child

      molesting, all Class A felonies, and one count of child molesting, a Class C


      Court of Appeals of Indiana | Memorandum Decision 26A04-1501-CR-46 | September 2, 2015   Page 1 of 12
      felony. He raises three issues for our review, which we restate as: 1) whether

      the evidence sustains his convictions; 2) whether Nieves was prejudiced by the

      State’s leading questions; and 3) whether the trial court abused its discretion

      when it sentenced Nieves to consecutive sentences. Concluding that the State

      produced sufficient evidence of Nieves’s guilt, the trial court properly allowed

      the State to lead its witnesses, and the trial court acted within its discretion

      when it sentenced Nieves, we affirm.



                            Facts and Procedural History
[2]   Jessie is the mother of three daughters: M.S., age seven; J.S., age six; and E.M.,

      age four. Jessie married Nieves in October 2012. M.S. and J.S. lived with

      Jessie and Nieves in a trailer in Patoka. Early in 2013, the Department of Child

      Services removed M.S. and J.S. from the home and placed them with their

      maternal grandmother. In September 2013, the girls were returned to the home

      that Jessie continued to share with Nieves. E.M., who lived with her father,

      spent every other weekend with Jessie, Nieves, M.S., and J.S.


[3]   Jessie took muscle relaxants, anti-inflammatory medication, and anti-

      depressants. These medications made Jessie drowsy to the extent that she

      sometimes slept up to eighteen hours a day. Jessie was a very sound sleeper.

      When Jessie was asleep, Nieves cared for the girls. During the fall of 2013,

      M.S. began to hold her feces until she lost control and became incontinent. She

      would also vomit. During the same period, J.S. began “humping” her stuffed



      Court of Appeals of Indiana | Memorandum Decision 26A04-1501-CR-46 | September 2, 2015   Page 2 of 12
      animals. E.M. began to wet herself upon returning from her visits to Jessie and

      Nieves’s house. No medical reasons were found for these issues.


[4]   On December 18, 2013, a seventeen-year-old friend of Jessie’s who was taking a

      nap at the trailer awoke to find Nieves had placed one of his hands inside her

      pants and his other hand on his penis. The friend fled but later informed Jessie

      about what had occurred. Jessie became irate and later that day confronted

      Nieves about it. M.S. and J.S. were in the trailer on the couch and could hear

      the confrontation. When Jessie sat down with the girls, M.S. disclosed that

      Nieves had been sexually molesting her and J.S. Jessie left the home with M.S.

      and J.S. and reported Nieves to the authorities. Subsequently, E.M. also

      reported that Nieves had sexually molested her.


[5]   The State charged Nieves with three counts of child molesting as a Class A

      felony and one count of child molesting as a Class C felony for his crimes

      against M.S. The State also charged Nieves with three counts of Class A felony

      child molesting for his crimes against J.S. and with two counts of Class A

      felony child molesting for his crimes against E.M.


[6]   At trial, M.S., J.S., and E.M. testified to acts of sexual intercourse, deviate

      sexual conduct,1 and fondling by Nieves. The girls also related that Jessie was

      sometimes in the room when the offenses occurred. Other facts revealed at trial

      were that M.S. saw Nieves subject J.S. and E.M. to sexual intercourse and



      1
          Now “other sexual conduct.” Ind. Code § 35-31.5-2-221.5 (eff. July 1, 2014).


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      deviate sexual conduct. J.S. saw Nieves subject M.S. to the same acts. These

      acts occurred on more than one occasion. J.S. stated that the crimes always

      happened when the girls were living with their mother and Nieves in the trailer.

      E.M. stated that Nieves’s offenses against her occurred when she was visiting at

      her mom’s house.


[7]   All three victims had difficulty testifying. Defense counsel objected several

      times during trial that the State was leading its witnesses. In ruling on one such

      objection, the trial court admonished the prosecutor to “[b]e careful.”

      Transcript Vol. I at 156.2 The trial court explained to the jury that

              [w]e’re trying to make certain this the [sic] witness is able to
              communicate. Ladies and gentlemen, this should be done for any
              witness who is not able to verbalize. It wouldn’t merely be a child, but
              we have to make certain that it is the witness’s evidence and
              testimony. So we’re trying to be very cautious here. I’m not trying to
              be unduly difficult here, but we do have to make certain it isn’t simply
              the witness mimicking what the attorney may say.
      Id.


[8]   The jury found Nieves guilty on all counts. At sentencing, the trial court found

      the nature of the offenses - which were a pattern of conduct and not an isolated

      incident - Nieves’s lengthy criminal history, his abuse of his position of trust

      with the victims, and the extreme youth of the girls to be aggravating factors.




      2
        Indiana Appellate Rule 28(A)(2) provides that the “pages of the Transcript shall be numbered consecutively
      regardless of the number of volumes the Transcript requires.” Because the Transcript in this matter was not
      correctly paginated, we refer to the separate volumes of the trial transcript.

      Court of Appeals of Indiana | Memorandum Decision 26A04-1501-CR-46 | September 2, 2015          Page 4 of 12
      The trial court found Nieves’s difficult childhood to be a mitigating

      circumstance. The trial court imposed thirty-year sentences for each Class A

      felony conviction and a four-year sentence for the Class C felony. The trial

      court ordered one Class A felony sentence as to each of the three victims to be

      served consecutively to each other and the remainder to be served concurrently,

      resulting in an aggregate sentence of ninety years. The trial court stated that it

      was imposing consecutive sentences in Nieves’s case in recognition of each

      “separate victim.” Sentencing Transcript at 34. Nieves now appeals.

      Additional facts will be added as necessary.



                                 Discussion and Decision
                                   I. Sufficiency of Evidence
                                      A. Standard of Review
[9]   “When reviewing the sufficiency of the evidence to support a conviction, we

      consider only the probative evidence and reasonable inferences supporting the

      verdict.” Oster v. State, 992 N.E.2d 871, 875 (Ind. Ct. App. 2013), trans. denied.

      We will not reweigh evidence or assess credibility of the witnesses. Glenn v.

      State, 999 N.E.2d 859, 861 (Ind. Ct. App. 2013). We will affirm unless no

      reasonable fact-finder could find the elements of the offense proven beyond a

      reasonable doubt. Id.




      Court of Appeals of Indiana | Memorandum Decision 26A04-1501-CR-46 | September 2, 2015   Page 5 of 12
                                       B. Incredible Dubiosity
[10]   M.S., J.S., and E.M. testified at trial and described acts constituting the charged

       offenses. The testimony of these victims, in and of itself, is sufficient to sustain

       Nieves’s convictions. See Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). Yet,

       Nieves contends that the girls’ testimony is subject to the “incredible dubiosity”

       rule. The rule provides that

               [i]f a sole witness presents inherently improbable testimony and there
               is a complete lack of circumstantial evidence, a defendant’s conviction
               may be reversed. This is appropriate only where the court has
               confronted inherently improbable testimony or coerced, equivocal,
               wholly uncorroborated testimony of incredible dubiosity. Application
               of this rule is rare and the standard to be applied is whether the
               testimony is so incredibly dubious or inherently improbable that no
               reasonable person could believe it.
       Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007) (quotation omitted).


[11]   Contrary to Nieves’s arguments on appeal, the rule does not apply here for a

       number of reasons. Each girl’s testimony was corroborated by one of the other

       girls, so their testimony was not “wholly uncorroborated” as the rule requires.

       Id. In addition, the fact that none of the girls had physical injury does not

       render their testimony improbable. The physician who performed the girls’

       post-disclosure physical examinations explained that finding injuries in such

       cases is extremely rare, regardless of the size of a man’s penis. Furthermore,

       although it may be shocking, there is nothing inherently improbable about the

       girls’ testimony that their mother was sometimes in the room while the offenses

       occurred. The girls’ testimony was not incredibly dubious.


       Court of Appeals of Indiana | Memorandum Decision 26A04-1501-CR-46 | September 2, 2015   Page 6 of 12
                                                  C. Venue
[12]   Nieves also claims that the State failed to produce evidence that the offenses

       occurred in Gibson County. However, Nieves did not object on this basis at

       trial. We agree with the State that Nieves did not preserve this claim properly

       for our review. See Floyd v. State, 503 N.E.2d 390, 393 (Ind. 1987) (noting the

       court has held many times that a defendant waives error relating to venue when

       he fails to object at trial). Waiver notwithstanding, we will address his claim

       because of our preference for deciding issues on the merits. Collins v. State, 639

       N.E.2d 653, 655 n.3 (Ind. Ct. App. 1994), trans. denied.


[13]   Venue must be proven by a preponderance of the evidence, and it may be

       proven by circumstantial evidence. Buzzard v. State, 669 N.E.2d 996, 997 (Ind.

       Ct. App. 1996). We review the sufficiency of the evidence supporting venue

       under the same standard as any other sufficiency claim. See Weiss v. State, 735

       N.E.2d 1194, 1196 (Ind. Ct. App. 2000), trans. denied. We consider only the

       evidence and inferences that support the fact-finder’s determination, and we do

       not reweigh the evidence or reassess the credibility of witnesses. Id.


[14]   The evidence presented at trial was that when M.S. and J.S. came back from

       their grandmother’s home to live with Jessie full-time, they lived in the trailer in

       Patoka. Jessie’s mother supplied a street address in Patoka for the trailer.

       Nieves lived there with Jessie until the girls’ disclosure of the offenses. J.S.

       testified that the offenses occurred in the trailer when she was living with Jessie

       and M.S. M.S.’s testimony was that the offenses occurred in the bedroom and


       Court of Appeals of Indiana | Memorandum Decision 26A04-1501-CR-46 | September 2, 2015   Page 7 of 12
       living room when she was living with Jessie. The offenses against E.M.

       occurred when she visited M.S. and J.S. at Jessie’s trailer. In addition, the

       Gibson County Sheriff’s Department investigated the offenses. This evidence

       was sufficient to establish that the offenses took place in Patoka, Gibson

       County. See Mitchell v. State, 644 N.E.2d 102, 104 (Ind. 1994) (holding venue

       established upon showing that the crime occurred in a certain housing complex

       on the outskirts of Lafayette); see also Currin v. State, 497 N.E.2d 1045, 1048

       (Ind. 1986) (holding venue proven where crime took place at a certain street

       address and was investigated by Marion County officials).


                            II. Leading Questions by the State
                                       A. Standard of Review
[15]   The trial court is afforded wide discretion in determining whether to permit the

       use of leading questions. Riehle v. State, 823 N.E.2d 287, 294 (Ind. Ct. App.

       2005), trans. denied. This court will reverse only for an abuse of that discretion.

       Id. In order to obtain a reversal, it must be shown that the defendant sustained

       “substantial injury” from the answers to the leading questions. Corbin v. State,

       563 N.E.2d 86, 93 (Ind. 1990).


                               B. Questioning of Child Victims
[16]   Nieves claims that “at various times” the trial court permitted the State to lead

       its witnesses, which “was prejudicial to the Defendant in that the testimony was




       Court of Appeals of Indiana | Memorandum Decision 26A04-1501-CR-46 | September 2, 2015   Page 8 of 12
       directed by the [S]tate which was allowed to occur.”3 Appellant’s Brief at 9.

       The use of leading questions on direct examination is generally prohibited

       except where it is necessary to develop a witness’s testimony. See Ind. Evidence

       Rule 611(c). Young, inexperienced, or frightened witnesses may be led in order

       to develop their testimony. Riehle, 823 N.E.2d at 294. “The use of leading

       questions is limited in order to prevent the substitution of the attorneys [sic]

       language for the thoughts of the witness as to material facts in dispute.” Id.


[17]   Nieves directs our attention to two examples in the record of the State leading

       its witnesses. One occurred during the State’s examination of Jessie, the other

       during its questioning of M.S. In both instances, the trial court explicitly or

       implicitly sustained Nieves’s objection to the leading questions. Upon Nieves’s

       second objection, the trial court explained to the jury what a leading question

       was and why it was important to avoid excessive leading. On appeal, Nieves’s

       claim of prejudice is not specific, and he does not explain why the trial court’s

       explanation to the jury about leading questions was insufficient to cure any

       prejudice flowing to him. Therefore, Nieves has failed to meet his burden of

       persuasion on appeal. See Corbin, 563 N.E.2d at 93.




       3
         In his Statement of the Issues and Summary of the Argument, Nieves references a motion to correct error
       that he contends the trial court erred in denying. A copy of that motion is not part of the record on appeal,
       and Nieves failed to develop any argument with citations to the record or legal authority in support of his
       argument. Nieves has, therefore, waived any argument based upon his motion to correct error. Ind.
       Appellate Rule 46(A)(8)(a); Dickes v. Felger, 981 N.E.2d 559, 562 (Ind. Ct. App. 2012) (“A party waives an
       issue where the party fails to develop a cogent argument or provide adequate citation to authority and
       portions of the record.”).

       Court of Appeals of Indiana | Memorandum Decision 26A04-1501-CR-46 | September 2, 2015             Page 9 of 12
[18]   Our review of the record indicates that the girls, who were eight, seven, and five

       years old by the time of trial, had difficulty testifying. This was particularly true

       of M.S. Although the girls had visited the courtroom with the prosecutor and

       had gone through practice questions, there is no indication in the record that

       they were experienced witnesses. In any case, defense counsel questioned the

       girls at length about their trial preparation with the prosecutor, so the jury was

       aware of it when assessing the girls’ credibility. Under these circumstances, the

       trial court acted within its discretion when it allowed the State to lead its

       witnesses, and Nieves has failed to persuade us that he suffered substantial

       injury thereby.


                                               III. Sentencing
                                         A. Standard of Review
[19]   Except for the power of this court to review and revise sentences pursuant to

       Indiana Appellate Rule 7(B),4 “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. An abuse of discretion has occurred if a trial court’s




       4
         Nieves argues that the consecutive sentences imposed by the trial court are “excessive in nature.”
       Appellant’s Br. at 10. Indiana Appellate Rule 7(B) provides us with authority to review and revise sentences
       that are inappropriate given the nature of the offense and the character of the offender. The burden to
       persuade us that a sentence is inappropriate rests with the defendant. Anglemyer, 868 N.E.2d at 494. To the
       extent Nieves requests us to review his sentence pursuant to Rule 7(B), he offers no argument regarding his
       character. His argument regarding the nature of his offenses, namely that they were a one-time occurrence, is
       squarely rebutted by his victims’ testimony. Nieves has not met his burden of persuasion on appeal. 868
       N.E.2d at 494.

       Court of Appeals of Indiana | Memorandum Decision 26A04-1501-CR-46 | September 2, 2015         Page 10 of 12
       sentence 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. (quotation omitted).


                                      B. Consecutive Sentences
[20]   The trial court sentenced Nieves to advisory thirty-year sentences for each of his

       Class A felony convictions and to an advisory four-year sentence for his Class C

       felony conviction. See Ind. Code §§ 35-50-2-4(a); 35-50-2-6(a). The trial court

       ordered one Class A felony as to each of the three victims to be served

       consecutively to each other with the remainder to be concurrent, resulting in an

       aggregate sentence of ninety years. Nieves maintains that the trial court’s

       sentence is contrary to law because the evidence indicated that his criminal acts

       all took place during a single occurrence. Without directly stating as much,

       Nieves seems to base his argument on Indiana Code section 35-50-1-2(c), which

       limits the total of the consecutive terms a trial court may impose if a defendant’s

       convictions arise out of a single episode of criminal conduct. However, as

       noted by the State, the statute explicitly excludes “crimes of violence” from its

       application. Id. Child molesting is a “crime of violence” for purposes of the

       statute. Ind. Code § 35-50-1-2(a)(10). What is more, the factual basis of

       Nieves’s argument is incorrect, as his victims testified that the molesting

       occurred “a lot,” tr. Vol. I at 117, and “more than once,” tr. Vol. I at 151.


[21]   A trial court may impose consecutive sentences based on one aggravating

       factor. See Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014), trans. denied.


       Court of Appeals of Indiana | Memorandum Decision 26A04-1501-CR-46 | September 2, 2015   Page 11 of 12
       Harm to multiple victims is a valid aggravating circumstance supporting

       consecutive sentences. French v. State, 839 N.E.2d 196, 197 (Ind. Ct. App.

       2005), trans. denied. Here, the trial court explained in its sentencing statement

       that it was imposing consecutive sentences in recognition of the three separate

       victims. The trial court did not abuse its discretion when sentencing Nieves.



                                               Conclusion
[22]   Sufficient evidence supports Nieves’s convictions, and the trial court did not

       abuse its discretion when it allowed the State to pose leading questions or when

       it imposed consecutive sentences. Nieves’s convictions and sentence are

       affirmed.


[23]   Affirmed.


       Vaidik, C.J., and Pyle, J., concur.




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