MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                       FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                          Jun 21 2017, 8:32 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald E.C. Leicht                                       Curtis T. Hill, Jr.
Kokomo, Indiana                                          Attorney General of Indiana
                                                         Laura Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jesse Cantu,                                             June 21, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         34A05-1701-CR-94
        v.                                               Appeal from the Howard Circuit
                                                         Court
State of Indiana,                                        The Honorable Lynn Murray,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         34C01-1510-F3-168



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A05-1701-CR-94 | June 21, 2017         Page 1 of 6
[1]   Jesse Cantu appeals the sentence imposed by the trial court after he pleaded

      guilty to Rape, a Level 3 felony.1 Cantu argues that pursuant to Indiana

      Appellate Rule 7(B), the sentence imposed is inappropriate in light of the nature

      of the offense and his character. Finding that Mr. Cantu’s sentence is not

      inappropriate, we affirm.


                                                     Facts
[2]   Sixteen-year-old Cantu visited sixteen-year-old E.S. at her home on the

      afternoon of October 13, 2015. Cantu and E.S. had been dating for two months.

      E.S. told Cantu that she wanted to end their relationship, and, after she closed

      the door to her room, they briefly cuddled as they sat on her bed. Shortly

      thereafter, Cantu pinned her arms to the bed, pulled down her pants and

      underwear, and penetrated her with his penis for between thirty seconds and

      one minute. She repeatedly said, “No, no, stop, get off me!” during the

      incident. Appellant’s App. Vol. II p. 22. Cantu then left E.S.’s home, and E.S.

      told her mother what had happened. E.S.’s parents reported the incident to the

      police and took E.S. to the hospital.


[3]   On October 16, 2016, the State charged Cantu with Level 3 felony rape and

      Level 6 felony sexual battery. Cantu posted bond and was released from




      1
          Ind. Code § 35-42-4-1.


      Court of Appeals of Indiana | Memorandum Decision 34A05-1701-CR-94 | June 21, 2017   Page 2 of 6
      custody. Upon Cantu’s release, the court put a no-contact order in place,

      preventing Cantu from having any contact with E.S. and her family.


[4]   E.S.’s family reported several break-ins and trespasses on their property over the

      following weeks. In March 2016, E.S.’s parents positively identified Cantu to

      the police from security camera footage filmed outside their home, and Cantu

      was arrested. The court subsequently revoked Cantu’s bond.


[5]   Cantu agreed to plead guilty to rape in exchange for the dismissal of the sexual

      battery charge. On December 16, 2016, the trial court sentenced Cantu to

      fifteen years, with nine years suspended to probation. Cantu now appeals.


                                   Discussion and Decision
[6]   Cantu argues that the sentence is inappropriate in light of the nature of the

      offense and his character pursuant to Indiana Appellate Rule 7(B). This Court

      must “conduct [its] review with substantial deference and give ‘due

      consideration’ to the trial court’s decision—since the ‘principal role of [its]

      review is to attempt to leaven the outliers,’ and not to achieve a perceived

      ‘correct’ sentence[.]” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014) (quoting

      Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal citations

      omitted).


[7]   A person who commits a Level 3 felony may be imprisoned for a minimum of

      three years and a maximum of sixteen years, with the advisory sentence being

      nine years. Ind. Code § 35-50-2-5. Cantu’s fifteen-year sentence with six years

      executed and nine suspended falls within the statutory requirement. His
      Court of Appeals of Indiana | Memorandum Decision 34A05-1701-CR-94 | June 21, 2017   Page 3 of 6
      executed sentence is below the advisory sentence for a Level 3 felony. We do

      not find that his sentence is an outlier as described in Knapp.


[8]   The nature of the offense, while not as severe as some cases, is still serious. The

      crime has caused E.S. significant trauma with which she is still dealing. E.S.

      had never had sex before she was raped. Cantu admitted that he knew she did

      not want to have sex at the time, but he nonetheless forced himself on her. E.S.

      testified that before the rape, she enjoyed school and had an active social life.

      Now she is no longer able to concentrate on her classes and cannot maintain

      friendships. Her mood is unstable, she cannot sleep because of night terrors,

      and she has attempted to physically harm herself. Cantu preyed on this teenage

      girl, violating her trust and her body and causing lasting trauma to her and her

      family. The nature of the offense does not aid Cantu’s inappropriateness

      argument.


[9]   As for Cantu’s character, while he had no prior criminal history, he committed

      multiple new offenses while on bond for this case. He repeatedly violated the

      no-contact order taken out against him by E.S.’s family. He attempted to break

      into her house on several occasions and sometimes succeeded, stealing items of

      personal property which were later recovered from his possession. E.S. and her

      parents set up burglar alarms, installed security cameras, and changed their

      locks to protect themselves against Cantu, but he persisted, frequently

      damaging their property and security system at great expense to them. Only

      when Cantu’s bond was revoked and he was placed in custody did his behavior



      Court of Appeals of Indiana | Memorandum Decision 34A05-1701-CR-94 | June 21, 2017   Page 4 of 6
       stop. Cantu’s actions evidence a desire to harass and abuse E.S. and her family

       and do not reflect well on his character.


[10]   Furthermore, Cantu has repeatedly sent threats to E.S. On the night of the rape,

       E.S. sent an electronic message to Cantu stating that she wanted to tell her

       mother what had happened. Cantu attempted to intimidate her into remaining

       silent, writing: “I will kill myself. Tell her things got a bit carried away but

       please don’t tell her I raped you.” Appellant’s Vol. II p. 24. When E.S. replied

       that she would not lie about the rape, Cantu wrote: “Then I’m going to kill

       myself.” Appellant’s App. Vol. IV p. 13–14. Cantu also sent messages to other

       individuals, asking them to batter E.S. Cantu’s attempts to avoid culpability by

       threatening and manipulating E.S. do not indicate to us that his sentence should

       be reduced based on his character. His callous and menacing statements show a

       lack of remorse for the trauma he has caused.


[11]   Cantu argues that the trial court should have considered the fact that he did not

       subject E.S. to beating, torture, confinement or multiple sexual assaults as a

       positive reflection of his character. We do not see how the fact that his crime

       was not worse is a positive reflection on Cantu’s character. He also suggests

       that his age at the time of the crime and his ADHD diagnosis render the

       sentence appropriate. His age and any mental conditions he suffers from have

       not tempered the vindictiveness with which he has pursued E.S. and her family.

       The facts before us do not recommend a reduction in Cantu’s sentence.




       Court of Appeals of Indiana | Memorandum Decision 34A05-1701-CR-94 | June 21, 2017   Page 5 of 6
[12]   We therefore find that Cantu’s sentence was not inappropriate in light of the

       nature of the offense and his character.


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


       Barnes, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A05-1701-CR-94 | June 21, 2017   Page 6 of 6
