                                                                                 FILED
                                                                             Feb 14 2019, 9:16 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      David W. Stone IV                                          Curtis T. Hill, Jr.
      Anderson, Indiana                                          Attorney General of Indiana

                                                                 George P. Sherman
                                                                 Supervising Deputy Attorney
                                                                 General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Daniel Vega,                                               February 14, 2019
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 18A-CR-942
              v.                                                 Appeal from the Madison Circuit
                                                                 Court
      State of Indiana,                                          The Honorable David A. Happe,
      Appellee-Plaintiff.                                        Judge
                                                                 Trial Court Cause No.
                                                                 48C04-1704-F3-1072



      Najam, Judge.


                                         Statement of the Case
[1]   Daniel Vega appeals his convictions for one count of child molesting, as a Level

      3 felony, and two counts of child solicitation, as Level 5 felonies, following a


      Court of Appeals of Indiana | Opinion 18A-CR-942 | February 14, 2019                           Page 1 of 17
      jury trial. Vega also appeals his fifteen-year sentence. Vega raises six issues for

      our review, which we restate as follows:


              1.       Whether the trial court abused its discretion when it
                       admitted into evidence a video-recorded forensic interview
                       of the child victim.


              2.       Whether the trial court abused its discretion when it
                       denied Vega’s request to have an expert psychologist
                       examine the child victim at public expense.


              3.       Whether Vega preserved for appellate review his argument
                       that the trial court erroneously permitted the State to
                       present inadmissible drumbeat evidence to the jury.


              4.       Whether Vega preserved for appellate review his argument
                       that the trial court erred when it denied his request for a
                       mistrial.


              5.       Whether the trial court abused its discretion when it
                       sentenced Vega.


              6.       Whether Vega’s sentence is inappropriate in light of the
                       nature of the offenses and his character.


[2]   We affirm.


                                  Facts and Procedural History
[3]   In early 2017, Vega, who was eighteen years old at the time, was living with his

      uncle, M.S.; M.S.’s then-ten-year-old daughter, E.S.; and M.S.’s wife and

      stepson in Alexandria. M.S. had helped Vega obtain employment at American

      Court of Appeals of Indiana | Opinion 18A-CR-942 | February 14, 2019        Page 2 of 17
      Woodwork, where M.S. also worked, and M.S. and Vega would ride to work

      together. E.S. had her own room at the family residence. Vega slept on a

      couch in the living room.


[4]   During the evening of April 20, Vega entered E.S.’s bedroom, woke her, and

      told her he would “give [her] twenty dollars if you suck my thing.” Tr. Vol. III

      at 183. E.S. told him that she was “gonna tell [her] dad,” and Vega “ran

      outside.” Id. The next day, E.S. spoke of the incident with Holly Eiler, a social

      worker at E.S.’s school. Eiler contacted the Indiana Department of Child

      Services (“DCS”), and DCS case workers arranged for E.S. to have a forensic

      interview at the Child Advocacy Center later that day.


[5]   Kelsey Green conducted E.S.’s forensic interview, which was video-recorded.

      Green has a degree in psychology and has conducted about 2,000 forensic

      interviews. During her interview, E.S. detailed the prior night’s incident with

      Vega. E.S. also said that, on another occasion, Vega had tried to make E.S.

      “touch his thing” by “pull[ing] down his pants and . . . tr[ying] to put [her]

      hand down there . . . .” Id. at 189-90. Then E.S. told Green that, on a different

      occasion, Vega had “forced [her] to suck his thing.” Id. at 193. Vega had

      “grabbed [E.S.]” and “ma[de her] put it in [her] mouth” until “[w]hite stuff”

      came out, which made E.S. “throw[ ]up.” Id. at 193-94. E.S. told Green that

      she did not “feel safe around” Vega. Id. at 193.


[6]   Following E.S.’s forensic interview, Alexandria Police Officer Joe Heath

      interviewed Vega. When Officer Heath informed Vega of E.S.’s allegations and


      Court of Appeals of Indiana | Opinion 18A-CR-942 | February 14, 2019      Page 3 of 17
      asked Vega if he “kn[ew] anything about” them, Vega responded, “She’s

      nasty. . . . [I]f I were to get [sic] in any kind of sexual way I would have

      someone more attractive . . . .” Tr. Vol. IV at 57. Officer Heath then asked

      Vega why E.S. would say what she did, and Vega responded: “I don’t know.

      That’s from her part. She knows how to suck dick. Go for it.” Id. at 67.


[7]   After E.S. opened up about her experiences with Vega, M.S. observed that E.S.

      began to act differently. In particular, he observed that she was “scared to sleep

      by herself” in her room. Tr. Vol. III at 157. M.S. also observed that E.S. would

      “urinate[]” her bed because “she doesn’t want to get up [be]cause she’s scared”

      that Vega is “watching her through the window.” Tr. Vol. III at 157.


[8]   The State charged Vega with one count of child molesting, as a Level 3 felony,

      and four counts of child solicitation, as Level 5 felonies. On January 29, 2018,

      the State moved under Indiana’s Protected Person Statute to have E.S.’s

      forensic interview with Green admitted in lieu of E.S. testifying in person at

      trial. See Ind. Code § 35-37-4-6 (2018). The court held a hearing on the State’s

      request in February, at which Vega appeared with counsel and E.S. appeared by

      closed-circuit television.


[9]   Miyah Grant testified in support of the State’s motion. Grant is a doctoral

      student in the clinical psychology program at the University of Indianapolis,

      and, under the supervision of Dr. Sharon McNeany, a licensed psychologist,

      Grant is E.S.’s counselor. Grant testified that E.S. frequently has anxiety about

      testifying in court such that she “begins crying uncontrollably and shaking,”


      Court of Appeals of Indiana | Opinion 18A-CR-942 | February 14, 2019       Page 4 of 17
       and it is a “struggle to communicate” with her. Tr. Vol. II at 71. Grant also

       related continuing fear E.S. has of Vega, saying that, on the day of the

       protected-person hearing, E.S. asked that the room of the closed-circuit

       television have “lock[ed] . . . doors.” Id. at 72. Grant opined that being in the

       physical presence of Vega at trial could cause E.S. such distress that she would

       not “be able to reasonably communicate.” Id. at 74. Dr. McNeany testified

       that, based on her supervision and review of Grant’s work, she agreed with

       Grant’s assessment that E.S. would be unable to reasonably communicate at

       Vega’s trial.


[10]   E.S. testified at the February hearing by way of recorded, closed-circuit

       television, and Vega subjected her to cross-examination through his counsel.

       Eiler and other school officials testified that E.S. continues to have extreme

       emotional reactions to her experiences with Vega, which make communication

       with E.S. difficult. They also testified that E.S. has expressed suicidal ideations.


[11]   At the conclusion of the February hearing, Vega moved to have the court order

       E.S. to receive a mental health evaluation “by an independent, neutral party” at

       public expense. Id. at 131. The trial court denied Vega’s request. However, the

       court granted the State’s request to have E.S.’s forensic interview with Green

       admitted at trial in lieu of E.S. testifying in person.


[12]   Thereafter, the State dismissed two of the Level 5 felony counts. At Vega’s

       ensuing jury trial, he renewed his objections to the use of E.S.’s forensic

       interview with Green but only “based on confrontation” grounds. Tr. Vol. III


       Court of Appeals of Indiana | Opinion 18A-CR-942 | February 14, 2019        Page 5 of 17
       at 175. The trial court overruled Vega’s objection. Later in the trial, the State

       also sought to have E.S.’s recorded testimony at the protected-person hearing

       admitted into the record. Again, Vega objected only on confrontation grounds,

       which the trial court overruled. The jury found Vega guilty as charged.


[13]   On March 20, the court held Vega’s sentencing hearing. At the conclusion of

       that hearing, the court found as follows:


               I do find that there is both aggravation and mitigation present on
               the record. The fact that there are multiple counts here of which
               the defendant was convicted, that’s an aggravating factor. I think
               that clearly the defendant abused the position of trust. He was
               part of this family, was allowed to be in an intimate sleeping
               arrangement with the family and trusted to be around the young
               children in that family and took advantage of that to victimize
               the child the way that he did. I think that . . . it’s not significant
               but there is some history of criminal conduct shown in that the
               defendant has drug usage extending back to age thirteen. And
               the court’s going to find an aggravating factor here to be that the
               defendant went out of his way in the statement he gave to
               police . . . to denigrate and insult the victim and that exacerbated
               the psychological harm that both the victim and her family
               suffered. You can come in and just maintain your innocence.
               You can come in and maintain your silence. But . . . the
               defendant in this case chose not to do that. He . . . chose to come
               in and insult the victim and demean her . . . . That was
               something he didn’t have to do and that’s something that made it
               worse and more hurtful to go through . . . . In terms of
               mitigation I do find that there is some here. The defendant is a
               person of young age. He has largely a lack of significant prior
               criminal history, apart from the . . . drug usage that I mentioned.
               And I’m go[ing] to find it to be a mitigating factor that the
               defendant did suffer neglect and abuse at the hand of the adults
               in his life when he was [a] child. On balance, however, I do find

       Court of Appeals of Indiana | Opinion 18A-CR-942 | February 14, 2019        Page 6 of 17
                that the aggravation outweighs the mitigation here and a
                significant punitive sanction is appropriate.


       Tr. Vol. IV at 189-90. The court then sentenced Vega to an aggregate term of

       fifteen years, with three years suspended to probation. This appeal ensued.


                                         Discussion and Decision
                           Issue One: Admission of E.S.’s Forensic Interview

[14]   On appeal, Vega first asserts that the trial court abused its discretion when it

       admitted E.S.’s video-recorded forensic interview at trial. As decisions to admit

       or exclude evidence fall within the trial court’s sound discretion, we afford

       those decisions deference and review them for an abuse of discretion. Wright v.

       State, 108 N.E.3d 307, 313 (Ind. 2018). We will reverse a trial court’s decision

       to admit evidence only if the decision was clearly against the logic and effect of

       the facts and circumstances and the error affects the defendant’s substantial

       rights. Id. (quotation marks and alteration omitted).


[15]   Vega asserts that the trial court erred when it admitted E.S.’s forensic interview

       because, at the February protected-person hearing, the State did not present

       sufficient evidence to demonstrate that E.S. would be unavailable to testify in

       person at trial. Indiana Code Section 35-37-4-6(e)(2)(B) states that, for a

       protected person1 to be found unavailable as a trial witness, the court must, as




       1
         Vega does not dispute that E.S. is a protected person under the statute. Insofar as Vega attempted to argue
       on appeal that the trial court erred under Indiana Code Section 35-37-4-6(e)(1) on the ground that the time,
       content, and circumstances of E.S.’s recorded statement fail to provide sufficient indications of reliability, we

       Court of Appeals of Indiana | Opinion 18A-CR-942 | February 14, 2019                                 Page 7 of 17
       relevant here, determine “[f]rom the testimony of a psychiatrist, physician, or

       psychologist, and other evidence, if any,” that “the protected person’s testifying

       in the physical presence of the defendant will cause the protected person to

       suffer serious emotional distress such that the protected person cannot

       reasonably communicate.” According to Vega, Grant’s testimony is

       insufficient because she is not a licensed psychologist, and Dr. McNeany’s

       testimony is insufficient because she did not personally interview E.S.


[16]   We reject Vega’s contention. Medical professionals, like professionals in many

       areas, utilize subordinates, and when a medical professional signs off on a

       subordinate’s work product, it becomes the medical professional’s work

       product. Here, a licensed psychologist adopted and ratified the work of her

       subordinate and made it her own.


[17]   In particular, Grant is a doctoral student in the clinical psychology program at

       the University of Indianapolis under the supervision of Dr. McNeany, who is a

       licensed psychologist. Grant’s status enabled Dr. McNeany to consider

       whether E.S. would suffer serious emotional distress at trial such that E.S.

       would be unable to reasonably communicate, and Dr. McNeany’s status and

       standing as Grant’s supervisor allowed her to adopt, reject, or modify Grant’s

       opinion as Dr. McNeany deemed appropriate. And that is what happened

       here: Grant concluded that E.S. would suffer serious emotional distress at trial




       conclude that Vega has failed to support any such argument with cogent reasoning, and we do not consider
       it. Ind. Appellate Rule 46(A)(8)(a).

       Court of Appeals of Indiana | Opinion 18A-CR-942 | February 14, 2019                          Page 8 of 17
       such that E.S. would be unable to reasonably communicate. Dr. McNeany

       reviewed and then agreed with Grant’s recommendation.


[18]   In other words, the State’s evidence shows that a licensed psychologist reviewed

       and then adopted the work of her subordinate, testified, and gave her opinion at

       the protected-person hearing as to E.S.’s unavailability at trial. This is not a

       case where only the subordinate testified, or where the licensed professional had

       not personally reviewed and approved the subordinate’s work. We hold that

       the State presented sufficient evidence under the statute to demonstrate E.S.’s

       unavailability at trial, and the trial court acted within its discretion when it

       admitted E.S.’s recorded forensic interview due to her unavailability.


                  Issue Two: Denial of Mental-Health Expert at Public Expense

[19]   Vega next asserts that the trial court abused its discretion when it denied his

       request for an additional mental-health expert to evaluate E.S. at public

       expense. As we have explained:


               The appointment of experts for indigent defendants is left to the
               trial court’s sound discretion. It is within the court’s discretion to
               determine whether the requested service would be needless,
               wasteful[,] or extravagant. The trial court is not required to
               appoint at public expense any expert that the defendant might
               find helpful. The defendant requesting the appointment of an
               expert bears the burden of demonstrating the need for the
               appointment.


       McConniel v. State, 974 N.E.2d 543, 557 (Ind. Ct. App. 2012) (citations omitted),

       trans. denied.


       Court of Appeals of Indiana | Opinion 18A-CR-942 | February 14, 2019         Page 9 of 17
[20]   We cannot say that the trial court abused its discretion when it denied Vega’s

       request. At the time of the February hearing, when Vega made his request, E.S.

       had an ongoing relationship with Grant, and Dr. McNeany reviewed and

       supervised Grant’s work. Vega did not meet his burden to demonstrate the

       need to have E.S. submit to yet another mental-health evaluation, with that

       evaluation being at public expense. Accordingly, we affirm the trial court on

       this issue.


                                     Issue Three: “Drumbeat Evidence”

[21]   Vega asserts that the trial court abused its discretion when it admitted both

       E.S.’s recorded forensic interview and also E.S.’s recorded testimony at the

       February hearing. According to Vega, the two recordings amounted to

       inadmissible “drumbeat evidence.” However, in the trial court, Vega objected

       to the two exhibits only on the ground that they allegedly violated his federal

       and state rights to confront witnesses.2 Tr. Vol. III at 175; Tr. Vol. IV at 86. It

       is well settled that a party may not raise one ground for objection in the trial

       court and argue a different ground on appeal. Willsey v. State, 698 N.E.2d 784,

       793 (Ind. 1998). We conclude that Vega has not preserved his “drumbeat

       evidence” argument for appellate review.




       2
         Vega separately objected at trial to specific portions of the testimony of Grant and Eiler as cumulative to
       E.S.’s admitted statements. However, insofar as Vega attempted to argue on appeal that the trial court
       abused its discretion when it overruled those objections, Vega’s argument is not supported by cogent
       reasoning, and we do not consider it. App. R. 46(A)(8)(a).

       Court of Appeals of Indiana | Opinion 18A-CR-942 | February 14, 2019                              Page 10 of 17
                         Issue Four: Denial of Vega’s Motion for a Mistrial

[22]   Vega asserts that the trial court abused its discretion when it denied his motion

       for a mistrial. As we have explained:


               A mistrial is an extreme remedy granted only when no other
               method can rectify the situation. A trial court’s decision not to
               grant a mistrial is reviewed for an abuse of discretion. Moreover,
               a reviewing court accords great deference to the trial court’s
               ruling on a mistrial motion. In determining whether a mistrial
               was warranted, we consider whether the defendant was placed in
               a position of grave peril to which he should not have been
               subjected. The gravity of the peril is determined by the probable
               persuasive effect on the jury’s decision. When a motion for
               mistrial has been denied, the defendant has the burden to
               demonstrate both that he was placed in a position of grave peril
               to which he should not have been subjected and that no other
               remedy can cure the perilous situation in which he was placed.


       Brooks v. State, 934 N.E.2d 1234, 1243 (Ind. Ct. App. 2010) (citations and

       quotation marks omitted), trans. denied.


[23]   According to Vega’s argument to the trial court in support of a mistrial, the

       State failed to inform Vega that it had interviewed two of E.S.’s other cousins,

       one of whom E.S. had identified in her forensic interview with Green as a

       possible witness, and further that the State had failed to inform Vega that

       neither of the two cousins had reported observing inculpatory behavior by

       Vega. According to Vega, the State’s disclosure at trial of this information

       placed him in a position of grave peril. The trial court denied Vega’s motion as

       to the cousin identified by E.S. on the ground that Vega had been put on notice


       Court of Appeals of Indiana | Opinion 18A-CR-942 | February 14, 2019    Page 11 of 17
       by E.S.’s statements that that cousin might be a witness. The court denied

       Vega’s motion as to the other cousin because “[t]he State’s theory is not th[at

       the] child was constantly twenty-four/seven molested . . . . So the fact that

       someone was around the parties and didn’t see a molest happening, I’m not

       sure that’s even relevant.” Tr. Vol. III at 128.


[24]   We initially note that Vega’s argument on appeal is that he was unduly

       prejudiced by the State’s untimely disclosure of potential discovery. Under that

       theory, Vega should have moved for a continuance in the trial court. See

       Warren v. State, 725 N.E.2d 828, 832 (Ind. 2000). He did not. Accordingly, he

       has not preserved this alleged error for our review. Id. Vega’s waiver

       notwithstanding, as explained by the trial court Vega had the opportunity to

       depose the cousin identified by E.S. in her forensic interview well before trial.

       And Vega has failed to show that the probative value and probable persuasive

       effect on the jury of testimony that Vega had behaved in E.S.’s presence would

       have been significant. Thus, we reject Vega’s arguments on this issue.


                             Issue Five: Abuse of Discretion in Sentencing

[25]   We next turn to the first of Vega’s two arguments with respect to his sentence.

       In particular, Vega asserts that the trial court abused its discretion when it

       sentenced him because it relied on an aggravating circumstance not supported

       by the record. Sentencing decisions lie within the sound discretion of the trial

       court. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). 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
       Court of Appeals of Indiana | Opinion 18A-CR-942 | February 14, 2019       Page 12 of 17
       deductions to be drawn therefrom.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct.

       App. 2014) (citation omitted), trans. denied.


[26]   A trial court abuses its discretion in sentencing if it does any of the following:


               (1) fails “to enter a sentencing statement at all;” (2) enters “a
               sentencing statement that explains reasons for imposing a
               sentence—including a finding of aggravating and mitigating
               factors if any—but the record does not support the reasons;” (3)
               enters a sentencing statement that “omits reasons that are clearly
               supported by the record and advanced for consideration;” or (4)
               considers reasons that “are improper as a matter of law.”


       Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind.), clarified on reh’g

       other grounds, 875 N.E.2d 218 (2007)).


[27]   Vega asserts that the trial court’s finding that E.S. and her family suffered

       additional emotional or mental harm from Vega’s callous statements to police is

       not supported by the record. According to Vega, “there was no evidence that

       either the girl or her family heard or read his police interview.” Appellant’s Br.

       at 32. More compellingly, Vega adds that “[t]here is no evidence that [E.S.’s]

       emotional problems . . . were increased by [Vega’s] comments in the police

       interview.” Id.


[28]   We are obliged to agree with Vega. Nothing in the record on appeal

       demonstrates that E.S. or her family had any knowledge of Vega’s statements to

       police, let alone that their emotional suffering increased upon learning of those

       statements. We understand the State’s argument on appeal that E.S. or her


       Court of Appeals of Indiana | Opinion 18A-CR-942 | February 14, 2019      Page 13 of 17
       family may have been present at the trial, but our review must be based on the

       record, and the record does not reflect a factual basis for the trial court’s finding

       of this aggravator. Accordingly, we agree with Vega that the trial court erred

       when it cited an aggravator not found in the record.


[29]   Nonetheless, where the trial court abuses its discretion in sentencing a

       defendant, we need not remand for resentencing if we can “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. We can say with confidence that the trial court would have imposed the

       same sentence here. Vega’s argument on appeal that the trial court erred when

       it considered the harm to E.S. and her family of his statements to the police is

       technically correct, but the record is clear that on other occasions Vega did

       denigrate E.S. in person, which increased her emotional or mental anguish.

       For example, E.S. stated in her interview with Green that Vega “usually calls

       [her] [a] fat pig,” “flips [her] off,” and “calls [her] a lot of bad words.” Tr. Vol.

       III at 199. E.S. specifically cited those examples as part of the reason she

       continues to feel “[n]ot safe . . . [w]hen [Vega is] there” at her home. Id.


[30]   In other words, the gravamen of the trial court’s aggravator is that Vega

       disparaged his victim, E.S., which caused her additional anguish. And Vega’s

       statements to E.S. in person, which are supported in the record, are the

       equivalent of Vega’s statements to the police, which the trial court relied on.

       Accordingly, we need not remand to require the trial court to simply recite its

       rationale while adding facts that are properly supported by the record. Thus,

       Court of Appeals of Indiana | Opinion 18A-CR-942 | February 14, 2019       Page 14 of 17
       we can say with confidence that the trial court would, on remand, impose the

       same sentence based on other reasons that enjoy support in the record and that

       a remand for resentencing is unnecessary.


                                 Issue Six: Inappropriateness of Sentence

[31]   Finally, Vega asserts on appeal that his fifteen-year sentence, with three years

       suspended to probation, is inappropriate in light of the nature of the offenses

       and his character. Indiana Appellate Rule 7(B) 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 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 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).


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

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


       Court of Appeals of Indiana | Opinion 18A-CR-942 | February 14, 2019      Page 15 of 17
       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).


[33]   Indiana Code Section 35-50-2-5(b) states that a person convicted of a Level 3

       felony shall be imprisoned for a fixed term between three and sixteen years,

       with an advisory sentence of nine years. Indiana Code Section 35-50-2-6(b)

       states that a person convicted of a Level 5 felony shall be imprisoned for a fixed

       term between two and eight years, with an advisory sentence of four years. For

       his one Level 3 felony conviction and two Level 5 felony convictions, Vega

       received an aggregate term of fifteen years, with three years suspended to

       probation, which is well below the maximum possible aggregate sentence Vega

       faced. Nonetheless, in support of his argument on appeal, Vega asserts that he

       is not the worst of the worst offenders; that his criminal history is not serious;

       that he did not physically harm E.S. or threaten her with physical harm; and




       Court of Appeals of Indiana | Opinion 18A-CR-942 | February 14, 2019      Page 16 of 17
       that nothing about the facts and circumstances of his offenses go beyond the

       statutory elements of those offenses.


[34]   We cannot say that Vega’s sentence is inappropriate in light of the nature of the

       offenses or his character. Regarding the nature of the offenses, Vega solicited

       his ten-year-old cousin for oral sex on multiple occasions. When she declined

       on one occasion, he forced her to perform oral sex on him to the point of

       ejaculation, which caused E.S. to vomit. He also attempted to force her to

       touch his penis with her hand on another occasion. With respect to Vega’s

       character, he has a long history of marijuana use despite his young age, he

       abused a position of trust over E.S., and he abused the generosity of her family

       in finding him employment and a place to live. Accordingly, we cannot say

       that his aggregate sentence of fifteen years, with three years suspended to

       probation, is inappropriate in light of the nature of the offenses and his

       character.


                                                   Conclusion
[35]   In sum, we affirm Vega’s convictions and sentence.


[36]   Affirmed.


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




       Court of Appeals of Indiana | Opinion 18A-CR-942 | February 14, 2019     Page 17 of 17
