MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be                                       Jul 16 2018, 10:48 am
regarded as precedent or cited before any
                                                                                 CLERK
court except for the purpose of establishing                                 Indiana Supreme Court
                                                                                Court of Appeals
the defense of res judicata, collateral                                           and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Justin L. Froedge                                        Curtis T. Hill, Jr.
Goebel Law Office                                        Attorney General of Indiana
Crawfordsville, Indiana
                                                         Ian McLean
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

John Guajardo,                                           July 16, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         54A01-1711-CR-2749
        v.                                               Appeal from the Montgomery
                                                         Superior Court
State of Indiana,                                        The Honorable Heather Barajas,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         54D01-1610-F6-2797



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2749 | July 16, 2018                 Page 1 of 12
                                Case Summary and Issue
[1]   Following a jury trial, John Guajardo was convicted of two counts of battery by

      an adult against a child, both as Level 6 felonies. The trial court sentenced

      Guajardo to an aggregate term of five years in the Indiana Department of

      Correction. On appeal, Guajardo challenges the sufficiency of the evidence

      supporting his convictions and his sentence. Concluding that the evidence

      produced at trial supports Guajardo’s convictions and that his sentence is not

      inappropriate in light of the nature of his offenses and his character, we affirm.



                            Facts and Procedural History
[2]   In the late summer of 2016, eleven-year-old H.J. and her mother C.J. planned

      to move to Crawfordsville to be closer to family and so that C.J. could continue

      her education and work. H.J. was to attend middle school in Crawfordsville as

      well. In order to facilitate H.J.’s school attendance before their actual move,

      C.J. arranged for H.J. to stay with H.J.’s aunt, C.C., in Crawfordsville. C.C.’s

      twenty-six-year-old boyfriend, Guajardo, and the couple’s six-year-old son also

      lived in the household. H.J. was close with her aunt C.C. and with Guajardo,

      who she called uncle. H.J. trusted Guajardo.


[3]   When she stayed with C.C. and Guajardo, H.J. slept on one of two couches in

      the living room. On August 31, 2016, H.J. was awakened around 4:35 a.m. by

      the slamming of a door. Guajardo and a female friend entered the living room.

      Guajardo initially sat on the living room’s unoccupied couch. The female


      Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2749 | July 16, 2018   Page 2 of 12
      friend went into C.C.’s bedroom and closed the door. Guajardo moved to the

      edge of the couch occupied by H.J., lifted her legs, and placed her legs over his

      lap. Guajardo touched H.J.’s inner thighs and buttocks for between twenty and

      thirty minutes. H.J. felt uncomfortable and confused when Guajardo touched

      her in this manner. H.J. attempted to move away from Guajardo. Guajardo

      ceased touching H.J. when C.C. came out of her bedroom and entered the

      living room.


[4]   H.J. attended school on September 1, 2016, as scheduled. At bedtime that

      evening, H.J. felt scared, uncomfortable, and confused. H.J. went to bed again

      on the living room couch. Although she attempted to stay awake the entire

      night, H.J. fell asleep and was again awoken between 4:00 a.m. and 5:00 a.m.

      by the slamming of a door. Guajardo and the same female friend entered the

      living room, where Guajardo sat on the unoccupied couch. As soon as the

      friend went into C.C.’s bedroom, Guajardo sat on the edge of the couch where

      H.J. slept. Guajardo again lifted and placed H.J.’s legs on his lap. Guajardo

      touched H.J.’s thighs and buttocks. Guajardo also placed his hand under H.J.’s

      shirt and attempted to feel under her bra but was only successful in touching her

      chest on her bra line. H.J. tried to move away from Guajardo by forcing her

      body into the crevices of the sofa. When C.C.’s bedroom door opened,

      Guajardo moved over to the other couch.


[5]   H.J. feigned illness later that day so that her mother would retrieve her. After

      sleeping a few hours, H.J. reported Guajardo’s actions to her mother, who



      Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2749 | July 16, 2018   Page 3 of 12
      contacted the authorities. The State charged Guajardo with two counts of

      Level 6 battery by an adult on a child under the age of fourteen.


[6]   At a jury trial that took place on August 22, 2017, H.J. testified regarding the

      details of the offenses. Guajardo’s trial counsel cross-examined H.J. about her

      vivid imagination, her habit of viewing crime-related television shows, her

      desire to spend less time away from her mother, and about the fact that she

      experienced nightmares. During his own testimony, Guajardo denied sitting on

      the couch where H.J. slept and denied making contact with her clothing or

      body. According to Guajardo, he may have placed a blanket on H.J. while she

      slept but there could have been no misunderstanding about his actions on either

      night. The jury found Guajardo guilty of both offenses. The trial court

      scheduled Guajardo’s sentencing hearing for September 29, 2017.


[7]   A pre-sentence investigation report (“PSI”) was prepared and filed with the trial

      court in advance of Guajardo’s sentencing. Guajardo appeared at his

      September 29, 2017, sentencing hearing under the influence of

      methamphetamines. The trial court found him in contempt of court and

      ordered him to serve thirty days in the county jail. Guajardo’s second

      sentencing hearing was held on October 26, 2017. Guajardo’s juvenile criminal

      history consisted of a referral for reckless possession of paraphernalia and

      adjudications for trespass, mischief, possession of marijuana, resisting law

      enforcement, and illegal consumption. Guajardo had two instances of

      runaway. Guajardo had received a referral to the Teen Court and the Parent

      Project, but he did not complete the Parent Project. Guajardo also received

      Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2749 | July 16, 2018   Page 4 of 12
      probation for the true-findings which he violated and did not complete

      successfully. As an adult, Guajardo had convictions in 2008 for theft and

      burglary of a vehicle in the state of Utah for which he received twelve months

      of probation. In 2008, Guajardo was also convicted of possession of marijuana

      and illegal possession of alcohol. Guajardo had an additional conviction for

      illegal possession of alcohol. Guajardo’s work history consisted of two years of

      part-time service at a fast food restaurant and another three months of

      employment at another business prior to being held in contempt of court in this

      matter. At his sentencing hearing, Guajardo expressed his willingness to

      participate in substance abuse treatment and spoke about his ability to comply

      with the requirements of any probation that he was granted. After apologizing

      for “what has happened,” “everything I have caused,” “[a]ll the damage,” “my

      actions,” and for giving H.J. nightmares, Guajardo admitted in response to

      questioning by the prosecutor that he had touched H.J. inappropriately.

      Transcript at 161, 163-64.


[8]   The trial court found as aggravating circumstances that Guajardo had been in a

      position of trust with H.J., two separate offenses occurred, H.J. was under the

      age of twelve, H.J. had incurred a great deal of emotional harm, Guajardo had

      attended his first sentencing hearing under the influence of methamphetamines,

      Guajardo had exhibited a low level of remorse, and Guajardo had been sober

      when he committed the offenses. The trial court found as a mitigating

      circumstance that Guajardo had a young son who would be negatively

      impacted by Guajardo’s incarceration. The trial court found that the


      Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2749 | July 16, 2018   Page 5 of 12
       aggravating circumstances significantly outweighed the mitigating

       circumstance. The trial court sentenced Guajardo to two and one-half years for

       each conviction, to be served consecutively. Guajardo now appeals his

       convictions and his sentence.



                                  Discussion and Decision
                                   I. Sufficiency of Evidence
                                       A. Standard of Review
[9]    Guajardo first contends the evidence was insufficient to support his two

       convictions for battery by an adult against a child. “Sufficiency-of-the-evidence

       claims face a steep standard of review: we consider only the evidence and

       reasonable inferences most favorable to the convictions, neither reweighing

       evidence nor reassessing witness credibility.” Griffith v. State, 59 N.E.3d 947,

       958 (Ind. 2016). The reviewing court affirms the judgment unless no reasonable

       factfinder could find the defendant guilty. Id. “We may, and ordinarily do,

       uphold findings of guilt beyond a reasonable doubt supported only by the

       uncorroborated testimony of a single witness, even the victim’s.” C.S. v. State,

       71 N.E.3d 848, 851 (Ind. Ct. App. 2017).


                                        B. Evidence of Battery
[10]   Level 6 felony battery by an adult against a child is committed when a person

       eighteen years of age or older knowingly or intentionally touches another

       person less than fourteen years of age in a rude, insolent, or angry manner. Ind.


       Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2749 | July 16, 2018   Page 6 of 12
       Code § 35-42-2-1(c), (e)(3). The evidence at trial showed that H.J. was eleven

       years old and Guajardo was twenty-six years old when the offenses occurred.

       H.J. testified that on August 31, 2017, Guajardo touched her inner thigh and

       buttocks for twenty to thirty minutes, causing her to feel discomfort and

       confusion such that she tried to move away from him. She also testified that on

       September 1, 2017, Guajardo touched her thighs, buttocks, and her chest,

       scaring H.J. and causing H.J. discomfort such that she tried to evade Guajardo

       by squirming into the crevices of the couch. The jury could have reasonably

       concluded from this evidence that Guajardo touched H.J. in a rude or insolent

       manner on the dates in question.


[11]   On appeal, Guajardo argues that this evidence was insufficient to show that a

       crime had been committed or that it was he who committed the offenses.

       Appellant’s Brief at 11. We disagree. H.J. identified Guajardo as the person

       who touched her on two successive days, causing her discomfort. This was

       substantial, probative evidence of Guajardo’s guilt sufficient to uphold the

       jury’s verdict. See C.S., 71 N.E.3d at 851.


[12]   Guajardo acknowledges our standard of review and assures us that he does not

       request that we reweigh the evidence, see Appellant’s Br. at 8-9, but he then goes

       on to draw our attention to evidence that does not support the jury’s verdict and

       to what he contends are inconsistencies in H.J.’s testimony. Guajardo does not

       argue on appeal that H.J.’s testimony was incredibly dubious. Rather,

       Guajardo asks us to distinguish the facts of this this case from Walker v. State,

       678 N.E.2d 402 (Ind. Ct. App. 1997). Appellant’s Br. at 9. We find that we

       Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2749 | July 16, 2018   Page 7 of 12
       cannot make such a distinction, as another panel of this court found that the

       uncorroborated testimony of Walker’s victim was sufficient to sustain his rape

       conviction. Id. at 404. The fact that the Walker panel went on to note the

       presence of other, corroborating evidence in the record does not alter its

       conclusion that the victim’s testimony alone was sufficient to uphold the

       conviction. The second case cited by Guajardo in this section of his argument,

       Vest v. State, 621 N.E.2d 1094 (Ind. 1993), is distinguishable, however, as the

       victim in that case did not testify at trial. Id. at 1096.


[13]   Here, the jury was presented with two squarely different versions of the events

       at issue. The jury resolved the conflict between those two versions in favor of

       H.J. Given our standard of review, we must uphold the jury’s verdict. Griffith,

       59 N.E.3d at 958.


                                              II. Sentencing             1




                                        A. Standard of Review
[14]   Although Guajardo briefly contends that the trial court abused its discretion by

       overlooking what he argues were mitigating factors supported by the record, on

       appeal he cites only to the standard of review for assessing the




       1
[1]      We decline to find waiver of Guajardo’s sentencing claim for his failure to include his PSI in his
       Appellant’s Appendix as urged by the State. Appellee’s Brief at 14-15. Although the PSI should have been
       included in Appellant’s Appendix pursuant to Indiana Appellate Rule 50(B), we do not find that our review
       in this case was materially impaired by its absence since the trial court summarized Guajardo’s criminal
       record on the record at his sentencing hearing.




       Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2749 | July 16, 2018           Page 8 of 12
       inappropriateness of his sentence. Appellant’s Br. at 11, 14-15. Thus, we find

       that his sentencing claim is a request to determine if his sentence is

       inappropriate given the nature of his offenses and his character and address it as

       such.


[15]   “The 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.” Ind. Appellate Rule 7(B). The burden is on the defendant to

       persuade us his or her sentence is inappropriate. Childress v. State, 848 N.E.2d

       1073, 1080 (Ind. 2006). Though we exercise our independent judgment in

       assessing an inappropriate sentence claim, sentencing is principally a

       discretionary function in which the trial court’s judgment should receive

       considerable deference. Hines v. State, 30 N.E.3d 1216, 1225 (Ind. 2015). We

       may look to any factors appearing in the record in examining the nature of the

       offense and the character of the offender. Spitler v. State, 908 N.E.2d 694, 696

       (Ind. Ct. App. 2009), trans. denied. “Whether we regard a sentence as

       appropriate 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 factors that come to light in a given case.” Hines, 30 N.E.3d at 1225

       (citation omitted).




       Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2749 | July 16, 2018   Page 9 of 12
                                     B. Inappropriate Sentence
[16]   Guajardo was found guilty of two Level 6 felonies. The sentencing range for a

       Level 6 felony is six months to two and one-half years, with the advisory

       sentence being one year. Ind. Code § 35-50-2-7(b). The trial court sentenced

       Guajardo to two and one-half years for each conviction, to be served

       consecutively. Therefore, Guajardo received the maximum possible sentence

       for his convictions.


[17]   Concerning the nature of Guajardo’s offenses, we find it significant that

       Guajardo was in a position of trust with H.J. when he committed the offenses.

       H.J. knew and trusted Guajardo, who she considered to be her uncle. H.J. was

       placed in Guajardo’s care so that H.J.’s mother could work and further her

       education. Guajardo used this position of trust to gain access to H.J. to commit

       the offenses while H.J. was in the vulnerable position of attempting to sleep.

       We note that H.J. was eleven years old at the time of the offense, which was

       younger than necessary to have proven the offense. We further note that these

       offenses were not brief lapses in judgment on Guajardo’s part. The August 31

       offense went on for up to thirty minutes, and on both occasions, Guajardo only

       ceased touching H.J. because someone interrupted him. Guajardo’s conduct

       escalated between the offenses, as he also touched H.J. under her clothing

       during the second offense. On appeal, Guajardo offers no argument that his

       sentence is inappropriate in light of the nature of his offenses. Thus, we find

       that Guajardo has failed to meet his burden of persuasion on appeal regarding

       the nature of his offenses. Childress, 848 N.E.2d at 1080.

       Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2749 | July 16, 2018   Page 10 of 12
[18]   As to the character of the offender, Guajardo has a criminal record consisting of

       both juvenile and adult offenses. As a juvenile, Guajardo had a referral for

       reckless possession of paraphernalia, had adjudications for trespass, mischief,

       possession of marijuana, resisting law enforcement, illegal consumption, and

       had two instances of runaway. As an adult, Guajardo was convicted of theft

       and burglary of a vehicle, both in Utah. Guajardo also had convictions for

       marijuana and alcohol offenses. Guajardo received probation in the past which

       he violated, which undercuts his argument on appeal that he was a good

       candidate for probation. Although Guajardo argues on appeal that he had led a

       law-abiding life for a significant period of time prior to the instant offenses, the

       fact that he appeared for his first sentencing hearing under the influence of

       methamphetamines shows that he was not, in fact, a law-abiding citizen despite

       his lack of criminal convictions for the prior eight years. Furthermore, the

       record is devoid of evidence that Guajardo sought any treatment on his own for

       his substance abuse issues. In addition, we find that Guajardo’s halting and

       incomplete apologies at his sentencing hearing indicate that his remorse for his

       actions is not profound. In short, we find nothing about the nature of

       Guajardo’s offenses or his character renders the sentence imposed by the trial

       court inappropriate.



                                               Conclusion
[19]   Given the substantial evidence supporting Guajardo’s convictions, we affirm

       the jury’s verdicts. In light of our independent review of the nature of


       Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2749 | July 16, 2018   Page 11 of 12
       Guajardo’s offenses and the nature of his character, we hold that his five-year

       aggregate sentence is not inappropriate, and the judgment of the trial court is

       also affirmed.


[20]   Affirmed.


       Najam, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 54A01-1711-CR-2749 | July 16, 2018   Page 12 of 12
