MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                     Jan 23 2018, 8:49 am

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


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



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jose G. Echartea-De La Suente,                           January 23, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A02-1706-CR-1280
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable David A. Happe,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         48C04-1212-FA-2249



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1280 | January 23, 2018            Page 1 of 15
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Jose G. Echartea-De La Suente (Echartea-De La

      Suente), appeals his conviction for two Counts of child molesting, Class A

      felonies, Ind. Code § 35-42-4-3(a)(1); two Counts of child molesting, Class C

      felonies, I.C. § 35-42-4-3(b); and one Count of attempted child molesting, a

      Class C felony, I.C. §§ 35-42-4-3(b); -41-5-1.


[2]   We affirm.


                                                   ISSUES
[3]   Echartea-De La Suente presents us with three issues on appeal, which we

      restate as:


      (1) Whether the State presented sufficient evidence beyond a reasonable doubt

      to support Echartea-De La Suente’s conviction for one Count of child molesting

      as a Class A felony;


      (2) Whether the trial court abused its discretion in sentencing Echartea-De La

      Suente to an aggregate sentence of seventy years based on multiple aggravating

      factors and no mitigating factors; and


      (3) Whether his aggregate sentence is appropriate in light of the nature of the

      offense and his character.




      Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1280 | January 23, 2018   Page 2 of 15
                      FACTS AND PROCEDURAL HISTORY
[4]   In 2005, C.S., then nine years old, was living with her mother, her younger

      sister O.M., her younger brother J.M., and her grandmother in Anderson,

      Indiana. C.S.’s mother was dating Echartea-De La Suente and he would visit

      occasionally; they married in 2009. On one such visit, C.S., along with

      Echartea-De La Suente, her mother, sister, brother, and cousin, T.K., were all

      sleeping in her mother’s bedroom. C.S. was between T.K., who was facing

      away from C.S. playing a Gameboy, and Echartea-De La Suente. While

      everyone was asleep with the exception of T.K., Echartea-De La Suente started

      to “rub [C.S.’s] shoulder down to [her] leg and then, eventually, he made his

      way down inside [her] pants and started fingering and putting his finger in [her]

      vagina continuously.” (Transcript Vol. II, p. 52). C.S. “tried to close [her] legs

      as tight as [she] could.” (Tr. Vol. II, p. 52). The next day, C.S. informed T.K.

      of what had happened. She did not tell her mother because “[a]s a child [she]

      had seen [her] cousin get taken away into foster care and [she] just didn’t want

      anything to change between [her] family.” (Tr. Vol. II, p. 52).


[5]   In 2010, Echartea-De La Suente started molesting C.S.’s younger sister, O.M.,

      who was then eleven years old. At that time, O.M. shared a bedroom with her

      brother, C.S. had her own bedroom, her mother and Echartea-De La Suente

      shared a room, and O.M.’s grandmother slept on the couch. At night,

      Echartea-De La Suente entered O.M.’s bedroom and “got in [O.M.’s] bed.”

      (Tr. Vol. II, p. 68). “[H]e put his hand under [her shirt] and” started rubbing

      her breasts and vagina. (Tr. Vol. II, p. 68). O.M. did not tell anyone what had

      Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1280 | January 23, 2018   Page 3 of 15
      happened because she was afraid. Echartea-De La Suente continued to molest

      her “almost every night.” (Tr. Vol. II, p. 70).


[6]   Eventually Echartea-De La Suente escalated his behavior. After he had

      touched O.M.’s breasts and rubbed her vagina, he lifted up O.M.’s shirt and

      started kissing her back. He tried to kiss O.M. on her mouth but she “was

      holding [her] teeth closed, so he pulled down [her] pants and [her] underwear to

      [her] ankles.” (Tr. Vol. II, p. 71). O.M. tried to get up “but he held [her] down

      and he started licking [her] vagina.” (Tr. Vol. II, p. 71). The following

      morning, O.M. wrote her friend a note about the incident and asked her friend

      to give the note to O.M.’s mother because O.M. was too embarrassed and

      afraid to hand her the note herself. After O.M.’s mother read the note, mother

      became angry and started “yelling at [O.M.] because [she] told [her friend] and

      it could’ve gotten [her] brother and [her] sister taken away, and the house taken

      away, and [O.M.] taken away.” (Tr. Vol. II, p. 74).


[7]   On another occasion, O.M. was alone in the living room as she had just gotten

      up and her mother and grandmother had left to get breakfast. C.S. and her

      brother were still asleep. O.M. was on the couch watching television when

      Echartea-De La Suente “came in and laid behind” her. (Tr. Vol. II, p. 75).

      O.M. immediately got up and started walking to her room. However,

      Echartea-De La Suente “grabbed [her] and took [her] to [his] room” where he

      threw her on the bed. (Tr. Vol. II, p. 75). As he tried to pull O.M.’s pants

      down, she pushed him off and ran to her room, locking her bedroom door.

      Echartea-De La Suente tried to break into her bedroom by using a credit card to

      Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1280 | January 23, 2018   Page 4 of 15
      open the door. Through the door, he was telling O.M. that if she “didn’t let

      him in that [her] mom was going to be mad at [her].” (Tr. Vol. II, p. 75).

      When he realized that he could not get inside, Echartea-De La Suente went to

      the bathroom to take a shower. O.M. texted her mother about the incident but

      “nothing really happened.” (Tr. Vol. II, p. 76). O.M. disclosed the abuse to

      T.K. and T.K. began sleeping in O.M.’s room “to protect” her. (Tr. Vol. II, p.

      124).


[8]   With the exception of grandmother and C.S., the family moved to a new

      apartment. There, O.M.’s mother questioned O.M.’s attitude, and O.M. told

      her that she was continuously angry because her mother knew Echartea-De La

      Suente had molested her, yet refused to do anything. O.M. disclosed the abuse

      to law enforcement after mother took O.M. to the emergency room for an

      examination.


[9]   On December 4, 2012, the State filed an Information, charging Echartea-De La

      Suente with two Counts of child molesting as Class A felonies, two Counts of

      child molesting as Class C felonies, and one Count of attempted child

      molesting, as a Class C felony. However, Echartea-De La Suente had left

      Indiana and was wanted on a warrant for approximately four years. On April

      6, 2017, after his arrest and extradition to Indiana, Echartea-De La Suente was

      found guilty as charged following a jury trial. On May 22, 2017, the trial court

      conducted a sentencing hearing. At the close of the evidence, the trial court

      sentenced Echartea-De La Suente to thirty-five years each on the two Class A

      felonies, to be served consecutively, and four years on each of the Class C

      Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1280 | January 23, 2018   Page 5 of 15
       felonies, to be served concurrently to the Class A felonies, for an aggregate

       sentence of seventy years.


[10]   Echartea-De La Suente now appeals. Additional facts will be provided as

       necessary.


                                   DISCUSSION AND DECISION
                                             I. Sufficiency of the Evidence


[11]   Echartea-De La Suente contends that the State failed to present sufficient

       evidence beyond a reasonable doubt to sustain his conviction for Count I, the

       Class A child molestation pertaining to C.S. 1 Our standard of review for a

       sufficiency of the evidence claim is well settled. In reviewing sufficiency of the

       evidence claims, we will not reweigh the evidence or assess the credibility of the

       witnesses. Moore v. State, 869 N.E.2d 489, 492 (Ind. Ct. App. 2007). We will

       consider only the evidence most favorable to the judgment, together with all

       reasonable and logical inferences to be drawn therefrom. Id. The conviction

       will be affirmed if there is substantial evidence of probative value to support the

       conviction of the trier of fact. Id. It is well-established that “the uncorroborated

       testimony of one witness may be sufficient by itself to sustain a conviction on

       appeal.” Scott v. State, 871 N.E.2d 341, 343 (Ind. Ct. App. 2007) (citing Toney v.

       State, 715 N.E.2d 367, 369 (Ind. 1999)), trans. denied.




       1
           Echartea-De La Suente does not challenge the sufficiency of the evidence on his other charges.


       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1280 | January 23, 2018              Page 6 of 15
[12]   To convict Echartea-De La Suente of Class A felony child molesting, the State

       had to establish beyond a reasonable doubt that Echartea-De La Suente, being

       at least twenty-one years of age, “knowingly or intentionally perform[ed] or

       submit[ted] to sexual intercourse or other sexual misconduct” with a child

       under fourteen years of age. See I.C. § 35-42-4-3(a). Here, C.S., being nine

       years old at the time of the molestation, testified that Echartea-De La Suente

       rubbed her shoulder, then her leg, and then proceeded “fingering or putting his

       finger in [her] vagina continuously.” (Tr. Vol. II, p. 52). She described that

       Echartea-De La Suente put his finger “all the way inside” her vagina and that

       she “just tried to close [her] legs as tight as [she] could.” (Tr. Vol. II, p. 52).


[13]   Echartea-De La Suente now challenges C.S.’s testimony as incredibly dubious.

       Specifically, he asserts that “[i]t is contrary to human experience that an adult

       would attempt to molest a child with that many potential witnesses in close

       proximity and one of whom was awake playing a game.” (Appellant’s Br. p.

       12). Under the incredible dubiosity rule, “a court will impinge on the jury’s

       responsibility to judge the credibility of the witnesses only when it has

       confronted ‘inherently improbable’ testimony or coerced, equivocal, wholly

       uncorroborated testimony of ‘incredible dubiosity.’” Moore v. State, 27 N.E.3d

       749, 755 (Ind. 2015) (citing Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994)).

       A court will impinge upon a jury’s duty to judge witness credibility “where a

       sole witness presents inherently contradictory testimony which is equivocal or the

       result of coercion and there is a complete lack of circumstantial evidence of the

       appellant’s guilt.” Moore, 27 N.E.2d at 755.


       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1280 | January 23, 2018   Page 7 of 15
[14]   We find the incredible dubiosity rule inapplicable to the case at hand. Even

       though we agree with Echartea-De La Suente that T.K. was not a witness as

       she failed to observe the molestation, we cannot agree that C.S.’s trial testimony

       was “inconsistent within itself.” See id. at 758-59. Even under cross-

       examination, C.S. was consistent in her responses and confident in what had

       happened that night. The jury was free to decide whether “to believe or

       disbelieve” C.S. See Murray v. State, 761 N.E.2d 406, 409 (Ind. 2002).

       Furthermore, it is not uncommon for child molesters to offend when other

       people are in the home or even in the same room. We agree with the State that

       the decision to commit a crime in the presence of potential witnesses without

       first isolating the victim does not make the commission of that crime

       improbable. Accordingly, as the State presented sufficient evidence to sustain

       Echartea-De La Suente’s conviction for Class A felony child molesting, as

       pertaining to C.S., we affirm the trial court’s decision.


                                             II. Aggregate Sentence


[15]   Next, Echartea-De La Suente contends that the trial court abused its discretion

       in sentencing him to an aggregate sentence of seventy years based on “improper

       aggravating factors and the failure to recognize the lack of any real criminal

       history as a mitigating factor.” (Appellant’s Br. p. 16). Sentencing decisions

       are a matter of trial court discretion and are reviewed on appeal only for an

       abuse of that discretion. Anglemyer v. State, 868 N.E.2d 482, 490, clarified on

       reh’g, 875 N.E.2d 218 (Ind. 2007). A trial court abuses its discretion if its

       decision “is ‘clearly against the logic and effect of the facts and circumstances

       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1280 | January 23, 2018   Page 8 of 15
       before the court, or the reasonable, probable, and actual deductions to be drawn

       therefrom.’” Id. (quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)). A trial

       court “may impose any sentence within the statutory range without regard to

       the existence of aggravating or mitigating factors.” Id. at 489. If the trial court

       “‘finds’ the existence of ‘aggravating circumstances or mitigating circumstances’

       then the trial court is required to give ‘a statement of the court’s reasons for

       selecting the sentence that it imposes.’” Id. at 490 (quoting I.C. § 35-38-1-3(3)).


[16]   On appeal, a trial court may be found to have abused its discretion by failing to

       enter a sentencing statement at all; entering a sentencing statement that explains

       its reasons for imposing a sentence where such reasons are not supported by the

       record or are improper as a matter of law; or entering a sentencing statement

       that omits reasons which are clearly supported by the record and advanced for

       consideration. Id. at 490-91. A trial court does not abuse its discretion by

       failing to properly weigh aggravating and mitigating factors. Id. at 491. If we

       find that the trial court has abused its sentencing discretion, our court will

       remand for resentencing only “if we cannot say with confidence that the trial

       court would have imposed the same sentence had it properly considered

       reasons that enjoy support in the record.” Id.


[17]   Child molesting as a Class A felony is punishable by a fixed term of between

       twenty and fifty years, with the advisory sentence being thirty years. See I.C. §

       35-50-2-4(a). Echartea-De La Suente’s Class C felonies are punishable for a

       fixed term of between two and eight years, with the advisory sentence being

       four years. See I.C. § 35-50-2-6. In this case, as factors warranting an

       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1280 | January 23, 2018   Page 9 of 15
       aggravated sentence, the trial court cited: 1) Echartea-De La Suente’s prior

       criminal history; 2) multiple victims and multiple offenses committed over a

       very long period of time; and 3) Echartea-De La Suente’s violation of his

       position of trust. The trial court specifically noted that it could “find no

       mitigation in the record” to weigh against several aggravators. (Tr. Vol. III, pp.

       61-62). Accordingly, the trial court imposed an aggravated sentence of thirty-

       five years each on the Class A felonies, to be served consecutively, and the

       advisory sentence of four years on each of the Class C felonies, to be served

       concurrently to the Class A felonies, for an aggregate sentence of seventy years.


[18]   Challenging the trial court’s finding of all three aggravators, Echartea-De La

       Suente first contends that his criminal history should actually be considered as a

       mitigating factor as it only consists of operating a vehicle while intoxicated in

       2008 and three operating while intoxicated offenses based on a single incident

       in 2012. Considering that Echartea-De La Suente did have “some prior

       criminal history,” the trial court also recognized that this history is “[n]ot prior

       to these offense[s] being committed necessarily but prior to sentencing here

       today.” (Tr. Vol. III, p. 61). While “the significance of criminal history varies

       based on the gravity, nature, and number of prior offenses in relation to the

       current offense,” the trial court here merely noted Echartea-De La Suente’s

       criminal record without awarding it significant weight. Garcia v. State, 47

       N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied. Accordingly, as the

       aggravator is supported by the record, the trial court properly considered

       Echartea-De La Suente’s criminal history.


       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1280 | January 23, 2018   Page 10 of 15
[19]   Turning to the trial court’s aggravator of “multiple victims and multiple

       offenses committed over a very long period of time,” Echartea-De La Suente

       argues that the trial court improperly relied on “acts of molestation with which

       the defendant was not charged.” (Tr. Vol. III, p. 61; Appellant’s Br. p. 15). In

       this instance, Echartea-De La Suente alludes to the trial court’s statement that

       “there is evidence from which the court can certainly conclude[], and does

       conclude, that there were more incidents that occurred than were charged in

       this case” to contend that the aggravator was improper. (Tr. Vol. III, p. 61).

       However, our review of the record indicates that the trial court explicitly

       identified the existence of multiple victims and multiple offenses committed

       over a long period of time as an aggravator, while the contested statement was

       merely an elaboration on the trial court’s thought process. At no point did the

       trial court characterize these uncharged offenses as a separate aggravator.


[20]   Lastly, Echartea-De La Suente disagrees about having ever been in a position of

       trust with the victims and thus also challenges this aggravator as improper. At

       the time of C.S.’s molestation in 2005, Echartea-De La Suente was dating

       C.S.’s mother and was a visitor at the residence. Apparently, he was close

       enough to the victims that C.S.’s mother allowed him to sleep in the bedroom

       with the entire family. In Rodriguez, we concluded that this type of behavior is

       sufficient to establish a position of trust. Rodriguez v. State, 868 N.E.2d 551, 555

       (Ind. Ct. App. 2007) (holding that the position of trust aggravator applies when

       the defendant “has a more than casual relationship with the victim and has

       abused the trust resulting from that relationship” and that “generally,


       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1280 | January 23, 2018   Page 11 of 15
       cohabitation arrangements of nearly any character between adults do in fact,

       and should, establish a position of trust between adults and minors living or

       staying together”). Accordingly, we find that the trial court’s consideration of

       this aggravator was appropriate.


[21]   Insofar as Echartea-De La Suente argues that his thirty-five-year aggravated

       sentence for Count I, the child molestation of C.S., constitutes an abuse of

       discretion as it is supported by improper aggravators pertaining to this specific

       Count, we note that Indiana does not require trial courts to specify aggravators

       and make separate findings regarding each individual offense. In Cardwell v.

       State, 895 N.E.2d 1219, 1224-25 (Ind. 2008), our supreme court clarified that


               In the case of some crimes, the number of counts that can be
               charged and proved is virtually entirely at the discretion of the
               prosecution. For that reason, appellate review should focus on
               the forest—the aggregate sentence—rather than the trees—
               consecutive or concurrent, number of counts, or length of the
               sentence on any individual count.


[22]   In sentencing Echartea-De La Suente to an aggregate sentence of seventy years,

       the trial court found multiple proper aggravating factors and no mitigating

       factors. Accordingly, we cannot say that the trial court abused its discretion in

       imposing an aggravated sentence.


                                      II. Inappropriate Sentence Review

[23]   Echartea-De La Suente also claims that his seventy-year sentence is

       inappropriate. As we previously indicated, “‘sentencing is principally a

       discretionary function in which the trial court’s judgment should receive
       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1280 | January 23, 2018   Page 12 of 15
       considerable deference.’” Parks v. State, 22 N.E.3d 552, 555 (Ind. 2014)

       (quoting Cardwell, 895 N.E.2d at 1222). However, our court may revise a

       statutorily permissible sentence if, “after due consideration of the trial court’s

       decision, [we] find[] that the sentence is inappropriate in light of the nature of

       the offense and the character of the offender.” Ind. Appellate Rule 7(B).


[24]   Appellate Rule 7(B) provides for sentence review in an “attempt to leaven the

       outliers, and identify some guiding principles for trial courts and those charged

       with improvement of the sentencing statutes, but not to achieve a perceived

       ‘correct’ result in each case.” Cardwell, 895 N.E.2d at 1225. Ultimately,

       “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.” Id.

       at 1224. Our court focuses on “the length of the aggregate sentence and how it

       is to be served.” Id. Echartea-De La Suente bears the burden of persuading this

       court that his sentence is inappropriate. Corbally v. State, 5 N.E.3d 463, 471

       (Ind. Ct. App. 2014). Echartea-De La Suente seeks a reduction in his sentence

       to the minimum sentence on Count I and the advisory sentence on the other

       Counts, with all Counts to run concurrent, for an aggregate sentence of thirty

       years.


[25]   With respect to the nature of the offense, “the advisory sentence is the starting

       point [that] our legislature has selected as [an] appropriate sentence for the

       crime committed.” Richardson v. State, 906 N.E.2d 241, 247 (Ind. Ct. App.

       2009). Here, the trial court sentenced Echartea-De La Suente to an aggregate,

       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1280 | January 23, 2018   Page 13 of 15
       aggravated term of seventy years. Echartea-De La Suente now claims that this

       is inappropriate because he “did not physically harm either of the girls. He did

       not have intercourse with either of them nor did he have either of them perform

       fellatio on him. His actions consisted of fondling, cunnilingus and digital

       penetration.” (Appellant’s Br. p. 18). However, our supreme court has held

       that “the absence of physical harm is not an automatic mitigating circumstance

       such that it would require a lesser sentence than would otherwise be imposed.”

       Neale v. State, 826 N.E.2d 635, 638 (Ind. 2005). Echartea-De La Suente only

       received sentences above the advisory for his Class A felony Counts, both of

       which were aggravated by five years. See I.C. § 35-50-2-4(a).


[26]   The record indicates that Echartea-De La Suente abused his position of trust

       with his two young victims, which allowed him to molest them over an

       extended period of time. Echartea-De La Suente initially molested C.S. by

       “continuously” inserting his finger into her vagina while she tried to resist by

       holding her legs together as tightly as she could. (Tr. Vol. III, p. 52). Gradually

       over time, Echartea-De La Suente’s behavior escalated to the point where, in an

       attempt to molest O.M., he threw her on the bed in his room and, after O.M

       escaped, he attempted to break into her locked bedroom. At sentencing, O.M.

       testified that as a result of the prolonged molestation, she no longer has a

       relationship with her mother, had to switch schools several times, and was

       barely graduating.


[27]   Turning to his character, the trial court noted that Echartea-De La Suente did

       not express any remorse; rather, he increased the victims’ harm by fleeing the

       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1280 | January 23, 2018   Page 14 of 15
       state. “Years went by that the victims lived with the uncertainty of what was

       going to happen with these charges.” (Tr. Vol. III, p. 61). He has shown

       contempt for the justice system as evidenced by his conscious decision to avoid

       turning himself in on a warrant for many years. Accordingly, we cannot say

       that Echartea-De La Suente’s sentence is inappropriate in light of the nature of

       the offense and his character.


                                             CONCLUSION
[28]   Based on the foregoing, we hold that: (1) the State presented sufficient evidence

       beyond a reasonable doubt to support Echartea-De La Suente’s conviction for

       one Count of child molesting as a Class A felony; (2) the trial court did not

       abuse its discretion in sentencing Echartea-De La Suente to an aggregate

       sentence of seventy years based on multiple aggravating factors and no

       mitigating factors; and (4) his aggregate sentence is appropriate in light of the

       nature of the offense and his character.


[29]   Affirmed.


[30]   Baker, J. and Brown, J. concur




       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1280 | January 23, 2018   Page 15 of 15
