MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                      Mar 05 2019, 6:01 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
Carlos I. Carrillo                                       Curtis T. Hill, Jr.
Greenwood, Indiana                                       Attorney General of Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Alejandro Hernandez-Miguel,                              March 5, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2441
        v.                                               Appeal from the Clinton Circuit
                                                         Court
State of Indiana,                                        The Honorable Bradley K. Mohler,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         12C01-1709-F4-1018



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2441 | March 5, 2019                      Page 1 of 11
                                             Case Summary
[1]   Alejandro Hernandez-Miguel (“Hernandez-Miguel”) challenges his conviction

      for child molesting as a Level 4 felony1 and his sentence. We affirm.



                                                       Issues
[2]   Hernandez-Miguel raises four issues which we consolidate and restate as

      follows:


                I.       Whether the State provided sufficient evidence to support
                         his conviction for child molesting, as a Level 4 felony.


                II.      Whether the trial court erred in failing to advise
                         Hernandez-Miguel of the consequences of being a credit-
                         restricted felon.


                III.     Whether Hernandez-Miguel’s sentence is inappropriate in
                         light of the nature of his offense and his character.


                               Facts and Procedural History
[3]   B.M.H., born July 8, 2011, is the child of Miranda Martin (“Martin”) and

      Hernandez-Miguel. Hernandez-Miguel had supervised visits2 starting when

      B.M.H. was approximately eight months old. When B.M.H. was




      1
          Ind. Code § 35-42-4-3(b).
      2
          The record does not disclose why Hernandez-Miguel’s visits with B.M.H. were initially supervised.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2441 | March 5, 2019                    Page 2 of 11
      approximately three years old, Hernandez-Miguel began to have unsupervised

      over-night visits with B.M.H. at Hernandez-Miguel’s home.


[4]   On September 6, 2017, when B.M.H. was approximately six years old, he told

      his aunt, Samantha Stevens (“Stevens”), that Hernandez-Miguel had molested

      him. The next morning, while B.M.H. was in school, Stevens told Martin

      about B.M.H.’s disclosure of the molestations. Immediately thereafter, Martin

      and Stevens went to the Franklin City Police Department (“FCPD”) to make a

      report and spoke with Officer Mike Cesar (“Officer Cesar”). Officer Cesar

      instructed Martin that she should speak with B.M.H. to confirm the molestation

      allegations.


[5]   That evening, while B.M.H., Martin, and Stevens were together, B.M.H.—

      without prompting—began speaking about being molested by Hernandez-

      Miguel. Martin used a smart phone to record the conversation, because, as she

      later related, “I don’t want later for anyone to say I told him to say something

      because that happens to people all the time.” Tr. at 50. A week later, B.M.H.

      had a forensic interview with the FCPD about the allegations of molestation.

      After that interview, B.M.H. initiated another conversation with his mother

      about the molestation, which Martin also recorded. Martin gave the two

      recordings of her conversations with B.M.H. to the FCPD.


[6]   On September 22, 2017, the State charged Hernandez-Miguel with one count of

      child molesting, as a Level 4 felony. Hernandez-Martin waived a jury trial and

      had a bench trial on July 13, 2018. At the trial, Martin’s recordings of B.M.H.’s


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2441 | March 5, 2019   Page 3 of 11
      statements were not admitted into evidence. The forensic interview of B.M.H.

      also was not admitted into evidence; however, FCPD Officer Van Jason

      Albaugh (“Officer Albaugh”), who was present at the forensic interview,

      testified that B.M.H. had informed the police that Hernandez-Miguel “wiggled

      [B.M.H.’s] peepee.” Id. at 61. B.M.H. also testified at the trial. He stated that

      Hernandez-Miguel put his hands down B.M.H.’s pants, under his underwear,

      and held his penis and buttocks. He testified that Hernandez-Miguel touched

      him like that “for a long time,” id. at 19, and “a lot,” id. at 18. Hernandez-

      Miguel also testified. He admitted that he had touched B.M.H. but only on the

      outside of B.M.H.’s clothes and only to determine whether the clothes were wet

      from B.M.H. urinating on himself, which he frequently did.


[7]   The court found Hernandez-Miguel guilty as charged and held a sentencing

      hearing on September 12, 2018. The trial court noted as aggravators

      Hernandez-Miguel’s criminal history, the victim’s age being less then twelve

      years, and Hernandez-Miguel’s position of care, custody, or control over the

      victim. The court found no mitigating factors and sentenced Hernandez-

      Miguel to seven years imprisonment, with two years suspended to probation.

      This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2441 | March 5, 2019   Page 4 of 11
                                 Discussion and Decision
                                 Sufficiency of the Evidence
[8]   Hernandez-Miguel challenges the sufficiency of the evidence to support his

      conviction. Our standard of review of the sufficiency of the evidence is well-

      settled:


              When reviewing the sufficiency of the evidence needed to
              support a criminal conviction, we neither reweigh evidence nor
              judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005
              (Ind. 2009). “We consider only the evidence supporting the
              judgment and any reasonable inferences that can be drawn from
              such evidence.” Id. We will affirm if there is substantial
              evidence of probative value such that a reasonable trier of fact
              could have concluded the defendant was guilty beyond a
              reasonable doubt. Id.


      Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013), trans. denied. “A

      conviction may be based on circumstantial evidence alone so long as there are

      reasonable inferences enabling the factfinder to find the defendant guilty

      beyond a reasonable doubt.” Lawrence v. State, 959 N.E.2d 385, 388 (Ind. Ct.

      App. 2012) (citation omitted), trans. denied.


[9]   To support Hernandez-Miguel’s conviction of child molesting, as a Level 4

      felony, the State was required to prove that Hernandez-Miguel, with a child

      under age fourteen, performed or submitted to any fondling or touching of the

      child with intent to arouse the sexual desires of either the child or himself. I.C.

      § 35-42-4-3(b). It is undisputed that B.M.H. was under age fourteen and that


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2441 | March 5, 2019   Page 5 of 11
       Hernandez-Miguel touched B.M.H.’s genital area. However, Hernandez-

       Miguel contends on appeal that he did not have the intent to arouse the sexual

       desires of either himself or B.M.H.; rather, he maintains, he touched B.M.H.’s

       genitals on the outside of his clothing only to determine whether B.M.H. had

       urinated on himself.


[10]   “The intent element of child molesting may be established by circumstantial

       evidence and may be inferred from the actor’s conduct and the natural and

       usual consequence to which such conduct usually points.” Carter v. State, 31

       N.E.3d 17, 30 (Ind. Ct. App. 2015), trans. denied. Furthermore, a molested

       child’s uncorroborated testimony alone is sufficient to sustain a child molesting

       conviction. E.g., Amphonephong v. State, 32 N.E.3d 825, 832 (Ind. Ct. App.

       2015); see also Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012) ( “The

       testimony of a sole child witness is sufficient to sustain a conviction for

       molestation.”).


[11]   Here, Officer Albaugh testified that B.M.H. had informed the police that

       Hernandez-Miguel “wiggled [B.M.H.’s] peepee.” Id. at 61. And B.M.H.

       testified that Hernandez-Miguel reached into B.M.H’s pants and touched his

       penis and buttocks frequently and for an extended period of time. From that

       evidence, it was reasonable for the trial court to infer that Hernandez-Miguel

       did not briefly touch B.M.H.’s genitals from the outside of his pants for the sole

       purpose of determining whether B.M.H. had urinated on himself but, rather,

       directly touched and fondled B.M.H.’s genitals for an extended period of time

       for the purpose of arousing his own sexual desires. See Amphonephong, 32

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2441 | March 5, 2019   Page 6 of 11
       N.E.3d at 833 (holding child’s testimony that defendant repeatedly put his

       hands in her pants and touched her genitals was sufficient evidence of intent to

       arouse or satisfy defendant’s sexual desires). Hernandez-Miguel’s contentions

       to the contrary are merely requests that we reweigh the evidence and judge

       witness credibility, which we cannot do. Clemons, 996 N.E.2d at 1285. There

       was sufficient evidence to support Hernandez-Miguel’s conviction.


                Advisement Regarding Credit Restricted Felon
[12]   Hernandez-Miguel maintains that the trial court committed reversible error

       when it failed to advise him of whether he was a credit restricted felon and the

       consequences of being a credit restricted felon. Indiana Code Section 35-38-1-

       7.8 requires the trial court at sentencing to determine whether a person qualifies

       as a credit restricted felon. An offender qualifies as a credit restricted felon if he

       or she is convicted of child molesting involving sexual intercourse or “other

       sexual conduct”; if he or she is convicted of child molesting resulting in serious

       bodily injury or death; or if he or she is convicted of a murder involving other

       circumstances related to sexually-based crimes. I.C. §§ 35-31.5-2-72 (listing

       qualifying convictions for credit restricted felon classification); 35-31.5-2-221.5

       (defining “other sexual conduct” as “an act involving [either] a sex organ of one

       (1) person and the mouth or anus of another person; or the penetration of the

       sex organ or anus of a person by an object”). “Upon determining that a

       defendant is a restricted felon, a court shall advise the defendant of the

       consequences of this determination.” I.C. § 35-38-1-7.8(c) (emphasis added).



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2441 | March 5, 2019   Page 7 of 11
[13]   Here, the trial court did not determine that Hernandez-Miguel is a credit

       restricted felon. Therefore, under the plain language of subsection (c) of the

       statute, the trial court was not required to inform Hernandez-Miguel of the

       consequences of being a credit restricted felon. Id. Moreover, there is nothing

       in the language of the statute that requires a trial court to advise a defendant

       that he is not a credit restricted felon, and Hernandez-Miguel cites no other

       authority in support of that contention. The trial court did not err in failing to

       advise Hernandez-Miguel of the fact that he is not a credit restricted felon and

       the consequences of being a credit restricted felon.


                               Inappropriateness of Sentence
[14]   Hernandez-Miguel contends that his sentence is inappropriate in light of the

       nature of the offense and his character. Article 7, Sections 4 and 6, of the

       Indiana Constitution authorize independent appellate review and revision of a

       sentence imposed by the trial court. See, e.g., Sanders v. State, 71 N.E.3d 839,

       843 (Ind. Ct. App. 2017), trans. denied. This appellate authority is implemented

       through Indiana Appellate Rule 7(B). Id. Revision of a sentence under Rule

       7(B) requires the appellant to demonstrate that his sentence is inappropriate in

       light of the nature of his offense and his character. Id. (citing Ind. Appellate

       Rule 7(B)). We assess the trial court’s recognition or non-recognition of

       aggravators and mitigators as an initial guide to determining whether the

       sentence imposed was inappropriate. Robinson v. State, 61 N.E.3d 1226, 1228

       (Ind. Ct. App. 2016).



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2441 | March 5, 2019   Page 8 of 11
[15]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

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

       receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.

       2008). The principal role of appellate review is to attempt to “leaven the

       outliers.” Id. at 1225. 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).


[16]   Hernandez-Miguel contends that the nature of the offense does not support his

       seven-year sentence, which is within the two-to-twelve-year sentencing range

       for a Level 4 felony and is only one year above the advisory sentence of six

       years. I.C. § 35-50-2-5.5. When considering the nature of the offense, we look

       at the defendant’s actions in comparison to the elements of the offense. Cannon

       v. State, 99 N.E.3d 274, 280 (Ind. Ct. App. 2018), trans. denied. Child

       molestation is among the most severe and heinous of offenses and, here, the

       crime was made worse by the fact that Hernandez-Miguel molested his own

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2441 | March 5, 2019   Page 9 of 11
       young son. As the trial court properly recognized, this criminal behavior was a

       violation of the position of care, custody, and control that a parent has in

       relation to his child. See Bacher v. State, 722 N.E.2d 799, 801-02 (Ind. 2000)

       (noting fact that defendant was in a “position of trust” with the victim was a

       valid aggravating circumstance). And Hernandez-Miguel has failed to provide

       compelling evidence portraying in a positive light the nature of his offense, such

       as restraint; rather, the evidence showed that Hernandez-Miguel molested

       B.M.H. “a lot,” i.e., frequently. Tr. at 18.


[17]   Hernandez-Miguel also asserts that his sentence is inappropriate in light of his

       character. In support of that claim, he notes that “he was not the ‘worst of the

       worst’ offenders,” and did not have a criminal history of violence or sexual

       abuse. Appellant’s Br. at 20. However, his criminal history of one felony and

       two misdemeanor convictions is certainly an aggravating circumstance. I.C. §

       35-38-1-7.1(a)(2). That criminal history, in conjunction with his abuse of his

       position of care, custody, and control over his own young child,3 supports the




       3
         The trial court erred in considering the age of the victim as an aggravator because age was an element of
       the offense, I.C. § 35-42-4-3(b), and the court failed to articulate the particular relevance of the child’s age as
       an aggravator, App. at 22-23; Tr. at 97.
                While the victim being under twelve can be an aggravator, see Ind. Code § 35–38–1–7.1(a)(3), our
                Supreme Court has made clear that “[w]hen the age of a victim constitutes a material element of the
                crime,” the trial court cannot treat it as an aggravating circumstance unless it sets forth
                “particularized circumstances” justifying such treatment, McCarthy v. State, 749 N.E.2d 528, 539
                (Ind. 2001); see also Reyes v. State, 909 N.E.2d 1124, 1128 (Ind. Ct. App. 2009) (upholding use of
                molestation victim’s age as aggravator where trial court addressed relevance of age); Sullivan v. State,
                836 N.E.2d 1031, 1035 (Ind. Ct. App. 2005) (same).
       McCoy v. State, 96 N.E.3d 95, 99 (Ind. Ct. App. 2018). However, that error was harmless as there existed
       other aggravating circumstances supporting the sentence.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2441 | March 5, 2019                         Page 10 of 11
       trial court’s decision to impose a sentence only one year longer the advisory

       sentence. Against these aggravators, Hernandez-Miguel points to no mitigating

       evidence, such as substantial virtuous traits or persistent examples of good

       character, and the trial court found none. Stephenson, 29 N.E.3d at 122.

       Although he notes that he worked and paid child support, we are not persuaded

       that those facts mitigate his sexual molestation of his own young child. We

       cannot say that his sentence is inappropriate in light of his character.



                                               Conclusion
[18]   The State presented sufficient evidence to support Hernandez-Miguel’s

       conviction. And the trial court did not err in failing to inform Hernandez-

       Miguel of the fact that he is not a credit restricted felon and the consequences of

       being a credit restricted felon. Finally, Hernandez-Miguel’s sentence, which

       was only one year longer than the advisory sentence, was not inappropriate in

       light of the nature of the offense and his character.


[19]   Affirmed.


       Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2441 | March 5, 2019   Page 11 of 11
