MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Feb 13 2019, 9:24 am
court except for the purpose of establishing
                                                                             CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark Small                                               Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Matthew B. MacKenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joseph Esparza,                                          February 13, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A02-1310-CR-889
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Dennis D. Carroll,
Appellee-Plaintiff.                                      Judge

                                                         Trial Court Cause No.
                                                         48C06-1208-FB-1530



Bradford, Judge.



Court of Appeals of Indiana | Memorandum Decision 48A02-1310-CR-889 | February 13, 2019          Page 1 of 11
                                              Case Summary
[1]   In March of 2012, Joseph Esparza sexually assaulted his daughter’s fifteen-year-

      old friend by penetrating her vagina with his fingers and penis. He was

      subsequently convicted of two counts of Class B felony sexual misconduct with

      a minor and sentenced to an aggregate seventeen-year term of incarceration

      with four years suspended to probation. Following the reinstatement of his

      direct appeal,1 Esparza argues that (1) the trial court committed fundamental

      error when it allowed the jury to hear unchallenged statements about his alleged

      flight from the jurisdiction, (2) his convictions violate the prohibitions against

      double jeopardy, and (3) the evidence is insufficient to sustain his convictions.

      We affirm.



                              Facts and Procedural History
[2]   In March of 2012, fifteen-year-old N.H. lived with her foster mother. C.E. was

      N.H.’s friend and N.H. would frequently go over to and spend the night at

      C.E.’s house. Esparza is C.E.’s father. N.H. viewed Esparza as a father-figure

      after living with C.E. and Esparza for a short period of time.




      1
        Esparza requested that his direct appeal be dismissed and that he be granted permission to file a Davis-
      Hatton post-conviction petition. In subsequently requesting that his direct appeal be reinstated, Esparza
      indicated that he had “determined that post-conviction relief was not in his best interests at this time and the
      post-conviction court ha[d] dismissed his petition without prejudice.” April 17, 2018 Order Reinstating
      Appeal.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1310-CR-889 | February 13, 2019             Page 2 of 11
[3]   On March 23, 2012, N.H. went to C.E.’s home to “hang out.” Tr. p. 332.

      Tracy Esparza, Esparza’s then-girlfriend and now wife, picked N.H. up from

      home between 4:00 and 5:00 p.m. On the way back to Esparza’s home, Tracy

      stopped at the Keg N’ Bottle where she purchased alcohol for C.E. and N.H.

      Throughout the evening, N.H. and C.E. were drinking and hanging out with

      C.E.’s brother and his girlfriend, L.S., Desmond Soverns, Tracy, and Esparza.


[4]   At some point, N.H. went upstairs to C.E.’s bedroom. As N.H. was standing

      looking in the mirror, Esparza came into the room, shut and locked the door,

      and walked up behind her. Esparza whispered “shhh” in N.H.’s ear as he put

      his hands down her pants. Tr. p. 340. N.H. felt Esparza’s fingers go “inside”

      her vagina. Tr. p. 341. Esparza continued to move his fingers as N.H. said “no

      Joe, no.” Tr. p. 341. Esparza then pushed N.H. back onto C.E.’s bed, pulled

      down her pants and undergarments, climbed on top of N.H., and inserted his

      penis into N.H.’s vagina. Esparza continued moving his penis in and out of

      N.H.’s vagina even as N.H. repeated “no Joe, no.” Tr. p. 343. Esparza did not

      remove his penis until he and N.H. heard C.E. “banging on the bedroom door”

      yelling N.H.’s name and telling her to open the door. Tr. p. 344. After Esparza

      stopped, N.H. pulled her undergarments and pants up. Esparza hid in C.E.’s

      closet wearing only shorts. After N.H. left the room, L.S. observed Esparza

      come out of C.E.’s closet wearing only shorts.


[5]   Once outside, N.H. called her boyfriend, asked him to come get her, and

      accused Esparza of raping her. C.E., L.S., Soverns, Tracy, and Esparza heard

      N.H. accuse Esparza of raping her. Esparza did not deny the allegation. After

      Court of Appeals of Indiana | Memorandum Decision 48A02-1310-CR-889 | February 13, 2019   Page 3 of 11
      N.H. attempted to contact her father, C.E. took N.H.’s phone away from her,

      causing a fight between C.E. and N.H. While C.E. and N.H. were fighting,

      Esparza and Tracy left the home.


[6]   N.H.’s boyfriend notified N.H.’s foster mother of what N.H. had told him.

      After unsuccessfully attempting to call N.H., N.H.’s foster mother contacted

      Esparza and Tracy, who indicated that they were not home. N.H.’s foster

      mother went to Esparza’s home and checked on N.H. before reporting the

      alleged assault to police.


[7]   Investigating officers subsequently learned that prior to leaving the home,

      Esparza instructed Soverns to tell law enforcement that he and Tracy were not

      home at the time of the alleged sexual assault. Esparza also instructed C.E. and

      L.S. to lie to police. L.S. initially lied to police, but eventually admitted both

      that Esparza had instructed her to lie and that N.H. had accused Esparza of

      raping her.


[8]   On August 16, 2012, the State charged Esparza with two counts of Class B

      felony sexual misconduct with a minor. Esparza was found guilty of both

      counts following a jury trial. The trial court then sentenced him to seventeen

      years with four years suspended to probation.



                                 Discussion and Decision



      Court of Appeals of Indiana | Memorandum Decision 48A02-1310-CR-889 | February 13, 2019   Page 4 of 11
                                       I. Fundamental Error
[9]    Esparza contends that the trial court committed fundamental error when it

       allowed the jury to hear unchallenged statements about his alleged flight from

       the jurisdiction.


               An error is fundamental, and thus reviewable on appeal, if it
               made a fair trial impossible or constituted a clearly blatant
               violation of basic and elementary principles of due process
               presenting an undeniable and substantial potential for harm.
               These errors create an exception to the general rule that a party’s
               failure to object at trial results in a waiver of the issue on appeal.
               This exception, however, is extremely narrow and encompasses
               only errors so blatant that the trial judge should have acted
               independently to correct the situation. At the same time, if the
               judge could recognize a viable reason why an effective attorney
               might not object, the error is not blatant enough to constitute
               fundamental error.


       Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018) (internal citations and

       quotations omitted).


[10]   Esparza’s argument seems to be that it was fundamental error for the trial court

       to allow the deputy prosecutor to make limited references to the fact that

       Esparza was recovered by federal marshals in Tennessee after the underlying

       charges were filed but not to somehow elicit unoffered testimony that he had

       previously left and returned to the jurisdiction on his own accord. As Esparza

       acknowledges, flight may be considered as consciousness of guilt. Bennett v.

       State, 883 N.E.2d 888, 892 (Ind. Ct. App. 2008), trans. denied. Esparza did not

       object to the deputy prosecutor’s statements referring to his alleged flight from

       Court of Appeals of Indiana | Memorandum Decision 48A02-1310-CR-889 | February 13, 2019   Page 5 of 11
       the jurisdiction and has not alleged that his trial counsel was ineffective for

       failing to challenge the deputy prosecutor’s statements relating to his alleged

       flight or presented any explanation on appeal as to how he was supposedly

       harmed by these statements. Instead, in making this argument, Esparza cites to

       statements made by Tracy during a pretrial hearing on the State’s petition to

       revoke his bail indicating that he had previously left and returned to the

       jurisdiction on his own accord. He appears to argue that the trial court

       committed fundamental error by failing to elicit testimony similar to Tracy’s

       pretrial statements during trial. The trial court, however, had no duty to do so.

       Further, even if Tracy’s statements had been admitted during trial, we fail to see

       how these statements would have had any impact on the outcome of trial. As

       such, we conclude that Esparza has failed to establish error, much less

       fundamental error.


                                        II. Double Jeopardy
[11]   Esparza next contends that his convictions for two counts of Class B felony

       sexual misconduct with a minor violate both the Federal and Indiana

       constitutional prohibitions against double jeopardy. “[D]ouble jeopardy

       protection prohibits twice subjecting an accused to the risk that he will be

       convicted of a single crime.” Garrett v. State, 992 N.E.2d 710, 721 (Ind. 2013).

       In claiming that his convictions violate the prohibitions against double

       jeopardy, Esparza argues that because the charged behavior occurred during a

       single short episode of criminal conduct, the jury must have relied on the same

       evidence to find him guilty of both offenses. We disagree.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1310-CR-889 | February 13, 2019   Page 6 of 11
[12]   While Esparza mentions both the Fifth Amendment to the United States

       Constitution and Article 1, Section 14 of the Indiana Constitution in setting

       forth his double jeopardy claim, his argument is based solely upon case law

       relating to Article 1, Section 14 and he makes no independent argument relating

       to the federal constitution. As such, we will limit our review to Esparza’s

       argument relating to the Indiana Constitution.2


                Article 1, Section 14 of the Indiana Constitution provides that
                “[n]o person shall be put in jeopardy twice for the same offense.”
                In Richardson v. State, 717 N.E.2d 32 (Ind. 1999), our Supreme
                Court concluded that two or more offenses are the same offense
                in violation of Article I, Section 14 if, with respect to either the
                statutory elements of the challenged crimes or the actual evidence
                used to obtain convictions, the essential elements of one
                challenged offense also establish the essential elements of another
                challenged offense. Under the actual evidence test, we examine
                the actual evidence presented at trial in order to determine
                whether each challenged offense was established by separate and
                distinct facts. Id. at 53. To find a double-jeopardy violation
                under this test, we must conclude that there is “a reasonable
                possibility that the evidentiary facts used by the fact-finder to
                establish the essential elements of one offense may also have
                been used to establish the essential elements of a second
                challenged offense.” Id.




       2
         Even if Esparza had adequately raised a Fifth Amendment claim, we note that such a claim would fail. In
       Blockburger v. United States, 284 U.S. 299 (1932), the United States Supreme Court announced the now well-
       established test for determining federal double jeopardy claims. “Under the Blockburger test, a defendant’s
       conviction upon multiple offenses will not be precluded by double jeopardy principles under the federal
       constitution if each statutory offense ‘requires proof of a fact which the other does not.’” Brown v. State, 912
       N.E.2d 881, 892 (Ind. Ct. App. 2009) (quoting Blockburger, 284 U.S. at 304). Each of Esparza’s convictions
       required proof of a fact which the other did not, i.e., penetration by Esparza’s fingers and penetration by
       Esparza’s penis.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1310-CR-889 | February 13, 2019             Page 7 of 11
       Vermillion v. State, 978 N.E.2d 459, 464 (Ind. Ct. App. 2012).


[13]   In Vermillion, the defendant was charged with two distinct acts of sexual

       misconduct. Id. The victim’s testimony established distinct evidence for each

       count, punctuated by her repeated requests that the defendant stop touching

       her. Id. On appeal, we concluded that the State established that the defendant

       committed two separate offenses based on distinct facts and there was no

       reasonable possibility that the jury used the same evidentiary facts to establish

       both offenses. Id. at 465. As such, there was no double-jeopardy violation. Id.


[14]   Likewise, here, N.H. testified that Esparza committed two distinct acts of

       sexual misconduct. The first was Esparza placing his fingers inside her clothing

       and inserting his fingers into her vagina. The second was Esparza forcing her

       down onto his daughter’s bed, removing her pants, and inserting his penis into

       her vagina. Like the victim in Vermillion, N.H. testified that her repeated

       requests that Esparza stop were ignored. Esparza only stopped after his

       daughter and L.S. began knocking on the locked bedroom door trying to find

       N.H. As was the case in Vermillion, the State established that Esparza

       committed two separate offenses based on distinct facts. Because there is no

       reasonable possibility that the jury used the same evidentiary facts to establish

       the essential elements of both charges, there is no double-jeopardy violation.

       See id.


                              III. Sufficiency of the Evidence
[15]   Esparza last contends that the evidence is insufficient to sustain his convictions.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1310-CR-889 | February 13, 2019   Page 8 of 11
               When reviewing the sufficiency of the evidence to support a
               conviction, appellate courts must consider only the probative
               evidence and reasonable inferences supporting the verdict. It is
               the fact-finder’s role, not that of appellate courts, to assess
               witness credibility and weigh the evidence to determine whether
               it is sufficient to support a conviction. To preserve this structure,
               when appellate courts are confronted with conflicting evidence,
               they must consider it most favorably to the trial court’s ruling.
               Appellate courts affirm the conviction unless no reasonable fact-
               finder could find the elements of the crime proven beyond a
               reasonable doubt. It is therefore not necessary that the evidence
               overcome every reasonable hypothesis of innocence. The
               evidence is sufficient if an inference may reasonably be drawn
               from it to support the verdict.


       Drane v. State, 867 N.E.2d 144, 146–47 (Ind. 2007) (citations, emphasis, and

       quotations omitted). A conviction may be based on the uncorroborated

       testimony of a single witness “if the testimony is sufficient to convince the trier

       of fact beyond a reasonable doubt.” Robinson v. State, 446 N.E.2d 1287, 1291

       (Ind. 1983) (providing that a victim’s uncorroborated testimony was sufficient

       to sustain the defendant’s conviction for child molesting).


[16]   In challenging the sufficiency of the evidence to sustain his convictions, Esparza

       asks us to re-evaluate N.H.’s testimony based upon the incredible dubiosity

       rule.


               This rule is applicable only when a lone witness offers inherently
               contradictory testimony that is equivocal or the result of coercion
               and there is a complete lack of circumstantial evidence of the
               appellant’s guilt. To interfere with the jury’s authority to judge
               witness credibility and evaluate evidence, the court must be
               presented with testimony which runs counter to human

       Court of Appeals of Indiana | Memorandum Decision 48A02-1310-CR-889 | February 13, 2019   Page 9 of 11
               experience and that reasonable persons could not believe.… The
               incredible dubiosity test is a difficult standard to meet, one that
               requires great ambiguity and inconsistency in the evidence.


       Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001) (internal citations and

       quotations omitted).


[17]   Review of the record reveals that N.H.’s testimony was not incredibly dubious.

       N.H.’s testimony was consistent and was partially corroborated by other

       evidence in the record. N.H. testified that on the night in question, she was at

       Esparza’s house to spend time with her friend, his daughter, C.E. At some

       point, N.H. went upstairs to C.E.’s room. N.H. was standing looking in the

       mirror in C.E.’s room when Esparza came into the room, shut and locked the

       door, and walked up behind her. Esparza whispered “shhh” in N.H.’s ear as he

       put his hands down her pants. Tr. p. 340. N.H. felt Esparza’s fingers go

       “inside” her vagina. Tr. p. 341. Esparza continued to move his fingers as N.H.

       said “no Joe, no.” Tr. p. 341. Esparza then pushed N.H. back onto C.E.’s bed,

       pulled down her pants and undergarments, climbed on top of N.H., and

       inserted his penis into N.H.’s vagina. Esparza continued moving his penis in

       and out of N.H.’s vagina even as N.H. continued to say “no Joe, no.” Tr. p.

       343. Esparza did not remove his penis until he heard C.E. “banging on the

       bedroom door” yelling N.H.’s name and telling her to open the door. Tr. p.

       344. After Esparza stopped, N.H. pulled her undergarments and pants up while

       Esparza hid in C.E.’s closet wearing only shorts.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1310-CR-889 | February 13, 2019   Page 10 of 11
[18]   While there was no evidence corroborating N.H.’s account of what happened

       inside C.E.’s bedroom, there was ample evidence corroborating other aspects of

       N.H.’s testimony. For instance, there was evidence in the record corroborating

       N.H.’s testimony that prior to the incidents involving Esparza, she and C.E.

       had been drinking alcohol that had been provided by Tracy. In addition, N.H.

       testified that once C.E. opened the door, she immediately left the room. This

       testimony was corroborated by L.S.’s testimony that once C.E. unlocked and

       opened the door to her bedroom, N.H. “walked straight out of the bedroom and

       walked downstairs.” Tr. p. 585. Once in the bedroom, L.S. observed Esparza

       come out of C.E.’s closet wearing only shorts. Other evidence also supported

       N.H.’s testimony that she eventually became involved in a fight with C.E. after

       C.E. took her phone away as N.H. was trying to report Esparza’s actions.

       N.H.’s credibility is also strengthened by the fact that Soverns and L.S. both

       admitted that Esparza attempted to persuade them to lie to police and say that

       he was not present in the home at the time when N.H. was assaulted.


[19]   N.H.’s testimony was both consistent and sufficient to convince the jury beyond

       a reasonable doubt. Esparza’s contention to the contrary amounts to a request

       to reweigh N.H.’s credibility and the evidence, which we will not do. See

       Stewart v. State, 768 N.E.2d 433, 435 (Ind. 2002) (“We do not reweigh the

       evidence or assess the credibility of witnesses.”).


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


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


       Court of Appeals of Indiana | Memorandum Decision 48A02-1310-CR-889 | February 13, 2019   Page 11 of 11
