MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D), this                       May 31 2018, 9:29 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                     CLERK
                                                                   Indiana Supreme Court
purpose of establishing the defense of res judicata,                  Court of Appeals
                                                                        and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Stanley L. Campbell                                    Curtis T. Hill, Jr.
Fort Wayne, Indiana                                    Attorney General of Indiana
                                                       Matthew B. MacKenzie
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Daniel Lopez-Castillo,                                     May 31, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           02A03-1711-CR-2783
        v.                                                 Appeal from the Allen Superior
                                                           Court
State of Indiana,                                          The Honorable Frances C. Gull,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           02D05-1610-F4-72



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1711-CR-2783 | May 31, 2018        Page 1 of 12
                                          Case Summary
[1]   At some point in 2015 or 2016, Daniel Lopez-Castillo molested his girlfriend

      Amy Pate’s two minor daughters by fondling their vaginas with his hand.

      When the girls were removed from the home due to Pate’s drug use, they told

      their foster mother of Lopez-Castillo’s molestations. The State charged Lopez-

      Castillo with two counts of Level 4 felony child molesting, a jury found Lopez-

      Castillo guilty as charged, and the trial court sentenced him to an aggregate

      term of sixteen years of incarceration. Lopez-Castillo contends that the trial

      court abused its discretion in admitting certain evidence, the State failed to

      produce sufficient evidence to sustain his convictions, and his sentence is

      inappropriately harsh. Because we disagree with all of Lopez-Castillo’s

      contentions, we affirm.



                            Facts and Procedural History
[2]   In 2015, A.M. (born November 5, 2006), A.P. (born November 28, 2005), and

      their mother Amy Pate lived in Lopez-Castillo’s house in Fort Wayne, in which

      the girls shared a bedroom. During this time, Lopez-Castillo would consume

      alcohol, sneak into the girls’ bedroom, and touch their vaginas with his hand.

      A.P. remembered her vagina smelling like beer after Lopez-Castillo molested

      her, while A.M. remembered Lopez-Castillo’s sweat dripping down on her and

      her vagina burning afterwards. Lopez-Castillo also touched A.P.’s vagina once

      while she was sitting on a couch.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1711-CR-2783 | May 31, 2018   Page 2 of 12
[3]   Both sisters would put items against the door to stop Lopez-Castillo from

      entering their room and place stuffed animals between their legs to deter him.

      A friend of the girls would occasionally sleep over and help the girls stack a

      crib, a suitcase, and a large television behind the door to keep Lopez-Castillo

      out. According to A.M. and A.P., Lopez-Castillo molested them three and four

      times, respectively.


[4]   A.M. and A.P. disclosed the molestation to Pate, who said that she did not

      believe them and told them that she needed to keep Lopez-Castillo around to

      pay the bills. The girls’ brother learned of the abuse from his grandmother, and

      Pate asked him to sleep in the girls’ room at night. The brother observed

      Lopez-Castillo coming out of the girls’ bedroom at night and, on May 24, 2016,

      called the Indiana Department of Child Services (“DCS”). DCS removed A.M.

      and A.P. from the home after Pate failed two drugs screens. The girls were

      placed into foster care with Juanita McAbee, and, on the second day they were

      with McAbee, told her about the abuse by Lopez-Castillo and their efforts to

      block the door.


[5]   On October 21, 2016, the State charged Lopez-Castillo with two counts of

      Level 4 felony child molesting, one count related to each girl. Prior to trial, the

      State filed notices of intent to use Evidence Rule 404(b) evidence and

      statements of protected persons. The State argued that the Rule 404(b) motion,

      which related to Pate’s drug use, was relevant and admissible as it reflected on

      her ability to recall and her motive to keep Lopez-Castillo in the home. The

      trial court ultimately granted the State’s motion regarding the 404(b) evidence.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1711-CR-2783 | May 31, 2018   Page 3 of 12
      The trial court also granted the State’s request to use statements by protected

      persons, specifically the girls’ statements to McAbee.


[6]   On September 19, 2017, a jury found Lopez-Castillo guilty as charged. On

      October 20, 2017, the trial court sentenced Lopez-Castillo to an aggregate

      sentence of sixteen years. In sentencing Lopez-Castillo, the trial court found

      mitigating circumstances in Lopez-Castillo’s lack of criminal history and

      employment, which it nonetheless found to be outweighed by his violation of a

      position of trust, his multiple victims, and the nature and circumstances of the

      offenses.


                                Discussion and Decision
                                Standard of Review for Issues I and II

[7]   The admissibility of evidence is within the sound discretion of the trial court.

      Curley v. State, 777 N.E.2d 58, 60 (Ind. Ct. App. 2002), trans denied. We will

      reverse a trial court’s decision on the admissibility of evidence only upon a

      showing of an abuse of that discretion. Id. An abuse of discretion may occur if

      the trial court’s decision is clearly against the logic and effect of the facts and

      circumstances before the court, or if the court has misinterpreted the law. Id.

      We may affirm the trial court’s ruling if it is sustainable on any legal basis in the

      record, even though it was not the reason enunciated by the trial court. Moore v.

      State, 839 N.E.2d 178, 182 (Ind. Ct. App. 2005), trans. denied. We do not

      reweigh the evidence, and consider the evidence most favorable to the trial




      Court of Appeals of Indiana | Memorandum Decision 02A03-1711-CR-2783 | May 31, 2018   Page 4 of 12
      court’s ruling. Hirsey v. State, 852 N.E.2d 1008, 1012 (Ind. Ct. App. 2006),

      trans. denied.


            I. Statements Made by A.M. and A.P. to McAbee
[8]   Lopez-Castillo contends that the trial court abused its discretion in admitting

      McAbee’s testimony regarding A.M.’s and A.P.’s statements to her about

      Lopez-Castillo’s molestations. Indiana law allows the admission of out-of-

      court statements made by protected persons provided that the trial court finds

      that “the time, content, and circumstances of the statement or videotape

      provide sufficient indications of reliability” and the protected persons either

      testify at trial or are found unavailable as witnesses. Ind. Code § 35-37-4-6(e).

      A.M. and A.P. are protected persons because they are both less than fourteen

      years old. See Ind. Code § 35-37-4-6(c)(1).


[9]   Even if we assume that the admission of McAbee’s evidence was improper,

      however, that admission can only have been harmless. McAbee did not testify

      about anything that A.M. and A.P told her that they did not testify to

      themselves directly, and it is well-settled that the admission or exclusion of

      “[e]vidence that is merely cumulative is not grounds for reversal.” Tobar v.

      State, 740 N.E.2d 106, 108 (Ind. 2000). McAbee testified that A.M. and A.P.

      told her that Lopez-Castillo molested them and that they took steps to prevent

      further molestation, which was merely cumulative of A.M.’s and A.P.’s

      testimony. Any error the trial court may have committed in this regard was

      harmless.



      Court of Appeals of Indiana | Memorandum Decision 02A03-1711-CR-2783 | May 31, 2018   Page 5 of 12
                                        II. 404(B) Evidence
[10]   Indiana Rule of Evidence 404(b) provides as follows:


               Evidence of other crimes, wrongs, or acts is not admissible to
               prove the character of a person in order to show action in
               conformity therewith. It may, however, be admissible for other
               purposes, such as proof of motive, intent, preparation, plan,
               knowledge, identity, or absence of mistake or accident, provided
               that upon request by the accused, the prosecution in a criminal
               case shall provide reasonable notice in advance of trial, or during
               trial if the court excuses pre-trial notice on good cause shown, of
               the general nature of any such evidence it intends to introduce at
               trial.
[11]   Lopez-Castillo contends that the admission of evidence regarding Pate’s drug

       use constituted an abuse of discretion. “The traditional office of Rule 404(b)

       has been to protect a defendant from being convicted based on unrelated prior

       bad acts.” Garland v. State, 788 N.E.2d 425, 428 (Ind. 2003).


               The principal risks of unfair prejudice presented by uncharged
               misconduct evidence are that the jury will infer that the
               defendant is a bad person who should be punished for other,
               uncharged misdeeds, Williams v. State, 677 N.E.2d 1077, 1081
               (Ind. Ct. App. 1997), and that the jury will draw the forbidden
               inference that the defendant’s character is such that she has a
               propensity to engage in conduct of the sort charged, and that she
               acted in conformity with that character on the occasion at issue
               in the charge.
       Id. (citing Rossetti v. Curran, 80 F.3d 1, 6 (1st Cir.1996)). While it is Pate’s

       alleged other bad acts—not Lopez-Castillo’s—which are at issue, the Indiana

       Supreme Court has held that Rule 404(b) applies to the acts of non-defendants

       as well. See id. To decide whether character evidence is admissible pursuant to


       Court of Appeals of Indiana | Memorandum Decision 02A03-1711-CR-2783 | May 31, 2018   Page 6 of 12
       Rule 404(b), a trial court must determine “whether the evidence of other

       crimes, wrongs, or acts is relevant to a matter at issue other than the person’s

       propensity to engage in a wrongful act,” and then balance “the probative value

       of the evidence against its prejudicial effect.” Bassett v. State, 795 N.E.2d 1050,

       1053 (Ind. 2003) (citing Hauk v. State, 729 N.E.2d 994, 1001 (Ind. 2000);

       Monegan v. State, 721 N.E.2d 243, 248 (Ind. 1999)).


[12]   Lopez-Castillo argues that evidence of Pate’s drug use was extraneous to the

       charges against him. While it is true that evidence of Pate’s drug use does not

       directly show that Lopez-Castillo molested A.M. and A.P., it is relevant to the

       extent that it rebuts any suggestion that the delay in reporting shows that the

       accusations were false. It is reasonable to infer that Pate’s drug use led to a

       financial dependency on Lopez-Castillo, which, in turn, led her to discount the

       girls’ accusations, or at least claim to. The girls could have concluded that it

       was futile to report Lopez-Castillo’s molestations to others if their own mother

       said that she did not believe them, or at least that it was futile while they were

       still living with her. We conclude that, under the circumstances of this case, the

       trial court did not abuse its discretion in concluding that evidence of Pate’s drug

       use was relevant.


[13]   Moreover, even if we were to assume that evidence of Pate’s drug use was not

       probative, Lopez-Castillo does not claim that the evidence prejudiced him in

       any way, much less that danger of prejudice substantially outweighed its

       probative value. “Evaluation of whether the probative value of an evidentiary

       matter is substantially outweighed by the danger of unfair prejudice is a


       Court of Appeals of Indiana | Memorandum Decision 02A03-1711-CR-2783 | May 31, 2018   Page 7 of 12
       discretionary task best performed by the trial court.” Bell v. State, 29 N.E.3d

       137, 142 (Ind. Ct. App. 2015) (citing Bryant v. State, 984 N.E.2d 240, 249 (Ind.

       Ct. App. 2013), trans. denied), trans. denied. “When determining any unfair

       prejudicial impact, courts should look for the dangers that the jury will

       substantially overestimate the value of the evidence or that the evidence will

       arouse or inflame the passions or sympathies of the jury.” Bell, 29 N.E.3d at

       142 (citing Duvall v. State, 978 N.E.2d 417, 428 (Ind. Ct. App. 2012)). Simply

       put, even if Lopez-Castillo had claimed that evidence of Pate’s drug use unfairly

       prejudiced him, we have difficulty seeing how this could have been the case.

       Lopez-Castillo has failed to establish that the trial court abused its discretion in

       admitting this evidence.


         III. Whether the State Produced Sufficient Evidence to
                 Sustain Lopez-Castillo’s Convictions
[14]   Lopez-Castillo contends that the State produced insufficient evidence to sustain

       his convictions for two counts of Level 4 felony child molesting. When

       reviewing the sufficiency of the evidence, we neither weigh the evidence nor

       resolve questions of credibility. Jordan v. State, 656 N.E.2d 816, 817. (Ind.

       1995). We look only to the evidence of probative value and the reasonable

       inferences to be drawn therefrom which support the verdict. Id. If from that

       viewpoint there is evidence of probative value from which a reasonable trier of

       fact could conclude that the defendant was guilty beyond a reasonable doubt,

       we will affirm the conviction. Spangler v. State, 607 N.E.2d 720, 724. (Ind.

       1993).


       Court of Appeals of Indiana | Memorandum Decision 02A03-1711-CR-2783 | May 31, 2018   Page 8 of 12
[15]   Lopez-Castillo contends only that A.T.’s and A.M.’s testimony that he

       molested them was incredibly dubious, mandating reversal of his convictions.

       “Appellate courts may […] apply the ‘incredible dubiosity’ rule to impinge

       upon a jury’s function to judge the credibility of a witness.” Fajardo v. State, 859

       N.E.2d 1201, 1208 (Ind. 2007) (citing Love v. State, 761 N.E.2d 806, 810 (Ind.

       2002)).


               If a sole witness presents inherently improbable testimony and
               there is a complete lack of circumstantial evidence, a defendant’s
               conviction may be reversed. This is appropriate only where the
               court has confronted inherently improbable testimony or coerced,
               equivocal, wholly uncorroborated testimony of incredible
               dubiosity. Application of this rule is rare and the standard to be
               applied is whether the testimony is so incredibly dubious or
               inherently improbable that no reasonable person could believe it.
       Love, 761 N.E.2d at 810 (citations omitted).


[16]   While Lopez-Castillo is correct that each of his convictions relies, in the end,

       almost solely on statements or testimony from the alleged victims, the

       incredible dubiosity rule will nonetheless not help him. First, there is at least

       some evidence to corroborate the girls’ story, as the girls’ brother saw Lopez-

       Castillo coming out of their room at night at least one time. Moreover, the

       girls’ testimony is neither inherently improbable nor equivocal and there is no

       hint of coercion. At trial, A.M. testified that Lopez-Castillo had molested her

       three times, and A.P. testified that Lopez-Castillo had molested her four times.

       A.M. and A.P. both testified that Lopez-Castillo would consume alcohol, enter

       their room at night, put his hand underneath their pajamas, and rub their



       Court of Appeals of Indiana | Memorandum Decision 02A03-1711-CR-2783 | May 31, 2018   Page 9 of 12
       vaginas. Both girls also testified that they would stack items up behind their

       door in an attempt to keep Lopez-Castillo out and would both place stuffed

       animals between their legs to keep him from molesting them. A.P. testified that

       her vagina would “sting a little” and smell like beer after Lopez-Castillo fondled

       her, while A.M. testified that her vagina would burn after he fondled her and

       that she could remember Defendant’s sweat dripping down onto her. Tr. Vol.

       II p. 143. There is nothing inherently improbable about any of this. Although

       Lopez-Castillo points to some minor inconsistencies or issues with the

       testimony, such things are for the jury to evaluate as it sees fit. The evidence

       used to support Lopez-Castillo’s convictions falls far short of being so

       inherently improbable that no reasonable person could credit it.


         IV. Whether Lopez-Castillo’s Sentence is Appropriate
[17]   Lopez-Castillo contends that his sixteen-year, aggregate sentence for his two

       Level 4 felony child molesting convictions is inappropriately harsh. We “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). “Although appellate review of sentences must give due consideration to

       the trial court’s sentence because of the special expertise of the trial bench in

       making sentencing decisions, Appellate Rule 7(B) is an authorization to revise

       sentences when certain broad conditions are satisfied.” Shouse v. State, 849

       N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations and quotation

       marks omitted). “[W]hether we regard a sentence as appropriate at the end of


       Court of Appeals of Indiana | Memorandum Decision 02A03-1711-CR-2783 | May 31, 2018   Page 10 of 12
       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.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). In

       addition to the “due consideration” we are required to give to the trial court’s

       sentencing decision, “we understand and recognize the unique perspective a

       trial court brings to its sentencing decisions.” Rutherford v. State, 866 N.E.2d

       867, 873 (Ind. Ct. App. 2007). Indiana Code section 35-50-2-5.5 provides, in

       part, that “[a] person who commits a Level 4 felony shall be imprisoned for a

       fixed term of between two (2) and twelve (12) years, with the advisory sentence

       being six (6) years.” The trial court imposed eight-year sentences for each of

       Lopez-Castillo’s convictions.


[18]   The nature of Lopez-Castillo’s offenses was that he exploited his position as a

       parental figure to violate the trust of A.M. and A.P., who were both under the

       age of twelve, by molesting them. The record contains indications of multiple

       violations over an extended period of time. The measures taken by A.M. and

       A.P. to prevent Lopez-Castillo from molesting them made it clear that his

       actions were not welcome, to say the least; yet, these measures apparently did

       nothing to deter Lopez-Castillo. Moreover, Lopez-Castillo’s crimes could not

       have come at a worse time for the girls, who were also dealing with the

       consequences of Pate’s drug problem, which was the reason DCS originally

       removed them from the home. Lopez-Castillo’s molestations have had a strong

       and negative impact on the girls. The nature of Lopez-Castillo’s offenses

       justifies his slightly-enhanced sentences.



       Court of Appeals of Indiana | Memorandum Decision 02A03-1711-CR-2783 | May 31, 2018   Page 11 of 12
[19]   Lopez-Castillo’s sentence is also not inappropriate in light of his character. In

       addition to what the nature of the offenses says about Lopez-Castillo’s

       character, he has shown no remorse for his crimes. At sentencing, Lopez-

       Castillo stated—in front of A.M. and A.P.—that “I also ask God to illuminate

       the minds of these two children, because—so they can do that—they don’t do

       this again. Because he who lies against his father or his mother or against any

       other person [commits] a serious sin.” Tr. Vol. III pp. 161–62. Lopez-

       Castillo’s attempt to shift blame to his victims does not speak well of his

       character. We acknowledge, as did the trial court, Lopez-Castillo’s lack of a

       prior criminal record and gainful employment. Given the nature of Lopez-

       Castillo’s offenses and his lack of remorse, however, this is not enough to

       convince us that his slightly-enhanced sentences are inappropriately harsh.


[20]   We affirm the judgment of the trial court.


       Baker, J, and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1711-CR-2783 | May 31, 2018   Page 12 of 12
