MEMORANDUM DECISION
                                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),                                      May 12 2017, 7:58 am
this Memorandum Decision shall not be                                            CLERK
regarded as precedent or cited before any                                    Indiana Supreme Court
                                                                                Court of Appeals
court except for the purpose of establishing                                      and Tax Court


the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                     Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        Larry D. Allen
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Armando M. Bruno,                                       May 12, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        14A01-1606-CR-1530
        v.                                              Appeal from the Daviess Superior
                                                        Court
State of Indiana,                                       The Honorable Dean A. Sobecki,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        14D01-1502-FA-172



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 14A01-1606-CR-1530 | May 12, 2017             Page 1 of 28
[1]   Following a jury trial, Armando M. Bruno was convicted of two counts of child

      molesting as Class A felonies and two counts of child molesting as Class C

      felonies. Bruno was sentenced to an aggregate term of eighty years

      imprisonment. Bruno presents five issues for our review, which we restate as:


              1. Did the trial court abuse its discretion in admitting Bruno’s
              recorded statement into evidence?


              2. Did the trial court abuse its discretion in excluding certain
              evidence pursuant to the Rape Shield Rule?


              3. Is the evidence sufficient to support Bruno’s Class A felony
              child molesting convictions?


              4. Did the trial court err in sentencing Bruno?


              5. Is Bruno’s sentence inappropriate?


              6. Did the trial court abuse its discretion in ordering Bruno to
              pay restitution to the State?


[2]   We affirm in part and reverse in part.


                                       Facts & Procedural History


[3]   Bruno was born on December 4, 1959 and is a native of Guatemala. Bruno

      came to the United States in 2003. In 2006, Bruno became the pastor of a small

      church in Washington, Indiana. Initially, Bruno lived with a family at their

      home on Grand Avenue, and Bruno’s church met in the family’s basement.

      The family had a six-year-old son, D.A., who was born in December of 2000.
      Court of Appeals of Indiana | Memorandum Decision 14A01-1606-CR-1530 | May 12, 2017   Page 2 of 28
[4]   Bruno had an extremely close relationship with the family and would often care

      for D.A. and his siblings while D.A.’s parents were away. One evening during

      the time Bruno lived with D.A.’s family and while Bruno was babysitting D.A.,

      Bruno called D.A. into D.A.’s room. After D.A. complied with Bruno’s

      instructions to pull his pants down and bend over his bed, Bruno inserted his

      penis into D.A.’s anus. The assault ended abruptly when the phone rang.

      Bruno instructed D.A. to go to the bathroom and clean himself before his

      parents returned.


[5]   After approximately a year of operating the church out of the family’s

      basement, D.A.’s family purchased a building on Main Street to house Bruno’s

      church. Bruno had a room in the building and thus, moved from the family’s

      home. Even after Bruno moved from the family’s home, he visited D.A. and

      the family daily and would spend the night at their house on a regular basis.


[6]   At some point D.A.’s family moved from the Grand Avenue home. Shortly

      thereafter, D.A. told his father about what Bruno had done to him—

      specifically, that Bruno had placed his penis in his anus. D.A.’s father

      confronted Bruno, who denied the inappropriate encounter and claimed that

      D.A. was lying and was possessed by the devil. Bruno shared with D.A.’s

      father an excerpt from a book titled “Lucifer Dethroned” and convinced him

      that D.A. “was in bad shape.” Transcript Vol. I at 133. D.A.’s father apologized

      to Bruno and did not further pursue D.A.’s allegation.




      Court of Appeals of Indiana | Memorandum Decision 14A01-1606-CR-1530 | May 12, 2017   Page 3 of 28
[7]   After moving from the Grand Avenue home, D.A. and his family moved to a

      home on John Street and then moved in with D.A.’s maternal grandparents for

      a short time. D.A. maintains that Bruno did not assault him while the family

      lived at either of these locations. In June or July of 2010, D.A.’s family moved

      into a three-bedroom mobile home in Southview Homes in Washington.

      Bruno continued his close relationship with D.A.’s family and would often visit

      and stay overnight at the Southview home. When Bruno stayed over, he would

      sleep in the room closest to the children’s room.


[8]   Within weeks after D.A.’s family moved to the Southview home, Bruno

      resumed his sexual assaults of D.A. Over the course of the next four years,

      Bruno repeatedly sexually assaulted D.A. The assaults occurred at night when

      Bruno would go into the room D.A. shared with his siblings. While D.A.’s

      siblings were sleeping, Bruno would fondle D.A.’s penis with his hand or have

      D.A. touch his penis and masturbate him. On more than fifteen occasions,

      Bruno had D.A. bend over his bed and then Bruno inserted his penis into

      D.A.’s anus. D.A. reported that Bruno would put a cream or his own saliva on

      his own penis before doing so. Bruno would ejaculate during some of the

      encounters, and D.A. would then go to the bathroom to clean himself. Bruno

      told D.A. not to tell anyone about their encounters or he would “do it harder.”

      Id. at 211.


[9]   In the summer of 2014, when D.A. was thirteen years old, D.A. told his father

      about the ongoing sexual abuse perpetrated by Bruno. D.A.’s father, along

      with D.A., confronted Bruno, who again denied all of D.A.’s allegations. D.A.

      Court of Appeals of Indiana | Memorandum Decision 14A01-1606-CR-1530 | May 12, 2017   Page 4 of 28
       began to cry and, pointing at Bruno, implored, “You know the truth.” Id. at

       138. After D.A. left the room, Bruno then began to cry and admitted to D.A.’s

       father that he had touched D.A. and asked D.A.’s father for forgiveness.


[10]   About a month later, Bruno met with D.A.’s parents at the family’s Southview

       home. Unbeknownst to Bruno, D.A.’s father recorded the conversation. Bruno

       admitted he was guilty of unspecified acts and begged for the family’s

       forgiveness. After this meeting, Bruno sent text messages to D.A.’s father

       apologizing and acknowledging again that he was “guilty of what occurred.”

       State’s Exhibit 16.


[11]   D.A.’s father did not immediately report the molestation out of concern for the

       church and because Bruno was seeking forgiveness. Approximately six months

       later, Bruno made disparaging comments about D.A.’s family to the church

       congregation and as a result, D.A.’s family decided to leave the church. On

       January 30, 2015, D.A. and his father went to the police station to report the

       sexual abuse.


[12]   After receiving the report, Detective Daniel Christie of the Washington City

       Police Department, along with other officers, went to Bruno’s house. It was

       late and Bruno was asleep. Bruno was asked if he would come to the police

       station and answer some questions, and he agreed. After Bruno changed his

       clothes, he was transported to the police station in the back of a patrol car.

       Bruno was never placed in handcuffs. Once at the police station, Bruno was




       Court of Appeals of Indiana | Memorandum Decision 14A01-1606-CR-1530 | May 12, 2017   Page 5 of 28
       placed in an interview room. Bruno speaks, reads, and writes very little

       English, so he was provided with an interpreter for the interview.


[13]   Before the interview began, the interpreter translated an advisement of rights

       and waiver form to Bruno as Detective Christie read it aloud. Bruno nodded

       indicating he understood his rights and the waiver thereof. Detective Christie

       then asked him to sign the form indicating his understanding. Bruno signed the

       written waiver form, which was written entirely in English. During the

       interview, Bruno admitted to Detective Christie that he had fondled D.A.’s

       penis and D.A. had touched his penis on several occasions. Bruno claimed that

       he never hurt D.A., but admitted that he knew what he was doing was wrong.

       Bruno’s entire statement to Detective Christie was recorded. Following his

       statement, Detective Christie arrested Bruno.


[14]   During the investigation of D.A.’s allegations, the police were made aware of

       the conversation between Bruno and D.A.’s parents that D.A.’s father had

       recorded with his cell phone. After the recording was obtained, the State had

       the conversation translated and transcribed.


[15]   On February 4, 2015, the State charged Bruno with one count of child

       molesting as a Class A felony (Count I) and two counts of child molesting as

       Class C felonies (Counts II and III). The State later filed an additional count of

       Class A felony child molesting (Count IV) and two additional counts of Class C

       felony child molesting (Counts V and VI). Prior to trial, the court granted the




       Court of Appeals of Indiana | Memorandum Decision 14A01-1606-CR-1530 | May 12, 2017   Page 6 of 28
       State’s oral motion to dismiss Counts II and III. Counts IV, V, and VI were

       renumbered as Counts II, III, and IV respectively.


[16]   On February 18, 2016, Bruno filed a motion to suppress his statement to police

       alleging that he did not knowingly waive his Miranda rights. Initially, Bruno

       claimed that he was never advised of his rights, but after he was confronted

       with the recording of his interview, he acknowledged that his rights may have

       been read to him. Bruno also argued that his signature on the waiver of rights

       form is of no import because the waiver form is written in English. After a

       hearing, the trial court denied the motion, finding that Bruno was properly

       advised and voluntarily waived his rights. At trial, Bruno objected to admission

       of his statement on the same grounds. The trial court overruled Bruno’s

       objection.


[17]   On March 28, 2016, Bruno filed a motion requesting that he be permitted to

       introduce evidence of alleged past molestation of a witness, to which the State

       objected. At a hearing on this motion, Bruno claimed that D.A.’s mother and

       D.A.’s aunts had allegedly been molested by D.A.’s grandfather. Bruno

       asserted that he wanted to introduce such evidence to show that someone other

       than him, i.e., D.A.’s grandfather, molested D.A. The trial court denied

       Bruno’s motion, finding such evidence inadmissible for several reasons.


[18]   A four-day jury trial commenced on April 5, 2016, and concluded with the jury

       finding Bruno guilty as charged. The trial court held a sentencing hearing on

       June 2, 2016. In sentencing Bruno, the trial court identified several aggravating


       Court of Appeals of Indiana | Memorandum Decision 14A01-1606-CR-1530 | May 12, 2017   Page 7 of 28
       factors. The “most important” aggravating factor for the court was Bruno’s

       abuse of his position of trust as a pastor and as a family friend. Transcript Vol. II

       at 96. The court also noted that the acts were committed over a long period of

       time, D.A.’s young age at the time of the first molestation, and the excessive

       harm to D.A., both psychologically and physically. Although affording it little

       weight, the trial court also acknowledged Bruno’s illegal immigration status.

       As mitigating, the trial court noted Bruno’s lack of criminal history while living

       in the United States.


[19]   Finding that the aggravating circumstances outweighed the mitigating

       circumstances, the trial court sentenced Bruno to consecutive terms of forty

       years imprisonment on Counts I and II, the Class A felony convictions. As to

       Counts III and IV, the Class C felony convictions, the trial court sentenced

       Bruno to concurrent terms of six years for each conviction and ordered the

       sentences be served concurrent with the forty-year sentence for Count II. The

       trial court also ordered Bruno to pay $5,000 in restitution to the State for

       transcription and translation expenses incurred with regard to the recorded

       conversation between Bruno and D.A.’s family. Bruno now appeals.

       Additional facts will be provided as necessary.


                                         1. Admission of Evidence


[20]   Bruno argues that the trial court abused its discretion in admitting his statement

       to police. Our standard of review is well-settled.




       Court of Appeals of Indiana | Memorandum Decision 14A01-1606-CR-1530 | May 12, 2017   Page 8 of 28
               The trial court has broad discretion in ruling on the admissibility
               of evidence, and we will reverse the trial court’s ruling only when
               the trial court abuses that discretion. Fuqua v. State, 984 N.E.2d
               709, 713-14 (Ind. Ct. App. 2013), trans. denied. The trial court
               abuses its discretion only if its decision regarding the admission
               of evidence is clearly against the logic and effect of the facts and
               circumstances before it, or if the court has misinterpreted the law.
               Id. Regardless of whether the challenge is made through a
               pretrial motion to suppress or by an objection at trial, our review
               of rulings on the admissibility of evidence is essentially the same:
               we do not reweigh the evidence, and we consider conflicting
               evidence in a light most favorable to the trial court’s ruling, but
               we may also consider any undisputed evidence that is favorable
               to the defendant. Id. Additionally, we may consider
               foundational evidence introduced at trial in conjunction with any
               evidence from a suppression hearing that is not in direct conflict
               with the trial evidence. Kelley v. State, 825 N.E.2d 420, 427 (Ind.
               Ct. App. 2005).


       Hicks v. State, 5 N.E.3d 424, 427 (Ind. 2014), trans. denied.


[21]   Bruno argues that his statement was inadmissible because he did not

       knowingly, voluntarily, and intelligently waive his Miranda rights.1 A waiver of

       one’s Miranda rights occurs when the defendant, after being advised of those

       rights and acknowledging that he understands them, proceeds to make a

       statement without taking advantage of those rights. Ringo v. State, 736 N.E.2d

       1209, 1211-12 (Ind. 2000). As our Supreme Court has stated:




       1
        As a precursor to this argument, Bruno argues that he was in custody for purposes of invoking the
       protections afforded by Miranda. The State argues that Bruno was not in custody. Herein, we will assume,
       without deciding, that Bruno was in custody when he was interviewed by Detective Christie.

       Court of Appeals of Indiana | Memorandum Decision 14A01-1606-CR-1530 | May 12, 2017           Page 9 of 28
               [t]he admissibility of a confession is controlled by determining
               from the totality of the circumstances whether the confession was
               made voluntarily and was not induced by violence, threats, or
               other improper influences that overcame the defendant’s free
               will. See Wilcoxen v. State, 619 N.E.2d 574, 577 (Ind. 1993). The
               same test determines whether Miranda rights were voluntarily
               waived. See Gregory v. State, 540 N.E.2d 585, 592 (Ind. 1989).
               Thus, the voluntariness of a defendant’s waiver of rights is judged
               by the totality of the circumstances. See Allen v. State, 686 N.E.2d
               760, 770 (Ind. 1997), cert. denied, 525 U.S. 1073, 119 S.Ct. 807,
               142 L.Ed.2d 667 (1999).


       Id. at 1212. A signed waiver form is one item of evidence showing the accused

       was aware of and understood his rights. Id. An express written waiver of

       rights, however, is not necessary to establish a waiver of Miranda rights. Carter

       v. State, 730 N.E.2d 155, 157 (Ind. 2000).


[22]   Bruno presents his challenge under both the United States and Indiana

       Constitutions. Under the United States Constitution, the State must prove the

       statement was voluntarily given by a preponderance of the evidence. Malloch v.

       State, 980 N.E.2d 887, 901 (Ind. Ct. App. 2012) (citing Pruitt v. State, 834

       N.E.2d 90, 114 (Ind. 2005)), trans. denied. The Indiana Constitution, however,

       requires the State to prove beyond a reasonable doubt that the defendant

       voluntarily waived his rights and that the confession was voluntarily given. Id.


[23]   Bruno first argues that the interpretation of his rights was deficient because the

       interpreter told him that his statements “could be used against him,” Transcript




       Court of Appeals of Indiana | Memorandum Decision 14A01-1606-CR-1530 | May 12, 2017   Page 10 of 28
       Vol. I at 46,2 rather than “can and will” be used against him as required by

       Miranda, 384 U.S. at 469.


[24]   Our Supreme Court has previously held that the omission of the word “will”

       did not create a fatal variance so as to require suppression of the defendant’s

       statement. See Myers v. State, 510 N.E.2d 1360, 1365 (Ind. 1987); see also

       Santana v. State, 679 N.E.2d 1355, 1358 (Ind. Ct. App. 2007). In both cases, the

       courts relied upon the fact that the advisements were in all other respects in

       conformance with Miranda and the fact that circumstances surrounding the

       defendant’s waiver indicated the defendants voluntarily waived their rights.

       Here, the same result obtains. There is perhaps some error in the Spanish

       translation of Bruno’s Miranda rights, but Bruno himself acknowledges that he

       was at least advised in Spanish that his statement “could” be used against him.

       Bruno makes no other challenge to the accuracy of the advisement of his rights

       or waiver thereof.


[25]   With regard to the circumstances surrounding his interview, the record clearly

       reflects that Detective Christie read Bruno his Miranda rights and the standard

       waiver language and that an interpreter translated those rights into Spanish.

       Detective Christie stated multiple times that he wanted to make sure Bruno

       understood his rights and the interpreter conveyed such statements to Bruno.




       2
         At the suppression hearing, a different Spanish-language interpreter was asked to translate how the
       interpreter during the interview translated to Bruno what Detective Christie was saying. This is that
       interpreter’s translation.

       Court of Appeals of Indiana | Memorandum Decision 14A01-1606-CR-1530 | May 12, 2017             Page 11 of 28
       Although Bruno had varying responses, both verbal and non-verbal, he never

       indicated or demonstrated that he did not understand his rights as they were

       interpreted for him. It was also explained to Bruno that signing the advisement

       of rights form, although written in English, was an acknowledgment that he

       understood his rights.3 Bruno then signed the advisement of rights form and

       proceeded to voluntarily answer Detective Christie’s questions. There is

       nothing in the record that suggests Detective Christie engaged in any violent,

       coercive, or threatening conduct prior to or during his interview of Bruno.


[26]   Bruno also makes much of the fact that the written advisement form that he

       signed was in English. As noted above, while a signed waiver form is one item

       of evidence showing the accused was aware of and understood his rights, an

       express written waiver is not necessary to establish a waiver of Miranda rights.

       Carter v. State, 730 N.E.2d at 157; cf. Morales v. State, 749 N.E.2d 1260, 1267

       (suggesting in dicta that “both the defendant’s rights and effective law

       enforcement would be better served if standardized forms containing Miranda

       warnings and waivers written in Spanish were created and distributed to all law

       enforcement agencies”). Thus, the signed waiver form, whether in English or

       Spanish, was not necessary to establish that Bruno voluntarily waived his rights.

       The record makes clear that Bruno was orally advised in Spanish of the

       implications of signing the waiver form and that he indicated that he was




       3
         As interpreted at the suppression hearing, Bruno was told “Okay. You understand your rights and you can
       sign.” Transcript, Volume 1 at 47.

       Court of Appeals of Indiana | Memorandum Decision 14A01-1606-CR-1530 | May 12, 2017         Page 12 of 28
       willing to talk to Detective Christie. Bruno then signed the form and

       voluntarily answered Detective Christie’s questions. It is evident from the

       record that Bruno understood and voluntarily waived his rights. The fact that

       the waiver form was written in English does not change this result.


[27]   We further note that Bruno is an adult who was educated through the 11 th grade

       and can speak, read, and write in Spanish. Bruno came to the United States in

       2003 and has served as a pastor of his own church. Bruno did not appear

       distressed or confused at the time of the interview. Further, he did not seek

       clarification during the simultaneous translation of the interview. In fact, he

       even challenged some of the questions that he felt were unfair.


[28]   There is nothing in the record to suggest that Bruno’s statement was induced by

       violence, threats, or other improper influences that overcame his free will.

       Bruno was clearly advised of his rights and waiver thereof in Spanish prior to

       answering Detective Christie’s questions. Considering the totality of the

       circumstances, we conclude that the State has proved beyond a reasonable

       doubt that Bruno knowingly, voluntarily, and intelligently waived his rights.4

       The trial court did not abuse its discretion in admitting Bruno’s statement into

       evidence.




       4
         Having concluded that the State proved beyond a reasonable doubt that Bruno voluntarily waived his rights
       for purposes of the Indiana Constitution, it follows that there is likewise no violation under the
       preponderance of the evidence standard for review of such claims under the United States Constitution.

       Court of Appeals of Indiana | Memorandum Decision 14A01-1606-CR-1530 | May 12, 2017           Page 13 of 28
                           2. Exclusion of Evidence - Rape Shield Statute


[29]   Bruno argues that the trial court abused its discretion in excluding evidence that

       another person may have perpetrated the sexual abuse against D.A.

       Specifically, Bruno sought to introduce evidence that D.A.’s grandfather

       allegedly molested D.A.’s mother and aunts when they were younger. Bruno

       notes that D.A. and his family resided in D.A.’s grandfather’s home shortly

       after D.A. made the first allegations against Bruno. As part of his defense,

       Bruno wanted to suggest that it was D.A.’s grandfather who perpetrated the

       acts of molestation and was responsible for any injury to D.A.


[30]   Ind. Evidence Rule 412, also known as the Rape Shield Rule, generally bars the

       admission of evidence regarding a victim’s or witness’s prior sexual conduct.

       Evid. Rule 412 sets out very limited exceptions to this rule with regard to

       admission of evidence in a criminal case. Specifically, Rule 412(b)(1)(A) does

       not bar the admission of evidence of “specific instances of a victim’s or

       witness’s sexual behavior, if offered to prove that someone other than the

       defendant was the source of semen, injury, or other physical evidence.” See also

       Ind. Code § 35-37-4-4 (Rape Shield Act); Sallee v. State, 785 N.E.2d 645, 651

       (Ind. Ct. App. 2003) (noting that “[t]o the extent there is a difference between

       the two, the rule controls”).


[31]   This exception to the Rape Shield Rule is not applicable in this case. Bruno

       claims, without any supporting evidence, that D.A.’s mother disclosed to him

       that D.A.’s grandfather had molested her and her sisters when they were


       Court of Appeals of Indiana | Memorandum Decision 14A01-1606-CR-1530 | May 12, 2017   Page 14 of 28
       younger. As found by the trial court in denying Bruno’s motion seeking to

       proffer such evidence, such allegations were at least hearsay as it concerned

       D.A.’s aunts. Secondly, Bruno offered no “specific instances” of sexual

       behavior by D.A.’s grandfather toward D.A.’s mother and his aunts other than

       his own self-serving allegations. Further, we note that the evidence Bruno

       sought to admit concerned matters that were remote in time and pertained to a

       different type of conduct. Bruno cannot show how such evidence has any

       bearing on any physical evidence introduced by the State relating to the source

       of semen in the victim, injury to the victim, or other physical evidence.


[32]   Even if the evidence was erroneously excluded, the error was harmless. An

       error in the exclusion of evidence is harmless when its probable impact on the

       jury, in light of all the evidence in the case, is sufficiently minor so as not to

       affect the substantial rights of the parties. See Barnhart v. State, 15 N.E.3d 138,

       143 (Ind. Ct. App. 2014). Here, D.A. gave a clear account of what Bruno did

       to him and he never equivocated on the identity of his abuser. The first

       instance involving anal penetration occurred when D.A. was just six years old

       and prior to the time when D.A. and his family lived with D.A.’s grandfather.

       At the relevant times, Bruno had complete access to D.A. Further, Bruno

       admitted to D.A.’s father, in his statement to police, and in his testimony at

       trial that he had molested D.A. Whether the jury believed Bruno’s denial of

       anal penetration or D.A.’s testimony that Bruno inserted his penis into D.A.’s

       anus is a matter of credibility as to those witnesses. Bruno’s suppositions

       concerning D.A.’s grandfather’s conduct toward D.A.’s mother and aunts


       Court of Appeals of Indiana | Memorandum Decision 14A01-1606-CR-1530 | May 12, 2017   Page 15 of 28
       would have had no impact on such determination. Thus, any error in

       excluding the challenged evidence would have been harmless.


                                                  3. Sufficiency


[33]   Bruno argues that the State presented insufficient evidence to support his

       convictions for child molesting as Class A felonies. 5 In reviewing a challenge to

       the sufficiency of the evidence, we neither reweigh the evidence nor judge the

       credibility of witnesses. Atteberry v. State, 911 N.E.2d 601, 609 (Ind. Ct. App.

       2009). Instead, we consider only the evidence supporting the conviction and

       the reasonable inferences flowing therefrom. Id. If there is substantial evidence

       of probative value from which a reasonable trier of fact could have drawn the

       conclusion that the defendant was guilty of the crime charged beyond a

       reasonable doubt, the judgment will not be disturbed. Baumgartner v. State, 891

       N.E.2d 1131, 1137 (Ind. Ct. App. 2008). It is not necessary that the evidence

       overcome every reasonable hypothesis of innocence; rather, the evidence is

       sufficient if an inference may reasonably be drawn from it to support the

       conviction. Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007). The

       uncorroborated testimony of a victim alone is sufficient to support a conviction.

       Jenkins v. State, 34 N.E.3d 258, 262 (Ind. Ct. App. 2015), trans. denied.




       5
        Acknowledging his admission to fondling D.A., Bruno does not challenge his convictions for child
       molesting as Class C felonies.

       Court of Appeals of Indiana | Memorandum Decision 14A01-1606-CR-1530 | May 12, 2017          Page 16 of 28
[34]   To sustain Bruno’s convictions for Class A felony child molesting, the State’s

       evidence must have proved beyond a reasonable doubt that Bruno, who was at

       least 21 years of age, knowingly performed deviate sexual conduct with D.A., a

       child under the age of fourteen. See I.C. § 35-42-4-3. Deviate sexual conduct is

       an act involving “a sex organ of one (1) person and the mouth or anus of

       another person[] or (2) the penetration of the sex organ or anus of a person by

       an object.”6 Ind. Code § 35-31.5-2-94 (2014).


[35]   Bruno argues that while he admitted to fondling D.A., he consistently denied

       any anal intercourse and further argues that D.A.’s testimony to the contrary

       lacked specificity and was incredibly dubious. Under the incredible dubiosity

       rule, a court will impinge upon the factfinder’s responsibility to judge the

       credibility of witnesses only when confronted with inherently improbable

       testimony or coerced, equivocal, wholly uncorroborated testimony of incredible

       dubiosity. Whatley v. State, 908 N.E.2d 276, 282 (Ind. Ct. App. 2009), trans.

       denied. In other words, the evidence presented must be so unbelievable,

       incredible, or improbable that no reasonable person could ever reach a guilty

       verdict based upon that evidence alone. Moore v. State, 27 N.E.3d 749, 751 (Ind.

       2015). We also note that application of this rule is limited to cases where a

       single witness presents inherently contradictory testimony which is equivocal or




       6
        Bruno committed his crimes prior to the repeal of the deviate sexual conduct definition and replacement
       with the term “other sexual conduct.” “Other sexual conduct” has an identical definition as deviate sexual
       conduct previously had. See Ind. Code § 35-31.5-2-221.5.

       Court of Appeals of Indiana | Memorandum Decision 14A01-1606-CR-1530 | May 12, 2017            Page 17 of 28
       the result of coercion and there is a complete lack of circumstantial evidence of

       guilt. Id.


[36]   Here, D.A. testified that Bruno performed anal sex on him numerous times

       throughout the years. D.A. described the first encounter as taking place at the

       Grand Avenue house where Bruno lived with D.A.’s family in 2006 and as

       repeatedly occurring from 2010 through 2013 when D.A.’s family lived in their

       Southview home. D.A.’s testimony that some of the encounters happened

       while his siblings slept in the same room is not an uncommon occurrence in

       child molesting cases, and unfortunately, not counter to human experience.

       There is nothing inherently contradictory or equivocal about D.A.’s testimony.

       Bruno’s arguments simply amount to blatant requests for this court to reweigh

       the evidence and judge the credibility of witnesses. We will not indulge such a

       request on appeal.


                                                   Sentencing


[37]   Bruno challenges his sentence in two respects. He first argues that the trial

       court abused its discretion in finding aggravating circumstances and imposing

       consecutive sentences. He also argues that his sentence is inappropriate in light

       of the nature of the offense and his character. “As our Supreme Court has

       made clear, inappropriate sentence and abuse of discretion claims are to be

       analyzed separately.” King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008).

       We will address each in turn.


                                           4. Abuse of Discretion

       Court of Appeals of Indiana | Memorandum Decision 14A01-1606-CR-1530 | May 12, 2017   Page 18 of 28
[38]   Sentencing decisions rest within the sound discretion of the trial court.

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

       218. So long as the sentence is within the statutory range, it is subject to review

       only for an abuse of discretion. Id. “An abuse of discretion occurs if the

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

       before the court or the reasonable, probable, and actual deductions to be drawn

       therefrom.’” Id. at 490 (quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)).


[39]   A trial court may abuse its sentencing discretion in a number of ways,

       including: (1) failing to enter a sentencing statement at all; (2) entering a

       sentencing statement that includes aggravating and mitigating factors that are

       unsupported by the record; (3) entering a sentencing statement that omits

       reasons that are clearly supported by the record; or (4) entering a sentencing

       statement that includes reasons that are improper as a matter of law. Id. at 490-

       91. If the trial court abuses its discretion in one of these or another way,

       remand for resentencing is the appropriate remedy “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. at 491.


[40]   Bruno’s sole argument with respect to the aggravating circumstances is that the

       trial court abused its discretion when it found that the harm to D.A. exceeded

       that required for a conviction. See Ind. Code § 35-38-1-7.1(a)(1) (a trial court

       may consider harm, injury, loss, or damage suffered by the victim that is

       significant and greater than the elements necessary to prove the commission of

       the offense). Bruno maintains that the psychological impact of Bruno’s actions

       Court of Appeals of Indiana | Memorandum Decision 14A01-1606-CR-1530 | May 12, 2017   Page 19 of 28
       on D.A. was not out of the ordinary for a child subjected to such conduct. He

       further argues that the State presented no evidence linking any physical harm to

       Bruno’s actions.


[41]   With regard to the psychological harm, we note that Bruno was a spiritual

       leader who used his closeness with D.A.’s family to take advantage of D.A.

       beginning when D.A. was just six years old. Even after D.A. summoned the

       courage to tell his father of the abuse he suffered at the hands of Bruno, Bruno

       convinced D.A.’s father that D.A. was possessed by the devil, which destroyed

       D.A.’s trust in his father. Bruno later engaged in a pattern of sexual abuse of

       D.A. that involved anal penetration and having D.A. masturbate him. All the

       while, D.A. had to endure Bruno as his family’s minister and as being treated

       like a member of the family. The testimony and evidence presented by the State

       at sentencing clearly demonstrates that the circumstances under which Bruno

       perpetrated his crimes had a significant psychological impact on D.A.


[42]   With regard to physical harm, even Bruno acknowledges that the State

       presented evidence that D.A. suffered from and was treated for encopresis 7 and

       that encopresis can be a sign of sexual abuse. Bruno argues, however, that such

       is an improper aggravating circumstance in this case because the State

       presented no evidence linking this physical condition to Bruno’s conduct.

       Despite the lack of an explicit connection between D.A.’s physical condition



       7
        Encopresis is defined as “involuntary defecation.” Dictionary.com,
       http://www.dictionary.com/browse/encopresis (last visited May 5, 2017).

       Court of Appeals of Indiana | Memorandum Decision 14A01-1606-CR-1530 | May 12, 2017   Page 20 of 28
       and Bruno’s conduct, there was ample evidence from which the trial court

       could have properly found the harm D.A. suffered was significant and greater

       than that necessary for the offense. D.A. recounted the numerous times Bruno

       anally penetrated him with his penis. D.A. told a nurse who examined him

       that it was “really hurting [his] bottom” and that he was “having problems

       when [he had] loose poop.” State’s Sentencing Exhibit 1. The trial court did not

       abuse its discretion in finding as an aggravating circumstance that the harm

       inflicted was greater than that required for the offense.


[43]   Bruno next argues that the trial court abused its discretion in imposing

       consecutive sentences. Bruno maintains that the trial court fell short of the

       requirement that it explain its reasons for the sentence imposed by not

       explaining why the aggravating circumstances warranted consecutive sentences

       as opposed to simply enhanced concurrent sentences.


[44]   Trial courts are permitted to impose consecutive sentences if warranted by the

       aggravating circumstances. Monroe v. State, 886 N.E.2d 578, 579 (Ind. 2008).

       In doing so, however, a trial court must articulate, explain, and evaluate the

       aggravating circumstances that support the sentence. Id. Where the trial

       court’s sentencing statement lacks specificity with regard to an explanation for

       imposition of consecutive sentencing, remand for resentencing is not required

       where the rationale for consecutive sentences is apparent on the face of the

       record. Lewis v. State, 31 N.E.3d 539, 543 (Ind. Ct. App. 2015).




       Court of Appeals of Indiana | Memorandum Decision 14A01-1606-CR-1530 | May 12, 2017   Page 21 of 28
[45]   Here, in arguing for consecutive sentences, the State emphasized that this was

       not a single act of molestation, noting that Bruno first molested D.A. sometime

       between 2006 and 2007 and then again, years later, engaged in repeated acts of

       molestation. In its sentencing statement, the trial court found that the acts

       occurred over a long period of time and were “not a single mistake.” Transcript

       Volume II at 96. As our Supreme Court has held, “additional criminal activity

       directed to the same victim should not be free of consequences.” Horton v. State,

       949 N.E.2d 346, 348 (Ind. 2011). The trial court’s order of consecutive

       sentences demonstrates the trial court’s acknowledgment of the two distinct

       time periods during which the molestations occurred. The trial court’s rationale

       is apparent from the record and its imposition of consecutive sentences was not

       an abuse of discretion.


                                         5. Inappropriate Sentence


[46]   Bruno argues that his sentence is inappropriate. Article 7, section 4 of the

       Indiana Constitution grants our Supreme Court the power to review and revise

       criminal sentences. See Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014), cert.

       denied, 135 S.Ct. 978 (2015). Pursuant to Ind. Appellate Rule 7, the Supreme

       Court authorized this court to perform the same task. Cardwell v. State, 895

       N.E.2d 1219, 1224 (Ind. 2008). Per App. R. 7(B), we may revise a sentence “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.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R.

       7). “Sentencing review under Appellate Rule 7(B) is very deferential to the trial

       Court of Appeals of Indiana | Memorandum Decision 14A01-1606-CR-1530 | May 12, 2017   Page 22 of 28
       court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). The defendant bears

       the burden on appeal of persuading us that his sentence is inappropriate. See id.


[47]   The determination of whether we regard a sentence as inappropriate “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.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell, 895

       N.E.2d at 1224). Moreover, “[t]he principal role of such review is to attempt to

       leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). It is

       not our goal in this endeavor to achieve the perceived “correct” sentence in

       each case. Knapp, 9 N.E.3d at 1292. Accordingly, “the question under

       Appellate Rule 7(B) is not whether another sentence is more appropriate; rather,

       the question is whether the sentence imposed is inappropriate.” King v. State,

       894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in original).


[48]   In order to assess the appropriateness of a sentence, we first look to the

       statutory range established for the classification of the relevant offense. Bruno

       was convicted of two Class A felonies and two Class C felonies. The relevant

       statutes provide a sentencing range of twenty to fifty years with an advisory

       sentence of thirty years for a Class A felony and two to eight years with an

       advisory sentence of four years for a Class C felony. Ind. Code §§ 35-50-2-4, -6.

       Here, the trial court imposed enhanced sentences for each conviction and

       ordered the convictions for the Class A felonies to run consecutively as an

       acknowledgement that the crimes were committed during two separate and



       Court of Appeals of Indiana | Memorandum Decision 14A01-1606-CR-1530 | May 12, 2017   Page 23 of 28
       distinct time periods against the same victim. Bruno’s total aggregate sentence

       is eighty years.


[49]   We begin with the nature of the offense. Bruno’s offenses are particularly

       reprehensible. Bruno held himself out to be a man of God and used his position

       to ingratiate himself into D.A.’s family. D.A.’s parents trusted Bruno,

       providing him with a place to live, financially supporting the start-up of his

       church, and allowing him to care for their children, including D.A. D.A.’s

       father described Bruno as being like family. Bruno violated his extraordinary

       position of trust when he began molesting D.A. at just six years old. After D.A.

       courageously reported the abuse to his father, Bruno lied and covered up his

       actions by convincing D.A.’s father that D.A. was demonically possessed. A

       few years later, Bruno, who remained close with D.A.’s family, resumed his

       molestations of D.A. Over the course of the next several years, Bruno

       repeatedly molested D.A. by anal penetration and fondling. D.A. again

       summoned the courage to tell his father about Bruno’s actions. When

       confronted again, Bruno initially denied having engaged in the alleged conduct.

       Although Bruno finally admitted to touching D.A., he continually denied that

       any anal penetration occurred.


[50]   Bruno incorrectly argues that there was no proof of physical harm to D.A.

       There is evidence that D.A. suffered from encopresis and that, at one point,

       D.A. had a dilated anus. As noted above, D.A. told a nurse examiner about the

       sexual abuse and reported that “[i]t was really hurting my bottom and I am

       having problems when I have loose poop, it will leak some.” State’s Sentencing

       Court of Appeals of Indiana | Memorandum Decision 14A01-1606-CR-1530 | May 12, 2017   Page 24 of 28
       Exhibit 1. Despite Bruno’s desire to downplay this evidence, it is sufficient to

       establish that there was physical harm. We further note that the psychological

       harm of a spiritual leader and close family friend molesting a child over a

       period of years goes above and beyond the physical ramifications.


[51]   Finally, we observe that the molestations occurred during two distinct time

       periods, the first occurring when D.A. was six years old. Years later, Bruno

       resumed his molestation of D.A. As noted above, the imposition of consecutive

       sentences accounts for the fact that Bruno molested a six-year-old D.A., had

       time (i.e., years) to reflect upon his actions, and yet began molesting D.A.

       again. Bruno has failed to show that the nature of his offense is deserving of a

       lesser sentence.


[52]   With regard to the character of the offender, we note that Bruno is an

       undocumented immigrant. Aside from his repeated molestation of D.A. over a

       period of time, there is no evidence that he engaged in other criminal activity.

       More telling of his character, however, is that Bruno used his position of power

       as a spiritual leader to gain favor with D.A. and his family. He then abused

       their trust by molesting D.A. After D.A.’s first disclosure of the molestation,

       Bruno damaged the trust between D.A. and his father when Bruno convinced

       D.A.’s father that D.A.’s allegations were a result of being demonically

       possessed. In the end, Bruno did not voluntarily disclose his actions, but

       admitted to fondling D.A. only after confronted. Even then, he continued to

       downplay his actions while begging for forgiveness.



       Court of Appeals of Indiana | Memorandum Decision 14A01-1606-CR-1530 | May 12, 2017   Page 25 of 28
[53]   Bruno has failed to demonstrate that his aggregate eighty-year sentence is

       inappropriate in light of the nature of the offense or his character.


                                                 5. Restitution


[54]   Bruno argues that the trial court erred in ordering him to pay $5000 in

       restitution to the State. The restitution order covered the State’s expenses for

       translation and transcription of the recorded conversation between D.A.’s

       father and Bruno that was taken from D.A.’s father’s cell phone.


[55]   As part of a sentence or as a condition of probation, a trial court may order a

       defendant to pay restitution to a victim. Bailey v. State, 717 N.E.2d 1, 4 (Ind.

       1999). We review a trial court’s order of restitution for an abuse of discretion.

       Rich v. State, 890 N.E.2d 44, 49 (Ind. Ct. App. 2008), trans. denied.


[56]   Ind. Code § 35-50-5-3 sets forth the requirements for a restitution order, in

       pertinent part as follows:


                (a) Except as provided in subsection (i), (j), (l), or (m), in
               addition to any sentence imposed under this article for a felony
               or misdemeanor, the court may, as a condition of probation or
               without placing the person on probation, order the person to
               make restitution to the victim of the crime, the victim’s estate, or
               the family of a victim who is deceased. The court shall base its
               restitution order upon a consideration of:


                       (1) property damages of the victim incurred as a result of
                       the crime, based on the actual cost of repair (or
                       replacement if repair is inappropriate);



       Court of Appeals of Indiana | Memorandum Decision 14A01-1606-CR-1530 | May 12, 2017   Page 26 of 28
                       (2) medical and hospital costs incurred by the victim
                       (before the date of sentencing) as a result of the crime;


                       (3) the cost of medical laboratory tests to determine if the
                       crime has caused the victim to contract a disease or other
                       medical condition;


                       (4) earnings lost by the victim (before the date of
                       sentencing) as a result of the crime including earnings lost
                       while the victim was hospitalized or participating in the
                       investigation or trial of the crime; and


                       (5) funeral, burial, or cremation costs incurred by the
                       family or estate of a homicide victim as a result of the
                       crime.


[57]   The trial court abused its discretion in ordering Bruno to pay restitution. “[T]he

       principal purpose of restitution is to vindicate the rights of society and to

       impress upon the defendant the magnitude of the loss the crime has caused, and

       that restitution also serves to compensate the victim.” Iltzsch v. State, 981 N.E.2d

       55, 56 (Ind. 2013) (emphasis supplied). I.C. § 35-50-5-3(a) authorizes

       restitution only to the victim of the crime, the victim’s estate, or the family of a

       victim who is deceased. While a State entity may be considered a victim for

       purposes of the restitution statute, the State must first make a showing as to

       how its entity was a victim. Lohmiller v. State, 884 N.E.2d 903, 916 (Ind. Ct.

       App. 2008). Where the State makes no such showing, the State is not a victim

       entitled to restitution. Id. (citing Green v. State, 811 N.E.2d 874, 879 (Ind. Ct.

       App. 2004)).


       Court of Appeals of Indiana | Memorandum Decision 14A01-1606-CR-1530 | May 12, 2017   Page 27 of 28
[58]   Here the State merely requested restitution and submitted invoices for the

       translation and transcription services provided. The State did not show how it

       was a victim. The State is therefore not a victim entitled to restitution.


[59]   Further, we note that I.C. § 35-50-5-3 provides for restitution for property

       damage, medical costs, cost of laboratory tests, lost earnings, and funeral and

       burial expenses. Here, the State is seeking reimbursement for costs associated

       with its investigation. As was noted by this court in Green, if the State were

       entitled to restitution any time it elects to spend money to obtain criminal

       evidence, then the State would seek restitution for any and all of its discovery

       costs. This is contrary to I.C. § 35-50-5-3 and the purposes of restitution. The

       trial court’s restitution order is improper as a matter of law. We therefore

       reverse the trial court’s order that Bruno pay $5000 in restitution to the State.


[60]   Judgment affirmed in part and reversed in part.


       Riley, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 14A01-1606-CR-1530 | May 12, 2017   Page 28 of 28
