Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be                                        Jul 30 2013, 7:35 am
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

MARIELENA DUERRING                                  GREGORY F. ZOELLER
Duerring Law Offices                                Attorney General of Indiana
South Bend, Indiana
                                                    CYNTHIA L. PLOUGHE
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JOSE F. MEDINA,                                     )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 20A04-1210-CR-525
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE ELKHART SUPERIOR COURT
                        The Honorable George W. Biddlecome, Judge
                              Cause No. 20D03-0802-FC-14


                                          July 30, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
          Jose Medina appeals his conviction of and sentence for Class A felony attempted child

molesting.1 He presents three issues for review:

          1.      Whether there was sufficient evidence Medina committed attempted child

                  molesting;

          2.      Whether the trial court committed fundamental error when it did not instruct

                  the jury on specific intent; and

          3.      Whether Medina’s sentence is inappropriate in light of his character and

                  offense.

We affirm.

                             FACTS AND PROCEDURAL HISTORY

          On November 3, 2007, when S.P. was ten years old, her mother took her and her

siblings to spend the night at their aunt’s house. Medina was the aunt’s live-in boyfriend.

S.P. and her siblings were familiar with Medina and considered him their uncle. That night,

after S.P. fell asleep on the couch, Medina took her into a bedroom, where he unzipped her

pants and placed his hand inside her underwear. S.P. woke up when she felt his fingers

touching the outside of her genitalia. S.P. said Medina’s name, at which point Medina

stopped touching her. S.P. then left the bedroom crying and returned to the couch next to her

brother. The next time S.P.’s mother prepared to take S.P. and her siblings to their aunt’s

house, S.P. refused, began shaking and crying, and appeared scared. Her mother asked her

what was wrong and within ten minutes S.P. told her what Medina had done. S.P.’s mother


1
    Ind. Code §35-42-4-3(a)(1).
                                                     2
took S.P. to the emergency room and a doctor there notified the police.

          Medina was charged with Class C felony child molesting,2 then the State amended the

information to charge Medina with Class A felony attempted child molesting. A jury found

Medina guilty of the Class A felony. The trial court entered the conviction and pronounced a

forty-year sentence.

                               DISCUSSION AND DECISION

          1.      Sufficiency of the Evidence

          Medina contends the State did not present sufficient evidence to support his

conviction. When we review sufficiency of evidence we do not reweigh evidence or assess

witness credibility. Boling v. State, 982 N.E.2d 1055, 1057-58 (Ind. Ct. App. 2013). “We

consider only the probative evidence and reasonable inferences supporting the verdict.” Id.

The evidence need not overcome every reasonable hypothesis of innocence. Id. Evidence is

sufficient if it permits a reasonably drawn inference that supports the verdict. Id. The

conviction will be affirmed unless no reasonable fact-finder could find the elements of the

crime proven beyond a reasonable doubt. Id.

          An attempt to commit a crime occurs when a person, with the requisite culpability,

engages in conduct that constitutes a substantial step toward the commission of the crime.

Ind. Code § 35-41-5-1(a). The State charged Medina with violation of Ind. Code § 35-42-4-

3(a). In Boling, under facts similar to those present here, we explained:




2
    Ind. Code 35-42-4-3(b).
                                                3
              The statute under which [the defendant] was charged provides that a
       person who, with a child under fourteen (14) years of age, performs or submits
       to sexual intercourse or deviate sexual conduct commits child molesting
       [which is] a Class A felony if . . . it is committed by a person at least twenty-
       one (21) years of age. . . . Ind. Code § 35-42-4-3(a)(1). Deviate sexual
       conduct means an act involving . . . the penetration of the sex organ . . . of a
       person by an object. Ind. Code § 35-31.5-2-94(2). A finger is an object within
       the meaning of this definition. Gasper v. State, 833 N.E.2d 1036, 1044 (Ind.
       Ct. App. 2005), trans. denied. An attempt is made when a person, acting with
       the culpability required for commission of the crime, . . . engages in conduct
       that constitutes a substantial step toward commission of the crime. Ind. Code §
       35-41-5-1(a). The culpability requirement of the child molesting statute is
       knowingly or intentionally, see Louallen v. State, 773 N.E.2d 794, 798 (Ind.
       2002), although the State charged [defendant] only with knowing conduct. A
       person engages in conduct knowingly if, when he engages in the conduct, he is
       aware of a high probability that he is doing so. Ind. Code § 35-41-2-2(b).
       Thus, the State must have proved that [defendant] knowingly attempted to
       commit child molesting and engaged in an overt act constituting a substantial
       step toward the commission of the crime. Noble v. State, 725 N.E.2d 842, 845
       (Ind. 2000).

982 N.E.2d at 1057.

       In Boling, the victim testified Boling “touched her ‘front private’ first over her

underwear and then under her underwear, directly on her skin.” 982 N.E.2d at 1057-58. We

held that conduct constituted a substantial step toward commission of deviate sexual conduct,

so a reasonable jury could find Boling attempted to commit deviate sexual conduct based on

that testimony. Id.

       As in Boling, the State charged Medina only with knowing conduct. Thus it was

required to prove beyond a reasonable doubt Medina attempted to engage in an act of deviate

sexual conduct against S.P., who was under the age of fourteen, and he knowingly engaged in

an overt act constituting a substantial step towards that crime. See id.


                                              4
       S.P. testified Medina unzipped her pants, placed his hand under her underwear, and

touched her genitalia. The natural and usual sequence of Medina’s conduct indicates he

knowingly took a substantial step toward inserting his finger in S.P.’s sex organ. See Boling,

982 N.E.2d at 1058 (Boling’s contact with minor’s genitalia over and under her underwear

without penetration sufficient to support a conviction of Class A felony attempted child

molestation based on that conduct constituting a substantial step toward knowing

penetration). Medina’s argument is an invitation for us to reweigh the evidence, which we

cannot do. See id. at 1057.

       2.     Jury Instruction

       Jury instructions are within the sound discretion of trial courts and will be reversed

only if, taken as a whole, they misstate the law or mislead the jury. Champlain v. State, 717

N.E.2d 567, 569 (Ind. 1999). Failure to object to a jury instruction generally results in a

waiver of the issue on appeal, Brown v. State, 691 N.E.2d 438, 444 (Ind. 1998), unless the

error is “fundamental.” Winegeart v. State, 665 N.E.2d 893, 896 (Ind. 1996). To be

fundamental, the error must be “a substantial blatant violation of basic principles that renders

a trial unfair to a defendant. Fundamental error must be so prejudicial to the rights of the

defendant as to make a fair trial impossible.” Geiger v. State, 721 N.E.2d 891, 895 (Ind. Ct.

App. 1999) (citation omitted).

       Medina contends the omission from the jury instruction of a requirement that the jury

find he acted with “specific intent” was fundamental error. We disagree. Medina relies on

Spradlin v. State, 569 N.E.2d 948 (Ind. 1991), for the proposition that the State must prove

                                               5
“specific intent” in attempt cases. However, the Spradlin rule is limited to attempted murder

cases. Richeson v. State, 704 N.E.2d 1008, 1010 (Ind. 1998). As Spradlin is inapposite,

Medina has not demonstrated fundamental error occurred.

       3.      Nature of the Offense and the Character of the Offender

       Medina also contends his sentence was inappropriate. Under Indiana Appellate Rule

7(B), 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.” Although we may review and revise a sentence,

“[t]he principal role of appellate review should be to attempt to leaven the outliers, and

identify some guiding principles for trial courts and those charged with improvement of the

sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.” Cardwell v.

State, 895 N.E.2d 1219, 1225 (Ind. 2008). We must give “deference to a trial court’s

sentencing decision, both because Rule 7(B) requires us to give due consideration to that

decision and because we understand and recognize the unique perspective a trial court brings

to its sentencing decisions.” Trainor v. State, 950 N.E.2d 352, 355-56 (Ind. Ct. App. 2011)

(quoting Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007)) (internal quotation

marks omitted), trans. denied.

       When we review appropriateness of a sentence, we consider “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, 895 N.E.2d at 1224. The defendant has the

“burden to persuade us that the sentence imposed by the trial court is inappropriate.” Shell v.

                                                6
State, 927 N.E.2d 413, 422 (Ind. Ct. App. 2010).

       An advisory sentence serves as a helpful guidepost for ensuring fairness,

proportionality, and transparency in sentencing. Ind. Code § 35-50-2-1.3(a). Medina was

convicted of a Class A felony, which carries a fixed term of between twenty and fifty years,

with an advisory sentence of thirty years. Ind. Code §35-50-2-4. The court imposed a forty-

year sentence.

       As to the nature of the offense, Medina violated a position of trust. That, standing

alone, justifies a sentence greater than the advisory. McCoy v. State, 856 N.E.2d 1259, 1262

(Ind. Ct. App. 2006) (violation of position of trust, standing alone, is sufficient to support

maximum enhancement of sentence for child molesting). An adult defendant violates a

position of trust when there is at least an inference he has authority over the minor victim.

Rodriguez v. State, 868 N.E.2d 551, 555 (Ind. Ct. App. 2007). A defendant is in a position of

trust when the relationship with the minor is “more than [a] casual relationship.” Id.

       Medina occupied a position of trust with S.P. He cohabited with her aunt, had

authority over S.P. while she stayed at their house overnight, and was regarded by S.P. as her

uncle. Theirs was more than a causal relationship. Medina’s actions during S.P.’s overnight

stay with him and her aunt were a violation of his position of trust with S.P. Therefore, we

cannot say Medina’s sentence is inappropriate based on the nature of the crime.

       When considering the character of the offender, one relevant fact is the defendant’s

criminal history. Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011). The

significance of a defendant’s prior criminal history as an aggravating factor will vary based

                                              7
on the gravity, nature, and number of his prior offenses and their relation to the current

offense. Prickett v. State, 856 N.E.2d 1203, 1209 (Ind. 2006). For example, a criminal

history that does not include sexual misconduct does not, by itself, support a maximum

sentence for a sexual misconduct conviction. Simmons v. State, 746 N.E.2d 81 (Ind. Ct. App.

2001) (reducing maximum sentence to forty years), trans. denied. That, however, does not

mean unrelated criminal history has no bearing. See Harris v. State, 897 N.E.2d 927, 930

(Ind. 2008) (unrelated criminal history is not inconsequential).

       Medina contends his criminal history is remote and unrelated to the charged offense,

and should, therefore, have little bearing on our consideration of his character. Medina’s

prior criminal offenses are different in nature and gravity from this attempted child

molestation. His criminal history includes a felony conviction in 2010 of resisting law

enforcement; misdemeanor convictions in 2001 of operating while intoxicated and reckless

driving; misdemeanor convictions in 2003 of carrying a concealed weapon and driving while

suspended; and a misdemeanor conviction in 2004 of petty theft. Medina resides in this

country illegally, which indicates disregard for immigration laws. See Samaniego-Hernandez

v. State, 839 N.E.2d 798, 806 (Ind. Ct. App. 2005) (status as an illegal alien is a proper

aggravator).

       Medina also contends his employment history, dependent children, the isolated nature

of the offense, his inebriation during the offense, the absence of threat to S.P., and the fact

that he was originally charged with a lesser offense should support revision of his sentence.

We disagree; none of these considerations so outweigh his violation of his position of trust or

                                              8
his criminal history as to make his sentence inappropriate. See Hamilton, 955 N.E.2d at 727

(finding a violation of position of trust warranted a sentence enhancement notwithstanding

fact that sexual misconduct was an isolated occurrence, the victim was young but not of

tender years, defendant had limited and remote criminal history, and there was no specific

threat to the victim). Based on Medina’s character, we cannot say his sentence was

inappropriate.

         Medina has not demonstrated his forty-year sentence is inappropriate in light of his

character and offense, and we accordingly affirm.

                                      CONCLUSION

         The State proved Medina had the requisite culpability and took a substantial step

towards attempting to molest S.P. As a “specific intent” instruction is not warranted in a

prosecution for attempted child molestation, the trial court did not err in declining to give

such an instruction. Further, Medina has not shown his sentence is inappropriate based on

his character or the nature of his offense. Accordingly, we affirm the judgment of the trial

court.

         Affirmed.

BAKER, J., and MATHIAS, J., concur.




                                              9
