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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be 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.

FILED
Dec 28 2009, 10:02 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: MARCE GONZALEZ, JR. Dyer, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana J.T. WHITEHEAD Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
JOSE CUEVAS, JR., Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 45A04-0905-CR-292

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Thomas J. Stefaniak, Jr., Judge Cause No. 45G04-0805-FA-21

December 28, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION FRIEDLANDER, Judge

Jose Cuevas, Jr. appeals his conviction of Aggravated Battery,1 a class B felony, and the sentence imposed thereon. Cuevas presents the following restated issues for review: 1. 2. Did the trial court commit reversible error in excluding evidence? Was the sentence imposed inappropriate in light of Cuevas's nature and the character of the offense?

We affirm. The facts favorable to the conviction are that Cuevas and the victim, Marbelin Jeronimo, were the parents of a child who was born in August 2007. Cuevas paid child support from January to May in 2008, when the couple was married. After the May 23, 2008 wedding ceremony, Cuevas surprised Jeronimo by driving to Chicago where Cuevas persuaded Jeronimo to stop his child support payments because they were married. Cuevas had a bottle of vodka in the car. In addition, they purchased Red Bull and mixed cocktails in the parking lot and drank them. Cuevas told Jeronimo that he wanted to spend the night in a hotel. Eventually, they rented a room at the Day's Inn in Merrillville, Indiana. They consumed more alcohol in the parking lot before going to their room. Once inside their room, they filled the Jacuzzi with water, undressed, and got in. Cuevas asked Jeronimo to engage in anal sex and she refused. Cuevas persisted in his request and then continually inserted his finger into her anus. Jeronimo repeatedly asked Cuevas to stop and he eventually did. Jeronimo informed him "I could go to the cop [sic] right now with this, you know. It doesn't matter if we are married or not." Transcript at 112.

1

Ind. Code Ann.

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