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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. ATTORNEY FOR APPELLANT: PETER D. NUGENT Thomas, Szostak, Thomas, & Nugent Indianapolis, Indiana

FILED
Dec 22 2009, 10:31 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana GARY DAMON SECREST Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
MARBEL FIGUEROA-PEREZ, Appellant- Defendant, vs. STATE OF INDIANA, Appellee- Plaintiff, ) ) ) ) ) ) ) ) )

No. 41A04-0907-CR-365

APPEAL FROM THE JOHNSON SUPERIOR COURT The Honorable Cynthia S. Emkes, Judge Cause No. 41D02-0804-FB-5

December 22, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issues Marbel Figueroa-Perez appeals his conviction, following a bench trial, and tenyear sentence for child molesting, a Class B felony. Figueroa-Perez raises two issues for our review, which we restate as 1) whether sufficient evidence supports his conviction, and 2) whether his sentence is inappropriate in light of the nature of his offense and his character. Concluding the evidence is sufficient and Figueroa-Perez's sentence is not inappropriate, we affirm. Facts and Procedural History On Saturday, February 23, 2008, Kiea Bahling was babysitting her cousin, C.T., age twelve, at C.T.'s home in Franklin, Indiana. Between 9 and 10 p.m. that evening, Bahling and C.T. went to the apartment next door, where Bahling's friend Pablo resided together with five other men including Figueroa-Perez. Bahling talked with Pablo in the kitchen, drank "about five shots" of tequila, and did not converse with the other men in the apartment because "[t]hey really didn't speak much English." Transcript at 15-16. Meanwhile, C.T. sat in the living room talking, watching television, and listening to music with the other men, including Figueroa-Perez. After about two hours, all of the men except Figueroa-Perez went upstairs to go to bed, and then Bahling, who appeared intoxicated to C.T., went upstairs with Pablo. C.T. and Figueroa-Perez were left sitting on the couch together. Thereafter, according to C.T., Figueroa-Perez kissed C.T.,

grabbed her by the arms, pulled off her clothes, and forced C.T. to submit to sexual intercourse despite her verbal and physical protests. C.T. ran home crying, and about fifteen minutes later she returned to the apartment to look for Bahling, whom she found
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having sex with Pablo in the living room. According to C.T., she told Bahling what had happened, and Bahling put on her clothes, punched the wall in anger, and went to C.T.'s residence where she passed out. On February 25, 2008, C.T., while at school, told a friend about the assault. The friend informed the school counselor, who, after confirming the rape with C.T., brought the matter to the attention of police and C.T.'s parents. C.T.'s father became upset and told C.T. that if she was not telling the truth, she "could go to juvenile for a long time." Id. at 45. Sometime between February 25 and February 27, 2008, C.T. went to the hospital for a physical examination, which "neither negated nor supported" her story of being raped. Id. at 67. On February 28, 2008, C.T. spoke with Detective Scheuermann of the Franklin Police Department, who had put together a lineup of photographs of the men living at the apartment where the assault occurred as well as five men who did not live at the apartment. Upon reviewing the lineup, C.T. identified a photograph of

Figueroa-Perez as the man who assaulted her. On April 2, 2008, the State charged Figueroa-Perez with Count I, rape, a Class B felony, and Count II, child molesting by sexual intercourse, a Class B felony. FigueroaPerez waived his right to a jury trial, and the case proceeded to a bench trial on October 30, 2008. At trial, C.T. identified Figueroa-Perez as the man who assaulted her. testified on direct examination: Q. After [Bahling] went upstairs and you were alone with [Figueroa-Perez] downstairs, can you tell me what happened next? C.T.

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A. I was sitting on the couch closest to the door, and then he was sitting there too. Then he asked me if he could have a kiss and I said no. Then I moved over to the next couch, then he followed me over there. Then he tried kissing me and I told him no to get off. And he tried pulling down my shirt. And then I got back up and then he was kissing me when I was hollering for [Bahling]. And then he put my arms against the couch and pulled down my pants and I wasn't strong enough to get him off. *** Q. Did he also get your underwear down? A. Yes he did. Q. And . . . you were on the couch, where was he? A. He was directly right in front of me. Q. On the couch or standing on the floor? A. Standing on the floor. *** Q. Were you trying [to push him away]? A. I was trying. Q. What happened then? A. And then he had sexual activity with me, and . . . Q. And now when you say sexual activity, you need to describe what that means, okay? A. His penis went into my vagina. *** Q. How long did that happen []? A. About two or three minutes, I'm just taking a guess. Q. Do you know why he stopped? A. No, I was screaming. Id. at 32-33, 35-36. Figueroa-Perez testified and denied assaulting C.T. or making any sexual advances toward her, although he admitted being alone with C.T. on the living room couch for about three minutes. Three of the other men who were in the apartment that evening, and who were a brother and cousins of Figueroa-Perez, testified they never heard any crying, screaming, or yelling after they went upstairs to go to bed. Bahling testified she did not remember C.T. telling her about being raped, which she testified she would have remembered, despite being under the influence of alcohol, had it happened. The trial court took the case under advisement, and on November 11, 2008, found
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Figueroa-Perez guilty on both counts, although it ultimately entered judgment of conviction on Count II only. On March 12, 2009, the trial court held a sentencing hearing. Figueroa-Perez called a jail minister, who testified Figueroa-Perez had displayed good character while in jail, had claimed innocence, and had never expressed remorse. The trial court took notice of the presentence investigation report, which listed Figueroa-Perez's age as nineteen and stated he had no adult criminal record prior to the instant offense. Figueroa-Perez admitted he did not have legal immigration status when he came to the United States from Mexico three years previously. Figueroa-Perez's attorney stated, "I do believe that, if I'm not mistaken, that there is an immigration hold on [Figueroa-Perez] at this time. And so he . . . will be going back to Mexico upon completion of his sentence." Sentencing Transcript at 7.1 The State conceded Figueroa-Perez's youth and lack of criminal history were mitigating factors but argued an advisory sentence of ten years was appropriate based on Figueroa-Perez's illegal immigration status, his lack of expressed remorse, and the facts and circumstances of the crime. The trial court then made the following sentencing statement: I recognize and . . . give a great deal of weight to the fact that [FigueroaPerez] has no prior criminal record, and I recognize his age. I do recognize the testimony of the witness today in regard to this [sic] character and his attitude and the argument that he's not likely to commit another crime. However, I am really giving minimal weight to that as a mitigator for this reason. He is an illegal immigrate [sic]. . . . And so to the opposite end of the scale on the aggravating circumstances, I find it very much a concern to the Court as far as his character and attitude that he is here illegally and I am placing great weight on, on his status as an illegal immigrate [sic] as an
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The court reporter prepared separate transcripts for Figueroa-Perez's trial and sentencing hearing.

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aggravating circumstance which the Court is allowed to, and I believe should do under the circumstances. . . . I don't believe this is the most aggravated case, the aggravators far outweighing the mitigators. I place again a great deal of weight on the aggravators . . . being an illegal immigrate [sic], the nature and circumstances of the crime, based on the age of the child, and basically there being no relationship between the two, and pretty much being a stranger, weight [sic] the child molest under the facts and circumstances. Id. at 12-13. Following the sentencing hearing, the trial court issued an order sentencing Figueroa-Perez to ten years, all executed, at the Department of Correction. Thereafter, the trial court denied Figueroa-Perez's motion to correct error. Figueroa-Perez now appeals. Discussion and Decision I. Sufficiency of the Evidence A. Standard of Review When reviewing the sufficiency of the evidence to support a criminal conviction, we neither reweigh the evidence nor judge witnesses' credibility. Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005). Rather, we consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Therefore, we will affirm the conviction if the probative evidence and reasonable inferences drawn therefrom could have allowed a reasonable trier of fact to find all elements of the crime proven beyond a reasonable doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). B. Class B Felony Child Molesting To convict Figueroa-Perez of child molesting as a Class B felony, the State must prove beyond a reasonable doubt Figueroa-Perez (1) engaged in sexual intercourse with
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C.T., and (2) C.T. was under fourteen years of age. See Ind. Code

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