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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: DAVID BECSEY Zeigler Cohen & Koch Indianapolis, Indiana

FILED
Dec 22 2009, 10:52 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana SCOTT L. BARNHART Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
SANTOS REYES, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A02-0904-CR-339

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Lisa F. Borges, Judge Cause No. 49G04-0806-FB-137503

December 22, 2009

MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge

Following a jury trial, Appellant-Defendant Santos Reyes was convicted and sentenced to an aggregate term of fifteen years in the Department of Correction for two counts of Class B felony Sexual Misconduct with a Minor (Counts I, III);1 one count of Class B felony Rape (Count II);2 one count of Class B felony Criminal Deviate Conduct (Count IV);3 and one count of Class C felony Sexual Misconduct with a Minor (Count V).4 Upon appeal, Reyes challenges the admissibility of certain prior bad act evidence, claims that he received multiple convictions for the same offenses in violation of double jeopardy principles, and argues that his aggregate fifteen-year sentence is inappropriate. We affirm in part, reverse in part, and remand with instructions. FACTS AND PROCEDURAL HISTORY In June of 2008, B.M. lived with her aunt, who was married to Reyes. B.M. was fourteen years old at the time and Reyes was thirty-four.5 On the morning of June 4, 2008, B.M., who was lying asleep on her back, awoke to find Reyes picking up her left leg and placing it over his shoulder. B.M. told Reyes "No," and to "get off" of her, but Reyes responded by repeating, "One time." Tr. pp. 53-54. Reyes removed his penis from the front opening in his underwear, moved B.M.s panties to the side, and placed his penis in B.M.s vagina. B.M. fought Reyes by scratching him with her fingernails, pushing him, pulling his hair, and begging him to get off of her. As B.M. fought Reyes,

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