MEMORANDUM DECISION 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 ATTORNEYS FOR APPELLEE John T. Wilson Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General I N T H E COURT OF APPEALS OF INDIANA Jose Luis Aguilar-Robles, July 27, 2017 Appellant-Defendant, Court of Appeals Case No. 48A04-1608-CR-1875 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Thomas Newman Jr., Judge Appellee-Plaintiff. Trial Court Cause No. 48C03-1412-FA-2085 Pyle, Judge. Statement of the Case [1] Jose Luis Aguilar-Robles (“Aguilar-Robles”) appeals his sentences imposed, following a bench trial, for his convictions of five counts of Class A felony child Court of Appeals of Indiana | Memorandum Decision 48A04-1608-CR-1875 | July 27, 2017 Page 1 of 17 molesting1 and three counts of Class B felony incest.2 Aguilar-Robles argues that: (1) the trial court abused its discretion when considering the threat to his daughter and his lack of remorse as aggravating circumstances; and (2) his aggregate 120-year sentence is inappropriate and should be revised to an aggregate thirty-year sentence. [2] In regard to aggravating circumstances, we conclude that the trial court’s reference to a threat to the victim, which was done when discussing the nature and circumstances of the crime and Aguilar-Robles’s violation of his position of trust with his daughter, was not an abuse of discretion. As for the lack of remorse aggravator, the State concedes, and we agree, that the trial court improperly considered Aguilar-Robles’s lack of remorse to be an aggravating circumstance where he maintained his innocence. Nevertheless, we need not remand for resentencing because the trial court found other valid aggravating circumstances, and we can say with confidence that the trial court would have imposed the same sentence without the lack of remorse aggravating circumstance. Additionally, we conclude that Aguilar-Robles’s aggregate sentence is not inappropriate, and we affirm his aggregate sentence. Finally, we note that there is a double jeopardy concern with Aguilar-Robles’s child molesting convictions in Counts I-III and his incest convictions in Counts VI- 1 IND. CODE § 35-42-4-3(a)(1). We note that under the current version of the child molesting statute, which took effect in 2014 and was then amended in 2015, Class A felony child molesting is now a Level 1 felony. Because Aguilar-Robles committed his offenses in 2010, we will apply the statute in effect at that time. 2 I.C. § 35-46-1-3. The incest statute was also amended in 2014, and Class B felony incest is now a Level 4 felony. Court of Appeals of Indiana | Memorandum Decision 48A04-1608-CR-1875 | July 27, 2017 Page 2 of 17 VIII. Because the State relied on the same evidence of sexual intercourse to support Aguilar-Robles’s child molesting convictions in Counts I-III and his convictions of incest in Counts VI-VIII and entered judgments of conviction and sentences on all these convictions, we remand to the trial court with instructions to vacate Aguilar-Robles’s incest convictions. [3] We affirm and remand. Issues 1. Whether the trial court abused its discretion when sentencing Aguilar-Robles. 2. Whether Aguilar-Robles’s sentence is inappropriate pursuant to Indiana Appellate Rule 7(B). Facts [4] During Summer 2010, on three separate occasions, twenty-six-year-old Aguilar- Robles engaged in sexual intercourse with his seven-year-old daughter, E.R. The first time he did so, Aguilar-Robles’s wife and E.R.’s mother, Sarah Robles (“Mother”), was out of town, and Aguilar-Robles was watching E.R. and her two brothers. E.R. and her brothers were sleeping in Aguilar-Robles’s bedroom when she had a nightmare and went to the kitchen to tell her father. Aguilar- Robles, who was drinking beer, told her to return to bed and that he would check on her in a moment. When Aguilar-Robles went to the bedroom to see E.R., he removed her underwear and clothing below the waist, got on top of her, kissed her on her mouth with his tongue, and inserted his penis into her vagina, causing E.R. “[a] lot of pain.” (Tr. 55). When she told him to stop, he Court of Appeals of Indiana | Memorandum Decision 48A04-1608-CR-1875 | July 27, 2017 Page 3 of 17 asked “why” and did not stop. (Tr. 55). Aguilar-Robles also touched the inside of E.R.’s vagina with his finger. E.R. did not tell anyone what had happened to her because she “was scared.” (Tr. 56). [5] The second time that Aguilar-Robles molested E.R. was during a morning before school when Mother was at work. Aguilar-Robles, who had E.R. on the bathroom floor, got on top of her, put his penis inside her vagina, and kissed her on her mouth. Again, she told him to stop, and he did not. Aguilar-Robles told E.R. not to “tell your mom or else both of us will get in trouble[.]” (Tr. 61). E.R. was “scared” and did not tell anyone what he had done because she thought “he might hurt [her] or [her] family.” (Tr. 60). [6] The third molestation also happened at Aguilar-Robles’s house in the morning before school while Mother was at work. Aguilar-Robles went into E.R.’s bedroom, and, as she was on her bed, he kissed her on the mouth and “stuck” his penis in her vagina, causing her pain. (Tr. 61). That same day after E.R. returned from school, Aguilar-Robles gave her an “air soft gun” and instructed her not to show it to anyone, including Mother and her brothers. (Tr. 63). [7] E.R. did not initially tell anyone that Aguilar-Robles had molested her. Eventually in November 2014, after several years of being “sick of it” and having it “playing over and over in [her] mind[,]” E.R. revealed to Mother what Aguilar-Robles had done to her. (Tr. 65). Aguilar-Robles was in the room when E.R. told her mother, and he “started throwing up in the kitchen sink.” (Tr. 46). Mother then took E.R. to the police department to report the Court of Appeals of Indiana | Memorandum Decision 48A04-1608-CR-1875 | July 27, 2017 Page 4 of 17 incidents. E.R. was also interviewed by a forensic interviewer and examined by a sexual assault nurse. [8] That same day, a uniformed police officer went to Aguilar-Robles’s house “to do a stand by” to ensure that Mother and the three children could safely leave the house with their belongings. (Tr. 171). As the officer walked up to the house, Aguilar-Robles, who was crying, walked out and “raised his arms up . . . in a handcuffing position, and said I’m sorry[,] I’m sorry[,] I’m sorry.” (Tr. 173). The officer informed Aguilar-Robles that he was at the house only so that Mother could safely leave and told Aguilar-Robles to go back inside the house. [9] Thereafter, in December 2014, the State charged Aguilar-Robles with: Counts I through V, Class A felony child molesting,3 and Counts VI through VIII, Class B felony incest. The police were not initially able to arrest Aguilar-Robles because he had left town and no longer showed up for work. About five months later, in May 2015, the police located Aguilar-Robles and arrested him. [10] In July 2016, the trial court held a bench trial. E.R. testified to the facts as stated above. Aguilar-Robles testified on his own behalf. He denied that he had sexual intercourse with E.R. or had otherwise molested her. During closing argument, the State argued that the evidence of Aguilar-Robles’s three acts of sexual intercourse supported his child molesting charges in Counts I-III 3 As for the five counts of Class A felony child molesting, Counts I, II, and III alleged that Aguilar-Robles had engaged in sexual intercourse with E.R., and Counts IV and V alleged that Aguilar-Robles had performed deviate sexual conduct on E.R. Court of Appeals of Indiana | Memorandum Decision 48A04-1608-CR-1875 | July 27, 2017 Page 5 of 17 and his incest charges in Counts VI-VIII. The trial court found Aguilar-Robles guilty as charged and entered judgments of convictions on all eight counts. [11] At the beginning of the sentencing hearing, Aguilar-Robles stated that he was still maintaining his innocence. The State acknowledged that Aguilar-Robles had the right to maintain his innocence; nevertheless, it requested that the trial court find that his lack of remorse was an aggravating circumstance. The State argued that other aggravating factors included Aguilar-Robles’s position of trust with E.R., E.R.’s young age, and Aguilar-Robles’s criminal history, which the State acknowledged was not extensive. The State requested that the trial court order Counts I, II, and III to be served consecutively because Aguilar-Robles had molested E.R. on three separate occasions. Aguilar-Robles’s counsel “agree[d] with the State’s assessment of which counts can be consecutive versus concurrent” and “concur[red] that [Counts] I, II, and III are the only consecutive counts as a possibility.” (Tr. 236, 237). Aguilar-Robles’s counsel argued that the trial court should not find his lack of remorse to be an aggravating factor, given the fact that he continued to maintain his innocence. His counsel stated that Aguilar-Robles would “without question . . . concur” that he was in a position of trust and was “in fact the primary care giver.” (Tr. 237). [12] When sentencing Aguilar-Robles, the trial court discussed the lack of mitigating circumstances and the presence of aggravating circumstances as it enhanced Aguilar-Robles’s sentences and imposed consecutive sentences for three of the convictions. The trial court stated as follows: Court of Appeals of Indiana | Memorandum Decision 48A04-1608-CR-1875 | July 27, 2017 Page 6 of 17 The Court does not find any mitigating circumstances. The aggravating circumstance[] that it does find is . . . the fact that he was a primary care giver and the evidence would show as such he took advantage of that situation being the primary care giver and that he was also in a trust position. He violated that trust position through being the primary care giver which gave credence and more substance to the fact that he threatened her. I think if he were not the primary care giver and he were not in such [a] trust position that the threats made would not be as significant but I think the threats are enhanced by the fact of his position. I don’t think he’s shown any remorse and his prior criminal history also is an aggravating circumstance. Counts I, II, and III to run consecutive and the other counts are either concurrent or merged. The aggravating circumstances cause the presumptive sentence of thirty (30) years to be enhanced by ten (10) to be forty (40) years all consecutive for a sentence of one hundred twenty (120) years to the Department of Corrections. (Tr. 239-40). When the trial court issued its written sentencing order, it specified that it had entered judgments of conviction and was imposing a term of forty (40) years for each of Aguilar-Robles’s five Class A felony convictions in Counts I-V and the maximum term of twenty (20) years for each of his Class B felony convictions in Counts VI-VIII. The trial court ordered Aguilar-Robles to serve Counts I-III consecutively and the remaining counts concurrently. Aguilar-Robles now appeals.4 4 After Aguilar-Robles filed his notice of appeal, he filed a motion for relief from judgment with the trial court, which held a hearing on the motion and denied it. Aguilar-Robles then filed a motion to stay his appeal to obtain the transcript of that hearing, and our Court granted his motion to stay and retained jurisdiction. Thereafter, Aguilar-Robles filed his Appellant’s Brief, and this appeal continued. Aguilar- Robles does not raise an appellate issue relating to the denial of his motion for relief from judgment. Court of Appeals of Indiana | Memorandum Decision 48A04-1608-CR-1875 | July 27, 2017 Page 7 of 17 Decision [13] On appeal, Aguilar-Robles contends that: (1) the trial court abused its discretion when determining aggravating circumstances; and (2) his sentence is inappropriate. We will review each argument in turn. [14] Before we address Aguilar-Robles’s arguments, we note that some of his convictions raise a double jeopardy concern. During the bench trial, the State relied upon the evidence of Aguilar-Robles’s three acts of sexual intercourse with E.R. to support the child molesting convictions in Counts I-III and the incest convictions in Counts VI-VIII. Following the bench trial, the trial court entered judgment of conviction on all counts. At sentencing, the trial court stated that some of the convictions would be merged. The trial court, however, entered a sentence on each of the incest convictions and ordered that they be served concurrently with the child molesting convictions in Counts I-III. [15] “A double jeopardy occurs when judgments of conviction are entered and cannot be remedied by the ‘practical effect’ of concurrent sentences or by merger after conviction has been entered.” Gregory v. State, 885 N.E.2d 697, 703 (Ind. Ct. App. 2008) (quoting Morrison v. State, 824 N.E.2d 734, 741-42 (Ind. Ct. App. 2005), trans. denied), trans. denied. Because the three child molesting convictions in Counts I-III and the three incest convictions in Counts VI-VIII arise from the same three acts of sexual intercourse, and the trial court entered judgments of conviction and sentences on all counts, a double jeopardy violation occurred under Indiana’s double jeopardy clause. See, e.g., Schaefer v. Court of Appeals of Indiana | Memorandum Decision 48A04-1608-CR-1875 | July 27, 2017 Page 8 of 17 State, 750 N.E.2d 787, 795 (Ind. Ct. App. 2001) (convictions for both child molesting and incest violated double jeopardy because it was “extremely likely” that the jury used the same evidentiary facts to establish the essential elements of both offenses); Roberts v. State, 712 N.E.2d 23, 31 (Ind. Ct. App. 1999) (holding that convictions for rape and child molesting that were based on one act of sexual intercourse violated prohibitions against double jeopardy), trans. denied. Accordingly, we remand to the trial court to vacate the three incest convictions in Counts VI-VIII. See Richardson v. State, 717 N.E.2d 32, 55 (Ind. 1999) (when two convictions cannot stand because of a double jeopardy violation, the conviction with the less severe penal consequences should be vacated). 1. Abuse of Discretion [16] Aguilar-Robles suggests that the trial court abused its discretion by finding the two following aggravating circumstances: (1) Aguilar-Robles threatened his daughter; and (2) he showed no remorse. [17] 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 (Ind. 2007). 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 will be found where 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. A trial court may abuse its discretion in Court of Appeals of Indiana | Memorandum Decision 48A04-1608-CR-1875 | July 27, 2017 Page 9 of 17 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. [18] Aguilar-Robles argues that the trial court’s finding that he threatened his daughter was an improper aggravating circumstance because it was “not supported by the record.” (Aguilar-Robles’s Br. 9). We disagree. During the bench trial, E.R. testified that when Aguilar-Robles was having sex with her, she told him to stop, but he refused. Aguilar-Robles then told E.R. not to “tell your mom or else both of us will get in trouble[.]” (Tr. 61). E.R. was “scared” and did not tell anyone what he did because she thought “he might hurt [her] or [her] family.” (Tr. 60). At sentencing, the trial court discussed the fact that Aguilar-Robles had threatened E.R. when it discussed the undisputed position of trust aggravating circumstance and in reference to the nature and circumstances of the crimes. “‘Generally, the nature and circumstances of a crime is a proper aggravating circumstance. Even if the trial court relied on an improper factor under this aggravating circumstance, the sentence may be upheld so long as [t]he remaining components of that aggravator were proper.’” Gomillia v. State, 13 N.E.3d 846, 853 (Ind. 2014) (quoting McCann v. State, 749 N.E.2d 1116, 1120 (Ind. 2001) (alteration in original) (internal citation and quotations omitted)). Because the trial court’s consideration of Aguilar- Court of Appeals of Indiana | Memorandum Decision 48A04-1608-CR-1875 | July 27, 2017 Page 10 of 17