Court of Appeals of Indiana | Memorandum Decision 18A-CR-2135 | February 18, 2019 Page 1 of 13

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

Donald C. Swanson, Jr.

Deputy Public Defender

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Matthew B. MacKenzie

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Jose A. Soto,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

February 18, 2019

Court of Appeals Case No.

18A-CR-2135

Appeal from the Allen Superior 

Court

The Honorable John F. Surbeck, Jr., 

Judge

Trial Court Cause No.

02D06-1710-F1-17

Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2135 | February 18, 2019 Page 2 of 13

Case Summary

[1] Jose A. Soto (“Soto”) appeals his convictions for one count of child molesting 

as a Level 1 felony,1 and a second count of child molesting as a Level 4 felony.2 

He also appeals his forty-five-year sentence for the Level 1 felony.

[2] We affirm.

Issues

[3] Soto raises two issues which we restate as follows:

1. Whether the trial court erred in admitting into evidence 

Soto’s federal drug conviction, his own statement referring 

to “cho mo” and a witness’s definition of that term, and 

the video deposition of a forensic nurse.

2. Whether his forty-five-year sentence is inappropriate given 

the nature of the offense and his character.

Facts and Procedural History

[4] In late May of 2017, Soto was released from the Department of Correction

(“DOC”), placed on electronic monitoring, and began living with Kelly Geier

(“Geier”), Courtni Soto (“Courtni”), M.S., and Jo.S. at Geier’s home in Fort 

Wayne. Soto is the biological father of both M.S., who was age nine at the 

 

1

Ind. Code § 35-42-4-3(a).

2

I.C. § 35-42-4-3(b).
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time, and Jo.S., who was age seven. Courtni is the biological mother of M.S. 

and Jo.S., and Geier is Courtni’s mother. Soto had not been involved in his 

children’s lives for several years due to his incarceration.

[5] On September 13, 2017, Courtni and Jo.S. were at the hospital visiting a 

relative. J.S., Jr., who is Soto’s son with another woman and was age twelve at 

the time, was spending the night at Geier’s house. Geier was in her bedroom 

doing some homework while Soto was with M.S. and J.S., Jr. watching a 

movie in the back bedroom that he shared with Courtni. M.S. and J.S., Jr.

began to argue, and Soto told M.S. to come lie on the floor with him or he 

would spank her. While M.S. was on the floor and almost asleep, she “felt 

something touch her leg.” Tr. Vol. I at 163. She then felt Soto touch her 

stomach and slide his hand underneath her underwear and begin touching her 

vagina. Soto then used M.S.’s own hand to “dive” her fingers into her vagina. 

Id. at 166. After touching M.S.’s vagina Soto placed her hand down his pants 

and onto his erect penis. M.S. screamed and tried to leave the room. Soto told 

her that if she told her grandmother what happened, she “wouldn’t the-F-word 

survive,” and he stopped her from leaving by choking her with his arm. Id. at 

168.

[6] Geier had exited her room at the time of Soto’s threat and heard him say “if 

you tell grandma[,] you’re not getting out of here alive,” as she saw Soto

blocking M.S.’s exit from the back bedroom. Id. at 137. J.S., Jr. was awoken 

by M.S.’s screams and also saw Soto blocking M.S. from leaving the room. 

Geier yelled “what the hell is going on,” and M.S. was able to wiggle and kick 
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past Soto as she exited the bedroom crying and screaming that Soto had 

touched her. Id. Soto followed M.S. into Geier’s bedroom, Geier told Soto to 

“get the F out of my room,” and M.S. ran out to the garage and locked herself 

inside one of the vehicles. Id. at 140. As Geier walked to the back bedroom to 

find out what had occurred she overheard Soto tell J.S., Jr. “I’m not a cho mo,” 

and she called the police. Id. at 142. At trial, Soto did not object to the latter 

testimony.

[7] During the course of the ensuing law enforcement investigation, M.S. was 

taken to the Bill Lewis Center where she gave an “incredibly detailed” 

statement to forensic interviewer Sara Drury (“Drury”) and was able to answer 

all questions asked of her, as well as clarify and correct details of the incident. 

Id. at 223. Angela Mellon (“Mellon”), a sexual assault examiner at the Fort 

Wayne Sexual Assault Treatment Center, also examined M.S. in the course of 

the investigation.

[8] On October 25, 2017, the State charged Soto with two counts of child 

molesting. On May 22, 2018, Soto proceeded to a jury trial. During a pre-trial 

hearing Soto’s counsel asked the trial court to allow Soto to mention his 

previous federal drug conviction as an exception to the general bar against the 

admission or mention of past crimes. Soto also entered into a stipulation with 

the State to introduce into evidence a video deposition of Mellon which had 

been taken the prior week as a substitute for live testimony since Mellon was 

unavailable for trial.
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[9] During opening statements the State did not mention Soto’s prior drug 

conviction. However, in Soto’s opening statement, his counsel informed the 

jury that “Soto was convicted for Conspiracy to Distribute Narcotics and had 

been out of the children’s lives almost the entire time.” Tr. Vol. I at 123. He 

noted that “[u]nfortunately to his children [Soto] is a stranger who they are told 

is their father. They don’t know him. Imagine how [un]comfortable it must be 

for a child to be told this is your dad, go hug him.” Id. at 124. 

[10] During his cross-examination of Geier, Soto’s counsel questioned Geier as 

follows:

Q: Then you stated that you overheard Mr. Soto tell J.S., Jr. 

I’m no Cho Mo, is that correct?

A: Yes, I did hear that.

Q: Believing that to mean I’m not a child molester?

A: Correct.

Id. at 149, l. 10-14.

[11] The jury found Soto guilty as charged. On June 29, 2018, the court sentenced 

Soto to serve an aggregate forty-five-year term in the DOC for his Level 1 and 

Level 4 felony child molesting convictions. The trial court found no mitigating 

circumstances present and found aggravating circumstances present in the form 

of Soto’s criminal history and the violation of trust Soto committed when he 

molested his young daughter months after being released from prison, at a time 
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when his family was trying “to welcome him back into their home.” Tr. Vol. 

III at 22. Soto now appeals his convictions and his sentence.

Discussion and Decision

Admission of Evidence/Invited Error

[12] Soto challenges the trial court’s decisions to admit three pieces of evidence. We 

review a trial court’s admission or exclusion of evidence for an abuse of 

discretion, “which occurs if a trial court’s decision is clearly against the logic 

and effect of the facts and circumstances before the court.” Speybroeck v. State, 

875 N.E.2d 813, 818 (Ind. Ct. App. 2007) (citation omitted). However, “as a 

preliminary matter, appellate courts must first determine whether the appellant 

properly preserved the alleged error at the trial level.” Durden v. State, 99 

N.E.3d 645, 651 (Ind. 2018). 

[13] Usually, a party’s failure to object to an alleged error at trial results in waiver. 

Id. And when a passive lack of objection is coupled with a counsel’s active 

requests, “it becomes a question of invited error.” Brewington v. State, 7 N.E.3d 

946, 974 (Ind. 2014). “Under the invited error doctrine, ‘a party may not take 

advantage of an error that she commits, invites, or which is the natural 

consequence of her own neglect or misconduct.’” Baugh v. State, 933 N.E.2d 

1277, 1280 (Ind. 2010) (quoting Wright v. State, 828 N.E.2d 904, 907 (Ind. 

2005)). Rather, such invited error “is not reversible error” and is “not subject to 

appellate review.” Kingery v. State, 659 N.E.2d 490, 494 (Ind. 1995). And 
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invited error is not fundamental error, id., even when the error is of 

constitutional significance, Brewington, 7 N.E.3d at 975. 

[14] Here, Soto invited each evidentiary error he now challenges as fundamental 

error. It was Soto who made a motion in limine requesting that evidence of his 

federal drug conviction be admissible. Tr. Vol. I at 5. And Soto was the only 

party who raised his federal drug conviction and imprisonment before the jury. 

He did so in his opening statement, apparently to explain why his children 

might be “uncomfortable” with him due to his extended absence. Id. at 124. 

Having raised the conviction himself, he may not now complain that evidence 

of the conviction was fundamental error. See Baugh, 933 N.E.2d at 1280; see 

also Brewington, 7 N.E.3d at 975 (holding that invited error precludes relief from 

counsel’s strategic decisions gone awry).

[15] Similarly, Soto’s counsel invited the testimony explaining that the term “cho 

mo” means “child molester.” Tr. Vol. I at 149. Having elicited that evidence 

himself, Soto cannot now challenge it on appeal. See Roach v. State, 695 N.E.2d 

934, 941-42 (Ind. 1998) (“Defendant cannot raise this issue on appeal as the 

testimony was given in response to a question by defendant’s own counsel.”). 

The same goes for the admission of Mellon’s video deposition; Soto 

affirmatively stipulated to the admission of that deposition. “By stipulating, 

without qualification, to the evidence that he now challenges, Defendant 

invited the very error he now claims is reversible.” Ellis v. State, 707 N.E.2d 

797, 803 (Ind. 1999). Such invited error “preludes relief” on a fundamental 

error theory. Brewington, 7 N.E.3d at 974.
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[16] Because Soto invited the admission of the three pieces of evidence that he now 

calls “error,” he cannot now challenge the admission of that evidence on

appellate review. 

Inappropriateness of Sentence

[17] Soto contends that his sentence is inappropriate in light of the nature of the 

offense and his character. Article 7, Sections 4 and 6, of the Indiana 

Constitution authorize independent appellate review and revision of a sentence 

imposed by the trial court. See, e.g., Sanders v. State, 71 N.E.3d 839, 843 (Ind. 

Ct. App. 2017), trans. denied. This appellate authority is implemented through 

Indiana Appellate Rule 7(B). Id. Revision of a sentence under Rule 7(B) 

requires the appellant to demonstrate that his sentence is inappropriate in light 

of the nature of his offenses and his character. Id. (citing Ind. Appellate Rule 

7(B)). We assess the trial court’s recognition or non-recognition of aggravators 

and mitigators as an initial guide to determining whether the sentence imposed 

is inappropriate. Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016). 

[18] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate 

sentence to the circumstances presented, and the trial court’s judgment “should 

receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 

2008)). The principal role of appellate review is to attempt to “leaven the 

outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the 

end of the day turns on “our sense of the culpability of the defendant, the 

severity of the crime, the damage done to others, and myriad other facts that 
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come to light in a given case.” Id. at 1224. The question is not whether another 

sentence is more appropriate, but rather whether the sentence imposed is 

inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). 

Deference to the trial court “prevail[s] unless overcome by compelling evidence 

portraying in a positive light the nature of the offense (such as accompanied by 

restraint, regard, and lack of brutality) and the defendant’s character (such as 

substantial virtuous traits or persistent examples of good character).” Stephenson 

v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[19] Soto contends that the nature of the offense does not support a forty-five-year 

sentence. When considering the nature of the offense, we look at the 

defendant’s actions in comparison to the elements of the offense. Cannon v. 

State, 99 N.E.3d 274, 280 (Ind. Ct. App. 2018), trans. denied. Child molestation 

is among the most severe and heinous of offenses and, here, the crime was 

made worse by the fact that Soto molested his own daughter, who was only 

nine years old at the time. As the trial court properly recognized, this criminal 

behavior was a violation of the sacred trust between a parent and a child. 

Moreover, Soto threatened M.S. with violence and even death if she disclosed 

what happened, and he used physical force to choke her and keep her from 

escaping from him. As our Supreme Court has noted, “[a] harsher sentence 

becomes more appropriate as the threatened harm increases in severity, 

especially when the defendant directly threatens the victim or a witness.”

Hamilton v. State, 955 N.E.2d 723, 728 (Ind. 2011). Soto has failed to provide
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compelling evidence portraying in a positive light the nature of his offense, such 

as restraint, regard, and lack of brutality—quite the opposite.

[20] Soto also points out that he molested his daughter once—an “isolated 

incident”—and asserts that this fact makes an increase in his sentence beyond 

the advisory sentence inappropriate. Appellant’s Br. at 28. Soto cites no 

authority for this contention, and we find none. Although repeated criminal 

acts against a victim may be considered aggravating, see Garner v. State, 7 

N.E.3d 1012, 1015 (Ind. Ct. App. 2014), we find no authority for the 

proposition that a defendant’s molestation of a child “only” once mitigates 

against a sentence above the advisory sentence. See Brown v. State, 760 N.E.2d 

243, 248 (Ind. Ct. App. 2002) (“Although one can imagine facts that might be 

worse than those before us here, such does not lessen the severity of 

[defendant’s] conduct or bolster the quality of his character by comparison.”), 

trans. denied. 

[21] We acknowledge that Soto’s sentence is fifteen years longer than the advisory 

sentence for a Level 1 felony child molesting offense. I.C. § 35-50-2-4(c). 

However, given Soto’s criminal history, the heinous nature of the offense, 

Soto’s betrayal of his own young child’s trust, and the violence and threat of 

violence that accompanied the offense, we cannot say Soto’s sentence is

inappropriate in light of the nature of the offense.

[22] Soto asserts that the advisory sentence of thirty years for his crime would be 

more appropriate given that his criminal history does not include prior offenses 
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that are “similar in gravity or nature to the current offense.” Appellant’s Br. at 

27. First, we note that Soto has felony convictions for drug possession and 

robbery, both of which could be considered “grave” crimes. And he has 

another conviction involving violence, i.e., a domestic battery conviction. 

Second, our Rule 7(B) analysis does not focus on whether there are more 

appropriate sentences, only on whether the sentence imposed is inappropriate. 

King, 894 N.E.2d at 268. Thus, we focus less upon comparing the facts of a 

case to others, whether real or hypothetical, and more upon the nature, extent, 

and depravity of the offense for which the defendant is being sentenced and 

what it reveals about his character. Anglin v. State, 787 N.E.2d 1012, 1019 (Ind. 

Ct. App. 2003), trans. denied; see also Brown, 760 N.E.2d at 248.

[23] Soto also maintains that the sentence is inappropriate in light of his character. 

In support of that claim, he notes that his criminal history does not include any 

sex offenses or other grave crimes. However, his criminal history of seven 

misdemeanor convictions and three felony convictions includes a conviction for 

domestic battery and felony convictions for drug possession and robbery. 

Those convictions led the trial court to note that, taken as a whole, Soto’s 

criminal history indicates his “complete disregard for the rules of this society.” 

Tr. Vol. III at 22. Against this aggravator, Soto points to no mitigating 

evidence, such as substantial virtuous traits or persistent examples of good 

character, and the trial court found none. Stephenson, 29 N.E.3d at 122.

[24] In addition, as the trial court noted, Soto took advantage of the kindness and 

trust of his family in welcoming him back into the home after his incarceration. 
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In reaching the conclusion that Soto “significantly violated a trust” of his 

family, the court pointed to the letters from the victim that were submitted on 

sentencing. This was additional evidence of Soto’s poor character.

[25] Moreover, Soto showed no acceptance of responsibility or remorse for the 

sexual molestation he committed against his own young daughter. “A trial 

court may consider as an aggravator the defendant’s lack of remorse.” Sloan v. 

State, 16 N.E.3d 1018, 1027 (Ind. Ct. App. 2014). A lack of remorse is 

displayed by the defendant “when he displays disdain or recalcitrance,” as 

opposed to merely maintaining his innocence. Id. (quotation and citation 

omitted). At sentencing, Soto stated:

I don’t want to sound cocky and I don’t want to sound ignorant, 

but they played a role. You know, they deserve an award, an 

Oscar for the role that they played. You know, as bad as they 

want me to apologize, Your Honor, for whatever reason going 

on, I can’t. I ain’t do nothing [sic] wrong.

Tr. Vol. III at 21. By appearing to blame the minor victim and/or her family, 

Soto’s statement goes beyond merely asserting his innocence of the crimes and 

instead shows a disdain that is evidence of his poor character. We cannot say 

that his sentence is inappropriate in light of his character. 

Conclusion

[26] Because Soto invited the admission of the three pieces of evidence that he now 

calls error, he cannot challenge the admission of that evidence on appeal. And 
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his sentence is not inappropriate in light of the nature of the offense and his 

character. 

[27] Affirmed. 

Bradford, J., and Brown, J., concur.