Court of Appeals of Indiana | Memorandum Decision 48A02
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### 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. A TTORNEY FOR A PPELLANT David W. Stone, IV Anderson, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Matthew B. Mackenzie Deputy Attorney General Indianapolis, Indiana 

### IN THE 

# COURT OF APPEALS OF INDIANA Jose G. Echartea
- De La Suente , Appellant
- Defendant, v. 

### State of Indiana , Appellee
- Plaintiff
. January 23, 2018 Court of Appeals Ca se No. 48A02
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- 1280 Appe al from the Madison Circuit Court The Honorable David A. Happe, Judge Trial Court Cause No. 48C04
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- FA
- 2249 Riley , Judge .Court of Appeals of Indiana | Memorandum Decision 48A02
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### STATEMENT OF THE CASE [1] Appellant
- Defendant, Jose G. Echartea
- De La Suente (Echartea
- De La Suente), appeals his conviction for two Counts of child molesting, Class A felonies, Ind. C ode § 35
- 42
- 4
- 3(a)(1); two Counts of child molesting , Class C felonies, I.C. § 35
- 42
- 4
- 3(b); and one Count of attempted child molesting, a Class C felony, I.C. §§ 35
- 42
- 4
- 3(b);
- 41
- 5
- 1. [2] We affirm. 

### ISSUE S [3] Echartea
- De La Suente presents us with three issue s on appeal, which we restate as: (1) Whether the State presented sufficient evidence beyond a reasonable doubt to support Echartea
- De La Suente’s conviction for one Count of child molesting as a Class A felony; (2) Whether the trial cou rt abused its discretion in sentencing Echartea
- De La Suente to an aggregate sentence of seventy years based on multiple aggravating factors and no mitigating factors; and (3) Whether his aggregate sentence is appropriate in light of the nature of the offense and his character.Court of Appeals of Indiana | Memorandum Decision 48A02
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### FACTS AND PROCEDURAL HISTORY [4] In 2005, C.S., then n ine years old, was living with her mother, her younger sister O.M. , her younger brother J.M., and her grandmother in Anderson, Indiana. C.S.’s mother was dating Echartea
- De La Suente and he would visit occasionally ; they married in 2009 . On one such visit, C.S., along with Echartea
- De La Suente, her mother, sister, brother, and cousin, T.K., were all sleeping in her mother’s bedroom. C.S. was between T.K., who was facing away from C.S. playing a Gameboy, and Echartea
- De La Suente. While everyone was asleep with the exception of T.K., Echartea
- De La Suente started t o “rub [C.S.’s] shoulder down to [her] leg and then, eventually, he made his way down inside [her] pant s and start ed fingering and putting his finger in [her] vagina continuously.” (Transcript Vol. II, p. 52). C.S. “tried to close [her] legs as t ig h t as [she] could.” (Tr. Vol. II, p. 52). The next day, C.S. informed T .K. of what had happened. She did not tell her mother because “[a]s a child [she] had seen [her] cou sin get taken aw a y into foster care and [she] just didn’t wa n t anything to change between [her] family.” (Tr. Vol. II, p. 52). [5] In 2010, Echartea
- De La Suente started molesting C.S.’s younger sister, O.M., who was then eleven years old. At that time, O.M. shared a bed room with her brother, C.S. had her own bed room, her mother and Echartea
- De La Suente shared a room, and O.M.’s grandmother slept on the couch. At night, Ec hartea
- De La Suente entered O. M.’s bedroom and “got in [O.M.’s] bed. ” (Tr. Vol. II, p. 68). “[H]e put his hand under [her shirt] and” started rubbing her breasts and vagina. (Tr. Vol. II, p. 68). O.M. did not tell anyone what hadCourt of Appeals of Indiana | Memorandum Decision 48A02
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- De La Sue nte continued to molest her “almost every night.” (Tr. Vol. II, p. 70). [6] Ev entually Echartea
- De La Suente escalated his behavior. After he had touched O.M. ’s breasts and rubbed her vagina, he lifted up O.M.’s shirt and started kissing her back. He tried to kiss O.M. on her mouth but she “was holding [her] teeth closed, so he pulled down [her] pants and [her] underwear to [her] ankles.” (Tr. Vol. II, p. 71). O.M. tried to get up “but he h el d [her] down and he started licking [her] vagina.” (Tr. Vol. II, p. 71). The following morning, O.M. wrote her friend a note about the incident and asked her friend to give the note to O.M.’s mother because O.M. was too e mbarrassed and afraid to hand her the note herself. After O.M.’s mother read the note, mother became angry and started “yelling at [ O.M. ] because [she] told [her friend] and it could’ve gotten [her] brother and [her] sister taken away, and the house taken away, and [O.M.] taken away.” (Tr. Vol. II, p. 74). [7] On another occasion, O.M. was alone in the living room as she had just gotten up and her mother and grandmother had left to get breakfast. C.S. and her brother were still asleep. O.M. was on the cou ch watching television when Echartea
- De La Suente “came in and laid behind” her. (Tr. Vol. II, p. 75). O.M. immediately got up and started walking to her room. However, Echartea
- De La Suente “grabbed [her] and took [her] to [his] room” where he threw he r on the bed. (Tr. Vol. II, p. 75). As he tried to pull O.M.’s pants down, she pushed him off and ran to her room, locking her bedroom door. Echartea
- De La Suente tried to break into her bed room by using a credit card toCourt of Appeals of Indiana | Memorandum Decision 48A02
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- De La Suente went to the bathroom to take a shower. O.M. texted her mother a bout the incident but “nothing really happened.” (Tr. Vol. II, p. 76). O.M. disclosed the abuse to T.K. and T.K. began sleeping in O.M.’s room “to protect” her. (Tr. Vol. II, p. 124). [8] With the exception of grandmother and C.S., the family moved to a n ew apartment. There, O.M.’s mother questioned O.M.’s attitude, and O.M. told her that she was continuously angry because her mother knew Echartea
- De La Suente had molested her, yet refused to do anything. O.M. disclosed the abuse to law enforcement after mother took O.M. to the emergency room for an examination. [9] On December 4, 2012, the State filed an Information , charging Echartea
- De La Suente with two Counts of child molesting as Class A felonies, two Counts of child molesting as Class C felonies, and one Count of attempted child molesting, as a Class C felony. However , Echartea
- De La Suente had left Indiana and was wanted on a warrant for approximately four years. On April 6, 20 1 7 , after his arrest and extradition to Indiana, Echartea
- De La Suente w as found guilty as charged following a jury trial. On May 22, 2017, the trial court conducted a sentencing hearing. At the close of the evidence, the trial court sentenced Echartea
- De La Suente to thirty
- five years each on the two Class A felonies, to be served consecutively, and four years on each of the Class CCourt of Appeals of Indiana | Memorandum Decision 48A02
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- De La Suente now appeals. Additional facts will be provided as necessary. 

### DISCUS SION AND DECISION I. Sufficiency of the Evidence [11] Echartea
- De La Suente contends that the State failed to present sufficient evidence beyond a reasonable doubt to sustain his conviction for Count I, the Class A child molestation pertaining to C.S. 1 Our st andard of review for a sufficiency of the evidence claim is well settled. In reviewing sufficiency of the evidence claims, we will not reweigh the evidence or assess the credibility of the witnesses. Moore v. State , 869 N.E.2d 489, 492 (Ind. Ct. App. 2007). We will consider only the evidence most favorable to the judgment, together with all reasonable and logical inferences to be drawn therefrom. Id . The conviction will be affirmed if there is substantial evidenc e of probative value to support the conviction of the trier of fact. Id
. It is well
- established that “the uncorroborated testimony of one witness may be sufficient by itself to sustain a conviction on appeal.” Scott v. State , 871 N.E.2d 341, 343 (Ind. C t. App. 2007) ( citing Toney v. State , 715 N.E.2d 367, 369 (Ind. 1999)), trans. denied
.

1 Echartea
- De La Suente does not challenge the sufficiency of the evidence on his other charges.Court of Appeals of Indiana | Memorandum Decision 48A02
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- De La Suente of Class A felony child molesting, the State had to establish beyond a reasonable doubt that Echartea
- De La Suente, being at least twent y - one years of age, “knowingly or intentionally perform[ed] or submit[ted] to sexual intercourse or other sexual misconduct” with a child under fourteen years of age. See I.C. § 35
- 42
- 4
- 3(a). Here, C.S., being nine years old at the time of the molestatio n, testified that Echartea
- De La Suente rubbed her shoulder, then her leg, and then pro ceeded “fingering or putting his finger in [her] vagina continuously.” (Tr. Vol. II, p. 52). She described that Echartea
- De La Suente put his finger “all the way insid e” her vagina and that she “just tried to close [her] legs as tight as [she] could.” (Tr. Vol. II, p. 52). [13] Echartea
- De La Suente now challenges C.S.’s testimony as incredibly dubious. Specifically, he asserts that “[i]t is contrary to human experience that an adult would attempt to molest a child with that many potential witnesses in close proximity and one of whom was awake playing a game.” (Appellant’s Br. p. 12). Under the incredible dubiosity rule, “a court will impinge on the jury’s responsibilit y to judge the credibility of the witnesses only when it has confronted ‘inherently improbable’ testimony or coerced, equivocal, wholly uncorroborated testimon y of ‘incredible dubiosity.’” Moore v. State , 27 N.E.3d 749, 755 (Ind. 2015) (citing Tillman v. State , 642 N.E.2d 221, 223 (Ind. 1994)). A court will impinge upon a jury’s duty to judge witness credibility “where a sole witness presents inherently contradictory testimony which is equivocal or the result of coercion and there is a complete lack of ci rcumstantial evidence of the appellant’s guilt.” Moore , 27 N.E.2d at 755.Court of Appeals of Indiana | Memorandum Decision 48A02
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- 1280 | January 23, 2018 Page 8 of 15 [14] We find the incredible dubiosity rule inapplicable to the case at hand. Even though we agree with Echartea
- De La Suente that T.K. was not a witness as she failed to observe the m olestation, we cannot agree that C.S.’s trial testimony was “inconsistent within itself.” See id . at 758
- 59. Even under cross
examination, C.S. was consistent in her responses and confident in what had happened that night. The jury was free to decide wh ether “ to believe or disbelieve” C.S. See Murray v. State , 761 N.E.2d 406, 409 (Ind. 2002). Furthermore, it is no t uncommon for child molesters to offend when other people are in the home or even in the same room. We agree with the State that the decisi on to commit a crime in the presence of potential witnesses without first isolating the victim does not make the commission of that crime improbable. Accordingly, as the State presented sufficient evidence to sustain Echartea
- De La Suente’s conviction for Class A felony child molesting, as pertaining to C.S., we affirm the trial court’s decision. II. Aggregate Sentence [15] Next, Echartea
- De La Suente contends that the trial court abused its discretion in sentencing him to an aggregate sentence of seventy years based on “improper aggravating factors and the failure to recognize the lack of any real criminal history as a mitigating factor.” (Appellant’s Br. p. 16). Sentencing decisions are a matter of trial court discretion an d are reviewed on appeal only for an abuse of that discretion. Anglemyer v. State , 868 N.E.2d 482, 490, clarified on reh’g , 875 N.E.2d 218 (Ind. 2007). A trial court abuse s its discretion if its decision “is ‘clearly against the logic and effect of the f acts and circumstancesCourt of Appeals of Indiana | Memorandum Decision 48A02
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- 38
- 1
- 3(3)). [16] On appeal, a trial court may be found to have abused its discretion by failing to enter a sentencing statement at all; entering a sentencing statement that explains its reasons for imposing a sentence where such reasons are not supported by the record or are improper as a matter of law; or entering a sentencing statement that omits reasons which are clearly supported by the record and advanced for consideration. Id. at 4 90
- 91. A trial court does not abuse its discretion by failing to properly weigh aggravating and mitigating factors. Id. at 491. If we find that the trial court has abused its sentencing discretion, our court will remand for resentencing only “if we cann ot say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.” Id. [17] Child molesting as a Class A felony is punishable by a fixed term of between twenty and fifty years, with the advisory sentence being thirty years. See I.C. § 3 5
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- 2
- 4(a). Echartea
- De La Suente’s Class C felonies are punishable for a fixed term of between two and eight years, with the advisory sentence being four years. See I.C. § 35
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- 6. In this case, as factors warranting anCourt of Appeals of Indiana | Memorandum Decision 48A02
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- De La Suente’s prior criminal history; 2) multiple victims and multiple offenses committed over a very long period of time ; and 3) Echartea
- De La Suente’s violation of his position of trust. The trial court specifically noted that it could “find no mitigation in the record” to weigh against several aggravat ors . (Tr. Vol. III, p p . 61
- 62). Accordingly, the trial court imposed an aggravated sentence of thirty
five years each on the Class A felonies, to be served consecutively, and the advisory sentence of four years on each of the Class C felonies, to be served concurrently to the Class A felonies, for an aggregate sentence of seventy years. [18] Challenging the trial court ’s finding of all three aggravators, Echartea
- De La Suente first contends that his criminal history should actually be considered as a mitigating factor as it only consists of operating a vehicle while intoxicated in 2008 and three operating while intoxica ted offenses based on a single incident in 2012. Considering that Echartea
- De La Suente did have “some prior criminal history,” the trial court also recognized that this history is “[n]ot prior to these offense[s] being committed necessarily but prior to sentencing here today.” (Tr. Vol. III, p. 61). While “the significance of criminal history varies based on the gravity, nature, and number of prior offenses in relation to the current offense,” the trial court here merely noted Echartea
- De La Suente’s cr iminal record without awarding it significant weight. Garcia v. State , 47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied
. Accordingly, as the aggravator is supported by the record, the trial court properly considered Echartea
- De La Suente’s criminal history.Court of Appeals of Indiana | Memorandum Decision 48A02
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- 1280 | January 23, 2018 Page 11 of 15 [19] Turning to the trial court’s aggravator of “multiple victims and multiple offenses committed over a very long period of time,” Echartea
- De La Suente argues that the trial court improperly relied on “acts of molestation with which the defe ndant was not charged.” (Tr. Vol. III, p. 61; Appellant’s Br. p. 15). In this instance, Echartea
- De La Suente alludes to the trial court’s statement that “there is evidence from which the court can certainly conclude[], and does conclude, that there were more incidents that occurred than were charged in this case” to contend that the aggravator was improper. (Tr. Vol. III, p. 61). However, our review of the record indicates that the trial court explicitly identified the existence of multiple victims and multiple offenses committed over a long period of time as an aggravator, while the contested statement was merely an elaboration on the trial court’s thought process. At no point did the trial court chara cterize these uncharged offenses as a separate agg ravator. [20] Lastly, Echartea
- De La Suente disagrees about having ever been in a position of trust with the victims and thus also challenges this aggravator as improper. At the time of C.S.’s molestation in 2005, Echartea
- De La Suente was dating C.S.’s moth er and was a visitor at the residence. Apparently, he was close enough to the victims that C.S.’s mother allowed him to sleep in the bedroom with the entire family. In Rodriguez , we concluded that this type of behavior is sufficient to establish a positi on of trust. Rodriguez v. State , 868 N.E.2d 551, 555 (Ind. Ct. App. 2007) (holding that the position of trust aggravator applies when the defendant “has a more than casual relationship with the victim and has abused the trust resulting from that relations hip” and that “generally,Court of Appeals of Indiana | Memorandum Decision 48A02
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- De La Sue nte argues that his thirty
- five
- year aggravated sentence for Count I, the child molestation of C.S., constitutes an abuse of discretion as it is supported by improper aggravators pertaining to this specific Count, we note that Indiana does not require trial courts to specify aggravators and make separate findings regarding each individual offense. In Cardwell v. State , 895 N.E.2d 1219, 1224
- 25 (Ind. 2008), our supreme court clarified that In the case of some crimes, the number of counts that can be charged and proved is virtually entire ly at the discretion of the prosecution. For that reason, appellate review should focus on the forest

— the aggregate sentence

— rather than the trees

— consecutive or concurrent, number of counts, or length of the sentence on any individual count.
[22] In sentencin g Echartea
- De La Suente to an aggregate sentence of seventy years , the trial court found multiple proper aggravating factors and no mitigating factors. Accordingly, we cannot say that the trial court abused its discretion in imposing an aggravated sentenc e. II. Inappropriate Sentence Review [23] Echartea
- De La Suente also claims that his seven ty - year sentence is inappropriate. As we previously indicated, “ ‘sentencing is principally a discretionary function in which the trial court’s judgment should receiveCourt of Appeals of Indiana | Memorandum Decision 48A02
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- De La Suente bears the burden of persuading this court that h is sentence is inappropriate. Corbally v. State , 5 N.E.3d 463, 471 (Ind. Ct. App. 2014). Echartea
- De La Suente seeks a reduction in his sentence to the minimum sentence on Count I and the advisory sentence on the other Counts, with all Counts to run concurrent, for an aggregate sentence of thirty years. [25] With respect to the nature of the offense, “the advisory sentence is the starting point [that] our legislatur e has selected as [an] appropriate sentence for the crime committed.” Richardson v. State , 906 N.E.2d 241, 247 (Ind. Ct. App. 2009). Here, the trial court sentenced Echartea
- De La Suente to an aggregate ,Court of Appeals of Indiana | Memorandum Decision 48A02
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. Echartea
- De La Suente now claims that this is inappropriate because he “did not physically harm either of the girls. He did not have intercourse with either of them nor did he have either of them perform fellatio on him. His actions consisted of fondling, cunnilingus a nd digital penetration.” (Appellant’s Br. p. 18). However, our supreme court has held that “the absence of physical harm is not an automatic mitigating circumstance such that it would require a lesser sentence than would otherwise be imposed.” Neale v. State , 826 N.E.2d 635, 638 (Ind. 2005). Echartea
- De La Suente only received sentences above the advisory for his Class A felony Counts , both of which were aggravated by five years. See I.C. § 35
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- 2
- 4(a). [26] T he record indicates that Echartea
- De La Suente abused his position of trust with his two young victims , which allowed him to molest them over an extended period of time. Echartea
- De La Suente initially molested C.S. by “continuously” inserting his finger into her vagina while she tried to resist by ho lding her legs together as tightly as she could. (Tr. Vol. III, p. 52). Gradually over time, Echartea
- De La Suente’s behavior escalated to the point where, in an attempt to molest O.M., he threw her on the bed in his room and, after O.M escaped, he attem pted to break into her locked bedroom. At sentencing , O.M. testified that as a result of the prolonged molestation , she no longer has a relationship with her mother, had to switch schools several times, and was barely graduating. [27] Turning to his characte r, the trial court noted that Echartea
- De La Suente did not express any remorse; rather, he increased the victims’ harm by fleeing theCourt of Appeals of Indiana | Memorandum Decision 48A02
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- De La Suente’s sentence is inappropriate in light of the nature of the offense and his character. 

### CONCLUSION [28] Based on the foregoing, we hold that: (1) the State presented sufficient evidence beyond a reasonable doubt to support Echartea
- De La Suente’s conviction for one Count of child molesting as a Class A felony; (2) the trial court did not abuse its discretion in sentencing Echartea
- De La Suente to an aggregate sentence of seventy years based on multiple aggravating factors and no mitigating factors; and (4) his aggregate sentence is appropriate in light of the nature of the offense and his character. [29] Affirmed. [30] Baker, J. and Brown, J. concur