Rodriguez v. State
| Decision Date | 21 June 2007 |
| Docket Number | No. 34A02-0604-CR-329.,34A02-0604-CR-329. |
| Citation | 868 N.E.2d 551 |
| Parties | Crescensio RODRIGUEZ, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Monty B. Arvin, Kokomo, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Matthew D. Fisher, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Crescensio Rodriguez ("Rodriguez") was convicted in Howard Superior Court of two counts of Class C felony child molestation. He was ordered to serve consecutive terms of four years for each conviction. Rodriguez appeals and raises the following issues, which we restate as:
I. Whether the evidence was sufficient to support Rodriguez's convictions for child molestation;
II. Whether the trial court improperly relied on Rodriguez's position of trust with the victim as an aggravating circumstance; and,
III. Whether Rodriguez's sentence is inappropriate in light of the nature of the offense and the character of the offender.
Concluding that the evidence is sufficient to support Rodriguez's convictions and that his sentence is not inappropriate, we affirm.
C.S.'s mother resided with Rodriguez and his family from the fall of 2003 to the winter of 2004. During that time, nine-year old C.S. and her sister would stay with their mother at Rodriguez's house when their mother had visitation. In January 2004, C.S. told her stepmother that Rodriguez had touched her inappropriately. As a result of C.S.'s allegations, Rodriguez was charged with two counts of Class C felony child molestation.
A bench trial was held on January 27, 2006. C.S. testified at trial and a video-taped interview taken in January 2004 was admitted into evidence. Investigating police officers Tonda Cockrell and Michael Sanders testified that Rodriguez admitted to touching C.S.'s genitals. Tr. pp. 59, 83-84. Rodriguez denied touching C.S. with the specific intent to arouse or satisfy either his or C.S.'s sexual desires. The trial court found Rodriguez guilty on both counts.
At sentencing, the trial court found that Rodriguez's violation of his position of trust with C.S. was an aggravating circumstance. Rodriguez's lack of criminal history, his honorable discharge from the armed services, and his stable employment history were found to be mitigating. The trial court concluded that the aggravating and mitigating circumstances balanced and ordered Rodriguez to serve consecutive terms of four years for each conviction, for an aggregate sentence of eight years. Rodriguez now appeals. Additional facts will be provided as necessary.
When we review a claim of sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the witnesses. Jones v. State, 783 N.E.2d 1132, 1139 (Ind.2003). We look only to the probative evidence supporting the judgment and the reasonable inferences therein to determine whether a reasonable trier of fact could conclude that the defendant was guilty beyond a reasonable doubt. Id. If there is substantial evidence of probative value to support the conviction, it will not be set aside. Id.
To convict Rodriguez of molesting nine-year old C.S., the State was required to prove that he performed or submitted to any fondling or touching, of either C.S. or himself, with intent to arouse or to satisfy his or C.S.'s sexual desires. See Ind.Code § 35-42-4-3(b) (2004). Rodriguez admitted to touching C.S.'s genitals. See Tr. pp. 59, 83-84. However, he argues that the State failed to present sufficient evidence of his intent to arouse or satisfy his sexual desires because the touching accidentally occurred while Rodriguez and C.S. were roughhousing.
Mere touching alone is not sufficient to constitute the crime of child molesting. See Bowles v. State, 737 N.E.2d 1150, 1152 (Ind.2000) (). The State must also prove beyond a reasonable doubt that the act of touching was accompanied by the specific intent to arouse or satisfy sexual desires. Clark, 695 N.E.2d at 1002. "The intent to arouse or satisfy the sexual desires of the child or the older person may be established by circumstantial evidence and may be inferred `from the actor's conduct and the natural and usual sequence to which such conduct usually points.'" Kanady v. State, 810 N.E.2d 1068, 1069-70 (Ind.Ct. App.2004) ().
C.S. testified that Rodriguez touched her "privates" with his hand several times. Tr. p. 36. In her videotaped statement, C.S. stated that approximately two weeks after her mother moved into the Rodriguez home, he began to pull her pants down. He would grab her "privates" when they were alone in the kitchen or other areas of the house. Ex. Vol., State's Ex. 1. On one occasion, Rodriguez offered C.S. three dollars if she would go to the basement and take off all of her clothes. Id. This evidence is sufficient to establish that Rodriguez touched C.S. with the intent to arouse or satisfy his sexual desires. See Sanchez v. State, 675 N.E.2d 306, 311 (Ind.1996) (). Accordingly, we conclude that Rodriguez's Class C felony child molesting convictions are supported by sufficient evidence.
Citing Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), Rodriguez argues that the trial court improperly identified "position of trust" as an aggravating circumstance because the aggravator was not found by a jury beyond a reasonable doubt. Our supreme court has held that Blakely impacts Indiana's sentencing scheme and that any facts, other than criminal history and those admitted by a defendant, used to enhance a sentence above the presumptive term must be found by a jury beyond a reasonable doubt. See Smylie v. State, 823 N.E.2d 679, 683-85 (Ind.2005) (emphasis added).
In this case, the trial court found that the "position of trust" aggravator and the three mitigating circumstances balanced and imposed the presumptive sentence of four years for each Class C felony conviction.1 Here, the trial court did not rely on the aggravator to enhance Rodriguez's sentence beyond the presumptive four-year term, and so the rule announced in Blakely does not apply. See Wieland v. State, 848 N.E.2d 679, 683 n. 5 (Ind.Ct. App.2006), trans. denied. We also observe that the imposition of consecutive sentences does not implicate Blakely. Plummer v. State, 851 N.E.2d 387, 390 (Ind.Ct. App.2006) (citing Smylie, 823 N.E.2d at 686).
Moreover, the trial court did not abuse its discretion when it considered Rodriguez's position of trust with C.S. as an aggravating circumstance. Sentencing determinations are within the discretion of the trial court. Ruiz v. State, 818 N.E.2d 927, 928 (Ind.2004). "When a trial court finds aggravating or mitigating circumstances, it must make a statement of its reasons for selecting the sentence imposed." Frey v. State, 841 N.E.2d 231, 234 (Ind.Ct.App.2006). Yet, the trial court need not set forth its reasons when imposing the presumptive sentence. Id. However, if the trial court finds aggravating and mitigating circumstances, concludes they balance, and imposes the presumptive sentence, then pursuant to Indiana Code section 35-38-1-3, the trial court must provide a statement of its reasons for imposing the presumptive sentence. Id.
Indiana Code section 35-38-1-7.1 lists several aggravating circumstances a trial court may consider in imposing a sentence. Although position of trust is not specifically listed as a circumstance in that section, the statute also provides that courts are not limited to consideration of those enumerated circumstances in imposing a sentence.
The position of trust aggravator is frequently cited by sentencing courts where an adult has committed an offense against a minor and there is at least an inference of the adult's authority over the minor. Moreover, this aggravator applies in cases where the defendant has a more than casual relationship with the victim and has abused the trust resulting from that relationship. This is usually the case where the defendant is the victim's mother, father or stepparent. See e.g. Plummer, 851 N.E.2d at 390; Kincaid v. State, 839 N.E.2d 1201, 1205 (Ind.Ct.App.2005); Devries v. State, 833 N.E.2d 511, 515 (Ind. Ct.App.2005), trans. denied, disapproved of on other grounds by Ryle v. State, 842 N.E.2d 320 (Ind.2005). Consideration of this aggravator may be appropriate where the defendant is the victim's day care provider. See e.g. Trusley v. State, 829 N.E.2d 923, 926-27 (Ind.2005). In addition, our court has held that consideration of the position of trust aggravator was appropriate where the child molest victim was spending the night with the defendant's daughter at the defendant's residence and the defendant admitted that the victim "trusted [him] when she spent the night at [his] house." See Hines v. State, 856 N.E.2d 1275, 1280-81 (Ind.Ct.App. 2006), trans. denied.
Generally, cohabitation arrangements of nearly any character between adults do in fact, and should, establish a position of trust between the adults and minors living or staying together. In this case, C.S.'s mother was residing with Rodriguez and his family, and C.S.'s visitation with her mother occurred in his home. Rodriguez frequently interacted with and played with C.S. Rodriguez would also provide transportation for C.S. and her sister during their visitation with their mother. Tr. p. 100. C.S. spent a significant amount of time in Rodriguez's home and in his presence. We therefore conclude that the trial court did not abuse its discretion when it identified Rodriguez's violation of his position of trust with C.S. as an aggravating circumstance.
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