HERRERA v. STATE (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Jesus Herrera (“Herrera”) appeals his convictions, following a jury trial, for three counts of Class A felony child molesting,¹ Class C felony child molesting,² three counts of Level 1 felony child molesting,³ Level 4 felony child molesting,⁴ Level 4 felony sexual misconduct with a minor,⁵ and Level 5 felony sexual misconduct with a minor.⁶ He also appeals his sentence.

[2] Herrera specifically argues that: (1) the trial court abused its discretion in excluding certain evidence; (2) the evidence is insufficient to support his convictions; and (3) his sentence is inappropriate. Concluding that: (1) Herrera has waived appellate review of his argument challenging the exclusion of certain evidence and that, waiver notwithstanding, any error in the exclusion of this evidence was harmless; (2) there is sufficient evidence to support his convictions; and (3) his sentence is not inappropriate, we affirm Herrera's convictions and sentence.

[3] We affirm.

Issues

1. Whether the trial court abused its discretion in excluding certain evidence.

2. Whether there is sufficient evidence to support Herrera's convictions.

3. Whether Herrera's sentence is inappropriate.

Facts

[4] The facts most favorable to the judgment reveal that Herrera and M.D. (“Mother”) began dating in June 2011. Three months later, in September 2011, Mother and her eight-year-old daughter, D.D. (“D.D.”),⁷ moved into Herrera's studio apartment. At that time, D.D.’s father (“D.D.’s father”) was incarcerated, and although Herrera and Mother never married, Herrera acted as D.D.’s father figure.

[5] In December 2011, Herrera, Mother, and D.D. moved into a larger apartment on Sherman Boulevard. Mother began taking a cake-decorating class and left D.D. at home with Herrera. While Mother was at class, Herrera touched D.D.’s genitals outside her clothes.

[6] In April 2012, Herrera, Mother, and D.D. moved into a house on Clinton Street (“the Clinton Street house”). The family lived in the Clinton Street house from April 2012 until the summer of 2014. When the family moved to the Clinton Street house, eight-year-old D.D. was in the third grade at a local Catholic school.

[7] While living in the Clinton Street house, Herrera began touching D.D.’s genitals underneath her clothes. Specifically, Herrera touched both the inside and the outside of D.D.’s vagina with his hands, mouth, penis, and a pink dildo. Herrera also used his tongue and hands to touch D.D.’s anus. When he wanted to engage in sexual acts with D.D., Herrera called D.D. “Mami[,]” which was his term of endearment for an intimate partner. (Tr. Vol. 1 at 233). Herrera used the same term for Mother.

[8] One morning, while the family lived in the Clinton Street home, Mother went to D.D.’s room to wake D.D. for school. Mother thought it was odd that D.D. was not wearing any pants or underpants. When Mother mentioned D.D.’s state of undress to Herrera, he responded that D.D. had probably taken off her pants because she had been hot. When Mother questioned why D.D. would take off only her pants and not her shirt, Herrea responded, “she does that all the time.” (Tr. Vol. 2 at 99).

[9] On another occasion, Mother and a friend entered the home to find Herrera lying on the couch on his back with D.D. directly on top of him. Herrera and D.D. were face to face and Herrera's hands were on D.D.’s back in an intimate position. When Herrera and D.D. noticed Mother, D.D. jumped up and ran to her bedroom. Herrera gave Mother a hug and became “very over affectionate[ ], which [Mother] thought was very weird since [she] had only been gone about 30 minutes.” (Tr. Vol. 2 at 77). Herrera told Mother that he and D.D. had just been talking.

[10] During the late summer of 2014, the family moved to a house on Third Street (“the Third Street house”), where they lived for two years, until the summer of 2016. While living in the Third Street house, Mother began attending nursing school. She also worked at an apartment complex, and Herrera typically picked D.D. up from school and spent the later afternoon and evenings with her.

[11] Almost every day after school, Herrera took D.D. to an attic area in the Third Street house and made her perform oral sex on him while he sat in a chair and chain-smoked cigarettes. From the attic window, D.D. was able to see her friends playing outside. D.D. was not able to join them until she completed her “chore” of performing oral sex on Herrera. (Tr. Vol. 1 at 235).

[12] While living in the Third Street House, Herrera also began having D.D. engage in the “69” sexual position where she would be on top of Herrera with her mouth on his penis, and Herrera would be below D.D. with his mouth on her vagina. This sexual activity occurred approximately once every two weeks or “whenever [Herrera] felt like it” or “wanted to[.]” (Tr. Vol. 2 at 43).

[13] During this time, Herrera also attempted to insert his penis into D.D.’s vagina. However, sexual intercourse was too painful for D.D. Herrera also touched and licked D.D.’s breasts, inserted a pink dildo into her vagina, and inserted his fingers and the pink dildo into her anus.

[14] One morning, after Mother had woken up and was walking downstairs, she noticed Herrera exiting and closing the door to D.D.’s bedroom. An upset Mother asked Herrera what he had been doing. In response, Herrera became very affectionate and playful with Mother in an awkward and uncomfortable way.

[15] Also, during this time, D.D. had a friend who often spent the night at D.D.’s house. The friend, who slept on the floor next to D.D.’s bed, was surprised that Herrera frequently came into D.D.’s room in the mornings and got into bed with D.D. When D.D. and her friend were in the seventh grade, D.D. told her friend that Herrera had been sexually abusing her. The friend did not tell anyone about the abuse because it “wasn't [her] place to share it and [D.D.] told [her] not to tell anybody about it. That she wasn't ready.” (Tr. Vol. 2 at 138).

[16] While the family lived in the Third Street house, D.D. began cutting herself and became more withdrawn. She also changed her appearance and began wearing all black. In addition, during this time, D.D. got a tattoo of three sixes under her right breast. Herrera noticed the tattoo while he was molesting D.D. and later told Mother about the tattoo.

[17] During this time, D.D. told Mother that she did not feel comfortable around Herrera and that he had touched her. Mother began asking D.D. how the weather was as a code to determine if D.D. was feeling sexually threatened by Herrera.

[18] D.D. did not tell anyone else about the sexual abuse because she was scared. Also, because she attended a Catholic school, she had been taught that sex before marriage was a sin, and she was afraid that she would go to hell for what Herrera had been doing to her.

[19] D.D. sometimes asked Herrera if he would stop sexually abusing her. For example, she wanted to make a deal that if she did certain things, the sexual abuse would stop. She also asked Herrera if he could just be her dad and mentioned that her friend and the friend's father did not engage in sexual acts. Herrera responded that D.D. did not know whether her friend had been truthful, and the sexual abuse continued.

[20] In the summer of 2016, the family moved to a house on Loree Street (“the Loree Street house”). While living in this house, the sexual abuse consisted “mainly” of Herrera engaging in oral sex with D.D. by placing his mouth on her vagina. (Tr. Vol. 2 at 18). Also, during that time, Herrera touched D.D.’s anus with his tongue and his fingers.

[21] In December 2019, the family went to Michigan to spend the holidays with Herrera's family. Herrera and D.D. returned to the Loree Street house together while Mother remained in Michigan. Shortly after arriving at the Loree Street house, a distraught D.D. went for a walk on a bridge and telephoned Mother. D.D. told Mother that she could not take it any longer. Mother told D.D. to contact her father, who had been released from incarceration in 2016. D.D. went to stay with her father the following day. At some point, D.D. told Mother that she was going to kill herself.

[22] When Mother returned home from Michigan, she initially told Herrera to leave the Loree Street house. However, after Herrera told Mother that D.D. “would throw herself at him to get what she wanted” and that D.D. had “seduce[d] him[,]” Mother allowed Herrera to stay in their home. (Tr. Vol. 2 at 95). D.D. eventually returned to the Loree Street house for limited periods of time. It does not appear that Herrera sexually abused D.D. during those periods of time.

[23] In June 2020, D.D.’s friend, M.L. (“M.L.”) mentioned to her father (“M.L.’s father”) that D.D. had been staying with her father. When M.L.’s father asked why D.D. had moved, M.L. told her father that Herrera had been touching D.D. inappropriately. M.L.’s father, who is a therapist, told M.L. that he wanted to talk to D.D. Sixteen-year-old D.D. subsequently told M.L.’s father about the eight years of sexual abuse, and M.L.’s father told D.D that they needed to report the abuse.

[24] M.L.’s father contacted Mother and told her that D.D. had disclosed to him that Herrera had been sexually abusing her for several years. In addition, M.L.’s father told Mother that D.D. would be reporting the abuse to the authorities. Mother was “angry” that she had not been the one to report the abuse. (Tr. Vol. 2 at 96). Following M.L.’s father's telephone call, Mother told Herrera that there was “some stuff going on[,]” and Herrera was “very upset.” (Tr. Vol. 2 at 96). Mother and Herrera drove to the cell phone company so that they could immediately have D.D.’s cell phone disconnected before going to M.L.’s house.

[25] M.L.’s father also contacted the Department of Child Services (“DCS”) hotline, and D.D. reported the abuse to a DCS case manager. A few days later, D.D. met with a forensic interviewer (“the forensic interviewer”) at the Doctor Bill Lewis Center for Children. Sixteen-year-old D.D. told the forensic interviewer that Herrera had been sexually abusing her for years. D.D. was not eligible for a medical forensic examination because several months had passed since D.D.’s last reported incident of sexual abuse.

[26] Either during or after D.D.’s forensic interview, a DCS family case manager (“the DCS family case manager”) learned that D.D. had told Mother at least three times about the sexual abuse. Concerned about Mother's ability to protect D.D., the DCS family case manager removed D.D. from Mother's care and placed D.D. with her paternal grandmother.

[27] In July 2020, the State charged Herrera with the following thirteen counts: (1) Class A felony child molesting for placing his penis in D.D.’s mouth during the period of time between June 1, 2011 and June 30, 2014; (2) Class A felony child molesting for placing an object in D.D.’s sex organ during the time period between June 1, 2011 and June 30, 2014; (3) Class A felony child molesting for placing his mouth in or on D.D.’s sex organ during the period of time between June 1, 2011 and June 30, 2014; (4) Class C felony child molesting for performing or submitting to fondling or touching D.D. with the intent of arousing the sexual desires of D.D. or Herrera during the period of time between June 1, 2011 and June 30, 2014;⁸ (5) Level 1 felony child molesting for placing his penis in or on D.D.’s mouth during the period of time between July 1, 2014 and July 30, 2017; (6) Level 1 felony child molesting for placing an object in D.D.’s sex organ during the period of time between July 1, 2014 and July 30, 2017; (7) Level 1 felony child molesting for placing his mouth in or on D.D.’s sex organ during the period of time between July 1, 2014 and July 30, 2017; (8) Level 4 felony child molesting for performing or submitting to fondling or touching D.D. with the intent of arousing or satisfying the sexual desires of D.D. or Herrera during the period of time between July 1, 2014 and July 30, 2017; (9) Level 4 felony sexual misconduct with a minor for placing his penis in or on D.D.’s mouth during the period of time from July 31, 2017 and July 30, 2019; (10) Level 4 felony sexual misconduct with a minor for placing an object in D.D.’s sex organ during the period of time from July 31, 2017 and July 30, 2019; (11) Level 4 felony sexual misconduct with a minor for placing his mouth in or on D.D.’s sex organ during the period of time between July 31, 2017 and July 30, 2019; (12) Level 5 felony sexual misconduct with a minor for performing or submitting to fondling or touching D.D. with the intent of arousing or satisfying the sexual desires of D.D. or Herrera during the time period between July 31, 2017 and July 30 2019; and (13) Level 6 felony child seduction for performing or submitting to fondling or touching D.D. with the intent of arousing or satisfying the sexual desires of D.D. or Herrera during the time period between July 31, 2019 and June 7, 2020.

[28] In June 2021, the State filed a motion in limine, which provided, in relevant part, as follows: “The State anticipates reference to [D.D.] having a tatto[o] and the location of the tattoo, however, we would request any and all comments [that] reference the design of the tattoo be prohibited as the prejudicial effect would outweigh any probative value under Indiana Rule of Evidence 403.” (App. Vol. 2 at 149). The trial court granted the State's motion over Herrera's objection. Specifically, Herrera argued that the jury should be told that the tattoo's design was three sixes.

[29] During a three-day trial in September 2023, the jury heard the facts regarding the offenses as set forth above. Notably, twenty-year-old D.D. testified about the sexual abuse that Herrera had perpetrated against her over an eight-year period. Because Herrera had committed the offenses over such an extended time period, beginning when D.D. was eight years old, D.D. was not able to testify about the exact dates that the offenses had occurred. Rather, D.D. testified to events that had occurred in the Clinton Street house, the Third Street house, and the Loree Street house. Further, D.D. testified that she had suffered pain from Herrera “inserting his penis into [her]. [Herrera] inserting the dildo into [her] bottom. [Herrera] putting his mouth on [her].” (Tr. Vol. 2 at 43). D.D. also testified that she had been “very honored to [M.L.] and her family for helping [D.D.] through” talking about and reporting the abuse because she had planned to pretend that the abuse had never happened. (Tr. Vol. 2 at 3).

[30] In addition, at trial, D.D. and Mother both testified about D.D.’s tattoo. Specifically, D.D. testified that she had gotten a tattoo under her right breast when she had been in the eighth grade, and Mother testified that Herrera had told her about the tattoo. Herrera did not object or make an offer of proof regarding the design of the tattoo during either D.D.’s or Mother's testimony.

[31] Also, during the trial, the forensic interviewer testified that in her experience, “over 75% of the kids that [she] talk[ed] to ․ [had] a delayed disclosure where the abuse incident [had] happened in the past.” (Tr. Vol. 2 at 185). In addition, the forensic interviewer agreed that child sexual abuse is a secretive crime because children feel shameful or feel that the sexual abuse was their fault. The forensic interviewer also testified that sexual abuse is not obvious to other family members and that most parents are “shocked and surprised” to learn about the abuse. (Tr. Vol. 2 at 188). According to the forensic interviewer, asking children “to pull out individual times [that they have been abused] is very, very difficult for them.” (Tr. Vol. 2 at 190). The forensic interviewer further explained that she “tr[ies] to [go] through asking [the child] about ․ doing [a] timeline and asking about different locations or different types of things that happened[.]” (Tr. Vol. 2 at 190). In addition, the forensic interviewer testified that she quite often sees cutting behavior in adolescent females that have been sexually abused. And, according to the forensic interviewer, an adolescent female who is the victim of sexual abuse might choose to wear all black as a way of having some control over her body.

[32] Further, a sexual assault nurse examiner (“the SANE”) testified that “timeframes” are very important for DNA collection. (Tr. Vol. 2 at 153). The SANE specifically testified that “[f]or penetration of the female organ[,] [they] have up to five days or 120 hours to collect samples for DNA[.]” (Tr. Vol. 2 at 153). Moreover, the SANE explained that most pediatric child abuse victims have a delayed disclosure meaning that they are not within the time frame for DNA collection.

[33] In addition, a forensic biologist from the Indiana State Police lab (“the forensic biologist”) testified that she had performed DNA testing on a pink dildo that law enforcement officers had found during a search of the Loree Street house. According to the forensic biologist, DNA testing analysis excluded D.D. as a contributor but provided strong support for the inclusion of Herrera and Mother as contributors. The forensic biologist further testified that washing the dildo could destroy DNA.

[34] Also, during the trial, a former cellmate of Herrera's at the county jail (“the former cellmate”) testified that Herrera had discussed Herrera's multiple charges with him. Specifically, the former cellmate testified that Herrera had told him that Herrera had begun engaging in sexual acts with D.D. when she was eight years old. According to the former cellmate, Herrera had told him that he had engaged in sexual acts with D.D. several times a month and that he had used a pink dildo to penetrate D.D. The former cellmate also testified that Herrera had told him that “sex was good with D.D. and ․ [Mother]’s pussy was no good.” (Tr. Vol. 2 at 217). Further, according to the former cellmate, Herrera did not think that he would be convicted of the multiple charges because the State did not have DNA evidence and the jurors would not believe D.D.

[35] Lastly, during the trial, the State orally moved to dismiss Count 13, which was the Level 6 felony child seduction count. The State explained that its motion was “based on [D.D.]’s inability to give the dates that f[e]ll in that particular date range.” (Tr. Vol. 2 at 169). The trial court granted the State's motion.

[36] The jury convicted Herrera of three counts of Class A felony child molesting, Class C felony child molesting, three counts of Level 1 felony child molesting, Level 4 felony child molesting, Level 4 felony sexual misconduct with a minor, and Level 5 felony sexual misconduct with a minor. In addition, the jury acquitted Herrera of two counts of Level 4 felony sexual misconduct with a minor.

[37] At an October 2023 sentencing hearing, the trial court reviewed Herrera's pre-sentence investigation report (“the PSI”), which revealed that Herrera had “arrived illegally to the United States in 20[0]6.”⁹ (App. Vol. 3 at 57). At the end of the hearing, the trial court found as a mitigating factor that Herrera did not have a criminal history. In addition, the trial court found the following three aggravating factors: (1) Herrera's violation of a position of trust with D.D.; (2) the multiple crimes that Herrera committed against D.D. over a period of years; and (3) the extraordinary effects of the crimes on D.D.

[38] Thereafter, the trial court sentenced Herrera to thirty (30) years for each of the three Class A felony child molesting convictions, four (4) years for the Class C felony child molesting conviction, thirty (30) years for each of the three Level 1 felony child molesting convictions, six (6) years for the Level 4 felony child molesting conviction, six (6) years for the Level 4 felony sexual misconduct with a minor conviction, and three (3) years for the Level 5 felony sexual misconduct with a minor conviction. In addition, the trial court ordered the sentences for the ten felony convictions to run consecutively to each other, for an aggregate sentence of 199 years to be served in the Department of Correction.

[39] Herrera now appeals his convictions and his sentence.

Decision

[40] Herrera argues that: (1) the trial court abused its discretion in excluding certain evidence; (2) there is insufficient evidence to support his convictions; and (3) his sentence is inappropriate. We address each of his contentions in turn.

1. Exclusion of Evidence

[41] Herrera first argues that the trial court abused its discretion in excluding certain evidence. Specifically, he contends that the trial court erred in excluding evidence regarding the design of D.D.’s tattoo.

[42] The admission or exclusion of evidence is within the sound discretion of the trial court, and we will reverse only for an abuse of that discretion. Russell v. State, 234 N.E.3d 829, 858 (Ind. 2024), cert. denied. A trial court abuses its discretion if its decision is clearly against the logic and the effect of the facts and circumstances before the court. Id.

[43] At the outset, we note that the State filed a motion in limine to exclude evidence regarding the design of D.D.’s tattoo. The trial court granted the State's motion over Herrera's objection. However, a ruling on a motion in limine “does not determine the ultimate admissibility of the evidence; that determination is made by the trial court in the context of the trial itself.” Claussen v. State, 622 N.E.2d 925, 927 (Ind. 1993), reh'g denied. Absent a ruling at trial excluding evidence accompanied by a proper offer of proof, there is no basis for a claim of error. Hollowell v. State, 753 N.E.2d 612, 615-16 (Ind. 2001). Thus, failure to object to the exclusion of evidence at trial results in waiver of the alleged error. Clausen, 622 N.E.2d at 927.

[44] Here, because Herrera did not object at trial to the exclusion of the design of D.D.’s tattoo, he has waived appellate review of this alleged error. See id. Herrera has also failed to argue fundamental error in his appellate brief and has, therefore, entirely waived his claim on appeal. See Bowman v. State, 51 N.E.3d 1174, 1179 (Ind. 2016) (holding that failing to object at trial and failing to argue fundamental error on appeal entirely waives a claim).

[45] Waiver notwithstanding, any error in the exclusion of this evidence would be harmless. The basic premise of the harmless error rule is “that a conviction may stand when the error had no bearing on the outcome of the case.” Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018). Under Indiana Appellate Rule 66(A), an error is harmless “where its probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.” Under this probable impact test, Herrera bears the burden of demonstrating how “the error's probable impact undermines confidence in the outcome of the proceeding below.” Hayko v. State, 211 N.E.3d 483, 492 (Ind. 2023), reh'g denied, cert. denied. In determining whether Herrera has met his burden, we consider the likely impact of improperly admitted evidence on a reasonable, average jury considering all evidence in the case. See id. If substantial independent evidence of guilt exists and our confidence in the outcome is not undermined, the error is harmless. Id.

[46] Here, Herrera cannot meet his burden on this record. Specifically, our review of the evidence reveals that during a three-day trial, D.D. testified in detail about the sexual abuse that Herrera had perpetrated against her during a span of eight years. Herrera does not provide any reason to believe that this single additional piece of evidence – the design of D.D.’s tattoo – “would have moved the needle.” Russell, 234 N.E.3d at 859 (concluding that appellant had provided no reason to believe that a single additional piece of evidence “would have moved the needle”). Thus, even if the trial court had erred in excluding evidence of the design of D.D.’s tattoo, the error would be harmless. See id.

2. Sufficiency of the Evidence

[47] Herrera next argues that there is insufficient evidence to support his convictions. “Our standard for reviewing evidentiary sufficiency challenges is well established, as we have made clear that it is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction.” Konkle v. State, 253 N.E.3d 1068, 1090 (Ind. 2025) (cleaned up). “A conviction is supported by sufficient evidence if there is substantial evidence of probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.” Id. (cleaned up). We review only the evidence most favorable to the verdict and the reasonable inferences therefrom and will reverse “only where it is shown that no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Id. at 1090-91 (cleaned up).

[48] Herrera first argues that there is insufficient evidence to support all ten of his convictions because D.D. did not report the abuse for a number of years, no family member living in the home saw any evidence that Herrera was sexually abusing D.D., no relevant information could be obtained by a sexual assault nurse examiner, and a DNA analysis of the pink dildo excluded D.D. as a contributor. However, this Court has previously observed that a sexual abuse offense “seldom leaves outward physical scars that can be corroborated by medical testimony and is seldom committed in the presence of eye-witnesses.” Smith v. State, 163 N.E.3d 925, 930 (Ind. Ct. App. 2021).

[49] Further, our review of the evidence reveals that the forensic interviewer testified that more than seventy-five percent of child sexual abuse victims delay their disclosure of the abuse. In addition, the forensic interviewer agreed that child sexual abuse is a secretive crime because children feel shameful or feel that the sexual abuse was their fault. The forensic interviewer also testified that sexual abuse is not obvious to other family members and that most parents are surprised to learn about the abuse. Further, here, there was evidence that Mother knew that Herrera was abusing D.D. We also note that a SANE testified that most pediatric child abuse victims have a delayed disclosure, meaning that they are not within the time frame for DNA collection. And, a forensic biologist testified that although DNA testing analysis excluded D.D. as a contributor to the dildo, washing the dildo could destroy DNA.

[50] Herrera's arguments are simply requests that we reweigh the evidence and judge the credibility of witnesses, which we cannot do. See Konkle, 253 N.E.3d at 1090. The jury heard and believed D.D.’s testimony, which was sufficient to support the jury's verdicts. Herrera's broad-sweeping arguments challenging all ten of his convictions fails.

[51] Herrera further challenges the sufficiency of the evidence to support three of his individual convictions. First, in a cursory one-sentence argument, he contends that “regarding Count [3,] the State failed to present direct testimony that [he] placed his mouth on the female sex organ of D.D.” (Herrera's Br. 22). Count 3 alleged that Herrera had committed Class A felony child molesting by placing his mouth in or on D.D.’s sex organ during the period of time between June 1, 2011 and June 30, 2014. See I.C. § 35-42-4-3(a) (2007). This time period corresponds to the time that the family lived in the Clinton Street house. Our review of the record reveals that D.D. testified that during this time period, Herrera placed his mouth on her vagina. (Tr. Vol. 1 at 230, Tr. Vol. 2 at 16, 17). This evidence is sufficient to support Herrera's conviction for Class A felony child molesting.

[52] Second, in a cursory one-sentence argument, Herrera argues that “[a]s to Count [6], ․ the State failed to present specific evidence that Herrera used the sex toy on D.D. while living at Third Street.” (Herrera's Br. 22). Count 6 alleged that Herrera committed Level 1 felony child molesting by placing an object in D.D.’s sex organ during the period of time between July 1, 2014 and July 30, 2017. See I.C. § 35-42-4-3(a) (2014). This time period primarily corresponds to the time that the family lived in the Third Street house. Our review of the record reveals that D.D. testified that during this time period, Herrera placed a sex toy in her vagina. (Tr. Vol. 2 at 17-18). This evidence is sufficient to support Herrera's conviction for Level 1 felony child molesting.

[53] Third, in a cursory two-sentence argument, Herrera argues that “D.D. testified that the only act occurring at the residence on Loree Street was Herrera committing oral sex on her. Therefore, the State failed to present evidence of fondling as it relates to sexual misconduct with a minor set forth in Count [12].” (Herrera's Br. 22). Count 12 alleged that Herrera committed Level 5 felony sexual misconduct with a minor by performing or submitting to fondling or touching D.D. with the intent of arousing or satisfying the sexual desires of D.D. or Herrera during the time period between July 31, 2017 and July 30, 2019. See I.C. § 35-42-4-9(b) (2014). This time period corresponds to the time that the family lived in the Loree Street house.

[54] Herrera is correct that during cross-examination, when Herrera's counsel asked D.D. if the only thing that had happened at the Loree Street house was oral sex, D.D. responded, “Correct.” (Tr. Vol. 2 at 18). However, during direct examination, D.D. testified that when the family lived at the Loree Street house, Herrera touched her anus with his tongue and his fingers. (Tr. Vol. 2 at 236-37).

[55] To the extent that D.D.’s testimony is inconsistent, it was the jury's prerogative to weigh the entirety of the evidence presented and resolve any conflicts in the evidence. See Lott v. State, 690 N.E.2d 204, 208 (Ind. 1997) (explaining that assessing conflicts in the evidence is a matter assigned to the judgment of juries); Sorgdrager v. State, 208 N.E.3d 646, 650 (Ind. Ct. App. 2023) (explaining that when there are conflicts in the evidence, the jury must resolve them), trans. denied. D.D.’s testimony that Herrera touched her anus with his tongue and fingers when the family lived in the Loree Street house is sufficient to support Herrera's conviction for Level 5 felony sexual misconduct with a minor.

3. Inappropriate Sentence

[56] Herrera also argues that his aggregate 199-year sentence is inappropriate. Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized by statute if, after due consideration of the trial court's decision, we find that the sentence is inappropriate in light of the nature of the offense and the character of the offender. The defendant bears the burden of persuading this Court that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as inappropriate turns on the “culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

[57] When determining whether a sentence is inappropriate, we acknowledge that the advisory sentence is the starting point the Legislature has selected as an appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081. Here, the jury convicted Herrera of three Class A felonies, one Class C felony, three Level 1 felonies, two Level 4 felonies, and one Level 5 felony.

[58] At the time Herrera committed the offenses, the sentencing range for a Class A felony was between twenty (20) and fifty (50) years, with an advisory sentence of thirty (30) years, and the sentencing range for a Class C felony was between two (2) and eight (8) years, with an advisory sentence of four (4) years. Ind. Code §§ 35-50-2-4(a) and 35-50-2-6(a). In addition, the sentencing range for a Level 1 felony is between twenty (20) and forty (40) years, with an advisory sentence of thirty (30) years. I.C. § 35-50-2-4(b). The sentencing range for a Level 4 felony is between two (2) and twelve (12) years, and the advisory sentence is six (6) years. Ind. Code § 35-50-2-5.5. Further, the sentencing range for a Level 5 felony is between one (1) year and six (6) years, and the advisory sentence is three (3) years. I.C. § 35-50-2-6(b).

[59] Here, the trial court sentenced Herrera to thirty (30) years for each of his three Class A felony convictions, four (4) years for his Class C felony conviction, thirty (30) years for each of his three Level 1 felony convictions, six (6) years for each of his two Level 4 felony convictions, and three (3) years for his Level 5 felony conviction. Thus, Herrera received the advisory sentence for each of his ten convictions. In addition, the trial court ordered the sentences for each of the ten convictions to run consecutively to each other for an aggregate sentence of 199 years to be served in the Department of Correction. This 199-year sentence is considerably less than the 308-year maximum sentence that the trial court could have imposed.

[60] With regard to the nature of the offenses, Herrera acknowledges that the offenses were “despicable and reprehensible[.]” (Herrera's Br. 25). Indeed, over a span of eight years, when D.D. was between the ages of eight and sixteen and while Herrera was living in the house as a father figure, he repeatedly sexually abused her. Specifically, Herrera touched both the inside and the outside of D.D.’s vagina with his hands, mouth, penis, and a pink dildo. He also used his tongue and hands to touch D.D.’s anus. When he wanted to engage in sexual acts with D.D., Herrera called D.D. “Mami[,]” which was his term of endearment for an intimate partner. (Tr. Vol. 2 at 283). Herrera used the same term for Mother.

[61] In addition, when the family lived in the Third Street house, almost every day after school, Herrera took D.D. to an attic area and made her perform oral sex on him while he sat in a chair and chain-smoked cigarettes. From the attic window, D.D. was able to see her friends playing outside. D.D. was not able to join them until she completed her “chore” of performing oral sex on Herrera. (Tr. Vol. 1 at 235). Herrera also had D.D. engage in the “69” sexual position where she would be on top of Herrera with her mouth on his penis, and Herrera would be below D.D. with his mouth on her vagina. Such crimes shock the conscience and merit a lengthy sentence.

[62] Further, we reject Herrera's argument that the nature of the offenses does not support the length of his aggregate sentence because his crimes “were accompanied by some restraint, regard, and lack of brutality.” (Herrera's Br. 25). Herrera specifically contends that“[t]here was no physical violence nor any threat of physical violence or harm to D.D.” (Herrera's Br. 25). However, our review of the record reveals that the State presented evidence that D.D. suffered pain when Herrera inserted his penis into her, inserted the dildo into her anus, and placed his mouth on her. The record further reveals that D.D. suffered trauma due to Herrera's repeated acts of sexual abuse. Specifically, D.D. began cutting herself and wearing black. She was scared to tell anyone about the sexual abuse. Further, because D.D. attended a Catholic school, she had been taught that sex before marriage was a sin, and she was afraid that she would go to hell for what Herrera had been doing to her. In addition, at some point, D.D. told Mother that she was contemplating suicide.

[63] With regard to Herrera's character, we note that although Herrera does not have a history of criminal convictions, he entered this country illegally, which shows a disregard for the law, including immigration laws. Further, Herrera violated his position of care, custody, and control of D.D. when he victimized her repeatedly over a span of eight years while acting as a father figure. Indeed, D.D. asked Herrera if he could just be her dad and mentioned that her friend and the friend's father did not engage in sexual acts. In addition, when Mother confronted Herrera about D.D.’s sexual abuse allegations, Herrera placed the blame on D.D. and told Mother that it was D.D. who had seduced him.

[64] Based on the nature of the offenses and his character, Herrera has failed to persuade this Court that his aggregate 199-year sentence is inappropriate. See Wilmsen v. State, 181 N.E.3d 469, 473 (Ind. Ct. App. 2022) (declining to find inappropriate a 190-year aggregate sentence for Wilmsen's multiple convictions for repeatedly molesting his girlfriend's two daughters for several months); Vasquez v. State, 174 N.E.3d 623, 634 (Ind. Ct. App. 2021) (declining to find inappropriate a 288-year aggregate sentence for Vasquez's nine convictions of child molesting, including eight convictions for molesting his girlfriend's daughter over a span of six years when she was between the ages of eight and fourteen while Vasquez was living in the house as a father figure), trans. denied; Sorenson v. State, 133 N.E.3d 717, 729 (Ind. Ct. App. 2019) (declining to find inappropriate a 570-year aggregate sentence for Sorenson's multiple convictions for repeatedly molesting his two daughters for several years), trans. denied.¹⁰

[65] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-4-3(a) (2007).

2.   I.C. § 35-42-4-3(b) (2007).

3.   I.C. § 35-42-4-3(a) (2014).

4.   I.C. § 35-42-4-3(b) (2014).

5.   I.C. § 35-42-4-9(a) (2014).

6.   I.C. § 35-42-4-9(b) (2014).

7.   D.D. was born in July 2003.

8.   The State initially alleged that the first four charged offenses had occurred during the time period between July 31, 2010 and June 30, 2014. In May 2021, the trial court granted the State's motion to amend the charging informations for the first four offenses to include the time periods as set forth above.

9.   The PSI stated that Herrera had arrived illegally to the United States in 2016. At the sentencing hearing, Herrera's counsel told the trial court that Herrera had arrived in the United States in 2006.

10.   Herrera further argues that his “sentence is not reformative and therefore violates Article 1 § 18 of the Indiana Constitution.” (Herrera's Br. 25). Herrera has waived appellate review of this argument because he has failed to provide citation to legal authority in support of it. See Hoback v. State, 225 N.E.3d 208, 211 (Ind. Ct. App. 2023) (explaining that when an appellant provides no citation to legal authority supporting his contentions, those contentions are waived). Waiver notwithstanding, this Court has previously explained that “[i]t is well-settled that Section 18 applies only to the penal code as a whole, not to individual sentences.” Kedrowitz v. State, 199 N.E.3d 386, 409 (Ind. Ct. App. 2022) (cleaned up), reh'g denied, trans. denied. Thus, Herrera's claim that his sentence violates the provisions of Article I, Section 18 is not cognizable. See id. at 409-10.

Pyle, Judge.

May, J., and Brown, J., concur.