Arturo Lopez, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Arturo Lopez appeals his convictions and sentence for three counts of child molesting, asserting that the trial court erroneously excluded certain evidence and that his sentence is inappropriate. Finding neither error with the trial court's evidentiary ruling nor inappropriateness of Lopez's sentence, we affirm.

Issues

[2] Lopez presents two issues, which we restate as:

I. Whether the trial court erred by excluding evidence of an alleged prior claim of molestation by V.A.

II. Whether Lopez's sentence is inappropriate.

Facts and Procedural History

[3] V.A. is the victim in this case, and Lopez was the partner of V.A.’s aunt. Lopez molested V.A. numerous times when she was ten years old until she was thirteen.

[4] Eventually, the molestations came to light, and the State charged Lopez with two counts of Level 1 felony child molesting and one count of Level 4 felony child molesting. A jury found Lopez guilty as charged, and the trial court sentenced him to an aggregate sentence of sixty-six years. Lopez now appeals.

Discussion and Decision

I. Exclusion of Evidence

[5] Lopez first contends that the trial court erred by excluding evidence that V.A. had allegedly accused her father of molesting her on a date within the time frame of Lopez's charges. Lopez argues this evidence should not have been excluded because it tends to show that V.A.’s father, not Lopez, was the perpetrator of these crimes.

[6] During pre-trial proceedings, Lopez moved to be permitted to question V.A. at trial about her April 2017 accusation that her father had molested her and her alleged statement that “no one else has ever done anything to her.” Appellant's App. Vol. II, p. 144 (Motion to Present Rule 412 Evidence, ¶ 3) (italics removed). Following a hearing, the court ordered that Lopez could confront and cross-examine V.A. about the statement she made but that any allegation that her father molested her was not admissible. See id. at 156 (Order).

[7] By the time of trial, a different judge was presiding over the case. Prior to voir dire, the State reminded the court of the previous judge's ruling on Lopez's motion. The current judge granted the State's motion in limine concerning V.A.’s past sexual conduct but confirmed the prior ruling that V.A. could be questioned about her statement that no one else had ever done anything to her. Thus, V.A.’s accusation of molestation against her father was subject to the State's motion in limine.

[8] It is well established that “ ‘[r]ulings on motions in limine are not final decisions and, therefore, do not preserve errors for appeal.’ ” Schumm v. State, 866 N.E.2d 781, 790 (Ind. Ct. App. 2007) (quoting Swaynie v. State, 762 N.E.2d 112, 113 (Ind. 2002)). “In order to preserve an error for appellate review, a party must do more than challenge the ruling on a motion in limine.” Hollowell v. State, 753 N.E.2d 612, 615 (Ind. 2001). Absent a proper offer of proof following a ruling excluding evidence, there is no basis for a claim of error. Id. at 616; see also Ind. Evidence Rule 103(a).

[9] The State alleges that Lopez has waived his claim by failing to make an offer of proof at trial. The goal of an offer of proof is to convey the purpose of the witness’ testimony and provide the court the opportunity to reconsider its evidentiary ruling. State v. Wilson, 836 N.E.2d 407, 409 (Ind. 2005). In addition, it preserves the issue for review by the appellate court. Id. “ ‘A valid offer to prove must explain: (1) the testimony's substance; (2) the testimony's relevance; and (3) the grounds for admitting the testimony.’ ” Hill v. State, 137 N.E.3d 926, 939 (Ind. Ct. App. 2019) (quoting Bedolla v. State, 123 N.E.3d 661, 666-67 (Ind. 2019)), trans. denied.

[10] Here, just prior to V.A. taking the stand at trial, defense counsel asked the court if he could make a record and noted that the allegations in this case are that acts of sexual molestation took place between July of 2014 and August of 2017. Defense counsel then stated that in April 2017, V.A. was having suicidal ideations and cutting herself. Tr. Vol. 2, p. 215. A teacher noticed this and asked V.A. about any potential sexual abuse, and the police and the Department of Child Services (DCS) got involved. Id. V.A. “specifically indicated that her father had molested her.” Id. V.A. told the teacher “that her father had had sex with her,” but she later told DCS her father had only taken her pants off and unsuccessfully attempted to have sex with her. Id. at 215-16. V.A. did not mention Lopez at that time but made her accusations against him four months later. Id. at 216. Defense counsel continued:

[Y]esterday the Defense called three witnesses and asked those witnesses about the victim's change in demeanor; elicited testimony that she had now at some point become withdrawn, there was an emotional change that was visible․ [S]urely the implication to the Jury is that those things happened because Mr. Lopez molested her. That's now a completely different issue, because now we're not talking about did it happen, we're talking about causation; what caused her to have those things happen, what caused her to be withdrawn, what caused her to cut, what caused her to have to go to [a mental hospital]․ So, at this point, the Jury is being led to believe by the Prosecution, and this is how they presented their case, that the reason she's become withdrawn, the reason she's been cutting, the reason she's suicidal, the reason there's been this complete change in her personality is because she was being abused by Mr. Lopez, when in fact at the time she said she was being abused by her father, which could be causing these things; ․ because that's who she accused at the time.

Id. at 216-17.

[11] We conclude that defense counsel's presentation constitutes an offer of proof sufficient to avoid waiver. Accordingly, we address the merits of Lopez's claim.

[12] Lopez argues that the trial court abused its discretion in excluding the evidence that V.A. reported she had been molested by her father. We review a trial court's decision on the admission of evidence for an abuse of discretion. Burnett v. State, 815 N.E.2d 201, 204 (Ind. Ct. App. 2004). A trial court abuses its discretion where its decision is clearly against the logic and effect of the facts and circumstances before it. Id. In determining whether the trial court has abused its discretion, we do not reweigh the evidence, and we consider only evidence favorable to the ruling or unrefuted evidence favorable to the defendant. Parker v. State, 151 N.E.3d 1269, 1272 (Ind. Ct. App. 2020). A claim of error in the exclusion of evidence will not prevail on appeal unless the error affects a substantial right of a party. Burnett, 815 N.E.2d at 204.

[13] Lopez first asserts that the trial court's decision to exclude the evidence of V.A.’s accusation did not serve the purpose of Evidence Rule 412. Rule 412, known as the Rape Shield Rule, provides protection in cases of both rape and sexual abuse and states in relevant part:

(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:

(1) evidence offered to prove that a victim or witness engaged in other sexual behavior; or

(2) evidence offered to prove a victim's or witness's sexual predisposition.

(b) Exceptions.

(1) Criminal Cases. The court may admit the following evidence in a criminal case:

(A) evidence of specific instances of a victim's or witness's sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;

(B) evidence of specific instances of a victim's or witness's sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and

(C) evidence whose exclusion would violate the defendant's constitutional rights.

Ind. Evidence Rule 412. Rule 412 incorporates the basic principles of Indiana Code section 35-37-4-4, the Rape Shield Statute, and, to the extent there are any differences between the two, the Rule controls. Graham v. State, 736 N.E.2d 822, 824-25 (Ind. Ct. App. 2000), trans. denied. The purpose of these protective enactments is to encourage the reporting of sexual assaults and to prevent victims from feeling as though they are on trial for their sexual histories. Davis v. State, 749 N.E.2d 552, 555 (Ind. Ct. App. 2001), trans. denied.

[14] The evidence at issue here—that V.A. accused her father of molesting her—clearly falls within the category of evidence that the Rape Shield Rule generally prohibits under Rule 412(a). Lopez argues this evidence should not have been excluded because it is not evidence of prior sexual abuse but of abuse during the same time frame in which he is charged with molesting V.A. But Rule 412 simply excludes evidence of “other sexual behavior” without any time constraints. Moreover, the exclusion of the evidence in this case accomplishes the goal of preventing V.A. from feeling as though she was on trial for incidents that have been committed against her. Thus, the trial court did not abuse its discretion when it excluded the evidence of V.A.’s accusation under Rule 412(a)(1).

[15] Lopez also argues that the excluded evidence falls within the exception set forth in Rule 412(b)(1)(C) because it violates his constitutional right to cross-examine witnesses. Our Court has noted, however, that the right to cross-examination is not absolute. Oatts v. State, 899 N.E.2d 714, 722 (Ind. Ct. App. 2009). “The Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Id. (alteration adopted and quotation marks omitted). Also, the right to confront witnesses “may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Id. (quotation marks omitted). Our Supreme Court has “consistently held that Indiana's rape shield statute does not violate a defendant's Sixth Amendment right to confront witnesses absent a showing of actual impingement on cross-examination.” Thomas v. State, 471 N.E.2d 677, 679 (Ind. 1984).

[16] Lopez asserts that the court's exclusion of evidence that V.A.’s “father had been molesting her” would have allowed the jury to infer not only that it was her father, not Lopez, who molested her but also that her father's conduct was the source of her self-harming behavior. Appellant's Br. p. 21. In response, the State disputed the accuracy of his characterization of the excluded evidence, stating that V.A. told DCS that:

dad pulled her pants down one time a half a year ago when they were in the bedroom sleeping, and then she pulled them back up, and it's never happened since. That's the only thing that happened․ [She] just misinterpreted some actions on the part of one parent. It was unsubstantiated because there wasn't even a disclosure of sexual abuse by [sic] the DCS got involved.

Tr. Vol. 2, p. 218. Because Lopez did not call any witnesses or offer any reports from DCS or the police in his offer to prove, we are left with contradictory summations by counsel rather than the actual evidence that was excluded.

[17] Moreover, although Lopez was permitted to question V.A. about her statement that no one else had done anything to her, he did not do so. During cross-examination, Lopez questioned V.A. about the events that unfolded when a teacher noticed she was self-harming. Lopez pointed out that V.A. did not reveal Lopez's sexual abuse when the teacher specifically asked her if anyone was sexually abusing her, nor did she reveal it to the police, an individual from DCS, or her counselors during an inpatient stay at a hospital. Id. at 247-49.

[18] Thus, Lopez had a sufficient opportunity to develop his account of the events at issue. He was only prevented from presenting the jury with V.A.’s alleged other sexual abuse, the details of which are disputed by the State and were not clarified in Lopez's offer to prove. At most, the record shows that an event may have occurred in addition to the events that formed the grounds for the charges against Lopez, but which had nothing to do with those events. Thus, Lopez's proposed evidence does not fall within the exception provided by Rule 412(b)(1)(C), and he has not shown that the trial court's exclusion of this evidence had an “actual impingement on cross-examination.” See Thomas, 471 N.E.2d at 679. As such, we conclude that the trial court did not violate Lopez's constitutional right to cross-examine witnesses and present a defense.

II. Inappropriate Sentence

[19] Lopez argues his sentence is inappropriate given the nature of the offenses and his character. 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 determine that the sentence is inappropriate in light of the nature of the offense and the character of the offender. Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014) (quoting Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007)). Our Supreme Court has long said that sentencing is “ ‘principally a discretionary function in which the trial court's judgment should receive considerable deference.’ ” Lane v. State, 232 N.E.3d 119, 122 (Ind. 2024) (quoting Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008)).

[20] “Although Rule 7(B) requires us to consider both the nature of the offense and the character of the offender, the appellant is not required to prove that each of those prongs independently renders [his] sentence inappropriate.” Turkette v. State, 151 N.E.3d 782, 786 (Ind. Ct. App. 2020), trans. denied. “Rather, the two prongs are separate inquiries that we ultimately balance to determine whether a sentence is inappropriate.” Id.

[21] Whether a sentence is inappropriate turns on our sense of “ ‘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.’ ” Id. (quoting Cardwell, 895 N.E.2d at 1224). The defendant bears the burden of persuading the appellate court that his sentence is inappropriate. Reynolds v. State, 142 N.E.3d 928, 944 (Ind. Ct. App. 2020), trans. denied. To meet this burden, the defendant must show that his sentence is inappropriate with “ ‘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).’ ” Littlefield v. State, 215 N.E.3d 1081, 1089 (Ind. Ct. App. 2023) (quoting Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015)), trans. denied.

[22] The advisory sentence is the starting point selected by the legislature as an appropriate sentence for the crime. Littlefield, 215 N.E.3d at 1089. When a sentence deviates from the advisory sentence, “we consider whether there is anything more or less egregious about the offense as committed by the defendant that distinguishes it from the typical offense accounted for by our legislature when it set the advisory sentence.” Madden v. State, 162 N.E.3d 549, 564 (Ind. Ct. App. 2021).

[23] Here, a jury found Lopez guilty of two counts of Level 1 felony child molesting and one count of Level 4 felony child molesting. A person who commits a Level 1 felony shall be imprisoned for a fixed term of between twenty and forty years, with the advisory sentence being thirty years. Ind. Code § 35-50-2-4(b) (2023). A Level 4 felony carries with it a fixed term of between two and twelve years, with the advisory sentence being six years. Ind. Code § 35-50-2-5.5 (2014).

[24] The court sentenced Lopez to advisory terms for all three of his convictions and ordered the terms to run consecutively for an aggregate sentence of sixty-six years. We note that because the advisory sentence is the starting point the legislature selected as an appropriate sentence for the crime committed, the defendant bears “a particularly heavy burden” in persuading us that his sentence is inappropriate when the trial court has imposed the advisory sentence. Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied.

[25] The nature of the offense is found in the details and circumstances surrounding the offense and the defendant's participation therein. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). Acknowledging that the offenses of which he was convicted are reprehensible, Lopez states there was no physical violence or threats of physical harm to V.A. However, we note there was evidence that these molestations continued for several years and had a severe emotional impact on V.A., causing her to have suicidal ideations, cut herself, and require inpatient treatment.

[26] Our analysis of a defendant's character involves a broad consideration of a defendant's qualities, including age, criminal history, background, past rehabilitative efforts, and remorse. Pritcher v. State, 208 N.E.3d 656, 668 (Ind. Ct. App. 2023). In examining a defendant's criminal history, the significance varies based on the gravity, nature, temporal proximity, and number of prior offenses in relation to the current offense. Id. However, even a minor criminal record reflects poorly on a defendant's character. Id.

[27] Lopez's criminal history consists of two misdemeanor convictions and one felony conviction of operating a vehicle after forfeiture of license for life. He is not a citizen of the United States, and his work visa has expired. Lopez highlights the fact that he was current on his court-ordered support payments and that he was at a low risk of reoffending.

[28] Lopez does not explain in what way his advisory sentences are inappropriate. Rather, his argument is focused more on the trial court's decision to impose consecutive sentences. He contends that his lengthy sentence violates article 1, section 18 of the Indiana Constitution, which mandates that our penal code be founded on the principles of reformation, not vindictive justice. However, this section applies only to the penal code as a whole, not to individual sentences. Hazelwood v. State, 3 N.E.3d 39, 42 (Ind. Ct. App. 2014). Thus, Lopez's assertion that his particular sentence violates section 18 “is not a cognizable claim on which relief can be granted because ‘particularized, individual applications are not reviewable’ pursuant to this provision.” Kedrowitz v. State, 199 N.E.3d 386, 409 (Ind. Ct. App. 2022) (quoting Ratliff v. Cohn, 693 N.E.2d 530, 542 (Ind. 1998)), trans. denied. Lopez has not met his heavy burden of persuading us that his sentence is inappropriate.

Conclusion

[29] We conclude the trial court did not abuse its discretion by excluding evidence of V.A.’s accusation against her father, and Lopez's aggregate sixty-six-year sentence is not inappropriate in light of the nature of his offenses and his character. Further, his challenge to his sentence based on section 18 of the Indiana Constitution is not a cognizable claim.

[30] Affirmed.

Baker, Senior Judge.

Judges May and Mathias concur. May, J., and Mathias, J., concur.