Jose David Mariona Bejarano, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Jose Bejarano appeals his 545-day aggregate sentence imposed after a jury found him guilty of Level 6 felony sexual battery and Class B misdemeanor battery. Bejarano raises one issue for our review: whether his sentence warrants revision under Indiana Appellate Rule 7(B). Concluding that Bejarano's sentence is not inappropriate in light of the nature of these offenses and his character, we affirm.

Facts and Procedural History

[2] In November 2022, M.A. began working for Valley Farms Apartments in Westfield. She worked as an assistant to the head of maintenance, fifty-nine-year-old Bejarano. Bejarano immediately made M.A. feel uncomfortable. On M.A.’s first day on the job, Bejarano showed her around the apartment complex and began to walk behind her rather than beside her. M.A. asked him why he was doing this and Bejarano replied, “[b]ecause I like to look at your behind and your legs.” Transcript Vol. 2 at 109. When M.A. protested, Bejarano told her she was being “very sensitive.” Id.

[3] A few days later, M.A., Bejarano, and two property managers were leaving an apartment and M.A. felt Bejarano touch her buttocks. M.A. asked Bejarano why he was touching her. A few seconds later, he touched her buttocks again. When M.A. asked more loudly why he was touching her, one of the property managers turned and looked at them. Later, Bejarano privately scolded M.A. for embarrassing him in front of the property managers. He said “[t]hat was supposed to remain between you and me” and again told M.A. she was being “very sensitive.” Id. at 111. M.A. told him she did not want him to touch her.

[4] On another occasion, Bejarano and M.A. were in the warehouse together and he asked her if she was cold. When M.A. said she was, Bejarano responded that they should “take advantage” of their alone time and “f*** so that [they would not] feel cold anymore.” Id. at 112. M.A. asked Bejarano if he was “crazy” and noted his heart problems. Id. Bejarano stated that his “problem [was] here[,]” and pointed his heart, “not here[,]” and pointed to his genitals. Id.

[5] Bejarano continued to tell M.A. he was attracted to her and touched her buttocks “[m]any times.” Id. at 111. When M.A. told him he “should not do [that] and that [she] didn't like it[,]” Bejarano brushed her off as “sensitive” and complained that he could not say or do anything to her. Id.

[6] On February 1, 2023, Bejarano asked M.A. to come clean up the office. M.A. had already cleaned the office, but Bejarano insisted. When the two were alone in the office, Bejarano told M.A. he wanted to “show [her] something.” Id. at 114. Bejarano directed her to a screen showing security camera footage, and as M.A. stood there looking at it, Bejarano “got behind [her]” and “pushed” her “[w]ith his pelvis.” Id. at 115. M.A. said, “[w]hy are you doing that? I don't like it[,]” and Bejarano replied, “[o]h you're so sensitive. Nobody can touch you.” Id. Angered, Bejarano walked to the property manager's desk and began looking for a paper he said he wanted to show M.A. When M.A. attempted to grab the paper from Bejarano, he thrusted his pelvis against M.A.’s buttocks for a second time. Feeling “scared” and “ashamed,” M.A. walked to the corner of the room and began recording Bejarano on her cell phone and he admitted his “fantasy about [M.A.]” and stated that “sometimes there's chemistry, and you don't even realize it.” Id. at 118; Exhibits Vol. 4 at 13. M.A. left the office and told one of the property managers about the incident.

[7] Trying to avoid conflict, M.A. did not immediately call the police. Bejarano and M.A. were separated at work for “two or three days” and Bejarano began complaining that M.A. was not doing her work. Id. at 168. Because M.A. felt management was not going to control Bejarano's inappropriate conduct, on February 22, she called the police and reported his actions. The police arrested him that day.

[8] The next day, the State charged Bejarano with Count I: Sexual Battery, a Level 6 felony;¹ and Count II: Battery, a Class B misdemeanor.² Count I related to the February 1 incident where Bejarano pressed his pelvis into M.A. and Count II alleged that Bejarano had grabbed M.A.’s buttocks. In July 2024, a jury found Bejarano guilty as charged.

[9] On October 1, the trial court held a sentencing hearing. At the hearing, Bejarano testified that he suffers from “panic attacks[,]” takes “eleven pills[,]” and has blood pressure issues related to an open-heart surgery he had three years prior. Tr. Vol. 3 at 24. He indicated that his health had worsened and that he had recently been hospitalized. Bejarano testified that he made between $1,300 and $1,500 per month and his wife of eight years shared that she made between $1,200 and $1,300 bi-weekly. The couple came to the United States from Honduras seeking asylum, and Bejarano's asylum application was pending appeal. Bejarano testified that he had one minor child who lived in Honduras. M.A. testified about the “devastating” impact the offenses had had on her, including that she left her job at Valley Farms because Bejarano continued to live in the apartment complex. Id. at 35.

[10] Trying to avoid potential consequences in his immigration proceedings, Bejarano asked the trial court to enter his convictions as misdemeanors and give him a 180-day suspended sentence. If the trial court was to impose a sentence, Bejarano asked to serve it on home detention. The trial court identified as mitigating factors that Bejarano had no criminal history and that imprisonment could result in undue hardship to Bejarano or his dependents.³ Ultimately, the court sentenced Bejarano to an aggregate sentence of 545 days, giving him credit for forty days he already served and ordering the remaining 505 days to be served on home detention with sex offender conditions.

Discussion and Decision

[11] Bejarano argues that his sentence is inappropriate given the nature of the offenses and his character. Indiana Appellate Rule 7(B) “permits an appellate court to revise a sentence if, after due consideration of the trial court's decision, the sentence is found to be inappropriate in light of the nature of the offense and the character of the offender.” Faith v. State, 131 N.E.3d 158, 159 (Ind. 2019). “The two prongs of 7(B) review are ‘separate inquiries to ultimately be balanced in determining whether a sentence is inappropriate.’ ” Crum v. State, 239 N.E.3d 858, 861 (Ind. Ct. App. 2024) (quoting , 232 N.E.3d 119, 126 (Ind. 2024), 232 N.E.3d 119, 126 (Ind. 2024)). “ ‘[T]o the extent the evidence on one prong militates against relief, a claim based on the other prong must be all the stronger to justify relief.’ ” Id. (quoting , 232 N.E.3d at 127☐).

[12] “The principal role of [Rule 7(B)] review should be to attempt to leaven the outliers[.]” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We examine “the whole picture before us” and our determination “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.” Lane, 232 N.E.3d at 127; Cardwell, 895 N.E.2d at 1224. We give deference to the trial court's decision and strive to determine whether the defendant's sentence is inappropriate, not whether a different sentence would be more appropriate. King v. State, 991 N.E.2d 612, 618 (Ind. Ct. App. 2013). The burden is on the defendant to convince us that his sentence was inappropriate. Id.

[13] When considering the nature of the offense, we first look to the advisory sentence. Norton v. State, 235 N.E.3d 1285, 1291 (Ind. Ct. App. 2024). Here, the trial court sentenced Bejarano concurrently on his convictions for Level 6 felony sexual battery and Class B misdemeanor battery. Thus, Bejarano focuses on his longer sexual battery sentence in appealing his aggregate sentence. A Level 6 felony carries a sentence between six months and two and one-half years, with an advisory sentence of one year. I.C. § 35-50-2-7(b). The trial court imposed a 545-day, or approximately one and one-half year sentence. It credited Bejarano for time served on the forty-day DOC-executed portion of the sentence and ordered the remaining 505 days to be served on home detention.

[14] “The nature of the offense is found in the details and circumstances of the commission of the offense and the defendant's participation.” Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). We also consider whether the offense was “accompanied by restraint, regard, and lack of brutality[.]” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[15] The nature of Bejarano's offenses does not warrant revision of his marginally aggravated sentence for which he received the benefit of home detention. As articulated by Bejarano, the jury found him guilty of “pushing his pelvis into [M.A.’s] buttocks twice in a short period of time[,]” and this conduct “undoubtedly meets all the elements of sexual battery[.]” Appellant's Br. at 8. Yet Bejarano claims that his sexual battery of M.A. was “not [ ] particularly heinous” because he did not use his position of workplace authority over her to “compel [her] to submit to the touching[.]” Id. Bejarano portrays his crime in a vacuum, but the larger picture tells a different story. Bejarano verbally and physically harassed M.A. repeatedly during the months she worked under his authority. She told him to stop touching her multiple times, but he continued to do so claiming she was “very sensitive.” Tr. Vol. 2 at 109, 111. As M.A.’s workplace supervisor, he grossly abused his position of power over her. And on February 1, 2023, the date of the sexual battery, Bejarano created a ruse to get M.A. into the office where he could have her alone and violate her. As displayed by his escalating sexual harassment, Bejarano showed no restraint or regard for M.A., and he has presented no evidence demonstrating that the nature of his offenses warrants appellate revision of his sentence.

[16] Turning to Bejarano's character, we broadly consider “a defendant's qualities, including the defendant's age, criminal history, background, past rehabilitative efforts, and remorse.” Pritcher v. State, 208 N.E.3d 656, 668 (Ind. Ct. App. 2023). We ask whether the defendant has shown “substantial virtuous traits or persistent examples of good character.” Stephenson, 29 N.E.3d at 122.

[17] Bejarano simply lists evidence about his life without analyzing how those facts warrant a downward revision of his sentence. He identifies his age, lack of criminal history, that he and his wife of eight years make a decent salary and have children in Honduras, and his heart problems that began before the offense and continued through sentencing. He also notes that his presentence investigation (PSI) report indicated he started counseling before sentencing and was at low risk of reoffending. But Bejarano did not begin counseling to take responsibility for his actions and rehabilitate himself; he sought counseling because of the mental health issues he had from being arrested for these offenses. See Appellant's Appendix Vol. 2 at 148. In fact, the PSI report states that Bejarano denied committing the offenses and “blamed the victim for his legal situation[.]” Id. at 149. We also note that the trial court granted Bejarano's request to serve his sentence on home detention. See Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010) (permitting appellate courts to consider “whether a portion of the sentence is ordered suspended or otherwise crafted using any of the variety of sentencing tools available to the trial judge” when conducting Rule 7(B) reviews). We conclude that Bejarano has not shown that his marginally aggravated sentence is inappropriate in light of his character.

[18] Finally, Bejarano observes that the trial court found two mitigating factors and no aggravating factors yet still marginally aggravated his sentence. However, Bejarano does not argue that the trial court abused its discretion in sentencing him and has waived any such claim. See Foutch v. State, 53 N.E.3d 577, 580 n.1 (Ind. Ct. App. 2016) (finding that an abuse of sentencing discretion claim was waived under Indiana Appellate Rule 46(A)(8) where the appellant failed to provide a “separate, cogent argument with the appropriate standard of review regarding the trial court's sentencing discretion”). Regardless, our holistic “review under Rule 7(B) is not a review of the trial court's consideration of aggravators and mitigators[.]” Turkette v. State, 151 N.E.3d 782, 786 n.4 (Ind. Ct. App. 2020), trans. denied.

Conclusion

[19] The sentence imposed by the trial court is not inappropriate in light of the nature of Bejarano's offenses and his character.

[20] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-4-8(a)(1)(A).

2.   I.C. § 35-42-2-1(c)(1).

3.   Bejarano's presentence investigation report indicated that he had no juvenile or adult criminal history, and the Indiana Risk Assessment System placed him in the low risk of reoffending category.

DeBoer, Judge.

Judges Bailey and Vaidik concur. Bailey, J., and Vaidik, J., concur.