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

MEMORANDUM DECISION

Statement of the Case

[1] Juan Lopez molested I.P. from the time she was 6 years old until she was 11 years old. Several years after the abuse ended, I.P. reported it to law enforcement, resulting in Lopez being charged with and convicted of four counts of child molesting. The trial court sentenced Lopez to 100 years of incarceration. Lopez now appeals, raising 2 issues for our review:

1. Whether the trial court abused its discretion in identifying mitigating and aggravating factors; and

2. Whether Lopez's sentence is inappropriate under Indiana Appellate Rule 7(B).

[2] We affirm.

Facts and Procedural History

[3] At all times relevant to this case, I.P. and her family lived in an apartment above a store in South Bend, Indiana, and Lopez worked at that store. Lopez began sexually abusing I.P. when she was 6 years old and did not stop until she was 11 years old. Lopez was between 44 and 50 during this time.

[4] The first time Lopez molested I.P., Lopez took her into a room in the back of the store while no one else was around, “pulled [I.P.’s] pants down,” and “used his tongue on [I.P.’s] vagina.” Tr. Vol. II at 73. Thereafter, Lopez touched I.P.’s vagina with his tongue “very often,” id. at 74; “use[d] his fingers” inside I.P.’s vagina “pretty often,” id. at 74; rubbed his penis on I.P.’s unclothed buttocks and vagina two or three times; and used his penis to penetrate I.P.’s anus. Lopez would sometimes lock the doors to the store when he molested I.P.; he told I.P. not to tell anyone; and he would give her candy, soft drinks, and computer time afterward.

[5] The molestation was not reported to law enforcement until I.P. was 15 years old. When officers interviewed Lopez about I.P.’s allegations, he admitted that he had kissed I.P. on the lips, licked her vagina, placed his finger inside her vagina and anus, and rubbed his penis between I.P.’s labia. According to Lopez, he molested I.P. between five to seven times when she was between eight and ten years old, and that every incident occurred at the store. Lopez told the officers that “he knew he shouldn't be doing it, but ․ [I.P.] didn't tell him to stop so he did not,” id. at 119; he also stated that he “probably would have stopped if she would have told him ․ to stop,” id. at 118.

[6] The State charged Lopez with, and the jury convicted him of, three counts of child molesting as Level 1 felonies ¹ and one count of child molesting as a Level 4 felony ² . At sentencing, the trial court found Lopez's lack of prior criminal history to be a mitigating factor, but the trial court “afford[ed] this little weight” because “the evidence at trial demonstrate[d] that the lack of criminal history [was] not an indication that [Lopez] was otherwise living a law-abiding life.” Appellant's App. Vol. II at 34–35. The trial court also found Lopez's education and employment to be mitigating factors. The trial court found that the nature and circumstances of Lopez's offenses constituted an aggravating factor because “there are multiple offenses,” “there was victimization over a long period of time,” and “there were several manners of victimization.” Id. at 35. The trial court determined that “the aggravating factors outweigh[ed] the mitigating factors” and sentenced Lopez to 30 years executed on each of the three Level 1 felony convictions and 10 years executed on the Level 4 felony conviction. Id. Concluding that “each separate act warrants separate punishment,” the trial court ordered Lopez's sentences to be served consecutively, resulting in a total sentence of 100 years executed at the Indiana Department of Correction (“DOC”). Id. Lopez was also ordered to register as a sex offender. This appeal ensued.³

Discussion and Decision

1. The Trial Court Did Not Abuse Its Discretion in Identifying Mitigating and Aggravating Factors

[7] Lopez contends that the trial court erred in identifying mitigating and aggravating circumstances. We review a trial court's sentencing decision for an abuse of discretion. Owen v. State, 210 N.E.3d 256, 269 (Ind. 2023) (quoting Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), as amended (July 10, 2007), decision clarified on reh'g, 875 N.E.2d 218 (Ind. 2007)). “An abuse of discretion occurs if the decision is ‘clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.’ ” Id. (quoting Anglemyer, 868 N.E.2d at 490). “A court does not abuse its discretion if the record supports its reasons for imposing a sentence and those reasons are proper as a matter of law.” Id. (citing Anglemyer, 868 N.E.2d at 490–91).

[8] First, Lopez asserts that the trial court abused its discretion by not giving more weight to his lack of criminal history. A sentencing court “is not obligated to credit or weigh the defendant's evidence of mitigating circumstances the same way the defendant does.” Russell v. State, 234 N.E.3d 829, 847–48 (Ind. 2024) (quoting Bivins v. State, 642 N.E.2d 928, 952 (Ind. 1994)). As the trial court noted, it gave Lopez's lack of criminal history minimal weight as a mitigating circumstance because the evidence at trial showed that he did not lead “a law-abiding life.” Appellant's App. Vol. II at 34–35. It was within the trial court's discretion to make this determination, and Lopez has not shown that it was “clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom,” Owen, 210 N.E.3d at 269 (quoting Anglemyer, 868 N.E.2d at 490). The trial court did not abuse its discretion by determining Lopez's lack of criminal history was worthy of “little weight.”

[9] Second, Lopez argues that the trial court abused its discretion by identifying as an aggravating factor the repeated nature of his offenses. Lopez specifically contends that the trial court improperly “relied on material elements of the offenses as an aggravator.” Appellant's Br. at 9 (citing Gomillia v. State, 13 N.E.3d 846, 852–53 (Ind. 2014)). Although a trial court cannot impose an aggravated sentence based solely on the material elements of the offense, it may impose such a sentence based on the particular circumstances of the material elements of the offense. See Gomillia, 13 N.E.3d at 852–53; Howard v. State, 236 N.E.3d 735, 741 (Ind. Ct. App. 2024) (quoting Hudson v. State, 135 N.E.3d 973, 979 (Ind. Ct. App. 2019)), trans. not sought. For example, even when the victim's age is an element of the offense, it may still be an aggravating factor if the victim was of a “tender age,” Hudson, 135 N.E.3d at 979 (quoting Kien v. State, 782 N.E.2d 398, 414 (Ind. Ct. App. 2003)), that is, if “the youth of the victim is extreme,” id. (quoting Reyes v. State, 909 N.E.2d 1124, 1128 (Ind. Ct. App. 2009)). Additionally, a trial court may consider as an aggravating circumstance the defendant's commission of more crimes than those charged. See Vazquez v. State, 839 N.E.2d 1229, 1233 (Ind. Ct. App. 2005) (determining trial court did not abuse its discretion by considering 20 acts of criminal conduct as an aggravating factor when charging information alleged ‘multiple’ offenses).

[10] To convict Lopez of child molesting as a Level 1 felony, the State had to prove he was at least 21 years old and knowingly or intentionally performed or submitted to sexual intercourse or other sexual conduct with I.P., who was less than 14 years old. See Ind. Code § 35-42-4-3(a)(1) (effective July 1, 2022, to June 30, 2025). To convict Lopez of child molesting as a Level 4 felony, the State had to prove he performed or submitted to any fondling or touching, of either I.P. or himself, with intent to arouse or to satisfy the sexual desires of either I.P. or himself. Id. § 35-42-4-3(b). Here, I.P. was six years old when Lopez began molesting her. By Lopez's own admission, he molested I.P. on at least seven occasions, and I.P. testified that Lopez molested her “very often” and “pretty often,” Tr. Vol. II at 74; the State charged him for only four incidents. Furthermore, Lopez warned I.P. not to tell anyone about the abuse and rewarded her after abusing her. Lopez also indicated that he only continued molesting I.P. because she did not tell him to stop. Based on these particularized circumstances of the material elements of Lopez's offenses, we cannot say the trial court abused its discretion by identifying the nature and circumstances of his offenses as aggravating factors.

2. Lopez's Sentence Is Not Inappropriate Under Appellate Rule 7(B)

[11] Lopez argues his sentence is inappropriate under Appellate Rule 7(B) and should be revised. The Indiana Constitution authorizes us to independently review and revise a trial court's sentencing decision. Russell, 234 N.E.3d at 855–56 (citing Ind. Const. art. 7, §§ 4, 6; Jackson v. State, 145 N.E.3d 783, 784 (Ind. 2020)). That authority is implemented through Appellate Rule 7(B), which permits us to revise a sentence 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.” Konkle v. State, 253 N.E.3d 1068, 1092 (Ind. 2025) (quoting McCain v. State, 148 N.E.3d 977, 985 (Ind. 2020)).

[12] Our Supreme Court has explained our role under Appellate Rule 7(B) as follows:

“[O]ur constitutional authority to review and revise sentences boils down to our collective sense of what is appropriate,” Cramer [v. State], 240 N.E.3d [693,] 698 [(Ind. 2024)] (quoting Taylor v. State, 86 N.E.3d 157, 165 (Ind. 2017)), an act that, importantly, is reserved for “exceptional” cases, id. (citing Gibson v. State, 43 N.E.3d 231, 241 (Ind. 2015)). Determining a sentence's appropriateness thus “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.” McCain, 148 N.E.3d at 985.

Konkle, 253 N.E.3d at 1092.

[13] Additionally, the defendant bears the burden of proving that “his or her sentence has met the inappropriateness standard of review.” Konkle, 253 N.E.3d at 1092 (quoting Cramer, 240 N.E.3d at 698). And because sentencing “ ‘is principally a discretionary function in which the trial court's judgment should receive considerable deference,’ a trial court's sentencing decision will generally prevail “unless overcome by compelling evidence portraying in a positive light the nature of the offense ․ and the defendant's character ․” Id. (alteration omitted) (quoting Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015)).

[14] In reviewing the defendant's sentence, “we are not limited to the mitigators and aggravators found by the trial court,” Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014), and we “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,” Lane v. State, 232 N.E.3d 119, 122 (Ind. 2024) (quoting Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)). Similarly, a defendant “need not ‘necessarily prove’ that the sentence is inappropriate on both counts” so long as “one of the prongs weighs heavily in favor” of revising the defendant's sentence. Id. at 126–27 (quoting Connor v. State, 58 N.E.3d 215, 219 (Ind. Ct. App. 2016)) (emphasis in original). Nonetheless, “to 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. at 127 (citing Connor, 58 N.E.3d at 220).

[15] When considering the nature of the offense, we start with the advisory sentence. Brown, 10 N.E.3d at 4 (citing Anglemyer v. State, 868 N.E.2d at 494). Here, Lopez was convicted of and sentenced on three counts of child molesting as Level 1 felonies. “[A] person who commits a Level 1 felony child molesting offense ․ shall be imprisoned for a fixed term of between twenty (20) and fifty (50) years, with the advisory sentence being thirty (30) years.” I.C. § 35-50-2-4(c) (emphasis added). On his three Level 1 felony child molesting convictions, the trial court sentenced Lopez to 30 years executed at the DOC. “A person who commits a Level 4 felony shall be imprisoned for a fixed term of between two (2) and twelve (12) years, with the advisory sentence being six (6) years.” I.C. § 35- 50-2-5.5 (emphasis added). On his one conviction for child molesting as a Level 4 felony, the trial court sentenced Lopez to 10 years executed at the DOC. The trial court ordered all four sentences to be run consecutively, see I.C. § 35-50-1-2(c) (effective July 1, 2020, to June 30, 2025), for a total of 100 years executed at the DOC.

[16] Next, we consider “whether there is anything more or less egregious about the offense committed by the defendant that makes it different from the ‘typical’ offense accounted for by the legislature when it set the advisory sentence.” T.A.D.W. v. State, 51 N.E.3d 1205, 1211 (Ind. Ct. App. 2016) (quoting Holloway v. State, 950 N.E.2d 803, 806–07 (Ind. Ct. App. 2011)), as amended (May 26, 2023). We also consider whether the offense was “accompanied by restraint, regard, and lack of brutality.” Konkle, 253 N.E.3d at 1093 (quoting Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015)).

[17] As set forth in more detail above, Lopez—a middle-aged man—repeatedly molested I.P. from the time she was 6 years old until she was 11 years old; he warned her not to tell anyone about the abuse; and he rewarded her with candy, soft drinks, and computer time. Lopez also blamed I.P. for the molestations, claiming he would have stopped if only she had told him to. We agree with the State that Lopez's “crimes were reprehensible.” Appellee's Br. at 13. And Lopez does not argue otherwise.

[18] In considering the character of the offender, “we engage in a broad consideration of a defendant's qualities,” T.A.D.W., 51 N.E.3d at 1211 (citing Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on other grounds on reh'g), including whether the defendant has “substantial virtuous traits or persistent examples of good character,” Konkle, 253 N.E.3d at 1093 (quoting Stephenson, 29 N.E.3d at 122).

[19] Lopez's presentence investigation report reveals that Lopez does not have a prior criminal history, he attended at least some college, he maintained employment as an adult, he reported not consuming alcohol or illegal drugs, and he reported having a good relationship with his family. While these qualities are generally commendable, there is nothing so compelling about them to outweigh the serious nature of Lopez's offenses, especially in light of his attempts to minimize how often he molested I.P. and actually blame her for his failure to recognize the wrongfulness of his actions. We cannot say that Lopez has produced compelling evidence demonstrating that the nature of his offense or his character renders his sentence inappropriate. See Lane, 232 N.E.3d 119; Russell, 234 N.E.3d at 855–56.

Conclusion

[20] In sum, the trial court did not abuse its discretion in identifying mitigating and aggravating circumstances, and the sentence it imposed is not inappropriate under Appellate Rule 7(B). We thus affirm the trial court on all issues raised.

[21] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-4-3(a) (effective July 1, 2022, to June 30, 2025).

2.   I.C. § 35-42-4-3(b).

3.   Lopez fails to support with record citations all the statements of fact in his Statement of Case and numerous statements of fact in his Argument, as required by Indiana Appellate Rules 46(A)(5) and 46(A)(8)(a), respectively. We remind counsel that the purpose of our appellate rules—especially Appellate Rule 46 governing the content of briefs—“is to aid and expedite review and to relieve the appellate court of the burden of searching the record and briefing the case.” Miller v. Patel, 212 N.E.3d 639, 657 (Ind. 2023) (emphasis added) (quoting Dridi v. Cole Kline LLC, 172 N.E.3d 361, 364 (Ind. Ct. App. 2021)).

Felix, Judge.

Judges Vaidik and Tavitas concur. Vaidik, J., and Tavitas, J., concur.