Roberto L. Servantes, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] After attending a Fourth of July party with family and friends in 2023, Roberto Servantes stayed the night at D.M.’s and raped her in the early hours of July 5. A few months later, he sat for a police interview during which he discussed the events of that night and denied raping D.M. He was charged with two counts of Level 3 felony rape and had a three-day jury trial. On the second day of trial, Servantes filed a motion to suppress his interview statements, alleging he was inadequately advised of his rights. The trial court denied the motion and admitted the recording of the interview containing Servantes’ statements.

[2] After the jury found Servantes guilty on both counts, the trial court merged the second count into the first and sentenced him to sixteen years in the Indiana Department of Correction with three years suspended to probation. Servantes appeals his conviction, arguing the trial court erred in denying his motion to suppress and admitting his interview statements. He also appeals his sentence, arguing the court abused its discretion in failing to consider his age as a mitigating factor. We sua sponte reverse one of Servantes’ convictions because it violates double jeopardy but otherwise affirm the trial court's judgment.

Facts and Procedural History

[3] D.M.¹ was a mother figure to Servantes and on many occasions during his teenage years, she allowed him and his siblings to stay at her home. Servantes’ brother, who married one of D.M.’s daughters, also considered her to be a mother figure. In recent years, D.M. had endured several health challenges including complications from a previous battle with lung cancer, nerve pain, and hip and shoulder surgery. On July 4, 2023, Servantes and D.M. attended a friend's Fourth of July party along with other friends and family. Servantes was twenty-one years old at the time. D.M. left the party early and got a ride home from her son-in-law, Servantes’ brother. Later, a friend gave Servantes a ride to D.M.’s house because he was staying there that night.

[4] Servantes and D.M. stayed up late watching television in her bedroom and at one point, Servantes offered to give D.M. a back rub. Servantes then told D.M. he wanted to have sex with her, and D.M. said, “[N]o way[,] you're like one of my kids ․” Transcript Vol. 2 at 238. Servantes “kept pushing the subject” and D.M. continued to tell him “it was never gonna [sic] happen.” Id. Servantes momentarily left the room and when he returned, “he pulled [D.M.] by [her] ankles on to the floor,” “put his hand over [her] mouth,” and raped her. Id. When it was over, she told him he raped her and told him to leave. He apologized, left, and she locked the doors behind him.

[5] The next day, D.M. told her best friend and her daughter what happened. Her daughter called the police, and after D.M. told the police and medical personnel what happened, she was taken to the hospital. At the hospital, a nurse performed a sexual assault examination on D.M. which included swabbing different areas of D.M.’s body for DNA. Further analysis of the evidence collected during that exam indicated there was male DNA present around D.M.’s genitals, including DNA “at least [one] trillion times more likely [to have] originated from D.M. and [Servantes] than ․ from D.M. and an unknown unrelated individual.” Tr. Vol. 3 at 159-60.

[6] In September, Detective Howard Hubbard interviewed Servantes at the community corrections facility where he was being held.² The door to the interview room remained open, and Servantes was not handcuffed. At the beginning of the interview, Detective Hubbard explained why he wanted to interview him and said, “Because you're ․ not free to go man, you gotta [sic] know what your rights are.” State's Exhibit 100 at 01:07-01:17. Then he gave Servantes a card with Miranda rights written on it. Detective Hubbard asked Servantes if he had completed high school, and Servantes silently shook his head. But when the detective asked if he was a “proficient reader[,]” Servantes answered “yeah.” Id. at 01:17-01:29. For the first few minutes, Servantes appeared to be reading the card, and as he was about to sign it, Detective Hubbard stopped him. He explained the allegations to Servantes further and said he wanted him “to understand what [his] rights [were] because he [couldn't] leave [the] facility.” Id. at 01:48-01:51. When the detective asked if Servantes was “familiar with those rights” and had read them, Servantes nodded and said, “yeah.” State's Ex. 22, Clip 1 at 01:59-02:03. Then he said, “having read [the card],” to which Servantes said “yeah,” he asked if Servantes wanted to tell him what happened with D.M. Id. at 02:22-02:28. Servantes said, “I didn't do it, bro” and proceeded to answer Detective Hubbard's questions about the party, D.M., and their relationship. Id. at 02:31-02:32; see Clip 2.

[7] Servantes told the detective that he had stayed the night there. He said they smoked some weed, he slept on the couch, and “woke up to her screaming, asking if [he] had a lighter, going through [his] stuff.” St. Ex. 22, Clip 2 at 01:45-02:28. So he called his mom and left. He denied touching or having sex with D.M. Later in the interview, Detective Hubbard asked Servantes if he would consent to giving a DNA sample. He told Servantes that if he turned the advisement card to the other side, there was another list of rights (a few of which Detective Hubbard verbalized) that he could read before deciding whether he wanted to consent.³ Servantes looked over the card in silence, laughed, and then declined to give a sample. A few days after the interview, law enforcement obtained a search warrant to collect a DNA sample from Servantes.

[8] In April 2024, the State charged Servantes with two counts of Level 3 felony rape.⁴ A three-day jury trial was held in June 2025. On the second day of trial, Servantes filed a motion to suppress the statements he made to Detective Hubbard during his interview, arguing he “was inadequately advised of his rights” before giving those statements. Appellant's Appendix Vol. 2 at 40. The court held a suppression hearing at which Detective Hubbard testified about his interview with Servantes. After the court heard the testimony and watched the recording of the interview, it found that although “some of [Servantes’] responses were short and ․ non-verbal[,] they clearly indicated that he understood[,] and the one question that he didn't answer about his comprehension[,] [the court's] take [on] that is he didn't answer that because he was so focused on reading the card.” Tr. Vol. 3 at 64. The court also noted “the fact that he agreed to waive his Miranda [r]ights, but not his Pirtle [r]ights [was] a strong indicator that he understood what his rights were.” Id. As such, it concluded Servantes was adequately advised of his rights, and the court denied the motion to suppress.

[9] The jury ultimately found Servantes guilty on both counts. To avoid double jeopardy concerns, the court noted, and the State agreed, that it could not enter judgments of convictions on both counts. The court then indicated it would enter a judgment of conviction on Count I only. However, the Chronological Case Summary (CCS) and Sentencing Order reflect that his conviction on Count II was merged with Count I.

[10] At sentencing, Servantes asked the trial court to consider as mitigators that he was only twenty-one years old at the time of the offense, he had a minimal criminal history, and that he had adverse childhood experiences, mental health issues, and he struggled with substance use. Ultimately, the court identified the following aggravating factors: (1) his history of delinquency and criminal activity; (2) his commission of this crime during his community corrections placement; (3) his failure to be rehabilitated despite his past lenient sentences and to avail himself of reformative programs previously available to him; (4) D.M.’s physical infirmity; and (5) the harm involved was greater than what the State was required to prove. The court was unable to find any mitigating factors. Specific to Servantes’ age, the court acknowledged that while “younger people tend to make more irrational and impulsive decisions” because their brains are not fully developed, here “the fact[s] and evidence that were put before the jury doesn't [sic] support this as an impulsive act.” Tr. Vol. 4 at 37. The court imposed an aggregate sentence of sixteen years, three of which were suspended to probation. Servantes now appeals his conviction and his sentence.

Discussion and Decision

1. Motion to Suppress

[11] First, Servantes contends the trial court abused its discretion by denying his motion to suppress, claiming that at his interview he was inadequately advised of his rights before making those statements to Detective Hubbard. The State argues Servantes waived this argument for appellate review by failing to raise a contemporaneous objection on these grounds at trial. Appellee's Brief at 19. We agree with the State.

[12] “To preserve a claim of evidentiary error for purposes of appeal, a defendant must make a contemporaneous objection at the time the evidence is introduced.” Laird v. State, 103 N.E.3d 1171, 1175 (Ind. Ct. App. 2018) (citing Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010), reh'g denied), trans. denied; see also Shoda v. State, 132 N.E.3d 454, 460 (Ind. Ct. App. 2019) (“[I]t is well settled that pretrial motions do not preserve any error for appeal.”). Notably, our Supreme Court has stated that “[a] contemporaneous objection at the time the evidence is introduced at trial is required to preserve the issue for appeal, whether or not the appellant has filed a pretrial motion to suppress.” Brown, 929 N.E.2d at 207.⁵ This requirement gives the trial court an opportunity to consider the issue anew and correct any possible errors. Shoda, 132 N.E.3d 461. Additionally, the basis for the objection at trial must be specific, “and any grounds not raised in the trial court are not available on appeal.” Grace v. State, 731 N.E.2d 442, 444 (Ind. 2000), reh'g denied.

[13] Preliminarily on the third day of trial, Servantes specifically objected to the jury seeing a part of the police interview on the grounds that it was prejudicial—specifically, “the portion of the video in which [he] invokes his right to refrain from a non-consensual search[.]” Tr. Vol. 3 at 70. Servantes also objected to another portion of the video where Detective Hubbard asked him whether D.M. had ever claimed to be raped in the past. He asserted the video evidence was irrelevant and called for speculation. Despite Servantes’ objections as to both portions of the video, the trial court admitted them over his objections. When the State moved to admit the video during trial, Servantes said he had “[n]o objection aside from the ones [they'd] discussed already.” Id. at 110. The court clarified by asking, “And so do you preserve the objection that you made earlier ․ which the Court had overruled ․ as to certain portions of the State's Exhibit 22?” Id. Servantes confirmed that was correct. At no point during discussions with the court before the trial resumed or contemporaneously with the video's admission at trial did Servantes raise an objection based on an inadequate advisement of his rights. Given that a motion to suppress in and of itself does not necessarily preserve the issue of admissibility for appeal and Servantes’ contemporaneous objections were lodged on different grounds than those raised in his motion and here on appeal, his argument that he was inadequately advised of his rights is waived for appellate review.

[14] Waiver notwithstanding, we find that even if the trial court erred in denying the motion to suppress and admitting the recording of the interview, any error was harmless. A trial court's error is not grounds for relief if “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.” Ind. Appellate Rule 66(A). “[T]he party seeking relief bears the burden of demonstrating how, in light of all the evidence in the case, the error's probable impact undermines confidence in the outcome of the proceeding below.” J.Q.R. v. State, 252 N.E.3d 919, 929 (Ind. 2025) (quoting Hayko v. State, 211 N.E.3d 483, 492 (Ind. 2023), reh'g denied, cert. denied).

[15] Servantes offers little as to why, in light of all the evidence, admission of the interview constituted reversible error. He merely asserts “that by allowing the statement made to Detective Hubbard into evidence he was significantly prejudiced.” Appellant's Br. at 22. In contrast, the State contends any error was harmless particularly because Servantes “did not confess to the crime during his statement ․” Appellee's Br. at 29. The State also points to the facts that D.M. reported the rape several times, her account of the rape was documented in her medical records, there was male DNA found on D.M.’s internal genitalia, and Servantes’ DNA was specifically identified on her external genitalia. And indeed, the police interview did not contain a confession from Servantes but rather an outright denial that he committed the crime. While his statements did place him at the Fourth of July party and at D.M.’s house later that night, these facts also came in through other admissible evidence. We cannot say, in light of all the evidence admitted at trial, that the probable impact of the police interview undermines our confidence in the outcome of this case. Thus, we find no error warranting reversal of Servantes’ conviction.

2. Sentencing

[16] Servantes also challenges his sentence, arguing the trial court erred when it declined to find his age was a mitigating factor. We review a “decision about whether to find a mitigating factor for an abuse of discretion.” Russell v. State, 234 N.E.3d 829, 847 (Ind. 2024), cert. denied. To succeed in a challenge to the court's failure to identify a mitigating factor, a defendant must “establish that the mitigating evidence is both significant and clearly supported by the record.” Id. (quoting Carter v. State, 711 N.E.2d 835, 838 (Ind. 1999)).

[17] “Whether a defendant's age constitutes a significant mitigating circumstance is a decision that lies within the discretion of the trial court.” Smith v. State, 872 N.E.2d 169, 178 (Ind. Ct. App. 2007), trans. denied. In this case, the court considered Servantes’ argument regarding his age but found it was not a mitigating factor given that the evidence was devoid of any indication of youthful impulsiveness. Rather, the court viewed Servantes’ behavior as “calculated” and “pre-meditated ․” Tr. Vol. 4 at 37. “As our [S]upreme [C]ourt has explained: ‘This was the trial court's call.’ ” Smith, 872 N.E.2d at 178 (quoting Anglemyer v. State, 868 N.E.2d 482, 493 (Ind. 2007)). Servantes “points to no evidence that would lead us to believe the trial court's failure to find youth as a mitigating factor was an abuse of [its] discretion.” Sanders v. State, 71 N.E.3d 839, 843 (Ind. Ct. App. 2017) (finding no abuse of discretion when trial court “specifically acknowledged [defendant's youth] and chose not to find it as a mitigating circumstance”), trans. denied.

[18] Servantes also seeks revision of his sentence under Indiana Appellate Rule 7(B), asserting “the trial court's decision to impose the maximum sentence ․ was inappropriate in light of the nature of [his] offense and [his] character ․” Appellant's Br. at 24. But beyond making this assertion in a heading in the argument section of his brief and citing to Rule 7(B), he fails to present any arguments regarding his offense or character. Instead, he reiterates his argument regarding the court's consideration of mitigating factors. Servantes contends “[t]he trial court's failure to see the nexus between [his] youth, and other mitigators, and the events charged, resulted in the trial court sentencing [him] inappropriately.” Id. at 27.

[19] It is the defendant's burden to “persuade the appellate court that his or her sentence has met th[e] inappropriateness standard of review.” Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Notably, “appellate review under Rule 7(B) is not a review of the trial court's consideration of aggravators and mitigators, but rather, as the rule states, an examination of the appellant's sentence based on the nature of the offense and the character of the offender ․” Turkette v. State, 151 N.E.3d 782, 786 n.4 (Ind. Ct. App. 2020), trans. denied. Servantes has not carried his burden here—he offers no evidence about his offense or his character at all, let alone any evidence that warrants revision. See Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015) (showing “considerable deference” to the trial court “unless overcome by 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)”). Therefore, he has failed to show his sentence is inappropriate.

3. Merger

[20] We sua sponte address the trial court's merger of Servantes’ two Level 3 rape convictions. The sentencing order lists “Finding of Guilty” as the disposition for Count I and “Conviction Merged” as the disposition for Count II. Appellant's App. Vol. 2 at 15. The judgment entry in the CCS states the same. Id. at 13. Although the jury found Servantes guilty on both counts, the court stated it would only enter judgment of conviction on the first count to avoid double jeopardy concerns. See Tr. Vol. 3 at 208-09. However, the written record reflects only that the convictions were merged, and merely merging the offenses is insufficient to resolve the presumed double jeopardy issue. See Owens v. State, 206 N.E.3d 1187, 1190-91 (Ind. Ct. App. 2023) (where the trial court entered judgment of conviction on a lesser included offense, “merging the offenses was not enough to resolve the court's double jeopardy concern”), trans. denied.

[21] Nonetheless, because the trial court only sentenced Servantes on Count I, the court only needs to vacate his conviction on Count II to cure the error. Thus, we remand to the trial court for the sole purpose of amending the judgment, sentencing order, and CCS to reflect that the conviction on Count II is vacated.

Conclusion

[22] Finding no reversible error as to Servantes’ conviction on Count I or his sentence, they are affirmed. However, we reverse his conviction on Count II and remand to the trial court to vacate that conviction.

[23] Affirmed in part and reversed and remanded in part.

FOOTNOTES

1.   D.M. died in July 2024 while the proceedings below were pending.

2.   At the time of this incident, Servantes was serving a sentence on community corrections in an unrelated case.

3.   This list of rights pertains to those discussed in Pirtle v. State, 323 N.E.2d 634 (Ind. 1975).

4.   Ind. Code § 35-42-4-1(a)(1), (4).

5.   We note that moving to suppress evidence, even without a specific contemporaneous objection, can still preserve the issue for appeal “where a trial court assures the defense that his objection has been preserved.” Swanson v. State, 730 N.E.2d 205, 208 (Ind. Ct. App. 2000), trans. denied. However, in this case, nothing in the record indicates the trial court gave such an assurance. What's more, the court specifically addressed other, unrelated objections to the same evidence the next day and confirmed that Servantes had no other objections related to admission of the interview into evidence. See Tr. Vol. 3 at 110. Thus, the circumstances here do not fall within that exception and Servantes needed to lodge a contemporaneous objection to preserve his argument in the motion to suppress.

DeBoer, Judge.

Brown, J., and Altice, J., concur.