Matthew G. Alaniz, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] A jury convicted Matthew G. Alaniz of engaging in three acts of sexual misconduct with his then fourteen-year-old stepdaughter, E.H., and providing her with alcohol. On appeal, he raises the following reordered and restated issues:

1. Did fundamental error occur when the prosecuting attorney elicited testimony from a State's witness implying Alaniz refused to consent to a search of his cellphone?

2. Does sufficient evidence support his convictions?

3. When fashioning Alaniz's sentence, did the trial court abuse its discretion in identifying aggravating factors?

4. Did the trial court abuse its discretion by imposing consecutive sentences after finding three acts committed on the same day did not constitute a single episode of criminal conduct?

5. Is Alaniz's sentence inappropriate in light of the nature of his offenses and his character?

[2] We affirm.

Facts and Procedural History

[3] At the time of the relevant events, Alaniz was thirty-nine or forty years old and married to E.H.’s mother, Victoria. He had been in E.H.’s life since she was two years old, and she referred to him as her father. The family lived in Hartford City in Blackford County, where Alaniz and Victoria worked at a company in town called BRC.

[4] On the afternoon of Father's Day, June 19, 2022, Alaniz asked fourteen-year-old E.H. if she “wanted to go out driving and drinking with him.” Tr. Vol. 2 at 49. E.H. agreed. Alaniz drove E.H. to Save On Liquor, where he purchased two six-packs of wine coolers. Alaniz then drove to a convenience store, where he purchased two individually wrapped pills—one in black packaging with gold lettering and one in a pink package with a cat and “something along the words of ․ too wet” on it. Id. at 116. They left and drove around the countryside while drinking for about ten or twenty minutes. During that time, Alaniz engaged in “sexual conversation” that made E.H. feel “uneasy” and “disgusted.” Id. at 54.

[5] Alaniz stopped the car in the country. He had consumed about five or six wine coolers and E.H. had two. Alaniz asked E.H. to sit on his lap while he drove. She initially refused but relented after his third request. They began driving again, with Alaniz working the pedals and E.H. steering. Through her clothing, E.H. could feel Alaniz pressing his erect penis against her “butt” and making “repeated motions.” Id. at 55–56. She felt scared, started crying, and asked him to stop. They drove around for five or ten minutes before pulling over on the side of the road. E.H. returned to the passenger seat. She did not know where they were. Alaniz asked E.H. why she had been crying. She said she was scared, but he told her she “didn't need to cry because [she] had been doing good.” Id. at 59.

[6] Alaniz began driving again and took out the pill packages he purchased earlier. Alaniz took the black pill. He reached over and put the pink pill in E.H.’s mouth, then asked her to open her mouth to show she had swallowed it. E.H. had not taken it but tucked it under her tongue. Later, she spit out the pill when Alaniz was not looking. At this point, E.H. estimated they had been driving for a half hour to forty-five minutes total. They continued to drive around. Alaniz then removed a black, teardrop shaped item from his pocket that “looked like a sex toy” or “a vibrator.” Id. at 60. He handed it to E.H. and asked her to put it in her vagina. E.H. was wearing pajama pants with an elastic waistband and a drawstring she had not tied. She placed it down her pants between her legs but outside of her underwear. Alaniz asked her if she had “put it in” her, and she responded that she had not. Id. at 61. He asked for it back, then reached over, put it down her pants, inside her underwear, and pressed it inside her vagina. As he did so, he touched the “outside of [her] vagina” with his bare hand. Id. at 62. He asked E.H. if she “liked it” or if she “wanted it,” and she said no. Id. at 63. He took the object out of her pants and threw it out the window. E.H. was “scared and just wanted to go home.” Id. at 65.

[7] Alaniz then drove the car to a grassy area just outside town near BRC where there were three parked semi-trailers. Alaniz stopped the car and said he wanted to show her what was inside the trucks. By then, it was around dusk. He helped E.H. into a truck then followed her inside, where he pressed her up against a metal bar and tried “to make out with” her by “putting his mouth on [her] and just ․ repeatedly kissing [her].” Id. at 67. He tried to pull down her pants, but she told him to stop and that she wanted to go home. E.H. eventually got away and out of the trailer. Alaniz followed her out, “telling [her] that he's sorry and ․ he wasn't in the right mind space.” Id. at 69. He then drove home. E.H. did not tell anyone what happened that day.

[8] Later that year, on an afternoon in September, E.H. was at home in the kitchen when she saw Alaniz drinking alcohol from a green glass bottle with gold lid he normally kept in the deep freezer. After returning the bottle to the freezer, she saw him pick up a blue compressed air duster canister, put it to his mouth, and inhale. He stumbled “a little bit.” Id. at 74. After that, Alaniz and E.H. went to a bathroom at the back of the house. Alaniz told her to inhale from the canister and encouraged her to “breathe real deeply[.]” Id. at 76. She inhaled but “didn't get any of the side effects he thought” she should, so she tried again. Id. She immediately felt “dizzy, nauseous, [and] in a state of euphoria.” Id. She stumbled a bit, and Alaniz picked her up and set her on the sink counter. She heard a buzzing noise but did not know where it originated. Alaniz, while clothed, then leaned against her and pressed his erect penis against her thighs. Through her clothing, E.H. felt a “vibration from his penis” and “assumed that was where the buzzing noise was coming from.” Id. at 78. After about five minutes, he let her go. She went to her bedroom and sat on the bed; Alaniz followed. E.H. heard the buzzing noise again and felt a vibration on the bed. As he sat there, he was “holding ․ his penis down” and was “sweating and heavy breathing.” Id. at 82, 80. After about five to ten minutes, he left.

[9] On November 4, E.H. disclosed these incidents to Victoria, who called the police. Officers from the Hartford City Police Department responded and spoke briefly with mother and daughter. Victoria and E.H. then went to the police station, where E.H. met with a trained forensic interviewer.

[10] In the early morning hours of November 5, police brought Alaniz to the station for questioning. After Lieutenant Lucas Phillips (“Lt. Phillips”) read Alaniz his Miranda rights, Alaniz spoke with the officer for approximately one and one-half hours. During the recorded interview, Alaniz denied providing E.H. with alcohol or engaging in sexual activity with her. He admitted they once drove to see semi-trailers in a grassy area near BRC because he wanted to show her equipment inside them like the tools he used at work. He denied drinking but later said he was impaired and should not have been driving. He described a kiss between them, at first saying he responded with surprise when she tried to kiss him but later described it as a kiss on the forehead typical of an appropriate father-daughter relationship. He stated there were sex toys in a basket by his bed and alcohol in the house, but denied providing either to E.H.

[11] During the interview, Alaniz told Lt. Phillips there were security cameras in the shared areas of the family home, but not in the bedrooms or bathrooms. Alaniz suggested the footage might provide exculpatory evidence or at least support his claim that he did not provide E.H. with alcohol or sex toys. Lt. Phillips asked Alaniz how to access the footage. See Ex. Vol. 4, page 15, clip 2 at 34:45. Alaniz replied that access was through an app on his phone but did not provide the app's name. Id. at 34:55–35:16.¹ Alaniz also suggested Lt. Phillips could remove the hard drives from the physical cameras and connect them to a computer to review the recordings. Id. at 35:35–35:50. Alaniz repeatedly suggested the police should review the footage. During the recorded interview, Lt. Phillips did not ask Alaniz to unlock his cellphone or provide a passcode to do so.

[12] Victoria consented to a police search of the home. Police recovered blue compressed air duster canisters, a green glass Jägermeister bottle in the deep freezer, and a “black rubberized ․ ring that vibrates” in a basket beside Alaniz's bed. Tr. Vol. 2 at 21. Police sent the rubber ring to the Indiana State Police laboratory along with DNA samples from E.H., Victoria, and Alaniz for comparison. The ring had Alaniz's DNA on it. Police also seized the video camera system from Alaniz's house but never reviewed the footage or sent it for testing.

[13] The State charged Alaniz with Level 4 felony sexual misconduct with a minor ² based on other sexual conduct occurring in June (“Count 1”); one count of Level 5 felony sexual misconduct with a minor ³ based on fondling or touching in June (“Count 2”); a second count of Level 5 felony sexual misconduct based on fondling or touching in September (“Count 3”);⁴ and Class B misdemeanor furnishing alcohol to a minor in June (“Count 4”).⁵

[14] A jury trial began on January 23, 2025. Now seventeen-year-old E.H. testified to the relevant events. During direct examination of Lt. Phillips, the State played for the jury the entire video recording of his November 5 interrogation of Alaniz. After publishing the video to the jury, the State questioned Lt. Phillips on direct examination about the substance of the interview—principally to highlight Alaniz's inconsistent statements—and did not question the officer about the home camera footage.

[15] On cross-examination, Alaniz suggested to Lt. Phillips that “the sum total of your investigation ․ consisted of [two] interviews,” the “collection of some items from the house,” and a vehicle search. Tr. Vol. 2 at 145. Lt. Phillips agreed. Alaniz then asked:

Q: You had indicated to Mr. Alaniz, which he said several times for you to check the cameras in the house, check the cameras in the house. Do you ever check the cameras in the house?

A: I do not.

Q: Did you have the ability to check the cameras in the house?

A: No, I did not.

Q: Was there ever an item collected that had that information on it?

A: Perhaps.

Q: But yet you never reviewed it?

A: No, I did not.

Id. at 146–47. On redirect examination, the State asked:

Q: Um during your interview there is a discussion about some cameras, is that right?

A: Correct.

Q: Also, the trailer incident didn't happen inside the home, is that right?

A: Correct.

Q: [W]hen you discussed the cameras with Mr. Matthew Alaniz how did he tell you he was able to look at the footage?

A: Through an app on his cellphone.

Q: Did he ever provide you with a name of that app?

A: No, he did not.

Q: Did he ever provide you with a password to his cellphone?

A: No, he declined.

Q: So, you did ask and he said no?

A: Correct.

Q: Did that happen during your interview?

A: No, it happened ․ on his way while being escorted out of the Hartford City Police Department to the Security Center.

Q: Okay, Matthew Alaniz knew that you could access the cameras in the home using his cellphone but did not give you access, is that right?

A: Correct well my understanding is that is per his statements.

Id. at 148 (emphases added). Alaniz did not object to this line of questioning.

[16] Lt. Phillips’ testimony raised some juror questions. After an un-transcribed bench discussion, the trial court asked Lt. Phillips the following on behalf of a juror:

Q: Did you believe it necessary to collect videos from the house?

A: At that point in time, our ability to examine any kind of information taken from a cellphone, in this case, app on a cellphone, was very limited without the defendant basically turning his phone to me and showing me the video on the phone it would have been slim to none to be able to retrieve that.

Id. at 153.⁶

[17] After closing arguments, the jury elected to recess late on Friday, January 24 and to begin deliberating after the weekend. On Monday morning, before submitting the cause to the jury, Alaniz told the trial court: “I would just renew my motions for directed verdict on Counts 1 and 2 for the State's failure to prove where the offense was allegedly located.” Id. at 204. The trial court denied the motion. After about two hours of deliberation, the jury found Alaniz guilty as charged.

[18] The trial court held a sentencing hearing on February 18. Victoria, now Alaniz's ex-wife, testified Alaniz was the only father E.H. knew, as E.H.’s biological father was initially absent and later passed away. Victoria testified Alaniz's actions constituted a breach of trust that subjected E.H. to “pain and trauma” with lasting effects. Tr. Vol. 3 at 25. E.H. testified she had considered Alaniz her father and she “never would have expected him to do something like this to [her], but yet he did.” Id. at 26. She testified she felt “miserable” and explained the emotional toll it had taken on her, including her resulting mental health diagnoses, hospitalizations, and need for medication. Id. at 27.

[19] Several witnesses spoke on Alaniz's behalf, including his mother, uncle, and cousin. They described in positive terms Alaniz's work ethic, helpfulness, and good nature. Alaniz's current wife, whom he married in 2023 while the case was pending, and her adult daughter testified on his behalf, describing the support he had provided them in the past two years. Defense counsel noted more of Alaniz's friends and family were present in the courtroom and explained, “I could call each one of them up there and they [would] all give [the court] very similar testimony, but I don't think that would be in the best interest of judicial autonomy [sic].” Id. at 23. Alaniz declined to make a statement in allocution.

[20] In closing, Alaniz argued the sentences for Counts 1, 2, and 4 (the June 2022 acts) should be served concurrently because the evidence showed they were part of a single episode of criminal conduct. The State argued sentences on those counts could be served consecutively because they were separate and distinct crimes which were committed at different times of day and locations, even though they occurred in the same vehicle on the same date. The State also summarized Alaniz's prior criminal history and noted he had violated the terms and conditions of his bond while on pretrial release by failing to appear twice and committing a new offense in Michigan.

[21] After argument and leading up to its sentencing statement, the trial court said:

Mr. Alaniz, the testimony that I heard today ․ from the folks that came here on your behalf ․ I got to be honest; it doesn't necessarily surprise me, it is probably consistent with the way you have behaved during these proceedings. You have always appeared here timely, you are always good natured, you have spoken cordially with Court staff, your attorney[,] the other individuals in and out of the Courtroom, the security staff and officers[,] and things of that nature so ․ it appears that you do conduct yourself in a very pleasant manner and you appear to be a person who is typically easy to get along with. So, none of that testimony about the good things you have done or done for other people surprise but I hope that it is not a surprise to you that when it comes to offenses of this nature, it is often more common than not, that when a person is convicted of them, they don't have a significant criminal history. They often do get along well with others and have decent social skills. It is often how these crimes are kept secret or surreptitiously committed, in a way to avoid drawing attention to them. None of that is surprising to [me] but what I think is unfortunate about it is that it appears you have relatives that need your help and even depend on you, additionally, with [this] matter pending you appeared to have gone and constituted new relationships of other individuals who depend on you with these issues hanging over your head. To me not only have you created the original victims in this case you have now victimized more people who come to depend on you when you may be committed to a prison sentence of some form of fashion. I find that to be unfortunate for all involved.

Id. at 32–33. The trial court found as mitigating circumstances Alaniz's family support, “relatively minor” criminal history, and employment history. Id. at 33; see also Appellant's App. Vol. 2 at 78–79. As aggravating factors, the trial court found Alaniz committed a new offense while on bond, he was in a position of trust as to E.H., and he showed “either a lack of acceptance of your conduct or lack of remorse, or maybe even both.” Tr. Vol. 3 at 33.

[22] The trial court found Counts 1, 2, and 4 “can be considered separate specific acts” because there was “sufficient separation between the acts of conduct that will allow for a s[e]parate and distinct conviction to have been proven under the facts of the case without dependency on the others.” Id. at 33–34.

[23] Finding the aggravators outweighed the mitigators, the trial court sentenced Alaniz to the maximum sentence on each count as follows: twelve years on Count 1; six years each on Counts 2 and 3; and 180 days on Count 4; all to be served consecutively in the Indiana Department of Correction (“DOC”), for an aggregate executed sentence of twenty-four and one-half years.

1. Any error in the prosecutor's question was not fundamental.

[24] Alaniz first contends the trial court erred by permitting the prosecutor to refer to Alaniz's refusal to consent to a warrantless search. Alaniz's argument stems from the State's questioning of Lt. Phillips on redirect about whether Alaniz provided law enforcement with the password or access to his cellphone so police could review the home security camera footage. Alaniz contends that through these questions, the prosecutor was commenting on his “refusal to consent to an invalid search” and used the question to create “an inference of guilt, suggesting he had something to hide and hindered the investigation[.]” Appellant's Br. at 21. In addition to arguing the question was “irrelevant, inadmissible, without foundation, [and] highly prejudicial,” Alaniz contends any questioning at trial regarding his refusal to consent to a phone search violated his federal and state constitutional rights against self-incrimination, to be free from unreasonable searches, to a fair trial, and to due process and due course of law. Id.

[25] Alaniz's contention is a claim of prosecutorial misconduct. See Owens v. State, 937 N.E.2d 880, 892 (Ind. Ct. App. 2010), trans. denied. “A defendant waives appellate review of the issue of prosecutorial misconduct when he fails to immediately object, request an admonishment, and then move for mistrial.” Reynolds v. State, 797 N.E.2d 864, 869 (Ind. Ct. App. 2003). Alaniz acknowledges he did not object to the questions or testimony at trial, much less request an admonishment or move for a mistrial. Still, a party can raise an otherwise waived issue through a showing of fundamental error. See Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). The “fundamental error” exception to waiver is “extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.” Id. This “formidable standard ․ applies only where the error is so flagrant that the trial judge should have corrected the error on [their] own, without prompting by defense counsel.” Tate v. State, 161 N.E.3d 1225, 1229 (Ind. 2021). The appellant “faces the heavy burden of showing that the alleged errors are so prejudicial to [their] rights as to ‘make a fair trial impossible.’ ” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014) (quoting Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002)).

[26] The Fifth Amendment to the U.S. Constitution, applicable to the states through the Fourteenth Amendment, provides no person “shall be compelled in any criminal case to be a witness against himself[.]” U.S. Const. amend. V. The amendment forbids “either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.” Griffin v. California, 380 U.S. 609, 615 (1965); see also Moore v. State, 669 N.E.2d 733, 739 (Ind. 1996) (adopting and applying the Rowley-Robinson test, which states the “Fifth Amendment privilege against compulsory self-incrimination is violated when a prosecutor makes a statement that is subject to reasonable interpretation by a jury as an invitation to draw an adverse inference from a defendant's silence”). The U.S. Supreme Court has also held a defendant's post-arrest silence after receiving Miranda warnings cannot be used as evidence of guilt or for impeachment purposes. Doyle v. Ohio, 426 U.S. 610, 619–20 (1976) (holding “the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment”).

[27] The Fourth Amendment protects a person against unreasonable searches and seizures. U.S. Const. amend. IV. Unlike the issue of prosecutorial comment upon a defendant's Fifth Amendment right, the U.S. Supreme Court has not taken up the issue of whether a prosecutor's comment about a criminal suspect's refusal to consent to a search runs afoul of his Fourth Amendment right. Nor do the parties direct us to any Indiana appellate authority passing on this issue. However, in reliance on Griffin and Doyle, “other courts have either held or suggested that the government may not cite a defendant's refusal to consent to a search of his home as evidence that he knew the search would produce incriminating evidence.” U.S. v. Moreno, 233 F.3d 937, 941 (7th Cir. 2000) (collecting cases and concluding the prosecution's use of a husband's withdrawal of a consent to a search, purportedly at the defendant wife's urging, as evidence of her guilt, “may have been inconsistent with due process” and “probably should not have been admitted”).

[28] We assume, without explicitly deciding, a prosecutor should not comment upon a defendant's exercise of his rights guaranteed by the Fourth Amendment to draw an inference of guilt. Still, as this Court has observed in the Fifth Amendment context:

[O]therwise inadmissible evidence may become admissible where the defendant “opens the door” to questioning on that evidence. In order to open the door, the evidence relied upon must leave the trier of fact with a false or misleading impression of the facts related. The State may introduce evidence that might otherwise be a violation of the defendant's Fifth Amendment right against self-incrimination if the State's evidence is a fair response to evidence elicited by the defendant.

Cameron v. State, 22 N.E.3d 588, 592–93 (Ind. Ct. App. 2014) (internal quotation marks and citations omitted); see also Herron v. State, 801 N.E.2d 761, 766 (Ind. Ct. App. 2004) (citing U.S. v. Robinson, 485 U.S. 25, 33–34 (1988)) (“A criminal defendant can invite the prosecution to comment upon his or her decision to invoke the Fifth Amendment privilege against compulsory self-incrimination.”).

[29] During his in-custody interview, which the State played to the jury in full, Alaniz repeatedly urged Lt. Phillips to review the home security camera footage. On cross-examination, Alaniz attacked the thoroughness of the police investigation, in part by asking whether Lt. Phillips made any attempt to investigate the video camera footage. Lt. Phillips admitted he neither viewed the footage nor attempted to do so. On redirect, Lt. Phillips testified that Alaniz usually reviewed the video footage through an app on his cell phone, but when Lt. Phillips asked for the password, Alaniz declined. The prosecutor then summarized: “Alaniz knew that you could access the cameras in the home using his cellphone but did not give you access, is that right?” Tr. Vol. 2 at 148. Lt. Phillips agreed that was his “understanding ․ per [Alaniz's] statements.” Id. In response to the juror question, Lt. Phillips clarified that at the time, he had limited ability to retrieve and review the contents of a cellphone app without the user's password.

[30] Even if we assume the prosecutor's question improperly invited the jury to draw an adverse inference of guilt from Alaniz's refusal to consent to a cellphone search, we agree with the State that Alaniz opened the door to this testimony by suggesting the police investigation of the video footage was not as thorough as it might have been. Alaniz's cross-examination of Lt. Phillips left a false or misleading impression about police efforts to view the camera footage, and it was fair for the prosecution to “defend the adequacy of the investigation” by clarifying how Alaniz typically reviewed the footage and by pointing out that police lacked access by that means. Appellee's Br. at 22.  ⁷

[31] Further, because Alaniz did not object to the prosecutor's question, to prevail on appeal, he must show the presumed violation of his constitutional rights rose to the level of fundamental error. We cannot say he met this burden here.

[32] Although some violations of constitutional rights are so basic to a fair trial that they can never be disregarded, not every error of a constitutional dimension demands automatic reversal of a conviction. Chapman v. California, 386 U.S. 18, 22 (1967). When a defendant objects to a prosecutor's comment upon his constitutional rights, courts including the U.S. Supreme Court and our own Supreme Court have applied a harmless error analysis. Id. at 24 (holding comment upon a defendant's silence was subject to harmless error analysis); Moore, 669 N.E.2d at 739–42 (adopting and applying harmless error test); see also Moreno, 233 F.3d at 941 (holding admission of testimony and prosecutorial argument about defendant's withdrawal of consent to a search was harmless in light of the overwhelming evidence of guilt).

[33] If a reviewing court can declare a belief that an improper prosecutorial comment was harmless beyond a reasonable doubt, it may affirm a conviction despite the comment. Moore, 669 N.E.2d at 739 (citing Chapman, 386 U.S. at 24). In making this assessment, we consider the strength of the State's case, the extent and persuasiveness of the prosecutor's comment, and, where objected to, the effectiveness of trial court's curative instruction. Id. at 740–41. The State bears the burden of proof the error was harmless. Id. at 739. “[H]armless error cannot be considered fundamental.” Smith v. State, 190 N.E.3d 462, 466 (Ind. Ct. App. 2022), trans. denied.

[34] As to evidence of guilt, the State's case turned on the jury's credibility assessment of E.H., who was seventeen years old at the time of trial, able to describe Alaniz's acts with specificity, testified at length over two days about the offenses, and was subject to cross examination. The State introduced physical evidence corroborating aspects of E.H.’s testimony. The jury was also able to assess and weigh Alaniz's credibility based on his statements in the recorded police interview, in which he admitted driving E.H. to the semi-trailer site while intoxicated and kissing her. In closing, the State referenced Alaniz's equivocal and contradictory statements to the police, emphasizing Alaniz's lack of credibility.⁸ As to the home security cameras seized, the probative value of any video (had police accessed it) was indisputably minimal, given the fact the footage was irrelevant to three of the charges and would not have recorded the acts constituting Count 3. The back and forth between the parties about accessing this evidence likely had little ultimate effect on the verdict.

[35] Regarding the extent and persuasiveness of the improper remarks, the prosecutor's question was isolated to one instance of re-direct examination. The State did not refer to Alaniz's failure to consent to a search of his phone during its closing arguments. And as the State points out, Alaniz's failure to object to the prosecutor's improper question might have been a strategic decision to avoid drawing more attention to Alaniz's refusal and instead to refocus on the perceived inadequacy of Lt. Phillips’ efforts. See Appellee's Br. at 25 n.4. If “the judge could recognize a viable reason why an effective attorney might not object, the error is not blatant enough to constitute fundamental error.” Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018).

[36] Having thoroughly reviewed the record and weighed the rhetorical impact of the prosecutor's questions against the strength of the State's case and evidence, we conclude any error in the prosecutor's question about Alaniz's refusal to consent to a warrantless search was harmless beyond a reasonable doubt. Alaniz has not established fundamental error that would require reversal of his conviction. Cf. Owens, 937 N.E.2d at 894 (prosecutor's improper comment on defendant's failure to testify in child molestation cases was not fundamental error where prosecutor's statement was isolated and the victim testified and was vigorously cross-examined).

2. Sufficient evidence supports Alaniz's convictions.

[37] Alaniz next challenges the sufficiency of the evidence to support his convictions. A sufficiency-of-the-evidence claim warrants a “deferential standard of review in which we ‘neither reweigh the evidence nor judge witness credibility[.]’ ” Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024) (quoting Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018), cert. denied). Instead, we respect the fact-finder's exclusive province to weigh conflicting evidence, Phipps v. State, 90 N.E.3d 1190, 1195 (Ind. 2018), and consider only the probative evidence and reasonable inferences that support the judgment of the trier of fact, Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024). It is “not necessary that the evidence ‘overcome every reasonable hypothesis of innocence.’ ” Sallee v. State, 51 N.E.3d 130, 133 (Ind. 2016) (quoting Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995)).

[38] Venue – Alaniz first argues the State failed to establish Blackford County as the proper venue for Counts 1, 2, and 4 (the June 2022 acts) because E.H. testified she and Alaniz were driving around the countryside but could not pinpoint the location where the acts occurred.⁹

[39] We review a claim of insufficient evidence of venue in the same manner as other claims of insufficient evidence. Smith v. State, 835 N.E.2d 1072, 1074 (Ind. Ct. App. 2005). “We neither reweigh the evidence nor assess witness credibility and look only to the evidence and the reasonable inferences drawn therefrom which support the conclusion of requisite venue.” Id.

[40] A defendant's right to be tried in the county in which an offense was committed is a constitutional and a statutory right. Baugh v. State, 801 N.E.2d 629, 631 (Ind. 2004); Ind. Const. art. 1, § 13 (“In all criminal prosecutions, the accused shall have the right to a public trial ․ in the county in which the offense shall have been committed[.]”); I.C. § 35-32-2-1(a) (2005) (“Criminal actions shall be tried in the county where the offense was committed, except as otherwise provided by law.”). Venue is not an element of an offense. Baugh, 801 N.E.2d at 631. “Accordingly, although the State is required to prove venue, it may be established by a preponderance of the evidence and need not be proven beyond a reasonable doubt.” Id. Venue may be established by circumstantial evidence. Wurster v. State, 715 N.E.2d 341, 348 (Ind. 1999).

[41] “Although the right to be tried in the county in which the offense occurred is grounded in the Indiana Constitution, the constitution does not contemplate exonerating criminals simply because the nature of the crime itself makes venue unknowable.” Cutter v. State, 725 N.E.2d 401, 409 (Ind. 2000). “If an offense is committed in Indiana and it cannot readily be determined in which county the offense was committed, trial may be in any county in which an act was committed in furtherance of the offense.” I.C. § 35-32-2-1(d).

[42] In this case, the State introduced evidence E.H. lived with Alaniz in Hartford City, the seat of Blackford County. On June 19, Alaniz first drove E.H. to liquor and convenience stores in Hartford City, where he purchased alcohol and pills. E.H. estimated they drove in the countryside while drinking for ten to twenty minutes before Alaniz engaged in touching or fondling. They drove around again before Alaniz put the pill in E.H.’s mouth and engaged in another act of sexual misconduct. After, Alaniz drove E.H. back toward Hartford City and parked in a grassy area just outside of town near BRC, where he led her into a semi-trailer and kissed her and tried to pull down her pants. In all, they drove around for a few hours, from late afternoon until dusk. E.H. testified she was unsure where they were during the drive, other than the countryside.

[43] On this record, the exact location of the charged offenses was speculative, although the evidence shows the crimes occurred somewhere in or near Blackford County. Yet the State introduced evidence Alaniz engaged in grooming behavior in Hartford City when he purchased alcohol and pills and gave or attempted to give them to E.H. leading up to the acts of sexual misconduct. The State therefore proved by a preponderance of the evidence acts in furtherance of the offenses occurred in Blackford County. See Cutter, 725 N.E.2d at 410 (venue was appropriate in county in which defendant was tried for murder and rape, despite lack of evidence as to county or counties in which crimes were actually committed, where defendant and victim entered defendant's car in county in which trial was had and victim's body was found two counties away). Sufficient evidence supports venue in Blackford County.

[44] Witness credibility – Alaniz also argues the evidence is insufficient because E.H.’s testimony was “not substantiated, lacked credibility[,] and was improbable.” Appellant's Br. at 28.¹⁰ Apparent from the verdicts, the jury found E.H.’s testimony credible. Generally, the uncorroborated testimony of the victim is sufficient to sustain a conviction. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). Moreover, during the police interview, Alaniz admitted to drinking alcohol while driving E.H. to the semi-trailers where he kissed her. During a search of Alaniz's home, police discovered a green glass bottle of Jägermeister in the freezer, blue compressed air duster canisters, and a basket containing a vibrating sex toy, all of which corroborated certain details of E.H.’s testimony.

[45] Still, Alaniz points to E.H.’s testimony on cross-examination revealing certain gaps in her story, such as that she did not know the make or model of Alaniz's car and could not remember how she got off his lap and back into the passenger seat after the first incident of sexual misconduct. Alaniz also argues he had an injury to his hand which cast doubt on his ability to perform the acts she described. And finally, Alaniz contends the circumstances of E.H.’s disclosure were suspect because E.H. had recently discovered Alaniz was having an extramarital affair without Victoria's knowledge and informed her mother. Alaniz's arguments are requests to reweigh the evidence and reassess E.H.’s credibility, which we cannot do. See Hancz-Barron, 235 N.E.3d at 1244. Sufficient evidence supports Alaniz's convictions.

3. The trial court did not abuse its discretion in identifying aggravating factors.

[46] Alaniz next argues the trial court relied on improper aggravators when fashioning his sentence.¹¹

[47] The sentencing range for a Level 4 felony (Count 1) is between two and twelve years, with an advisory sentence of six years. I.C. § 35-50-2-5.5. For a Level 5 felony (Counts 2 and 3), the sentencing range is between one and six years, with an advisory sentence of three years. I.C. § 35-50-2-6(b). And a person convicted of a Class B misdemeanor (Count 4) shall be imprisoned for not more than 180 days. I.C. § 35-50-3-3. The trial court sentenced Alaniz to the maximum on each count, all to be served consecutively in the DOC, resulting in an aggregate twenty-four-and-one-half-year sentence.

[48] We review a trial court's sentencing decisions for abuse of discretion. Owen v. State, 210 N.E.3d 256, 269 (Ind. 2023). A trial court abuses its discretion when its 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 v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007)). A trial court may abuse its sentencing discretion in a number of ways, including if it (1) fails to enter a sentencing statement; (2) relies on aggravating or mitigating factors unsupported by the record; (3) fails to find aggravating or mitigating factors that are supported by the record and advanced for consideration; or (4) relies on reasons that are improper as a matter of law. Cardwell v. State, 895 N.E.2d 1219, 1223 (Ind. 2008). In reviewing a sentencing decision, we may consider both the trial court's written sentencing order and oral statements made at the sentencing hearing. Corbett v. State, 764 N.E.2d 622, 631 (Ind. 2002). “[R]emand for resentencing may be the appropriate remedy if we cannot say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.” Anglemyer, 868 N.E.2d at 491.

[49] At the sentencing hearing and in its written order, the trial court identified three aggravating factors: (1) Alaniz committed a new offense while on bond; (2) Alaniz was in a position of trust as to E.H.; and (3) Alaniz showed a lack of acceptance or remorse for his conduct and the impact of that conduct on E.H.

[50] Lack of Remorse – Alaniz argues the trial court abused its discretion in determining Alaniz's lack of remorse was an aggravating circumstance. Alaniz contends that because he made no statement in allocution, the trial court must have inferred a lack of remorse from his silence and/or from maintaining his innocence.

[51] A trial court may consider a defendant's lack of remorse as a sentencing factor. Deane v. State, 759 N.E.2d 201, 205 (Ind. 2001). “A defendant lacks remorse for his crimes when he displays disdain or recalcitrance, the equivalent of saying ‘I don't care.’ ” Hollen v. State, 740 N.E.2d 149, 158 (Ind. Ct. App. 2000), adopted on trans., 761 N.E.2d 398, 402 (Ind. 2002). But a defendant does not lack remorse by simply maintaining his innocence, even after conviction. Id. A trial court may not enhance a sentence for lack of remorse based only on a defendant's good-faith assertion of innocence. Id.

[52] At the same time, this Court has suggested a defendant's assertion of innocence “may support a finding of lack of remorse if there is sufficient independent evidence of guilt.” Id. at 159 (citing Bluck v. State, 716 N.E.2d 507, 513 (Ind. Ct. App. 1999) (holding the use of the defendant's assertion of innocence to show lack of remorse was inappropriate when the evidence of guilt consisted solely of a victim's testimony and was not corroborated by physical evidence) and Dockery v. State, 504 N.E.2d 291, 297 (Ind. Ct. App. 1987) (indicating the lack of remorse by a defendant who claims innocence may be a valid aggravator unless the only evidence of guilt is a victim's uncorroborated testimony)). A trial court may also infer a lack of remorse from the defendant's in-court demeanor and failure to express regret or appreciation for the tragedy, even where the defendant maintains his innocence. See Deane, 759 N.E.2d at 205 (holding it was not an abuse of discretion to consider a defendant's lack of remorse as an aggravating factor where the defendant maintained his innocence but his demeanor and statements demonstrated disdain for the prosecutor, disrespect for proceedings, and failure to express regret or appreciate the tragedy that occurred). Still, a lack of remorse by a person who maintains his innocence may be regarded “only as a modest aggravator.” Bacher v. State, 686 N.E.2d 791, 801 (Ind. 1997).

[53] Here, Alaniz did not testify at trial and made no statement in allocution from which the trial court could glean a lack of remorse from Alaniz's own words. And the record reveals no open disdain for the prosecution or proceedings; in fact, the trial court commented on Alaniz's “very pleasant manner” in the courtroom. Tr. Vol. 3 at 32.

[54] Yet the State presented evidence to corroborate parts of E.H.’s testimony, including physical evidence (the alcohol bottle, compressed air canisters, and vibrating rubber ring) and a video recording of Alaniz's statements to police wherein he admitted to drinking and driving E.H. to the semi-trailers where a kiss occurred. The trial court commented upon this when finding the lack of remorse aggravator, stating:

I think the verdicts were not only supported by the evidence but Mr. Alaniz, you simply don't take an underage child to a secluded location, to take them into an abandoned or unused semi-trailer with any good intentions. That is not something that is normal behavior and your lack of acceptance or remorse and denying the victim any sort of apology does weigh into my decision.

Id. at 33. The trial court then stated that although it considered Alaniz's lack of remorse a factor in aggravation, Alaniz's violation of a position of trust was “of most concern” to it. Id. This indicates the trial court appropriately assigned only modest weight to the lack of remorse aggravator. We conclude the trial court did not abuse its discretion when it considered Alaniz's lack of remorse.

[55] Even if the trial court did abuse its discretion in this regard, it would not be reason to remand for sentencing. As Indiana courts have often observed, a “single aggravating circumstance is enough to justify an enhancement or the imposition of consecutive sentences.” Williams v. State, 690 N.E.2d 162, 172 (Ind. 1997). And when the reviewing court is persuaded the original sentencing decision would have been the same had the trial court not relied on an impermissible factor, the sentence should be affirmed. Hollen, 740 N.E.2d at 161. Because the lack of remorse was but a modest aggravator and other aggravating circumstances existed which the trial court found more concerning, we can confidently say the trial court would have imposed the same sentence even if it had not considered Alaniz's lack of remorse a factor in aggravation.

[56] Other commentary – Alaniz argues the trial court impermissibly considered a material element of the crimes as an aggravating circumstance when, after commenting on Alaniz's pleasant courtroom demeanor through the proceedings, it stated:

[W]hen it comes to offenses of this nature [sexual misconduct with a minor], it is often more common than not, that when a person is convicted of them, they don't have a significant criminal history. They often do get along well with others and have decent social skills. It is often how these crimes are kept secret or surreptitiously committed, in a way to avoid drawing attention to them.

Tr. Vol. 3 at 32 (emphasis added). Contrary to Alaniz's assertion on appeal, we do not read this statement as an indication the trial court considered all “offenses of this nature” as constituting inherently aggravating circumstances. Rather, we interpret this statement as the trial court's explanation as to why the character testimony presented on Alaniz's behalf was not persuasive.

[57] Alaniz also argues the trial court impermissibly considered the “victim impact” on Alaniz's new wife and stepdaughter when it stated: “To me not only have you created the original victims in this case you have now victimized more people who come to depend on you when you may be committed to a prison sentence of some form of fashion. I find that to be unfortunate for all involved.” Id. at 33. But again, we do not read this statement as the trial court's finding of an aggravating circumstance. Considering the trial court's whole statement, we interpret this as an observation Alaniz was good at manipulating others for his own benefit. The trial court's written and oral sentencing statements are clear it found only three aggravating circumstances.

[58] The trial court did not abuse its discretion in identifying and considering aggravating circumstances.

4. The trial court did not abuse its discretion in imposing consecutive sentences on Counts 1, 2, and 4.

[59] Alaniz next argues the trial court abused its discretion by finding Counts 1, 2, and 4 (the June 2022 acts) did not constitute a single episode of criminal conduct. He contends the court should have capped the consecutive sentences for those offenses in accordance with Indiana Code Section 35-50-1-2.

[60] Generally, it is within the trial court's discretion to order sentences be served concurrently or consecutively. Fix v. State, 186 N.E.3d 1134, 1143 (Ind. 2022). We review this type of claim of sentencing error for an abuse of the trial court's discretion. Waldon v. State, 259 N.E.3d 318, 323 (Ind. Ct. App. 2025). “An abuse of discretion occurs when 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.

[61] Our legislature has limited the aggregate sentence a trial court may impose for certain non-violent felony convictions “arising out of an episode of criminal conduct[.]” I.C. § 35-50-1-2(c) (2020). The parties agree that if Alaniz's sentences under Counts 1, 2, and 4 constitute a single episode of criminal conduct, the consecutive sentences would be capped at fifteen years, rather than the aggregate eighteen and one-half years the trial court imposed. See I.C. § 35-50-1-2(d)(3) (“If the most serious crime for which the defendant is sentenced is a Level 4 felony, the total of the consecutive terms of imprisonment may not exceed fifteen (15) years.”).

[62] The statute defines “episode of criminal conduct” as “offenses or a connected series of offenses that are closely related in time, place, and circumstance.” I.C. § 35-50-1-2(b). Whether certain offenses constitute a single episode of criminal conduct is “a fact-intensive inquiry,” Fix, 186 N.E.3d at 1144, for which “no bright-line test” exists, Waldon, 259 N.E.3d at 325. Recently, a panel of this Court reviewed and synthesized the body of case law that has developed surrounding this issue, distilling it into the following test for whether offenses constitute a single episode of criminal conduct:

We balance the following non-exclusive factors: (1) the time span over which the offenses occurred and the time between the offenses, with extra weight given when the offenses are simultaneous or contemporaneous; (2) whether the offenses occurred at separate locations, and if so, the distance between them; (3) whether the offenses each stand alone, that is to say, can be described without reference to one another; and (4) whether the offenses are united by a common scheme or purpose beyond the mere desire to commit multiple crimes. No one factor is determinative, although the first two are the most important. Ultimately, the time, place, and circumstances must demonstrate that the offenses are but parts of a larger or more comprehensive series such that they can be fairly described as a single episode of criminal conduct.

Waldon, 259 N.E.3d at 326 (internal quotation marks, citation, and footnote omitted). “Reasonable jurists will inevitably disagree on whether a given set of offenses constitutes a single episode of criminal conduct,” so we conduct this review mindful we adhere to an abuse of discretion standard. Id. at 326 n.10.

[63] Time Span – Here, the offenses occurred over a few hours on the same day. Alaniz and E.H. left the house sometime between 4:00 and 5:00 in the afternoon. First, Alaniz drove to the liquor store, where he bought wine coolers. They drove around drinking, and after an estimated ten to twenty minutes, Alaniz asked E.H. to sit on his lap. As they drove, he committed the first act of sexual misconduct. After, they continued to drive around. By the time Alaniz put the pill E.H.’s mouth in advance of committing the second act, she estimated they had been driving thirty to forty-five minutes total. When Alaniz drove to the semi-trailer site, it was dusk. Though relatively close in time, the events were not simultaneous or contemporaneous. See, e.g., Smith v. State, 770 N.E.2d 290, 294 (Ind. 2002) (holding defendant's offenses for depositing six forged checks in his bank account at different bank branches over the course of three hours did not constitute a single episode of criminal conduct in part because they were not simultaneous or contemporaneous).

[64] Location and Distance – Alaniz furnished alcohol to E.H. in Hartford City, where he purchased the wine coolers. As discussed above, the exact location at which Alaniz committed the acts of sexual misconduct is unknown. However, the record is clear Alaniz drove E.H. to separate locations in the countryside to commit each act.

[65] Independent Facts – In finding the offenses did not constitute a single episode of criminal conduct, the trial court considered it significant that each act could be proven without dependence on the other facts. Although the ability to recount each charge without referring to the other is not dispositive in resolving whether a defendant's conduct constitutes an episode of criminal conduct, it “can provide additional guidance” on the question. Reed v. State, 856 N.E.2d 1189, 1200 (Ind. 2006). Here, it is unnecessary to refer to one act to describe another. Each occurred independently. Alaniz completed the first act of sexual misconduct then drove to another location and attempted to give E.H. a pill before engaging in the second act.

[66] Common Scheme or Purpose – As noted in Waldon, courts have relied on the “common scheme or purpose” factor to unite offenses involving separate victims and separate acts. 259 N.E.3d at 325–26 (collecting cases). But the common scheme or purpose “must be more specific than the mere desire to commit multiple crimes.” Id. at 326. We discern no common scheme or purpose here besides a desire to commit multiple crimes.

[67] Mindful of our standard of review, we cannot say the trial court's decision was clearly against the logic of the facts and circumstances before it. On balance, the facts show Alaniz engaged in acts that did not occur contemporaneously, occurred at separate locations, and can be described without reference to each other. Accordingly, the trial court did not abuse its discretion in finding Alaniz's acts in June 2022 were separate criminal acts (not a single episode of criminal conduct) and imposing consecutive sentences on Counts 1, 2, and 4.

5. Alaniz's sentence is not inappropriate.

[68] Finally, Alaniz asks us to revise his sentence. The Indiana Constitution authorizes this Court to review and revise a trial court's sentencing decision as provided by rule. Ind. Const. art. 7, § 6. Indiana Appellate Rule 7(B) provides we may revise a sentence authorized by statute if, “after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” The principal role of appellate review is to leaven the outliers, not to achieve a perceived correct sentence in each case. Conley v. State, 183 N.E.3d 276, 288 (Ind. 2022). Therefore, “we reserve our 7(B) authority for exceptional cases.” Faith v. State, 131 N.E.3d 158, 160 (Ind. 2019) (per curiam).

[69] “[S]entencing is principally a discretionary function in which the trial court's judgment should receive considerable deference.” Cardwell, 895 N.E.2d at 1222. “Such deference should prevail 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).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The two prongs of 7(B) review are “separate inquiries to ultimately be balanced in determining whether a sentence is inappropriate.” Lane v. State, 232 N.E.3d 119, 126 (Ind. 2024) (quoting Conner v. State, 58 N.E.3d 215, 218 (Ind. Ct. App. 2016)). “[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. at 127.

[70] The question “is not whether another sentence is more appropriate; rather, the question is whether the sentence imposed is inappropriate.” Helsley v. State, 43 N.E.3d 225, 228 (Ind. 2015) (quoting King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008)) (emphasis omitted). Whether we regard a sentence as 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.” Cardwell, 895 N.E.2d at 1224. The defendant bears the burden of persuading us a revised sentence is warranted. Cramer v. State, 240 N.E.3d 693, 698 (Ind. 2024).

[71] As discussed above, the trial court imposed the maximum sentence on Alaniz. Regarding the nature of the offense, Alaniz committed three acts of sexual misconduct against his fourteen-year-old stepdaughter, whom he had known since she was two years old. He was the only father she knew. Alaniz's acts were, in the State's words, a “gross abuse” of the trust E.H. and her mother placed in him. Appellee's Br. at 38. In June, Alaniz lured E.H. away from home, plied her with alcohol, attempted to give her a gas station “sex pill,” and took her to secluded locations in the countryside she did not recognize. He committed the first act while she was trapped on his lap helping steer a moving car. She cried, asked him to stop, and told him she was scared. Yet he persisted and committed a second offense while she was a passenger and he was driving. She was scared and wanted to go home. Instead, Alaniz took her to a third location, where he attempted a third act of sexual misconduct. In September, Alaniz showed E.H. how to inhale from a compressed air duster. When it did not produce the desired effect, he encouraged her to try again. She immediately felt sick. While she was disoriented, he picked her up, set her on the bathroom counter, and engaged in another act of sexual misconduct. After she went to her room, he followed her, apparently for his own sexual gratification. Nothing about the offense speaks of restraint or regard for E.H. Rather, Alaniz engaged in grooming behavior and persisted in the face of her resistance and expressions of fear and discomfort. All of this resulted in severe harm to E.H., including suffering from post-traumatic stress disorder and depression requiring psychiatric care.

[72] As to the character of the offender, Alaniz has a prior criminal history consisting of three misdemeanor convictions (operating while impaired, possession of paraphernalia, operating while intoxicated) and one felony conviction (assault on a police officer). These cases show a history of alcohol and illegal substance use. While on bond for this case, he failed to appear in court twice and assaulted a police officer in Michigan. His overall score on the Indiana Risk Assessment System placed him in the category of “high” risk to reoffend. Although several people spoke at the sentencing hearing about the positive aspects of Alaniz's character, our view of this testimony is tempered by our review of the manipulative, grooming behavior he engaged in and his gross abuse of the position of trust he held with E.H. In short, we do not see such substantial virtuous traits or persistent examples of good behavior to persuade us a sentence revision is warranted, especially when balanced with the nature of the offense. Alaniz's sentence is not inappropriate.

Conclusion

[73] Any error in the prosecutor's questioning about Alaniz's refusal to consent to a warrantless search was harmless beyond a reasonable doubt and did not rise to fundamental error. Sufficient evidence supports his convictions. The trial court did not abuse its discretion in sentencing Alaniz, either in the identification of aggravating factors or imposition of consecutive sentences. And Alaniz's sentence is not inappropriate in light of the nature of his offense and his character.

[74] Affirmed.

[75] I fully concur with the majority's holding that any error in the prosecutor's questions did not rise to the level of fundamental error, that the State presented sufficient evidence to support Alaniz's convictions, that the court did not abuse its discretion when it identified aggravating factors, and that Alaniz's character and the nature of the offenses do not warrant a revised sentence. However, I respectfully disagree with the majority's holding that Alaniz's actions in June did not constitute a single episode of criminal conduct.

[76] As the majority correctly notes, the statute defines “episode of criminal conduct” as “offenses or a connected series of offenses that are closely related in time, place, and circumstance.” Ind. Code § 35-50-1-2(b). And, as the majority discusses, in order to determine whether multiple offenses constitute a single episode of criminal conduct, we balance factors such as the time span over which the offenses occurred, whether the offenses occurred at different locations, whether each offense can stand along with reference to another, and whether the offenses are united by a common scheme or purpose. See Waldon v. State, 259 N.E.3d 318, 326 (Ind. Ct. App. 2025). The majority considered those factors and ultimately concluded that the offenses were distinct enough to not constitute a single episode of criminal conduct. I cannot agree.

[77] Here, after driving for about ten or twenty minutes, Alaniz stopped the car, had E.H. sit on his lap, and drove around while pressing his erect penis against E.H. After five or ten minutes of that, E.H. returned to the passenger seat, but Alaniz then attempted to force E.H. to consume an unknown pill. Thirty to forty-five minutes later, presumably the amount of time Alaniz expected the pill to take effect, he forced a sex toy into E.H.’s vagina, touching her vagina with his bare hand in the process. After, Alaniz threw the toy out of the window, drove E.H. to a grassy area where semi-trailers were parked, took E.H. into one of the trucks, and repeatedly kissed her.

[78] I acknowledge that the offenses took place in different locations and that each act could be proved without reference to the other. However, Alaniz's actions throughout the night were simply an escalation of his behavior to achieve his desired outcome of inappropriate sexual actions with E.H. Each time Alaniz was unsuccessful in his attempts, he expanded his efforts by driving her someplace new, supplying her with an unknown pill, and ultimately getting E.H. into the confines of a semi-trailer.

[79] Based on that conduct, I would hold that, while Alaniz's actions clearly support two convictions, the relatively short time span and common scheme of repeatedly attempting to engage in sexual conduct with E.H. demonstrate that his actions constituted a single episode of criminal conduct because they were closely related in time, place, and circumstance.

[80] Because the offenses constituted a single episode of criminal conduct, and because the most serious offense for which Alaniz was convicted was a Level 4 felony, the total consecutive term of his imprisonment on Counts 1 and 2 must be capped at fifteen years. See Ind. Code § 35-50-1-2(d)(6). As such, I would hold that the trial court abused its discretion when it sentenced Alaniz to eighteen and one-half years and would remand with instructions for the court to sentence him to an aggregate term of fifteen years on Counts 1 and 2.

[81] I concur in part and dissent in part.

FOOTNOTES

1.   At this point, Alaniz shrugged, gestured toward the door, and indicated he had to leave his phone outside the interview room (although the exact words are difficult to hear on the recording). It does not appear his cellphone was on his person.

2.   Ind. Code § 35-42-4-9(a)(1) (2019).

3.   I.C § 35-42-4-9(b)(1) (2019).

4.   The State charged Count 3 as occurring between September 1 and October 31, 2022; at trial, E.H. testified it occurred in September.

5.   I.C. § 7.1-5-7-8(a) (2019). The State charged Alaniz with a second count of furnishing alcohol to a minor, which the trial court later dismissed on the State's motion.

6.   In response to the juror question, Alaniz asked Lt. Phillips:Q: Just to clear up a few things, you keep talking about the app on his phone, but the officers did collect the recording devices from his home, is that correct?A: Correct.Q: But no attempts were made to look at anything that was on that recording?A: It would have been beyond my ability to enter, take apart the device, and attempt to connect to it. It would be beyond me how, so I made no attempt to.Id. at 155.

7.   Alaniz “emphasize[s] how important it is in Indiana to obtain valid consent prior to implicating important and well recognized Indiana constitutional rights,” Appellant's Br. at 21 (citing Pirtle v. State, 323 N.E.2d 634 (Ind. 1975)). But he does not develop a separate analysis of the issue under the Indiana Constitution or suggest how the analysis under our state constitution might differ from the analysis of the federal right. Accordingly, any such argument is waived for failure to make a cogent argument. See Ind. Appellate Rule 46(A)(8).

8.   Alaniz takes issue with the prosecutor's closing statement in rebuttal, especially the repeated references to Alaniz as “Lying Matt Alaniz” and insistence that Alaniz failed to speak the truth. See Appellant's Br. at 22 (citing Tr. Vol. 2 at 192–93). Alaniz sees these statements as an impermissible commentary on Alaniz's right to remain silent. However, in this case, Alaniz did not remain silent. He gave a lengthy interview to police, and the prosecutor is clearly referring to Alaniz's contradictory interview statements. See, e.g., Tr. Vol. 2 at 192 (“We heard him in the lengthy interview, multiple times lying, lying, lie, lie, lie.”).

9.   The State argues Alaniz waived this issue for appeal for failing to object in a pretrial motion, at the outset of trial, or in timely motion for directed verdict. See Appellee's Br. at 33. A claim of insufficiency of the evidence can be made for the first time on appeal. See Ind. Trial Rule 50(A) (criminal defendant may challenge sufficiency of evidence at trial, in a motion to correct error, or for the first time on appeal). In addition, it appears from the record Alaniz challenged the sufficiency of the evidence to support venue in a motion for directed verdict after presentation of evidence but before the jury retired for deliberations and before judgment. See Tr. Vol. 2 at 204. The issue is not waived.

10.   The State notes Alaniz's argument might be construed as raising an “incredible dubiosity” claim. The incredible dubiosity exception allows the reviewing court to reassess the factfinder's credibility determination when confronted with evidence that is “so unbelievable, incredible, or improbable that no reasonable person could ever reach a guilty verdict based upon that evidence alone.” Moore v. State, 27 N.E.3d 749, 751 (Ind. 2015). Alaniz does not present his argument in these terms or cite relevant authority. Accordingly, we do not address it as such.

11.   In this section of his brief, Alaniz commingles his arguments about the trial court's sentencing decision with his request we review and revise his sentence under Indiana Appellate Rule 7(B). Because Alaniz has cited relevant case law pertaining to this review, we address his arguments under the appropriate standard.

Kenworthy, Judge.

Tavitas, C.J., concurs. Bailey, J., concurs in part and dissents in part, with separate opinion.