Jose V. Portillo Flores, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Statement of the Case

[1] Jose V. Portillo Flores (“Portillo Flores”) appeals, following a jury trial, his conviction for Level 6 felony strangulation.¹ Portillo Flores argues that: (1) the trial court violated his due process rights because he did not have adequate access to an interpreter at trial; (2) a portion of a witness’ testimony constituted fundamental error; and (3) his sentence is inappropriate. Concluding that: (1) the trial court did not violate his due process rights; (2) there was no fundamental error; and (3) his sentence is not inappropriate, we affirm the trial court's judgment and the sentence imposed.

[2] We affirm.

Issues

1. Whether the trial court violated Portillo Flores’ due process rights.

2. Whether a portion of a witness’ testimony constituted fundamental error.

3. Whether Portillo Flores’ sentence is inappropriate.

Facts 2

[3] At approximately 6:30 p.m. on November 6, 2023, Christopher Johnston (“Johnston”) was walking home from a gas station. Johnston was a nearby neighbor of Portillo Flores, who had limited English proficiency. While walking home, Johnston saw his neighbors, Portillo Flores and his girlfriend T.C. (“T.C.”), standing outside of their home next to a car. Specifically, Johnston saw Portillo Flores choking T.C. up against a car and punching T.C. Johnston then saw T.C. fall to the ground and saw Portillo Flores punch and kick her “at least a dozen” times. (Tr. Vol. 2 at 49).

[4] Johnston rushed back to his home, which was only a couple houses down from Portillo Flores’ home, and told his wife to call the police. An Elkhart Police Department officer (“the officer”), who was wearing a body camera, arrived on the scene a few minutes later. When the officer exited his car, he saw Portillo Flores and T.C. on their front porch and then saw them “r[u]n inside the house and shut the door.” (Tr. Vol. 2 at 66). As the officer approached the house, T.C. exited the house. The officer observed that T.C. had “clear injuries to her forehead,” bruising on her cheeks and lower jaw, and “scratches on ․ both sides of her neck[.]” (Tr. Vol. 2 at 66). The officer observed that the scratches on T.C.’s neck extended from her hairline to the front of her neck. Additionally, the officer noticed that T.C. was bleeding and looked upset.

[5] T.C. told the officer that Portillo Flores had gone inside, and the officer entered the house and called for Portillo Flores. Portillo Flores came out of a room of the house and responded in Spanish to the officer's questions. The officer placed Portillo Flores in handcuffs and then moved him to a police car. When the officer asked T.C. what had happened, she told the officer that she and Portillo Flores “were just wrestling around[.]” (State's Ex. 1 at 06:06-06:08). T.C. also told the officer that, while wrestling with Portillo Flores, she had fallen and had hit her face on the side of the car.

[6] An Elkhart Police Department Chaplin who spoke Spanish (“the Chaplin”) arrived on the scene and asked Portillo Flores what had happened. Portillo Flores told the Chaplin that T.C. had anxiety attacks and had “looked like she was gonna pass out” so he had grabbed her by the neck. (Tr. Vol. 2 at 92). Additionally, Portillo Flores explained to the Chaplin that T.C. had also grabbed him by the neck, and they had both fallen down and had “tossed around [on] the ground[.]” (Tr. Vol. 2 at 92).

[7] The State ultimately charged Portillo Flores with Level 6 felony strangulation and Class A misdemeanor domestic battery. In August 2025, the trial court held a two-day jury trial. At trial, two certified Spanish interpreters (“the interpreters”) assisted by translating the proceedings from English to Spanish. Specifically, the interpreters explained to the trial court that they would translate everything said “to facilitate communication and understanding to the best knowledge possible[.]” (Tr. Vol. 2 at 5). The trial court asked Portillo Flores’ counsel if she had any concerns about the arrangement, and she noted that the interpreters were standing too far away from the defense table and asked how the interpreters would handle conversations between her and Portillo Flores. One of the interpreters explained that “[a]ll [Portillo Flores] ha[d] to do [wa]s raise his hand[,]” and “one of [them]” would be there in “a second” to interpret. (Tr. Vol. 2 at 6). The interpreters also explained to Portillo Flores’ counsel that, if Portillo Flores wanted to confer with his counsel, the interpreter would either write down what Portillo Flores had said or tell Portillo Flores’ counsel what Portillo Flores had said. The interpreters reiterated that, if Portillo Flores raised his hand, one of the interpreters would come to his table and immediately interpret any conversation between Portillo Flores and his counsel. When the interpreters asked Portillo Flores’ counsel if that made sense, she responded in the affirmative.

[8] Further, the trial court asked Portillo Flores if he understood that “if [he had] something that [he] need[ed] to speak with [his] Attorney about[,]” he just needed to raise his hand. (Tr. Vol. 2 at 10). Portillo Flores responded that he understood. Thereafter, the trial court asked both parties if they were ready to proceed, and both parties responded that they were. Then, the trial court began the jury trial.

[9] Johnston testified that he had seen Portillo Flores choke and hit T.C. The officer testified that he had observed “fingernail gauging” on T.C.’s neck and testified that this was “one of those things that we [have] see[n] in strangulation [cases][.]” (Tr. Vol. 2 at 81). T.C. testified at the trial, and during her testimony, the following exchange occurred:

[STATE:] Do you see Mr. Flores in the courtroom here today?

[T.C.:] Yes. He's right over there.

[STATE:] Can you describe where he's sitting in the courtroom and identify an article of clothing?

[T.C.:] He's sitting right over there next to his Public Defender Chelsey.

(Tr. Vol. 2 at 108-09). Portillo Flores did not object to T.C.’s testimony. T.C. testified that Portillo Flores was not violent with her or trying to hurt her.

[10] At the conclusion of the jury trial, the jury found Portillo Flores guilty on both counts. At no point during the jury trial did Portillo Flores or his counsel express any other concerns about the interpreters.

[11] Portillo Flores’ presentence investigation report (“PSI”) revealed that Portillo Flores has a criminal history. Specifically, Portillo Flores has four misdemeanor convictions, including a 2021 Class C misdemeanor conviction for knowingly or intentionally operating a motor vehicle without a license, a 2022 Class A misdemeanor conviction for operating while intoxicated endangering a person, a 2022 Class C misdemeanor conviction for operating while intoxicated with a BAC greater than 0.08, and a 2023 Class A misdemeanor conviction for operating a motor vehicle without ever receiving a license. Additionally, Portillo Flores has violated his probation multiple times. Further, the State charged Portillo Flores with operating while intoxicated and domestic battery while this case was pending.

[12] In October 2025, the trial court held a sentencing hearing. Portillo Flores’ counsel noted that Portillo Flores suffered from various infirmities, which included an epilepsy diagnosis, stomach bacteria, and left shoulder issues. Portillo Flores’ counsel requested a one-year sentence and asked that the trial court order Portillo Flores to serve that sentence on probation due to his health issues.

[13] The State argued that Portillo Flores had a criminal history, which included multiple probation violations. Additionally, the State asked for an executed sentence.

[14] The trial court found as an aggravating circumstance: (1) Portillo Flores’ criminal history; (2) his prior probation violations; and (3) his new charge of operating a vehicle while intoxicated while this case was pending. As a mitigating circumstance, the trial court found that imprisonment would result in an undue hardship to then forty-three-year-old Portillo Flores because of his health conditions. Ultimately, the trial court sentenced Portillo Flores to a two (2) year sentence, fully executed at the Indiana Department of Correction (“the DOC”) for his Level 6 felony strangulation conviction. The trial court vacated the Class A misdemeanor domestic battery conviction due to double jeopardy concerns.

[15] Portillo Flores now appeals.

Decision

[16] Portillo Flores argues that: (1) the trial court violated his due process rights because he did not have adequate access to an interpreter at trial; (2) a portion of T.C.’s testimony constituted fundamental error; and (3) his sentence is inappropriate. We address each argument in turn.

1. Due Process - Interpreters

[17] Portillo Flores first argues that his due process rights were violated because he did not have adequate interpreters to help him communicate with his trial counsel. At the outset, we note that at trial, Portillo Flores made no objection to the trial court regarding his interpreters or the procedure used to access them. We note that “a party on appeal may waive a constitutional claim, including a claimed violation of due process rights, by raising it for the first time on appeal.” In re N.G., 51 N.E.3d 1167, 1173 (Ind. 2016). Thus, we conclude that any argument Portillo Flores raises on appeal challenging the adequacy of his interpreters is waived.

[18] Waiver notwithstanding, our Indiana Supreme Court has explained that there are two types of interpreters that can serve in a criminal proceeding: (1) “defense interpreters, who simultaneously translate English proceedings for non-English-speaking defendants[;]” and (2) “proceedings interpreters, who translate non-English testimony for the whole court.” Arrieta v. State, 878 N.E.2d 1238, 1239 (Ind. 2008). “It is axiomatic that a non-English-speaking criminal defendant's rights cannot be preserved without the assistance of what we have termed a ‘defense interpreter.’ ” Id. at 1243 (cleaned up). A non-English-speaking defendant relies on his interpreter to understand the trial, to communicate with his attorney, and to communicate with the court. Id. at 1242. “For these defendants, interpreters are necessary to implement fundamental notions of due process such as the right to be present at trial, the right to confront one's accusers, and the right to counsel.” Id. at 1242-43 (cleaned up).

[19] Portillo Flores specifically argues that his due process rights were violated because he “could not meaningfully participate in his own defense and communicate with his trial counsel during trial.” (Portillo Flores’ Br. 7). Specifically, Portillo Flores argues that the fact that he had to raise his hand to access an interpreter “chill[ed] his attempts to consult with counsel during the trial.” (Portillo Flores’ Br. 9). We disagree.

[20] Our review of the record reveals that there were two certified interpreters at Portillo Flores’ trial and that the interpreters translated the entirety of the proceedings so that Portillo Flores could understand. Additionally, the interpreters explained to Portillo Flores’ counsel that, if Portillo Flores wanted to confer with his counsel, the interpreter would either write down what Portillo Flores had said or tell Portillo Flores’ counsel what Portillo Flores had said. The interpreters reiterated that, if Portillo Flores raised his hand, one of the interpreters would come to his table and immediately interpret any conversation between Portillo Flores and his counsel. Also, the record reveals that Portillo Flores’ counsel and Portillo Flores both acknowledged and understood the arrangement.

[21] Further, we note that Portillo Flores made no argument specifically showing a point at trial where he did not have access to his trial counsel, and our review of the record revealed nothing to indicate that Portillo Flores did not have access to his trial counsel. We conclude that Portillo Flores’ due process rights were not violated because a procedure was in place to allow Portillo Flores to communicate with his counsel and because Portillo Flores was meaningfully present, able to confront his accusers, and represented by counsel. See Martinez Chavez v. State, 534 N.E.2d 731, 737 (Ind. 1989) (holding that a defendant's due process rights were not violated when an interpreter facilitated communication between the defendant and his counsel during recess at trial and the defendant was meaningfully present, able to confront his accusers, and represented by counsel), reh'g denied.

2. Fundamental Error

[22] Next, Portillo Flores argues that T.C.’s statement at trial that Portillo Flores was represented by a public defender amounted to fundamental error. In doing so, Portillo Flores concedes that he did not lodge a contemporaneous objection to T.C.’s statement and argues that her statement amounted to fundamental error.

[23] The fundamental error exception “is extremely narrow and encompasses only errors so blatant that the trial judge should have acted independently to correct the situation.” Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018) (internal quotation marks and citation omitted). “An error is fundamental, and thus reviewable on appeal, if it made a fair trial impossible or constituted a clearly blatant violation of basic and elementary principles of due process presenting an undeniable and substantial potential for harm.” Id. (internal quotation marks and citation omitted). “Harm is not shown by the fact that the defendant was ultimately convicted; rather harm is found when error is so prejudicial as to make a fair trial impossible.” Hoglund v. State, 962 N.E.2d 1230, 1239 (Ind. 2012), reh'g denied. “Fundamental error is meant to permit appellate courts a means to correct the most egregious and blatant trial errors that otherwise would have been procedurally barred, not to provide a second bite at the apple for defense counsel who ignorantly, carelessly, or strategically fail to preserve an error.” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014), reh'g denied, abrogated on other grounds by Konkle v. State, 253 N.E.3d 1068 (Ind. 2025).

[24] Portillo Flores does not articulate why the jury hearing T.C.’s statement that he was sitting next to his public defender made a fair trial impossible, nor does he explain how T.C.’s statements are an example of the most egregious and blatant trial error. Instead, Portillo Flores makes conclusory arguments that T.C.’s statement was improper and that he had “suffered a fundamental deprivation of his right to a fair trial.” (Portillo Flores’ Br. 14).³

[25] We have previously explained that “[f]undamental error in the erroneous admission of evidence might include a claim that there has been a fabrication of evidence, willful malfeasance on the part of the investigating officers, or otherwise that the evidence is not what it appears to be.” Nix v. State, 158 N.E.3d 795, 801 (Ind. Ct. App. 2020) (cleaned up), trans. denied. “But absent an argument along those lines, the claimed error does not rise to the level of fundamental error.” Id. (cleaned up). Here, Portillo Flores has failed to articulate any argument alleging that T.C.’s statement amounted to a fabrication or misrepresentation of the evidence, and he has failed to meet the high burden that fundamental error requires. Therefore, we conclude that Portillo Flores’ arguments challenging T.C.’s statements at trial did not rise to the level of fundamental error. See id.

3. Inappropriate Sentence

[26] Portillo Flores also argues that his sentence is inappropriate. Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized by statute if, after due consideration of the trial court's decision, we find that the sentence is inappropriate in light of the nature of the offense and the character of the offender. The defendant bears the burden of persuading this Court that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as inappropriate turns on 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 v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Sentence modification under Rule 7(B) is reserved for a “rare and exceptional case.” Skeens v. State, 191 N.E.3d 916, 923 (Ind. Ct. App. 2022) (cleaned up).

[27] When determining whether a sentence is inappropriate, we acknowledge that the advisory sentence is the starting point the Legislature has selected as an appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081. Here, a jury found Portillo Flores guilty of Level 6 felony strangulation. The sentencing range for a Level 6 felony is between six (6) months and two and one-half (21/212) years, and the advisory sentence is one (1) year. I.C. § 35-50-2-7(b). The trial court sentenced Portillo Flores to two (2) years fully executed at the DOC for his Level 6 felony strangulation conviction, which is lower than the statutory maximum.

[28] With regard to the nature of the offense, we note that Portillo Flores choked T.C. until she fell to the ground. Then, he punched and kicked her at least a dozen times. T.C. had clear injuries on her forehead, bruising on her cheeks and lower jaw, fingernail gauging on her neck, and scratches on both sides of her neck. The scratches on T.C.’s neck extended from her hairline to the front of her neck. Additionally, T.C. was bleeding and appeared upset.

[29] With regard to his character, we note that Portillo Flores has a criminal history that includes four misdemeanor convictions. Further, Portillo Flores has violated his probation multiple times. Additionally, we note that the State charged Portillo Flores with new crimes while this case was pending. Portillo Flores’ former contacts with the law have not caused him to reform himself. See Jenkins v. State, 909 N.E.2d 1080, 1086 (Ind. Ct. App. 2009), trans. denied.

[30] Based on the nature of the offenses and his character, Portillo Flores has failed to persuade this Court that his sentence is inappropriate. We further note that this is simply not one of those rare and exceptional cases for which a sentence modification under Rule 7(B) is reserved. Therefore, we affirm Portillo Flores’ sentence.

[31] Affirmed.

FOOTNOTES

1.   Indiana Code § 35-42-2-9.

3.   In support of this position, Portillo Flores directs us to Jackson v. State, 698 N.E.2d 809 (Ind. Ct. App. 1998), trans. denied, which was a case where a defendant motioned for a mistrial after the State had mentioned, during its closing argument to the jury, that a defendant was represented by a public defender. The Jackson case addressed whether the prosecutor's statement put the defendant in grave peril and does not discuss fundamental error. Thus, Jackson does not advance Portillo Flores’ fundamental error argument.

Pyle, Judge.

Bradford, J., and Kenworthy, J., concur.