Joseph Esparza v. State of Indiana (mem. dec.) ( 2019 )


Menu:
  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                        FILED
    regarded as precedent or cited before any                               Feb 13 2019, 9:24 am
    court except for the purpose of establishing
    CLERK
    the defense of res judicata, collateral                                  Indiana Supreme Court
    Court of Appeals
    estoppel, or the law of the case.                                             and Tax Court
    ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    Mark Small                                               Curtis T. Hill, Jr.
    Indianapolis, Indiana                                    Attorney General of Indiana
    Matthew B. MacKenzie
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Joseph Esparza,                                          February 13, 2019
    Appellant-Defendant,                                     Court of Appeals Case No.
    48A02-1310-CR-889
    v.                                               Appeal from the Madison Circuit
    Court
    State of Indiana,                                        The Honorable Dennis D. Carroll,
    Appellee-Plaintiff.                                      Judge
    Trial Court Cause No.
    48C06-1208-FB-1530
    Bradford, Judge.
    Court of Appeals of Indiana | Memorandum Decision 48A02-1310-CR-889 | February 13, 2019          Page 1 of 11
    Case Summary
    [1]   In March of 2012, Joseph Esparza sexually assaulted his daughter’s fifteen-year-
    old friend by penetrating her vagina with his fingers and penis. He was
    subsequently convicted of two counts of Class B felony sexual misconduct with
    a minor and sentenced to an aggregate seventeen-year term of incarceration
    with four years suspended to probation. Following the reinstatement of his
    direct appeal,1 Esparza argues that (1) the trial court committed fundamental
    error when it allowed the jury to hear unchallenged statements about his alleged
    flight from the jurisdiction, (2) his convictions violate the prohibitions against
    double jeopardy, and (3) the evidence is insufficient to sustain his convictions.
    We affirm.
    Facts and Procedural History
    [2]   In March of 2012, fifteen-year-old N.H. lived with her foster mother. C.E. was
    N.H.’s friend and N.H. would frequently go over to and spend the night at
    C.E.’s house. Esparza is C.E.’s father. N.H. viewed Esparza as a father-figure
    after living with C.E. and Esparza for a short period of time.
    1
    Esparza requested that his direct appeal be dismissed and that he be granted permission to file a Davis-
    Hatton post-conviction petition. In subsequently requesting that his direct appeal be reinstated, Esparza
    indicated that he had “determined that post-conviction relief was not in his best interests at this time and the
    post-conviction court ha[d] dismissed his petition without prejudice.” April 17, 2018 Order Reinstating
    Appeal.
    Court of Appeals of Indiana | Memorandum Decision 48A02-1310-CR-889 | February 13, 2019             Page 2 of 11
    [3]   On March 23, 2012, N.H. went to C.E.’s home to “hang out.” Tr. p. 332.
    Tracy Esparza, Esparza’s then-girlfriend and now wife, picked N.H. up from
    home between 4:00 and 5:00 p.m. On the way back to Esparza’s home, Tracy
    stopped at the Keg N’ Bottle where she purchased alcohol for C.E. and N.H.
    Throughout the evening, N.H. and C.E. were drinking and hanging out with
    C.E.’s brother and his girlfriend, L.S., Desmond Soverns, Tracy, and Esparza.
    [4]   At some point, N.H. went upstairs to C.E.’s bedroom. As N.H. was standing
    looking in the mirror, Esparza came into the room, shut and locked the door,
    and walked up behind her. Esparza whispered “shhh” in N.H.’s ear as he put
    his hands down her pants. Tr. p. 340. N.H. felt Esparza’s fingers go “inside”
    her vagina. Tr. p. 341. Esparza continued to move his fingers as N.H. said “no
    Joe, no.” Tr. p. 341. Esparza then pushed N.H. back onto C.E.’s bed, pulled
    down her pants and undergarments, climbed on top of N.H., and inserted his
    penis into N.H.’s vagina. Esparza continued moving his penis in and out of
    N.H.’s vagina even as N.H. repeated “no Joe, no.” Tr. p. 343. Esparza did not
    remove his penis until he and N.H. heard C.E. “banging on the bedroom door”
    yelling N.H.’s name and telling her to open the door. Tr. p. 344. After Esparza
    stopped, N.H. pulled her undergarments and pants up. Esparza hid in C.E.’s
    closet wearing only shorts. After N.H. left the room, L.S. observed Esparza
    come out of C.E.’s closet wearing only shorts.
    [5]   Once outside, N.H. called her boyfriend, asked him to come get her, and
    accused Esparza of raping her. C.E., L.S., Soverns, Tracy, and Esparza heard
    N.H. accuse Esparza of raping her. Esparza did not deny the allegation. After
    Court of Appeals of Indiana | Memorandum Decision 48A02-1310-CR-889 | February 13, 2019   Page 3 of 11
    N.H. attempted to contact her father, C.E. took N.H.’s phone away from her,
    causing a fight between C.E. and N.H. While C.E. and N.H. were fighting,
    Esparza and Tracy left the home.
    [6]   N.H.’s boyfriend notified N.H.’s foster mother of what N.H. had told him.
    After unsuccessfully attempting to call N.H., N.H.’s foster mother contacted
    Esparza and Tracy, who indicated that they were not home. N.H.’s foster
    mother went to Esparza’s home and checked on N.H. before reporting the
    alleged assault to police.
    [7]   Investigating officers subsequently learned that prior to leaving the home,
    Esparza instructed Soverns to tell law enforcement that he and Tracy were not
    home at the time of the alleged sexual assault. Esparza also instructed C.E. and
    L.S. to lie to police. L.S. initially lied to police, but eventually admitted both
    that Esparza had instructed her to lie and that N.H. had accused Esparza of
    raping her.
    [8]   On August 16, 2012, the State charged Esparza with two counts of Class B
    felony sexual misconduct with a minor. Esparza was found guilty of both
    counts following a jury trial. The trial court then sentenced him to seventeen
    years with four years suspended to probation.
    Discussion and Decision
    Court of Appeals of Indiana | Memorandum Decision 48A02-1310-CR-889 | February 13, 2019   Page 4 of 11
    I. Fundamental Error
    [9]    Esparza contends that the trial court committed fundamental error when it
    allowed the jury to hear unchallenged statements about his alleged flight from
    the jurisdiction.
    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.
    These errors create an exception to the general rule that a party’s
    failure to object at trial results in a waiver of the issue on appeal.
    This exception, however, is extremely narrow and encompasses
    only errors so blatant that the trial judge should have acted
    independently to correct the situation. At the same time, 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) (internal citations and
    quotations omitted).
    [10]   Esparza’s argument seems to be that it was fundamental error for the trial court
    to allow the deputy prosecutor to make limited references to the fact that
    Esparza was recovered by federal marshals in Tennessee after the underlying
    charges were filed but not to somehow elicit unoffered testimony that he had
    previously left and returned to the jurisdiction on his own accord. As Esparza
    acknowledges, flight may be considered as consciousness of guilt. Bennett v.
    State, 
    883 N.E.2d 888
    , 892 (Ind. Ct. App. 2008), trans. denied. Esparza did not
    object to the deputy prosecutor’s statements referring to his alleged flight from
    Court of Appeals of Indiana | Memorandum Decision 48A02-1310-CR-889 | February 13, 2019   Page 5 of 11
    the jurisdiction and has not alleged that his trial counsel was ineffective for
    failing to challenge the deputy prosecutor’s statements relating to his alleged
    flight or presented any explanation on appeal as to how he was supposedly
    harmed by these statements. Instead, in making this argument, Esparza cites to
    statements made by Tracy during a pretrial hearing on the State’s petition to
    revoke his bail indicating that he had previously left and returned to the
    jurisdiction on his own accord. He appears to argue that the trial court
    committed fundamental error by failing to elicit testimony similar to Tracy’s
    pretrial statements during trial. The trial court, however, had no duty to do so.
    Further, even if Tracy’s statements had been admitted during trial, we fail to see
    how these statements would have had any impact on the outcome of trial. As
    such, we conclude that Esparza has failed to establish error, much less
    fundamental error.
    II. Double Jeopardy
    [11]   Esparza next contends that his convictions for two counts of Class B felony
    sexual misconduct with a minor violate both the Federal and Indiana
    constitutional prohibitions against double jeopardy. “[D]ouble jeopardy
    protection prohibits twice subjecting an accused to the risk that he will be
    convicted of a single crime.” Garrett v. State, 
    992 N.E.2d 710
    , 721 (Ind. 2013).
    In claiming that his convictions violate the prohibitions against double
    jeopardy, Esparza argues that because the charged behavior occurred during a
    single short episode of criminal conduct, the jury must have relied on the same
    evidence to find him guilty of both offenses. We disagree.
    Court of Appeals of Indiana | Memorandum Decision 48A02-1310-CR-889 | February 13, 2019   Page 6 of 11
    [12]   While Esparza mentions both the Fifth Amendment to the United States
    Constitution and Article 1, Section 14 of the Indiana Constitution in setting
    forth his double jeopardy claim, his argument is based solely upon case law
    relating to Article 1, Section 14 and he makes no independent argument relating
    to the federal constitution. As such, we will limit our review to Esparza’s
    argument relating to the Indiana Constitution.2
    Article 1, Section 14 of the Indiana Constitution provides that
    “[n]o person shall be put in jeopardy twice for the same offense.”
    In Richardson v. State, 
    717 N.E.2d 32
     (Ind. 1999), our Supreme
    Court concluded that two or more offenses are the same offense
    in violation of Article I, Section 14 if, with respect to either the
    statutory elements of the challenged crimes or the actual evidence
    used to obtain convictions, the essential elements of one
    challenged offense also establish the essential elements of another
    challenged offense. Under the actual evidence test, we examine
    the actual evidence presented at trial in order to determine
    whether each challenged offense was established by separate and
    distinct facts. Id. at 53. To find a double-jeopardy violation
    under this test, we must conclude that there is “a reasonable
    possibility that the evidentiary facts used by the fact-finder to
    establish the essential elements of one offense may also have
    been used to establish the essential elements of a second
    challenged offense.” Id.
    2
    Even if Esparza had adequately raised a Fifth Amendment claim, we note that such a claim would fail. In
    Blockburger v. United States, 
    284 U.S. 299
     (1932), the United States Supreme Court announced the now well-
    established test for determining federal double jeopardy claims. “Under the Blockburger test, a defendant’s
    conviction upon multiple offenses will not be precluded by double jeopardy principles under the federal
    constitution if each statutory offense ‘requires proof of a fact which the other does not.’” Brown v. State, 
    912 N.E.2d 881
    , 892 (Ind. Ct. App. 2009) (quoting Blockburger, 284 U.S. at 304). Each of Esparza’s convictions
    required proof of a fact which the other did not, i.e., penetration by Esparza’s fingers and penetration by
    Esparza’s penis.
    Court of Appeals of Indiana | Memorandum Decision 48A02-1310-CR-889 | February 13, 2019             Page 7 of 11
    Vermillion v. State, 
    978 N.E.2d 459
    , 464 (Ind. Ct. App. 2012).
    [13]   In Vermillion, the defendant was charged with two distinct acts of sexual
    misconduct. 
    Id.
     The victim’s testimony established distinct evidence for each
    count, punctuated by her repeated requests that the defendant stop touching
    her. 
    Id.
     On appeal, we concluded that the State established that the defendant
    committed two separate offenses based on distinct facts and there was no
    reasonable possibility that the jury used the same evidentiary facts to establish
    both offenses. Id. at 465. As such, there was no double-jeopardy violation. Id.
    [14]   Likewise, here, N.H. testified that Esparza committed two distinct acts of
    sexual misconduct. The first was Esparza placing his fingers inside her clothing
    and inserting his fingers into her vagina. The second was Esparza forcing her
    down onto his daughter’s bed, removing her pants, and inserting his penis into
    her vagina. Like the victim in Vermillion, N.H. testified that her repeated
    requests that Esparza stop were ignored. Esparza only stopped after his
    daughter and L.S. began knocking on the locked bedroom door trying to find
    N.H. As was the case in Vermillion, the State established that Esparza
    committed two separate offenses based on distinct facts. Because there is no
    reasonable possibility that the jury used the same evidentiary facts to establish
    the essential elements of both charges, there is no double-jeopardy violation.
    See id.
    III. Sufficiency of the Evidence
    [15]   Esparza last contends that the evidence is insufficient to sustain his convictions.
    Court of Appeals of Indiana | Memorandum Decision 48A02-1310-CR-889 | February 13, 2019   Page 8 of 11
    When reviewing the sufficiency of the evidence to support a
    conviction, appellate courts must consider only the probative
    evidence and reasonable inferences supporting the verdict. It is
    the fact-finder’s role, not that of appellate courts, to assess
    witness credibility and weigh the evidence to determine whether
    it is sufficient to support a conviction. To preserve this structure,
    when appellate courts are confronted with conflicting evidence,
    they must consider it most favorably to the trial court’s ruling.
    Appellate courts affirm the conviction unless no reasonable fact-
    finder could find the elements of the crime proven beyond a
    reasonable doubt. It is therefore not necessary that the evidence
    overcome every reasonable hypothesis of innocence. The
    evidence is sufficient if an inference may reasonably be drawn
    from it to support the verdict.
    Drane v. State, 
    867 N.E.2d 144
    , 146–47 (Ind. 2007) (citations, emphasis, and
    quotations omitted). A conviction may be based on the uncorroborated
    testimony of a single witness “if the testimony is sufficient to convince the trier
    of fact beyond a reasonable doubt.” Robinson v. State, 
    446 N.E.2d 1287
    , 1291
    (Ind. 1983) (providing that a victim’s uncorroborated testimony was sufficient
    to sustain the defendant’s conviction for child molesting).
    [16]   In challenging the sufficiency of the evidence to sustain his convictions, Esparza
    asks us to re-evaluate N.H.’s testimony based upon the incredible dubiosity
    rule.
    This rule is applicable only when a lone witness offers inherently
    contradictory testimony that is equivocal or the result of coercion
    and there is a complete lack of circumstantial evidence of the
    appellant’s guilt. To interfere with the jury’s authority to judge
    witness credibility and evaluate evidence, the court must be
    presented with testimony which runs counter to human
    Court of Appeals of Indiana | Memorandum Decision 48A02-1310-CR-889 | February 13, 2019   Page 9 of 11
    experience and that reasonable persons could not believe.… The
    incredible dubiosity test is a difficult standard to meet, one that
    requires great ambiguity and inconsistency in the evidence.
    Edwards v. State, 
    753 N.E.2d 618
    , 622 (Ind. 2001) (internal citations and
    quotations omitted).
    [17]   Review of the record reveals that N.H.’s testimony was not incredibly dubious.
    N.H.’s testimony was consistent and was partially corroborated by other
    evidence in the record. N.H. testified that on the night in question, she was at
    Esparza’s house to spend time with her friend, his daughter, C.E. At some
    point, N.H. went upstairs to C.E.’s room. N.H. was standing looking in the
    mirror in C.E.’s room when Esparza came into the room, shut and locked the
    door, and walked up behind her. Esparza whispered “shhh” in N.H.’s ear as he
    put his hands down her pants. Tr. p. 340. N.H. felt Esparza’s fingers go
    “inside” her vagina. Tr. p. 341. Esparza continued to move his fingers as N.H.
    said “no Joe, no.” Tr. p. 341. Esparza then pushed N.H. back onto C.E.’s bed,
    pulled down her pants and undergarments, climbed on top of N.H., and
    inserted his penis into N.H.’s vagina. Esparza continued moving his penis in
    and out of N.H.’s vagina even as N.H. continued to say “no Joe, no.” Tr. p.
    343. Esparza did not remove his penis until he heard C.E. “banging on the
    bedroom door” yelling N.H.’s name and telling her to open the door. Tr. p.
    344. After Esparza stopped, N.H. pulled her undergarments and pants up while
    Esparza hid in C.E.’s closet wearing only shorts.
    Court of Appeals of Indiana | Memorandum Decision 48A02-1310-CR-889 | February 13, 2019   Page 10 of 11
    [18]   While there was no evidence corroborating N.H.’s account of what happened
    inside C.E.’s bedroom, there was ample evidence corroborating other aspects of
    N.H.’s testimony. For instance, there was evidence in the record corroborating
    N.H.’s testimony that prior to the incidents involving Esparza, she and C.E.
    had been drinking alcohol that had been provided by Tracy. In addition, N.H.
    testified that once C.E. opened the door, she immediately left the room. This
    testimony was corroborated by L.S.’s testimony that once C.E. unlocked and
    opened the door to her bedroom, N.H. “walked straight out of the bedroom and
    walked downstairs.” Tr. p. 585. Once in the bedroom, L.S. observed Esparza
    come out of C.E.’s closet wearing only shorts. Other evidence also supported
    N.H.’s testimony that she eventually became involved in a fight with C.E. after
    C.E. took her phone away as N.H. was trying to report Esparza’s actions.
    N.H.’s credibility is also strengthened by the fact that Soverns and L.S. both
    admitted that Esparza attempted to persuade them to lie to police and say that
    he was not present in the home at the time when N.H. was assaulted.
    [19]   N.H.’s testimony was both consistent and sufficient to convince the jury beyond
    a reasonable doubt. Esparza’s contention to the contrary amounts to a request
    to reweigh N.H.’s credibility and the evidence, which we will not do. See
    Stewart v. State, 
    768 N.E.2d 433
    , 435 (Ind. 2002) (“We do not reweigh the
    evidence or assess the credibility of witnesses.”).
    [20]   The judgment of the trial court is affirmed.
    Najam, J., and Altice, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 48A02-1310-CR-889 | February 13, 2019   Page 11 of 11
    

Document Info

Docket Number: 48A02-1310-CR-889

Filed Date: 2/13/2019

Precedential Status: Precedential

Modified Date: 4/17/2021