Leobardo Mercado v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 31 2018, 7:48 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case. ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Marielena Duerring Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Kelly A. Loy Supervising Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA Leobardo Mercado, December 31, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1280 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Teresa L. Cataldo, Judge Trial Court Cause No. 20D03-1510-FA-23 Kirsch, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-1280 | December 31, 2018 Page 1 of 23 [1] Leobardo Mercado (“Mercado”) appeals his convictions and sentence for Class A felony attempted child molesting1 and Level 1 felony child molesting.2 He raises four issues, which we restate as follows: [2] I. Whether the trial court denied Mercado’s constitutional rights to present a defense and cross examine witnesses when it denied his request to ask the victim’s parents about their immigration status and denied his request to submit his bank records into evidence; [3] II. Whether the trial court abused its discretion when it allowed the victim’s step-father to testify about the victim’s reputation for truthfulness, and whether it committed fundamental error in allowing the victim’s mother to testify about the victim’s reputation for truthfulness; and [4] III. Whether Mercado’s aggregate sentence of eighty years, with seventy years executed, is inappropriate. We affirm in part and reverse in part. Facts and Procedural History [5] M.F., who was born in September of 2000, lived with her mother Laura (“Mother”), step-father Francisco (“Francisco”) (collectively “parents”), and her two younger siblings in Elkhart, Indiana and had lived there since she moved from Mexico at age six or seven. Tr. Vol. II at 55-58, 61, 107. Mother’s 1 See Ind. Code § 35-42-4-3(a)(1) (2007). 2 See Ind. Code § 35-42-4-3(a)(1) (2014). Court of Appeals of Indiana | Memorandum Decision 18A-CR-1280 | December 31, 2018 Page 2 of 23 sister Beatriz (“Beatriz”) lived in Chicago with her husband Mercado at this time, and M.F. referred to Mercado as “Uncle.” Id. at 59-61, 87, 144-45. Over the years, Mercado, Beatriz, and their children would visit M.F. and her family in Elkhart. They would stay in Mother’s and Francisco’s apartment during holidays, summer vacations, and for M.F.’s birthdays. Id. at 99, 145, 169, 220. Sometimes, Mercado and Beatriz would pick up M.F. in Elkhart and bring her to Chicago to spend time with them. Id. at 99, 110, 145. [6] Mercado began grooming M.F. at an early age. He and Beatriz treated M.F. differently than her siblings. They paid more attention to her, took her places that they did not take the other children, and bought her gifts that they would ...

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