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An Evansville man’s 12-year aggregate sentence for rape and one count of sexual battery was appropriate, given his prior criminal history and the nature of his sex crimes, but his criminal confinement and two additional sexual battery convictions violated his protection against double jeopardy, the Court of Appeals of Indiana has ruled in a partial reversal.
According to court records, Oscar Contreras Zamilpa and C.M. both resided at an assisted living facility in Evansville.
They lived in separate apartments on the third floor and would occasionally spend time together in a lobby located at the end of the hallway.
In February 2022, C.M. told Zamilpa that she was replacing a loveseat in her apartment with a new sofa and offered her old loveseat to him.
He said that he did not think he had enough room in his apartment but invited her to his apartment to see if there was enough room.
After C.M. entered Zamilpa’s apartment, he closed the door and shoved her against the wall. He took her walker and “slung” it into another room. Zamilpa then sexually assaulted C.M., despite her telling him to stop and to leave her alone.
The assault stopped when another resident knocked on Zamilpa’s apartment door.
Zamilpa answered the door, and the woman told Zamilpa that she had soup for him in her apartment.
Zamilpa and C.M. exited Zamilpa’s apartment shortly thereafter. Zamilpa left to eat his soup, and C.M. sat down in the lobby. Other residents stopped and talked with C.M. while she was sitting in the lobby, and she told them about the incident with Zamilpa.
Someone reported the incident using an anonymous tipline, and Officer Jacob Hassler of the Evansville Police Department went to the assisted living facility to investigate.
Hassler spoke with C.M. and advised her to go to the hospital.
At the hospital, a nurse performed a sexual assault examination on C.M. The nurse observed bruises on C.M.’s breasts and abrasions in C.M.’s vaginal area. The nurse also collected DNA samples from C.M. during the examination, and the samples revealed the presence of Zamilpa’s DNA on C.M.’s left breast, right breast, and neck.
The external genital swabs of C.M.’s vagina indicated the possible presence of male DNA, but the quantity was insufficient to determine whether the DNA belonged to Zamilpa.
Detective Robert Waller interviewed Zamilpa at the police station, and Zamilpa denied having sexual contact with C.M.
Waller noticed during the interview that Zamilpa’s fingernails were freshly cut.
The state charged Zamilpa with Level 3 felony attempted rape, Level 5 felony criminal confinement and three counts of Level 6 felony sexual battery.
A year later, in 2023, the state amended the charging information to change the Level 3 felony charge from attempted rape to rape.
The jury returned a guilty verdict and Zamilpa was ordered to serve all the sentences concurrently for an aggregate term of 12 years.
Zamilpa appealed.
The first issue brought on appeal was whether the trial court violated Zamilpa’s protection against substantive double jeopardy by entering convictions of both rape and criminal confinement and three counts of sexual battery.
The appellate court affirmed Zamilpa’s rape conviction, but reversed his criminal confinement conviction.
“Because neither the charging information nor the way the State presented the charges to the jury differentiated between the force Zamilpa used in raping C.M. and the additional degree of force meant to support the criminal confinement conviction, we hold the trial court erred in entering convictions of both rape and criminal confinement,” Judge Melissa May wrote.
The appellate court also reversed the Vanderburgh Superior Court’s entry of multiple convictions of sexual battery and remanded with instructions for the trial court to vacate two of the three convictions.
“The three sexual touches occurred during the same assault in the same apartment and the objective of each was to satisfy Zamilpa’s own sexual desires. Thus, they were part of the same continuous transaction, and the trial court should have entered only one conviction of sexual battery,” May wrote.
The second issue on appeal was whether Zamilpa’s sentence was inappropriate given the nature of his offenses and his character.
“The pre-sentence investigation report indicates Zamilpa was convicted of making a terroristic threat in California in 1997, and Zamilpa self-reported a second conviction involving an unspecified felony in California in 1979. Even though these past convictions are substantially removed in time from Zamilpa’s current offenses, they still reflect poorly on his character,” May wrote.
The appellate court wrote that it cannot say Zamilpa’s aggregate 12-year sentence was inappropriate.
Judges L. Mark Bailey and Paul Felix concurred in Oscar Contreras Zamilpa v. State of Indiana, 23A-CR-1309.
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