Tony Arguello v. State of Indiana (mem. dec.) ( 2017 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D), this                             FILED
    Memorandum Decision shall not be regarded as
    Aug 24 2017, 6:44 am
    precedent or cited before any court except for the
    purpose of establishing the defense of res judicata,                    CLERK
    Indiana Supreme Court
    collateral estoppel, or the law of the case.                           Court of Appeals
    and Tax Court
    ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
    Scott H. Duerring                                      Curtis T. Hill, Jr.
    South Bend, Indiana                                    Attorney General of Indiana
    James B. Martin
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Tony Arguello,                                             August 24, 2017
    Appellant-Defendant,                                       Court of Appeals Case No.
    71A03-1703-CR-654
    v.                                                 Appeal from the St. Joseph Superior
    Court
    State of Indiana,                                          The Hon. Jeffrey L. Sanford, Judge
    Trial Court Cause No.
    Appellee-Plaintiff.
    71D03-1605-F1-11
    Bradford, Judge.
    Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-654 | August 24, 2017       Page 1 of 10
    Case Summary
    [1]   In November of 2014, Ashley Wharton, her husband, and her three children,
    including four-year-old B.W. and six-year-old A.W., moved into the home of
    Clarice Wharton, her mother-in-law. Clarice was living there with Appellant-
    Defendant Tony Arguello. Between November of 2014 and May of 2016,
    Arguello inserted his penis into A.W.’s vagina, performed oral sex on her, and
    digitally penetrated her vagina and anus. Also during that period, Arguello
    submitted to oral sex by B.W. and performed oral sex on him. In an interview
    with a police detective, Arguello confessed to committing the above acts with
    A.W.
    [2]   The State charged Arguello with seven counts of Level 1 felony child molesting,
    and, following a jury trial, he was convicted of six counts and received an
    aggregate sentence of 160 years of incarceration. Arguello contends that
    fundamental error occurred when (1) a sexual assault nurse examiner testified
    that A.W. told her that someone had anally penetrated her with his penis and
    (2) the State failed to satisfy the corpus delicti requirement for three of the charges
    against him. Because we disagree, we affirm.
    Facts and Procedural History
    [3]   Ashley, her husband, and her three children, A.W., B.W., and a younger son
    moved into Clarice’s home at 1729 Robinson Street, South Bend, in November
    of 2014. Clarice and her boyfriend Arguello lived in the home when Ashley’s
    Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-654 | August 24, 2017   Page 2 of 10
    family moved in. B.W. was four years old and A.W. was six years old when
    they moved in. Clarice’s house has two bedrooms upstairs and one in the
    basement. Clarice slept on a pull-out bed on the main floor, Ashley and her
    husband had a bedroom in the basement, and B.W. and A.W. were in a
    bedroom across from Arguello’s bedroom upstairs.
    [4]   Arguello lived in Clarice’s house the entire time Ashley and her family lived
    there, with the exception of a few months when he had his own place in May
    through August of 2015. The house Arguello lived in during that period was
    only a short walk from Clarice’s. Arguello babysat for A.W. and B.W. often,
    and they regarded him as a grandfather. The children missed Arguello very
    much when he was living in his own place, and they visited him at his place
    and stayed overnight.
    [5]   Arguello started touching A.W. sexually when she was five years old, having
    A.W. remove her clothes in the basement. Arguello touched A.W. with his
    hands and with his penis (which A.W. called his “popcorn”) on her vagina
    (which A.W. called her “popsicle”). Tr. Vol. III p. 28. Arguello did this to
    A.W. in both the upstairs bedroom and in the basement. A.W. said that white,
    “watery stuff” would come out of Arguello’s “popcorn” onto her stomach when
    he did this. Tr. Vol. III p. 29. Arguello ejaculated into A.W.’s mouth, and
    A.W. described that it tasted like “socks in a sewer[.]” Tr. Vol. III p. 33.
    Arguello licked A.W.’s vagina and put candy on it, then would remove the
    candy with his mouth. Arguello did these things to A.W. upstairs and in the
    basement. A.W. explained that it was easier to clean up Arguello’s ejaculate in
    Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-654 | August 24, 2017   Page 3 of 10
    the basement. Arguello also asked A.W. to “pee” on him. Tr. Vol. III at 40.
    A.W. did this to Arguello and Arguello also urinated on A.W. Arguello
    referred to this as “golden showers[.]” Tr. Vol. III p. 41. Arguello also inserted
    a straw into A.W.’s vagina and her “butt” and rubbed them with it. Tr. Vol. III
    p. 47. Arguello asked A.W. to be his girlfriend.
    [6]   Arguello also touched B.W. sexually when he was alone with him. Arguello
    would touch his penis to B.W.’s penis, which B.W. referred to as a “pee pee[,]”
    and rub them together. Tr. Vol. III p. 63. When Arguello did this, B.W. said
    “[h]oney would come out[.]” Tr. Vol. III p. 64. B.W. explained that he and
    Arguello would wipe the “honey” up with a towel. Arguello did this to B.W. at
    his house. Arguello would also touch B.W.’s “butt” with his penis and “rub
    it[,]” which hurt, according to B.W. Tr. Vol. III pp. 70–71. Arguello also put
    B.W.’s “pee pee” in his mouth. Tr. Vol. III p. 71.
    [7]   In May of 2016, Ashley had a conversation with the children about
    inappropriate touching. After this conversation, Ashley called the South Bend
    Police Department, and officers came to Clarice’s house. Ashley and the
    children were referred to the CASIE Center, where A.W. and B.W. were
    interviewed. Afterward, A.W. and B.W. were taken to the emergency room of
    St. Joseph Memorial Hospital, where sexual assault nurse examiner Abbie
    Baker examined both children for injury from sexual assault. Nurse Baker’s
    examination of A.W. revealed redness to her labia majora and a pronounced
    and abnormal dilation of the sphincter muscles of A.W.’s anus.
    Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-654 | August 24, 2017   Page 4 of 10
    [8]   On May 19, 2016, South Bend Police Detective Maranda Baker interviewed
    Arguello. Arguello told Detective Baker that he had penetrated A.W.’s vagina
    with his middle and index fingers, and that he had vaginally penetrated her on
    three occasions. Arguello also said that he had penetrated A.W.’s anus with
    one finger, and that this had occurred on three occasions as well. Arguello
    stated that A.W. had sat on his face, and that this had happened “no more
    than” four times. State’s Ex. 26 at 17:52:27, 18:18:39. Arguello explained to
    Detective Baker that when A.W. did this, he was performing oral sex on her.
    Arguello also admitted to placing candy on A.W.’s genitals and removing the
    candy with his mouth. Finally, Arguello said to Detective Baker that A.W.
    would “grind” on him while holding his erect penis and trying to sit on it.
    State’s Ex. 26 at 17:47:32, 17:48:26. Arguello said that A.W. had put his penis
    between her vaginal “lips” on eight different occasions. State’s Ex. 26 at
    18:17:00. Arguello said that when A.W. would do this, the tip of his penis
    would slip inside of her.
    [9]   On May 25, 2016, the State charged Arguello with seven counts of Level 1
    felony child molesting, five related to A.W. and two related to B.W. The State
    charged Arguello with the following acts with A.W.: Count I, sexual
    intercourse; Count II, performing oral sex on her; Count III, digitally
    penetrating her vagina; Count IV, digitally penetrating her anus; and Count V,
    submitting to oral sex performed by her. A jury trial took place January 23
    through 25, 2017. The State offered the testimony of Nurse Baker regarding her
    examination of A.W. and B.W. at the St. Joseph Hospital emergency room.
    Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-654 | August 24, 2017   Page 5 of 10
    After Nurse Baker testified about her credentials, experience and practice in
    conducting sexual assault examinations, Arguello objected to her providing any
    testimony regarding what A.W. told her during the examination about how she
    sustained any injuries. The trial court prohibited Nurse Baker from testifying to
    A.W.’s identification of the person who touched her. However, the trial court
    overruled Arguello’s objection to Nurse Baker’s testimony regarding A.W.’s
    statements about what happened to her, explaining that, “What happened to
    her I think is admissible for purposes of treatment. But who did it is not.” Tr.
    Vol. III p. 112. Nurse Baker testified that A.W. told her that a penis had been
    inserted in her anus.
    [10]   Arguello’s video recorded interview with Detective Baker was admitted at trial
    after redaction and without objection. After the evidence had been presented,
    Arguello moved for a directed verdict on Count V (which alleged that Arguello
    had submitted to oral sex performed by A.W.), and the State agreed that it had
    not presented evidence to support that charge and moved to dismiss. The jury
    returned verdicts of guilty on all remaining counts. On February 24, 2017, the
    trial court sentenced Arguello to an aggregate sentence of 160 years of
    incarceration.
    Discussion and Decision
    I. Nurse Baker’s Testimony
    [11]   Arguello contends that the trial court abused its discretion in allowing Nurse
    Baker to testify regarding what A.W. told her had happened to her. As
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    mentioned, Nurse Baker testified that A.W. told her that she had been anally
    penetrated by a penis. As Arguello points out, however, he was not charged
    with anally penetrating A.W. with his penis. We assume, without deciding,
    that this evidence was not relevant and that a timely objection to it on that basis
    would properly have been sustained.
    [12]   Arguello claims, however, that its admission amounts to fundamental error.
    Appellate courts may, on rare occasions, resort to the
    fundamental error exception to address on direct appeal an
    otherwise procedurally defaulted claim. But fundamental error is
    extremely narrow and available only when the record reveals a
    clearly blatant violation of basic and elementary principles,
    where the harm or potential for harm cannot be denied, and
    which violation is so prejudicial to the rights of the defendant as
    to make a fair trial impossible.
    Jewell v. State, 
    887 N.E.2d 939
    , 942 (Ind. 2008).
    [13]   Considering the overwhelming evidence of Arguello’s guilt, namely A.W.’s trial
    testimony and his own confession, we conclude that he has failed to establish
    fundamental error in this regard. A.W. testified that Arguello touched her with
    his hands and with his penis on her vagina, supporting a reasonable inference of
    sexual intercourse. Tr. Vol. III p. 28. A.W. said that white, “watery stuff”
    would come out of Arguello’s penis onto her stomach when he did this. Tr.
    Vol. III p. 29. A.W. testified that Arguello licked her vagina and put candy on
    it, then would remove the candy with his mouth. Even more damning was
    Arguello’s own confession. Arguello told Detective Baker that he had
    penetrated A.W.’s vagina with his middle and index fingers on three occasions,
    Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-654 | August 24, 2017   Page 7 of 10
    penetrated A.W.’s anus with one finger on three occasions, performed oral sex
    on A.W., and vaginally penetrated A.W. with the tip of his penis. Given the
    overwhelming evidence of Arguello’s guilt, it can hardly be said that the
    admission of Nurse Baker’s testimony was so harmful that the harm or
    potential for harm cannot be denied and was so prejudicial to Arguello’s rights
    as to make a fair trial impossible. Arguello has failed to establish fundamental
    error.
    II. Corpus Delicti
    [14]   Arguello contends that the State failed to establish corpus delicti for three of the
    four crimes he was convicted of committing against A.W. Arguello did not
    raise this argument below but now claims that fundamental error occurred. As
    mentioned, fundamental error occurs “when the record reveals a clearly blatant
    violation of basic and elementary principles, where the harm or potential for
    harm cannot be denied, and which violation is so prejudicial to the rights of the
    defendant as to make a fair trial impossible.” Jewell, 887 N.E.2d at 942.
    [15]   “Proof of the corpus delicti means proof that the specific crime charged has
    actually been committed by someone.” Taylor v. State, 
    236 Ind. 415
    , 421, 
    140 N.E.2d 104
    , 108 (1957).
    For a confession to be admitted into evidence, the State must
    establish the corpus delicti. Rickey v. State, 
    661 N.E.2d 18
    , 23
    (Ind. Ct. App. 1996), trans. denied. The purpose for requiring
    proof of the corpus delicti is to prevent the admission of a
    defendant’s confession to a crime that never occurred. Hurt v.
    State, 
    570 N.E.2d 16
    , 19 (Ind. 1991). The State is not required to
    Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-654 | August 24, 2017   Page 8 of 10
    prove the corpus delicti beyond a reasonable doubt, but must
    present independent evidence from which an inference may be
    drawn that a crime was committed. Douglas v. State, 
    481 N.E.2d 107
    , 110 (Ind. 1985). The corpus delicti need not be established
    prior to admission of the confession so long as the totality of
    independent evidence presented at trial establishes it. Morgan v.
    State, 
    544 N.E.2d 143
    , 146 (Ind. 1989). The corpus delicti may
    be established by circumstantial evidence. Grey v. State, 
    273 Ind. 439
    , 442, 
    404 N.E.2d 1348
    , 1350 (1980).
    Weida v. State, 
    693 N.E.2d 598
    , 600 (Ind. Ct. App. 1998), trans. denied.
    [16]   We conclude that Arguello has not established any error in this regard, much
    less fundamental error. Arguello’s argument is that three of his four convictions
    arising out of his molestation of A.W. were insufficiently supported by
    independent evidence. Arguello notes that A.W. did not expressly testified that
    Arguello’s fingers and penis penetrated her vagina and anus, only that he
    “rubbed” her anus and genitalia with his fingers and penis.
    [17]   Arguello’s argument seems premised on the notion that each element of each
    charge must be independently corroborated in order the satisfy the corpus delicti
    requirement. Put another way, Arguello would seemingly require the State to
    prove each charge twice in cases involving a confession. The law does not
    require such comprehensive corroboration:
    We are persuaded that where a defendant confesses to several
    crimes of varying severity within a single criminal episode, strict
    and separate application of the corpus delicti rule to each offense
    adds little to the ultimate reliability of the confession once
    independent evidence of the principal crimes is introduced. The
    confession at that point has been substantially corroborated. In
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    such a case the confession stands as direct evidence of each
    crime, even those not separately corroborated, if the independent
    evidence establishes the corpus delicti of the principal crime or
    crimes.
    Willoughby v. State, 
    552 N.E.2d 462
    , 467 (Ind. 1990).
    [18]   At issue here are the charges that Arguello had sexual intercourse with A.W.
    and digitally penetrated her anus and vagina. Nurse Baker testified that her
    examination of A.W. revealed redness to her labia majora and a pronounced
    and abnormal dilation of the sphincter muscles of her anus. Nurse Baker also
    testified that digital penetration could cause redness to the labia and anal
    dilation. Moreover, based on the above, we conclude that one could reasonably
    infer that redness to the labia could have been caused by penile penetration as
    well. Nurse Baker’s testimony is sufficient to raise an inference that the crimes
    charged were committed by someone, which is all that is required. Arguello
    has failed to establish error in this regard, much less fundamental error.
    [19]   We affirm the judgment of the trial court.
    May, J., and Barnes, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-654 | August 24, 2017   Page 10 of 10
    

Document Info

Docket Number: 71A03-1703-CR-654

Filed Date: 8/24/2017

Precedential Status: Precedential

Modified Date: 8/24/2017