Daniel Vega v. State of Indiana ( 2019 )

FILED
Feb 14 2019, 9:16 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David W. Stone IV Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
George P. Sherman
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Daniel Vega, February 14, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-942
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable David A. Happe,
Appellee-Plaintiff. Judge
Trial Court Cause No.
48C04-1704-F3-1072
Najam, Judge.
Statement of the Case
[1] Daniel Vega appeals his convictions for one count of child molesting, as a Level
3 felony, and two counts of child solicitation, as Level 5 felonies, following a
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jury trial. Vega also appeals his fifteen-year sentence. Vega raises six issues for
our review, which we restate as follows:
1. Whether the trial court abused its discretion when it
admitted into evidence a video-recorded forensic interview
of the child victim.
2. Whether the trial court abused its discretion when it
denied Vega’s request to have an expert psychologist
examine the child victim at public expense.
3. Whether Vega preserved for appellate review his argument
that the trial court erroneously permitted the State to
present inadmissible drumbeat evidence to the jury.
4. Whether Vega preserved for appellate review his argument
that the trial court erred when it denied his request for a
mistrial.
5. Whether the trial court abused its discretion when it
sentenced Vega.
6. Whether Vega’s sentence is inappropriate in light of the
nature of the offenses and his character.
[2] We affirm.
Facts and Procedural History
[3] In early 2017, Vega, who was eighteen years old at the time, was living with his
uncle, M.S.; M.S.’s then-ten-year-old daughter, E.S.; and M.S.’s wife and
stepson in Alexandria. M.S. had helped Vega obtain employment at American
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Woodwork, where M.S. also worked, and M.S. and Vega would ride to work
together. E.S. had her own room at the family residence. Vega slept on a
couch in the living room.
[4] During the evening of April 20, Vega entered E.S.’s bedroom, woke her, and
told her he would “give [her] twenty dollars if you suck my thing.” Tr. Vol. III
at 183. E.S. told him that she was “gonna tell [her] dad,” and Vega “ran
outside.” Id. The next day, E.S. spoke of the incident with Holly Eiler, a social
worker at E.S.’s school. Eiler contacted the Indiana Department of Child
Services (“DCS”), and DCS case workers arranged for E.S. to have a forensic
interview at the Child Advocacy Center later that day.
[5] Kelsey Green conducted E.S.’s forensic interview, which was video-recorded.
Green has a degree in psychology and has conducted about 2,000 forensic
interviews. During her interview, E.S. detailed the prior night’s incident with
Vega. E.S. also said that, on another occasion, Vega had tried to make E.S.
“touch his thing” by “pull[ing] down his pants and . . . tr[ying] to put [her]
hand down there . . . .” Id. at 189-90. Then E.S. told Green that, on a different
occasion, Vega had “forced [her] to suck his thing.” Id. at 193. Vega had
“grabbed [E.S.]” and “ma[de her] put it in [her] mouth” until “[w]hite stuff”
came out, which made E.S. “throw[ ]up.” Id. at 193-94. E.S. told Green that
she did not “feel safe around” Vega. Id. at 193.
[6] Following E.S.’s forensic interview, Alexandria Police Officer Joe Heath
interviewed Vega. When Officer Heath informed Vega of E.S.’s allegations and
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asked Vega if he “kn[ew] anything about” them, Vega responded, “She’s
nasty. . . . [I]f I were to get [sic] in any kind of sexual way I would have
someone more attractive . . . .” Tr. Vol. IV at 57. Officer Heath then asked
Vega why E.S. would say what she did, and Vega responded: “I don’t know.
That’s from her part. She knows how to suck dick. Go for it.” Id. at 67.
[7] After E.S. opened up about her experiences with Vega, M.S. observed that E.S.
began to act differently. In particular, he observed that she was “scared to sleep
by herself” in her room. Tr. Vol. III at 157. M.S. also observed that E.S. would
“urinate[]” her bed because “she doesn’t want to get up [be]cause she’s scared”
that Vega is “watching her through the window.” Tr. Vol. III at 157.
[8] The State charged Vega with one count of child molesting, as a Level 3 felony,
and four counts of child solicitation, as Level 5 felonies. On January 29, 2018,
the State moved under Indiana’s Protected Person Statute to have E.S.’s
forensic interview with Green admitted in lieu of E.S. testifying in person at
trial. See Ind. Code § 35-37-4-6 (2018). The court held a hearing on the State’s
request in February, at which Vega appeared with counsel and E.S. appeared by
closed-circuit television.
[9] Miyah Grant testified in support of the State’s motion. Grant is a doctoral
student in the clinical psychology program at the University of Indianapolis,
and, under the supervision of Dr. Sharon McNeany, a licensed psychologist,
Grant is E.S.’s counselor. Grant testified that E.S. frequently has anxiety about
testifying in court such that she “begins crying uncontrollably and shaking,”
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and it is a “struggle to communicate” with her. Tr. Vol. II at 71. Grant also
related continuing fear E.S. has of Vega, saying that, on the day of the
protected-person hearing, E.S. asked that the room of the closed-circuit
television have “lock[ed] . . . doors.” Id. at 72. Grant opined that being in the
physical presence of Vega at trial could cause E.S. such distress that she would
not “be able to reasonably communicate.” Id. at 74. Dr. McNeany testified
that, based on her supervision and review of Grant’s work, she agreed with
Grant’s assessment that E.S. would be unable to reasonably communicate at
Vega’s trial.
[10] E.S. testified at the February hearing by way of recorded, closed-circuit
television, and Vega subjected her to cross-examination through his counsel.
Eiler and other school officials testified that E.S. continues to have extreme
emotional reactions to her experiences with Vega, which make communication
with E.S. difficult. They also testified that E.S. has expressed suicidal ideations.
[11] At the conclusion of the February hearing, Vega moved to have the court order
E.S. to receive a mental health evaluation “by an independent, neutral party” at
public expense. Id. at 131. The trial court denied Vega’s request. However, the
court granted the State’s request to have E.S.’s forensic interview with Green
admitted at trial in lieu of E.S. testifying in person.
[12] Thereafter, the State dismissed two of the Level 5 felony counts. At Vega’s
ensuing jury trial, he renewed his objections to the use of E.S.’s forensic
interview with Green but only “based on confrontation” grounds. Tr. Vol. III
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at 175. The trial court overruled Vega’s objection. Later in the trial, the State
also sought to have E.S.’s recorded testimony at the protected-person hearing
admitted into the record. Again, Vega objected only on confrontation grounds,
which the trial court overruled. The jury found Vega guilty as charged.
[13] On March 20, the court held Vega’s sentencing hearing. At the conclusion of
that hearing, the court found as follows:
I do find that there is both aggravation and mitigation present on
the record. The fact that there are multiple counts here of which
the defendant was convicted, that’s an aggravating factor. I think
that clearly the defendant abused the position of trust. He was
part of this family, was allowed to be in an intimate sleeping
arrangement with the family and trusted to be around the young
children in that family and took advantage of that to victimize
the child the way that he did. I think that . . . it’s not significant
but there is some history of criminal conduct shown in that the
defendant has drug usage extending back to age thirteen. And
the court’s going to find an aggravating factor here to be that the
defendant went out of his way in the statement he gave to
police . . . to denigrate and insult the victim and that exacerbated
the psychological harm that both the victim and her family
suffered. You can come in and just maintain your innocence.
You can come in and maintain your silence. But . . . the
defendant in this case chose not to do that. He . . . chose to come
in and insult the victim and demean her . . . . That was
something he didn’t have to do and that’s something that made it
worse and more hurtful to go through . . . . In terms of
mitigation I do find that there is some here. The defendant is a
person of young age. He has largely a lack of significant prior
criminal history, apart from the . . . drug usage that I mentioned.
And I’m go[ing] to find it to be a mitigating factor that the
defendant did suffer neglect and abuse at the hand of the adults
in his life when he was [a] child. On balance, however, I do find
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that the aggravation outweighs the mitigation here and a
significant punitive sanction is appropriate.
Tr. Vol. IV at 189-90. The court then sentenced Vega to an aggregate term of
fifteen years, with three years suspended to probation. This appeal ensued.
Discussion and Decision
Issue One: Admission of E.S.’s Forensic Interview
[14] On appeal, Vega first asserts that the trial court abused its discretion when it
admitted E.S.’s video-recorded forensic interview at trial. As decisions to admit
or exclude evidence fall within the trial court’s sound discretion, we afford
those decisions deference and review them for an abuse of discretion. Wright v.
State, 108 N.E.3d 307, 313 (Ind. 2018). We will reverse a trial court’s decision
to admit evidence only if the decision was clearly against the logic and effect of
the facts and circumstances and the error affects the defendant’s substantial
rights. Id. (quotation marks and alteration omitted).
[15] Vega asserts that the trial court erred when it admitted E.S.’s forensic interview
because, at the February protected-person hearing, the State did not present
sufficient evidence to demonstrate that E.S. would be unavailable to testify in
person at trial. Indiana Code Section 35-37-4-6(e)(2)(B) states that, for a
protected person1 to be found unavailable as a trial witness, the court must, as
1
Vega does not dispute that E.S. is a protected person under the statute. Insofar as Vega attempted to argue
on appeal that the trial court erred under Indiana Code Section 35-37-4-6(e)(1) on the ground that the time,
content, and circumstances of E.S.’s recorded statement fail to provide sufficient indications of reliability, we
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relevant here, determine “[f]rom the testimony of a psychiatrist, physician, or
psychologist, and other evidence, if any,” that “the protected person’s testifying
in the physical presence of the defendant will cause the protected person to
suffer serious emotional distress such that the protected person cannot
reasonably communicate.” According to Vega, Grant’s testimony is
insufficient because she is not a licensed psychologist, and Dr. McNeany’s
testimony is insufficient because she did not personally interview E.S.
[16] We reject Vega’s contention. Medical professionals, like professionals in many
areas, utilize subordinates, and when a medical professional signs off on a
subordinate’s work product, it becomes the medical professional’s work
product. Here, a licensed psychologist adopted and ratified the work of her
subordinate and made it her own.
[17] In particular, Grant is a doctoral student in the clinical psychology program at
the University of Indianapolis under the supervision of Dr. McNeany, who is a
licensed psychologist. Grant’s status enabled Dr. McNeany to consider
whether E.S. would suffer serious emotional distress at trial such that E.S.
would be unable to reasonably communicate, and Dr. McNeany’s status and
standing as Grant’s supervisor allowed her to adopt, reject, or modify Grant’s
opinion as Dr. McNeany deemed appropriate. And that is what happened
here: Grant concluded that E.S. would suffer serious emotional distress at trial
conclude that Vega has failed to support any such argument with cogent reasoning, and we do not consider
it. Ind. Appellate Rule 46(A)(8)(a).
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such that E.S. would be unable to reasonably communicate. Dr. McNeany
reviewed and then agreed with Grant’s recommendation.
[18] In other words, the State’s evidence shows that a licensed psychologist reviewed
and then adopted the work of her subordinate, testified, and gave her opinion at
the protected-person hearing as to E.S.’s unavailability at trial. This is not a
case where only the subordinate testified, or where the licensed professional had
not personally reviewed and approved the subordinate’s work. We hold that
the State presented sufficient evidence under the statute to demonstrate E.S.’s
unavailability at trial, and the trial court acted within its discretion when it
admitted E.S.’s recorded forensic interview due to her unavailability.
Issue Two: Denial of Mental-Health Expert at Public Expense
[19] Vega next asserts that the trial court abused its discretion when it denied his
request for an additional mental-health expert to evaluate E.S. at public
expense. As we have explained:
The appointment of experts for indigent defendants is left to the
trial court’s sound discretion. It is within the court’s discretion to
determine whether the requested service would be needless,
wasteful[,] or extravagant. The trial court is not required to
appoint at public expense any expert that the defendant might
find helpful. The defendant requesting the appointment of an
expert bears the burden of demonstrating the need for the
appointment.
McConniel v. State, 974 N.E.2d 543, 557 (Ind. Ct. App. 2012) (citations omitted),
trans. denied.
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[20] We cannot say that the trial court abused its discretion when it denied Vega’s
request. At the time of the February hearing, when Vega made his request, E.S.
had an ongoing relationship with Grant, and Dr. McNeany reviewed and
supervised Grant’s work. Vega did not meet his burden to demonstrate the
need to have E.S. submit to yet another mental-health evaluation, with that
evaluation being at public expense. Accordingly, we affirm the trial court on
this issue.
Issue Three: “Drumbeat Evidence”
[21] Vega asserts that the trial court abused its discretion when it admitted both
E.S.’s recorded forensic interview and also E.S.’s recorded testimony at the
February hearing. According to Vega, the two recordings amounted to
inadmissible “drumbeat evidence.” However, in the trial court, Vega objected
to the two exhibits only on the ground that they allegedly violated his federal
and state rights to confront witnesses.2 Tr. Vol. III at 175; Tr. Vol. IV at 86. It
is well settled that a party may not raise one ground for objection in the trial
court and argue a different ground on appeal. Willsey v. State, 698 N.E.2d 784,
793 (Ind. 1998). We conclude that Vega has not preserved his “drumbeat
evidence” argument for appellate review.
2
Vega separately objected at trial to specific portions of the testimony of Grant and Eiler as cumulative to
E.S.’s admitted statements. However, insofar as Vega attempted to argue on appeal that the trial court
abused its discretion when it overruled those objections, Vega’s argument is not supported by cogent
reasoning, and we do not consider it. App. R. 46(A)(8)(a).
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Issue Four: Denial of Vega’s Motion for a Mistrial
[22] Vega asserts that the trial court abused its discretion when it denied his motion
for a mistrial. As we have explained:
A mistrial is an extreme remedy granted only when no other
method can rectify the situation. A trial court’s decision not to
grant a mistrial is reviewed for an abuse of discretion. Moreover,
a reviewing court accords great deference to the trial court’s
ruling on a mistrial motion. In determining whether a mistrial
was warranted, we consider whether the defendant was placed in
a position of grave peril to which he should not have been
subjected. The gravity of the peril is determined by the probable
persuasive effect on the jury’s decision. When a motion for
mistrial has been denied, the defendant has the burden to
demonstrate both that he was placed in a position of grave peril
to which he should not have been subjected and that no other
remedy can cure the perilous situation in which he was placed.
Brooks v. State, 934 N.E.2d 1234, 1243 (Ind. Ct. App. 2010) (citations and
quotation marks omitted), trans. denied.
[23] According to Vega’s argument to the trial court in support of a mistrial, the
State failed to inform Vega that it had interviewed two of E.S.’s other cousins,
one of whom E.S. had identified in her forensic interview with Green as a
possible witness, and further that the State had failed to inform Vega that
neither of the two cousins had reported observing inculpatory behavior by
Vega. According to Vega, the State’s disclosure at trial of this information
placed him in a position of grave peril. The trial court denied Vega’s motion as
to the cousin identified by E.S. on the ground that Vega had been put on notice
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by E.S.’s statements that that cousin might be a witness. The court denied
Vega’s motion as to the other cousin because “[t]he State’s theory is not th[at
the] child was constantly twenty-four/seven molested . . . . So the fact that
someone was around the parties and didn’t see a molest happening, I’m not
sure that’s even relevant.” Tr. Vol. III at 128.
[24] We initially note that Vega’s argument on appeal is that he was unduly
prejudiced by the State’s untimely disclosure of potential discovery. Under that
theory, Vega should have moved for a continuance in the trial court. See
Warren v. State, 725 N.E.2d 828, 832 (Ind. 2000). He did not. Accordingly, he
has not preserved this alleged error for our review. Id. Vega’s waiver
notwithstanding, as explained by the trial court Vega had the opportunity to
depose the cousin identified by E.S. in her forensic interview well before trial.
And Vega has failed to show that the probative value and probable persuasive
effect on the jury of testimony that Vega had behaved in E.S.’s presence would
have been significant. Thus, we reject Vega’s arguments on this issue.
Issue Five: Abuse of Discretion in Sentencing
[25] We next turn to the first of Vega’s two arguments with respect to his sentence.
In particular, Vega asserts that the trial court abused its discretion when it
sentenced him because it relied on an aggravating circumstance not supported
by the record. Sentencing decisions lie within the sound discretion of the trial
court. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). An abuse of
discretion occurs if the decision is “clearly against the logic and effect of the
facts and circumstances before the court, or the reasonable, probable, and actual
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deductions to be drawn therefrom.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct.
App. 2014) (citation omitted), trans. denied.
[26] A trial court abuses its discretion in sentencing if it does any of the following:
(1) fails “to enter a sentencing statement at all;” (2) enters “a
sentencing statement that explains reasons for imposing a
sentence—including a finding of aggravating and mitigating
factors if any—but the record does not support the reasons;” (3)
enters a sentencing statement that “omits reasons that are clearly
supported by the record and advanced for consideration;” or (4)
considers reasons that “are improper as a matter of law.”
Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind.), clarified on reh’g
other grounds, 875 N.E.2d 218 (2007)).
[27] Vega asserts that the trial court’s finding that E.S. and her family suffered
additional emotional or mental harm from Vega’s callous statements to police is
not supported by the record. According to Vega, “there was no evidence that
either the girl or her family heard or read his police interview.” Appellant’s Br.
at 32. More compellingly, Vega adds that “[t]here is no evidence that [E.S.’s]
emotional problems . . . were increased by [Vega’s] comments in the police
interview.” Id.[28] We are obliged to agree with Vega. Nothing in the record on appeal
demonstrates that E.S. or her family had any knowledge of Vega’s statements to
police, let alone that their emotional suffering increased upon learning of those
statements. We understand the State’s argument on appeal that E.S. or her
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family may have been present at the trial, but our review must be based on the
record, and the record does not reflect a factual basis for the trial court’s finding
of this aggravator. Accordingly, we agree with Vega that the trial court erred
when it cited an aggravator not found in the record.
[29] Nonetheless, where the trial court abuses its discretion in sentencing a
defendant, we need not remand for resentencing if we can “say with confidence
that the trial court would have imposed the same sentence had it properly
considered reasons that enjoy support in the record.” Anglemyer, 868 N.E.2d at
491. We can say with confidence that the trial court would have imposed the
same sentence here. Vega’s argument on appeal that the trial court erred when
it considered the harm to E.S. and her family of his statements to the police is
technically correct, but the record is clear that on other occasions Vega did
denigrate E.S. in person, which increased her emotional or mental anguish.
For example, E.S. stated in her interview with Green that Vega “usually calls
[her] [a] fat pig,” “flips [her] off,” and “calls [her] a lot of bad words.” Tr. Vol.
III at 199. E.S. specifically cited those examples as part of the reason she
continues to feel “[n]ot safe . . . [w]hen [Vega is] there” at her home. Id.
[30] In other words, the gravamen of the trial court’s aggravator is that Vega
disparaged his victim, E.S., which caused her additional anguish. And Vega’s
statements to E.S. in person, which are supported in the record, are the
equivalent of Vega’s statements to the police, which the trial court relied on.
Accordingly, we need not remand to require the trial court to simply recite its
rationale while adding facts that are properly supported by the record. Thus,
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we can say with confidence that the trial court would, on remand, impose the
same sentence based on other reasons that enjoy support in the record and that
a remand for resentencing is unnecessary.
Issue Six: Inappropriateness of Sentence
[31] Finally, Vega asserts on appeal that his fifteen-year sentence, with three years
suspended to probation, is inappropriate in light of the nature of the offenses
and his character. Indiana Appellate Rule 7(B) provides that “[t]he Court may
revise a sentence authorized by statute if, after due consideration of the trial
court’s decision, the Court finds that the sentence is inappropriate in light of the
nature of the offense and the character of the offender.” This Court has
recently held that “[t]he advisory sentence is the starting point the legislature
has selected as an appropriate sentence for the crime committed.” Sanders v.
State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017). And the Indiana Supreme
Court has explained that:
The principal role of appellate review should be to attempt to
leaven the outliers . . . but not achieve a perceived “correct”
result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). Defendant has the burden to persuade us that the
sentence imposed by the trial court is inappropriate. [Anglemyer,
868 N.E.2d at 494].
Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).
[32] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
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receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we
regard a sentence as inappropriate at the end of the day turns on “our sense of
the culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other facts that come to light in a given case.” Id. at 1224.
The question is not whether another sentence is more appropriate, but rather
whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,
268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless
overcome by compelling evidence portraying in a positive light the nature of the
offense (such as accompanied by restraint, regard, and lack of brutality) and the
defendant’s character (such as substantial virtuous traits or persistent examples
of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[33] Indiana Code Section 35-50-2-5(b) states that a person convicted of a Level 3
felony shall be imprisoned for a fixed term between three and sixteen years,
with an advisory sentence of nine years. Indiana Code Section 35-50-2-6(b)
states that a person convicted of a Level 5 felony shall be imprisoned for a fixed
term between two and eight years, with an advisory sentence of four years. For
his one Level 3 felony conviction and two Level 5 felony convictions, Vega
received an aggregate term of fifteen years, with three years suspended to
probation, which is well below the maximum possible aggregate sentence Vega
faced. Nonetheless, in support of his argument on appeal, Vega asserts that he
is not the worst of the worst offenders; that his criminal history is not serious;
that he did not physically harm E.S. or threaten her with physical harm; and
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that nothing about the facts and circumstances of his offenses go beyond the
statutory elements of those offenses.
[34] We cannot say that Vega’s sentence is inappropriate in light of the nature of the
offenses or his character. Regarding the nature of the offenses, Vega solicited
his ten-year-old cousin for oral sex on multiple occasions. When she declined
on one occasion, he forced her to perform oral sex on him to the point of
ejaculation, which caused E.S. to vomit. He also attempted to force her to
touch his penis with her hand on another occasion. With respect to Vega’s
character, he has a long history of marijuana use despite his young age, he
abused a position of trust over E.S., and he abused the generosity of her family
in finding him employment and a place to live. Accordingly, we cannot say
that his aggregate sentence of fifteen years, with three years suspended to
probation, is inappropriate in light of the nature of the offenses and his
character.
Conclusion
[35] In sum, we affirm Vega’s convictions and sentence.
[36] Affirmed.
Pyle, J., and Altice, J., concur.
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