Daniel Aguilar,III v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be Aug 07 2013, 5:30 am
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JENNIFER HINKEBEIN CULOTTA GREGORY F. ZOELLER
Culotta & Culotta, LLP Attorney General of Indiana
New Albany, Indiana
IAN MCLEAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DANIEL AGUILAR, III, )
)
Appellant-Defendant, )
)
vs. ) No. 64A05-1212-CR-665
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE PORTER SUPERIOR COURT
The Honorable William E. Alexa, Judge
Cause No. 64D02-0909-FA-9559
August 7, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
Daniel Aguilar III was convicted of two counts of Class C felony child molesting.
He was sentenced to four years—two years executed and two years suspended to
probation—on each count, to run consecutively. On appeal, Aguilar contends that there
is not sufficient evidence to sustain his convictions, the trial court erred in reading a jury
instruction that contained the charging information, and the trial court erred in not
specifying the conditions of his probation. Also, he asks this Court to adopt a new rule
that requires corroboration of claims of sexual abuse. We find that Aguilar’s convictions
are supported by sufficient evidence and the trial court did not err in reading the jury
instructions. We decline to adopt his proposed rule; however, we do find that the trial
court erred in not specifying Aguilar’s conditions of probation. We therefore affirm and
remand to specify probation conditions.
Facts and Procedural History
From 1999 to 2005, Christina C.-C. lived with her then-husband Aguilar,
Christina’s two daughters—K.M., born in 1993, and C.M., born in 1997—and Christina
and Aguilar’s two younger sons. The couple separated in 2006, and after Aguilar’s move
to California, their divorce became final in 2007.
Beginning in kindergarten and continuing through the third or fourth grade, C.M.
was molested by Aguilar. He put his hands both inside and outside C.M.’s clothes and
touched her vagina. Aguilar also compelled C.M. to touch his penis. The abuse
happened when they were alone or sometimes in the presence of her sister K.M.
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K.M. was also molested by Aguilar from the age of seven and continued until she
entered the sixth grade. Aguilar put his hands both inside and outside K.M.’s clothes,
touched her vagina, and compelled her to touch his penis.
After attending a church event in 2009, where a girl shared her personal sexual-
abuse story with C.M., C.M. wrote her mother the following letter:
Dear Mom,
When I was little me and [K.M.] got raped (I don’t know how
to spell the other words) by Danny [Aguilar]. . . . It started
when I was 5 or 6 years old, but I don’t know when it started
with [K.M.].
Tr. p. 160; Exhibit 2.
Christina reported the abuse to the Portage Police Department after discussing the
accusations with C.M., K.M., and K.M.’s father, M.M. Appellant’s App. 111-12; Tr. p.
179, 285, 293-97. K.M. recalled that she was “scared,” “shocked,” “embarrassed,” and
“felt uncomfortable” after learning that C.M. had disclosed the abuse. Tr. p. 207-08.
K.M.’s statement to the police led them to investigate another alleged victim, J.C., who
was a family friend.
In September 2009, the State charged Aguilar with: Count I, child molesting as a
Class A felony for “[engaging] in deviate sexual conduct with K.M.”; Count II, child
molesting as a Class A felony for “[engaging] in sexual intercourse and/or deviate sexual
conduct with C.M.”; Count III, child molesting as a Class A felony for “[engaging] in
deviate sexual conduct with J.C.”; Count IV, child molesting as a Class C felony for
fondling or touching K.M. with the intent to arouse or satisfy his sexual desires; and
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Count V, child molesting as a Class C felony for fondling or touching C.M. with the
intent to arouse or satisfy his sexual desires. Appellant’s App. p. 8-10.
At trial, C.M. was fifteen years old and K.M. was nineteen years old. C.M.
testified that Aguilar touched her vaginal area and made her touch his penis and that he
would ejaculate. Tr. p. 148-57. She also testified that no one else was present in the
room while the molestations occurred, but on at least one occasion K.M. was present. Id.
at 164, 172, 178.
K.M. testified to similar patterns of abuse. Id. at 192-96. She recalled a specific
incident:
I remember this one incident. I forgot which house it was,
but I think it was like the first time he had me – like he would
just talk to me about masturbating him. I think that’s the right
way to say it. He would just talk to me about how to do it and
what to do; and then he had me do it, and then he would
ejaculate from that.
Id. at 195-96.
C.M., K.M., and J.C. testified that Aguilar performed oral sex on each of them.
J.C. said the abuse occurred during the summer that she spent time in the Aguilar
household when she was eleven or twelve years old. Id. at 237-38. At trial, Aguilar
objected to Jury Instruction No. 1.07, which contained the investigating officer’s
affirmation in the charging information, on the basis that it created an impermissible
“vouching” to the State. The court overruled his objection.
The jury found Aguilar guilty of Counts IV and V, the fondling counts involving
C.M. and K.M., but not guilty of Counts I, II, and III, the counts relating to the alleged
deviate sexual conduct with K.M., C.M., and J.C. The trial court sentenced Aguilar to
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consecutive four-year terms on Counts IV and V, with two years served in the Indiana
Department of Correction and two years suspended to probation. Aguilar now appeals.
Discussion and Decision
Aguilar contends that the evidence is insufficient to uphold his convictions for
Class A felony child molesting, and the trial court erred in reading the jury instruction
that contained the investigating officer’s affirmation in the charging information. He also
notes, and the State agrees, that the trial court erred in not specifying the terms of
probation.
I. Sufficiency of the Evidence
Aguilar argues that the evidence is insufficient to sustain his Class C felony child
molesting convictions involving C.M. and K.M. Our standard of review with regard to
sufficiency claims is well settled. In reviewing a sufficiency of the evidence claim, this
Court does not reweigh the evidence or judge the credibility of the witnesses. Lainhart v.
State, 916 N.E.2d 924, 939 (Ind. Ct. App. 2009). We will consider only the evidence
most favorable to the judgment and the reasonable inferences drawn therefrom and will
affirm if the evidence and those inferences constitute substantial evidence of probative
value to support the judgment. Id. A conviction may be based upon circumstantial
evidence alone. Id. Reversal is appropriate only when reasonable persons would not be
able to form inferences as to each material element of the offense. Id.Aguilar contends that there is insufficient evidence to support his convictions
because (A) the testimony of C.M. and K.M. never identified a specific incident of
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fondling and, therefore, the State presented only generic evidence, and (B) C.M.’s and
K.M.’s testimony was incredibly dubious.
A. Generic Evidence
Aguilar first contends that the evidence is insufficient because there was no
“evidence of a specific incident” of child molestation. Appellant’s Br. p. 7. He argues
that neither C.M. nor K.M. specifically described “any particular incident of touching”
and the State presented only “generic evidence” that the molestations happened on
multiple occasions over a period of time. Id. at 11.
It is well settled that time is not of the essence in the crime of child molesting.
Barger v. State, 587 N.E.2d 1304, 1307 (Ind. 1992). This is so because “it is difficult for
children to remember specific dates, particularly when the incident is not immediately
reported as is often the situation in child molesting cases.” Id. Our Supreme Court
recognizes that a child may be victimized by “‘an abuser residing with the child . . .
[who] perpetuate[s] the abuse so frequently . . . that the young child loses any frame of
reference in which to compartmentalize the abuse into distinct and separate transactions’”
and therefore can only give “‘generic evidence’” of a defendant’s conduct. Baker v.
State, 948 N.E.2d 1169, 1174 (Ind. 2011) (quoting R.L.G. v. State, 712 So. 2d 348, 356
(Ala. Crim. App. 1997)).1 The victim’s “generic testimony” may describe a pattern of
1
To support his argument that the “generic evidence” is insufficient to support his convictions,
Aguilar cites Baker. Baker provides that when the State relies on evidence of “undifferentiated or generic
occurrences” of molestation, “the jurors should be instructed that in order to convict the defendant they
must either unanimously agree that the defendant committed the same act or acts or that the defendant
committed all of the acts described by the victim and included within the time period charged.” 948
N.E.2d at 1177. However, Aguilar did not ask for a unanimous jury instruction; therefore, this issue is
waived.
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abuse (“every time mama went to the store”) rather than specific incidents (“after the July
4th parade”). Id.
Here, C.M. and K.M. described various patterns of abuse. C.M. testified that
when compelled to fondle Aguilar, he would ejaculate “on [her] stomach and then he just
wiped it off.” Tr. p. 156-57. Her older sister K.M. testified that the molestation “would
always happen like when [her] mom was at work. He never did it when anyone was
around.” Id. at 193. She also testified that “he would persuade [her] into just thinking
that oh, like, maybe this is okay.” Id. at 196. A lack of perfect clarity in C.M.’s and
K.M.’s trial testimony does not make the evidence insufficient as a matter of law. C.M.
was fifteen years old and K.M. was nineteen years old at the time they testified, and their
testimony concerned events that occurred over seven years earlier.
B. Incredibly Dubious
Aguilar next argues that C.M.’s and K.M.’s testimony should be disregarded
because it was incredibly dubious. Under the incredible-dubiosity rule, appellate courts
may impinge upon a trier of fact’s function to judge the credibility of a witness when
confronted with “inherently improbable testimony or coerced, equivocal, wholly
uncorroborated testimony of incredible dubiosity.” Love v. State, 761 N.E.2d 806, 810
(Ind. 2002). The incredible dubiosity rule is limited to cases where a single witness
presents “inherently contradictory testimony that is equivocal or coerced and there is a
complete lack of circumstantial evidence of guilt.” Whedon v. State, 765 N.E.2d 1276,
1278 (Ind. 2002). “Application of this rule is rare and the standard to be applied is
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whether the testimony is so incredibly dubious or inherently improbable that no
reasonable person could believe it.” Love, 761 N.E.2d at 810.
In support of his argument that the victims’ testimony was incredibly dubious,
Aguilar lists inconsistencies in C.M.’s and K.M.’s testimony, both internally and between
each other.2 He also argues that the testimony ran counter to human experience, there
was no corroborating physical evidence, and the jury found him not guilty on Counts I
and II, which also related to C.M. and K.M. Appellant’s Br. p. 11-18. These are not
valid bases for deeming C.M.’s and K.M.’s testimony incredibly dubious.
He cites minor inconsistencies in C.M.’s and K.M.’s testimony as revealing the
dubious nature of their story. C.M. testified that the molestations occurred more than
fifteen times and later testified that they happened “a couple times a month.” Tr. p. 150.
Also, she could not remember whether Aguilar’s penis was erect during the molestations.
At trial, K.M. testified that Aguilar ejaculated during the molestations, but during cross
examination she admitted that during the deposition she said he never ejaculated. Aguilar
also argues that despite their “close relationship,” K.M. never told her mother about the
molestations and this is counter to human experience. Appellant’s Br. p. 16. The events
described by the sisters are not inherently improbable nor do they run counter to human
experience. Moreover, C.M.’s and K.M.’s testimony, while inconsistent at times, was not
incredible.
As for the lack of physical evidence, we note that it is not uncommon for victims
of child abuse to delay reporting the molestation, and such delay may result in a lack of
2
Aguilar also argues that the testimony of J.C. was incredibly dubious; however, he was
acquitted on the charge related to her, and therefore, we will not discuss her testimony.
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physical evidence. The molestations here happened several years before they were
reported to the authorities.
As for any inconsistencies between C.M.’s and K.M.’s testimony, contradictions
between the testimony of multiple witnesses is not within the scope of an incredible
dubiosity review. Stephenson v. State, 742 N.E.2d 463, 497 (Ind. 2001). As such, any
inconsistencies in the testimony of multiple witnesses goes to the weight and credibility
of the witnesses’ testimony and do not render the testimony incredible. Id. “It is for the
trier of fact to resolve conflicts in the evidence and to decide which witnesses to believe
or disbelieve.” Ferrell v. State, 746 N.E.2d 48, 51 (Ind. 2001). “If the testimony
believed by the trier of fact is enough to support the verdict, then the reviewing court will
not disturb it.” Id.Here, the incredible dubiosity rule is not applicable because C.M. and K.M.
unequivocally testified that Aguilar touched their vagina and forced them to touch his
penis. They never deviated from this testimony. Aguilar’s argument is nothing more
than an invitation for this Court to judge the credibility of the witnesses, which we
decline to do. The jury, as trier of fact, believed C.M.’s and K.M.’s testimony, which
was sufficient to support a guilty verdict for Class C felony child molesting, and we
decline to impinge on the jury’s credibility determinations. We therefore affirm
Aguilar’s convictions for Class C felony child molesting. See, e.g., Hampton v. State,
921 N.E.2d 27, 29 (Ind. Ct. App. 2010) (holding that the testimony of the seven-year-old
victim was not incredibly dubious and affirming the defendant’s child molesting
conviction), reh’g denied, trans. denied; Surber v. State, 884 N.E.2d 856, 869 (Ind. Ct.
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App. 2008) (holding that the testimony of six-year-old victim was not incredibly dubious
despite some inconsistencies, and that such inconsistencies are appropriate to the
circumstances presented, the age of the witness, and the passage of time between the
incident and the time of her statements and testimony), trans. denied.
C. Adopting New Rule
Next, Aguilar argues that “[i]t is time for Indiana in this day and age” to “adopt a
rule requiring corroboration of claims of sexual abuse.” Appellant’s Br. p. 5, 18. In
making this argument, Aguilar relies on Judge Baker’s dissenting opinion in Leyva v.
State, which proposed “that it is time to consider whether we should require
corroborating evidence when these type of offenses are supported only by the testimony
of a single witness.” 971 N.E.2d 699, 705 (Ind. Ct. App. 2012) (Baker, J., dissenting),
trans. denied. The dissent explains that “[w]ith the advent of modern technology,
including DNA testing and analysis, it is not unreasonable to require some form of
corroborating evidence before convicting a defendant when the sole witness is the
victim.” Id. at 706.
We decline Aguilar’s invitation to adopt the dissent in Leyva for several reasons.
Sexual abuse is often uncorroborated because the abuse takes place when the offender
and victim are alone. When fondling is the extent of the sexual abuse, like in this case,
typically there is no corroborating DNA evidence. Furthermore, where the victim is a
child, and the abuser is an adult, the authoritative relationship between the offender and
the victim makes it common for the child victim to delay reporting. With the passage of
time, the chance of finding any physical evidence decreases. In addition, we decline to
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adopt the dissent in Leyva because it does not propose to reach all criminal acts that allow
conviction when the sole witness is the victim and there is not any corroborating
evidence. Allowing for uncorroborated evidence in crimes of burglary and robbery but
not in sexual abuse would produce an exception that we are not willing to create.
Moreover, as our Supreme Court has recently restated, “[a] conviction can be
sustained on only the uncorroborated testimony of a single witness, even when that
witness is the victim.” Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012); see also
Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012) (“The testimony of a sole child
witness is sufficient to sustain a conviction for molestation.”). Despite Aguilar’s
challenge to his convictions resting on C.M.’s and K.M.’s uncorroborated testimony
alone, our Supreme Court’s precedent is binding until it is changed by the Court or
legislative enactment. Culbertson v. State, 929 N.E.2d 900, 906 (Ind. Ct. App. 2010),
trans. denied.
II. Jury Instruction
Aguilar next contends that the trial court improperly instructed the jury by
including the affirmation of the investigating officer in the charging informations. Jury
Instruction No. 1.07 provides:
Detective Sergeant Joe Reynolds, Portage Police Department,
swears under the penalties of perjury as specified under I.C.
35-44-2-1 that the following representations are true: that
Daniel Aguilar . . . performed or submitted to fondling . . .
with the intent to arouse or satisfy his own sexual desires.
Appellant App. p. 82-86 (charging informations for all five counts). Aguilar asserts that
the instruction was erroneous because “the Court put its stamp of approval on the
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statement of a police officer, who, in the charging information, accused [Aguilar] of child
molesting, and swore under pains and penalties of perjury that his accusations were true.”
Appellant’s Br. p. 26.
In resolving this issue, we review the giving of a jury instruction for an abuse of
discretion. See Benefiel v. State, 716 N.E.2d 906, 914 (Ind. 1999). The purpose of jury
instructions is to inform the jury of the law applicable to the facts of the particular case.
Clark v. State, 732 N.E.2d 1225, 1230 (Ind. Ct. App. 2000). Instructions “are to be read
together as a whole and not as single units, and a single instruction need not contain all
the law applicable to the case.” Hurt v. State, 570 N.E.2d 16, 18 (Ind. 1991).
Additionally, in reviewing a challenge to a jury instruction, we must consider “whether
the instruction correctly states the law, whether there was evidence in the record to
support the giving of the instruction, and whether the substance of the tendered
instruction is covered by other instructions.” Sherwood v. State, 702 N.E.2d 694, 698
(Ind. 1998). An improper instruction will merit reversal only if it “so affects the entire
charge that the jury was misled as to the law in the case.” White v. State, 547 N.E.2d
831, 835 (Ind. 1989).
The court instructed the jury that Jury Instruction No. 1.07 was “merely the
charging information itself,” that it did not “give any credibility to a police officer,” and
it was “simply the method for bringing a defendant before the court.” Tr. p. 133.
Furthermore, the jury was instructed that the charges and the arrest of Aguilar should not
be considered “as any evidence of guilt.” Id. at 93. The jury was told to consider the
instructions as a whole and that they were the exclusive judges of the facts as they found
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them. Id. at 114, 129. Therefore, including the officer’s affirmation in the charging
informations did not so affect the entire charge that the jury was misled as to the law in
the case.
III. Probation Conditions
Finally, both Aguilar and the State note that the trial court did not issue any terms
of probation. Indiana Code section 35-38-2-1(a) provides that when the trial court
“places a person on probation,” it “shall specify in the record the conditions of the
probation.”
The trial court sentenced Aguilar to consecutive four-year terms, with two years
served in the DOC and two years suspended to probation. Appellant’s App. p. 176-77.
Aguilar was also ordered to register as a sex offender and undergo HIV testing. Id. at
177. But because the trial court did not specify in the record the conditions of Aguilar’s
probation, we therefore remand this case to the trial court so that it can specify in the
record the terms of his probation.
Affirmed in part and remanded in part.
KIRSCH, J., and PYLE, J., concur.
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