Allen Houx v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 7, 2020
• Docket: 19A-CR-1547
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 07 2020, 10:37 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 Matthew D. Anglemeyer Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Courtney Staton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Allen Houx, February 7, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1547 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Grant W. Appellee-Plaintiff. Hawkins, Judge Trial Court Cause No. 49G05-1806-F1-20561

Barteau, Senior Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1547 | February 7, 2020 Page 1 of 11 Statement of the Case 1 [1] Allen Houx appeals his conviction by jury of child molesting, a Level 1 felony.

We affirm.

Issue [2] Houx raises one issue, which we restate as: whether the trial court erred in

allowing a witness to testify as to what another witness had told her.

Facts and Procedural History [3] Jose and Rose Vallejo lived in Indianapolis with their four children. In April

2018, they allowed Houx, who they knew as “Panama,” to stay with them

because the electricity had been shut off at his former residence. Tr. Vol. 2, pp.

124, 150. Edwin Sanchez, who was engaged to Rose’s mother, also moved into

the Vallejos’ home. Houx and Sanchez slept in the basement.

[4] On the night of March 5, 2018, Rose was at home with Houx, Sanchez, and her

children. Sanchez was asleep in the basement, and Rose needed to go pick up

Jose. She asked Houx to be responsible for the children while she was gone,

and he agreed. Rose left after nine p.m. At that time, all of the children were in

their bedrooms.

1 Ind. Code § 35-42-4-3 (2015).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1547 | February 7, 2020 Page 2 of 11 [5] After Rose left, J.V. entered the living room, where Houx was watching

television. As they watched television together, Houx suddenly grabbed J.V.

and pulled her pants and underwear down to her ankles. He “licked” her

“private” with his tongue, moving his tongue “up and down” as she fought

him. Tr. Vol. 2, p. 139. J.V. eventually freed herself and ran to her mother’s

room, where she cried herself to sleep on the bed. At trial, she identified Houx

when the State asked her to point out the person that had “licked her pee-pee.”

Id. at 141.

[6] When Rose and Jose returned home, Rose found J.V. in her bed, asleep. She

noticed J.V.’s jeans were unfastened and had slid down “a little bit past her

hip.” Id. at 153. Rose went to sleep and did not disturb J.V.

[7] The next morning, between seven and eight a.m., J.V. woke up and left Rose’s

bedroom. Two to three minutes later, J.V. returned to Rose’s bedroom and

tugged on her shirt. She looked scared and “really worried.” Id. at 155. J.V.

had seen Houx and said that she needed to talk with Rose. Rose testified that

J.V. told her that on the previous night, Houx had “forced her down, pushed

her down and held her down and licked her pee-pee.” Id. at 158.

[8] Next, Rose confronted Houx, and she told Jose what J.V. had said. Jose

ordered Houx to leave the residence while Rose comforted J.V., who was

“[s]cared, shaking violently, crying” and hiding behind Rose. Id. at 161. Rose

had never seen J.V. react that way to Houx.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1547 | February 7, 2020 Page 3 of 11 [9] A police officer arrived at the house and spoke with Rose. At 1 p.m. that same

day, Rose took J.V. to the Child Advocacy Center for a forensic interview.

Later that same day, Rose took J.V. to Riley Hospital, where Angela Bates, a

forensic nurse, performed a pediatric sexual assault examination on J.V.

[10] Bates asked J.V. to remove her clothes. J.V. was still wearing the same

underwear from the previous evening, and Bates collected the underwear.

Next, Bates examined J.V. from head to toe, generating a “body map” diagram

as part of the process. Id. at 183. She noted on the body map that J.V. had

abrasions on her lower legs and redness on the left side of her labia. Bates

concluded the redness was not “hygiene related,” because in her experience that

kind of issue would be “more generalized” instead of in one specific location.

Id. at 194. J.V. told Bates that the red area was tender to the touch.

[11] Later, the police took a buccal swab from Houx. DNA testing of a sample

taken from the inside crotch of J.V.’s underwear revealed characteristics that

were consistent with characteristics in Houx’s DNA profile. The characteristics

of Houx’s profile are present in only 1 out of every 699 male individuals,

including Houx’s male relatives and male ancestors. In March 2018, none of

Houx’s male relatives lived in Indianapolis.

[12] On June 26, 2018, the State charged Houx with Level 1 felony child molesting.

The court presided over a jury trial on May 13 and 14, 2019. The jury

determined Houx was guilty as charged. The court subsequently imposed a

sentence, and this appeal followed.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1547 | February 7, 2020 Page 4 of 11 Discussion and Decision [13] Houx argues the trial court erred by allowing Rose to tell the jury what J.V. had

told her, arguing that Rose’s testimony on that point was impermissible

hearsay. The State responds that the testimony was not barred by the rule

against hearsay.

[14] The trial court has inherent discretionary power in the admission of evidence,

and its decisions are reviewed for an abuse of that discretion. Jones v. State, 780

N.E.2d 373, 376 (Ind. 2002). An abuse of discretion involves a decision that is

clearly against the logic and effect of the facts and circumstances before the

court. Cox v. State, 774 N.E.2d 1025, 1026 (Ind. Ct. App. 2002). In

determining the admissibility of evidence, the reviewing court will consider

only the evidence in favor of the trial court’s ruling and any unrefuted evidence

in the defendant’s favor. Id.

[15] Hearsay is “a statement that . . . is not made by the declarant while testifying at

the trial or hearing; and . . . is offered in evidence to prove the truth of the

matter asserted.” Ind. Evid. Rule 801(c). Hearsay evidence is inadmissible at

trial except as otherwise provided by statute or the Indiana Rules of Evidence.

Ind. Evid. Rule 802.

[16] One exception to the rule against hearsay permits the admission of an “excited

utterance.” Ind. Evid. Rule 803(2). An excited utterance is: “A statement

relating to a startling event or condition, made while the declarant was under

the stress of excitement that it caused.” Id. “The rationale behind admitting

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1547 | February 7, 2020 Page 5 of 11 excited utterances is that startling events and absence of opportunity for

reflection vest the statements with reliability and reduce the likelihood of

falsification.” Chambless v. State, 119 N.E.3d 182, 189 (Ind. Ct. App. 2019),

trans. denied.

[17] In order for a hearsay statement to be admitted as an excited utterance, three

elements must be established: (1) a startling event has occurred; (2) a statement

was made by a declarant while under the stress of excitement caused by the

event; and (3) the statement relates to the event. Boatner v. State, 934 N.E.2d

184, 186 (Ind. Ct. App. 2010). Houx disputes only the second element,

claiming J.V. could not have been under the stress of excitement when she told

Rose that Houx had molested her the previous evening.

[18] A startling event and the resulting utterance need not be contemporaneous,

though lapse of time is a factor to consider when deciding if the statement was

spontaneous and unrehearsed. Chambless, 119 N.E.3d at 189. The longer the

time between an event and an utterance, the greater the likelihood that the

statement is a narrative of past events instead of an excited utterance. Id.

However, the greater the stress caused by the event, the longer the effects of the

stress can endure. Id. “The heart of the inquiry is whether the declarant was

incapable of thoughtful reflection.” Jones v. State, 800 N.E.2d 624, 627 (Ind. Ct.

App. 2003).

[19] The Court’s decision in Ramsey v. State, 122 N.E.3d 1023 (Ind. Ct. App. 2019),

trans. denied, provides guidance on the span of time that may elapse between a

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1547 | February 7, 2020 Page 6 of 11 startling event and an utterance. In that case, a victim was found in her

residence, terrified and displaying injuries consistent with a severe beating.

When the police arrived at the scene, the victim told an officer that Ramsey

(who was absent from the residence) had held her against her will for four days

and had threatened to harm her children. The victim appeared to be very upset,

shaken, and nervous. Later, at the hospital, the victim told the same officer that

Ramsey had beaten her repeatedly over a three-day span.

[20] Ramsey argued the trial court erred in allowing the officer to testify as to the

victim’s statements. A panel of this Court noted the officer spoke with the

victim shortly after she had been rescued from her residence, and she displayed

signs consistent with still being under the effects of a traumatic ordeal. The

Court concluded the victim was still under the stress of excitement when she

spoke with the officer, and as a result her statements qualified as excited

utterances that were not subject to the rule against hearsay.

[21] Similarly, in D.G.B. v. State, 833 N.E.2d 519 (Ind. Ct. App. 2005), the parents of

a six-year-old left her in the care of fifteen-year-old D.B.G. When they

returned, they took D.G.B. and the victim to run an errand before returning

home. An hour after they returned, the victim told her mother something was

wrong. The mother discovered the victim was not wearing underwear and was

bleeding profusely from her vagina. D.G.B. claimed the victim had been hurt

during horseplay.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1547 | February 7, 2020 Page 7 of 11 [22] The mother took the victim to the hospital, where doctors discovered the

victim’s vagina was torn, and the nature of the injury was inconsistent with

D.G.B.’s account of how it had occurred. The victim underwent surgery and

spent the night in the hospital. The next morning, the victim appeared to be

upset while having breakfast and pushed her fork and knife to the side. When

her mother asked what was wrong, the victim stated that while she had been

left in D.G.B.’s care, D.G.B. and his friend had held her down and inserted a

fork and knife into her vagina. She also said D.G.B. had threatened to roast her

on a grill and feed her to a dog if she told anyone.

[23] The State alleged D.G.B. was a juvenile delinquent for acts that, if committed

by an adult, would have included Class A felony child molesting. At trial, the

victim’s mother described the victim’s statements to her. The juvenile court

entered a true finding on the child molest allegation. On appeal, D.G.B.

claimed the court should not have admitted the mother’s testimony about the

victim’s statements because they were hearsay. A panel of this Court

concluded that at the time the victim disclosed the abuse to her mother, the

victim was still under the stress of the excitement caused by the sexual assault

because: (1) she could not stop bleeding; (2) she was taken to the emergency

room; (3) she was anesthetized and subjected to surgery without being

sufficiently prepared; and (4) she was confronted at breakfast with the same

type of implements that had injured her. The Court concluded, “We are

convinced that a six-year-old child who suffered the abhorrent molestation that

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1547 | February 7, 2020 Page 8 of 11 F.N. suffered here would remain under the stress of excitement caused by this

event for much longer than the adults [in a different case].” Id. at 527.

[24] In the current case, Houx was living in seven-year-old J.V.’s home and was

temporarily in a position of supervision over her. He suddenly and violently

assaulted J.V., pulling down her pants and underwear and placing his mouth on

her genitals before she was able to break free and run to her mother’s room,

where she cried herself to sleep. Almost immediately upon awakening the next

morning, she left the bedroom, encountered Houx again, and returned to tell

her mother what Houx had done the night before. Rose noted that J.V. was

“really worried and like scared.” Tr. Vol. 2, p. 155. Soon thereafter, when

Rose comforted J.V. as Jose ordered Houx to leave the apartment, J.V. was

[s]cared, shaking violently, crying.” Id. at 161.

[25] We conclude from the foregoing that J.V. was still under the stress of the

excitement caused by Houx’s sexual assault. Similar to the victim in Ramsey,

J.V. was still in her own home, and her attacker was present or could have

returned at any time. In addition, similar to the victim in D.G.B., J.V. was

confronted with a reminder of the assault (seeing Houx) immediately before

disclosing to Rose what had happened. Further, J.V., like the victims in Ramsey

and D.G.B., displayed signs of emotional upset and fear as she told her mother

what Houx had done to her. The trial court did not abuse its discretion by

admitting Rose’s testimony as an exited utterance.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1547 | February 7, 2020 Page 9 of 11 [26] Even if the trial court had erred in admitting Rose’s hearsay testimony, any

error would have been harmless. Indiana Rule of Appellate Procedure 66(A)

provides:

No error or defect in any ruling or order or in anything done or omitted by the trial court or by any of the parties is ground for granting relief or reversal on appeal where its probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.

Thus, we will not reverse a trial court’s evidentiary ruling if we may sustain it

on any ground. Chambless, 119 N.E.3d at 188.

[27] During the trial, J.V. stated that Houx “licked” her “private” with his tongue,

moving his tongue “up and down” as she fought with him. Tr. Vol. 2, p. 139.

She also agreed that Houx was the person who had “licked her pee-pee.” Id. at

141. In addition, the forensic nurse who had examined J.V. discovered leg

abrasions that were consistent with J.V.’s description of struggling against

Houx. The nurse also found a spot of redness on J.V.’s labia, which she

deemed inconsistent with mere hygienic issues. Finally, DNA testing of

Houx’s sample and a sample generated from the interior crotch of J.V.’s

underwear revealed that the samples had similar characteristics. Only one in

699 males have similar characteristics, including Houx’s male relatives, and

none of his male relatives lived in Indiana.

[28] Houx argues that J.V. made inconsistent statements as to where he licked her

on her body and concludes there is a reasonable doubt as to whether he

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1547 | February 7, 2020 Page 10 of 11 molested her. This is a request to reweigh the evidence, which violates our

standard of review. There is ample independent evidence to sustain Houx’s

conviction, and any error in the admission of Rose’s testimony about what J.V.

said to her was minor in impact and could not have affected Houx’s substantial

rights.

Conclusion [29] For the reasons stated above, we affirm the judgment of the trial court.

[30] Affirmed.

Riley, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1547 | February 7, 2020 Page 11 of 11