Juan Reyes v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 31, 2016
• Docket: 49A02-1604-CR-795
• 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 Oct 31 2016, 8:46 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Patricia Caress McMath Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Juan Reyes, October 31, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1604-CR-795 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Sheila A. Carlisle, Appellee-Plaintiff. Judge

The Honorable Stanley Kroh, Magistrate Trial Court Cause No. 49G03-1410-FA-48641

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-795 | October 31, 2016 Page 1 of 6 Statement of the Case [1] Juan Reyes appeals his convictions for two counts of child molesting, as Class

A felonies, following a jury trial. Reyes presents a single issue for our review,

namely, whether the trial court committed fundamental error when it permitted

State’s witnesses to present certain testimony. We affirm.

Facts and Procedural History [2] In approximately 2010, Reyes’ children became friends with K.W. and A.W.,

two minor children of neighbors in Reyes’ apartment complex. K.W. and

A.W. often visited with Reyes’ children and spent the night at Reyes’

apartment. In approximately 2012 or 2013, when K.W. was in the second or

third grade, Reyes “started touching [her] vagina” on occasion, and he

repeatedly molested K.W. over the course of “[a] few years.” Tr. at 156. Reyes

touched both the “inside and the outside” of K.W.’s vagina with his finger

during the molestations. Id. at 157.

[3] Finally, in October 2014, K.W. told her mother, C.C., about the molestations.

C.C. asked A.W. whether Reyes had molested her, too. A.W. initially

responded in the negative, but a short time later A.W. told C.C. that Reyes had

molested her. C.C. and her husband contacted the children’s father, Ar.W.,

and he came to the apartment. Then the three of them contacted the police that

same night. During the ensuing investigation, Jill Carr, a child forensic

interviewer with Legacy House, interviewed K.W. and A.W., who both told

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-795 | October 31, 2016 Page 2 of 6 Carr that Reyes had “touched” them and that it had been going on for “quite

some time.” Id. at 227-28.

[4] The State charged Reyes with eight counts of child molesting, three as Class A

felonies (K.W.), one as a Level 1 felony (K.W.), three as Class C felonies

(A.W.), and one as a Level 4 felony (A.W.). At trial, the State dismissed the

Level 1 felony count, and the jury found Reyes guilty of the three counts of

child molesting, as Class A felonies, but acquitted him of the remaining

charges. The trial court entered judgment of conviction for two counts of child

molesting, as Class A felonies, and sentenced Reyes to two concurrent thirty-

year sentences. This appeal ensued.

Discussion and Decision [5] Reyes contends that the trial court committed fundamental error when it

permitted testimony by State’s witnesses that he alleges constituted inadmissible

hearsay. Reyes did not object to the challenged testimony at trial. The

fundamental error doctrine is an exception to the general rule that the failure to

object at trial constitutes procedural default precluding consideration of the

issue on appeal. Sampson v. State, 38 N.E.3d 985, 992 (Ind. 2015) (citation

omitted). This exception applies only when the error constitutes a blatant

violation of basic principles, the harm or potential for harm is substantial, and

the resulting error denies the defendant fundamental due process. Id. Harm is

not shown by the fact that the defendant was ultimately convicted; rather harm

is found when error is so prejudicial as to make a fair trial impossible. Id.

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-795 | October 31, 2016 Page 3 of 6 [6] Reyes maintains that the following testimony constituted inadmissible hearsay:

• On direct examination of Indianapolis Metropolitan Police Department (“IMPD”) Officer Noel Gudat, the prosecutor asked him whether, after talking to K.W.’s parents, he had learned “the name of the person who had done this” and his address. Tr. at 98. Officer Gudat responded that they had identified Reyes as the suspect and they had disclosed Reyes’ home address.

• On direct examination of IMPD Detective Gregory Norris, the prosecutor asked him whether, during the course of his investigation, he had “learn[ed] the identity of the person [who] had done these things” to K.W. Id. at 262. Detective Norris testified that Reyes was identified as the suspect and that Reyes was born in 1982.

• Carr testified that the nature of K.W.’s allegations was “being touched” and that “this had been going on for quite some time[.]” Id. at 227-28.

[7] We need not decide whether that testimony constituted inadmissible hearsay

because any error in its admission was harmless.

No error in the admission of evidence is ground for setting aside a conviction unless such erroneous admission appears inconsistent with substantial justice or affects the substantial rights of the parties. The improper admission of evidence is harmless error when the conviction is supported by such substantial independent evidence of guilt as to satisfy the reviewing court that there is no substantial likelihood that the questioned evidence contributed to the conviction. To decide if the erroneous admission of prejudicial evidence of extrinsic offenses is harmless, we therefore evaluate whether the jury’s verdict was substantially swayed.

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-795 | October 31, 2016 Page 4 of 6 Wickizer v. State, 626 N.E.2d 795, 800 (Ind. 1993) (citations omitted). In

particular, the admission of evidence is harmless and is not grounds for reversal

where the evidence is merely cumulative of other evidence properly admitted.

Smart v. State, 40 N.E.3d 963, 966 (Ind. Ct. App. 2015).

[8] Here, K.W. and A.W. both testified that Reyes, who lived in an apartment near

theirs in the same complex, was the man who had molested them, so the

officers’ testimony regarding his name and address was merely cumulative and

did not impact Reyes’ substantial rights. And, while Reyes’ birthdate was

relevant to prove that he was at least twenty-one years of age when the crimes

occurred, the State presented evidence that, at the time of trial, Reyes had been

married for fourteen years and has four biological children. A reasonable fact-

finder could have inferred from that evidence that Reyes was at least twenty-

one at the time of the offenses, and, as such, Detective Norris’ testimony was

cumulative of that evidence. Finally, K.W. and A.W. testified regarding the

details of the alleged molestations, including the timeframe. Carr’s testimony

regarding what K.W. and A.W. had told her during interviews was merely

cumulative of their trial testimony.

[9] Reyes has not demonstrated that the trial court committed fundamental error

when it permitted the challenged testimony. Indeed, any error in the admission

of that testimony was harmless.

[10] Affirmed.

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-795 | October 31, 2016 Page 5 of 6 Vaidik, C.J., and Baker, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-795 | October 31, 2016 Page 6 of 6