Opinion
24A-CR-1074
12-06-2024
Jancey Alamos, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Josiah Swinney Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General, Caroline G. Templeton Supervising Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Hendricks Superior Court The Honorable Daniel Zielinski, Judge Trial Court Cause No. 32C01-2112-F4-000049
ATTORNEY FOR APPELLANT Josiah Swinney Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General, Caroline G. Templeton Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Felix, Judge
Statement of the Case
[¶1] Jancey Alamos twice molested his daughter P.A. when she was under the age of 14. The State charged Alamos with two counts of child molesting. At trial, a forensic interviewer testified about the delayed disclosure process for victims of child sexual abuse. A jury found Alamos guilty as charged. Alamos appeals and presents two issues for our review:
1. Whether the trial court committed fundamental error by admitting the forensic interviewer's testimony; and
2. Whether the State presented sufficient evidence to support Alamos's convictions for child molesting.
[¶2] We affirm.
Facts and Procedural History
[¶3] Alamos and his wife Chandi had two children together, P.A. and C.A., before divorcing in 2017. During their marriage, the family lived in Texas. After the divorce, Chandi moved to Louisiana, and Alamos moved to Indiana. Alamos and Chandi had joint legal custody of the children while Chandi had primary physical custody. The children stayed with Chandi during the school year and spent summer break as well as some holidays with Alamos.
[¶4] In 2019, when P.A. was eight years old, she visited Alamos for Christmas at his home in Hendricks County, Indiana. During the visit, P.A. and C.A. went to their grandmother's house with Alamos. There, Alamos called P.A. to one of the bedrooms, leaving C.A. in the living room alone. Once P.A. got to the bedroom, Alamos shut the door, and P.A. laid down on the bed. Alamos got on top of P.A., pulled down her shorts, and started "rubbing [her] vagina." Tr. Vol. II at 59. Although Alamos did not say anything while he was rubbing her vagina, afterward, he asked P.A. whether she thought what he had done was "weird." Id. at 60. He also told her "not to tell anyone" about what he had done. Id.
[¶5] In 2021, when P.A. was ten years old, she again visited Alamos at his home in Indiana. One night during her visit, P.A. was sleeping on the couch in the living room when she woke up to find Alamos lying right next to her. Alamos started reaching towards P.A.'s "crotch area," Tr. Vol. II at 64, and started "cupping" P.A.'s vagina over her sweatpants, id. at 65. P.A. got off the couch, went to the bathroom, and started crying. When P.A. returned to the living room, Alamos told her that he was sorry and that "he wouldn't do it again." Id. at 66.
[¶6] In October 2021, P.A. told Chandi about the two incidents, and Chandi reported the allegations to law enforcement. As part of the investigation, P.A. underwent a forensic interview at a child advocacy center in Shreveport, Louisiana. On December 9, 2021, the State charged Alamos with two counts of child molesting as Level 4 felonies.
[¶7] At trial, Anna Cope, a director and forensic interviewer at an Indiana child advocacy center, testified about her experience conducting almost 2000 interviews of child sexual abuse victims and described the delayed disclosure process as follows:
Yeah, so there is [sic] different phases that a child will go through when they are going through the process of disclosure. The first part of that is denial, they will often times deny about what is happening with them. Then they will go to tentative disclosure where they will just kind of little tip of the ice berg [sic], they just give a little bit . . . sometimes they will just call it a little nugget of information. [T]hen they can go into active disclosure where they are wanting to talk about it more, there is more information that they will give. [A]fter active, sometimes they will go through recantation. [F]or example if they are in a home that does not have the supportive care giver . . ., they are highly likely to recant the abuse that is going on with them. And that is just because of somethings could happen like a birthday party and that side of the family didn't go to or . . . you know, the mother could have been the perpetrator and then the father and the child loose [sic] their home because the mother was the primary bread winner in that home so there is [sic] lots of things that could happen for that child to recant. [B]ut often time[s] they will go through re-affirmation through therapy and . . . re-affirm that the abuse did happen.Tr. Vol. II at 93-94. A jury found Alamos guilty as charged, and the trial court sentenced Alamos to a total of 12 years of incarceration. Alamos now appeals.
Discussion and Decision
1. The Trial Court Did Not Commit Fundamental Error by Admitting Cope's Testimony
[¶8] Alamos contends that Cope's testimony amounted to impermissible vouching. Alamos did not object to the testimony at trial, so "he waives the issue for review unless fundamental error occurred." Sampson v. State, 38 N.E.3d 985, 992 (Ind. 2015) (quoting Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013)). "An error is fundamental, and thus reviewable on appeal, if it 'made a fair trial impossible or constituted a clearly blatant violation of basic and elementary principles of due process presenting an undeniable and substantial potential for harm.'" Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018) (quoting Knapp v. State, 9 N.E.3d 1274, 1281 (Ind. 2014)).
[¶9] Alamos claims that the trial court committed fundamental error by admitting Cope's testimony in violation of Indiana Evidence Rule 704(B), which provides: "Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions." This type of testimony "invades the province of the jury in determining what weight to give a witness's testimony." Henson v. State, 237 N.E.3d 1160, 1165 (Ind.Ct.App.) (citing Gutierrez v. State, 961 N.E.2d 1030, 1034 (Ind.Ct.App. 2012)), trans. denied, --N.E.3d --, 2024 WL 4533031 (Ind. 2024). However, we have "repeatedly found no Rule 704(b) violation where a witness testified about how child sexual-abuse victims behave in general without making a statement about the specific victim." Id. at 1166 (citing Ward v. State, 203 N.E.3d 524 (Ind.Ct.App. 2023); Hobbs v. State, 160 N.E.3d 543, 555 (Ind.Ct.App. 2020)). "Child sexual-abuse cases are one of the rare times where the trial court may allow testimony explaining common reactions of victims or providing context for a victim's demeanor during their testimony." Id. at 1167. Further, the defense may open the door to this testimony by "highlighting a specific unexpected behavior" from the victim, calling the child's credibility into question. Id. (citing Steward v. State, 652 N.E.2d 490, 493, 499 (Ind. 1995)).
[¶10] Alamos claims that Cope's testimony indirectly vouched for the truthfulness of P.A.'s testimony "because 1) P.A.'s disclosure was delayed and 2) she was interviewed in a similar system with 'less suggestibility' where children are allowed to speak freely without coercion." Appellant's Br. at 9. Regarding the delayed disclosure, Cope testified based on her interviews of children who had experienced sexual abuse. During this testimony, Cope did not reference P.A. or the credibility of P.A.'s testimony. We also note that Alamos called P.A.'s credibility into question in his opening statement by highlighting that it took "nearly two years" for her to tell her mother about the incident and claiming there was no "reasonable explanation" for this delay. Tr. Vol. II at 20. Thus, we conclude that Cope's testimony about delayed disclosure did not violate Evidence Rule 704(b). See Henson, 237 N.E.3d at 1160, 1167.
[¶11] Additionally, Alamos claims that Cope improperly vouched for an "out-of-state disclosure process," Appellant's Br. at 8, referring to P.A.'s forensic interview that took place at a Louisiana child advocacy center. Cope testified about the similarities between the protocols used in Indiana and those used in Louisiana without referencing P.A.'s interview that took place in Louisiana or any testimony about the interview. Again, we conclude that Cope's testimony about the disclosure protocols in Louisiana did not violate Evidence Rule 704(b). See Ward, 203 N.E.3d at 532 (citing Malinski v. State, 794 N.E.2d 1071, 1083 (Ind. 2003)) ("Rule 704(b) is not violated by testimony that does not offer an opinion about whether any particular statement by a witness is true or not."). Because Cope's testimony did not violate Evidence Rule 704(b), we conclude that the trial court did not commit fundamental error by admitting her testimony.
2. The State Presented Sufficient Evidence to Support Alamos's Convictions
[¶12] Alamos argues that the State presented insufficient evidence at trial to support his convictions for child molesting as a Level 4 felony. Our Supreme Court has explained our standard of review for such a claim as follows:
Sufficiency-of-the-evidence claims trigger a deferential standard of review in which we "neither reweigh the evidence nor judge witness credibility, instead reserving those matters to the province of the jury." Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018). A conviction is supported by sufficient evidence if "there is substantial evidence of probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt." Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015). In conducting that review, we consider only the evidence that supports the jury's determination, not evidence that might undermine it. Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024).
Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024).
[¶13] In order to convict Alamos for child molesting as a Level 4 felony under Indiana Code section 35-42-4-3(b), the State had to prove beyond a reasonable doubt that Alamos, "with a child under fourteen (14) years of age, perform[ed] or submit[ed] to any fondling or touching, of either the child or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person."
[¶14] Initially, Alamos claims that the State failed to prove he touched P.A.'s vagina during the first incident. Alamos points us to P.A.'s testimony that Alamos had touched her "around" her vagina, Tr. Vol. II at 58, claiming that this testimony was insufficient to show he touched her vagina. However, this argument ignores that P.A. later explicitly described Alamos's conduct as "rubbing my vagina." Id. at 59. Alamos's interpretation of P.A.'s testimony is a request for us to reweigh the evidence, which we will not do. See Hancz-Barron, 235 N.E.3d at 1244 (quoting Brantley, 91 N.E.3d at 570).
[¶15] Next, Alamos argues that the State failed to prove intent for both convictions. It is well established that the element of intent of child molesting may be proven by circumstantial evidence. Norton v. State, 137 N.E.3d 974, 987 (Ind.Ct.App. 2019) (quoting Wise v. State, 763 N.E.2d 472, 475 (Ind.Ct.App. 2002)). The "intent to arouse or to satisfy sexual desires may be inferred from evidence that the defendant intentionally touched the child's genitals." Holden v. State, 149 N.E.3d 612, 616 (Ind.Ct.App. 2020) (citing Winters v. State, 727 N.E.2d 758, 761 (Ind.Ct.App. 2000)), trans. denied. Additionally, "[t]he testimony of a sole child witness is sufficient to sustain a conviction for molestation." Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012) (citing Stewart v. State, 768 N.E.2d 433, 436 (Ind. 2002)).
[¶16] P.A. testified about both incidents where Alamos touched her vagina. In the first incident, Alamos pulled down P.A.'s shorts and started rubbing her vagina. Once he was finished, Alamos told P.A. "not to tell anyone." Tr. Vol. II at 60. In the second incident, Alamos laid down next to P.A. while she was sleeping and touched her vagina over her clothes. Alamos then told P.A. that "he wouldn't do it again." Id. at 66. Alamos's desire for his conduct to remain a secret between him and P.A. and his promise that "he wouldn't do it again" show an acknowledgement of the wrongfulness of his conduct. We conclude that P.A.'s testimony about the two incidents was sufficient to support an inference that Alamos had the necessary intent to sustain his convictions for child molestation as a Level 4 felony. See Holden, 149 N.E.3d at 616 (citing Winters, 727 N.E.2d at 761); Hoglund, 962 N.E.2d at 1238 (citing Stewart, 768 N.E.2d at 436).
Conclusion
[¶17] The trial court did not commit fundamental error by admitting Cope's testimony into evidence, and the State presented sufficient evidence to sustain Alamos's two child molesting convictions. We therefore affirm the trial court on all issues raised.
[¶18] Affirmed.
Pyle, J., and Weissmann, J., concur.