Opinion
24A-CR-461
10-03-2024
Jaime Gaspar, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General Daylon L. Welliver Deputy Attorney General Indianapolis, Indiana ATTORNEY FOR APPELLANT Brian A. Karle Ball Eggleston, PC
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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Marion Superior Court The Honorable Cynthia L. Oetjen, Judge Trial Court Cause No. 49D30-2110-F4-32273
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General Daylon L. Welliver Deputy Attorney General Indianapolis, Indiana
ATTORNEY FOR APPELLANT Brian A. Karle Ball Eggleston, PC
Weissmann and Foley concur.
MEMORANDUM DECISION
Vaidik, Judge.
Case Summary
[¶1] Jaime Gaspar appeals his convictions for Level 4 felony child molesting and Level 5 felony criminal confinement. We affirm.
Facts and Procedural History
[¶2] A.G. (born in December 2006) and I.M. (born in November 2009) are sisters and live with their mother, father, and other siblings in Indianapolis. Gaspar is A.G. and I.M.'s paternal uncle.
[¶3] When A.G. was around nine years old, she spent the night at Gaspar's house. A.G. played a card game with her cousin in an upstairs bedroom. As A.G. walked out of the room to go to the bathroom, she walked past another room that Gaspar was in. Gaspar stopped her from going to the bathroom. Gaspar then locked the door of his room with A.G. inside. A.G. wanted to leave, but Gaspar wouldn't let her. Gaspar touched A.G on the "bottom" part of her body between her knees and waist, which made her feel uncomfortable. Tr. Vol. II p. 102. A.G. was in the locked room for more than a minute.
[¶4] When I.M. was nine years old, she went to Gaspar's house for a family gathering. At some point, I.M. went into Gaspar's bedroom, where her younger sister was lying on the bed watching television with Gaspar. I.M. lay down between them. After about ten minutes of watching a movie, Gaspar started rubbing I.M.'s thigh. Gaspar then moved his hand underneath I.M.'s underwear and touched her body part where "pee" comes out. Id. at 69. Gaspar moved his hand around and tried to put his fingers inside. When they heard I.M.'s family preparing to leave, Gaspar stopped and told her not to tell anyone.
[¶5] A.G. alleged child molesting against Gaspar in 2020, but no charges were filed. Then, in April 2021, after hearing a body-safety presentation at school, I.M. told her teacher that someone had touched her in a way that made her feel uncomfortable. The teacher sent I.M. to the school social worker, and I.M. told the social worker that when she was nine, she "had a really close uncle that touched [her] in the wrong place that he shouldn't." Id. at 76. The social worker reported I.M.'s disclosure to the Indiana Department of Child Services, and I.M. underwent a forensic interview in May 2021. The case was referred to the Indianapolis Metropolitan Police Department, where it was assigned to a childabuse detective.
[¶6] The State charged Gaspar with two counts of Level 4 felony child molesting (touching or fondling of A.G. and I.M.) and one count of Level 5 felony criminal confinement (A.G.). Five witnesses testified at the bench trial: A.G. (who was then sixteen), I.M. (who was then fourteen), the school social worker, the forensic interviewer, and the child-abuse detective. During opening statements, defense counsel noted that I.M. delayed in reporting the molestation and claimed that there was "no reason for the delay in the report." Id. at 52. I.M. testified as detailed above. A.G. testified as detailed above, but the State had difficulty getting her to answer questions and give specifics about the touching in the locked room. The social worker testified that I.M. made a disclosure to her after a body-safety presentation at school. When the State asked the social worker about the nature of I.M.'s disclosure, Gaspar objected on hearsay grounds. See id. at 56. The State responded that the social worker could testify about the nature of the disclosure so long as she didn't repeat what I.M. had told her. The trial court overruled Gaspar's objection, and the social worker testified that I.M. made a disclosure of "sexual assault." Id. The forensic interviewer then testified-without any objection-that I.M. disclosed "sexual abuse" during her forensic interview. Id. at 110. Finally, the detective testified that A.G. had alleged child molesting against Gaspar in 2020 and she was assigned that case, but no charges were filed then. In addition, the detective testified-again without any objection-that in 2021 she was assigned this case involving A.G.'s and I.M.'s allegations of "child molest[ing]" against Gaspar. Id. at 114.
[¶7] The judge found Gaspar guilty of molesting I.M. Although the judge found Gaspar guilty of criminally confining A.G., it found him not guilty of molesting her because "while I believe something happened, . . . it was not clear exactly what happened." Id. at 125. The judge explained that the State "tried five ways to Sunday" to get A.G. to testify about the touching in the locked room, but A.G. "couldn't get it out." Id. The judge sentenced Gaspar to an aggregate term of six years in prison.
[¶8] Gaspar now appeals.
Discussion and Decision
I. The trial court did not err in admitting the social worker's testimony that I.M. disclosed a sexual assault to her
[¶9] Gaspar first contends that the trial court erred in admitting the social worker's testimony that I.M. disclosed a sexual assault to her because it constitutes inadmissible hearsay and improperly vouched for I.M.'s credibility. Challenges to the admission of evidence are ordinarily reviewed for an abuse of discretion. Fansler v. State, 100 N.E.3d 250, 253 (Ind. 2018).
[¶10] The State responds that Gaspar opened the door to the social worker's testimony by claiming during opening statements that I.M. delayed in reporting the molestation for "no reason." "Opening the door refers to the principle that where one party introduces evidence of a particular fact, the opposing party is entitled to introduce evidence in explanation or rebuttal thereof, even though the rebuttal evidence otherwise would have been inadmissible." Wilder v. State, 91 N.E.3d 1016, 1023 (Ind.Ct.App. 2018) (quotation omitted); see also Sampson v. State, 38 N.E.3d 985, 992 n.4 (Ind. 2015) (providing that vouching evidence that would normally be inadmissible may be admitted if the defendant opens the door to questioning on that evidence). Evidence that opens the door "must leave the trier of fact with a false or misleading impression of the facts related." Wilder, 91 N.E.3d at 1023 (quotation omitted). "When that happens, the State may introduce otherwise inadmissible evidence if it is a fair response to evidence elicited by the defendant." Id. (quotation omitted). While an opening statement is not evidence, counsel may open the door to permit the admission of otherwise inadmissible evidence through an opening statement. Singh v. Lyday, 889 N.E.2d 342, 351 (Ind.Ct.App. 2008), reh'g denied, trans. denied.
[¶11] Here, defense counsel said during opening statements that I.M. delayed in reporting the molestation for "no reason." This called into question I.M.'s motive for disclosing when she did. The evidence that I.M. made a disclosure of sexual abuse in response to a body-safety presentation at school explained why she disclosed when she did, in direct response to defense counsel's claim that there was "no reason" for I.M.'s delayed disclosure. Because Gaspar opened the door to the social worker's testimony, the trial court did not err in admitting it.
[¶12] In any event, Gaspar wasn't harmed by the admission of the evidence. See Ind. Appellate Rule 66(A); Hayko v. State, 211 N.E.3d 483, 492 (Ind. 2023), reh'g denied, cert. denied. I.M. testified in detail about how Gaspar touched her when she was nine. I.M. also testified that after a body-safety presentation at school a few years later, she told the school social worker that when she was nine, she "had a really close uncle that touched [her] in the wrong place that he shouldn't." The social worker's testimony was brief (four pages of the transcript). She said that after a body-safety presentation at school, I.M. made an allegation of "sexual assault." Importantly, she did not mention Gaspar's name or go into the details of what I.M. had told her. Moreover, the forensic interviewer and detective testified, without any objection from Gaspar, that I.M. had alleged sexual abuse. Given this evidence, Gaspar has failed to show that the social worker's testimony harmed him. See Kress v. State, 133 N.E.3d 742, 747-48 (Ind.Ct.App. 2019) (finding any error in allowing three witnesses to give general testimony about the existence of child-molesting allegations to be harmless where the victim was the first witness to testify, gave specific, descriptive testimony about the touching, and was subjected to cross-examination), trans. denied; cf. Modesitt v. State, 578 N.E.2d 649, 654 (Ind. 1991) (finding reversible error where three witnesses testified in detail and over objection about what the victim had told them in "drumbeat" fashion about the alleged molestation before the victim herself testified).
II. The evidence is sufficient to support Gaspar's criminal-confinement conviction
[¶13] Gaspar next contends that the evidence is insufficient to support his criminal-confinement conviction. Specifically, he argues that A.G.'s testimony should be disregarded under the doctrine of incredible dubiosity. Under this doctrine, we can impinge upon a fact-finder's responsibility to judge the credibility of the witnesses when "the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it." Hampton v. State, 921 N.E.2d 27, 29 (Ind.Ct.App. 2010), reh'g denied, trans. denied. The doctrine "requires that there be: 1) a sole testifying witness; 2) testimony that is inherently contradictory, equivocal, or the result of coercion; and 3) a complete absence of circumstantial evidence." Moore v. State, 27 N.E.3d 749, 756 (Ind. 2015). Application of this rule is rare. Leyva v. State, 971 N.E.2d 699, 702 (Ind.Ct.App. 2012), trans. denied.
[¶14] Gaspar claims that A.G. gave contradictory testimony about where Gaspar touched her (below her waist or breasts) and where the incident occurred (Gaspar's house or her house). As the trial court recognized and the transcript reveals, the State had a difficult time getting A.G. to give details about Gaspar's touching of her in the locked room. The State tried many strategies, including having A.G. talk about other times that Gaspar had touched her. These other times involved Gaspar touching A.G.'s breasts at her house. According to the State's arguments below and on appeal, A.G.'s testimony was not inconsistent about the same event but rather "moved back and forth between different events." Appellee's Br. p. 18; see also Tr. Vol. II pp. 122-23. A.G.'s lack of details about the touching in the locked room is precisely why the judge found Gaspar not guilty of molesting her. Still, the judge found A.G. to be "[o]ne hundred percent credible" and that the State proved the elements of criminal confinement beyond a reasonable doubt. Tr. Vol. II p. 125. Notably, Gaspar points to no alleged inconsistencies in A.G.'s testimony about him locking her in his room and not letting her leave. Because Gaspar has failed to satisfy the second requirement of the incredible-dubiosity doctrine, his sufficiency challenge fails.
[¶15] Affirmed.
Weissmann, J., and Foley, J., concur.