MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                             FILED
Memorandum Decision shall not be regarded as
                                                                    Aug 24 2017, 6:44 am
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,                    CLERK
                                                                    Indiana Supreme Court
collateral estoppel, or the law of the case.                           Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Scott H. Duerring                                      Curtis T. Hill, Jr.
South Bend, Indiana                                    Attorney General of Indiana
                                                       James B. Martin
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Tony Arguello,                                             August 24, 2017

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           71A03-1703-CR-654

        v.                                                 Appeal from the St. Joseph Superior
                                                           Court
State of Indiana,                                          The Hon. Jeffrey L. Sanford, Judge
                                                           Trial Court Cause No.
Appellee-Plaintiff.
                                                           71D03-1605-F1-11




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-654 | August 24, 2017       Page 1 of 10
                                          Case Summary
[1]   In November of 2014, Ashley Wharton, her husband, and her three children,

      including four-year-old B.W. and six-year-old A.W., moved into the home of

      Clarice Wharton, her mother-in-law. Clarice was living there with Appellant-

      Defendant Tony Arguello. Between November of 2014 and May of 2016,

      Arguello inserted his penis into A.W.’s vagina, performed oral sex on her, and

      digitally penetrated her vagina and anus. Also during that period, Arguello

      submitted to oral sex by B.W. and performed oral sex on him. In an interview

      with a police detective, Arguello confessed to committing the above acts with

      A.W.


[2]   The State charged Arguello with seven counts of Level 1 felony child molesting,

      and, following a jury trial, he was convicted of six counts and received an

      aggregate sentence of 160 years of incarceration. Arguello contends that

      fundamental error occurred when (1) a sexual assault nurse examiner testified

      that A.W. told her that someone had anally penetrated her with his penis and

      (2) the State failed to satisfy the corpus delicti requirement for three of the charges

      against him. Because we disagree, we affirm.



                            Facts and Procedural History
[3]   Ashley, her husband, and her three children, A.W., B.W., and a younger son

      moved into Clarice’s home at 1729 Robinson Street, South Bend, in November

      of 2014. Clarice and her boyfriend Arguello lived in the home when Ashley’s


      Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-654 | August 24, 2017   Page 2 of 10
      family moved in. B.W. was four years old and A.W. was six years old when

      they moved in. Clarice’s house has two bedrooms upstairs and one in the

      basement. Clarice slept on a pull-out bed on the main floor, Ashley and her

      husband had a bedroom in the basement, and B.W. and A.W. were in a

      bedroom across from Arguello’s bedroom upstairs.


[4]   Arguello lived in Clarice’s house the entire time Ashley and her family lived

      there, with the exception of a few months when he had his own place in May

      through August of 2015. The house Arguello lived in during that period was

      only a short walk from Clarice’s. Arguello babysat for A.W. and B.W. often,

      and they regarded him as a grandfather. The children missed Arguello very

      much when he was living in his own place, and they visited him at his place

      and stayed overnight.


[5]   Arguello started touching A.W. sexually when she was five years old, having

      A.W. remove her clothes in the basement. Arguello touched A.W. with his

      hands and with his penis (which A.W. called his “popcorn”) on her vagina

      (which A.W. called her “popsicle”). Tr. Vol. III p. 28. Arguello did this to

      A.W. in both the upstairs bedroom and in the basement. A.W. said that white,

      “watery stuff” would come out of Arguello’s “popcorn” onto her stomach when

      he did this. Tr. Vol. III p. 29. Arguello ejaculated into A.W.’s mouth, and

      A.W. described that it tasted like “socks in a sewer[.]” Tr. Vol. III p. 33.

      Arguello licked A.W.’s vagina and put candy on it, then would remove the

      candy with his mouth. Arguello did these things to A.W. upstairs and in the

      basement. A.W. explained that it was easier to clean up Arguello’s ejaculate in

      Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-654 | August 24, 2017   Page 3 of 10
      the basement. Arguello also asked A.W. to “pee” on him. Tr. Vol. III at 40.

      A.W. did this to Arguello and Arguello also urinated on A.W. Arguello

      referred to this as “golden showers[.]” Tr. Vol. III p. 41. Arguello also inserted

      a straw into A.W.’s vagina and her “butt” and rubbed them with it. Tr. Vol. III

      p. 47. Arguello asked A.W. to be his girlfriend.


[6]   Arguello also touched B.W. sexually when he was alone with him. Arguello

      would touch his penis to B.W.’s penis, which B.W. referred to as a “pee pee[,]”

      and rub them together. Tr. Vol. III p. 63. When Arguello did this, B.W. said

      “[h]oney would come out[.]” Tr. Vol. III p. 64. B.W. explained that he and

      Arguello would wipe the “honey” up with a towel. Arguello did this to B.W. at

      his house. Arguello would also touch B.W.’s “butt” with his penis and “rub

      it[,]” which hurt, according to B.W. Tr. Vol. III pp. 70–71. Arguello also put

      B.W.’s “pee pee” in his mouth. Tr. Vol. III p. 71.


[7]   In May of 2016, Ashley had a conversation with the children about

      inappropriate touching. After this conversation, Ashley called the South Bend

      Police Department, and officers came to Clarice’s house. Ashley and the

      children were referred to the CASIE Center, where A.W. and B.W. were

      interviewed. Afterward, A.W. and B.W. were taken to the emergency room of

      St. Joseph Memorial Hospital, where sexual assault nurse examiner Abbie

      Baker examined both children for injury from sexual assault. Nurse Baker’s

      examination of A.W. revealed redness to her labia majora and a pronounced

      and abnormal dilation of the sphincter muscles of A.W.’s anus.



      Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-654 | August 24, 2017   Page 4 of 10
[8]   On May 19, 2016, South Bend Police Detective Maranda Baker interviewed

      Arguello. Arguello told Detective Baker that he had penetrated A.W.’s vagina

      with his middle and index fingers, and that he had vaginally penetrated her on

      three occasions. Arguello also said that he had penetrated A.W.’s anus with

      one finger, and that this had occurred on three occasions as well. Arguello

      stated that A.W. had sat on his face, and that this had happened “no more

      than” four times. State’s Ex. 26 at 17:52:27, 18:18:39. Arguello explained to

      Detective Baker that when A.W. did this, he was performing oral sex on her.

      Arguello also admitted to placing candy on A.W.’s genitals and removing the

      candy with his mouth. Finally, Arguello said to Detective Baker that A.W.

      would “grind” on him while holding his erect penis and trying to sit on it.

      State’s Ex. 26 at 17:47:32, 17:48:26. Arguello said that A.W. had put his penis

      between her vaginal “lips” on eight different occasions. State’s Ex. 26 at

      18:17:00. Arguello said that when A.W. would do this, the tip of his penis

      would slip inside of her.


[9]   On May 25, 2016, the State charged Arguello with seven counts of Level 1

      felony child molesting, five related to A.W. and two related to B.W. The State

      charged Arguello with the following acts with A.W.: Count I, sexual

      intercourse; Count II, performing oral sex on her; Count III, digitally

      penetrating her vagina; Count IV, digitally penetrating her anus; and Count V,

      submitting to oral sex performed by her. A jury trial took place January 23

      through 25, 2017. The State offered the testimony of Nurse Baker regarding her

      examination of A.W. and B.W. at the St. Joseph Hospital emergency room.


      Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-654 | August 24, 2017   Page 5 of 10
       After Nurse Baker testified about her credentials, experience and practice in

       conducting sexual assault examinations, Arguello objected to her providing any

       testimony regarding what A.W. told her during the examination about how she

       sustained any injuries. The trial court prohibited Nurse Baker from testifying to

       A.W.’s identification of the person who touched her. However, the trial court

       overruled Arguello’s objection to Nurse Baker’s testimony regarding A.W.’s

       statements about what happened to her, explaining that, “What happened to

       her I think is admissible for purposes of treatment. But who did it is not.” Tr.

       Vol. III p. 112. Nurse Baker testified that A.W. told her that a penis had been

       inserted in her anus.


[10]   Arguello’s video recorded interview with Detective Baker was admitted at trial

       after redaction and without objection. After the evidence had been presented,

       Arguello moved for a directed verdict on Count V (which alleged that Arguello

       had submitted to oral sex performed by A.W.), and the State agreed that it had

       not presented evidence to support that charge and moved to dismiss. The jury

       returned verdicts of guilty on all remaining counts. On February 24, 2017, the

       trial court sentenced Arguello to an aggregate sentence of 160 years of

       incarceration.


                                  Discussion and Decision
                                 I. Nurse Baker’s Testimony
[11]   Arguello contends that the trial court abused its discretion in allowing Nurse

       Baker to testify regarding what A.W. told her had happened to her. As

       Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-654 | August 24, 2017   Page 6 of 10
       mentioned, Nurse Baker testified that A.W. told her that she had been anally

       penetrated by a penis. As Arguello points out, however, he was not charged

       with anally penetrating A.W. with his penis. We assume, without deciding,

       that this evidence was not relevant and that a timely objection to it on that basis

       would properly have been sustained.


[12]   Arguello claims, however, that its admission amounts to fundamental error.


               Appellate courts may, on rare occasions, resort to the
               fundamental error exception to address on direct appeal an
               otherwise procedurally defaulted claim. But fundamental error is
               extremely narrow and available only when the record reveals a
               clearly blatant violation of basic and elementary principles,
               where the harm or potential for harm cannot be denied, and
               which violation is so prejudicial to the rights of the defendant as
               to make a fair trial impossible.
       Jewell v. State, 887 N.E.2d 939, 942 (Ind. 2008).


[13]   Considering the overwhelming evidence of Arguello’s guilt, namely A.W.’s trial

       testimony and his own confession, we conclude that he has failed to establish

       fundamental error in this regard. A.W. testified that Arguello touched her with

       his hands and with his penis on her vagina, supporting a reasonable inference of

       sexual intercourse. Tr. Vol. III p. 28. A.W. said that white, “watery stuff”

       would come out of Arguello’s penis onto her stomach when he did this. Tr.

       Vol. III p. 29. A.W. testified that Arguello licked her vagina and put candy on

       it, then would remove the candy with his mouth. Even more damning was

       Arguello’s own confession. Arguello told Detective Baker that he had

       penetrated A.W.’s vagina with his middle and index fingers on three occasions,

       Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-654 | August 24, 2017   Page 7 of 10
       penetrated A.W.’s anus with one finger on three occasions, performed oral sex

       on A.W., and vaginally penetrated A.W. with the tip of his penis. Given the

       overwhelming evidence of Arguello’s guilt, it can hardly be said that the

       admission of Nurse Baker’s testimony was so harmful that the harm or

       potential for harm cannot be denied and was so prejudicial to Arguello’s rights

       as to make a fair trial impossible. Arguello has failed to establish fundamental

       error.


                                            II. Corpus Delicti
[14]   Arguello contends that the State failed to establish corpus delicti for three of the

       four crimes he was convicted of committing against A.W. Arguello did not

       raise this argument below but now claims that fundamental error occurred. As

       mentioned, fundamental error occurs “when the record reveals a clearly blatant

       violation of basic and elementary principles, where the harm or potential for

       harm cannot be denied, and which violation is so prejudicial to the rights of the

       defendant as to make a fair trial impossible.” Jewell, 887 N.E.2d at 942.


[15]   “Proof of the corpus delicti means proof that the specific crime charged has

       actually been committed by someone.” Taylor v. State, 236 Ind. 415, 421, 140

       N.E.2d 104, 108 (1957).


                For a confession to be admitted into evidence, the State must
                establish the corpus delicti. Rickey v. State, 661 N.E.2d 18, 23
                (Ind. Ct. App. 1996), trans. denied. The purpose for requiring
                proof of the corpus delicti is to prevent the admission of a
                defendant’s confession to a crime that never occurred. Hurt v.
                State, 570 N.E.2d 16, 19 (Ind. 1991). The State is not required to

       Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-654 | August 24, 2017   Page 8 of 10
               prove the corpus delicti beyond a reasonable doubt, but must
               present independent evidence from which an inference may be
               drawn that a crime was committed. Douglas v. State, 481 N.E.2d
               107, 110 (Ind. 1985). The corpus delicti need not be established
               prior to admission of the confession so long as the totality of
               independent evidence presented at trial establishes it. Morgan v.
               State, 544 N.E.2d 143, 146 (Ind. 1989). The corpus delicti may
               be established by circumstantial evidence. Grey v. State, 273 Ind.
               439, 442, 404 N.E.2d 1348, 1350 (1980).
       Weida v. State, 693 N.E.2d 598, 600 (Ind. Ct. App. 1998), trans. denied.


[16]   We conclude that Arguello has not established any error in this regard, much

       less fundamental error. Arguello’s argument is that three of his four convictions

       arising out of his molestation of A.W. were insufficiently supported by

       independent evidence. Arguello notes that A.W. did not expressly testified that

       Arguello’s fingers and penis penetrated her vagina and anus, only that he

       “rubbed” her anus and genitalia with his fingers and penis.


[17]   Arguello’s argument seems premised on the notion that each element of each

       charge must be independently corroborated in order the satisfy the corpus delicti

       requirement. Put another way, Arguello would seemingly require the State to

       prove each charge twice in cases involving a confession. The law does not

       require such comprehensive corroboration:

               We are persuaded that where a defendant confesses to several
               crimes of varying severity within a single criminal episode, strict
               and separate application of the corpus delicti rule to each offense
               adds little to the ultimate reliability of the confession once
               independent evidence of the principal crimes is introduced. The
               confession at that point has been substantially corroborated. In

       Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-654 | August 24, 2017   Page 9 of 10
               such a case the confession stands as direct evidence of each
               crime, even those not separately corroborated, if the independent
               evidence establishes the corpus delicti of the principal crime or
               crimes.
       Willoughby v. State, 552 N.E.2d 462, 467 (Ind. 1990).


[18]   At issue here are the charges that Arguello had sexual intercourse with A.W.

       and digitally penetrated her anus and vagina. Nurse Baker testified that her

       examination of A.W. revealed redness to her labia majora and a pronounced

       and abnormal dilation of the sphincter muscles of her anus. Nurse Baker also

       testified that digital penetration could cause redness to the labia and anal

       dilation. Moreover, based on the above, we conclude that one could reasonably

       infer that redness to the labia could have been caused by penile penetration as

       well. Nurse Baker’s testimony is sufficient to raise an inference that the crimes

       charged were committed by someone, which is all that is required. Arguello

       has failed to establish error in this regard, much less fundamental error.


[19]   We affirm the judgment of the trial court.


       May, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-654 | August 24, 2017   Page 10 of 10
