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
