MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 Jan 15 2016, 8:33 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Chris Palmer                                             Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Melvin Duarte,                                           January 15, 206
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1506-CR-578
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Marc T.
Appellee-Plaintiff.                                      Rothenberg, Judge
                                                         The Honorable Amy J. Barbar,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G02-1311-FA-75146



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-578 | January 15, 2016       Page 1 of 12
                                          Statement of the Case
[1]   Melvin Duarte (“Duarte”) appeals his convictions for Class A felony attempted

      child molesting1 and Class C felony child molesting.2 Duarte argues that the

      trial court erred by denying his motion for a mistrial, which was based on his

      argument that the lack of Hispanic people on the jury venire was a violation of

      his Sixth Amendment right to an impartial jury. Additionally, he argues that

      there was insufficient evidence to support his convictions, contending that the

      victim’s testimony was incredibly dubious. Concluding that Duarte failed to

      make a prima facie showing of a violation of the fair cross-section requirement

      and that the incredible dubiosity rule was not applicable as the victim’s trial

      testimony was unequivocal and was corroborated by other evidence, we affirm

      his convictions.


[2]   Affirmed.


                                                        Issues
               1. Whether the trial court erred by denying Duarte’s motion for a
               mistrial based upon the composition of the jury venire.

               2. Whether sufficient evidence supported Duarte’s convictions.




      1
       IND. CODE §§ 35-42-4-3(a)(1); 35-41-5-1(a). We note that, effective July 1, 2014, a new version of the child
      molesting statute was enacted and that Class A felony attempted child molesting is now a Level 1 felony.
      Because Duarte committed this crime in 2009, we will refer to the statute in effect at that time.
      2
       I.C. § 35-42-4-3(b). Pursuant to the 2014 version of the child molesting statute, this Class C felony child
      molesting offense is now a Level 4 felony.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-578 | January 15, 2016             Page 2 of 12
                                                     Facts
[3]   In 2009, twenty-three-year-old Duarte was a friend of fifteen-year-old A.C. One

      day, Duarte was at A.C.’s house with her and her eight-year-old sister, I.G.,

      while their parents were gone. While I.G. was sitting on the sofa and playing a

      video game, Duarte sat next to her and watched her play. At that time, A.C.

      was in the bathroom. I.G. wanted to move to the other side of the sofa to be

      closer to the television, and she climbed over Duarte, who was sitting in the

      middle of the sofa. Duarte then grabbed I.G. by her hips and made some “up

      and down . . . movements” with his “penis” on her “butt area” while they were

      both clothed. (Tr. 21, 22). I.G. felt “[u]ncomfortable” and told Duarte to stop,

      and she then moved to the other side of the sofa. (Tr. 22).


[4]   Later that same year, Duarte was again at I.G.’s house with I.G. and her sister

      while their parents were gone. Duarte took I.G. for a ride on I.G.’s family’s

      “four wheeler” vehicle and drove to some nearby train tracks. (Tr. 26). Duarte

      stopped at the tracks so that I.G. could drive. They switched seats so that I.G.

      was sitting in front and Duarte was sitting behind her. Duarte had I.G. lower

      her pants and underwear to below her knees and then leaned her toward the

      handlebars. Duarte lowered his pants and “started touching [I.G.] with his

      penis.” (Tr. 32). Specifically, he touched I.G.’s “vagina[,]” which made her

      feel “[w]eird” and “[u]ncomfortable.” (Tr. 32). After Duarte moved his body

      “back and forth[,]” I.G. told him to stop. (Tr. 33). She saw “[w]hite stuff,

      sperm” on his penis. (Tr. 33). Duarte wiped his penis with a tissue and then



      Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-578 | January 15, 2016   Page 3 of 12
      wiped I.G.’s vagina with the same tissue. I.G. did not initially tell anyone what

      Duarte had done to her because she was “scared.” (Tr. 23, 34).


[5]   Shortly after the incident on the four-wheeled vehicle, I.G.’s mother noticed

      that I.G. had an unusual “brownish discharge” in her underwear. (Tr. 70). On

      September 18, 2009, I.G.’s mother took I.G. to the doctor, who examined I.G.

      and tested her for sexually transmitted diseases. The doctor diagnosed I.G.

      with having gonorrhea in her vagina. I.G.’s mother asked I.G. what had

      happened, but she did not reveal what Duarte had done.


[6]   A few days later, on September 22, 2009, A.C. went to the doctor with Duarte,

      and he was diagnosed and treated for gonorrhea.


[7]   In Fall 2013, I.G. eventually told her mother what Duarte had done to her, and

      I.G.’s mother reported it to the police. Thereafter, the State charged Duarte

      with Count I, Class A felony attempted child molesting and Counts II and III,

      Class C felony child molesting.


[8]   The trial court held a jury trial on April 27, 2015. After the jury was selected

      and sworn and before the first witness testified, Duarte made an oral motion for

      a mistrial based upon the composition of the jury. Specifically, Duarte’s

      attorney stated:


              It’s not a Batson Challenge I don’t think, [be]cause I don’t think
              that the [S]tate has systematically tried to exclude you know any
              particular race or anything like that from the jury . . . but there
              were no Hispanics whatsoever reporting for jury duty today.
              And he does have a right I think under the Sixth Amendment to

      Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-578 | January 15, 2016   Page 4 of 12
               some sort of a representative, jury pool as a Hispanic and there
               weren’t any and he doesn’t -- and the -- because of that he doesn’t
               have any Hispanics on the jury either so I’m going to move for a
               mistrial because of that.

       (Tr. 13). When the trial court asked Duarte if he had “any evidence that the

       procedure for getting jurors” was “biased against or exclude[d] Hispanics from

       the random selection” process, Duarte responded that he had no such evidence.

       (Tr. 13). The trial court denied Duarte’s motion, noting that Marion County

       “follow[ed] the same process [as] the rest of the state” and that Duarte had not

       shown that there was a “purposeful exclusion” of Hispanics by the State. (Tr.

       13).


[9]    During the trial, I.G. testified to the facts surrounding the alleged molestations

       as stated above. I.G.’s physician testified that I.G. had been diagnosed with

       gonorrhea in her vagina in September 2009, which was the same time that

       Duarte had been diagnosed with gonorrhea. The doctor testified that

       gonorrhea was a “fastidious bacteria” that was transmitted through “intimate”

       or “sexual” contact with the oral, genital, or rectal areas. (Tr. 98). The doctor

       also testified, however, that it would be possible to transmit the disease without

       penetration by the penis of the vagina and that it could be spread by an infected

       male wiping ejaculate on or around a female’s vagina.


[10]   The jury found Duarte guilty as charged. The trial court merged Count II into

       Count I and entered judgment of conviction on Counts I and III. The trial

       court imposed a thirty (30) year sentence for Duarte’s Class A felony conviction

       in Count I and a four (4) year sentence for his Class C felony conviction in
       Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-578 | January 15, 2016   Page 5 of 12
       Count III. The trial court ordered these sentences to be served concurrently in

       the Department of Correction. Duarte now appeals.


                                                       Decision
[11]   Duarte argues that: (1) his right to an impartial jury under the Sixth

       Amendment to the United States Constitution was violated because there were

       no Hispanic people in the venire from which to select for jury service; and (2)

       there was insufficient evidence to support his convictions. We will address each

       argument in turn.


       1. Composition of Jury Venire

[12]   Duarte first argues that his right to an impartial jury under the Sixth

       Amendment to the United States Constitution was violated because there were

       no Hispanic people on the jury, and he asserts that the trial court should have,

       therefore, granted his motion for a mistrial.3 Stated differently, Duarte

       contends that his jury panel did not contain a fair cross-section of Hispanics.


[13]   “The selection of a petit jury from a representative cross-section of the

       community is an essential component of the Sixth Amendment right to a jury

       trial.” Williams v. State, 877 N.E.2d 845, 846 (Ind. Ct. App. 2007) (citing Wilder

       v. State, 813 N.E.2d 788, 791 (Ind. Ct. App. 2004) (citing Taylor v. Louisiana,




       3
         In his appellate brief, Duarte makes a passing reference to the right to an impartial jury under Article I,
       section 13 of the Indiana Constitution, but he did not raise a state constitutional claim at trial. Accordingly,
       he has waived any such argument. See Grace v. State, 731 N.E.2d 442, 444 (Ind. 2000) (explaining that “any
       grounds not raised in the trial court are not available on appeal”), reh’g denied.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-578 | January 15, 2016               Page 6 of 12
       419 U.S. 522, 528 (1975)), trans. denied), trans. denied. “There is no requirement,

       however, that jury panels be a microcosm of a county or a court district.

       Williams, 877 N.E.2d at 846-47. Indeed, “[j]urors need not be mathematically

       proportioned to the character of the community.” Id. at 847. “The primary

       concern is that juror selection not be arbitrary.” Id.


[14]   For a defendant to succeed on a challenge to a county’s petit jury selection

       process, the defendant must first make a prima facie showing of a violation of

       the fair cross-section requirement. Id. To make such a showing, the defendant

       has the burden of establishing:

               (1) that the group alleged to be excluded is a “distinctive” group
               in the community; (2) that the representation of this group in
               venires from which juries are selected is not fair and reasonable
               in relation to the number of such persons in the community; and
               (3) that this underrepresentation is due to systematic exclusion of
               the group in the jury-selection process.

       Id. (quoting Dye v. State, 717 N.E.2d 5, 19 (Ind. 1999) (quoting Duren v. Missouri,

       439 U.S. 357, 364 (1979)), reh’g denied, cert. denied ). “If a defendant has made a

       prima facie showing of a fair cross-section violation, the State may still justify

       the juror selection process by showing that attainment of a fair cross-section is

       incompatible with a significant state interest.” Id.


[15]   Although not discussed or raised by the parties, we find that Duarte has waived

       appellate review of his challenge to the composition of the jury. Nothing in the

       record on appeal indicates that Duarte objected to the composition of the jury

       prior to them being sworn. Instead, the record seems to indicate that the jury

       Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-578 | January 15, 2016   Page 7 of 12
       was selected and sworn without objection from Duarte until just prior to the

       presentation of the State’s first witness. “A defendant cannot invite error and

       then request relief on appeal based upon that ground.” Lyles v. State, 834

       N.E.2d 1035, 1051 (Ind. Ct. App. 2005), reh’g denied, trans. denied. Because the

       record reveals that Duarte did not object to the composition of the jury until

       after it had already been selected and sworn, he has waived appellate review of

       his challenge to the composition of the jury. See, e.g., Hise v. State, 452 N.E.2d

       913, 914 (Ind. 1983) (holding that the defendant had waived any challenge to

       the jury where he “specifically accepted the jury as sworn prior to moving for a

       mistrial”).


[16]   Waiver notwithstanding, Duarte’s argument is without merit because he failed

       to show that there was a violation of the fair cross-section requirement of the

       Sixth Amendment. Here, at trial, Duarte specifically acknowledged that the

       State was not systemically excluding Hispanics or any other distinctive group

       and that he had no evidence that the procedure for gathering jurors was biased

       against or excluded Hispanics. Because Duarte cannot show that the

       underrepresentation of Hispanics on his jury venire was due to a systematic

       exclusion of such group during the jury-selection process, he has failed to show

       that there was a violation of the fair cross-section requirement of the Sixth

       Amendment. Accordingly, the trial court did not err by denying his motion for

       a mistrial.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-578 | January 15, 2016   Page 8 of 12
       2. Sufficiency of the Evidence

[17]   Next, Duarte argues that the evidence was insufficient to support his

       convictions for Class A felony attempted child molesting as contained in Count

       I and Class C felony child molesting as contained in Count III.


               When reviewing the sufficiency of the evidence to support a
               conviction, appellate courts must consider only the probative
               evidence and reasonable inferences supporting the verdict. It is
               the fact-finder’s role, not that of appellate courts, to assess
               witness credibility and weigh the evidence to determine whether
               it is sufficient to support a conviction. To preserve this structure,
               when appellate courts are confronted with conflicting evidence,
               they must consider it most favorably to the [jury’s verdict].
               Appellate courts affirm the conviction unless no reasonable fact-
               finder could find the elements of the crime proven beyond a
               reasonable doubt. It is therefore not necessary that the evidence
               overcome every reasonable hypothesis of innocence. The
               evidence is sufficient if an inference may reasonably be drawn
               from it to support the verdict.


       Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks

       and citations omitted) (emphasis in original). Furthermore, “[a] molested

       child’s uncorroborated testimony is sufficient to sustain a conviction.” Carter v.

       State, 754 N.E.2d 877, 880 (Ind. 2001), reh’g denied, cert. denied. See also Hoglund

       v. State, 962 N.E.2d 1230, 1238 (Ind. 2012) (“The testimony of a sole child

       witness is sufficient to sustain a conviction for molestation.”), reh’g denied.


[18]   To convict Duarte of Class A felony attempted child molesting as charged in

       Count I, the State was required to prove beyond a reasonable doubt that

       Duarte, who was at least twenty-one (21) years of age, attempted to perform or

       Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-578 | January 15, 2016   Page 9 of 12
       submit to sexual intercourse with I.G., a child under fourteen (14) years of age,

       and took a substantial step toward the commission of the crime by removing

       I.G.’s pants and underwear and attempting to place his penis inside her vagina.

       See IND. CODE §§ 35-42-4-3(a)(1); 35-41-5-1(a).4 To convict Duarte of Class C

       felony child molesting as charged in Count III, the State was required to prove

       beyond a reasonable doubt that Duarte performed or submitted to fondling or

       touching of I.G., a child under fourteen (14) years of age, with intent to arouse

       or satisfy the sexual desires of Duarte or I.G. See I.C. § 35-42-4-3(b).


[19]   Duarte does not dispute that the State presented evidence supporting the

       elements of his two child molesting offenses. Instead, he contends that there

       was insufficient evidence to support his convictions because I.G.’s testimony

       was “inherently improbable” and “inconsistent[,]” which we interpret as an

       incredibly dubiosity challenge. (Duarte’s Br. 10).


[20]   Under the incredible dubiosity rule, appellate courts may impinge upon a trier

       of fact’s function to judge the credibility of a witness when confronted with

       “inherently improbable testimony or coerced, equivocal, wholly uncorroborated

       testimony of incredible dubiosity.” Love v. State, 761 N.E.2d 806, 810 (Ind.

       2002). The incredible dubiosity rule is limited to cases where a single witness

       presents “inherently contradictory testimony that is equivocal or coerced and




       4
         At the time of Duarte’s offense, sexual intercourse was defined as “an act that includes penetration of the
       female sex organ by the male sex organ.” I.C. § 35-41-1-26 (now codified at I.C. § 35-31.5-2-302 (eff. July 1,
       2012)).

       Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-578 | January 15, 2016           Page 10 of 12
       there is a complete lack of circumstantial evidence of guilt.” Whedon v. State,

       765 N.E.2d 1276, 1278 (Ind. 2002). “Application of this rule is rare and the

       standard to be applied is whether the testimony is so incredibly dubious or

       inherently improbable that no reasonable person could believe it.” Love, 761

       N.E.2d at 810.


[21]   In support of Duarte’s argument that I.G.’s testimony was incredibly dubious,

       he argues that there were inconsistencies between I.G.’s trial testimony and her

       statement to the police, her prior deposition testimony, and her recounting of

       the molestations to her mother. Any such inconsistencies, however, do not

       make I.G.’s testimony incredibly dubious. Indeed, inconsistencies between a

       witness’s pretrial statement and trial testimony do not make the testimony

       inherently contradictory. Corbett v. State, 764 N.E.2d 622, 626 (Ind. 2002). See

       also Murray v. State, 761 N.E.2d 406, 409 (Ind. 2002) (“The fact that a witness

       gives trial testimony that contradicts earlier pre-trial statements does not

       necessarily render the trial testimony incredibly dubious.”). “If the testimony

       believed by the trier of fact is enough to support the verdict, then the reviewing

       court will not disturb it.” Ferrell v. State, 746 N.E.2d 48, 51 (Ind. 2001).


[22]   At trial, I.G. unequivocally testified that Duarte, while sitting next to her on a

       sofa, grabbed her by the hips and made some “up and down . . . movements”

       with his “penis” on her “butt area” while they were both clothed. (Tr. 21, 22).

       I.G. also unequivocally testified that Duarte, while sitting behind her on a four

       wheeler, had her remove her pants and underwear and then attempted to insert

       his penis into in her vagina. After Duarte had ejaculated, he wiped his penis

       Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-578 | January 15, 2016   Page 11 of 12
       with a tissue and then wiped I.G.’s vagina with that same tissue. Shortly after

       this incident, Duarte and I.G. were both diagnosed with gonorrhea, which

       I.G.’s physician testified was transmitted by “intimate” or “sexual” contact

       with the oral, genital, or rectal areas. (Tr. 98).


[23]   Here, the incredible dubiosity rule is not applicable because I.G.’s trial

       testimony was unequivocal and was corroborated by other evidence. Duarte’s

       argument is nothing more than an invitation for this Court to reweigh the

       evidence and judge the credibility of the witness, which we decline to do. See

       Drane, 867 N.E.2d at 146. The jury believed I.G.’s testimony, which was

       sufficient to support the guilty verdicts for Counts I and III, and we decline to

       impinge on the jury’s credibility determinations. Because Duarte has failed to

       show that I.G.’s testimony was so inherently improbable that no reasonable

       trier of fact could believe it and because there is probative evidence from which

       the jury could have found Duarte guilty beyond a reasonable doubt, we affirm

       his convictions. See, e.g., Hampton v. State, 921 N.E.2d 27, 29 (Ind. Ct. App.

       2010) (holding that the testimony of the seven-year-old victim was not

       incredibly dubious and affirming the defendant’s child molesting conviction),

       reh’g denied, trans. denied.


[24]   Affirmed.


       Baker, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-578 | January 15, 2016   Page 12 of 12
