Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                                      Aug 26 2014, 9:40 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

MARIELENA DUERRING                              GREGORY F. ZOELLER
South Bend, Indiana                             Attorney General of Indiana

                                                CYNTHIA L. PLOUGHE
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JOSE B. RODRIGUEZ,                              )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 20A05-1309-CR-491
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                 APPEAL FROM THE ELKHART SUPERIOR COURT
                    The Honorable George W. Biddlecome, Judge
                          Cause No. 20D03-1008-FA-29



                                      August 26, 2014


             MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge
                                 Case Summary and Issue

       Jose B. Rodriguez, after a jury trial, was convicted of four counts of Class A felony

child molesting. He raises one issue for our review: whether the trial court abused its

discretion in admitting evidence of extra-jurisdictional prior bad acts. Concluding any

error in the admission of evidence was harmless, we affirm.

                               Facts and Procedural History

       Rodriguez and Dawn Hernandez began dating and then married while living in New

York. At the time, Hernandez had five children from previous relationships: M.V., Ariel,

Alberto, Sonia, and Carlos. After living in New York together, Rodriguez, Hernandez, and

the children moved to Elkhart, Indiana, in 2006.

       In Elkhart, Rodriguez called thirteen-year-old M.V. into the bathroom and

instructed M.V. to perform oral sex on him. The sexual contact between the two continued

throughout the year, including a time Rodriguez performed oral sex on M.V. in his

bedroom. On another such occurrence, Hernandez stepped out of the bathroom, and from

her vantage point, was able to see M.V. and Rodriguez on the living room couch. M.V.

was lying with her head in Rodriguez’s crotch. M.V.’s pants were down and Rodriguez’s

hand was on M.V.’s buttocks.         Hernandez immediately confronted Rodriguez, but

Rodriguez denied any wrongdoing. When M.V. talked to her mother, she told her

Rodriguez made her “lick his thing.” Transcript at 78. Rodriguez then confronted M.V.

and told her he was going to have to leave, and it was M.V.’s fault. After that conversation,

M.V. told her mother she lied. The subject was dropped after M.V. recanted. Rodriguez



                                             2
later engaged in intercourse with M.V., still while M.V. was thirteen, telling her that they

were going to “try something different.” Tr. at 84.

        In June 2010, Rodriguez and Hernandez separated. Hernandez’s reason for leaving

was that she was “tired of having to answer to him” and felt uncomfortable with

Rodriguez’s interactions with M.V. Tr. at 171-72. M.V. was seventeen at the time of the

separation. Hernandez and the children moved into Mary Hurst’s home; Mary was

someone Hernandez knew through work. On July 12, 2010, M.V. told her mother that

Rodriguez had been molesting her. Hernandez told Mary what M.V. said; she next called

her pastor for comfort. Mary was the one who finally called the police to report the

molestation. In September 2010, Hernandez became pregnant by Matthew Hurst, Mary’s

son. Rodriguez and Hernandez divorced in January 2012.

        On August 4, 2010, Rodriguez was charged with four counts of child molesting,1 all

Class A felonies. A jury trial began on July 29, 2013. The State sought to introduce

testimony from M.V. that when she was eleven years old and living in New York,

Rodriguez showed her a pornographic video of a man and a woman engaging in oral sex.

Over Rodriguez’s Indiana Evidence Rule 404(b) objection, the trial court allowed the

testimony. M.V. testified that she did not know what was happening in the video, so

Rodriguez answered her questions. M.V. thought the people in the video looked like they

were enjoying themselves; Rodriguez told her he could show her how to do that, and the



        1
          Each felony count represented one instance of sexual contact that occurred between September 7, 2006, and
January 12, 2007: M.V. performing oral sex on Rodriguez in the shower, Rodriguez performing oral sex on M.V. in
the bedroom, M.V. performing oral sex on Rodriguez on the couch, and sexual intercourse in the bedroom,
respectively.

                                                        3
two shook hands as if making a deal. At the conclusion of M.V.’s testimony, the State

moved to admit evidence of prior bad acts that occurred in New York that were witnessed

by her sister Ariel; the court refused to admit the testimony at that time.

       Hernandez testified next. At the conclusion of cross-examination, the State again

sought to introduce evidence of prior bad acts that occurred in New York. At that time,

the court allowed the evidence over Rodriguez’s objection. Hernandez was permitted to

testify that Ariel had witnessed sexual contact between M.V. and Rodriguez and reported

it to her. Hernandez’s only action was to ask Rodriguez if it was true. When Rodriguez

denied it, Hernandez let the subject drop. Ariel then testified, over objection, about

witnessing M.V. perform oral sex on Rodriguez and being punished for telling her mother

what she had seen. Ariel also testified about a second time she witnessed Rodriguez and

M.V. engaging in sexual activity in New York, but did not report it out of fear of being

punished. No limiting instruction was requested or given based on this testimony.

       Rodriguez was convicted of all four counts of child molesting, and he was sentenced

to forty years on each count, to be served concurrently. He now appeals. Additional facts

will be provided as needed.

                                  Discussion and Decision

                                   I. Standard of Review

       Rodriguez challenges the admission of the evidence of the video and uncharged

sexual acts as errors in light of Rule 404(b). A trial court’s decision to admit or exclude

evidence is reviewed for an abuse of discretion. Iqbal v. State, 805 N.E.2d 401, 406 (Ind.

Ct. App. 2004). Rule 404(b) provides:

                                              4
         Evidence of other crimes, wrongs, or acts is not admissible to prove the
         character of a person in order to show action in conformity therewith. It may,
         however, be admissible of other purposes, such as proof of motive, intent,
         preparation, plan, knowledge, identity, or absence of mistake or accident. . . .

Ind. Evidence Rule 404(b) (2013). This rule is “designed to prevent the jury from assessing

a defendant’s present guilt on the basis of his past propensities, the so called ‘forbidden

inference.’” Hicks v. State, 690 N.E.2d 215, 218-19 (Ind. 1997). The list of other purposes

for which the evidence may be admitted is illustrative, not exhaustive. Id. at 219. The

standard for assessing the admissibility of Rule 404(b) evidence is:

         (1) the court must determine that the evidence of other crimes, wrongs, or
         acts is relevant to a matter at issue other than the defendant’s propensity to
         commit the charged act; and (2) the court must balance the probative value
         of the evidence against its prejudicial effect pursuant to Rule 403.

Id. at 221.2 We employ the same test to determine whether the trial court abused its

discretion. Ware v. State, 816 N.E.2d 1167, 1175 (Ind. Ct. App. 2004). If we find an abuse

of discretion, we then must assess the probable impact of improper evidence upon the jury.

Greenboam v. State, 766 N.E.2d 1247, 1256 (Ind. Ct. App. 2002), trans. denied. Any error

is harmless when there is substantial independent evidence of guilt and it is unlikely that

the erroneously admitted evidence played a role in the conviction. Id. Reversal is

mandated, however, “if the record as a whole reveals that the improper evidence was likely

to have had a prejudicial impact on the average juror such that it contributed to the verdict.”

Id.

                          II. Admission of Testimony Regarding the Video


         2
           Indiana Evidence Rule 403 provides: “Although relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, or needless presentation of cumulative evidence.” (2013).

                                                         5
       Rodriguez first challenges the admission of M.V.’s testimony regarding the

pornography Rodriguez showed her in New York, arguing the probative value is

substantially outweighed by the prejudicial impact.

       Under the first prong of the Hicks test, we must consider if the evidence is relevant

other than to the defendant’s propensity to commit the charged act. 690 N.E.2d at 221.

The court allowed the testimony to come in, over objection, ruling that it showed

preparation and grooming, and explained how a child of tender years would know what

fellatio is, and how to perform it. On appeal, the State argues this evidence shows

Rodriguez was grooming M.V. and was part of his preparation leading up to the

molestation. We agree that showing Rodriguez’s preparation and grooming of M.V. is a

relevant reason to admit this evidence under Rule 404(b) and does more than just show his

propensity to molest M.V.

       We must next weigh this evidence’s probative value against the prejudicial impact.

Hicks, 690 N.E.2d at 221. Rodriguez argues M.V.’s description, reaction, and “handshake”

conversation were details that only blackened Rodriguez’s character, and by skipping in

time from what took place in New York in 2004 to Indiana events in 2006 does nothing

but show Rodriguez’s propensity to commit the crime. Both Rodriguez and the State rely

on Ware and Piercefield v. State, 877 N.E.2d 1213 (Ind. Ct. App. 2007), trans. denied, to

support their respective arguments.

       In Ware, evidence was admitted at trial over the defendant’s objection that he had

taken his victim on multiple vacations out of state, and during the vacations, the defendant

and his victim engaged in sexual activity that was similar to what happened in Indiana.

                                             6
The State argued the evidence was admitted to show the defendant knew the victim’s age

and to rebut the defendant’s defense that he did not engage in sexual activity with his victim

until the victim was sixteen. This court rejected that reasoning, and found that despite the

fact the vacations might be relevant to show that the defendant was grooming his victim,

the extra-jurisdictional sexual contact evidence appeared to be relevant only to his

propensity to molest.            Ware, 816 N.E.2d at 1175-76.                    Accordingly, the evidence’s

prejudicial effect outweighed its probative value, and it was an error for the evidence to be

admitted.3 Id. at 1176.

         Ware was subsequently distinguished by Piercefield. In Piercefield, the defendant

sought to exclude evidence under Rule 404(b) that his stepchildren gave him massages at

his request, or in order to be allowed to do things, such as play video games. The State

argued massages were not criminal acts as contemplated by Rule 404(b), and regardless,

the evidence was relevant to show that the defendant was grooming or preparing his

stepchildren for sexual abuse. This court found that the defendant was familiarizing the

children with touching his body and was the evidence admissible to show the defendant’s

preparation and plan. Piercefield, 877 N.E.2d at 1216. This court also found this testimony

did not violate Rule 404(b), and noted that this conduct was far less prejudicial than

evidence of sexual activity in Ware, because the massages were not criminal by themselves

and were not overly sexual. Id.




         3
           The court ultimately held the erroneous admission was harmless, as the jury had been given a limiting
instruction specifically instructing them not to consider the evidence of extra-jurisdictional acts as evidence of guilt.
Ware, 816 N.E.2d at 1176.

                                                           7
       Here, the State tries to liken Rodriguez’s conduct to that in Piercefield, rather than

Ware. The State argues that Rodriguez did not touch M.V. while watching the video, and

it was not criminal for him to show her the video, just as it was not criminal for the

stepchildren in Piercefield to give their stepfather a massage. We need not address whether

it was illegal for Rodriguez to show M.V. pornography because by the plain language of

Rule 404(b) the other act does not have to be criminal; it simply must work to create the

forbidden inference.

       The State elicited M.V.’s testimony that she watched a pornographic video with

Rodriguez in New York, and he promised to teach her how to engage in oral sex. After

M.V. described the video and “deal,” the State questioned her about the charged acts,

asking if “there ever [was] a time where Jose Bobby Rodriguez instructed [her] to do what

[she] saw in the video.” Tr. at 66. While we acknowledge that grooming is “the process

of cultivating trust with a victim and gradually introducing sexual behaviors until reaching

the point where it is possible to perpetrate a sex crime against the victim,” Piercefield, 877

N.E.2d at 1216 n.1 (citation omitted) (quotations omitted), and is a process that happens

over time, that does not negate the prejudicial impact of the evidence. We are cautious in

allowing evidence under an exception to Rule 404(b), especially under the wide-reaching

umbrella of “grooming evidence,” because evidence of these other uncharged acts can

often be unduly prejudicial. Brown v. State, 577 N.E.2d 221, 226 (Ind. 1991). Here we

find the evidence that Rodriguez showed M.V. pornography was prejudicial. We also

conclude that the evidence was probative, as it showed Rodriguez preparing M.V. to be

comfortable with the idea of oral sex and was more similar to the conduct in Piercefield

                                              8
than Ware. Therefore, we cannot say the prejudice substantially outweighs the probative

impact of this evidence. The trial court did not abuse its discretion in admitting this

evidence. We note that even if we had determined this evidence was erroneously admitted,

this would be harmless error as there was substantial independent evidence of guilt and it

is unlikely that testimony regarding the pornography played a role in the conviction.

             III. Admission of Testimony Regarding Uncharged Sexual Acts

       Rodriguez next challenges the admission of Hernandez’s and Ariel’s testimony

regarding instances of sexual contact that occurred in New York. Rodriguez inquired on

cross-examination about Hernandez’s relationship with Matthew, exploring Hernandez’s

credibility as to why she actually left Rodriguez, with the implication being that she was

having an affair and reported the molestation as a “way out” of the marriage. After that

testimony, the State sought, on redirect, to establish that Hernandez knew of the sexual

contact even as far back as New York, and simply did not report the conduct to authorities.

The State argued Rodriguez opened the door to this testimony, and this evidence would

rehabilitate M.V., because her credibility was suspect.      The trial court allowed the

evidence, because Rodriguez, through cross-examination,

       created an inference that [Hernandez] only reported this as a result of her
       infatuation with another person. It’s my understanding that there were two
       incidents when the parties lived in New York in which [Hernandez] also
       became aware of sexual contact between the Defendant and the alleged
       victim, and I’m going to allow [the State] to explore the reason for not
       reporting this earlier. That is the extent of what I’m going to permit.




                                            9
Tr. at 212. The court made this ruling outside the presence of the jury and did not give a

limiting instruction when the jury returned. The court noted Rodriguez’s continuing

objection to the testimony.

       To “open the door” to Rule 404(b) evidence that is otherwise inadmissible, “the

evidence relied upon to ‘open the door’ must leave the trier of fact with a false or

misleading impression of the facts related.” Ortiz v. State, 741 N.E.2d 1203, 1208 (Ind.

2001) (quoting Gilliam v. State, 270 Ind. 71, 77, 383 N.E.2d 297, 301 (1978)). The State

argues Rodriguez “opened the door” to this testimony about sexual contact in New York

by creating a false or misleading impression that Hernandez made the allegations only after

she began an affair with another man and that M.V. made the allegations simply to be free

of Rodriguez’s discipline.

       Rodriguez maintains he was exploring Hernandez’s bias as contemplated by Indiana

Evidence Rule 616 when cross-examining her as to her relationship with Matthew and her

motivation to leave Rodriguez, as she had known about the molestation (based on her

testimony that she saw M.V.’s face in Rodriguez’s crotch) for years prior to M.V.

disclosing it at Mary’s house. Additionally, Rodriguez argues evidence that Hernandez

knew of molestations years before in New York does nothing to explain or explore why

she waited to report it. We agree with Rodriguez that the evidence Hernandez knew of acts

of molestation in New York and never reported it does nothing to rebut the evidence of

Hernandez’s bias stemming from her relationship with another man.

       Even if Ariel’s testimony that she was punished for reporting what she witnessed to

her mother in New York was relevant to show Rodriguez was a disciplinarian and

                                            10
Hernandez was afraid to leave him, this evidence would still be inadmissible because of

the prejudice to Rodriguez. Aside from M.V.’s testimony, the only other witness to the

charged crimes was Hernandez, who saw one instance of molestation. There were three

other instances of charged conduct that had no other witness besides M.V. While the

uncorroborated testimony of a victim may be enough to support a molestation conviction,

Archer v. State, 996 N.E.2d 341, 351 (Ind. Ct. App. 2013) (citing Barger v. State, 587

N.E.2d 1304, 1308 (Ind. 1992)), trans. denied, molestation cases “often hinge on the child’s

credibility, and interjecting another allegation of molestation is almost certain to give much

more credibility to the charged allegation.” Greenboam, 766 N.E.2d at 1256 (citations

omitted).   “Additionally, our supreme court has cautioned that evidence of prior

misconduct offered to bolster a key witness’s testimony as to the current charge, although

often probative on that point, is also quite prejudicial.” Id. (internal quotation marks

omitted). Ariel’s testimony that she witnessed Rodriguez and M.V. engaging in sexual

conduct in New York undoubtedly gave credibility to M.V.’s allegation that molestations

happened in Elkhart. This bolstering is quite prejudicial and therefore is inadmissible. The

trial court abused its discretion in allowing this evidence.

               IV. Probable Impact of the Improper Evidence upon the Jury

       Having found that the testimony regarding the two New York incidents Ariel

witnessed should not have been admitted, we now turn to the question of whether the errors

were harmless. We are to consider the record as a whole; and having so considered, we

find substantial independent evidence of Rodriguez’s guilt. Id. at 1256. M.V. was

unequivocal in her testimony that Rodriguez molested her. Hernandez witnessed an

                                              11
incident of sexual contact between Rodriguez and M.V. in the living room. M.V.’s

brother’s and sister’s testimony corroborated M.V.’s story, as they testified about seeing

odd activity between Rodriguez and M.V., and that the two spent a lot of time together

away from everyone else. Therefore, we conclude the erroneous admission of the evidence

was harmless.

                                       Conclusion

       We conclude it was not an abuse of discretion to admit the testimony regarding the

pornographic video, but that it was an abuse of discretion to admit Hernandez’s and Ariel’s

testimony regarding events that took place in New York; however, as we find this was

harmless error, we affirm.

       Affirmed.

RILEY, J., and BRADFORD, J., concur.




                                            12
