MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Sep 19 2017, 8:30 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
Charles W. Lahey                                         Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Juan Duron,                                              September 19, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A04-1702-CR-366
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable John M.
Appellee-Plaintiff.                                      Marnocha, Judge
                                                         Trial Court Cause No.
                                                         71D02-1604-F1-7



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A04-1702-CR-366 | September 19, 2017         Page 1 of 9
                                Case Summary and Issue
[1]   Following a jury trial, Juan Duron was convicted of child molesting, a Level 1

      felony. On appeal, Duron raises three issues for our review which we

      consolidate and restate as whether the trial court abused its discretion in

      admitting and excluding evidence. Concluding the trial court did not abuse its

      discretion, we affirm.



                            Facts and Procedural History
[2]   In November of 2015, nine-year-old S.W. lived with her mother, Kristy, in the

      home of Gabriel Rios, Kristy’s boyfriend. Rios’ daughter, A.R., was nine years

      old and shared a room with S.W. Rios also permitted Duron, who was his

      cousin, and Duron’s girlfriend, Veronica Cruz, to occasionally stay at his home.

      When Duron and Cruz stayed at Rios’ home, they slept on the living room

      floor or on the floor of an upstairs bedroom with two of Rios’ other children.


[3]   On the evening of November 10, 2015, Duron and Cruz arrived at Rios’ home

      and went upstairs to a bedroom. Upstairs, Duron attempted to have sex with

      Cruz in the bathroom. Duron put his hand down Cruz’s pants and inserted his

      fingers into Cruz’s vagina, but she told him to stop. The couple then went to

      bed. In another bedroom upstairs, S.W. remained awake well past midnight

      watching videos on her phone. Around 4:00 a.m., Duron entered the girls’

      bedroom. Afraid she might be in trouble for still being awake, S.W. feigned




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      sleep. Duron went to the side of the bed and laid next to S.W. S.W. described

      the events as follows:


              [S.W.]:          It was . . . I was just playing with my phone, and
                               then [Duron] came in and I acted like I was
                               sleeping, because I didn’t want to get in trouble.
                               And so he came in and he laid next to me and . . .
                               (witness visibly crying) [h]e was laying next to me,
                               and he put his hand on my stomach and he put his
                               hand in my pants. And he was rubbing me and
                               then he put his hand in my pants and he touched me
                               right there and he put his finger inside.


              ***


              [S.W.]:          And he but [sic] his finger inside of me and it was
                               burning. And then I kicked [A.R.], but she didn’t
                               wake up, so the [sic] I kicked her again, and she
                               didn’t wake up.


      Transcript, Volume IV at 18. A.R. then woke up and recalled seeing Duron

      “hopping out of the bed and acting like he was looking for something with the

      lighter.” Id. at 55. After Duron left the room, A.R. called her father who came

      upstairs. Rios went in to the girls’ bedroom and found them together in a

      corner crying. Rios took the girls downstairs. Downstairs, Kristy asked S.W.

      what happened and S.W. told her that Duron had put his hand down her pants.


[4]   Meanwhile, Duron returned to his bedroom and woke up Cruz by placing his

      hand down her pants and touching her vagina. However, Cruz heard Rios

      coming towards their room and pushed Duron’s hand away. Rios entered


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      Duron’s room and confronted Duron saying, “[w]hat the hell’s wrong with

      you, what you do that for?” Id. at 92. Rios then kicked Duron and Cruz out of

      his home. Duron remained silent and “wasn’t saying nothing” when Rios

      confronted him. Id. at 93.


[5]   The State charged Duron with child molesting, a Level 1 felony. At trial,

      Duron testified and denied the allegations he molested S.W. A jury found

      Duron guilty as charged and the trial court sentenced Duron to thirty-two years

      in the Indiana Department of Correction. Duron now appeals.



                                 Discussion and Decision
                                     I. Standard of Review
[6]   The admission and exclusion of evidence falls within the sound discretion of

      the trial court, and we review the admission of evidence only for an abuse of

      discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of

      discretion occurs when the trial court’s decision is clearly against the logic and

      effect of the facts and circumstances before it. Conley v. State, 972 N.E.2d 864,

      871 (Ind. 2012).


                        II. Evidence Duron Remained Silent
[7]   Duron first alleges the trial court abused its discretion in admitting, over his

      objection, testimony Duron remained silent when confronted by Rios.

      Although difficult to follow, it appears that Duron’s claim is that the trial court

      erred by failing to conduct a Fifth Amendment analysis regarding the admission

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      of evidence of Duron’s silence. See Brief of Appellant at 8 (stating “the [trial]

      court failed to approach the statements at issue using a constitutional analysis

      . . . .”). However, aside from a single citation to Owens v. State, 937 N.E.2d 880

      (Ind. Ct. Appl. 2010), trans. denied, Duron provides no analysis of the Fifth

      Amendment or how it is offended by permitting testimony that Duron

      remained silent when confronted by Rios, a private citizen. Accordingly, we

      find Duron has waived this issue. See Barrett v. State, 837 N.E.2d 1022, 1030

      (Ind. Ct. App. 2005) (noting that failure to put forth a cogent argument acts as a

      waiver of the issue on appeal), trans. denied.


[8]   Waiver notwithstanding, the trial court did not err in failing to conduct a

      constitutional analysis before allowing Rios’ testimony. In Jenkins v. Anderson,

      447 U.S. 231 (1980), the Supreme Court addressed whether the defendant’s

      failure to contact police for two weeks following a homicide could be used by

      the State to impeach the defendant when he took the stand at trial and asserted

      that he had killed the victim in self-defense. The Court concluded the Fifth

      Amendment was inapplicable because the petitioner chose to testify, thereby

      waiving his right to remain silent. As to whether the Fourteenth Amendment

      was violated, the Court observed that “no governmental action induced

      [Jenkins] to remain silent before arrest. The failure to speak occurred before the

      petitioner was taken into custody and given Miranda warnings.” Id. at 240.


[9]   Further, in his concurrence in Jenkins, Justice Stevens wrote that he would have

      rejected the defendant’s Fifth Amendment claim simply because the privilege

      against compulsory self-incrimination is irrelevant to a citizen’s decision to

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       remain silent when he is under no official compulsion to speak. See id. at 241

       (Stevens, J., concurring). According to Justice Stevens,

               The fact that a citizen has a constitutional right to remain silent
               when he is questioned has no bearing on the probative
               significance of his silence before he has any contact with the
               police. . . . When a citizen is under no official compulsion
               whatever, either to speak or to remain silent, I see no reason why
               his voluntary decision to do one or the other should raise any
               issue under the Fifth Amendment. For in determining whether
               the privilege is applicable, the question is whether petitioner was
               in a position to have his testimony compelled and then asserted
               his privilege, not simply whether he was silent. A different view
               ignores the clear words of the Fifth Amendment.


       Id. at 243-44 (Stevens, J., concurring) (footnotes omitted).


[10]   Likewise, there was no government action compelling Duron to speak and his

       failure to do so occurred well before his arrest or involvement with law

       enforcement. See, e.g., United States v. Oplinger, 150 F.3d 1061, 1065-67 (9th Cir.

       1998) (holding use of defendant’s silence, when confronted with allegations of

       theft by his private employer, did not violate his privilege against self-

       incrimination), overruled on other grounds by United States v. Contreras, 593 F.3d

       1135 (9th Cir. 2010).


[11]   More specifically, Duron argues using the fact he remained silent when

       questioned by Rios

               puts pressure on the defendant to testify at trial and explain his
               silence. Because of this, the trial court must be aware that in
               cases where the 5th Amendment may not bar evidence of a
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                defendant’s silence when accusatorily confronted by civilians or
                police the evidence must be carefully analyzed under Indiana
                Rules of Evidence 402, 404 and particularly 403 before it may be
                admitted.


       Br. of Appellant at 9-10.1 Therefore, Duron argues permitting introduction of

       this evidence implicates Indiana Rule of Evidence 403, which permits the trial

       court to “exclude relevant evidence if its probative value is substantially

       outweighed by a danger of . . . unfair prejudice . . . .”


[12]   We disagree with Duron the admission of this testimony was unfairly

       prejudicial such that it should have been excluded. 2 An inquiry into unfair

       prejudice examines “the capacity of the evidence to persuade by illegitimate

       means, or the tendency of the evidence to suggest decision on an improper

       basis.” Ingram v. State, 715 N.E.2d 405, 407 (Ind. 1999) (quotation omitted).

       Duron has not suggested any such basis other than the ability of the evidence to

       influence his decision to testify and we have already concluded the Fifth

       Amendment is inapplicable here. Further, all incriminating evidence would

       necessarily influence Duron’s decision whether to testify or remain silent and

       the State produced substantial evidence of Duron’s guilt. Accordingly, Duron




       1
        Duron does not provide any analysis of Indiana Rules of Evidence 402 or 404 or how they prohibit
       admission of this testimony.
       2
        In fact, “[s]ilence or an equivocal response to an assertion made by another, which would ordinarily be
       expected to be denied, is a tacit admission[,]” and is admissible into evidence if there is not a clear denial.
       House v. State, 535 N.E.2d 103, 109-10 (Ind. 1989).

       Court of Appeals of Indiana | Memorandum Decision 71A04-1702-CR-366 | September 19, 2017               Page 7 of 9
       has failed to demonstrate this evidence was unfairly prejudicial and should have

       been excluded.


                                   III. Confrontation Clause
[13]   Next, Duron alleges error in the trial court’s admission of S.W.’s mother’s

       testimony recalling what S.W. told her after the molestation. Kristy’s testimony

       was admitted as an excited utterance by S.W. over Duron’s objection. And

       although Duron phrases the issue as whether the “testimonial hearsay

       statement of a State’s witness was improperly admitted as an Excited

       Utterance[,]” Duron provides no argument or reasoning as to why S.W.’s

       statement to her mother was not an exited utterance. Br. of Appellant at 11.

       Accordingly, this claim is waived. Barrett, 837 N.E.2d at 1030.


[14]   Duron also alleges admitting Kristy’s testimony violated the Confrontation

       Clause of the Sixth Amendment to the United States Constitution. The

       Confrontation Clause “prohibits admission in a criminal trial of testimonial

       statements by a person who is absent from trial, unless the person is unavailable

       and the defendant had a prior opportunity to cross-examine the person.” Fowler

       v. State, 829 N.E.2d 459, 464 (Ind. 2005), cert. denied, 547 U.S. 1193 (2006).

       However, this argument fails as S.W. was present, testified at trial, and was

       subject to cross-examination by Duron. Id. at 464-65 (noting the “federal right

       of confrontation has not been denied when the witness is available for cross-

       examination”).




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                                        IV. Other Evidence
[15]   Finally, Duron claims the trial court abused its discretion in excluding evidence

       of Duron and S.W.’s relationship. Specifically, Duron attempted to introduce

       evidence S.W. and Duron did not get along and S.W. had motive to fabricate

       the allegations. The trial court sustained the State’s objection to the evidence as

       irrelevant. Although Duron’s brief explains what he intended to enter into

       evidence and what occurred in the trial court, his brief provides no explanation

       or argument as to how the trial court abused its discretion or how the evidence

       he intended to offer “has any tendency to make a fact more or less probable

       than it would be without the evidence and the fact is of consequence in

       determining the action.” Ind. Evidence Rule 401. Accordingly, we find this

       claim to be waived. Barrett, 837 N.E.2d at 1030.



                                               Conclusion
[16]   The trial court did not abuse its discretion in admitting or excluding evidence.

       Accordingly, we affirm Duron’s conviction.


[17]   Affirmed.


       Riley, J., and Pyle, J., concur.




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