Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
                                                                       Apr 17 2014, 9:01 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:

WILLIAM BYER, JR.                               GREGORY F. ZOELLER
Byer & Byer                                     Attorney General of Indiana
Anderson, Indiana
                                                RYAN D. JOHANNINGSMEIER
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DANIEL TORRES,                                  )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 48A05-1305-CR-267
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MADISON CIRCUIT COURT
                        The Honorable Dennis D. Carroll, Judge
                           Cause No. 48C06-1206-FC-1177


                                      April 17, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                             STATEMENT OF THE CASE

       Appellant-Defendant, Daniel C. Torres (Torres), appeals his conviction of sexual

misconduct with a minor, a Class C felony, Ind. Code § 35-42-4-9(b)(1).

       We affirm.

                                          ISSUE

       Torres raises one issue on appeal, which we restate as: Whether the trial court

committed reversible error by denying Torres’ motion to suppress his video-recorded

interview with the police.

                        FACTS AND PROCEDURAL HISTORY

       Torres was born in Mexico and moved to the United States when he was twenty-

five years old. Most of Torres’ family, including an estranged wife and two children, still

live in Mexico. Torres attended school through the seventh grade in Mexico, and a few

years after moving to the United States, he completed a class to learn English as a second

language. Although Torres is proficient at understanding English, he has some difficulty

speaking it. Prior to his arrest, Torres lived in Anderson, Indiana with his girlfriend of

seven years, Koren Reed (Reed), their son, and Reed’s son from a previous relationship.

       On the afternoon of June 23, 2012, thirty-seven-year-old Torres and Reed hosted a

cookout at their home to celebrate Reed’s birthday. Reed’s fifteen-year-old niece, P.B.,

attended the cookout, as did P.B.’s mother (Reed’s sister) and P.B.’s older cousin, M.R.

(also Reed’s niece). Later that evening, P.B.’s mother drove Torres and Reed to a nearby

restaurant before returning to her own home in Chesterfield, Indiana. P.B. and M.R.


                                            2
remained at Torres and Reed’s house to babysit the children and had planned to spend the

night. When Torres and Reed walked home from the restaurant, P.B. and M.R. were in the

living room watching a movie and playing with the children. Torres and Reed sat down in

the kitchen, drank a few beers, and eventually retired to their bedroom. P.B. and M.R. fell

asleep on the living room couches.

       Shortly before 3:00 a.m., P.B. was awakened by the feeling of Torres’ “penis

touch[ing] my vaginal area.” (Transcript p. 160). P.B. observed Torres leaning over her

with his boxer shorts pulled down around his knees. When P.B. stirred, Torres pulled his

underwear back up, and P.B. realized that her own shorts had been pulled down to expose

her private parts. P.B. pulled her shorts up, and Torres sat down beside her on the couch.

As P.B. repeatedly asked Torres to “please stop[,]” he instructed her to remain quiet. (Tr.

p. 162). Torres moved to the end of the couch and began rubbing P.B.’s leg before he stood

and attempted to kiss her. P.B. turned her head, causing Torres to kiss her cheek. At this

point, Torres returned to the bedroom where Reed was still asleep.

       P.B., still lying on the couch, sent her boyfriend a text message asking him to call

her. With her boyfriend listening on the other end of the phone, P.B. stated that she felt

safe enough to move from the couch, and she locked herself in the bathroom. There, she

told her boyfriend that she was “really scared” because Torres had “tried to rape her.” (Tr.

p. 188). While on the phone with her boyfriend, P.B. returned to the living room and shook

M.R. to wake her up. M.R. followed P.B. to the bathroom, where P.B. called her mother

and explained the situation. P.B.’s mother immediately called the police to report the



                                             3
incident and drove back to Anderson. When they heard a vehicle pull into the driveway,

P.B. and M.R. exited the bathroom and went outside to meet the police officers.

        Torres was escorted to the Anderson Police Department for questioning. Before

Detective Michael Lee (Detective Lee) began the video-recorded interview, Officer Caleb

McKnight (Officer McKnight), who is fluent in Spanish, administered a Miranda warning.

Reading verbatim from a pre-printed Spanish Miranda form, Officer McKnight advised

Torres of his rights to remain silent and to have counsel present. Then, still speaking

Spanish, Officer McKnight summarized the contents of the form he had just read and

explained to Torres that, upon Torres’ request, they could call the Mexican Consulate.

Torres signed the waiver of rights form to indicate that he understood his rights and that he

agreed to voluntarily speak to the police without the presence of an attorney. Initially,

Torres ardently denied P.B.’s allegations. He repeatedly claimed that he was very drunk

and had taken a pain pill before he went to bed and that he had no memory of doing

anything to P.B. As Detective Lee pressed for more information, Torres eventually

admitted that he had gone into the living room, moved P.B.’s blanket aside, pulled down

his boxer shorts, sat beside her on the couch, and, with his hand, touched her over the top

of her shorts.

        Later that day, June 24, 2012, the State filed an Information charging Torres with

one Count of sexual misconduct with a minor, a Class C felony.1 On April 9 through April


1
  The State initially charged Torres pursuant to Indiana Code section 35-42-4-9(a). However, on the first
day of the trial, it was discovered that the State had listed the incorrect statutory subsection. By
agreement of the parties and with permission of the trial court, before the jury was sworn in on April 10,
2013, the State amended the Information to add Count II, sexual misconduct with a minor, a Class C
felony, I.C. § 35-42-4-9(b), and immediately thereafter dismissed Count I.

                                                    4
12, 2013, a jury trial was conducted. In the midst of the trial, Torres moved to suppress

the statements he made to the police, contending that he was not properly advised of his

Miranda rights. The trial court held a suppression hearing outside of the jury’s presence

and, determining that Torres had been adequately advised of his rights, admitted the police

interview into evidence over Torres’ objection. At the close of the evidence, the jury

returned a verdict of guilty. On May 7, 2013, the trial court held a sentencing hearing and

imposed a term of six years, fully executed in the Indiana Department of Correction.

       Torres now appeals. Additional facts will be provided as necessary.

                                DISCUSSION AND DECISION

                                    I. Standard of Review

       We review a trial court’s denial of a motion to suppress under a standard similar to

that used in a sufficiency of the evidence case. Morales v. State, 749 N.E.2d 1260, 1265

(Ind. Ct. App. 2001). We do not reweigh evidence or assess witness credibility, and we

will construe all conflicting evidence in a light most favorable to the trial court’s ruling.

Id. In contrast to sufficiency matters, however, we will consider any uncontested evidence

in the defendant’s favor. Id.

                                II. Violation of Miranda Rights

       Torres claims that the trial court erred in admitting the recording of his police

interview. Specifically, Torres contends that his incriminating statements should have been

suppressed because he neither received an adequate warning nor knowingly and voluntarily

waived his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). Miranda warnings

serve “to protect a suspect’s Fifth Amendment privilege against self-incrimination ‘by

                                              5
placing reasonable limitations on police interrogations.’” Bean v. State, 973 N.E.2d 35, 40

(Ind. Ct. App. 2012) (quoting Sauerheber v. State, 698 N.E.2d 796, 801 (Ind. 1998)), trans.

denied.   Accordingly, Miranda instructs that, prior to a custodial interrogation, law

enforcement must apprise the suspect of his right to remain silent and to an attorney. Id.

A defendant waives his Miranda rights when he, “after being advised of those rights and

acknowledging that he understands them, proceeds to make a statement without taking

advantage of those rights.” Ringo v. State, 736 N.E.2d 1209, 1211-12 (Ind. 2000).

       The State bears the burden of proving that Torres “voluntarily and intelligently

waived his constitutional rights and that his confession was voluntarily given.” Carter v.

State, 730 N.E.2d 155, 157 (Ind. 2000). The admissibility of a confession is a matter within

the sound discretion of the trial court, and we will uphold the trial court’s ruling absent an

abuse of that discretion. Id. On review, we must determine whether “there is substantial

evidence of probative value from which the trial court could reasonably have concluded

beyond a reasonable doubt that the statements and waiver of rights were freely and

voluntarily made.” Santana v. State, 679 N.E.2d 1355, 1357 (Ind. Ct. App. 1997). We

consider the totality of the circumstances in determining whether a defendant has

voluntarily waived his rights. Ringo, 736 N.E.2d at 1212. Although not dispositive, a

signed waiver form is evidence that a suspect understood and voluntarily waived his rights.

Id.

                            A. Adequacy of Miranda Warning

       Torres concedes that he acknowledged his understanding of his rights to Officer

McKnight. However, he contends that Officer McKnight’s Spanish advisement was

                                              6
defective, thus rendering Torres’ confession inadmissible.          The evidence on record

demonstrates that Officer McKnight orally advised Torres of his rights by reading directly

from the police department’s pre-printed Spanish form.            Despite Torres’ ability to

comprehend English, his rights were given solely in Spanish. During the suppression

hearing, Officer McKnight provided the trial court with an English translation of the rights

that he read to Torres in Spanish:

       You have the right . . . before you answer any questions . . . and it’s necessary
       that you understand your rights. Anything that you say . . . everything you
       explained can be used in the [c]ourt, criminal court. You can speak with your
       lawyer before you answer any questions. If you don’t have any money to
       pay a lawyer . . . the State of Indiana can provide services for a lawyer . . . if
       you say so. If you would like to answer these questions . . . or your
       declaration with the lawyer present. You have the right to answer the
       questions. [] You still have the right to stop during the questioning. In
       whatever moment you would like. And you have a right to speak with a
       lawyer.

(Tr. pp. 335-40 (ellipsis in original)). Officer McKnight testified that, because there are

“several ways to say different things” in Spanish, he also summarized the rights to ensure

Torres understood that “[i]f you do not want to speak to us without a lawyer that’s okay.”

(Tr. pp. 355, 391). The record reflects that as Officer McKnight read the rights aloud,

Torres occasionally acknowledged, “Uh-huh[,]” and when Officer McKnight asked Torres

if he understood his rights, Torres answered, in English, “Yes.” (Tr. pp. 336, 392). Based

upon Officer McKnight’s translation, the parties agree that the rights advisement would

have been adequate.        However, Torres argues that Officer McKnight’s English

interpretation during the suppression hearing does not accurately translate what he stated

to Torres in Spanish prior to the interview.


                                               7
       To assist Torres during the trial, the trial court appointed David P. Wilson

(Translator), an attorney, to act as an interpreter. During the suppression hearing, the trial

court solicited the opinion of Translator, who agreed that Officer McKnight read the

Spanish rights form verbatim. However, Translator explained that, in addition to numerous

grammatical and vocabulary errors, the Spanish rights form failed to inform Torres that

any statements “can and will be used against him in court.” See Santana, 679 N.E.2d at

1358. Instead, Translator stated that Torres had been advised that his statements to the

police could “be used against the [c]ourt.” (Tr. p. 385). Thus, according to Torres, the

warning fails to substantially comply with Miranda because it must “be emphatically

communicated to a person that if he speaks that there will be consequences of what he

speaks and those consequences are that . . . anything to his detriment . . . can and will be

used against him in a [c]ourt of law.” (Tr. p. 375). In ruling that the recorded police

interview was admissible, the trial court explained that it would be “quite a stretch” to

objectively find that an individual

       who has lived here all these years and, and who speaks and at least
       understands both English and Spanish and has told us he understands [us,] .
       . . having had the form read to him and then having the informal
       conversation[,] . . . did not understand his essential Miranda Rights and did
       not waive them.

(Tr. pp. 395-96 (Italics added)).

       On appeal, Torres maintains that the language was inadequate because “[b]eing

instructed that his answers to the questions[] would be used against the court[]

demonstrates that he could not have understood the implications.” (Appellant’s Br. p. 8).

Our supreme court has stated that Miranda requires

                                              8
        meaningful advice to the unlettered and unlearned in language which he can
        comprehend and on which he can knowingly act. We will not indulge
        semantical debates between counsel over the particular words used to inform
        an individual of his rights. The crucial test is whether the words in the
        context used, considering the age, background and intelligence of the
        individual being interrogated, impart a clear, understandable warning of all
        of his rights.

Jones v. State, 252 N.E.2d 572, 576 (Ind. 1969). It is well-established that it is the role of

the trial “court to objectively determine whether in the circumstances of the case the words

used were sufficient to convey the required warning.” Id.

        Torres’ challenge stems from a dispute as to the correct English translation of the

Spanish Miranda form. The Translator testified during the suppression hearing that Officer

McKnight’s advisement suggested that Torres’ statements could be used against the court,

but the Translator also filed an affidavit with the trial court in which he translated the

Spanish rights form into its literal word-for-word English equivalent. In this version,

Translator understands the form to state: “You have the Right . . . [o]f to remain silent,

whatever thing that you may say, to implicate2 yourself against the court criminal.”

(Appellant’s App. p. 83 (footnote added)).                      Notwithstanding the interpreters’

inconsistences as to this one phrase, the evidence establishes that it was otherwise made

explicitly clear to Torres that he could maintain his silence; that he did not have to speak

with the police officers without a lawyer present; that it was the State’s obligation to

provide a lawyer if he so chose; and that even if he opted to speak, he could stop talking at


2
  Translator notes that the form says “empleca” but this “word does not exist in Spanish.” (Appellant’s
App. pp. 84-85). “I think it is meant to be ‘implica’, which used as ‘se implica’ means to implicate
yourself.” (Appellant’s App. p. 84). Because Officer McKnight read Torres’ rights aloud rather than just
instructing Torres to read the document to himself, we focus our attention on the form’s substance, not its
editing quality.

                                                     9
any time. From this, it seems apparent that a reasonable person would understand these

warnings as affording the suspect an opportunity to protect himself—not the court—from

making incriminating statements.

       Although Torres has only a seventh grade education, he has lived in Indiana for

more than twelve years and clearly understands English. During his police interview,

Torres did not hesitate to inform Detective Lee in English when he did not understand a

question, but at no point did Torres communicate any confusion regarding Officer

McKnight’s Spanish advisement. Furthermore Torres’ criminal record is indicative of his

familiarity with the criminal justice process.     While it may be well-advised for the

Anderson Police Department to have its Spanish rights form reviewed for imperfections,

considering the totality of the circumstances of the case at hand, we agree with the trial

court that the form’s language was “sufficiently clear” to put Torres on notice that anything

he said to the police could later implicate him in court. Allen v. State, 686 N.E.2d 760, 770

(Ind. 1997), habeas corpus granted on other grounds, Allen v. Wilson, No. 1:01-cv-1658-

JDT-TAB, 2012 WL 2577492, at *15 (S.D. Ind. July 3, 2012).

                                   B. Voluntary Waiver

       Torres also claims that his acknowledgement that he understood his rights did not

amount to a knowing and voluntary decision to waive those rights. See Morales, 749

N.E.2d at 1266-67. During the suppression hearing, Torres raised only one objection to

the adequacy of Officer McKnight’s warning based on whether the language informed

Torres that any statements could be used against him or used against the court. To the

extent that Torres now contends that his statements were involuntarily made because “he

                                             10
was improperly advised verbally of those rights,” we have already determined that the

language was sufficient to inform him of his rights. (Appellant’s Reply Br. p. 2). We also

find that Torres has waived any additional arguments, including that Officer McKnight

failed to read the portion of the form where Torres declared that he was voluntarily

choosing to forego his rights, on appeal. “A defendant is limited to the grounds advanced

at trial and may not raise a new ground for objection for the first time on appeal.” King v.

State, 799 N.E.2d 42, 49 (Ind. Ct. App. 2003), trans. denied; cert. denied, 543 U.S. 817

(2004).

       Waiver notwithstanding, we find that Torres voluntarily waived his Miranda rights

and voluntarily confessed. Torres may have complaints about the quality of Officer

McKnight’s Spanish, but a confession is considered voluntary where it “is the product of a

rational intellect.” Ringo, 736 N.E.2d at 1212. Here, Torres received both oral and written

warnings, acknowledged that he understood his right to refrain from speaking to the police,

signed the waiver, and chose to participate in the police interview without the presence of

counsel. See Allen, 686 N.E.2d at 772-73. At trial, Torres claimed that he only “repeat[ed]

what [Detective Lee] had already told [him]” because he wanted to end the interview. (Tr.

p. 489). However, Torres does not argue, and the evidence does not establish, that he was

induced to speak by “violence, threats, promises, or improper influence.” Carter, 730

N.E.2d at 157. Accordingly, we conclude that Torres understood his rights and voluntarily

chose to waive them.

                                   III. Harmless Error



                                            11
        Even if we had determined that Torres’ statements were made and admitted in

violation of Miranda, we would nevertheless uphold the trial court’s admissibility

determination under a harmless error analysis. “The improper admission of evidence is

harmless error when the conviction is supported by substantial independent evidence of

guilt which satisfies the reviewing court that there is no substantial likelihood the

challenged evidence contributed to the conviction.” Morales, 794 N.E.2d at 1267. We

review a federal constitutional error de novo, and any error “must be ‘harmless beyond a

reasonable doubt.’” Id. (quoting Chapman v. California, 386 U.S. 18, 24 (1967)).

        In this case, omitting Torres’ inculpatory statements from evidence, we find that the

jury’s verdict is “supported by substantial independent evidence of guilt.” Id. P.B. testified

that Torres touched her vaginal area with his penis. See Bell v. State, 497 N.E.2d 556, 556-

57 (Ind. 1986) (finding sufficient evidence to uphold conviction based solely on victim’s

“understandable and generally consistent” testimony). Additionally, M.R. and P.B.’s

boyfriend and mother all testified as to the details of P.B.’s emotional state and response

to Torres’ behavior, which were consistent with P.B.’s account. Finally, although there

was no DNA evidence found on P.B. or her clothing, the blanket that P.B. had been using

that night—and which Reed claimed to have washed only a day or two prior to P.B.’s use—

was found to contain Torres’ DNA.3 Using differential extraction, the crime lab analyst

testified that the DNA on the blanket derived from Torres’ seminal fluid. Therefore, we



3
  We note that the blanket also contained the DNA of an unidentified individual (i.e., neither Torres nor
P.B.), which may support Torres’ testimony that his DNA was excreted onto the blanket on a prior
occasion and never washed away. However, the jury was aware of the existence of the additional DNA
profile when it determined Torres’ guilt, and it is not the role of our court to re-weigh the evidence.

                                                    12
conclude that any error would be harmless as Torres’ statements were merely cumulative

of other evidence from which the jury had an independent basis for returning a guilty

verdict.

                                     CONCLUSION

       Based on the foregoing, we conclude that the trial court did not abuse its discretion

in denying Torres’ motion to suppress and admitting the recorded police interview because

Torres was adequately advised of his Miranda rights and voluntarily waived them.

       Affirmed.

VAIDIK, J. and MAY, J. concur




                                            13
