MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Sep 13 2018, 9:25 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
Mark K. Leeman                                           Curtis T. Hill, Jr.
Leeman Law Office                                        Attorney General of Indiana
Cass County Public Defender
Logansport, Indiana                                      Ellen H. Meilaender
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ivan Aragon,                                             September 13, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         09A04-1712-CR-2824
        v.                                               Appeal from the Cass Circuit
                                                         Court
State of Indiana,                                        The Honorable Leo T. Burns,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         09C01-1506-F1-1



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 09A04-1712-CR-2824 | September 13, 2018    Page 1 of 14
                                       Statement of the Case
[1]   Ivan Aragon appeals his convictions for child molesting, as a Level 4 felony,

      and criminal confinement, as a Level 5 felony, following a bench trial. Aragon

      presents several issues for our review, which we consolidate and restate as the

      following four issues:


              1.      Whether the trial court erred when it entered judgment of
                      conviction on child molesting, as a Level 4 felony, when
                      he was not charged with that offense and when it is not a
                      lesser included offense of the child molesting charge filed
                      by the State.

              2.      Whether the trial court abused its discretion and violated
                      Aragon’s Sixth Amendment rights when it denied his
                      request to take a deposition of the minor victim without
                      her mother present.

              3.      Whether the trial court abused its discretion when it
                      admitted into evidence at trial a videotaped statement of
                      the minor victim.

              4.      Whether the State presented sufficient evidence to support
                      his criminal confinement conviction.


[2]   We affirm in part, reverse in part, and remand with instructions.


                                 Facts and Procedural History
[3]   On June 1, 2015, Aragon was living in a home in Logansport with J.A. and her

      three minor children: M.L., A.L., and E.L. Late in the day, M.L. was playing

      outside, E.L. was sleeping, and J.A. was in the bathroom taking a shower.

      Ten-year-old A.L. was watching television in the living room when Aragon
      Court of Appeals of Indiana | Memorandum Decision 09A04-1712-CR-2824 | September 13, 2018   Page 2 of 14
      “pulled [A.L.’s] arm and pushed [her]” into his bedroom. Tr. Vol. 2 at 134.

      Aragon “tried to pull [A.L.’s] pants down,” but she “tried to pull [them] back

      up.” Id. Aragon also tried to pull his pants down, and he continued trying to

      remove A.L.’s pants. At some point, J.A. entered the bedroom, and she saw

      A.L. pulling up her pants and Aragon pulling up his pants and pulling down on

      his shirt. J.A. asked Aragon and A.L. what was happening. Aragon did not

      respond, but A.L. told J.A. that Aragon had tried to pull her pants down. J.A.

      told Aragon to leave, but he refused. Accordingly, J.A. told A.L. to call the

      police, which she did.


[4]   Officers with the Logansport Police Department arrived to investigate, and

      Officer Daniel Fagan observed that J.A. and A.L. looked “scared.” Id. at 185.

      A.L. told Officer Fagan that Aragon had “abus[ed]” her, and Officer Fagan

      placed him in handcuffs. Id. Officer Fagan observed that Aragon’s pants’

      zipper was unzipped.


[5]   The State charged Aragon with attempted child molesting, as a Level 1 felony,

      and criminal confinement, as a Level 5 felony. Defense counsel scheduled the

      depositions of J.A. and A.L. to take place on January 27, 2016. But when A.L.

      requested that J.A. be present during A.L.’s deposition, defense counsel

      objected, and the parties asked the trial court to resolve the matter during a

      hearing that same day. The State had offered to have J.A. sit behind A.L.

      during the deposition so that they could not make eye contact with one another,

      and the State also offered to prohibit communication between J.A. and A.L.

      during the deposition. But defense counsel argued to the trial court as follows:

      Court of Appeals of Indiana | Memorandum Decision 09A04-1712-CR-2824 | September 13, 2018   Page 3 of 14
        Our investigation has revealed or produced some information
        that bears questioning an examination and the questioning has to
        do with almost daily isolation of [A.L.] and repeated questioning
        by [J.A.] about the defendant. There [are] two or three terms
        that are used in Spanish that need to be defined by both [J.A.] as
        to what it means and by [A.L.] as to what she believes it means.
        They may not necessarily be the same. The term is lo, L-O, boy,
        B-O-Y, a, A, chingar, C-I-N, excuse me, spelling C-H-I-N-G-A-
        R. The word chingar has various meanings in Spanish, none of
        which are positive. It could mean “we are going to get him. I’m
        going to f*** him. I am going to do something bad to him.”
        Those terms coupled with the isolated inquir[i]es by the mother
        of the child leaves one to question and examine the fear that this
        child was under and the influence that mother had on the child to
        carry out what is believed to be the mother’s demand that certain
        things occur. It is for that reason, the fear of the daughter that
        the defendant wants to depose the daughter without the mother
        being present. It is the defendant’s right to have a complete
        examination of the issues. These are not collateral issues. This is
        the issue. This is the heart of the issue. This is what caused the
        charge to be filed and that is the position of the defendant as to
        why he wants to do this. And in this instance the defendant
        believes that his right to a proper . . . examination of the alleged
        victim trumps whatever parent/child right may exist to be
        present during a deposition.


Tr. Vol. 2 at 5-6. At the conclusion of the hearing, the court denied Aragon’s

request to depose A.L. without J.A. present, but the court ordered that J.A. be

seated behind A.L. and prohibited from communicating with A.L. in any way

during the deposition. In the end, Aragon decided not to depose either J.A. or

A.L.




Court of Appeals of Indiana | Memorandum Decision 09A04-1712-CR-2824 | September 13, 2018   Page 4 of 14
[6]   At some point, a police officer conducted a videotaped interview of A.L. And

      seven days before trial, the State notified defense counsel of its intent to

      introduce the interview at trial. On the first day of the bench trial, defense

      counsel indicated that he would object to the admission of the interview

      because the State did not provide notice of its intent to introduce it into

      evidence at least ten days before trial, as required by statute. During trial, the

      trial court admitted the interview into evidence over Aragon’s objection.


[7]   At the conclusion of trial, at which both J.A. and A.L. testified, the court found

      that the State had not proven child molesting, as a Level 1 felony, but found

      him guilty of child molesting, as a Level 4 felony, and criminal confinement, as

      a Level 5 felony. The court entered judgment of conviction accordingly and

      sentenced Aragon to an aggregate executed term of six years. This appeal

      ensued.


                                     Discussion and Decision
                                Issue One: Child Molesting Conviction

[8]   Aragon first contends that the trial court erred when it found him guilty of child

      molesting, as a Level 4 felony, a crime with which he had not been charged and

      which is not a lesser included offense of the charged offense, attempted child

      molesting, as a Level 1 felony. The State agrees that this conviction constitutes

      fundamental error and must be vacated. Indeed, “‘it is well-established that due

      process requires that a defendant be given notice of the crime or crimes with

      which he is charged so that he can prepare his defense. Absent sufficient notice


      Court of Appeals of Indiana | Memorandum Decision 09A04-1712-CR-2824 | September 13, 2018   Page 5 of 14
       that a particular offense is charged, a defendant cannot be convicted of that

       crime.’” Thompson v. State, 761 N.E.2d 467, 470 (Ind. Ct. App. 2002) (quoting

       Lewis v. State, 413 N.E.2d 1069, 1071 (Ind. Ct. App. 1980)). And notice

       sufficient to satisfy due process extends to inherently or factually included lesser

       offenses of the charged crime. See Young v. State, 30 N.E.3d 719, 728 (Ind.

       2015).


[9]    The State charged Aragon with attempted child molesting, as a Level 1 felony,

       which required the State to prove that Aragon, who was over twenty-one years

       of age, attempted to perform sexual intercourse or other sexual conduct with

       A.L., who was under the age of fourteen. Ind. Code § 35-42-4-3(a) (2018). The

       trial court found that the evidence was insufficient to convict on that charge.

       Instead, sua sponte, the court found Aragon guilty of child molesting, as a Level

       4 felony, which required proof that Aragon had fondled or touched A.L. with

       intent to arouse or to satisfy the sexual desires of either A.L. or himself. I.C. §

       35-42-4-3(b).


[10]   The State acknowledges that it is well settled that Level 4 child molesting is not

       an inherently included lesser offense of Level 1 felony child molesting. See Hall

       v. State, 634 N.E.2d 837, 841 (Ind. Ct. App. 1994) (holding the two crimes have

       different elements and neither is established by proof of the same or less than all

       of the material elements of the other). And where, as here, the information

       does not include an allegation that the defendant intended to arouse or satisfy

       anyone’s sexual desires, Level 4 child molesting is not a factually included

       lesser offense of Level 1 felony child molesting. See Downey v. State, 726 N.E.2d

       Court of Appeals of Indiana | Memorandum Decision 09A04-1712-CR-2824 | September 13, 2018   Page 6 of 14
       794, 799 (Ind. Ct. App. 2000), trans. denied. The trial court committed

       fundamental error when it convicted Aragon of a crime with which he had not

       been charged, and we reverse that conviction.1 See Young, 30 N.E.3d at 726.

       Accordingly, we remand to the trial court with instructions to vacate Aragon’s

       child molesting conviction.


                                    Issue Two: Separation of Witnesses

[11]   Aragon contends that the trial court abused its discretion and violated his Sixth

       Amendment rights to present a defense and to cross-examine witnesses when it

       denied his request to take A.L.’s deposition without J.A. present. We address

       each contention in turn.

                                                 Abuse of Discretion

[12]   In making his argument to the trial court, Aragon made a “separation of

       witnesses request,” but he did not identify any rule of evidence or trial

       procedure in support of the motion. Tr. Vol. 2 at 11. For the first time on

       appeal, Aragon asserts that he was entitled to the separation of witnesses being

       deposed under Indiana Evidence Rule 615, which provides as follows:


               At a party’s request, the court must order witnesses excluded so
               that they cannot hear other witnesses’ testimony. Or the court
               may do so on its own. But this rule does not authorize
               excluding:



       1
         Because we reverse Aragon’s child molesting conviction, we need not address his contentions that the trial
       court erred when it denied him his right to make closing argument relevant to Level 4 child molesting and
       that his convictions violate double jeopardy principles.

       Court of Appeals of Indiana | Memorandum Decision 09A04-1712-CR-2824 | September 13, 2018        Page 7 of 14
               (a) a party who is a natural person;
               (b) an officer or employee of a party that is not a natural person,
               after being designated as the party’s representative by its attorney;
               or

               (c) a person whose presence a party shows to be essential to
               presenting the party’s claim or defense.


[13]   The parties dispute whether Evidence Rule 615 applies to depositions. But we

       need not decide that issue because, assuming the rule applies here as Aragon

       suggests, the trial court did not abuse its discretion under that Rule. The

       purpose of a separation of witnesses order is to prevent the testimony of one

       witness from influencing that of another. Smiley v. State, 649 N.E.2d 697, 699

       (Ind. Ct. App. 1995), trans. denied. “Because the order’s purpose is to prevent

       later witnesses from hearing the testimony of earlier witnesses, a trial court does

       not abuse its discretion by allowing the early witnesses to remain in the

       courtroom after their testimony.” 12 Robert Lowell Miller, Jr., Indiana

       Practice § 615.103 (4th Ed. 2016). Here, the State agreed that J.A. would be

       deposed first, so her attendance at A.L.’s subsequent deposition would not have

       violated a separation of witnesses order.


[14]   Further, the party seeking review of a violation of Evidence Rule 615 must

       show harm resulting from the trial court’s actions. Id. at § 615.104. And

       Aragon has not demonstrated any prejudice as a result of the court’s denial of

       his separation of witnesses request. As the State correctly points out, Aragon

       can only speculate that A.L. would have testified differently had he been able to


       Court of Appeals of Indiana | Memorandum Decision 09A04-1712-CR-2824 | September 13, 2018   Page 8 of 14
       question her outside of J.A.’s presence. While Aragon argued to the trial court

       that certain unidentified people had given him information to support his

       allegation that A.L. was lying because of pressure from J.A., Aragon never

       produced any evidence to support his claims.2 Mere speculation is insufficient

       to show prejudice. See, e.g., State Farm Mut. Auto. Ins. Co. v. Gutierrez, 866

       N.E.2d 747, 750 (Ind. 2007) (affirming trial court’s denial of motion for

       separate trials where moving party only speculated he would be prejudiced by

       joint trial).

                                                   Sixth Amendment

[15]   Aragon also contends that the trial court denied him his right to present a

       defense and his right to cross-examine witnesses under the Sixth Amendment to

       the United States Constitution. The right to present a defense includes “the

       right to offer the testimony of witnesses” and “the right to present the

       defendant’s version of the facts as well as the prosecution’s to the jury so it may

       decide where the truth lies.” Kellems v. State, 651 N.E.2d 326, 328 (Ind. Ct.

       App. 1995). The right to cross-examination is satisfied if the defendant has the

       opportunity to bring out such matters as a witness’ bias, lack of care and




       2
         Aragon asserts on the one hand that, “[b]y the time the trial rolled around, A.L. had had two years to
       collude with her mother,” and on the other hand that, at trial, “A.L. could not recall many details about the
       purported encounter with Aragon.” Appellant’s Br. at 36. It would seem more likely that a coached witness
       who has colluded with her mother to frame a defendant would not have had the apparent trouble
       remembering details that A.L. had when she testified at trial. Moreover, Aragon did not schedule A.L.’s
       deposition until approximately six months after his arrest, and that gave A.L. and J.A. ample time to get their
       stories straight if, indeed, they had colluded to frame Aragon.

       Court of Appeals of Indiana | Memorandum Decision 09A04-1712-CR-2824 | September 13, 2018         Page 9 of 14
       attentiveness, poor eyesight, or even bad memory. Jarrell v. State, 852 N.E.2d

       1022, 1027 (Ind. Ct. App. 2006).


[16]   Other than his speculation that, had he been able to depose A.L. without J.A.

       present A.L. would have testified differently, Aragon has not shown that he was

       denied his right to present evidence in his defense to show that A.L. had lied or

       that J.A. had improperly influenced A.L. Neither has he shown that he was

       denied his right to effectively cross-examine A.L. or any other witness regarding

       A.L.’s alleged fabrication of the incident. Indeed, at trial, Aragon cross-

       examined A.L. while J.A. was not present in the courtroom. And Aragon does

       not allege that the trial court prevented him from asking certain questions of

       A.L. or J.A. or from calling witnesses in his defense. Aragon’s Sixth

       Amendment claims are without merit.


                                   Issue Three: Videotaped Statement

[17]   Aragon next contends that the trial court abused its discretion when it admitted

       into evidence the videotaped statement A.L. gave to law enforcement after

       Aragon’s arrest. Aragon maintains that the trial court erred when it admitted

       A.L.’s statement because it did not first make specific findings of fact and

       conclusions of law and because the State did not timely notify him of its intent

       to introduce the statement into evidence. We address each contention in turn.

                                  Findings of Fact and Conclusions of Law

[18]   For the first time on appeal, Aragon argues that the trial court was required to

       make “specific findings of fact and conclusions of law” in support of its

       Court of Appeals of Indiana | Memorandum Decision 09A04-1712-CR-2824 | September 13, 2018 Page 10 of 14
       determination that A.L.’s videotaped statement was admissible under the

       Protected Person Statute, Indiana Code Section 35-37-4-6. Appellant’s Br. at

       37. He asserts that, without such findings and conclusions, we must reverse his

       conviction. However, because Aragon did not object to the admission of the

       videotaped statement on that ground when the trial court ruled on its

       admissibility, the issue is waived. See Coomer v. State, 575 N.E.2d 683, 685 (Ind.

       Ct. App. 1991). In any event, because A.L.’s videotaped statement was merely

       cumulative of her testimony at trial, any error in its admission was harmless.

       See Willis v. State, 776 N.E.2d 965, 967 (Ind. Ct. App. 2002).


                                  Untimely Notice of Intent to Use at Trial

[19]   Aragon also asserts that, because Indiana Code Section 35-37-4-6(g) required

       that the State give him at least ten days’ notice of its intent to introduce into

       evidence A.L.’s videotaped statement, “prejudice should be presumed” due to

       the State’s untimely disclosure only seven days before trial. Appellant’s Br. at

       39. Aragon maintains that he was prejudiced in that he was “denied an

       adequate opportunity to object to the reliability of the videotaped statement.”

       Id. We cannot agree.


[20]   Generally, the proper remedy for a discovery violation is a continuance. Berry

       v. State, 715 N.E.2d 864, 866 (Ind. 1999). If a continuance would have cured

       the harm that arose by the discovery violation, failure to request one results in

       waiver. Alcantar v. State, 70 N.E.3d 353, 356 (Ind. Ct. App. 2016). Here, when

       the parties argued this issue to the trial court, the court mentioned that Aragon

       could request a continuance, but Aragon did not do so. Rather, Aragon
       Court of Appeals of Indiana | Memorandum Decision 09A04-1712-CR-2824 | September 13, 2018 Page 11 of 14
       acknowledged the trial court’s discretion in admitting the statement and asked

       that he be given an opportunity “to put on very brief testimony from some

       witnesses to address the issue of reliability before the Court decides.” Tr. Vol. 2

       at 90. The trial court agreed to allow Aragon to challenge the statement’s

       reliability by calling witnesses. Because Aragon did not request a continuance,

       the issue is waived. Alcantar, 70 N.E.3d at 356.


[21]   Waiver notwithstanding, the State asserts, and Aragon does not deny, that he

       had a copy of the videotaped statement for more than two years before trial and

       that the State had been “pretty up front” about its plan to use the statement at

       trial for some time.3 Id. at 82. Aragon has not demonstrated that the admission

       of the videotaped statement was error, let alone reversible error. And, again,

       because the statement was merely cumulative of A.L.’s trial testimony, any

       error was harmless.


                   Issue Four: Sufficiency of the Evidence—Criminal Confinement

[22]   Finally, Aragon contends that the State presented insufficient evidence to

       support his criminal confinement conviction. In reviewing the sufficiency of

       the evidence, we consider only the evidence and reasonable inferences most

       favorable to the conviction, neither reweighing the evidence nor reassessing

       witness credibility. Griffith v. State, 59 N.E.3d 947, 958 (Ind. 2016). We will




       3
           Nothing in the statute indicates that such notice be made in writing.


       Court of Appeals of Indiana | Memorandum Decision 09A04-1712-CR-2824 | September 13, 2018 Page 12 of 14
       affirm the judgment unless no reasonable fact-finder could find the defendant

       guilty. Id.


[23]   To prove criminal confinement, as a Level 5 felony, the State was required to

       show that Aragon knowingly or intentionally confined A.L., who was under

       the age of fourteen and who was not Aragon’s child, without her consent. I.C.

       § 35-42-3-3. “Confine” means to substantially interfere with a person’s liberty.

       I.C. § 35-42-3-1.


[24]   Aragon first asks us to consider six factors in our review of the sufficiency of the

       evidence, namely: the degree to which A.L.’s movement was restricted; the

       duration of confinement; whether Aragon made repeated efforts to restrict

       A.L.’s liberty; whether he moved A.L. a significant distance; the amount of

       force used in the confinement; and whether A.L. experienced pain. But

       Aragon’s argument amounts to a request that we reweigh the evidence, which

       we will not do. As the State points out, there is no Indiana case law that

       prescribes application of a six-factor test to determine the sufficiency of

       evidence to support a criminal confinement conviction.


[25]   The State presented evidence that Aragon had forcibly moved A.L. from the

       living room to his bedroom, against her will, and he had prevented her attempt

       to leave the bedroom when he tried to pull her pants down. That evidence is

       sufficient to support his conviction. See, e.g., McDonald v. State, 511 N.E.2d

       1066, 1068 (Ind. 1987) (holding evidence sufficient to support criminal




       Court of Appeals of Indiana | Memorandum Decision 09A04-1712-CR-2824 | September 13, 2018 Page 13 of 14
       confinement conviction where defendant sat on an officer’s chest, pinning him

       to the floor for a “matter of seconds”).


[26]   Still, Aragon points out that, to be convicted of criminal confinement as a Level

       5 felony, as charged, the evidence had to show that A.L. was under the age of

       fourteen and was not his child. He maintains that, because he was J.A.’s

       boyfriend, bought things for the family, played with A.L., and drove A.L. to

       school, he “acted in the place of A.L.’s father,” which is sufficient to show that

       A.L. was his child for purposes of the alleged criminal confinement.

       Appellant’s Br. at 44. We reject Aragon’s invitation to “interpret th[e]

       ambiguous language [of the statute] broadly to protect both parents and those

       acting in loco parentis.” Id. There is nothing ambiguous about the plain

       meaning of “the confining person’s child” as used in the statute, and there is no

       dispute that Aragon is not A.L.’s father. Accordingly, we hold that the State

       presented sufficient evidence to support Aragon’s criminal confinement

       conviction.


[27]   Affirmed in part, reversed in part, and remanded with instructions.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 09A04-1712-CR-2824 | September 13, 2018 Page 14 of 14
