MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Feb 07 2020, 10:37 am

court except for the purpose of establishing                                  CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Matthew D. Anglemeyer                                    Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Courtney Staton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Allen Houx,                                              February 7, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1547
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Grant W.
Appellee-Plaintiff.                                      Hawkins, Judge
                                                         Trial Court Cause No.
                                                         49G05-1806-F1-20561



Barteau, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1547 | February 7, 2020                  Page 1 of 11
                                          Statement of the Case
                                                                                                   1
[1]   Allen Houx appeals his conviction by jury of child molesting, a Level 1 felony.

      We affirm.


                                                     Issue
[2]   Houx raises one issue, which we restate as: whether the trial court erred in

      allowing a witness to testify as to what another witness had told her.


                                   Facts and Procedural History
[3]   Jose and Rose Vallejo lived in Indianapolis with their four children. In April

      2018, they allowed Houx, who they knew as “Panama,” to stay with them

      because the electricity had been shut off at his former residence. Tr. Vol. 2, pp.

      124, 150. Edwin Sanchez, who was engaged to Rose’s mother, also moved into

      the Vallejos’ home. Houx and Sanchez slept in the basement.


[4]   On the night of March 5, 2018, Rose was at home with Houx, Sanchez, and her

      children. Sanchez was asleep in the basement, and Rose needed to go pick up

      Jose. She asked Houx to be responsible for the children while she was gone,

      and he agreed. Rose left after nine p.m. At that time, all of the children were in

      their bedrooms.




      1
          Ind. Code § 35-42-4-3 (2015).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1547 | February 7, 2020   Page 2 of 11
[5]   After Rose left, J.V. entered the living room, where Houx was watching

      television. As they watched television together, Houx suddenly grabbed J.V.

      and pulled her pants and underwear down to her ankles. He “licked” her

      “private” with his tongue, moving his tongue “up and down” as she fought

      him. Tr. Vol. 2, p. 139. J.V. eventually freed herself and ran to her mother’s

      room, where she cried herself to sleep on the bed. At trial, she identified Houx

      when the State asked her to point out the person that had “licked her pee-pee.”

      Id. at 141.


[6]   When Rose and Jose returned home, Rose found J.V. in her bed, asleep. She

      noticed J.V.’s jeans were unfastened and had slid down “a little bit past her

      hip.” Id. at 153. Rose went to sleep and did not disturb J.V.


[7]   The next morning, between seven and eight a.m., J.V. woke up and left Rose’s

      bedroom. Two to three minutes later, J.V. returned to Rose’s bedroom and

      tugged on her shirt. She looked scared and “really worried.” Id. at 155. J.V.

      had seen Houx and said that she needed to talk with Rose. Rose testified that

      J.V. told her that on the previous night, Houx had “forced her down, pushed

      her down and held her down and licked her pee-pee.” Id. at 158.


[8]   Next, Rose confronted Houx, and she told Jose what J.V. had said. Jose

      ordered Houx to leave the residence while Rose comforted J.V., who was

      “[s]cared, shaking violently, crying” and hiding behind Rose. Id. at 161. Rose

      had never seen J.V. react that way to Houx.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1547 | February 7, 2020   Page 3 of 11
[9]    A police officer arrived at the house and spoke with Rose. At 1 p.m. that same

       day, Rose took J.V. to the Child Advocacy Center for a forensic interview.

       Later that same day, Rose took J.V. to Riley Hospital, where Angela Bates, a

       forensic nurse, performed a pediatric sexual assault examination on J.V.


[10]   Bates asked J.V. to remove her clothes. J.V. was still wearing the same

       underwear from the previous evening, and Bates collected the underwear.

       Next, Bates examined J.V. from head to toe, generating a “body map” diagram

       as part of the process. Id. at 183. She noted on the body map that J.V. had

       abrasions on her lower legs and redness on the left side of her labia. Bates

       concluded the redness was not “hygiene related,” because in her experience that

       kind of issue would be “more generalized” instead of in one specific location.

       Id. at 194. J.V. told Bates that the red area was tender to the touch.


[11]   Later, the police took a buccal swab from Houx. DNA testing of a sample

       taken from the inside crotch of J.V.’s underwear revealed characteristics that

       were consistent with characteristics in Houx’s DNA profile. The characteristics

       of Houx’s profile are present in only 1 out of every 699 male individuals,

       including Houx’s male relatives and male ancestors. In March 2018, none of

       Houx’s male relatives lived in Indianapolis.


[12]   On June 26, 2018, the State charged Houx with Level 1 felony child molesting.

       The court presided over a jury trial on May 13 and 14, 2019. The jury

       determined Houx was guilty as charged. The court subsequently imposed a

       sentence, and this appeal followed.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1547 | February 7, 2020   Page 4 of 11
                                    Discussion and Decision
[13]   Houx argues the trial court erred by allowing Rose to tell the jury what J.V. had

       told her, arguing that Rose’s testimony on that point was impermissible

       hearsay. The State responds that the testimony was not barred by the rule

       against hearsay.


[14]   The trial court has inherent discretionary power in the admission of evidence,

       and its decisions are reviewed for an abuse of that discretion. Jones v. State, 780

       N.E.2d 373, 376 (Ind. 2002). An abuse of discretion involves a decision that is

       clearly against the logic and effect of the facts and circumstances before the

       court. Cox v. State, 774 N.E.2d 1025, 1026 (Ind. Ct. App. 2002). In

       determining the admissibility of evidence, the reviewing court will consider

       only the evidence in favor of the trial court’s ruling and any unrefuted evidence

       in the defendant’s favor. Id.


[15]   Hearsay is “a statement that . . . is not made by the declarant while testifying at

       the trial or hearing; and . . . is offered in evidence to prove the truth of the

       matter asserted.” Ind. Evid. Rule 801(c). Hearsay evidence is inadmissible at

       trial except as otherwise provided by statute or the Indiana Rules of Evidence.

       Ind. Evid. Rule 802.


[16]   One exception to the rule against hearsay permits the admission of an “excited

       utterance.” Ind. Evid. Rule 803(2). An excited utterance is: “A statement

       relating to a startling event or condition, made while the declarant was under

       the stress of excitement that it caused.” Id. “The rationale behind admitting

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1547 | February 7, 2020   Page 5 of 11
       excited utterances is that startling events and absence of opportunity for

       reflection vest the statements with reliability and reduce the likelihood of

       falsification.” Chambless v. State, 119 N.E.3d 182, 189 (Ind. Ct. App. 2019),

       trans. denied.


[17]   In order for a hearsay statement to be admitted as an excited utterance, three

       elements must be established: (1) a startling event has occurred; (2) a statement

       was made by a declarant while under the stress of excitement caused by the

       event; and (3) the statement relates to the event. Boatner v. State, 934 N.E.2d

       184, 186 (Ind. Ct. App. 2010). Houx disputes only the second element,

       claiming J.V. could not have been under the stress of excitement when she told

       Rose that Houx had molested her the previous evening.


[18]   A startling event and the resulting utterance need not be contemporaneous,

       though lapse of time is a factor to consider when deciding if the statement was

       spontaneous and unrehearsed. Chambless, 119 N.E.3d at 189. The longer the

       time between an event and an utterance, the greater the likelihood that the

       statement is a narrative of past events instead of an excited utterance. Id.

       However, the greater the stress caused by the event, the longer the effects of the

       stress can endure. Id. “The heart of the inquiry is whether the declarant was

       incapable of thoughtful reflection.” Jones v. State, 800 N.E.2d 624, 627 (Ind. Ct.

       App. 2003).


[19]   The Court’s decision in Ramsey v. State, 122 N.E.3d 1023 (Ind. Ct. App. 2019),

       trans. denied, provides guidance on the span of time that may elapse between a


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1547 | February 7, 2020   Page 6 of 11
       startling event and an utterance. In that case, a victim was found in her

       residence, terrified and displaying injuries consistent with a severe beating.

       When the police arrived at the scene, the victim told an officer that Ramsey

       (who was absent from the residence) had held her against her will for four days

       and had threatened to harm her children. The victim appeared to be very upset,

       shaken, and nervous. Later, at the hospital, the victim told the same officer that

       Ramsey had beaten her repeatedly over a three-day span.


[20]   Ramsey argued the trial court erred in allowing the officer to testify as to the

       victim’s statements. A panel of this Court noted the officer spoke with the

       victim shortly after she had been rescued from her residence, and she displayed

       signs consistent with still being under the effects of a traumatic ordeal. The

       Court concluded the victim was still under the stress of excitement when she

       spoke with the officer, and as a result her statements qualified as excited

       utterances that were not subject to the rule against hearsay.


[21]   Similarly, in D.G.B. v. State, 833 N.E.2d 519 (Ind. Ct. App. 2005), the parents of

       a six-year-old left her in the care of fifteen-year-old D.B.G. When they

       returned, they took D.G.B. and the victim to run an errand before returning

       home. An hour after they returned, the victim told her mother something was

       wrong. The mother discovered the victim was not wearing underwear and was

       bleeding profusely from her vagina. D.G.B. claimed the victim had been hurt

       during horseplay.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1547 | February 7, 2020   Page 7 of 11
[22]   The mother took the victim to the hospital, where doctors discovered the

       victim’s vagina was torn, and the nature of the injury was inconsistent with

       D.G.B.’s account of how it had occurred. The victim underwent surgery and

       spent the night in the hospital. The next morning, the victim appeared to be

       upset while having breakfast and pushed her fork and knife to the side. When

       her mother asked what was wrong, the victim stated that while she had been

       left in D.G.B.’s care, D.G.B. and his friend had held her down and inserted a

       fork and knife into her vagina. She also said D.G.B. had threatened to roast her

       on a grill and feed her to a dog if she told anyone.


[23]   The State alleged D.G.B. was a juvenile delinquent for acts that, if committed

       by an adult, would have included Class A felony child molesting. At trial, the

       victim’s mother described the victim’s statements to her. The juvenile court

       entered a true finding on the child molest allegation. On appeal, D.G.B.

       claimed the court should not have admitted the mother’s testimony about the

       victim’s statements because they were hearsay. A panel of this Court

       concluded that at the time the victim disclosed the abuse to her mother, the

       victim was still under the stress of the excitement caused by the sexual assault

       because: (1) she could not stop bleeding; (2) she was taken to the emergency

       room; (3) she was anesthetized and subjected to surgery without being

       sufficiently prepared; and (4) she was confronted at breakfast with the same

       type of implements that had injured her. The Court concluded, “We are

       convinced that a six-year-old child who suffered the abhorrent molestation that




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1547 | February 7, 2020   Page 8 of 11
       F.N. suffered here would remain under the stress of excitement caused by this

       event for much longer than the adults [in a different case].” Id. at 527.


[24]   In the current case, Houx was living in seven-year-old J.V.’s home and was

       temporarily in a position of supervision over her. He suddenly and violently

       assaulted J.V., pulling down her pants and underwear and placing his mouth on

       her genitals before she was able to break free and run to her mother’s room,

       where she cried herself to sleep. Almost immediately upon awakening the next

       morning, she left the bedroom, encountered Houx again, and returned to tell

       her mother what Houx had done the night before. Rose noted that J.V. was

       “really worried and like scared.” Tr. Vol. 2, p. 155. Soon thereafter, when

       Rose comforted J.V. as Jose ordered Houx to leave the apartment, J.V. was

       [s]cared, shaking violently, crying.” Id. at 161.


[25]   We conclude from the foregoing that J.V. was still under the stress of the

       excitement caused by Houx’s sexual assault. Similar to the victim in Ramsey,

       J.V. was still in her own home, and her attacker was present or could have

       returned at any time. In addition, similar to the victim in D.G.B., J.V. was

       confronted with a reminder of the assault (seeing Houx) immediately before

       disclosing to Rose what had happened. Further, J.V., like the victims in Ramsey

       and D.G.B., displayed signs of emotional upset and fear as she told her mother

       what Houx had done to her. The trial court did not abuse its discretion by

       admitting Rose’s testimony as an exited utterance.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1547 | February 7, 2020   Page 9 of 11
[26]   Even if the trial court had erred in admitting Rose’s hearsay testimony, any

       error would have been harmless. Indiana Rule of Appellate Procedure 66(A)

       provides:


               No error or defect in any ruling or order or in anything done or
               omitted by the trial court or by any of the parties is ground for
               granting relief or reversal on appeal where its probable impact, in
               light of all the evidence in the case, is sufficiently minor so as not
               to affect the substantial rights of the parties.


       Thus, we will not reverse a trial court’s evidentiary ruling if we may sustain it

       on any ground. Chambless, 119 N.E.3d at 188.


[27]   During the trial, J.V. stated that Houx “licked” her “private” with his tongue,

       moving his tongue “up and down” as she fought with him. Tr. Vol. 2, p. 139.

       She also agreed that Houx was the person who had “licked her pee-pee.” Id. at

       141. In addition, the forensic nurse who had examined J.V. discovered leg

       abrasions that were consistent with J.V.’s description of struggling against

       Houx. The nurse also found a spot of redness on J.V.’s labia, which she

       deemed inconsistent with mere hygienic issues. Finally, DNA testing of

       Houx’s sample and a sample generated from the interior crotch of J.V.’s

       underwear revealed that the samples had similar characteristics. Only one in

       699 males have similar characteristics, including Houx’s male relatives, and

       none of his male relatives lived in Indiana.


[28]   Houx argues that J.V. made inconsistent statements as to where he licked her

       on her body and concludes there is a reasonable doubt as to whether he


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1547 | February 7, 2020   Page 10 of 11
       molested her. This is a request to reweigh the evidence, which violates our

       standard of review. There is ample independent evidence to sustain Houx’s

       conviction, and any error in the admission of Rose’s testimony about what J.V.

       said to her was minor in impact and could not have affected Houx’s substantial

       rights.


                                                Conclusion
[29]   For the reasons stated above, we affirm the judgment of the trial court.


[30]   Affirmed.


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1547 | February 7, 2020   Page 11 of 11
