                                                            FILED
Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                 Dec 05 2012, 9:03 am
court except for the purpose of
establishing the defense of res judicata,
                                                                 CLERK
collateral estoppel, or the law of the case.                   of the supreme court,
                                                               court of appeals and
                                                                      tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

KAREN CELESTINO-HORSEMAN                        GREGORY F. ZOELLER
Indianapolis, Indiana                           Attorney General of Indiana

                                                RICHARD C. WEBSTER
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

AGUSTIN MARTINEZ,                               )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 49A02-1203-CR-197
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Robert R. Altice, Jr. , Judge
                            Cause No. 49G02-1109-FA-69113


                                     December 5, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                             STATEMENT OF THE CASE

      Appellant-Defendant, Agustin Martinez (Martinez), appeals his convictions for

two Counts of child molesting, Class C felonies, I.C. § 35-42-4-3.

      We affirm.

                                        ISSUES

      Martinez raises one issue on appeal, which we restate as the following two issues:

      (1) Whether the trial court committed fundamental error in admitting testimony;

and

      (2) Whether the State presented sufficient evidence to prove beyond a reasonable

doubt that Martinez committed two Counts of child molesting.

                       FACTS AND PROCEDURAL HISTORY

      In 2011, Susan Henthorne (Henthorne) lived in a tri-level home on the south side

of Indianapolis with her three children. In July of 2011, Melissa Harris (Harris) and her

twelve year old daughter, M.H., moved in with Henthorne and her children. Harris’

boyfriend, Martinez, moved into the house shortly thereafter.        Harris and Martinez

resided on the bottom level of the tri-level house where there was a family room, a half

bathroom, and a hallway to one of the bedrooms. The middle level of the house held a

kitchen, dining room, and a living room. The third level of the house held a bathroom

and three bedrooms. M.H. shared a bedroom with Henthorne’s daughter on the third

floor of the house, but frequently slept with her mother and Martinez in their bedroom on

the bottom floor.
                                            2
       Sometime between 7:00 p.m. and 8:00 p.m. on September 26, 2011, Harris went to

the third floor of the home to take a shower. When she left her room on the first floor,

Martinez and M.H. were watching a movie and throwing a ball back and forth to each

other. While Harris was upstairs, Martinez began touching M.H. on her “private spot,”

both on top of and underneath her clothes. (Tr. p. 65). M.H. tried to pull Martinez’ arms

away, but he started “going up [her] shirt” and touching M.H. underneath her bra. (Tr. p.

67).

       When Harris returned downstairs, M.H. told her about Martinez’ actions. Harris

observed that M.H. was “nervous and a little teary-eyed.” (Tr. p. 33). She told M.H. to

stay in the bathroom and then confronted Martinez with M.H.’s allegations. Martinez

denied that he had touched M.H., and Harris yelled at him and slapped him two or three

times. When M.H. came into the bedroom, Martinez told her to tell “the truth.” (Tr. p.

39). M.H. responded “I am telling the truth.” (Tr. p. 39). At that point, she was still

teary-eyed and hung on to Harris.

       Subsequently, Harris told Martinez that he had to leave, but he refused. Henthorne

heard the commotion on the first floor and came downstairs to see what was happening.

She observed that M.H. seemed scared and that Martinez seemed intoxicated. When she

learned of M.H.’s accusations, Henthorne also told Martinez that he had to leave the

house. Martinez refused. Henthorne went back upstairs and telephoned the police, but

Martinez left before the police arrived.



                                            3
       Indianapolis Metropolitan Police Department Officer William Pang (Officer Pang)

responded to the scene and spoke with Harris and M.H. He consulted child abuse

Detective Grant Melton (Officer Melton), who instructed Officer Pang to have Harris and

M.H. come to his office at the Child Advocacy Center. M.H., Harris, and Henthorne

went to the Child Advocacy Center, where a Family Case Manager from the Department

of Child Services conducted a forensic interview of M.H.            Officer Melton also

interviewed Harris and Henthorne. After the interview, Officer Melton sent M.H. to

Riley Hospital for an examination.

       At Riley Hospital, M.H. met with a sexual assault nurse examiner, Cindy Wathen

(Wathen), who interviewed her to find out what M.H. had experienced. M.H. told

Wathen that Martinez had touched her breasts and genitalia and had also penetrated her

with his finger. Wathen conducted a physical examination of M.H., but did not find any

injuries.

       M.H. subsequently related to police officers that Martinez had touched her private

spot on another occasion before the night of September 26. She said that the incident had

occurred in Henthorne’s TV room on the bottom floor of the tri-level house, but she had

not said anything to Martinez about his actions because she was too nervous.

       On September 29, 2009, the State filed an Information charging Martinez with

Count I, child molesting, a Class A felony, I.C. § 35-42-4-3; and Counts II-IV, child

molesting, Class C felonies, I.C. § 35-42-4-3. After the State filed the charges, Martinez



                                            4
called Harris’ stepfather, Thomas Haley (Haley), from jail. During the telephone call,

Martinez told Haley to tell Harris that “he loved her and that he was sorry.” (Tr. p. 101).

       On February 10, 2012, a bench trial was held. At the conclusion of the State’s

case, the trial court granted Martinez’ motion for judgment on the evidence as to Count

IV. At the conclusion of the evidence, the trial court found Martinez not guilty of Count

I, child molesting as a Class A felony, but guilty of Counts II and III, child molesting,

Class C felonies. On February 22, 2012, the trial court held a sentencing hearing and

sentenced Martinez to eight years on each Count, with two years suspended and with the

sentences to be served concurrently. The trial court also sentenced Martinez to one year

of probation.

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

                             DISCUSSION AND DECISION

                                I. Admission of Testimony

       Martinez first argues that the trial court committed fundamental error when it

admitted certain testimony at trial. Specifically, he maintains that the trial court should

have excluded Wathen’s testimony that M.H. told her that Martinez had touched her

breasts and genitalia and Haley’s testimony that Martinez had told him to tell Harris he

was “sorry.” (Tr. p. 101). We will address each of these arguments separately.

                                 A. Wathen’s Testimony

       When Wathen testified to M.H.’s statements, Martinez objected on hearsay

grounds. The trial court, however, allowed the testimony because it determined that

                                             5
M.H.’s statements were made for the purpose of diagnosis or treatment. Martinez now

disputes the admission of the testimony on the basis that it did not comply with Ind.

Evidence Rule 702(a). Because Martinez did not object to the testimony on Evid. R. 702

grounds at trial, he must show on appeal that its admission was a fundamental error. See

Brown v. State, 783 N.E.2d 1121, 1125-26 (Ind. 2003) (holding that the failure to make a

contemporaneous objection at trial waives any claim on appeal that evidence was

improperly admitted).

       The fundamental error exception is extremely narrow and applies only where the

error constitutes a blatant violation of basic principles, the harm or potential for harm is

substantial, and the resulting error denies the defendant fundamental due process.

Mendenhall v. State, 963 N.E.2d 553, 567 (Ind. Ct. App. 2012), trans. denied. The mere

fact that error has occurred and that it will prejudice the defendant is not sufficient to

invoke the fundamental error exception; rather, the error must be such that we are left

with the conviction that the verdict is clearly wrong and of such dubious validity that

justice cannot permit it to stand. Owens v. State, 937 N.E.2d 880, 885 (Ind. Ct. App.

2010), trans. denied.

       Pursuant to Evid. R. 702(a),      “[i]f scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence or to determine a fact in

issue, a witness qualified as an expert by knowledge, skill, experience, training, or

education, may testify thereto in the form of an opinion or otherwise.” According to

Martinez, Wathen’s testimony did not “assist the trier of fact” because she did not

                                             6
discover any physical or scientific evidence indicating that M.H. had been molested and,

thus, the results of her examination were inconclusive.

       We cannot agree. We have characterized the standard for whether testimony will

“assist the trier of fact” as whether the testimony is “relevant to the task at hand.” See

F.A.C.E. Trading, Inc. v. Carter, 821 N.E.2d 38, 44 (Ind. Ct. App. 2005), trans. denied.

As defined in Evid. R. 401, evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” In order to prove that

Martinez committed child molesting, the State was required to prove that he “perform[ed]

or submit[ted] to any fondling or touching, of either [M.H. or himself] . . . .” I.C. § 35-

42-4-3(b). Accordingly, both the fact that M.H. received a sexual abuse examination and

the results of that examination were relevant to help the trier of fact determine whether

Martinez had touched M.H. Although the results were inconclusive, the lack of evidence

that Martinez had touched M.H. made it “less probable” that he in fact touched her. See

Evid. R. 401. Therefore, the inconclusive findings were relevant. See Evid. R. 401.

       Alternatively, Martinez also contends that the trial court committed fundamental

error by admitting Wathen’s testimony because (1) she did not describe the methods she

used to examine M.H; and (2) she did not explicitly explain why, based on her training

and experience, she did not expect to find any evidence of DNA or injury during her

examination. Pursuant to Evid. R. 702(b), “[e]xpert scientific testimony is admissible

only if the court is satisfied that the scientific principles upon which the expert testimony

                                             7
rests are reliable.” Martinez seemingly requests that we evaluate Wathen’s testimony

under this standard. However, we find that Wathen’s testimony was testimony regarding

“specialized knowledge,” which is governed by Evid. R. 702(a) rather than Evid. R.

702(b). See Newbill v. State, 884 N.E.2d 383, 398 (Ind. Ct. App. 2008), trans. denied

(allowing sexual assault nurse examiner to testify regarding sexual abuse examination

due to her specialized knowledge).      Under this standard, we do not find merit in

Martinez’ contentions. See Lyons v. State, No. 76A03-1112-CR-582, 2012 WL 4829806,

*4 (Ind. Ct. App. Oct. 11, 2012) (stating that if an expert has specialized knowledge

meeting the requirements of Evid. R. 702(a), any weaknesses or problems in the expert’s

testimony go only to the weight of the testimony, not its admissibility). Accordingly, we

conclude that the trial court did not commit fundamental error in admitting Wathen’s

testimony.

                                  B. Haley’s Testimony

      Next, we will address Martinez’ argument that the trial court abused its discretion

when it allowed Haley to testify that Martinez told him to tell Harris that “he loved her

and [] was sorry.” (Tr. p. 101). Martinez’ specific argument is that this statement did not

have probative value and should not have been admitted.

      Evidence is relevant, and therefore has probative value, if it has “any tendency to

make the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.” Evid. R. 401.

The trial court has the discretion to admit even marginally relevant evidence and will

                                            8
only exclude that evidence where its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, or

needless presentation of cumulative evidence. Sanders v. State, 724 N.E.2d 1127, 1131

(Ind. Ct. App. 2000). The trial court has wide latitude in weighing the probative value of

the evidence against the possible prejudice of its admission. Id.

       Martinez’ statement has substantial probative value because it could be interpreted

as an apology for molesting M.H. and, therefore, an admission of guilt. Thus, it is

relevant according to the definition of “relevant evidence” provided by Evid. R. 401.

Although Martinez offers us an alternate interpretation of his apology—that he was sorry

he and Harris “were both suffering”—we must consider the evidence in the light most

favorable to the trial court. (Tr. p. 136); see id. While his statement might have had a

minimal prejudicial effect, we do not find that its prejudicial effect outweighed its

probative value given its substantial probative value. Accordingly, we conclude that the

trial court did not abuse its discretion in allowing the testimony.

                                       II. Sufficiency

       Finally, Martinez argues that the State did not provide sufficient evidence to prove

beyond a reasonable doubt that he committed both Counts of child molesting.             In

particular, the State did not prove that he touched M.H.’s breasts and genitalia with the

intent to “arouse or satisfy sexual desires.” See I.C. § 35-42-4-3. In reviewing a claim of

insufficiency of the evidence on appeal from a bench trial, we neither reweigh the

evidence nor assess the credibility of witnesses. Sargent v. State, 875 N.E.2d 762, 767

                                              9
(Ind. Ct. App. 2007).     We will consider only the evidence most favorable to the

judgment, together with all reasonable inferences that can be drawn therefrom. Id. If a

reasonable trier of fact could have found the defendant guilty based on the probative

evidence and reasonable inferences drawn therefrom, then we will affirm the conviction.

Id.

       In order to convict Martinez for child molesting as a Class C felony, the State was

required to prove that he, “with a child under fourteen (14) years of age, perform[ed] or

submit[ted] to any fondling or touching, of either [M.H. or himself], with intent to arouse

or satisfy the sexual desires of either [M.H. or himself].” I.C. § 35-42-4-3. Mere

touching alone is not sufficient to constitute the crime of child molesting. Rodriguez v.

State, 868 N.E.2d 551, 553 (Ind. Ct. App. 2007). The State was also required to prove

beyond a reasonable doubt that the act of touching was accompanied by the specific

intent to arouse or satisfy sexual desires. Id. “The intent to arouse or satisfy the sexual

desires of the child or the older person may be established by circumstantial evidence and

may be inferred from ‘the actor’s conduct and the natural and usual sequence to which

such conduct usually points.’” Id. (quoting Kanady v. State, 810 N.E.2d 1068, 1069-70

(Ind. Ct. App. 2004)). Our supreme court has held that intentional touching of the genital

area can be circumstantial evidence of intent to arouse or satisfy sexual desires. Sanchez

v. State, 675 N.E.2d 306, 311 (Ind. 1996).

       Here, the State presented sufficient evidence of Martinez’ intent to arouse or

satisfy his sexual desires with respect to both Counts. In support of Count II, the State

                                             10
presented evidence that on September 26, 2011, Martinez touched M.H. on her “private

spot,” both on top of and underneath her clothes. (Tr. p. 65). M.H. tried to pull

Martinez’ arms away, but he started “going up [her] shirt” and touching her underneath

her bra. (Tr. p. 67). Later that evening, M.H. told Wathen that Martinez had touched her

breasts and genitalia, and that he had penetrated her with his finger. Martinez contends

that M.H.’s reference to her “private spot” was too ambiguous to prove that he touched

her genital area.       However, we have already found that Wathen’s testimony was

admissible, and her testimony clarified that M.H. was referring to her genitalia when she

said “private spot.”1 This is sufficient circumstantial evidence to support a reasonable

inference of Martinez’ intent to arouse or satisfy his sexual desires. See id.

        Alternatively, Martinez contends that because the trial court did not find Wathen’s

testimony sufficient to support Count I, it should not have found it sufficient to support

Count II. We will not address this argument as we will not review a judgment on the

basis that it is inconsistent. See Dubinion v. State, 493 N.E.2d 1245, 1246 (Ind. 1986).

        Turning to Count III, M.H. testified that on an unidentified date, she was standing

in the TV room when Martinez touched her on her “private spot” on top of her clothes

and made her feel “uncomfortable.”2 (Tr. p. 60). We can infer from the “natural and

1
 We also reject Martinez’ argument that the State did not prove that he touched M.H. underneath her bra
in front rather than in back as we have previously held that “touching a child’s breasts or genitals is not
required to sustain a child molesting conviction.” Bass v. State, 947 N.E.2d 456, 460 (Ind. Ct. App.
2011). Therefore, it is immaterial whether Martinez touched M.H.’s back or chest as long as the touching
was done with the intent to arouse or satisfy his sexual desires.
2
 We do not find merit in Martinez’ argument that the State was required to prove that the offense
occurred between August 11, 2011 and September 26, 2011, as alleged in the charging Information. As
                                                   11
usual sequence” of touching a person’s “private spot” that Martinez acted with the intent

to arouse or satisfy his sexual desires. See Rodriguez, 868 N.E.2d at 553. We conclude

that this inference was reasonable and provided sufficient circumstantial evidence of his

intent to support his conviction on Count III.

        In sum, we find that the State presented sufficient evidence to support his

convictions on both Counts beyond a reasonable doubt.

                                            CONCLUSION

        Based on the foregoing, we conclude that (1) the trial court did not commit

fundamental error in admitting testimony; and (2) the State presented sufficient evidence

to prove beyond a reasonable doubt that Martinez committed two Counts of child

molesting.

        Affirmed.

BAILEY, J. and CRONE, J. concur




the State correctly notes, “[i]n child molestation cases, the exact date is only important in limited
circumstances, such as where the victim’s age at the time of the offense falls at or near the dividing line
between classes of felonies.” Love v. State, 761 N.E.2d 806, 809 (Ind. 2002). M.H. was only twelve
years old at the time of the offense, and was thus well below the fourteen-year-old dividing line for child
molesting. See I.C. § 35-42-4-3.

                                                     12
