MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be
                                                                          Jul 19 2019, 9:08 am
regarded as precedent or cited before any
court except for the purpose of establishing                                    CLERK
                                                                           Indiana Supreme Court
the defense of res judicata, collateral                                       Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Sean C. Mullins                                           Curtis T. Hill, Jr.
Crown Point, Indiana                                      Attorney General of Indiana

                                                          Tiffany A. McCoy
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Luis Angel Mendoza,                                       July 19, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-3016
        v.                                                Appeal from the Lake Superior
                                                          Court
State of Indiana,                                         The Honorable Salvador Vasquez,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          45G01-1602-FB-1



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-3016 | July 19, 2019                      Page 1 of 13
[1]   Luis Angel Mendoza appeals his convictions of Class B felony child molesting 1

      and Class C felony child molesting. 2 He raises one issue on appeal, which we

      restate as whether the trial court committed reversible error by allowing limited

      testimony regarding Mendoza’s relationship with an underage family member

      other than the victim. We affirm.



                                Facts and Procedural History
[2]   Mendoza is approximately seven years older than J.R., and they have known

      each other for J.R.’s entire life. They are cousins and interacted frequently at

      family gatherings. When J.R. was six years old, Mendoza made him look at

      pornographic pictures and videos. When J.R. was eight years old, Mendoza

      began sexually touching J.R. This behavior continued until J.R. was twelve.


[3]   J.R. testified about one incident that occurred when he was eleven and

      Mendoza was eighteen. Mendoza and his immediate family came to visit J.R.

      and his immediate family to see J.R.’s newborn baby brother. While the rest of

      the family was in the living room observing J.R.’s brother, Mendoza and J.R.

      went to J.R.’s brother’s bedroom. Mendoza directed J.R. to perform oral sex

      on him, and J.R. complied. They stopped when they heard J.R.’s stepmother

      coming down the hallway.




      1
          Ind. Code § 35-42-4-3(a) (2011).
      2
          Ind. Code § 35-42-4-3(b) (2011).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3016 | July 19, 2019   Page 2 of 13
[4]   Another incident occurred when Mendoza spent the night at J.R.’s house. J.R.

      was in his room sleeping when Mendoza woke him and told him to come to the

      living room. J.R. followed Mendoza to the couch. While on the couch,

      Mendoza used his finger or his penis to penetrate J.R.’s anus. J.R.’s stepmother

      woke up. She noticed J.R.’s bedroom door was open and began to look for

      him. When Mendoza heard that J.R.’s stepmother was up, Mendoza pushed

      J.R. behind him, covered J.R. with a blanket, and laid on top of J.R. J.R.’s

      stepmother asked Mendoza if he had seen J.R., and Mendoza responded that

      he had not. J.R.’s stepmother continued to look for J.R. throughout the house.

      When J.R.’s stepmother said she was going to call the police because she could

      not find J.R., Mendoza pulled the covers off J.R. and said he was in the living

      room.


[5]   J.R. also testified that Mendoza would fondle him underneath his pants while

      they played video games, including while J.R.’s sister was in the room watching

      them play the games. Years later, J.R.’s stepmother and his mother asked J.R.

      about his relationship with Mendoza, and J.R. told them Mendoza molested

      him. The family notified law enforcement. On February 29, 2016, the State

      charged Mendoza with three counts of child molesting.


[6]   Beginning on October 22, 2018, the trial court held a three-day jury trial.

      Following voir dire and before recessing for the evening after the first day, the

      parties discussed—outside the presence of the jury—the manner in which to

      address allegations made by W., a cousin of both J.R. and Mendoza, against



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3016 | July 19, 2019   Page 3 of 13
      Mendoza and pending criminal charges against Mendoza connected to W.’s

      allegations. During that discussion, Mendoza’s counsel stated:


              So our defense is based on the fact that W. and [J. R.] get caught
              and, you know, they both describe how they’re not gay and their
              cousin, [Mendoza], was making them do this because they were
              molested many years prior to that. And so that’s where this
              whole situation comes from. So my biggest point is I do want to
              talk about that, but at the same time, I want [Mendoza] to have
              that protection where people aren’t finding out about other
              criminal charges and allegations. And it’s . . . very complicated
              and—the allegations and those instances in our defense kind of
              get braided up with each other. So it becomes—definitely going
              to avoid opening up the door to any charges that my client is
              facing against W. because I think that would prejudice the jury
              for sure. But I don’t know if I’m going to be able to tell the story
              about these allegations without the State being able to talk about
              W. also making those allegations, and I don’t know if—I don’t
              know if that’s even possible.


      (Tr. Vol. II at 127-128.) In response, the State indicated that allowing

      Mendoza to advance his blame shifting theory without letting the State

      elicit testimony related to allegations that Mendoza molested W.

      “hamstrings the State’s ability to attack the defense.” (Id. at 129.) The

      trial court noted admissibility would depend on how the evidence was

      presented but did not make a ruling.


[7]   The next day, prior to opening arguments, Mendoza made an oral motion in

      limine seeking to exclude information in an East Chicago police report

      regarding sex offenses Mendoza allegedly committed against W. The trial


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3016 | July 19, 2019   Page 4 of 13
court granted Mendoza’s motion and noted that, if the issue arose during trial,

the court would put the trial on hold and allow the prosecution to make an offer

of proof. During opening statement, Mendoza’s counsel referenced J.R.’s

relationship with W. several times:


        [T]his case started out because the family finds out and this is a
        religious family, [Mendoza] is—I’m not going to say he’s an
        outcast, but he’s somewhat different than everybody. He’s gay.
        Everybody knows he’s gay. He has a boyfriend, but what
        everybody finds out in the family is that [J.R.] and his cousin that
        are months apart were having sex. Two boy cousins, W. and [J.
        R.], were having intercourse. So when confronted by that, that’s
        when this allegation comes forward. That’s when [J.R.] says oh,
        my gay cousin molested us. That’s how these allegations started.
        That’s what these allegations are about.


                                              *****


        Who is trying to give—well, they are giving reasons well, we
        were only hooking up. W. and [J. R.] as 14- and 15-year-old
        boys. We are not gay. [Mendoza] molested us. That’s what this
        case is about. People trying to shift blame. They don’t want to
        be outed.


                                              *****


        That’s not right. It’s not appropriate and that’s what this case is
        about. You have someone who said this when he was
        confronted about having sex with his 15-year-old cousin.
        Depending on when this happened and timeframe. He’s
        confronted and he blames [Mendoza]


                                              *****

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3016 | July 19, 2019   Page 5 of 13
              This is all something that when confronted with an awkward
              situation, [J.R.] blames [Mendoza]. Doesn’t want to be outed.
              Doesn’t want to be rejected by his religious family.


      (Tr. Vol. III at 22-23, 26-27.)


[8]   During a sidebar after Mendoza’s opening argument, the State made an offer of

      proof stating the defense “opened the door” regarding the allegations involving

      W. and Mendoza and that the State wished to ask J.R. about whether he knew

      of W. and Mendoza’s relationship. (Id. at 27-28.) The court granted the State’s

      request and Mendoza entered a continuing objection.


[9]   At the end of the State’s direct examination of J.R., the following exchange

      occurred:


              Q [J.R.], at some point, did you talk to [Mendoza] or did
              [Mendoza] talk to you about his relationship with W.?


              A Yes.


              Q And did [Mendoza] ever tell you that [Mendoza] had any
              sexual relationship with W.?


              A Yes.


      (Id. at 46-47.) During cross-examination of J.R., Mendoza asked:


              Q: Thank you. So you never tell anybody anything about this
              until you are accused of having a sexual relationship with W.,
              right?


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3016 | July 19, 2019   Page 6 of 13
        A: Yes.


        Q: That is what came up first, the relationship with W., correct,
        not [Mendoza], correct?


        A: No.


        Q: What happened?


        A: It was [Mendoza] first.


        Q: Who asked you about [Mendoza] first?


        A: My Mom and my stepmom.


                                              *****


        Q: So the story that you are telling us is that [Stepmother] and
        [Mother] asked you—first started out their investigation into
        this—these cousins having sex with you. First thing they bring
        up is you and [Mendoza], right?


        A: Yes.


        Q: And not you and W.?


        A: Yes.


(Id. at 48, 60-61.)




Court of Appeals of Indiana | Memorandum Decision 18A-CR-3016 | July 19, 2019   Page 7 of 13
[10]   The jury found Mendoza guilty of one count of Class B felony child molesting

       and of Class C felony child molesting, but it found him not guilty of the second

       count of Class B felony child molesting. The court entered judgments of

       conviction of Class B felony and Class C felony child molesting and sentenced

       Mendoza to an aggregate term of twelve years in the Indiana Department of

       Correction.



                                  Discussion and Decision
[11]   Mendoza contends the trial court erred in admitting J.R.’s testimony that

       Mendoza told J.R. that Mendoza also had a sexual relationship with W. We

       evaluate a decision to admit or exclude evidence using an abuse of discretion

       standard because such decisions are within the trial court’s “sound discretion”

       and are “afforded great deference” on appeal. Fugett v. State, 812 N.E.2d 846,

       848 (Ind. Ct. App. 2014). We will reverse a decision to admit evidence only

       where the admission is a “manifest abuse of discretion by the trial court

       resulting in the denial of a fair trial.” Johnson v. State, 831 N.E.2d 163, 168-69

       (Ind. Ct. App. 2005), trans. denied. “A decision is an abuse of discretion if it is

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

       court.” Id. at 169.


[12]   Mendoza argues the trial court improperly admitted this testimony in violation

       of Indiana Rule of Evidence 404(b), which controls the admissibility of

       “Crimes, Wrongs, or Other Acts” evidence and provides:



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3016 | July 19, 2019   Page 8 of 13
               (1) Prohibited uses. Evidence of a crime, wrong, or other act is not
               admissible to prove a person’s character in order to show that on
               a particular occasion the person acted in accordance with the
               character.


               (2) Permitted Uses; Notice in a Criminal Case. This evidence may be
               admissible for another purpose, such as proving motive,
               opportunity, intent, preparation, plan, knowledge, identity,
               absence of mistake, or lack of accident. On request by a
               defendant in a criminal case, the prosecutor must:


                        (A) provide reasonable notice of the general nature of any
                        such evidence that the prosecutor intends to offer at trial;
                        and


                        (B) do so before trial—or during trial if the court, for good
                        cause, excuses lack of pretrial notice.


       This rule is meant to prevent the jury from drawing the forbidden inference that

       the defendant is guilty of the crime he stands accused of committing because the

       defendant committed crimes in the past. Udarbe v. State, 749 N.E.2d 562, 564

       (Ind. Ct. App. 2001).


[13]   In examining the admissibility of Rule 404(b) evidence, courts apply a two-

       prong analysis. Wages v. State, 863 N.E.2d 408, 410 (Ind. Ct. App. 2007), reh’g

       denied, trans. denied. “First, the court must assess whether the evidence has

       some relevancy to a matter at issue other than the defendant’s propensity to

       commit the charged act. Second, the court must weigh the probative value of

       the evidence against its prejudicial effect, pursuant to Evidence Rule 403.” Id.

       (internal citation omitted). By necessity, the court’s analysis of the admissibility
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3016 | July 19, 2019   Page 9 of 13
       of Rule 404(b) evidence includes the relevancy test of Rule 401 and the

       balancing test of Rule 403. Maffett v. State, 113 N.E.3d 278, 283 (Ind. Ct. App.

       2018).


[14]   Mendoza argues the evidence was admitted for the sole purpose of showing

       Mendoza’s propensity for child molesting because Mendoza did not put his

       motive or intent at issue. He further asserts any probative value is substantially

       outweighed by the danger of unfair prejudice. In contrast, the State contends

       Mendoza’s opening statement served to “open the door” to admission of the

       testimony and, regardless, the evidence was admissible for the purpose of

       contextualizing the relationships between all the individuals involved.


[15]   As our Indiana Supreme Court has explained, “[o]therwise inadmissible

       evidence may be admitted where the defendant opens the door to questioning

       on that evidence.” Clark v. State, 915 N.E.2d 126, 130 (Ind. 2009), reh’g denied.

       This occurs when otherwise inadmissible evidence is needed to correct a

       deceptively incomplete disclosure or to correct a false or misleading impression

       of the facts. Valdez v. State, 56 N.E.3d 1244, 1249 (Ind. Ct. App. 2016), trans.

       denied. While an opening statement is not evidence, “counsel may open the

       door to permit the admission of otherwise inadmissible evidence through an

       opening statement.” Singh v. Lyday, 889 N.E.2d 342, 351 (Ind. Ct. App. 2008),

       reh’g denied, trans. denied. For example, in Wilder v. State, we held that testimony

       by a detective constituting a legal conclusion was admissible because the

       defendant opened the door to such testimony by attacking the sufficiency of the

       police investigation in his opening statement and during cross-examination of a

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3016 | July 19, 2019   Page 10 of 13
       different police officer. 91 N.E.3d 1016, 1023 (Ind. Ct. App. 2018). We also

       held in Terrell v. State that while juvenile adjudications may not be used for

       impeachment purposes, the defendant opened the door to admission of his

       juvenile adjudication when his counsel said during opening statement that the

       defendant did not have any criminal history. 507 N.E.2d 633, 635 (Ind. Ct.

       App. 1987), reh’g denied, trans. denied.


[16]   During his opening statement, Mendoza presented the theory that J.R. falsely

       accused him of molestation because J.R.’s family discovered his sexual

       relationship with W. and J.R. did not want his family to shun him because of

       that relationship. Mendoza’s opening statement urged the jurors to wonder

       about the family dynamics between J.R., W., and Mendoza. Mendoza’s

       counsel even referenced J.R. and W. in the plural form at one point during his

       opening statement. (Tr. Vol. III 23) (“W. and [J.R.] as 14- and 15-year-old

       boys. We are not gay. [Mendoza] molested us.”) This statement gives the jury

       the impression that both W. and J.R. are blaming Mendoza for their own

       sexual relationship. It leads the jury to think both W. and J.R. are accusing

       Mendoza of molesting them. Thus, the State needed to question J.R. about his

       knowledge of W. and Mendoza’s relationship to give the jury a complete and

       accurate understanding of the facts based on the impressions Mendoza’s

       counsel left in his opening statement.


[17]   J.R.’s knowledge of Mendoza’s relationship with W. is relevant to a jury trying

       to decide between competing theories. As Mendoza even acknowledged after

       voir dire, the sexual relationship between J.R. and Mendoza is connected to the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3016 | July 19, 2019   Page 11 of 13
       sexual relationship between J.R. and W. Mendoza even attempted to derive

       testimony supporting his blame shifting theory by asking J.R. during cross-

       examination which sexual relationship he was questioned about by his mother

       and stepmother first, his sexual relationship with W. or his relationship with

       Mendoza. Additionally, during re-cross-examination following a jury question

       about J.R.’s sexual relationship with W., Mendoza asked “You were having sex

       or W. was having sex with you when you were six?” J.R. answered, “No. It

       wasn’t sex. We were touching each other because of what [Mendoza] did to

       me and him.” (Id. at 68.) Mendoza contends J.R. is trying to shift blame for

       being caught having sex with W. However, J.R.’s testimony is that he was

       having sex with W. because of what Mendoza did to both him and W.


[18]   Limited testimony regarding J.R.’s knowledge of Mendoza’s relationship with

       W. is relevant to assessing J.R.’s credibility. It enlightens the jury regarding the

       theory Mendoza posed in his opening statement. In fact, although Mendoza

       raised a continuing objection to 404(b) evidence, he acknowledged that some

       discussion of the relationship between J.R., W., and Mendoza was necessary.

       (See id. at 30) (“I assumed based on our defense that this Court would allow

       that stuff in just. . . . So I think a lot of that stuff just has to come in.”). We

       agree with the State that, given Mendoza’s theory of the case, he opened the

       door to the limited introduction of evidence regarding J.R.’s knowledge about

       W.’s sexual relationship with Mendoza. See Wales v. State, 768 N.E.2d 513, 521

       (Ind. Ct. App. 2002) (holding defendant opened the door to admission of 15-




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3016 | July 19, 2019   Page 12 of 13
       year-old robbery conviction), clarified on reh’g 774 N.E.2d 116 (Ind. Ct. App.

       2002), trans. denied.



                                               Conclusion
[19]   The theory of the case Mendoza presented during his opening statement opened

       the door to questioning of J.R. regarding his knowledge of the relationship

       between W. and Mendoza. Therefore, we do not need to assess whether the

       testimony was admissible pursuant to Indiana Rule of Evidence 404(b). The

       trial court did not abuse its discretion in allowing such testimony. We affirm

       Mendoza’s convictions.


[20]   Affirmed.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3016 | July 19, 2019   Page 13 of 13
