                                                                           FILED
                                                                      Dec 18 2017, 10:38 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                               ATTORNEYS FOR APPELLEE
Steven Knecht                                        Curtis T. Hill, Jr.
Vonderheide & Knecht, P.C.                           Attorney General of Indiana
Lafayette, Indiana
                                                     Tyler G. Banks
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Miguel Alvarado,                                          December 18, 2017

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          12A04-1704-CR-818

        v.                                                Appeal from the Clinton Circuit
                                                          Court

State of Indiana,                                         The Honorable Bradley K. Mohler,
                                                          Judge
Appellee-Plaintiff.
                                                          Trial Court Cause No.
                                                          12C01-1505-FA-477




Bradford, Judge.




Court of Appeals of Indiana | Opinion 12A04-1704-CR-818 | December 18, 2017                    Page 1 of 11
                                           Case Summary
[1]   In 2011, Appellant-Defendant Miguel Alvarado began living with M.L., who

      was born in 2005, and M.L.’s mother (“Mother”), marrying her the next year.

      While living with M.L. and Mother until 2013, Alvarado molested M.L. several

      times, penetrating her orally, vaginally, and anally with his penis. In 2015, the

      State charged Alvarado with nine counts of Class A felony child molesting.


[2]   Prior to trial, Alvarado sought to introduce evidence that M.L. had been

      molested by Mother’s new boyfriend as recently as early 2015, on the basis that

      this molestation provided M.L. with the knowledge to fabricate her accusations

      against Alvarado. The trial court denied Alvarado’s motion to introduce the

      evidence in question. After the State’s closing argument, Alvarado moved to

      reopen evidence on the basis that the State had opened the door to the evidence

      of molestation by Mother’s boyfriend. The trial court denied Alvarado’s

      motion, entered judgment of conviction for four counts of child molesting, and

      sentenced him to an aggregate sentence of ninety years of incarceration.

      Alvarado contends that the trial court abused its discretion in refusing to admit

      evidence that M.L. was molested by Mother’s boyfriend and in denying him

      leave to reopen evidence. Because we disagree, we affirm.



                            Facts and Procedural History
[3]   M.L. was born in May of 2005 to Mother and her then-husband. In 2011,

      Mother and Alvarado had been in a relationship for three years and were living


      Court of Appeals of Indiana | Opinion 12A04-1704-CR-818 | December 18, 2017   Page 2 of 11
      in Frankfort with M.L. and one of Mother’s other three daughters. Mother and

      Alvarado married in June 2012. From 2011 until Alvarado and Mother

      divorced in 2013, Mother was consistently employed, while Alvarado had

      periodic employment.


[4]   Typically, after returning home from work, Mother would take her other

      daughter to the grocery store, leaving M.L. alone with Alvarado at home. One

      day after Mother left, Alvarado entered M.L.’s room as she was playing with

      her dolls. Alvarado was fully dressed when he entered M.L.’s room but quickly

      removed his pants and underwear. Alvarado took a belt, bent M.L. over, and

      spanked her with the belt. When he finished hitting M.L., Alvarado removed

      his shirt.


[5]   When M.L. stood, Alvarado forced her against the wall of her bedroom. M.L.

      started to scream, but Alvarado covered her mouth with his hand. Alvarado

      penetrated M.L.’s vagina, anus, and mouth with his penis. On other days,

      Alvarado performed these sexual acts on M.L. in the same manner every time.

      In early 2015, M.L., by this time almost ten years old, reported these incidents

      to her grandmother. Around this time, M.L. made similar allegations involving

      Mother’s boyfriend, i.e., that he had “forced her to perform oral sex as well as

      vaginal and anal sex.” Ex. A. The Kokomo Police Department interviewed

      the boyfriend on March 27, 2015, and filed an application for an arrest warrant

      on April 30, 2015.




      Court of Appeals of Indiana | Opinion 12A04-1704-CR-818 | December 18, 2017   Page 3 of 11
[6]   On May 22, 2015, the State charged Alvarado with nine counts of child

      molesting as Class A felonies. Before trial, Alvarado moved to introduce

      evidence that M.L. was molested by Mother’s ex-boyfriend as recently as

      January 2015. On February 13, 2017, the trial court held a confidential hearing

      on Alvarado’s motion. After this hearing, the trial court issued an order

      denying Alvarado’s motion, holding that he would be “precluded from

      introducing evidence of a subsequent molest and/or allegation of molest[.]”

      Appellant’s App. Vol. II p. 125.


[7]   Alvarado’s trial was held on February 28, 2017. M.L. told the jury that she

      referred to her breasts as her “upper private[,]” her vagina as her “down

      private[,]” and her buttocks as her “[b]ack private.” Tr. Vol. II 153–54. M.L.

      referred to a man’s penis as the man’s “down private[.]” Tr. Vol. II 156–57.

      M.L. used the same or similar terms when describing Alvarado’s molestation of

      her, testifying that Alvarado touched her with his “down private” in her mouth,

      “down private[,]” and her “back down private[.]” Tr. Vol. II pp. 170–71. M.L.

      testified that Alvarado hurt her when his “down private” went inside of her

      “down private” and that she knew it was inside her body “[c]ause [she] could

      feel it.” Tr. Vol. II pp. 178–79. On cross-examination, M.L., then in the sixth

      grade, testified that she had learned about good and bad touches in school but

      could not remember when.


[8]   After M.L. finished testifying, Alvarado again raised the rape-shield issue and

      proffered the arrest warrant application for Mother’s boyfriend, which

      contained the allegation that he had forced M.L. into oral, vaginal, and anal

      Court of Appeals of Indiana | Opinion 12A04-1704-CR-818 | December 18, 2017   Page 4 of 11
       sex. The warrant application was admitted for purposes of an offer of proof as

       Exhibit A, and also noted: “[M.L.] also alleged that her step father [sic],

       Miguel Avarado [sic] molested her in the same manner.” After hearing

       argument, the trial court reaffirmed the exclusion of evidence of the subsequent

       molestation.


[9]    When the State completed its closing argument, Alvarado asked for a recess to

       request the evidence be reopened on the basis that the State had opened the

       door to the excluded evidence of M.L.’s subsequent molestation during the

       argument. The trial court denied the motion. The jury found Alvarado guilty

       of four counts of Class A felony child molesting, and the trial court sentenced

       him to an aggregate sentence of ninety years of incarceration.


                                  Discussion and Decision
          I. Admission of Evidence that M.L. Was Molested by
              Another Person After Alvarado Molested Her
[10]   Alvarado contends that the trial court abused its discretion in refusing to admit

       evidence that she had been molested by another person as recently as early

       2015, or after her alleged molestation by Alvarado but before she reported it. In

       general, the admissibility of evidence is within the sound discretion of the trial

       court. Curley v. State, 777 N.E.2d 58, 60 (Ind. Ct. App. 2002), trans. denied. We

       will reverse a trial court’s decision on the admissibility of evidence only upon a

       showing of an abuse of that discretion. Id. An abuse of discretion may occur if

       the trial court’s decision is clearly against the logic and effect of the facts and

       Court of Appeals of Indiana | Opinion 12A04-1704-CR-818 | December 18, 2017   Page 5 of 11
       circumstances before the court, or if the court has misinterpreted the law. Id.

       The Court of Appeals may affirm the trial court’s ruling if it is sustainable on

       any legal basis in the record, even though it was not the reason enunciated by

       the trial court. Moore v. State, 839 N.E.2d 178, 182 (Ind. Ct. App. 2005), trans.

       denied. We do not reweigh the evidence, and consider the evidence most

       favorable to the trial court’s ruling. Hirsey v. State, 852 N.E.2d 1008, 1012 (Ind.

       Ct. App. 2006), trans. denied.


[11]   Indiana Evidence Rule 412 governs the admissibility of evidence of past sexual

       conduct and provides, in part, as follows:


               (a) Prohibited Uses. The following evidence is not admissible in
               a civil or criminal proceeding involving alleged sexual
               misconduct:
                    (1) evidence offered to prove that a victim or witness engaged
                    in other sexual behavior; or
                    (2) evidence offered to prove a victim’s or witness’s sexual
                    predisposition.
               (b) Exceptions.
                    (1) Criminal Cases. The court may admit the following
                    evidence in a criminal case:
               ….
                        (C) evidence whose exclusion would violate the
                        defendant’s constitutional rights.
[12]   Alvarado contends that exclusion of evidence that another person molested

       M.L. impermissibly infringes his constitutional right to confront the witnesses




       Court of Appeals of Indiana | Opinion 12A04-1704-CR-818 | December 18, 2017   Page 6 of 11
       against him,1 specifically his right to adequately cross-examine them. The right

       to cross examination, however, is not absolute. Tague v. Richards, 3 F.3d 1133,

       1137 (7th Cir. 1993). “[T]he Confrontation Clause guarantees an opportunity

       for effective cross-examination, not cross-examination that is effective in

       whatever way, and to whatever extent, the defense might wish.” Delaware v.

       Fensterer, 474 U.S. 15, 20 (1985). “Furthermore, the right to confront witnesses

       ‘may, in appropriate cases, bow to accommodate other legitimate interests in

       the criminal trial process.’” Tague, 3 F.3d at 1137 (quoting Chambers v.

       Mississippi, 410 U.S. 284, 295 (1973)).


[13]   In arguing that the exclusion of the evidence in question violated his right to

       cross-examination, Alvarado relies on the so-called “sexual innocence inference

       theory.” The theory is based on the premise that, because young children are

       generally presumed to be ignorant of sexual matters, a child victim’s mere

       ability to describe sexual conduct may be compelling enough to convince a jury

       that the charged conduct must have occurred. See Oatts v. State, 899 N.E.2d

       714, 724 (Ind. Ct. App. 2009) (citing Grant v. Demskie, 75 F. Supp. 2d 201, 213

       (S.D.N.Y. 1999)). Consequently, the defense should have the opportunity to

       offer evidence that the victim had acquired sufficient knowledge from another

       source to fabricate a charge against the defendant, including evidence that the




       1
          The Sixth Amendment to the United States Constitution provides, in part, that “[i]n all criminal
       prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him[.]” Article
       I, section 13, of the Indiana Constitution provides, in part, that “[i]n all criminal prosecutions, the accused
       shall have the right … to meet the witnesses face to face[.]”

       Court of Appeals of Indiana | Opinion 12A04-1704-CR-818 | December 18, 2017                        Page 7 of 11
       child had acquired sexual experience with someone else before he or she

       accused the defendant. Id. (citing Grant, 75 F. Supp. 2d at 213).


[14]   In Oatts, the court adopted what has been referred to as the “compromise

       approach” to questions involving the sexual innocence inference theory. Id. at

       724–25. Pursuant to this approach, the burden is on the defendant “to show

       that the prior sexual act occurred and that the prior sexual act was sufficiently

       similar to the present sexual act to give the victim the knowledge to imagine the

       molestation charge.” Id. at 724. The Oatts court disposed of the issue before it

       by concluding that “Oatts failed to show that either the prior molestation or

       videotape were similar to the current offense.” Id. at 725.


[15]   Be that as it may, we need not concern ourselves with any of the above unless

       Alvarado has established that we may assume that the jury will infer M.L.’s

       innocence of sexual matters.2 At the time M.L. first reported Alvarado’s

       alleged molestation of her, she was two or three months shy of her tenth

       birthday. The record also demonstrates, however, that M.L. had received

       “good touch, bad touch” education while at school, prior to making these

       allegations at trial. Although M.L. also testified that she could not remember

       when she had been taught about good and bad touches, this is a possible source

       of knowledge sufficient to fabricate a molestation accusation against Alvarado.

       Even if we were to assume that M.L. was young enough to generally support an




       2
           The Oatts court did not, and did not need to, reach this question.

       Court of Appeals of Indiana | Opinion 12A04-1704-CR-818 | December 18, 2017   Page 8 of 11
       inference of sexual ignorance, we conclude that that inference was rebutted.

       We consider it worth noting that, despite expressing grave concern about being

       denied the right to present evidence of possible alternate sources of sexual

       knowledge, Alvarado did not pursue the issue of M.L.’s “good touch, bad

       touch” education at any length or argue that it was the source of M.L.’s sexual

       knowledge. Under the circumstances, we cannot say (and Alvarado has not

       established) that the average juror would assume that M.L. lacked the

       knowledge to fabricate allegations of molestation.3 Consequently, Alvarado has

       failed to establish that the trial court abused its discretion in declining to admit

       evidence that M.L. had been molested by Mother’s boyfriend.


           II. Whether the Trial Court Abused its Discretion in
             Refusing to Allow Alvarado To Reopen Evidence
[16]   When a party asks to re-open its case after the close of evidence, the trial court’s

       decision to grant that request lies within its sound discretion. Flynn v. State, 497

       N.E.2d 912, 914 (Ind. 1986). Reversal must be predicated upon an actual abuse

       of discretion, i.e., a decision that was “‘clearly untenable or unreasonable[,]’”




       3
         The “sexual innocence inference” theory of admissibility is not without its critics. The Supreme Court of
       Iowa has described the theory as “based on unsubstantiated assumptions and fears about what a jury may
       infer from the complaining witness’s testimony.” State v. Clarke, 343 N.W.2d 158, 163 (Iowa 1984). While
       we certainly do not reject the sexual innocence inference theory outright, we would suggest that if a
       defendant is, in fact, genuinely concerned about the jury unduly inferring sexual innocence of a young
       witness, we see no reason why those concerns could not be fully explored in voir dire. Yet, our research has
       uncovered not one case nationwide (including this one) in which a defendant in a child molestation case has
       thought to address such concerns during jury selection.

       Court of Appeals of Indiana | Opinion 12A04-1704-CR-818 | December 18, 2017                      Page 9 of 11
       and a showing of prejudice to the substantial rights of the complaining party.

       Id. at 915 (quoting Allman v. State, 253 Ind. 14, 20, 235 N.E.2d 56, 59 (1968)).


               Among the factors which weigh in the exercise of discretion are
               whether there is any prejudice to the opposing party, whether the
               party seeking to reopen appears to have rested inadvertently or
               purposely, the stage of the proceedings at which the request is
               made, and whether any real confusion or inconvenience would
               result from granting the request.
       Flynn, 497 N.E.2d at 914.


[17]   The State’s closing summarized M.L.’s testimony as follows:


               But, [M.L.] did say multiple times that it did happen at this
               South Jackson Street [home]. She described the room where it
               happened in detail. She talked about the cars on the bed. She
               talked about the toys that were in there. She talked about the
               blankets and the walls. She described what it felt like. She
               described what the defendant did and the order he did it in on –
               when asked, “What did he do next? How did he come in the
               room?” She had a clear story about what happened. In
               particular the order. When I said, “Did he take off his clothes?”
               “No. He took off his bottoms. He left his shirt on.” Uhm, she
               was really clear about what the defendant did and the order he
               did it in. Also you have a child that is remembering sex acts as
               they actually happen with adults. Uhm, She -- an -- and I know
               she was very hard to hear and probably very hard to -- to see
               cause [sic] she was bundled up uhm, but she did make the
               motion about what happened when the defendant’s uhm, penis
               was inside her. And you as a jury can decide if that is consistent
               with that sexual act.
       Tr. Vol. III pp. 63–64.




       Court of Appeals of Indiana | Opinion 12A04-1704-CR-818 | December 18, 2017   Page 10 of 11
[18]   Alvarado contends that the prosecutor’s statement that “[a]lso you have a child

       that is remembering sex acts as they actually happen with adults” created the

       impression with the jury that Alvarado was the only possible source of sexual

       knowledge. Whatever force this argument may have is premised on the jury

       inferring M.L.’s sexual ignorance. As we have already concluded, however,

       Alvarado has failed to convince us that we can assume that the jury inferred

       M.L.’s sexual ignorance, especially since she had undergone the “good touch,

       bad touch” program prior to the allegations. With this in mind, the

       prosecutor’s statement is nothing more than a contention that M.L.’s testimony

       was plausible and consistent with adult sexual activity. There is no question

       that a prosecutor is absolutely allowed to argue that a witness’s testimony was

       plausible and consistent. The trial court did not abuse its discretion in refusing

       to allow Alvarado to reopen his case and introduce evidence that M.L. was

       molested by Mother’s ex-boyfriend.


[19]   We affirm the judgment of the trial court.


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 12A04-1704-CR-818 | December 18, 2017   Page 11 of 11
