MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Mar 19 2019, 11:25 am
regarded as precedent or cited before any
                                                                          CLERK
court except for the purpose of establishing                          Indiana Supreme Court
                                                                         Court of Appeals
the defense of res judicata, collateral                                    and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Valerie K. Boots                                         Frank A. Negangard
Indianapolis, Indiana                                    Chief Deputy Attorney General
Frederick Vaiana                                         Laura R. Anderson
Indianapolis, Indiana                                    Stephen R. Creason
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana




                                          IN THE
    COURT OF APPEALS OF INDIANA

Joaquin Alcauter,                                        March 19, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2211
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark Stoner,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G06-1710-F1-38408



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2211 | March 19, 2019                Page 1 of 8
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Joaquin Alcauter (Alcauter), appeals his conviction for

      one Count of child molesting as a Level 4 felony, Ind. Code § 35-42-4-3(b).


[2]   We affirm.


                                                    ISSUE
[3]   Alcauter presents us with one issue on appeal, which we restate as: Whether

      the trial court abused its discretion when it admitted certain hearsay evidence as

      excited utterances.


                      FACTS AND PROCEDURAL HISTORY
[4]   V.M. is the mother of Y.M., born in July 2008, and Y.M.’s younger brother,

      M.M. V.M. met Alcauter when Y.M. was approximately four years old. V.M.

      and Alcauter married in 2013. Alcauter was over the age of twenty-one the

      entire time he and V.M. were together.


[5]   V.M. has a much younger sister, A.D., who is only one year older than Y.M.

      Because of the closeness in their ages, Y.M.’s and A.D.’s relationship was more

      akin to two sisters, rather than that of niece and aunt. A.D. frequently spent the

      night at the home V.M. shared with Alcauter so that A.D. could spend time

      with Y.M. The night of September 29, 2017, was one such night. Early in the

      morning of September 30, 2017, Alcauter entered the bedroom that Y.M. and

      M.M. shared. M.M. had his own bed which was across the room from Y.M.’s.

      Y.M. and A.D. were sleeping in Y.M.’s bed. A.D. was under the covers and

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2211 | March 19, 2019   Page 2 of 8
      awoke when she felt something warm touching her vagina over her pajamas.

      She saw that it was Alcauter touching her but pretended to be still asleep. A.D.

      shifted and moved her blanket. Alcauter moved his hand away but then tried to

      place it back on A.D.’s vagina. A.D. blocked his hand with her hand. Alcauter

      realized that A.D. was awake, removed his hand from underneath the covers,

      kissed A.D. on the forehead, and left the room.


[6]   A.D. ran into V.M.’s bedroom and told V.M. that Alcauter had touched her

      vagina with his hand. V.M. calmed A.D., called her family to assist in moving

      the children to safety, and alerted the authorities. When Y.M. learned what

      had happened to A.D., she attempted to console A.D. by telling her that such

      things happened all the time, a statement which made V.M. aware for the first

      time that Y.M. may have been molested also. Y.M. and A.D. were interviewed

      on October 2, 2017, and disclosed that Alcauter had molested them. Alcauter

      gave a statement on October 4, 2017, in which he claimed that on the morning

      of the incident involving A.D., M.M. was in bed sleeping with Y.M. and A.D.

      and that M.M.’s leg was in between A.D.’s leg when Alcauter removed M.M.

      from the bed. At first Alcauter denied improperly touching Y.M., but he then

      reported that Y.M. had actually initiated sexual conduct with him. According

      to Alcauter, beginning when Y.M. was eight, she would sit on his lap and touch

      his penis, remove his penis from his pants, place his fingers in her vagina, and

      rub his penis on her vagina. Alcauter admitted that he had placed his penis in

      Y.M.’s vagina on two or three occasions, with the last time being in June 2017.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2211 | March 19, 2019   Page 3 of 8
[7]   On October 5, 2017, the State filed an Information, charging Alcauter with six

      Counts of child molesting as Class A/Level 1 felonies for offenses against

      Y.M.; three Counts of child molesting as Class C/Level 4 felonies for offenses

      against Y.M.; and one Count of Child molesting as a Level 4 felony for

      fondling A.D. On August 2, 2018, the trial court conducted Alcauter’s bench

      trial. A.D. was the first witness to testify, and she recounted that Alcauter was

      “squeezing” her vagina with his hand on September 30, 2017. A.D. confirmed

      that she had run to V.M.’s room immediately after Alcauter touched her and

      stated that “I was very loud and I was crying” when reporting to V.M. what

      Alcauter had done. (Transcript p. 14).


[8]   At trial V.M. described her usual morning routine that started around 5:00 a.m.

      when she would make coffee, prepare a lunch for Alcauter, and return to bed.

      Around 5:00 a.m. on the morning of September 30, 2017, V.M. awoke early to

      help get Alcauter out the door and then returned to bed, as was her habit. V.M.

      testified that approximately ten minutes after she returned to bed, A.D. ran into

      her room “terrified,” “crying,” and “shaking,” and acting in a manner which

      V.M. had never seen her act before. (Tr. p. 32). Alcauter’s counsel objected to

      V.M.’s testimony about what A.D. reported to her that morning, arguing that

      the State had not established an adequate foundation for the admission of

      excited utterances and objecting that “I don’t believe that it necessarily has

      established that the client has been close enough.” (Tr. p. 32). Over Alcauter’s

      objection, the trial court admitted A.D.’s hearsay statements as excited

      utterances. V.M. then testified that A.D. had told her that Alcauter had rubbed


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2211 | March 19, 2019   Page 4 of 8
       her. V.M. asked A.D. where Alcauter had rubbed her, and A.D. indicated her

       vagina. V.M. testified that A.D. then “just started crying so much. And she

       crawled in bed with me and wouldn’t stop crying at that point.” (Tr. p. 33).


[9]    After the close of evidence, the State conceded that Y.M. had not testified at

       trial that Alcauter had inserted his fingers in her vagina, as she had previously

       reported, and, as a result, the trial court found Alcauter not guilty of four

       Counts of Class A /Level 1 felony child molesting of Y.M. and one Count of

       Class C felony child molesting of Y.M. The trial court found Alcauter guilty of

       two Counts of child molesting of Y.M. as Level 4 felonies but vacated them as

       lesser-included offenses. The trial court found Alcauter guilty and entered

       judgment of conviction on two Counts of Level 1 felony child molesting of

       Y.M. and one Count of Level 4 felony child molesting for fondling A.D. On

       August 16, 2018, the trial court sentenced Alcauter to thirty years for each of

       the Level 1 felonies and to six years for the Level 4 felony conviction. The trial

       court ordered Alcauter to serve all of his sentences consecutively, for an

       aggregate sentence of sixty-six years.


[10]   Alcauter now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[11]   Alcauter argues that the trial court abused its discretion when it admitted

       A.D.’s hearsay statements because he contends that the State failed to establish

       an adequate foundation for their admission as excited utterances. As a general

       rule, a trial court has broad discretion in ruling on the admissibility of evidence,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2211 | March 19, 2019   Page 5 of 8
       and we will reverse a trial court’s evidentiary ruling only upon an abuse of that

       discretion. Carr v. State, 106 N.E.3d 546, 552 (Ind. Ct. App. 2018), trans. denied.

       More particularly, a trial court’s determination that hearsay statements are

       excited utterances is reviewed under this standard. See Yamobi v. State, 672

       N.E.2d 1344, 1346 (Ind. 1996).


[12]   Hearsay is an out-of-court statement offered to prove the truth of the matter

       asserted. Ind. Evidence Rule 801(c). Hearsay evidence is generally not

       admissible unless the Rules of Evidence or some other law provides for it.

       Evid. R. 802. One exception to the general prohibition on hearsay is that for

       the admission of excited utterances, which are defined as statements “relating to

       a startling event or condition, made while the declarant was under the stress of

       excitement that it caused.” Evid. R. 803(2). Our supreme court has explained

       the rationale for the admission of excited utterances as follows:


       The underlying rationale of the excited utterance exception is that such
       a declaration from one who has recently suffered an overpowering
       experience is likely to be truthful. While the event and the utterance
       need not be absolutely contemporaneous, lapse of time is a factor to
       consider in determining admissibility. Similarly, that the statements
       were made in response to inquiries is also a factor to be considered.
       Whether given in response to a question or not, the statement must be
       unrehearsed and made while still under the stress of excitement from
       the startling event.


       Hardiman v. State, 726 N.E.2d 1201, 1204 (Ind. 2000) (citations omitted). The

       important inquiry is whether the declarant had time for reflection and

       deliberation before making the statements. Id. To have evidence admitted

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2211 | March 19, 2019   Page 6 of 8
       pursuant to this exception, the proponent of the evidence must establish three

       foundations: (1) a startling event; (2) a statement made while the declarant was

       under the stress of excitement caused by the event; and (3) that the statement

       relates to the event. Wallace v. State, 79 N.E.3d 992, 997 (Ind. Ct. App. 2017).

       We do not apply this test mechanically; rather, we consider the particularities of

       each case. See id.


[13]   Alcauter argues that the State’s foundation for the challenged evidence was

       deficient because it failed to show the exact length of time that elapsed between

       the offense and A.D.’s statements to V.M. to establish that A.D. was still under

       the stress of the offense when she made her statements. 1 Our supreme court has

       held that the amount of time elapsed between the startling event and the

       statement is not dispositive, but that, the longer the time elapsed, the less likely

       that a particular statement is made without deliberate thought and under the

       stress of excitement of the event. Jenkins v. State, 725 N.E.2d 66, 68 (Ind. 2000).

       This court has found a sufficient showing that the declarant was still under the

       stress of the excitement of the startling event where, immediately after the

       event, she appeared “‘hysterical,’ ‘shaken,’ ‘visibly upset,’ ‘crying,’ and [was]




       1
          Alcauter also argues that A.D. may have dreamed that he touched her vagina or, perhaps, that A.D. had a
       dream that resurrected memories of a prior molestation. However, Alcauter did not object on these bases at
       trial, and, therefore, he may not raise them now on appeal. See Bush v. State, 929 N.E.2d 897, 899 (Ind. Ct.
       App. 2010) (reiterating the well-settled principle that a party may not object to the admission of evidence at
       trial on one ground and then assert a different ground on appeal).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2211 | March 19, 2019                     Page 7 of 8
       ‘speaking in very rapid movements.’” McQuay v. State, 10 N.E.3d 593, 597

       (Ind. Ct. App. 2014).


[14]   Here, the State’s evidence showed that, on the morning of September 30, 2017,

       A.D. ran into V.M.’s room and reported that Alcauter had touched her vagina,

       which was a startling event for A.D., who described herself as “loud” and

       “crying” after it occurred. (Tr. p. 14). A.D. also established through her

       testimony that she ran into V.M.’s room immediately after Alcauter touched

       her. V.M. described A.D. as “terrified,” “crying,” and “shaking,” and in a state

       such as V.M. had never seen her before. (Tr. p. 32). Thus, A.D.’s statements

       were made immediately after the startling event and were made while A.D. was

       still under the excitement of the stress of that event. Jenkins, 725 N.E.2d at 68;

       McQuay, 10 N.E.3d at 597. The State established an adequate foundation for

       the admission of A.D.’s statements as excited utterances, and the trial court did

       not abuse its discretion in admitting A.D.’s hearsay statements.


                                             CONCLUSION
[15]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion when it admitted A.D.’s hearsay statements as excited utterances.


[16]   Affirmed.


[17]   Kirsch, J. and Robb, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2211 | March 19, 2019   Page 8 of 8
