Summary
In Martinez v. State, 192 N.E.3d 1021, 1022 (Ind. Ct. App. 2022), trans. denied, Martinez, who was convicted of two counts of Level 1 and two counts of Level 4 child molesting, contended on appeal that the trial court had erred in replaying his victim's entire testimony in response to the jury's questions about the date of one of the alleged fondling incidents and about the frequency of the alleged offenses during a certain time span.
Summary of this case from Walden v. StateOpinion
Court of Appeals Case No. 21A-CR-2797
08-10-2022
Hipolito Ramirez MARTINEZ, Appellant/Cross-Appellee/Defendant, v. STATE of Indiana, Appellee/Cross-Appellant/Plaintiff.
Attorney for Appellant: Frederick Vaiana, Voyles Vaiana Lukemeyer Baldwin & Webb, Indianapolis, Indiana Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, Indiana
Attorney for Appellant: Frederick Vaiana, Voyles Vaiana Lukemeyer Baldwin & Webb, Indianapolis, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, Indiana
Bradford, Chief Judge
Case Summary
[1] In 2015, Hipolito Martinez began molesting his eight-year-old stepdaughter K.R. by having sexual intercourse with her. This occurred more than once a month for the next five or six years. K.R. eventually reported the molestation, and the State charged Martinez with two counts of Level 1 felony child molesting and three counts of Level 4 felony child molesting. Following a jury trial, the trial court entered convictions for two counts of Level 1 felony child molesting and sentenced Martinez to an aggregate term of thirty-five years of incarceration. Martinez contends that the trial court abused its discretion in playing K.R.’s testimony back to the jury during deliberations and in denying his mistrial motion. The State cross-appeals, contending that the trial court erred in denying its request to have Martinez classified as a credit-restricted felon. Because we disagree with all of both parties’ contentions, we affirm.
Facts and Procedural History
[2] K.R. was born in approximately November of 2007. Martinez and K.R.’s mother married in late 2015, when K.R. was approximately eight years old. In November or December of 2020, around K.R.’s thirteenth birthday, Martinez drove K.R. home from a skating rink, and, when they arrived home and were in the living room, Martinez pulled K.R.’s shirt up, exposing her chest, and removed her sweatpants and underwear before having intercourse with her. This was the last time Martinez molested K.R., putting an end to molestation that had gone on for approximately five years.
[3] According to K.R.’s later testimony, the molestation had occurred "[a]bout [her mother's and Martinez's] whole marriage, so that would be like five, six years." Tr. Vol. II p. 235. The first time Martinez molested K.R., her youngest sister, who turned three in late 2021, had not yet been born. The molestation would occur "[o]ften, [ ] not every week" but more than once a month. Tr. Vol. II p. 236. On at least one occasion, Martinez and K.R. had intercourse in her mother and Martinez's bedroom. During the time period in question, Martinez and K.R. had intercourse more than three times in the living room and "[p]ossibly" three times in her mother and Martinez's bedroom. Tr. Vol. II p. 232.
[4] K.R. eventually reported her molestation and was examined by Sexual Assault Nurse Examiner Cathy Clark on February 9, 2021. K.R. told Nurse Clark that Martinez had been "put[ting] it inside of [her]" since 2015, and Nurse Clark verified that K.R. was referring to his penis going into her vagina. Tr. Vol. III p. 35. On February 10, 2021, the State charged Martinez with two counts of Level 1 child molesting and three counts of Level 4 felony child molesting.
[5] Martinez's trial was held on November 21, 2021. During closing, the State gave a PowerPoint presentation outlining the charges against Martinez that incorrectly included a slide showing a charge of invasion of privacy. Martinez moved for mistrial, but the trial court denied his motion and admonished the jury to disregard the incorrect slide. During deliberations, the jury requested to either see a transcript of K.R.’s testimony or to hear it replayed. The trial court referred to Indiana Code section 34-36-1-6, which governs such requests, and declined the request. In response to the trial court's denial, the jury indicated that there was a disagreement regarding the date of one alleged incident of fondling and the frequency of alleged molestations over the period from 2016 to 2021. The trial court allowed the jury to review the testimony over Martinez's objection. The jury found Martinez guilty of two counts of Level 1 felony child molesting and two counts of Level 4 felony child molesting. The trial court sentenced Martinez to thirty-five years for each Level 1 felony conviction, to be served concurrently, and denied the State's request to classify him as a credit-restricted felon.
Discussion
Direct Appeal Issues
I. Whether the Trial Court Erred in Granting the Jury's Request to Review K.R.’s Testimony
[6] Indiana Code section 34-36-1-6 provides, in part, as follows:
If, after the jury retires for deliberation:
(1) there is a disagreement among the jurors as to any part of the testimony; or
(2) the jury desires to be informed as to any point of law arising in the case;
the jury may request the officer to conduct them into court, where the information required shall be given in the presence of, or after notice to, the parties or the attorneys representing the parties.
"This statute has been construed to require a judge, where the jury expresses disagreement regarding testimony, to read to the jury any properly admitted testimony or documentary evidence." Pettrie v. State , 713 N.E.2d 910, 912 (Ind. Ct. App. 1999).
[7] Here, the jury expressed disagreement regarding certain aspects of K.R.’s testimony, requiring the trial court to grant the jury's request to review it. Id. Martinez argues that replaying K.R.’s testimony in its entirety was the equivalent of doubling its weight in the minds of the jurors. Martinez, however, points to nothing in the record to support this assertion, much less anything in the law to justify treating it as an exception to the mandatory nature of Indiana Code section 34-36-1-6. The trial court did not err in granting the jury's request to review K.R.’s testimony. II. Whether the Trial Court Abused its Discretion in Denying Martinez's Mistrial Motion
[8] Martinez contends that the trial court abused its discretion in denying his mistrial motion. "[T]he trial court has broad discretion in determining whether the totality of the circumstances shows that there is a manifest necessity for declaring a mistrial, and this is not ‘a standard that can be applied mechanically or without attention to the particular problem confronting the trial judge.’ " Brock v. State , 955 N.E.2d 195, 206 (Ind. 2011) (quoting Arizona v. Washington , 434 U.S. 497, 506, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978) ). "Moreover, ‘manifest necessity’ is not a literal standard, and a declaration of mistrial will be found manifestly necessary if there is a ‘high degree’ of necessity." Brock , 955 N.E.2d at 206–07 (quoting Arizona , 434 U.S. at 506, 98 S.Ct. 824 ). "We therefore review a trial judge's decision to grant a mistrial for an abuse of discretion." Id. at 207.
[9] Martinez moved for mistrial after the State showed the jury a PowerPoint presentation during closing argument that incorrectly indicating that he had been charged with invasion of privacy. The prosecutor asked for the opportunity to explain the error to the jury, and, after she explained that the charges had been brought in a previous trial and had not been corrected for Martinez's, the trial court gave the following admonition:
THE COURT: Yes. Ladies and gentlemen, the last slide that was shown to the Court in support of the State's argument was in error. The slide indicated a caption of Counts 4 and 5 was invasion of privacy. Those are not the charges in this case. They are not - nothing involved in those - like that in this case. Your best - so you're ordered to disregard the slide that was shown, and your best document for reference to the charges at hand are the preliminary instructions and the final instructions that correctly identify Counts 4 and 5 as charges of child molesting.
Tr. Vol. III pp. 79–80.
[10] We conclude that Martinez has failed to show that the trial court's admonition was insufficient to cure any error that might have occurred. "Generally, an admonition is deemed to cure an alleged error[,]" Ward v. State , 438 N.E.2d 966, 997 (Ind. 1982), and this case falls under the general rule. Martinez points to no indication that the erroneous slide had any prejudicial effect on him whatsoever, arguing only that neither the trial court nor this court knows the effect it had on the jury. This is, at best, pure speculation and insufficient to overcome the presumption that the trial court's admonition cured any error that might have occurred.
Cross-Appeal Issue
III. Whether the Trial Court Erred in Declining to Classify Martinez as a Credit-Restricted Felon
[11] The State cross-appeals from the trial court's denial of its request to classify Martinez a credit-restricted felon as to Count I, one of his Level 1 felony convictions. Claims that there is insufficient evidence to sustain a determination regarding a defendant's credit-restricted status are reviewed as any other sufficiency claim. See Pierce v. State , 29 N.E.3d 1258, 1265 (Ind. 2015). "We neither reweigh the evidence nor reevaluate the witnesses’ credibility; rather, we view the evidence in the light most favorable to the verdict, and we will affirm that verdict unless we cannot find substantial evidence of probative value to support it." Id.
"A person [...] who is not a credit restricted felon [...] who is imprisoned for a crime other than a Level 6 felony or misdemeanor or imprisoned awaiting trial or sentencing for a crime other than a Level 6 felony or misdemeanor [...] is initially assigned to Class B." Ind. Code § 35-50-6-4(b). However, "[a] person who is a credit restricted felon and who is imprisoned for a crime or imprisoned awaiting trial or sentencing is initially assigned to Class C." Ind. Code § 35-50-6-4(c). Ind. Code section 35-50-6-3.1 provides, in part, as follows:
(b) A person assigned to Class B earns one (1) day of good time credit for every three (3) calendar days or partial calendar days the person is imprisoned for a crime or confined awaiting trial or sentencing.
(c) A person assigned to Class C earns one (1) day of good time credit for every six (6) calendar days or partial calendar days the person is imprisoned for a crime or confined awaiting trial or sentencing.
Here, the effect of all of this is that, were Martinez to be classified as a credit-restricted felon, he would be assigned to Class C and serve five-sixths of his thirty-five-year sentence, as opposed to the two-thirds he would serve if he were assigned to Class B. Assuming no further deprivation of credit time, that is a difference of almost six years of incarceration.
[12] Indiana Code section 35-31.5-2-72 provides, in relevant part, as follows:
"Credit restricted felon" means a person who has been convicted of at least one (1) of the following offenses:
(1) Child molesting involving sexual intercourse, deviate sexual conduct ( IC 35-42-4-3(a), before its amendment on July 1, 2014) for a crime committed before July 1, 2014, or other sexual conduct (as defined in IC 35-31.5-2-221.5 ) for a crime committed after June 30, 2014, if:
(A) the offense is committed by a person at least twenty-one (21) years of age; and
(B) the victim is less than twelve (12) years of age.
Indiana Code section 35-38-1-7.8 provides that the trial court "shall" make the determination at sentencing:
(a) At the time of sentencing, a court shall determine whether a person is a credit restricted felon (as defined in IC 35-31.5-2-72 ).
(b) A determination under subsection (a) must be based upon:
(1) evidence admitted at trial that is relevant to the credit restricted status;
(2) evidence introduced at the sentencing hearing; or
(3) a factual basis provided as part of a guilty plea.
(c) Upon determining that a defendant is a credit restricted felon, a court shall advise the defendant of the consequences of this determination.
[13] The requirements that the child molesting involve sexual intercourse or other sexual conduct and that the offense be committed by a person at least twenty-one years of age are satisfied in this case by the jury's verdict. In order for Martinez to be classified as a credit-restricted felon, however, the trial court must have determined based upon evidence admitted at trial or introduced at the sentencing hearing that the molestation occurred before K.R.’s twelfth birthday. The State argues that molestations occurring after a victim's twelfth birthday but before her thirteenth should qualify to make the perpetrator a credit restricted felon pursuant to Indiana Code section 35-31.5-2-72. While we acknowledge that it is customary to refer to persons as "twelve years old" after their twelfth birthdays but before their thirteenth, those persons are, in fact, no longer "less than twelve (12) years of age." Such persons became twelve years old at some point on the twelfth anniversary of their dates of birth, and, after that, are twelve years of age, plus some fraction of a thirteenth.
Indiana Code section 35-42-4-3 provides, in part, as follows: "A person who, with a child under fourteen (14) years of age, knowingly or intentionally performs or submits to sexual intercourse or other sexual conduct [...] commits child molesting, [...] a Level 1 felony if [...] it is committed by a person at least twenty-one (21) years of age[.]"
[14] The State correctly notes that there is ample evidence that could support such a determination, i.e., K.R.’s testimony that the molestation involving intercourse at least once a month had gone on for approximately five or six years beginning in 2015. That said, the same evidence, along with K.R.’s testimony that Martinez molested her for the last time by having intercourse with her in November or December of 2020, could also support a determination that Martinez molested K.R. after November of 2019, when she turned twelve. The trial court, it would seem, made just such a determination, a determination supported by the evidence presented at trial. Consequently, the trial court did not err in denying the State's request to have Martinez classified a credit-restricted felon.
[15] We affirm the judgment of the trial court.
Bailey, J., and Molter, J., concur.