Alvarez-Madrigal v. State, Court of Appeals Case No. 49A02-1601-CR-162

• Docket Nº: Court of Appeals Case No. 49A02-1601-CR-162
• Citation: 71 N.E.3d 887
• Case Date: March 13, 2017
• Court: Court of Appeals of Indiana

71 N.E.3d 887

Argumedo ALVAREZ-MADRIGAL, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 49A02-1601-CR-162

Court of Appeals of Indiana.

March 13, 2017

Attorneys for Appellant : Ruth Johnson, Matthew D. Anglemeyer, Marion County Public Defender Agency, Appellate Division, Indianapolis, Indiana

Attorneys for Appellee Curtis T. Hill, Jr., Attorney General of Indiana,

71 N.E.3d 889

Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, Indiana

Kirsch, Judge.

1] Following a jury trial, Argumedo Alvarez-Madrigal ("Alvarez-Madrigal") was convicted of four counts of Class A felony child molesting¹ and two counts of Class C felony child molesting.² He appeals, contending that a statement by a State's witness constituted impermissible vouching evidence and that it was reversible error to admit it.

[2] We affirm.

Facts and Procedural History

[3] When she was ten years old and in the fourth grade, A.M. met and became close friends with fellow fourth-grader S.A.O., whose father is Alvarez-Madrigal. During the summer before the girls entered fifth grade, A.M. spent a lot of time at S.A.O.'s house. S.A.O.'s mother worked nights, and Alvarez-Madrigal watched the children while she slept during the day.

[4] The facts most favorable to the verdict are that, in May 2014, when A.M. was eleven years old, Alvarez-Madrigal began to touch A.M. inappropriately. On May 8 or 9, when A.M. was spending the night at S.A.O.'s house, S.A.O. left the room to use the restroom, and Alvarez-Madrigal put his hand under A.M.'s bra and then felt around her vagina, over her pajamas. From that date to June 6, A.M. went to S.A.O.'s house almost every day, and Alvarez-Madrigal touched A.M. "[e]very time I would go over there." Tr . at 43. A.M. testified that S.A.O. and her mother "saw what was going on" on various occasions. Id . at 93. A.M. was worried that if she told anyone, it would ruin her friendship with S.A.O.

[5] On June 6, 2014, when A.M. entered S.A.O.'s house and began to walk up the stairs to S.A.O.'s bedroom, Alvarez-Madrigal put his hand "on [A.M.'s] butt" under her underwear. Id . at 47. He kept his hand there as A.M. walked up the flight of stairs. When they reached the top of the stairs, S.A.O. came out of her bedroom, "looked surprised," and started yelling at Alvarez-Madrigal. Id . at 48. A.M. testified that S.A.O.'s mother also came out of her bedroom and asked what was going on, but the girls went into S.A.O.'s bedroom without saying anything to S.A.O.'s mother. On June 10, while other household members were elsewhere in the house, Alvarez-Madrigal kissed A.M. on the neck and touched her under her underwear, on her vagina.

[6] On June 14, 2014, Alvarez-Madrigal drove A.M. and S.A.O. to a swimming pool and then back to S.A.O.'s house. S.A.O.'s mother was at home sleeping. A.M. went to the upstairs bathroom to change out of her swimming suit, and while she was still in the bathroom, she heard S.A.O. open the door and go outside the house. A.M. put on a swim cover, which was like a dress, over her underwear and bra. She left the bathroom and went downstairs, and Alvarez-Madrigal appeared, picked her up under the arms, put her back to the wall, and when she started to scream, he put his hand over her mouth. Despite A.M.'s protests, Alvarez-Madrigal took off her swim cover and her bra. When A.M. would not spread her legs, he hit her in the thigh, which left a mark. Alvarez-Madrigal pulled down her underwear, threw

[71 N.E.3d 890

her onto a couch, and had vaginal and anal intercourse with her. When she initially would not open her mouth to perform oral sex, he slapped her on the face, leaving a red mark,³ and then he stuck his penis in her mouth and moved it back and forth.

7] When S.A.O. began to enter the house, Alvarez-Madrigal collected A.M.'s clothes and threw them at her and told her to go to the bathroom. A.M. saw S.A.O. peeking around the corner. A.M. hurried to the bathroom, but heard Alvarez-Madrigal talking to S.A.O. in the kitchen and begging S.A.O., "Please don't tell your mother. I'll do anything for you." Tr . at 69. When A.M. left the bathroom, Alvarez-Madrigal "banged [her] against the wall" and told A.M. that he would kill her if she told anyone. Id . at 70. A.M. left the house and spoke to S.A.O. outside, telling her some, but not all, of the things Alvarez-Madrigal had done to her, and A.M. asked S.A.O. to tell her father to stop touching A.M. S.A.O. told A.M. that she would "have a talk with him." Id . at 72. A few weeks after the June 14 incident, A.M. told a friend, P.J., about what S.A.O.'s father had done to her, and P.J. told a mentor. On June 29, 2014, a report was made to Indiana Department of Child Services ("DCS").

[8] When DCS made an unannounced visit to A.M.'s home on or about June 29, A.M. told her mother what Alvarez-Madrigal had done to her. A.M. also told DCS assessment case manager Nola Hunt ("Hunt") and the accompanying Indianapolis Metropolitan Police Department ("IMPD") officer about Alvarez-Madrigal's conduct. Hunt paged IMPD Detective Mark Barnett ("Detective Barnett"), the "on-call" child abuse detective. Detective Barnett decided "an immediate response" was warranted "based primarily on the proximity of the alleged victim and suspect ..., living on the same street." Id . at 187-88. Hunt then transported A.M. and A.M.'s parents to DCS offices, where A.M. participated in a forensic interview at the Child Advocacy Center with IMPD Detective Nicolle Flynn ("Detective Flynn"). During the interview, A.M. disclosed information of a sexual nature describing what had happened to her about two weeks prior. Hunt and Detective Barnett observed the interview from another room, and based on what he observed, Detective Barnett prepared, and later executed, a search warrant for Alvarez-Madrigal's residence. Detective Barnett interviewed Alvarez-Madrigal and his wife, and, at some point, S.A.O. and P.J. were also interviewed by DCS. A.M. was examined on July 2, 2014, and again on July 9, 2014, at the Riley Hospital Pediatric Center for Hope.

[9] On July 3, 2014, the State charged Alvarez-Madrigal with five counts of Class A felony child molesting and two counts of Class C felony child molesting. At the two-day August 2015 jury trial, the State presented the testimony of A.M., P.J., S.A.O., and S.A.O.'s mother. The State also presented the testimony of Hunt, Detective Flynn, and Detective Barnett. The last witness to testify was Shannon Thompson, M.D. ("Dr. Thompson"), a pediatrician at Riley Children's Hospital ("Riley") on the child abuse protection team.

[10] Dr. Thompson examined A.M. at the second examination, on July 9, 2014. Dr. Thompson stated that the reason A.M. returned to Riley was because she was having "continued genital pain and itching." Id . at 293. Dr. Thompson testified that although neither examination at Riley

[71 N.E.3d 891

revealed physical injuries, the lack of physical findings was "very common" in sexual abuse cases. Id . at 296. She explained that there are various reasons for that, including that no injury occurred in the first place or that "disclosure often occurs days to months later," and the genital tissue heals quickly. Id . at 297. She testified that, therefore, it is "very common" for a child to have a normal exam. Id . at 298. The State continued direct examination of Dr. Thompson regarding the frequency with which she observes physical injuries:

STATE: In terms of the cases you have seen, do you know what percentage of children you see with injuries?

THOMPSON: So overall about 4 to 5 percent of children who have been victims of sexual abuse will have some kind of obvious physical evidence of penetration or sexual abuse. In my experience I've probably seen one.

STATE: One in 10 years of being a child abuse pediatrician?

THOMPSON: 7 1/2 years.

STATE: My math is not great. Okay. And does that mean that all the rest of those children are making up allegations?

THOMPSON: No, it doesn't mean that. It just means it's the nature of the abuse. Like I said, often the disclosure is late, injuries are subtle or even very obvious it healed by the time we get to see them. And in fact some statistics will quote that less than two to three children out of a thousand are making up claims.

Id . at 298-99 (emphasis added).

11] Alvarez-Madrigal then objected, stating, "This clearly calls for speculation. It's not relevant to the facts in this case." Id . at 299. The State responded, "She's a child abuse expert. She has talked about her evaluation of psychological and emotional mental health. It's part of her job to know statistics." Id . The trial court did not expressly rule on the objection, but stated, "Then ask her this, ask every question in terms of reasonable medical certainty." Id . The State proceeded to ask Dr. Thompson, "[W]ith regard to this case to a degree of reasonable medical certainty, what's your opinion as to A.M.'s exam?" Id . Dr. Thompson responded that A.M. did not have any overt symptoms or physical findings that would be consistent with sexual abuse, but that lack of physical findings would not be determinative, and that the history that A.M. provided was consistent with sexual abuse. Id . at 299-300.

[12] Upon cross examination, Dr. Thompson acknowledged that, although there was no physical injury or infection observed, A.M. was reporting complaints of physical pain. Dr....