Fuerte v. State
| Decision Date | 17 November 2015 |
| Docket Number | No. 45A03–1501–CR–15.,45A03–1501–CR–15. |
| Citation | 42 N.E.3d 174 (Table) |
| Parties | Luis FUERTE, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff |
| Court | Indiana Appellate Court |
Mark A. Bates, Office of the Lake County Public Defender, Appellate Division, Crown Point, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Katherine Modesitt Cooper, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
[1] A jury found Luis Fuerte guilty of committing class B felony attempted incest, class C felony child molesting, and class D felony sexual battery against his granddaughter, who lived in his home and was sexually abused by him at least once a week for over a year. The trial court sentenced Fuerte to consecutive terms of twelve years for attempted incest and seven years for child molesting and a concurrent term of eighteen months for sexual battery, for an aggregate sentence of nineteen years executed.
[2] On appeal, Fuerte argues that the trial court erred in admitting certain evidence and in limiting his cross-examination of the victim; that his attempted incest and child molesting convictions violate Indiana's Double Jeopardy Clause; and that his sentence is inappropriate because he victimized only one person and had no criminal history. We find either waiver or no reversible error with respect to the evidentiary and cross-examination issues; that Fuerte's convictions do not violate Indiana's Double Jeopardy Clause; and that he has failed to persuade us that his sentence is inappropriate. Therefore, we affirm his convictions and sentence.
[3] The facts most favorable to the jury's verdict follow. Fuerte's biological granddaughter, E.F., was born in March 1996. Her father is Fuerte's son. E.F. and her parents and brothers moved into Fuerte's house in Hammond in 1999. E.F.'s parents lived in the basement, and E.F. began sleeping in a bedroom down the hall from Fuerte's second-floor bedroom after he divorced his wife in 2005. At least one evening a week, Fuerte would babysit E.F. and her brothers while their parents went on a date. E.F. was “really close” to Fuerte, who was “like another dad” to her. Tr. at 84.
[4] In July 2007, when E.F.'s parents were on a date, Fuerte came into her bedroom, took her into his bedroom, and locked the door. He undressed her, undressed himself, and told her to get on the bed. He fondled her breasts and touched her vaginal area with his fingers and erect penis. E.F. kicked him so that he could not penetrate her vagina. He told her, “[Y]ou can't tell anybody I'm doing this to you or else I'll get in a lot of trouble[.]” Id. at 87. E.F. did not tell anyone because she “was scared that [Fuerte] would hurt [her] family.” Id. at 90. Fuerte subjected E.F. to similar molestations “52 to 60” times a year when her parents were out for the evening; she never allowed him to penetrate her vagina. Id. at 128. On other occasions, E.F. would wake up and feel that her nightclothes and bedclothes were “sticky and wet from [Fuerte] ejaculating, so [she] would know he was there.” Id . at 89.
[5] One night, E.F.'s mother went upstairs to check on her sleeping daughter and saw Fuerte lying on E.F.'s bedroom floor in the dark in his underwear. In “shock,” E.F.'s mother told her husband what she had seen and asked him to bring E.F. down to the basement. Id. at 174. The next day, Fuerte told E.F.'s mother, “I'm sorry for what you saw last night” and “it's never going to happen again.” Id. at 176. E.F.'s parents asked E.F. if Fuerte or “anybody” had “ever done anything to her,” and “she said no.” Id. According to E.F.'s mother, they “just kept on being a normal family [ ... ] just like [they] always had.” Id . at 177. E.F. did move into a basement bedroom, however.
[6] As the molestations continued, E.F. “began avoiding” Fuerte and “wouldn't talk to him.” Id. at 91. She also began blocking her bedroom door with a dresser “to prevent him from getting towards [her].” Id. at 102. When her mother asked about this, E.F. replied that Fuerte “just got [her] really mad” and that she “put that in the way so he wouldn't come talk to [her] .” Id. at 103. Fuerte continued molesting E.F. until approximately late 2008. See id. at 95–97 ().
[7] In May 2009, a school coach told E.F. and her classmates that “we shouldn't let our problems ruin our lives and that we should do whatever we can to overcome them and that we will never be happy until we finally settle what it is that's bothering us.” Id. at 97. Afterward, a “trembling” and “crying” E.F. told her seventh-grade teacher about Fuerte's sexual abuse. Id. at 272. The teacher informed the principal, who summoned E.F.'s parents to the school and told them what E.F. had said. E.F.'s parents went home and talked with E.F., who told them about the abuse. The senior pastor of the family's church told E.F.'s parents to avoid contact with Fuerte, so they locked the doors to the basement “to make sure there was no contact between [them].” Id. at 189.
[8] Soon thereafter, Fuerte was summoned to a meeting with the church's senior pastor and its Spanish-speaking pastor, Alfredo Deande. With Deande as interpreter, the senior pastor told Fuerte about E.F.'s accusations. According to Deande, “[w]hen the senior pastor got done, [Fuerte] threw himself at the senior pastor's shoes, grabbed onto his ankles and started begging for forgiveness.” Id. at 280. The senior pastor told Fuerte, Id. at 281.
[9] After the meeting, Fuerte asked E.F.'s parents if he could talk with them and E.F. E.F.'s father said that Fuerte could talk with him and his wife but not with E.F. According to E.F.'s father, he and his wife and Fuerte “sat at the dining room table and [Fuerte] started sobbing and he said, [ ... ] I'm sorry for what I've done, please forgive me for what I've done.” Id. at 246.
[10] E.F. gave a statement to law enforcement in July 2009, but the case fell through the cracks and the State did not file charges against Fuerte until October 2013. In November 2014, a jury found him guilty as charged of class B felony attempted incest, class C felony child molesting, class C felony criminal confinement, class D felony criminal confinement, and class D felony sexual battery. Based on double jeopardy concerns, the trial court entered judgment of conviction only on the attempted incest, child molesting, and sexual battery counts. The court sentenced Fuerte to consecutive terms of twelve years for attempted incest and seven years for child molesting and a concurrent term of eighteen months for sexual battery, for an aggregate sentence of nineteen years executed.
[11] Fuerte now appeals. Additional facts will be provided as necessary.
Section 1—Fuerte has waived any argument regarding the admissibility of his requests for forgiveness from his pastor.
[12] Fuerte asserts that the trial court erred in admitting testimony regarding his requests for forgiveness from his pastor. Fuerte failed to object to this testimony at trial, however, and therefore this argument is waived. Brown v. State, 929 N.E.2d 204, 206–07 (Ind.2010).1 Waiver notwithstanding, we note that E .F.'s father testified without objection that Fuerte requested forgiveness from his family. Consequently, any error in the admission of evidence regarding Fuerte's request for forgiveness from his pastor can only be considered harmless. See Jones v. State, 957 N.E.2d 1033, 1040 (Ind.Ct.App.2011) () (quoting Edwards v. State, 730 N.E.2d 1286, 1289 (Ind.Ct.App.2000) ).
Section 2—Fuerte has failed to establish an abuse of discretion in the admission of alleged vouching testimony.
[13] Next, Fuerte contends that the trial court erred in admitting what he characterizes as vouching testimony from E.F.'s father and two investigating police officers. Our standard of review is well settled.
The general admission of evidence at trial is a matter we leave to the discretion of the trial court. We review these determinations for abuse of that discretion and reverse only when admission is clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights.
Clark v. State, 994 N.E.2d 252, 259–60 (Ind.2013) (citation omitted).
Section 2.1—E.F.'s father
Id. Fuerte objected to this testimony but failed to state a basis for the objection.
[15] On appeal, Fuerte claims that E.F.'s father impermissibly vouched for E.F.'s credibility. As an initial matter, we agree with the State that Fuerte waived this argument by failing to state a basis for his objection. See Childers v. State, 719 N.E.2d 1227, 1232 (Ind.1999) (). Waiver notwithstanding, E.F.'s father did not vouch for her credibility; he merely offered an explanation as to why...
To continue reading
Request your trial