Izaguirre v. State, 21A-CR-2258

Citation21A-CR-2258
Case DateSeptember 14, 2022
CourtCourt of Appeals of Indiana

Jose L. Izaguirre, Appellant-Defendant,
v.

State of Indiana, Appellee-Plaintiff

No. 21A-CR-2258

Court of Appeals of Indiana

September 14, 2022


Appeal from the Kosciusko Circuit Court The Honorable Michael W. Reed Trial Court Cause No. 43C01-1904-F1-258

Attorney for Appellant

Jay A. Rigdon Warsaw, Indiana

Attorneys for Appellee

Theodore E. Rokita Attorney General of Indiana

George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana

MAY, JUDGE

[¶1] Jose L. Izaguirre appeals his convictions of two counts of Level 1 felony child molesting[1] committed against his stepdaughter ("Child"). He claims the trial

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court erred by allowing Child, who was fourteen years old at the time of trial, to testify with a comfort animal pursuant to Indiana Code section 35-40-5-13, which provides:

When a child less than sixteen (16) years of age is summoned as a witness to any hearing in any criminal matter, including a preliminary hearing, a comfort item or comfort animal shall be allowed to remain in the courtroom with the child during the child's testimony unless the court finds that the defendant's constitutional right to a fair trial will be unduly prejudiced

We affirm.

Facts and Procedural History

[¶2] Around age twenty-two, Izaguirre began a relationship with W.I., who had young children. Izaguirre and W.I. lived together and then married, and W.I.'s children lived with them. On March 29, 2019, twelve-year-old Child reported Izaguirre had been molesting her at least monthly for four years. Child and W.I. were interviewed that day, and police began to investigate. Warsaw Police Department Detective Paul Heaton went to Izaguirre's residence to talk to Izaguirre and to ask him to come to the police station for an interview. Izaguirre consented and waived his Miranda[2] rights in the interview room. During the interview, Izaguirre admitted he put his penis near Child's vagina but insisted he never put it inside her. (Exhibit at 25.) Then he indicated he put

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it inside Child's anus "just a little bit." (Id. at 26 & 32) (capitalization removed). He also admitted placing his penis in Child's mouth. (Id. at 27.) In all, he admitted engaging in some form of sexual activity with Child on at least twenty occasions, but he claimed Child initiated all the activity.

[¶3] On April 1, 2019, the State charged Izaguirre with three counts of Level 1 felony child molesting. All three counts alleged Izaguirre engaged in sexual intercourse or other sexual conduct as defined in IC 35-31.5-2-221.5[3] with Child, and the three charges differed only in the date ranges of the alleged molestation.[4] Izaguirre moved to suppress his confession, and the trial court denied his motion. We affirmed the trial court's denial of that motion to suppress in a memorandum opinion deciding his interlocutory appeal. Izaguirre v. State, 2020 WL 26009934 (Ind.Ct.App. May 22, 2020), trans. denied.

[¶4] Before Izaguirre's jury trial, the State moved to permit a comfort animal to sit with Child as she testified. The trial court granted the State's motion over Izaguirre's objection, and Child testified with a canine sitting near her. After all evidence was presented, the jury found Izaguirre not guilty of the molestation alleged to have occurred in 2016 and 2017, but guilty of the other two counts, which alleged intercourse or other sexual conduct in 2018 and 2019. The trial

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court entered judgments of conviction on the second and third counts and scheduled a sentencing hearing. After the presentation of evidence and argument, the trial court imposed a forty-year sentence for count two and a thirty-year sentence for count three; ordered the two sentences served concurrently; and suspended five years of the forty-year sentence to probation. Thus, Izaguirre's aggregate sentence amounts to a forty-year term, with five years suspended to probation. Izaguirre filed a motion to correct error,[5] which the trial court denied.

Discussion and Decision

[¶5] Izaguirre questions whether the trial court erred by permitting Child to testify with a comfort animal pursuant to Indiana Code section 35-40-5-13. (See Appellant's Br. at 4) (Statement of Issues). In his Summary of Argument, Izaguirre asserts two broad reasons the court erred by following the statute: (1) the statute "permits a Court to prejudice a Defendant's...

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