Izaguirre v. State

• Decision Date: 14 September 2022
• Docket Number: Court of Appeals Case No. 21A-CR-2258
• Citation: 194 N.E.3d 1224
• Parties: Jose L. IZAGUIRRE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
• Court: Indiana Appellate Court

194 N.E.3d 1224

Jose L. IZAGUIRRE, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 21A-CR-2258

Court of Appeals of Indiana.

Filed September 14, 2022

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 molesting¹ committed against his stepdaughter ("Child"). He claims the trial court erred by allowing Child, who was fourteen years old at the time of trial, to testify with a comfort animal pursuant to

[194 N.E.3d 1225

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 Miranda² 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 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 35-31.5-2-221.5³ with Child, and the three charges differed only in the date ranges of the alleged molestation.⁴ Izaguirre moved to suppress his...