Ramirez v. State

• Decision Date: 06 May 2021
• Docket Number: Court of Appeals Case No. 20A-CR-1982
• Citation: 171 N.E.3d 629 (Table)
• Court: Indiana Appellate Court
• Parties: Juventino V. RAMIREZ, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

171 N.E.3d 629 (Table)

Juventino V. RAMIREZ, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 20A-CR-1982

Court of Appeals of Indiana.

FILED May 6, 2021

Attorney for Appellant: Stacy R. Uliana, Bargersville, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, Indiana

MEMORANDUM DECISION

Kirsch, Judge.

[1] Juventino V. Ramirez ("Ramirez") appeals his conviction for child molesting¹ as a Level 4 felony and raises seven issues, which we restate as:

I. Whether the trial court's rulings on Ramirez's discovery requests were an abuse of discretion;

II. Whether the rulings on Ramirez's discovery requests violated his constitutional rights;

III. Whether the trial court's denial of Ramirez's motion for continuance was an abuse of discretion;

IV. Whether the trial court abused its discretion in not allowing Ramirez to make an offer of proof of a recording of a forensic interview;

V. Whether the trial court abused its discretion in allowing a witness to give vouching testimony;

VI. Whether the trial court abused its discretion by admitting hearsay testimony from two of the State's witnesses; and

VII. Whether the trial court abused its discretion in instructing the jury.

[2] We affirm.

Facts and Procedural History

[3] Ramirez met Angelica Guzman ("Guzman") at church, and they married in October of 2016. Tr. Vol. 2 at 215-16. Soon after, Guzman's daughter A.P., who was then seven years old, moved from her father's home in Michigan to live with Ramirez and Guzman in Fort Wayne. Id. at 215; Tr. Vol. 3 at 15, 115. Ramirez would watch A.P. when Guzman was away. Tr. Vol. 2 at 218.

[4] Between December of 2016 and December of 2018, when A.P. was between seven and nine years old, Ramirez touched A.P. with his hand on her vaginal area several times, both over her clothes and under her clothes, including under her underwear. Tr. Vol. 3 at 26-29, 38; Ex. Vol. at 23. Some incidents occurred on the living room couch while Guzman slept in the master bedroom, and other incidents occurred in the master bedroom when Guzman was away from home. Tr. Vol. 3 at 30-31, 39.

[5] In late August of 2019, A.P. returned home from a visit with her father in Michigan and told Guzman that Ramirez had been touching her. Tr. Vol. 2 at 219-20; Tr. Vol. 3 at 26-27. Guzman discussed A.P.’s allegations with her pastor, and the next day she discussed the allegations with the Center for Nonviolence. Tr. Vol. 2 at 221-22, 238. During a forensic interview with Adam Blakey ("Blakey"), A.P. told Blakey that Ramirez had touched her vaginal area but said that Ramirez had touched her only over her clothes. Tr. Vol. 3 at 27-28, 33; Ex. Vol. at 23. The interview lasted twenty minutes. Tr. Vol. 2 at 45.

[6] By late September of 2019, Guzman and A.P. had moved to Georgia. Id. at 224, 238. Guzman and A.P. continued to talk to Ramirez over the phone, and during these conversations Ramirez admitted to Guzman that he had touched A.P. several times but claimed the touching was accidental Id. at 226-29. Ramirez asked A.P. to forgive him for touching her, and he asked Guzman to "drop the charges" and have A.P. lie in exchange for giving the marital home and money to Guzman. Id. at 229-30, 234.

[7] On October 31, 2019, the State charged Ramirez with child molesting as a Level 4 felony. Appellant's App. Vol. 2 at 16. On November 26, 2019, the State sent a letter to defense counsel advising that all discovery was available and that he and Ramirez could view A.P.’s forensic interview at the prosecutor's office. Id. at 64, 79, 83. The prosecutor's office relayed the same information on November 27, December 3, and December 10, 2019. Id. at 64. On December 10, 2019, Ramirez's counsel responded in writing that he would not sign the receipt at the bottom of the prosecutor's letter but would proceed with discovery through "case law and the rules of trial procedure." Id. at 65.

[8] Throughout pre-trial proceedings, the parties litigated many discovery issues, including whether Ramirez's attorney could get his own copy of the recorded forensic interview of A.P. Id. at 57-59, 62-65, 68-70, 73-100, 121-25, 136-37, 139-40, 141-42; Appellant's Conf. App. Vol. 2 at 172-78. On December 30, 2019, Ramirez filed a motion to compel discovery. Appellant's App. Vol. 2 at 57-59. On December 31, 2019, the State filed a response stating (1) that discovery had been available since November 27, 2019; (2) that Ramirez's attorney refused to sign the receipt; and (3) that Ramirez's attorney could have the discovery but he did not pick it up. Id. at 62-65. On December 31, 2019, the State notified the trial court that it had provided a summary of the witness statements to Ramirez's attorney. Id. at 66.

[9] On January 8, 2020, Ramirez's attorney sent a letter to the prosecuting attorney. In the letter, he objected to the conditions of discovery and requested to pick up discovery and submit his own receipt. Id. at 80. On January 16, 2020, the prosecuting attorney sent a letter to Ramirez's counsel that discovery was ready to be picked up, that he was welcome to view A.P.’s forensic interview at the prosecutor's office, and that he would not receive a copy of the recorded forensic interview because there had been several incidents where recorded interviews provided to defense attorneys had been posted on social media. Id. at 81-82.

[10] On January 16, 2020, Ramirez served the State with a subpoena duces tecum for a copy of the forensic interview. Id. at 70. On January 16, 2020, the State filed a motion to quash the subpoena on the basis that the motion to compel was pending and that Ramirez had not complied with Allen County Local Rule LR02-TR26-1(B)(1) which required Ramirez to apply to the trial court for a copy of the forensic interview. Id. at 69; Local Criminal Rules of the Allen Superior & Circuit Court, https://www.in.gov/courts/files/allen-local-rules.pdf (last visited Apr. 26, 2021).

[11] On January 20, 2020, Ramirez filed a motion for in-camera inspection of the forensic interview. Appellant's App. Vol. 2 at 71-72. On January 21, 2020, Ramirez's attorney sent a letter to the prosecuting attorney, again stating that he would not agree to the State's conditions for conducting discovery. Id. at 84. On January 22, 2020, Ramirez filed a response to the State's answer to Ramirez's discovery requests and a motion to compel. In the response, Ramirez contended that the discovery disclosure agreement was inconsistent with the Indiana Rules of Trial Procedure. Id. at 73-100.²

[12] On January 23, 2020, the State filed a motion to quash Ramirez's motion to compel and requested a protective order for A.P.’s forensic interview, stating that the confidential child interview could be viewed by Ramirez and counsel "to any extent desired" but that a copy would not be provided absent Ramirez's application to the trial court under the local trial rule. Id. at 121-25.

[13] On January 24, 2020, the trial court held a hearing on all pending motions, including Ramirez's motions to compel discovery and request for in-camera inspection of the recorded forensic interview and the State's motion to quash Ramirez's subpoena duces tecum. Id. at 126; Tr. Vol. 2 at 3-12. The State again indicated that A.P.’s forensic interview was available to be viewed by Ramirez's counsel at the prosecutor's office. Tr. Vol. 2 at 8-9. Ramirez requested an order compelling the State to produce a copy of the interview because Ramirez's attorney claimed that going to the prosecutor's office to view the interview was inconvenient and burdensome. Id. at 6-8, 10-11. On February 12, 2020, the trial court issued an order denying Ramirez's motion to compel, finding that discovery had been available since November 26, 2019 and granting the State's motion to quash the subpoena duces tecum. Appellant's App. Vol. 2 at 129-30. The trial court also issued a protective order for a copy of A.P.’s forensic interview, which the trial court noted did not prevent defense counsel from viewing the interview at the prosecutor's office. Id.

[14] On April 23, 2020, the State contended that Ramirez's counsel obtained all the discovery from the State that the State was willing to provide. Id. at 139. On May 15, 2020, the State notified Ramirez that it intended to use A.P.’s forensic interview at trial as an exhibit. Id.³ Ramirez filed a motion to produce a copy of the forensic interview claiming that it was "ineffective" to require counsel to view the interview at the prosecutor's office and offered to receive the interview under a protective order. Id. at 141-42. At the pretrial hearing on May 19, 2020, Ramirez again argued that it was not effective to view A.P.’s forensic interview at the prosecutor's office. Tr. Vol. 2 at 18. The State responded that the interview was available for review at the prosecutor's office and had been available since November 26, 2019 and that Ramirez's attorney had an appointment to review the recording that morning. Id. at 19-20. Ramirez's lawyer responded that a "defense lawyer needs that recorded document at their office to view when and where and as necessary to be properly prepared." Id. at 20. On May 27, 2020, the trial court issued an order finding the State had provided discovery consistent with local rule LR02-TR26-1 and denying Ramirez's motion for a copy of the forensic interview. Appellant's App. Vol. 2 at 161.

[15] Guzman and A.P. met with the deputy prosecutor for the first time on July 7, 2020, the day before the trial was to commence, and provided new information to the deputy prosecutor. Tr. Vol. 2 at 244-45. Following that discussion, the deputy prosecutor sent an email to Ramirez's attorney to inform him of newly acquired evidence, including, according to Guzman, that: 1) A.P. claimed Ramirez had also touched her under her clothing; 2) Ramirez admitted that he had touched A.P.; 3) Ramirez apologized to Guzman and A.P. and asked...