MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 31 2016, 8:46 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Patricia Caress McMath Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Juan Reyes, October 31, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1604-CR-795
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Sheila A. Carlisle,
Appellee-Plaintiff. Judge
The Honorable Stanley Kroh,
Magistrate
Trial Court Cause No.
49G03-1410-FA-48641
Najam, Judge.
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Statement of the Case
[1] Juan Reyes appeals his convictions for two counts of child molesting, as Class
A felonies, following a jury trial. Reyes presents a single issue for our review,
namely, whether the trial court committed fundamental error when it permitted
State’s witnesses to present certain testimony. We affirm.
Facts and Procedural History
[2] In approximately 2010, Reyes’ children became friends with K.W. and A.W.,
two minor children of neighbors in Reyes’ apartment complex. K.W. and
A.W. often visited with Reyes’ children and spent the night at Reyes’
apartment. In approximately 2012 or 2013, when K.W. was in the second or
third grade, Reyes “started touching [her] vagina” on occasion, and he
repeatedly molested K.W. over the course of “[a] few years.” Tr. at 156. Reyes
touched both the “inside and the outside” of K.W.’s vagina with his finger
during the molestations. Id. at 157.
[3] Finally, in October 2014, K.W. told her mother, C.C., about the molestations.
C.C. asked A.W. whether Reyes had molested her, too. A.W. initially
responded in the negative, but a short time later A.W. told C.C. that Reyes had
molested her. C.C. and her husband contacted the children’s father, Ar.W.,
and he came to the apartment. Then the three of them contacted the police that
same night. During the ensuing investigation, Jill Carr, a child forensic
interviewer with Legacy House, interviewed K.W. and A.W., who both told
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Carr that Reyes had “touched” them and that it had been going on for “quite
some time.” Id. at 227-28.
[4] The State charged Reyes with eight counts of child molesting, three as Class A
felonies (K.W.), one as a Level 1 felony (K.W.), three as Class C felonies
(A.W.), and one as a Level 4 felony (A.W.). At trial, the State dismissed the
Level 1 felony count, and the jury found Reyes guilty of the three counts of
child molesting, as Class A felonies, but acquitted him of the remaining
charges. The trial court entered judgment of conviction for two counts of child
molesting, as Class A felonies, and sentenced Reyes to two concurrent thirty-
year sentences. This appeal ensued.
Discussion and Decision
[5] Reyes contends that the trial court committed fundamental error when it
permitted testimony by State’s witnesses that he alleges constituted inadmissible
hearsay. Reyes did not object to the challenged testimony at trial. The
fundamental error doctrine is an exception to the general rule that the failure to
object at trial constitutes procedural default precluding consideration of the
issue on appeal. Sampson v. State, 38 N.E.3d 985, 992 (Ind. 2015) (citation
omitted). This exception applies only when the error constitutes a blatant
violation of basic principles, the harm or potential for harm is substantial, and
the resulting error denies the defendant fundamental due process. Id. Harm is
not shown by the fact that the defendant was ultimately convicted; rather harm
is found when error is so prejudicial as to make a fair trial impossible. Id.
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[6] Reyes maintains that the following testimony constituted inadmissible hearsay:
• On direct examination of Indianapolis Metropolitan Police
Department (“IMPD”) Officer Noel Gudat, the prosecutor asked
him whether, after talking to K.W.’s parents, he had learned “the
name of the person who had done this” and his address. Tr. at
98. Officer Gudat responded that they had identified Reyes as
the suspect and they had disclosed Reyes’ home address.
• On direct examination of IMPD Detective Gregory
Norris, the prosecutor asked him whether, during the course of
his investigation, he had “learn[ed] the identity of the person
[who] had done these things” to K.W. Id. at 262. Detective
Norris testified that Reyes was identified as the suspect and that
Reyes was born in 1982.
• Carr testified that the nature of K.W.’s allegations was
“being touched” and that “this had been going on for quite some
time[.]” Id. at 227-28.
[7] We need not decide whether that testimony constituted inadmissible hearsay
because any error in its admission was harmless.
No error in the admission of evidence is ground for setting aside
a conviction unless such erroneous admission appears
inconsistent with substantial justice or affects the substantial
rights of the parties. The improper admission of evidence is
harmless error when the conviction is supported by such
substantial independent evidence of guilt as to satisfy the
reviewing court that there is no substantial likelihood that the
questioned evidence contributed to the conviction. To decide if
the erroneous admission of prejudicial evidence of extrinsic
offenses is harmless, we therefore evaluate whether the jury’s
verdict was substantially swayed.
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Wickizer v. State, 626 N.E.2d 795, 800 (Ind. 1993) (citations omitted). In
particular, the admission of evidence is harmless and is not grounds for reversal
where the evidence is merely cumulative of other evidence properly admitted.
Smart v. State, 40 N.E.3d 963, 966 (Ind. Ct. App. 2015).
[8] Here, K.W. and A.W. both testified that Reyes, who lived in an apartment near
theirs in the same complex, was the man who had molested them, so the
officers’ testimony regarding his name and address was merely cumulative and
did not impact Reyes’ substantial rights. And, while Reyes’ birthdate was
relevant to prove that he was at least twenty-one years of age when the crimes
occurred, the State presented evidence that, at the time of trial, Reyes had been
married for fourteen years and has four biological children. A reasonable fact-
finder could have inferred from that evidence that Reyes was at least twenty-
one at the time of the offenses, and, as such, Detective Norris’ testimony was
cumulative of that evidence. Finally, K.W. and A.W. testified regarding the
details of the alleged molestations, including the timeframe. Carr’s testimony
regarding what K.W. and A.W. had told her during interviews was merely
cumulative of their trial testimony.
[9] Reyes has not demonstrated that the trial court committed fundamental error
when it permitted the challenged testimony. Indeed, any error in the admission
of that testimony was harmless.
[10] Affirmed.
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Vaidik, C.J., and Baker, J., concur.
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Juan Reyes v. State of Indiana (mem. dec.)
Combined Opinion