FILED
Dec 18 2017, 10:38 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven Knecht Curtis T. Hill, Jr.
Vonderheide & Knecht, P.C. Attorney General of Indiana
Lafayette, Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Miguel Alvarado, December 18, 2017
Appellant-Defendant, Court of Appeals Case No.
12A04-1704-CR-818
v. Appeal from the Clinton Circuit
Court
State of Indiana, The Honorable Bradley K. Mohler,
Judge
Appellee-Plaintiff.
Trial Court Cause No.
12C01-1505-FA-477
Bradford, Judge.
Court of Appeals of Indiana | Opinion 12A04-1704-CR-818 | December 18, 2017 Page 1 of 11
Case Summary
[1] In 2011, Appellant-Defendant Miguel Alvarado began living with M.L., who
was born in 2005, and M.L.’s mother (“Mother”), marrying her the next year.
While living with M.L. and Mother until 2013, Alvarado molested M.L. several
times, penetrating her orally, vaginally, and anally with his penis. In 2015, the
State charged Alvarado with nine counts of Class A felony child molesting.
[2] Prior to trial, Alvarado sought to introduce evidence that M.L. had been
molested by Mother’s new boyfriend as recently as early 2015, on the basis that
this molestation provided M.L. with the knowledge to fabricate her accusations
against Alvarado. The trial court denied Alvarado’s motion to introduce the
evidence in question. After the State’s closing argument, Alvarado moved to
reopen evidence on the basis that the State had opened the door to the evidence
of molestation by Mother’s boyfriend. The trial court denied Alvarado’s
motion, entered judgment of conviction for four counts of child molesting, and
sentenced him to an aggregate sentence of ninety years of incarceration.
Alvarado contends that the trial court abused its discretion in refusing to admit
evidence that M.L. was molested by Mother’s boyfriend and in denying him
leave to reopen evidence. Because we disagree, we affirm.
Facts and Procedural History
[3] M.L. was born in May of 2005 to Mother and her then-husband. In 2011,
Mother and Alvarado had been in a relationship for three years and were living
Court of Appeals of Indiana | Opinion 12A04-1704-CR-818 | December 18, 2017 Page 2 of 11
in Frankfort with M.L. and one of Mother’s other three daughters. Mother and
Alvarado married in June 2012. From 2011 until Alvarado and Mother
divorced in 2013, Mother was consistently employed, while Alvarado had
periodic employment.
[4] Typically, after returning home from work, Mother would take her other
daughter to the grocery store, leaving M.L. alone with Alvarado at home. One
day after Mother left, Alvarado entered M.L.’s room as she was playing with
her dolls. Alvarado was fully dressed when he entered M.L.’s room but quickly
removed his pants and underwear. Alvarado took a belt, bent M.L. over, and
spanked her with the belt. When he finished hitting M.L., Alvarado removed
his shirt.
[5] When M.L. stood, Alvarado forced her against the wall of her bedroom. M.L.
started to scream, but Alvarado covered her mouth with his hand. Alvarado
penetrated M.L.’s vagina, anus, and mouth with his penis. On other days,
Alvarado performed these sexual acts on M.L. in the same manner every time.
In early 2015, M.L., by this time almost ten years old, reported these incidents
to her grandmother. Around this time, M.L. made similar allegations involving
Mother’s boyfriend, i.e., that he had “forced her to perform oral sex as well as
vaginal and anal sex.” Ex. A. The Kokomo Police Department interviewed
the boyfriend on March 27, 2015, and filed an application for an arrest warrant
on April 30, 2015.
Court of Appeals of Indiana | Opinion 12A04-1704-CR-818 | December 18, 2017 Page 3 of 11
[6] On May 22, 2015, the State charged Alvarado with nine counts of child
molesting as Class A felonies. Before trial, Alvarado moved to introduce
evidence that M.L. was molested by Mother’s ex-boyfriend as recently as
January 2015. On February 13, 2017, the trial court held a confidential hearing
on Alvarado’s motion. After this hearing, the trial court issued an order
denying Alvarado’s motion, holding that he would be “precluded from
introducing evidence of a subsequent molest and/or allegation of molest[.]”
Appellant’s App. Vol. II p. 125.
[7] Alvarado’s trial was held on February 28, 2017. M.L. told the jury that she
referred to her breasts as her “upper private[,]” her vagina as her “down
private[,]” and her buttocks as her “[b]ack private.” Tr. Vol. II 153–54. M.L.
referred to a man’s penis as the man’s “down private[.]” Tr. Vol. II 156–57.
M.L. used the same or similar terms when describing Alvarado’s molestation of
her, testifying that Alvarado touched her with his “down private” in her mouth,
“down private[,]” and her “back down private[.]” Tr. Vol. II pp. 170–71. M.L.
testified that Alvarado hurt her when his “down private” went inside of her
“down private” and that she knew it was inside her body “[c]ause [she] could
feel it.” Tr. Vol. II pp. 178–79. On cross-examination, M.L., then in the sixth
grade, testified that she had learned about good and bad touches in school but
could not remember when.
[8] After M.L. finished testifying, Alvarado again raised the rape-shield issue and
proffered the arrest warrant application for Mother’s boyfriend, which
contained the allegation that he had forced M.L. into oral, vaginal, and anal
Court of Appeals of Indiana | Opinion 12A04-1704-CR-818 | December 18, 2017 Page 4 of 11
sex. The warrant application was admitted for purposes of an offer of proof as
Exhibit A, and also noted: “[M.L.] also alleged that her step father [sic],
Miguel Avarado [sic] molested her in the same manner.” After hearing
argument, the trial court reaffirmed the exclusion of evidence of the subsequent
molestation.
[9] When the State completed its closing argument, Alvarado asked for a recess to
request the evidence be reopened on the basis that the State had opened the
door to the excluded evidence of M.L.’s subsequent molestation during the
argument. The trial court denied the motion. The jury found Alvarado guilty
of four counts of Class A felony child molesting, and the trial court sentenced
him to an aggregate sentence of ninety years of incarceration.
Discussion and Decision
I. Admission of Evidence that M.L. Was Molested by
Another Person After Alvarado Molested Her
[10] Alvarado contends that the trial court abused its discretion in refusing to admit
evidence that she had been molested by another person as recently as early
2015, or after her alleged molestation by Alvarado but before she reported it. In
general, the admissibility of evidence is within the sound discretion of the trial
court. Curley v. State, 777 N.E.2d 58, 60 (Ind. Ct. App. 2002), trans. denied. We
will reverse a trial court’s decision on the admissibility of evidence only upon a
showing of an abuse of that discretion. Id. An abuse of discretion may occur if
the trial court’s decision is clearly against the logic and effect of the facts and
Court of Appeals of Indiana | Opinion 12A04-1704-CR-818 | December 18, 2017 Page 5 of 11
circumstances before the court, or if the court has misinterpreted the law. Id.
The Court of Appeals may affirm the trial court’s ruling if it is sustainable on
any legal basis in the record, even though it was not the reason enunciated by
the trial court. Moore v. State, 839 N.E.2d 178, 182 (Ind. Ct. App. 2005), trans.
denied. We do not reweigh the evidence, and consider the evidence most
favorable to the trial court’s ruling. Hirsey v. State, 852 N.E.2d 1008, 1012 (Ind.
Ct. App. 2006), trans. denied.
[11] Indiana Evidence Rule 412 governs the admissibility of evidence of past sexual
conduct and provides, in part, as follows:
(a) Prohibited Uses. The following evidence is not admissible in
a civil or criminal proceeding involving alleged sexual
misconduct:
(1) evidence offered to prove that a victim or witness engaged
in other sexual behavior; or
(2) evidence offered to prove a victim’s or witness’s sexual
predisposition.
(b) Exceptions.
(1) Criminal Cases. The court may admit the following
evidence in a criminal case:
….
(C) evidence whose exclusion would violate the
defendant’s constitutional rights.
[12] Alvarado contends that exclusion of evidence that another person molested
M.L. impermissibly infringes his constitutional right to confront the witnesses
Court of Appeals of Indiana | Opinion 12A04-1704-CR-818 | December 18, 2017 Page 6 of 11
against him,1 specifically his right to adequately cross-examine them. The right
to cross examination, however, is not absolute. Tague v. Richards, 3 F.3d 1133,
1137 (7th Cir. 1993). “[T]he Confrontation Clause guarantees an opportunity
for effective cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish.” Delaware v.
Fensterer, 474 U.S. 15, 20 (1985). “Furthermore, the right to confront witnesses
‘may, in appropriate cases, bow to accommodate other legitimate interests in
the criminal trial process.’” Tague, 3 F.3d at 1137 (quoting Chambers v.
Mississippi, 410 U.S. 284, 295 (1973)).
[13] In arguing that the exclusion of the evidence in question violated his right to
cross-examination, Alvarado relies on the so-called “sexual innocence inference
theory.” The theory is based on the premise that, because young children are
generally presumed to be ignorant of sexual matters, a child victim’s mere
ability to describe sexual conduct may be compelling enough to convince a jury
that the charged conduct must have occurred. See Oatts v. State, 899 N.E.2d
714, 724 (Ind. Ct. App. 2009) (citing Grant v. Demskie, 75 F. Supp. 2d 201, 213
(S.D.N.Y. 1999)). Consequently, the defense should have the opportunity to
offer evidence that the victim had acquired sufficient knowledge from another
source to fabricate a charge against the defendant, including evidence that the
1
The Sixth Amendment to the United States Constitution provides, in part, that “[i]n all criminal
prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him[.]” Article
I, section 13, of the Indiana Constitution provides, in part, that “[i]n all criminal prosecutions, the accused
shall have the right … to meet the witnesses face to face[.]”
Court of Appeals of Indiana | Opinion 12A04-1704-CR-818 | December 18, 2017 Page 7 of 11
child had acquired sexual experience with someone else before he or she
accused the defendant. Id. (citing Grant, 75 F. Supp. 2d at 213).
[14] In Oatts, the court adopted what has been referred to as the “compromise
approach” to questions involving the sexual innocence inference theory. Id. at
724–25. Pursuant to this approach, the burden is on the defendant “to show
that the prior sexual act occurred and that the prior sexual act was sufficiently
similar to the present sexual act to give the victim the knowledge to imagine the
molestation charge.” Id. at 724. The Oatts court disposed of the issue before it
by concluding that “Oatts failed to show that either the prior molestation or
videotape were similar to the current offense.” Id. at 725.
[15] Be that as it may, we need not concern ourselves with any of the above unless
Alvarado has established that we may assume that the jury will infer M.L.’s
innocence of sexual matters.2 At the time M.L. first reported Alvarado’s
alleged molestation of her, she was two or three months shy of her tenth
birthday. The record also demonstrates, however, that M.L. had received
“good touch, bad touch” education while at school, prior to making these
allegations at trial. Although M.L. also testified that she could not remember
when she had been taught about good and bad touches, this is a possible source
of knowledge sufficient to fabricate a molestation accusation against Alvarado.
Even if we were to assume that M.L. was young enough to generally support an
2
The Oatts court did not, and did not need to, reach this question.
Court of Appeals of Indiana | Opinion 12A04-1704-CR-818 | December 18, 2017 Page 8 of 11
inference of sexual ignorance, we conclude that that inference was rebutted.
We consider it worth noting that, despite expressing grave concern about being
denied the right to present evidence of possible alternate sources of sexual
knowledge, Alvarado did not pursue the issue of M.L.’s “good touch, bad
touch” education at any length or argue that it was the source of M.L.’s sexual
knowledge. Under the circumstances, we cannot say (and Alvarado has not
established) that the average juror would assume that M.L. lacked the
knowledge to fabricate allegations of molestation.3 Consequently, Alvarado has
failed to establish that the trial court abused its discretion in declining to admit
evidence that M.L. had been molested by Mother’s boyfriend.
II. Whether the Trial Court Abused its Discretion in
Refusing to Allow Alvarado To Reopen Evidence
[16] When a party asks to re-open its case after the close of evidence, the trial court’s
decision to grant that request lies within its sound discretion. Flynn v. State, 497
N.E.2d 912, 914 (Ind. 1986). Reversal must be predicated upon an actual abuse
of discretion, i.e., a decision that was “‘clearly untenable or unreasonable[,]’”
3
The “sexual innocence inference” theory of admissibility is not without its critics. The Supreme Court of
Iowa has described the theory as “based on unsubstantiated assumptions and fears about what a jury may
infer from the complaining witness’s testimony.” State v. Clarke, 343 N.W.2d 158, 163 (Iowa 1984). While
we certainly do not reject the sexual innocence inference theory outright, we would suggest that if a
defendant is, in fact, genuinely concerned about the jury unduly inferring sexual innocence of a young
witness, we see no reason why those concerns could not be fully explored in voir dire. Yet, our research has
uncovered not one case nationwide (including this one) in which a defendant in a child molestation case has
thought to address such concerns during jury selection.
Court of Appeals of Indiana | Opinion 12A04-1704-CR-818 | December 18, 2017 Page 9 of 11
and a showing of prejudice to the substantial rights of the complaining party.
Id. at 915 (quoting Allman v. State, 253 Ind. 14, 20, 235 N.E.2d 56, 59 (1968)).
Among the factors which weigh in the exercise of discretion are
whether there is any prejudice to the opposing party, whether the
party seeking to reopen appears to have rested inadvertently or
purposely, the stage of the proceedings at which the request is
made, and whether any real confusion or inconvenience would
result from granting the request.
Flynn, 497 N.E.2d at 914.
[17] The State’s closing summarized M.L.’s testimony as follows:
But, [M.L.] did say multiple times that it did happen at this
South Jackson Street [home]. She described the room where it
happened in detail. She talked about the cars on the bed. She
talked about the toys that were in there. She talked about the
blankets and the walls. She described what it felt like. She
described what the defendant did and the order he did it in on –
when asked, “What did he do next? How did he come in the
room?” She had a clear story about what happened. In
particular the order. When I said, “Did he take off his clothes?”
“No. He took off his bottoms. He left his shirt on.” Uhm, she
was really clear about what the defendant did and the order he
did it in. Also you have a child that is remembering sex acts as
they actually happen with adults. Uhm, She -- an -- and I know
she was very hard to hear and probably very hard to -- to see
cause [sic] she was bundled up uhm, but she did make the
motion about what happened when the defendant’s uhm, penis
was inside her. And you as a jury can decide if that is consistent
with that sexual act.
Tr. Vol. III pp. 63–64.
Court of Appeals of Indiana | Opinion 12A04-1704-CR-818 | December 18, 2017 Page 10 of 11
[18] Alvarado contends that the prosecutor’s statement that “[a]lso you have a child
that is remembering sex acts as they actually happen with adults” created the
impression with the jury that Alvarado was the only possible source of sexual
knowledge. Whatever force this argument may have is premised on the jury
inferring M.L.’s sexual ignorance. As we have already concluded, however,
Alvarado has failed to convince us that we can assume that the jury inferred
M.L.’s sexual ignorance, especially since she had undergone the “good touch,
bad touch” program prior to the allegations. With this in mind, the
prosecutor’s statement is nothing more than a contention that M.L.’s testimony
was plausible and consistent with adult sexual activity. There is no question
that a prosecutor is absolutely allowed to argue that a witness’s testimony was
plausible and consistent. The trial court did not abuse its discretion in refusing
to allow Alvarado to reopen his case and introduce evidence that M.L. was
molested by Mother’s ex-boyfriend.
[19] We affirm the judgment of the trial court.
Robb, J., and Crone, J., concur.
Court of Appeals of Indiana | Opinion 12A04-1704-CR-818 | December 18, 2017 Page 11 of 11