MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Mar 19 2019, 11:25 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Valerie K. Boots Frank A. Negangard
Indianapolis, Indiana Chief Deputy Attorney General
Frederick Vaiana Laura R. Anderson
Indianapolis, Indiana Stephen R. Creason
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joaquin Alcauter, March 19, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2211
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Mark Stoner,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G06-1710-F1-38408
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Joaquin Alcauter (Alcauter), appeals his conviction for
one Count of child molesting as a Level 4 felony, Ind. Code § 35-42-4-3(b).
[2] We affirm.
ISSUE
[3] Alcauter presents us with one issue on appeal, which we restate as: Whether
the trial court abused its discretion when it admitted certain hearsay evidence as
excited utterances.
FACTS AND PROCEDURAL HISTORY
[4] V.M. is the mother of Y.M., born in July 2008, and Y.M.’s younger brother,
M.M. V.M. met Alcauter when Y.M. was approximately four years old. V.M.
and Alcauter married in 2013. Alcauter was over the age of twenty-one the
entire time he and V.M. were together.
[5] V.M. has a much younger sister, A.D., who is only one year older than Y.M.
Because of the closeness in their ages, Y.M.’s and A.D.’s relationship was more
akin to two sisters, rather than that of niece and aunt. A.D. frequently spent the
night at the home V.M. shared with Alcauter so that A.D. could spend time
with Y.M. The night of September 29, 2017, was one such night. Early in the
morning of September 30, 2017, Alcauter entered the bedroom that Y.M. and
M.M. shared. M.M. had his own bed which was across the room from Y.M.’s.
Y.M. and A.D. were sleeping in Y.M.’s bed. A.D. was under the covers and
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awoke when she felt something warm touching her vagina over her pajamas.
She saw that it was Alcauter touching her but pretended to be still asleep. A.D.
shifted and moved her blanket. Alcauter moved his hand away but then tried to
place it back on A.D.’s vagina. A.D. blocked his hand with her hand. Alcauter
realized that A.D. was awake, removed his hand from underneath the covers,
kissed A.D. on the forehead, and left the room.
[6] A.D. ran into V.M.’s bedroom and told V.M. that Alcauter had touched her
vagina with his hand. V.M. calmed A.D., called her family to assist in moving
the children to safety, and alerted the authorities. When Y.M. learned what
had happened to A.D., she attempted to console A.D. by telling her that such
things happened all the time, a statement which made V.M. aware for the first
time that Y.M. may have been molested also. Y.M. and A.D. were interviewed
on October 2, 2017, and disclosed that Alcauter had molested them. Alcauter
gave a statement on October 4, 2017, in which he claimed that on the morning
of the incident involving A.D., M.M. was in bed sleeping with Y.M. and A.D.
and that M.M.’s leg was in between A.D.’s leg when Alcauter removed M.M.
from the bed. At first Alcauter denied improperly touching Y.M., but he then
reported that Y.M. had actually initiated sexual conduct with him. According
to Alcauter, beginning when Y.M. was eight, she would sit on his lap and touch
his penis, remove his penis from his pants, place his fingers in her vagina, and
rub his penis on her vagina. Alcauter admitted that he had placed his penis in
Y.M.’s vagina on two or three occasions, with the last time being in June 2017.
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[7] On October 5, 2017, the State filed an Information, charging Alcauter with six
Counts of child molesting as Class A/Level 1 felonies for offenses against
Y.M.; three Counts of child molesting as Class C/Level 4 felonies for offenses
against Y.M.; and one Count of Child molesting as a Level 4 felony for
fondling A.D. On August 2, 2018, the trial court conducted Alcauter’s bench
trial. A.D. was the first witness to testify, and she recounted that Alcauter was
“squeezing” her vagina with his hand on September 30, 2017. A.D. confirmed
that she had run to V.M.’s room immediately after Alcauter touched her and
stated that “I was very loud and I was crying” when reporting to V.M. what
Alcauter had done. (Transcript p. 14).
[8] At trial V.M. described her usual morning routine that started around 5:00 a.m.
when she would make coffee, prepare a lunch for Alcauter, and return to bed.
Around 5:00 a.m. on the morning of September 30, 2017, V.M. awoke early to
help get Alcauter out the door and then returned to bed, as was her habit. V.M.
testified that approximately ten minutes after she returned to bed, A.D. ran into
her room “terrified,” “crying,” and “shaking,” and acting in a manner which
V.M. had never seen her act before. (Tr. p. 32). Alcauter’s counsel objected to
V.M.’s testimony about what A.D. reported to her that morning, arguing that
the State had not established an adequate foundation for the admission of
excited utterances and objecting that “I don’t believe that it necessarily has
established that the client has been close enough.” (Tr. p. 32). Over Alcauter’s
objection, the trial court admitted A.D.’s hearsay statements as excited
utterances. V.M. then testified that A.D. had told her that Alcauter had rubbed
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her. V.M. asked A.D. where Alcauter had rubbed her, and A.D. indicated her
vagina. V.M. testified that A.D. then “just started crying so much. And she
crawled in bed with me and wouldn’t stop crying at that point.” (Tr. p. 33).
[9] After the close of evidence, the State conceded that Y.M. had not testified at
trial that Alcauter had inserted his fingers in her vagina, as she had previously
reported, and, as a result, the trial court found Alcauter not guilty of four
Counts of Class A /Level 1 felony child molesting of Y.M. and one Count of
Class C felony child molesting of Y.M. The trial court found Alcauter guilty of
two Counts of child molesting of Y.M. as Level 4 felonies but vacated them as
lesser-included offenses. The trial court found Alcauter guilty and entered
judgment of conviction on two Counts of Level 1 felony child molesting of
Y.M. and one Count of Level 4 felony child molesting for fondling A.D. On
August 16, 2018, the trial court sentenced Alcauter to thirty years for each of
the Level 1 felonies and to six years for the Level 4 felony conviction. The trial
court ordered Alcauter to serve all of his sentences consecutively, for an
aggregate sentence of sixty-six years.
[10] Alcauter now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[11] Alcauter argues that the trial court abused its discretion when it admitted
A.D.’s hearsay statements because he contends that the State failed to establish
an adequate foundation for their admission as excited utterances. As a general
rule, a trial court has broad discretion in ruling on the admissibility of evidence,
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and we will reverse a trial court’s evidentiary ruling only upon an abuse of that
discretion. Carr v. State, 106 N.E.3d 546, 552 (Ind. Ct. App. 2018), trans. denied.
More particularly, a trial court’s determination that hearsay statements are
excited utterances is reviewed under this standard. See Yamobi v. State, 672
N.E.2d 1344, 1346 (Ind. 1996).
[12] Hearsay is an out-of-court statement offered to prove the truth of the matter
asserted. Ind. Evidence Rule 801(c). Hearsay evidence is generally not
admissible unless the Rules of Evidence or some other law provides for it.
Evid. R. 802. One exception to the general prohibition on hearsay is that for
the admission of excited utterances, which are defined as statements “relating to
a startling event or condition, made while the declarant was under the stress of
excitement that it caused.” Evid. R. 803(2). Our supreme court has explained
the rationale for the admission of excited utterances as follows:
The underlying rationale of the excited utterance exception is that such
a declaration from one who has recently suffered an overpowering
experience is likely to be truthful. While the event and the utterance
need not be absolutely contemporaneous, lapse of time is a factor to
consider in determining admissibility. Similarly, that the statements
were made in response to inquiries is also a factor to be considered.
Whether given in response to a question or not, the statement must be
unrehearsed and made while still under the stress of excitement from
the startling event.
Hardiman v. State, 726 N.E.2d 1201, 1204 (Ind. 2000) (citations omitted). The
important inquiry is whether the declarant had time for reflection and
deliberation before making the statements. Id. To have evidence admitted
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pursuant to this exception, the proponent of the evidence must establish three
foundations: (1) a startling event; (2) a statement made while the declarant was
under the stress of excitement caused by the event; and (3) that the statement
relates to the event. Wallace v. State, 79 N.E.3d 992, 997 (Ind. Ct. App. 2017).
We do not apply this test mechanically; rather, we consider the particularities of
each case. See id.
[13] Alcauter argues that the State’s foundation for the challenged evidence was
deficient because it failed to show the exact length of time that elapsed between
the offense and A.D.’s statements to V.M. to establish that A.D. was still under
the stress of the offense when she made her statements. 1 Our supreme court has
held that the amount of time elapsed between the startling event and the
statement is not dispositive, but that, the longer the time elapsed, the less likely
that a particular statement is made without deliberate thought and under the
stress of excitement of the event. Jenkins v. State, 725 N.E.2d 66, 68 (Ind. 2000).
This court has found a sufficient showing that the declarant was still under the
stress of the excitement of the startling event where, immediately after the
event, she appeared “‘hysterical,’ ‘shaken,’ ‘visibly upset,’ ‘crying,’ and [was]
1
Alcauter also argues that A.D. may have dreamed that he touched her vagina or, perhaps, that A.D. had a
dream that resurrected memories of a prior molestation. However, Alcauter did not object on these bases at
trial, and, therefore, he may not raise them now on appeal. See Bush v. State, 929 N.E.2d 897, 899 (Ind. Ct.
App. 2010) (reiterating the well-settled principle that a party may not object to the admission of evidence at
trial on one ground and then assert a different ground on appeal).
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‘speaking in very rapid movements.’” McQuay v. State, 10 N.E.3d 593, 597
(Ind. Ct. App. 2014).
[14] Here, the State’s evidence showed that, on the morning of September 30, 2017,
A.D. ran into V.M.’s room and reported that Alcauter had touched her vagina,
which was a startling event for A.D., who described herself as “loud” and
“crying” after it occurred. (Tr. p. 14). A.D. also established through her
testimony that she ran into V.M.’s room immediately after Alcauter touched
her. V.M. described A.D. as “terrified,” “crying,” and “shaking,” and in a state
such as V.M. had never seen her before. (Tr. p. 32). Thus, A.D.’s statements
were made immediately after the startling event and were made while A.D. was
still under the excitement of the stress of that event. Jenkins, 725 N.E.2d at 68;
McQuay, 10 N.E.3d at 597. The State established an adequate foundation for
the admission of A.D.’s statements as excited utterances, and the trial court did
not abuse its discretion in admitting A.D.’s hearsay statements.
CONCLUSION
[15] Based on the foregoing, we conclude that the trial court did not abuse its
discretion when it admitted A.D.’s hearsay statements as excited utterances.
[16] Affirmed.
[17] Kirsch, J. and Robb, J. concur
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