GONZALEZ MOCTEZUMA v. STATE (2024)

MEMORANDUM DECISION

Case Summary

[1] Following a jury trial, Erik Gonzalez-Moctezuma (“Defendant”) appeals his convictions for two counts of child molesting, as Level 1 felonies;¹ two counts of child molesting, as Level 4 felonies;² and one count of dissemination of matter harmful to minors, a Level 6 felony.³ We affirm.

Issues

[2] Defendant raises the following two restated issues:

I.  Whether the trial court's exclusion of evidence of a witness's prior incident of dishonesty was fundamental error.

II. Whether the State presented sufficient evidence to support his convictions.

Facts and Procedural History

[3] Elizabeth Gonzalez (“Mother”) moved in with Defendant in 2016. In 2018, Mother and Defendant were married. Soon thereafter, Mother's then-five-year-old daughter, Y.D.,⁴ and four of Mother's other children moved in with Mother and Defendant. Y.D. and the other children were sometimes left alone in the home with Defendant while Mother was at work or traveling out-of-state. In 2021, Mother's sister, D.G., moved into the home with Mother, Defendant, and the children. On September 28, 2022, Mother's and Defendant's son, E.G-M., was born.

[4] D.G. shared a bedroom with Y.D. and noticed on at least three occasions that Y.D. was not in their bedroom but was in Defendant's bedroom with Defendant while the door was closed. On multiple occasions while Defendant lived with Y.D., he touched Y.D.’s thighs and breasts. On one occasion, Defendant pulled Y.D.’s underwear down to her knees after she fell asleep next to him watching a movie. When Y.D. awoke, Defendant was “on” her. Tr. v. III at 183. Defendant “flipped [Y.D.] over” and put “his front private part[,]” i.e., his penis, in her “back private part[,]” i.e., her anus. Id. at 183-85. At that time, Y.D. felt “[u]ncomfortable, weirded out, confused, [and] scared.” Id. at 184. On another occasion, Defendant called Y.D. into his room and took off her underwear. On a third occasion, Defendant called Y.D. into his room, told her to put her hand on his penis, and then attempted to make her perform oral sex on him. He told her to put her face close to his genitals and then touched his penis to her lips. Defendant then “made” Y.D. watch a pornographic video and told her, “[N]ext time I want you to do it like that.” Id. at 188. Defendant told Y.D. not to tell Mother about the molestation, and Y.D. initially complied because she was afraid.

[5] On March 13, 2023, following a body safety program conducted at Y.D.’s school, Y.D. told a school social worker that Defendant had molested her. The school reported the matter to the Indiana Department of Child Services. At a forensic interview conducted on March 16, 2023, Y.D. again reported Defendant's past molestation of her and stated that the molestation had stopped around the beginning of 2023, when Defendant first learned that Mother was pregnant with their child.

[6] On May 3, 2023, the State charged Defendant with two counts of child molesting, as Level 1 felonies; two counts of child molesting, as Level 4 felonies; and one count of dissemination of matter harmful to minors, a Level 6 felony. In August of 2023, Mother filed for divorce from Defendant.

[7] At a three-day jury trial on March 5-7, 2024, Y.D. testified about Defendant's molestation of her. The State also presented testimony from Mother, D.G., and the forensic interviewer. The jury found Defendant guilty as charged, and the court sentenced him accordingly. This appeal ensued.

Discussion and Decision

Exclusion of Evidence

[8] Defendant challenges the trial court's order excluding evidence that Mother had lied to Defendant in 2016 when she had told him that he was the father of the child with which she was pregnant at the time. He contends that ruling denied him his constitutional right to a “meaningful opportunity to present a complete defense.” Appellant's Br. at 20. We review evidentiary rulings for an abuse of discretion. See, e.g., Snow v. State, 77 N.E.3d 173, 176 (Ind. 2017). We do not reweigh the evidence or judge witness credibility, and we consider conflicting evidence in the light most favorable to the judgment. See id.

[9] As Defendant acknowledges, he did not object to the exclusion of the evidence on constitutional grounds. Any grounds for objections not raised at trial—even constitutional claims—are waived on appeal, and a party may not add to or change his grounds in the reviewing court. See Treadway v. State, 924 N.E.2d 621, 631 (Ind. 2010). However, Defendant asserts that the exclusion of the evidence may nevertheless be reviewed because it was fundamentally erroneous. An error is “fundamental,” and therefore reviewable on appeal when it would otherwise be waived, when it “made a fair trial impossible or constituted a clearly blatant violation of basic and elementary principles of due process presenting an undeniable and substantial potential for harm.” Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018) (internal quotation marks and citation omitted). Fundamental error is an “extremely narrow” exception to the general waiver rule, and it “encompasses only errors so blatant that the trial judge should have acted independently to correct the situation.” Id.

[10] Far from being fundamental error, any error in the exclusion of evidence in the instant case was harmless. See Cannon v. State, 99 N.E.3d 274, 278 (Ind. Ct. App. 2018) (noting we need not address the merits of an evidentiary challenge where we conclude that any error was harmless), trans. denied. An error is harmless when it results in no prejudice to the substantial rights of a party. Durden, 99 N.E.3d at 652. The basic premise of the harmless error rule is “that a conviction may stand when the error had no bearing on the outcome of the case.” Id. Similarly, a criminal defendant's constitutional right to confront witnesses is “subject to reasonable limitations placed at the discretion of the trial court,” and any violation of the right does not require reversal “if the State can show beyond a reasonable doubt that the error did not contribute to the verdict.” Koenig v. State, 933 N.E.2d 1271, 1273 (Ind. 2010) (citations omitted); see also id. (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)) (noting factors to be considered in the harmless error analysis include “the importance of the witness’[s] testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted and, of course, the overall strength of the prosecution's case”).

[11] Here, Defendant's sole justification for introducing evidence that Mother had lied to him in 2016 was to show that she was not credible and therefore had likely coached Y.D. to fabricate the molestation allegations so that Mother could obtain custody of her and Defendant's child, E.G-M., in the pending divorce. Indeed, Defendant contends that his theory of the case “from the outset” was that it was about “child custody” rather than “child molesting.” Appellant's Br. at 13. However, Y.D. reported the molestations, in detail, to the school and the forensic interviewer in March of 2023, five months before Mother filed for divorce from Defendant. Y.D. also testified in detail about the molestations at the trial, without contradiction. Therefore, even if the trial court had admitted the excluded evidence regarding Mother's alleged dishonesty in 2016, it would have had no bearing on the outcome of the case.⁵ Moreover, Defendant had the opportunity to—and did—present evidence to the jury that suggested Mother had a motive to lie and/or coach Y.D.; Defendant cross-examined Mother about the custody dispute and argued that Mother had encouraged Y.D. to fabricate the molestation allegations because Mother wanted custody of E.G-M. Thus, any error in the exclusion of the evidence did not contribute to the verdict beyond a reasonable doubt.

[12] Any error in the exclusion of evidence that Mother lied to Defendant in 2016 was harmless.

Sufficiency of Evidence

[13] Defendant challenges the sufficiency of the evidence to support his convictions of child molesting. When reviewing the sufficiency of the evidence needed to support a criminal conviction,

we neither reweigh the evidence nor judge the credibility of witnesses ․ [W]e only consider the evidence supporting the judgment and any reasonable inferences that can be drawn from such evidence. A conviction will be affirmed if there is substantial evidence of probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. It is the job of the fact-finder to determine whether the evidence in a particular case sufficiently proves each element of an offense, and we consider conflicting evidence most favorably to the trial court's ruling.

Willis v. State, 27 N.E.3d 1065, 1066-67 (Ind. 2015) (internal quotation marks and citations omitted). Moreover, we note that “[t]he testimony of a sole child witness is sufficient to sustain a conviction for molestation.” Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012).

[14] To support Defendant's two counts of child molesting, as Level 1 felonies, the State was required to prove beyond a reasonable doubt that (1) Defendant (2) who was at least twenty-one years of age (3) twice (4) knowingly or intentionally (5) performed or submitted to sexual intercourse or other sexual conduct ⁶ (6) with Y.D. (7) when she was under fourteen years of age. See Ind. Code § 35-42-4-3(a)(1). To support Defendant's two counts of child molesting, as Level 4 felonies, the State was required to prove beyond a reasonable doubt that (1) Defendant, (2) twice (3) performed or submitted to fondling or touching (4) of a child under fourteen years of age (5) with the intent to arouse or satisfy the sexual desires of himself or the child. See I.C. § 35-42-4-3(b). To support Defendant's conviction of dissemination of matter harmful to minors, a Level 6 felony, the State was required to prove beyond a reasonable doubt that (1) Defendant (2) knowingly or intentionally (3) disseminated (4) matter that is harmful to minors (5) to Y.D., a minor. See I.C. § 35-49-3-3(a)(1). “The intent element of child molesting may be established by circumstantial evidence and may be inferred from the actor's conduct and the natural and usual consequence to which such conduct usually points.” Carter v. State, 31 N.E.3d 17, 30 (Ind. Ct. App. 2015) (citation omitted), trans. denied.

[15] Here, Y.D. testified that Defendant, on at least two occasions between May 19, 2020, and September 30, 2022, performed on her other sexual conduct, i.e., touching his penis to her anus and/or her mouth. Y.D. also testified that Defendant, on at least two occasions between May 19, 2020, and September 30, 2022, fondled or touched her thighs and breasts. And Y.D. testified that, on one occasion between May 19, 2020, and September 30, 2022, Defendant “made [her] watch this video about a girl sucking a guy's private part.” Tr. v. III at 188. Y.D.’s testimony was corroborated by her aunt's testimony that Y.D. was in Defendant's bedroom with him with the door closed on at least three occasions. Moreover, Defendant does not allege that Y.D.’s testimony was incredibly dubious.

[16] Based on the uncontradicted evidence, a reasonable jury could readily conclude that Defendant had committed the offenses with which he was charged. The State presented sufficient evidence to support all of Defendant's convictions. See Hoglund, 962 N.E.2d at 1238. Defendant's contentions to the contrary are merely requests that we reweigh the evidence, which we may not do. See Willis, 27 N.E.3d at 1066.

Conclusion

[17] The trial court did not commit fundamental error when it excluded evidence that Mother allegedly lied to Defendant in 2016 about the paternity of a child; rather, any such error was harmless as it was cumulative and did not bear on the outcome of the case. Furthermore, the State presented sufficient evidence to support all of Defendant's convictions.

[18] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-4-3(a)(1).

2.   I.C. § 35-42-4-3(b).

3.   I.C. § 35-49-3-3.

4.   Y.D.’s date of birth is May 19, 2012.

5.   For this same reason, the trial court did not err when it concluded that the excluded evidence was irrelevant; Mother's alleged dishonesty in 2016 did not have a tendency to make it more or less probable that Y.D. had fabricated the 2023 molestation charges. See Ind. Evidence Rule 401 (“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”).

6.   “Other sexual conduct” is defined as “an act involving: (1) a sex organ of one (1) person and the mouth or anus of another person; or (2) the penetration of the sex organ or anus of a person by an object.” I.C. § 35-31.5-2-221.5.

Bailey, Judge.

Bradford, J., and Foley, J., concur.