TERCERO PACHECO v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] After a bench trial, Juan Tercero-Pacheco was convicted of one count of Level 3 felony rape that he committed against M.G.I. On appeal,¹ Tercero-Pacheco argues that: (1) the trial court abused its discretion by overruling a defense objection to an allegedly leading question; and (2) there is insufficient evidence to support his rape conviction. We disagree and therefore affirm.

Facts and Procedural History

[2] The facts most favorable to the verdict are largely based on M.G.I.’s testimony. Tercero-Pacheco and M.G.I. lived together with their five children in a home in Marion County. On May 10, 2023, Tercero-Pacheco and M.G.I. argued because he suspected M.G.I. was having an affair with their landlord. At one point, he broke her phone. The couple continued to argue as they entered their bedroom.

[3] Once there, Tercero-Pacheco slapped M.G.I. in the face with an open hand, “grabbed [M.G.I.’s] hair and started choking [her].” Tr. Vol. II, p. 76. He used both hands to choke her causing her to feel like she “was getting out of breath.” Id. at 78. He then forcefully removed her clothes. M.G.I. testified that “he wanted to have relations with me by force”, explaining “he wanted to have sex with me, but I didn't want to.” Id. at 81. M.G.I. “yell[ed] at him not to do it.” Id. at 93. Tercero-Pacheco held M.G.I. down on the bed, where one of their small children was sleeping, spread her legs, and put “not that much” of his penis inside her “then he just pulled out.” Id. at 82, 95. M.G.I. confirmed that “his penis went in a little bit[.]” Id. at 82.

[4] After someone called the police, law enforcement officers responded to the home. Tercero-Pacheco, M.G.I., and two of the children exited the house. One of the children, a boy, who appeared to officers to be “[s]cared and concerned,” spoke rapidly in Spanish while pointing at Tercero-Pacheco. Id. at 47. The boy, H.T., testified at trial that after his father told the officers that “they were just arguing,” he told the officers that was not the case and that his mother and father “were fighting.” Id. at 66.

[5] The officers then spoke with M.G.I. who was visibly injured. An officer photographed her injuries, which included a bloody finger, red marks on her neck that were consistent with being choked, and bruises on her right arm. They also photographed scratches on Tercero-Pacheco's abdomen, which they believed he sustained that night.

[6] The State charged Tercero-Pacheco with Level 3 felony rape, Level 6 felony criminal confinement, Level 6 felony strangulation, Level 6 felony domestic battery, and Class A misdemeanor battery resulting in bodily injury. The matter proceeded to a bench trial during which Tercero-Pacheco also testified, admitting to an argument with M.G.I. but denying the criminal allegations. At the conclusion of the trial, the court found Tercero-Pacheco guilty as charged. The trial court held a sentencing hearing, vacating Tercero-Pacheco's convictions for confinement, strangulation, and misdemeanor battery. The court then imposed a six-year aggregate executed sentence.

Discussion and Decision

[7] Tercero-Pacheco challenges his Level 3 felony rape conviction, contending that the trial court erred by failing to sustain an objection to an allegedly leading question and that the evidence is insufficient to support it. We disagree with both of Tercero-Pacheco's contentions.

I. Allegedly Leading Question

[8] M.G.I. testified at trial with the assistance of a Spanish language interpreter. She testified that Tercero-Pacheco broke her phone, slapped and choked her, and wanted to have sex with her by force. He forcefully removed her clothes. And she said she did not want to have sex with him. The following testimony leads us to the defense's challenge to the State's questioning.

Q: Okay. Did Juan have sex with you that day?

A: No.

Q: [M.G.I.], when he took your clothes off, did he put his penis inside of you?

Defense Counsel: Objection. Leading.

The Court: I'll allow it.

A: Yes, but not much because I pushed him right away and I got up from the bed.

Q: Okay. When you say not much, does that mean that his penis went in a little bit?

A: Yes.

Q: And did you want that to happen?

A: No.

Q: And where, where were you when that happened?

A: In my bedroom.

Q: Okay. Where at in your bedroom?

A: On the bed.

Q: How, you said you were on the bed. How was your body positioned?

A: On the edge of the bed with my feet down and just this part on the bed.

Q: When you say this part, you were kind of pointing, is that like the torso area?

A: Yes.

Q: And where was Juan's body positioned?

A: On top of me.

Q: And where were your arms and hands at?

A: Well, he was holding them. He was holding them like this.

Tr. Vol. II, pp. 81-82 (emphasis added). Later, on cross-examination, M.G.I. testified:

Q: And was he holding your arms down on the bed?

A: Yes.

Q: So, he wasn't holding your legs? Did you try to kick him then when he was holding your arms?

A: Yes.

Q: And still he was able to get his penis in you?

A: Yes, but it was not that much because then from his own volition, then he just pulled out.

Q: So, it was enough that you would say he pulled out or did he just, just the tip of it touch your vagina?

A: Just the tip.

Id. at 95.

[9] Tercero-Pacheco argues that the court abused its discretion by failing to sustain his objection to the allegedly leading question; namely “[M.G.I.], when he took your clothes off, did he put his penis inside of you?” Id. at 82. “The trial court is afforded wide discretion in allowing leading questions, and the court's decision will be reversed only for an abuse of discretion.” Stinson v. State, 126 N.E.3d 915, 923 (Ind. Ct. App. 2019). “An abuse of discretion occurs when the trial court's decision is clearly erroneous and against the logic and effect of the facts and circumstances before it or it misinterprets the law.” Stinson v. State, 126 N.E.3d 915, 922 (Ind. Ct. App. 2019).

[10] Tercero-Pacheco directs us to the fact that the challenged question was asked on direct examination, and by that point in her testimony, M.G.I. was reluctant to answer questions. He claims that he “was prejudiced because prior to [M.G.I.’s] answer to the leading question her testimony established that Tercero-Pacheco had not committed rape by sexual intercourse.” Appellant's Br. p. 9.

[11] We disagree with Tercero-Pacheco's representation of the record. Prior to the challenged question, the State asked M.G.I., “We talked about he broke your phone, slapping choking. What else happened?” Tr. Vol. II, p. 81. M.G.I. replied, “Well he wanted to have relations with me by force.” Id. She clarified that “relations” meant “sex,” that she did not want to have sex with him, and that he forcefully removed her clothes. Id.

[12] Indiana Rule of Evidence 611(c) provides in pertinent part that “Leading questions should not be used on direct examination except as necessary to develop the witness's testimony.” However, “ ‘[a] leading question is one that suggests the desired answer to the witness.’ ” Stinson, 126 N.E.3d at 923 (quoting Jones v. State, 982 N.E.2d 417, 430 (Ind. Ct. App. 2013), trans. denied). And if the question is not leading, then the trial court cannot have abused its discretion by allowing it to be asked and answered.

[13] Had the State asked M.G.I., “Tercero-Pacheco penetrated you with his penis, didn't he?”, the question clearly would be leading, because the answer is suggested by the wording of the question, though calling for a yes or no response. Here, however, the wording of the question “[M.G.I.], when he took your clothes off, did he put his penis inside of you?” did not suggest an answer, but called for a yes or no response. Id. at 82. Either Tercero-Pacheco's penis penetrated M.G.I. or it did not. And “[t]he mere mention of a subject to which a witness is desired to direct his or her attention is not considered to be a suggestion of an answer.” Williams v. State, 733 N.E.2d 919, 922 (Ind. 2000). We find that the question was not leading, and consequently, that the trial court did not abuse its discretion by allowing the question to be asked and answered.

[14] Furthermore, the very same testimony was elicited on cross-examination without objection. When asked if Tercero-Pacheco inserted his penis inside M.G.I., she testified, “Yes, but it was not that much because then from his own volition, then he just pulled out.” Tr. Vol. II, p. 95.

II. Sufficiency of the Evidence

[15] Tercero-Pacheco argues that the evidence is insufficient to support his rape conviction. He claims that M.G.I.’s cross-examination testimony that his “penis only touched her vagina” is insufficient to establish that penetration occurred. Appellant's Br. p. 9. We cannot agree with the premise of his argument.

[16] “In reviewing a challenge to the sufficiency of the evidence, we neither reweigh the evidence nor judge the credibility of witnesses.” Morales v. State, 227 N.E.3d 183, 188 (Ind. Ct. App. 2024), trans. denied. “[W]e respect a fact-finder's ‘exclusive province to weigh conflicting evidence.’ ” Phipps v. State, 90 N.E.3d 1190, 1195 (Ind. 2018) (quoting Joslyn v. State, 942 N.E.2d 809, 811 (Ind. 2011)). And “we consider only the probative evidence and reasonable inferences most favorable to the trial court's judgment.” Joseph v. State, 126 N.E.3d 810, 812 (Ind. Ct. App. 2019), trans. denied. “Reversal is appropriate only when no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Id.

[17] Indiana Code section 35-42-4-1(a) (2022) defines Level 3 felony rape in pertinent part as when a person “knowingly or intentionally has sexual intercourse with another person or knowingly or intentionally causes another person to perform or submit to other sexual conduct ․ when ․ the other person is compelled by force or imminent threat of force[.]” Indiana Code section 35-31.5-2-302 (2012) defines sexual intercourse as “an act that includes any penetration of the female sex organ by the male sex organ.” “[P]roof of the slightest degree of penetration is sufficient and the finder of fact may infer penetration from circumstantial evidence.” Thomas v. State, 471 N.E.2d 681, 682 (Ind. 1984). And “[t]he uncorroborated testimony of a rape victim is sufficient to support a conviction.” Parrish v. State, 516 N.E.2d 69, 70 (Ind. 1987).

[18] Here, M.G.I.’s testimony established beyond a reasonable doubt that Tercero-Pacheco penetrated her vagina with his penis. He held M.G.I. down on the bed after removing her clothes. When asked, M.G.I. testified that he put his penis inside her, “but not much because I pushed him right away and I got up from the bed.” Tr. Vol. II, p. 82. And on cross-examination, after being asked whether Tercero-Pacheco put his penis inside her, said, “Yes, but it was not that much because then from his own volition, then he just pulled out.” Id. at 95. She confirmed that “it went in a little bit[.]” Id. at 82.

[19] Tercero-Pacheco points us to M.G.I.’s testimony that just the tip of his penis touched her vagina. However, his argument is merely a request for us to reweigh the evidence, a task we will not undertake on appeal. See Morales, 227 N.E.3d at 188. M.G.I. testified that Tercero-Pacheco inserted “not much” of his penis inside her and “then he just pulled out.” Tr. Vol. II, p. 95. This evidence is enough to establish slight penetration at a minimum. And her testimony that “he just pulled out” leads to the logical conclusion that there must have been penetration. Id.; see Thompson v. State, 674 N.E.2d 1307, 1310 (Ind. 1996) (“We believe that logic dictates that if ‘it wouldn't go all the way in,’ the victim must be considered to have testified that at least some penetration had occurred.”).

[20] Furthermore, H.T. corroborated his mother's testimony that Tercero-Pacheco and M.G.I. were not arguing, but were fighting. And photographs taken by law enforcement officers showed red marks around M.G.I.’s neck, consistent with her claim that he choked her. Additionally, a photograph of Tercero-Pacheco's torso showed red marks on his torso, consistent with her claim that she pushed him away, and that they were doing more than having a verbal argument. After noting this evidence, which corroborated a significant portion of M.G.I.’s testimony, the trial court stated, “As to the rape, I think I, I'm going to find that [M.G.I.] was credible. I believe her testimony.” Tr. Vol. II, p. 114. Likewise, we conclude that there is sufficient evidence to support Tercero-Pacheco's conviction of Level 3 felony rape.

[21] Affirmed.

FOOTNOTES

1.   Tercero-Pacheco does not appeal his conviction for Level 6 felony domestic battery.

Crone, Senior Judge.

May, J., and DeBoer, J., concur.