MALAGON v. STATE (2025)

MEMORANDUM DECISION

[1] J. Felix Malagon appeals his conviction for child molesting as a level 1 felony.¹ He contends that the State presented insufficient evidence to support his conviction. We affirm.

Facts and Procedural History

[2] The evidence most favorable to the jury's verdict indicates that in 2020, ten-year-old B.M. lived with her mother Linda and B.M.’s sisters in a home located about a block and a half away from Malagon's residence in Ligonier, Indiana. Malagon owned multiple dogs, and B.M. and her sisters would often visit Malagon's property, including the RV that he lived in, to see the dogs. Malagon, who was seventy-eight years old, did not speak English well, but he would often tell Linda that she “had pretty girls” and specifically referred to B.M. as his “angel.” Transcript Volume III at 102. Malagon would “rub [B.M.’s] back” in front of Linda, and at the time she did not “think anything of it” because he was like “a grandpa figure.” Id. at 103.

[3] Linda was aware that B.M. would go over to Malagon's home by herself to supposedly do “chores,” like help “clean up dog poop in the yard” or “clean his car out,” and that B.M. would return home with twenty dollars. Id. at 101, 103. However, on multiple occasions when B.M. was alone with Malagon, he brought her into his RV, removed her pants, put his penis in her vagina, licked her vagina, put his fingers in her anus and vagina, and inserted a skin colored sex toy into her anus and vagina. He would then give her a twenty-dollar bill and tell her not to tell anyone before smacking her on her bottom as she would leave the RV. In addition to referring to B.M. as his angel, Malagon would call her “Baby Girl” instead of using her name. State's Exhibit 1A at 42:16-22.

[4] On September 24, 2020, Linda took B.M. to the doctor after the school called the day prior to report that B.M. was urinating frequently. B.M. had an extreme fear reaction when the doctor, an older male, entered the room. This was odd to Linda because B.M. had seen male doctors on prior occasions and had never had such an extreme reaction. The doctor diagnosed B.M. with a urinary tract infection. While at the appointment, and after the doctor had exited the room, B.M began “bawling” and disclosed to Linda that Malagon had sexually abused her. Transcript Volume III at 105. Linda drove straight to the police station.

[5] On September 30, 2020, Department of Child Services family case manager and certified forensic interviewer Tabitha Frentz (“FCM Frentz”) conducted a forensic interview of B.M. at the Ligonier police station. During the interview, B.M. recounted multiple acts of molestation by Malagon. Regarding sexual intercourse specifically, B.M. stated that Malagon “put his boy part in me.” State's Exhibit 1A at 27:42. FCM Frentz clarified whether B.M. was referring to Malagon putting his “boy part” in her “girl part” and B.M. responded, “Mmm, hmm.” Id. at 28:34.² Twice more during the interview, B.M. confirmed that Malagon “put his boy part in [her] girl part.” Id. at 39:42, 42:54. B.M. stated that Malagon putting his boy part in her girl part made her girl part feel “nasty.” Id. at 42:57.

[6] On August 16, 2021, the State charged Malagon with three counts of child molesting as level 1 felonies, and one count of child molesting as a level 4 felony. On December 16, 2022, the State filed a Motion to Introduce Child Hearsay and to Set a Child Hearsay hearing.

[7] The court held a Child Hearsay hearing on May 13, 2024. The court determined that the State could introduce the video of B.M.’s forensic interview at trial, and that B.M. was unavailable to testify. Accordingly, the court ruled that B.M. could be cross-examined by defense counsel during the Child Hearsay hearing. B.M. appeared and testified via Zoom. B.M. indicated that talking or thinking about what happened to her with Malagon four years prior caused her “flashbacks and anxiety.” Transcript Volume II at 151. B.M. answered several questions from defense counsel with “I don't remember.” Id. at 160. B.M. recounted that Malagon touched her inappropriately on at least fifteen occasions and that she saw his penis on at least five occasions. She confirmed that she remembered that he put both his fingers and a rubber sex toy inside her vagina on multiple occasions. When defense counsel asked B.M. specifically whether Malagon ever put his penis inside her vagina, B.M. responded, “I don't know if it was inside.” Id. at 163. When asked what part of her vagina Malagon's penis touched, B.M. responded, “Like the outside of it.” Id.

[8] A jury trial began on June 10, 2024. The State presented numerous witnesses including Linda, one of B.M.’s sisters, FCM Frentz, multiple law enforcement officers, and a mental health therapist. A redacted version of B.M.’s forensic interview was admitted without objection and played for the jury. The audio of B.M.’s cross-examination from the Child Hearsay hearing was also played for the jury. Malagon presented the testimony of two of the State's witnesses and of Gregory Baker, the interpreter during his police interview. The jury found Malagon guilty as charged. The court sentenced him to an aggregate 162-year sentence.

Discussion

[9] Malagon challenges the sufficiency of the evidence to sustain one of his level 1 felony child molesting convictions. Specifically, he challenges his conviction under Count I, which alleged that between June 1, 2020, and September 11, 2020, he, then seventy-eight years old, knowingly performed or submitted to sexual intercourse with then ten-year-old B.M.

[10] When reviewing claims of insufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995), reh'g denied. We look to the evidence and the reasonable inferences therefrom that support the verdict. Id. The conviction will be affirmed if there exists evidence of probative value from which a reasonable jury could find the defendant guilty beyond a reasonable doubt. Id.

[11] Ind. Code § 35-42-4-3(a)(1) provides:

A person, who with a child under fourteen (14) years of age, knowingly or intentionally performs or submits to sexual intercourse ․ commits child molesting, a Level 3 felony. However the offense is a Level 1 felony if it is committed by a person at least twenty-one (21) years of age[.]

“Sexual Intercourse” is defined as “an act that includes any penetration of the female sex organ by the male sex organ.” Ind. Code § 35-31.5-2-302.

[12] Malagon concedes, “Precedent makes clear that proof of the ‘slightest penetration’ of the female sex organ, including penetration of the external genitalia, is sufficient to sustain a conviction for child molestation based on sexual intercourse.” Appellant's Brief at 11 (quoting Boggs v. State, 104 N.E.3d 1287, 1288 (Ind. 2018)). During her forensic interview, which was admitted without objection at trial, B.M. stated that Malagon “put his boy part in me.” State's Exhibit 1A at 27:42. FCM Frentz clarified whether B.M. was referring to Malagon putting his “boy part” in her “girl part,” and B.M. responded, “Mmm, hmm.” Id. at 28:34. Twice more during the interview, B.M. confirmed that Malagon “put his boy part in [her] girl part.” Id. at 39:42, 42:56. FCM Frentz testified that B.M.’s word for penis was “boy part” and that her word for vagina was “girl part” or “private.” Transcript Volume III at 201.

[13] Despite this evidence supporting the jury's finding of penetration, Malagon suggests that B.M. “recanted” her forensic interview statements while being cross-examined at the Child Hearsay hearing when defense counsel asked her whether Malagon ever put his penis inside her vagina and she responded, “I don't know if it was inside,” Transcript Volume II at 163, and when asked what part of her vagina Malagon's penis touched, she responded, “Like the outside of it.” Id. He argues that “where, as here, a victim recants, a conviction may not rest on a repudiated out-of-court statement unless there is substantial independent evidence of probative value from which a jury could find that the repudiated statement is credible.” Appellant's Brief at 11 (quoting Chambless v. State, 119 N.E.3d 182, 193 (Ind. Ct. App. 2019)).

[14] We disagree with Malagon's characterization of these statements as recantations. As noted by the State, “[m]any people are unable to articulate those parts that are considered to be in the inside of the vagina, especially young children with their limited knowledge and understanding of genitalia.” Appellee's Brief at 8-9; see Spurlock v. State, 675 N.E.2d 312, 315 (Ind. 1996) (stating that “a detailed anatomical description of penetration is unnecessary and undesirable” in part because “many people are not able to articulate the precise anatomical features that were or were not penetrated”). B.M.’s hearing statements, made four years after the molestations, that she didn't “know” if Malagon's penis was “inside” her, and that his penis touched the “outside” of her vagina, are not recantations of her prior forensic interview statements. B.M. was never asked during the Child Hearsay hearing about her prior forensic interview statements, and she never articulated an intent to recant those prior statements.

[15] To the extent B.M.’s statements can be viewed as inconsistent, it was the jury's prerogative to weigh the entirety of the evidence presented. “When there are conflicts in the evidence, the jury must resolve them.” Sorgdrager v. State, 208 N.E.3d 646, 650 (Ind. Ct. App. 2023) (quoting Young v. State, 198 N.E.3d 1172, 1176 (Ind. 2022)), trans. denied; see Lott v. State, 690 N.E.2d 204, 208 (Ind. 1997) (noting that “while a sponsoring party may well attempt to rehabilitate a witness by offering explanations for apparent conflicts” no “explanation is required” and “assessing such conflicts or the lack of explanations for them is a matter assigned to the judgment of juries”). B.M.’s forensic interview statements are sufficient to support the jury's finding of penetration.

[16] Based on the record before us, there exists evidence of probative value from which a reasonable jury could find Malagon guilty beyond a reasonable doubt of child molesting based upon sexual intercourse. For the foregoing reasons, we affirm.

[17] Affirmed.

FOOTNOTES

1.   The jury convicted Malagon of three counts of child molesting as level 1 felonies and one count of child molesting as a level 4 felony. Malagon challenges only the level 1 felony conviction charged as Count I.

2.   FCM Frentz testified at trial and indicated that, by using appropriate anatomical diagrams during the interview, she established that B.M.’s word for penis was “boy part” and that her word for vagina was “girl part” or “private.” Transcript Volume III at 201.

Brown, Judge.

Altice, C.J., and Tavitas, J., concur.