Oscar Alejandro Rax Xi, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Oscar Alejandro Rax Xi (Rax Xi) appeals his convictions for Level 1 felony and Level 4 felony child molesting. Rax Xi raises one issue for our review, which we restate as: whether the trial court abused its discretion and deprived Rax Xi of due process when it denied Rax Xi's motion to dismiss the charges against him following the State's late disclosure of alleged exculpatory evidence. Finding the trial court did not abuse its discretion or deprive Rax Xi of due process, we affirm.

Facts and Procedural History

[2] In July 2022, eight-year-old M.R. lived in a house in Vanderburgh County with her twenty-eight-year-old father, Rax Xi. Rax Xi and M.R. shared a bedroom and slept in the same bed. The bedroom door had a lock on top such that the door could be locked from inside the bedroom. Two other adult men lived in the house, one of whom was named Jose Tiul.

[3] On numerous days and nights, between July 2022 and July 2023, Rax Xi “touched [M.R.’s] body everywhere.” Tr. Vol. II p. 203. Rax Xi put his finger and his penis in what M.R. described as her “front” and “back[.]” Id. at 204. This felt “bad” and hurt M.R. Id. M.R. told her father to stop, but he continued to abuse her. Rax Xi would tape his daughter's mouth so she could not scream. Tiul also sexually abused M.R.¹

[4] At some point, M.R. walked away from the house. Someone saw her walking and called the police. M.R. was placed in foster care, and she told her foster parents what her father had done to her.

[5] An investigation ensued, and Detective Zachary Oxford with the Evansville Police Department (EPD) scheduled a forensic interview for M.R. at Holly's House, which was described as “an advocacy center where victims ․ of intimate crime ․ have a safe place to discuss ․ alleged abuse and ․ receive ․ resources to help with their recovery.” Id. at 146. M.R. participated in the forensic interview, during which M.R. “m[ade] a disclosure” to the interviewer. Id. at 159.

[6] After the interview, the detective apprehended Rax Xi and arranged for him to be transported to the EPD headquarters. When police officers later searched Rax Xi's home, they found rolls of tape. On July 6, 2023, the State charged Rax Xi with one count of Level 1 felony child molesting and one count of Level 4 felony child molesting.² In April 2024, the trial court set Rax Xi's jury trial for July 22, 2024.

[7] On July 1, 2024, the State disclosed to defense counsel that it was issuing a subpoena for witness Diana Diaz, M.R.’s therapist. On July 16, the State filed a formal witness and exhibit list, stating that it intended to call Diaz as a witness at Rax Xi's trial. At a pretrial conference held on July 17, defense counsel moved to exclude Diaz based on the timing of the State's disclosure of Diaz as a witness. The trial court took the matter under advisement and denied the motion the following day.

[8] On July 19, the State and Rax Xi entered into a plea agreement, and Rax Xi attempted to plead guilty to the lesser offenses of neglect of a dependent and domestic battery on a person less than fourteen years old. The trial court rejected the plea agreement.

[9] On July 20, defense counsel filed a motion to present evidence under Indiana Evidence Rule 412(b).³ Counsel argued that if the State admitted evidence as to the general behavior of child sexual abuse victims, then counsel would seek to admit evidence of M.R.’s allegations that she had been molested by another person.⁴

[10] On July 22 and 23, Rax Xi's jury trial was held on the remaining Level 1 and Level 4 felony child molesting counts. On the morning of the first day of trial, and before jury selection, the trial court heard the parties’ arguments on defense counsel's Rule 412(b) motion. The trial court ordered the State to produce a summary of Diaz's testimony.

[11] After a jury was selected and empaneled, the State provided defense counsel with the summary of Diaz's testimony. Defense counsel renewed his motion to exclude Diaz as a witness, arguing Diaz's therapy notes “ha[d] not been disclosed[,]” and counsel “ha[d] not been provided the documentation necessary to develop a defense [and an] adequate cross[-]examination” of the therapist. Tr. Vol. II p. 123. The trial court ordered the State to produce Diaz and “all of her [therapy] notes” by the next morning, before the start of the second day of trial. Id. at 126. The parties then presented opening statements; the State presented three witnesses; and, thereafter, the trial was adjourned for the day.

[12] On the morning of the second day of trial, the State provided defense counsel with the therapy notes, consisting of seventy-four pages of notes from twenty-three therapy sessions. Defense counsel again renewed his motion to exclude Diaz as a witness, arguing he had not been afforded sufficient time to prepare for cross-examination. Defense counsel also moved to dismiss the charges against Rax Xi based on an alleged violation of Brady v. Maryland, 373 U.S. 83 (1963), for failure to disclose potentially exculpatory evidence. Counsel argued that M.R., in a therapy session held on July 3, disclosed that up to four people—Rax Xi, the two other men who lived in the home, and a stranger—had molested her.

[13] The trial court granted defense counsel's motion to exclude Diaz and the therapy notes, telling the parties, “[T]his is a ․ very serious issue” and the court “[could not] believe the State waited until this morning to disclose to the Defense the entire records of this witness.” Tr. Vol. II p. 170. The court took the motion to dismiss under advisement.

[14] Following a recess, the trial court denied the motion to dismiss for two reasons. The court found the July 3 therapy notes were not “necessarily” exculpatory because, during the therapy session, M.R. had also implicated Rax Xi as one of her molesters. Id. at 174. The court also found the State had not willfully or inadvertently failed to disclose the therapy notes.⁵

[15] The jury trial resumed, and M.R. testified that Rax Xi and Tiul had sexually abused her. On cross-examination, defense counsel attempted to impeach M.R. with her July 3 claim that four people had molested her. M.R. denied making the claim and affirmed that “[m]y dad and a different person in my dad's house” had abused her. Id. at 210. She told the jury, “Two persons, that's it.” Id. at 215.

[16] During Rax Xi's case-in-chief, defense counsel called EPD Detective Oxford as a witness. Defense counsel asked the detective when he first learned that M.R. had disclosed that four people had molested her. Detective Oxford testified he had been “made aware” of M.R.’s claim that morning, the second day of trial. Id. at 218. During closing argument, defense counsel used M.R.’s claim as a prior inconsistent statement to attack her credibility, telling the jury,

[R]oughly right at a year after [the sexual abuse occurred, M.R.] makes an allegation that four people had been raping and molesting her regularly. Detective Oxford learned about that this morning. Therapist learned about it on July 3rd. That is 362 days after this event․ But I'm going to ask you, what corroboration do you have? None․ [T]he only thing you have is an inconsistent statement.

Id. at 231.

[17] The jury found Rax Xi guilty on both felony child molesting counts. On August 14, 2024, the trial court sentenced him to concurrent sentences of fifty years for the Level 1 felony conviction and eleven years for the Level 4 felony conviction, for an aggregate term of fifty years to be served in the Indiana Department of Correction. Rax Xi now appeals.

Discussion and Decision

[18] Rax Xi contends the trial court abused its discretion and deprived him of due process when it denied his motion to dismiss the charges against him, following the State's late disclosure of alleged exculpatory evidence. Rax Xi argues the State's late disclosure of the therapist and her therapy notes violated Brady, 373 U.S. 83.

[19] The decision to deny a motion to dismiss is within the sound discretion of the trial court. Pimentel v. State, 181 N.E.3d 474, 479 (Ind. Ct. App. 2022), trans. denied. An abuse of discretion occurs when denial of the defendant's motion to dismiss is contrary to the facts and circumstances before the trial court. Ko v. State, 243 N.E.3d 1153, 1159 (Ind. Ct. App. 2024), trans. denied.

[20] Brady and its progeny apply to the State's failure to disclose favorable evidence that is material to the accused's guilt or punishment. See Williams v. State, 714 N.E.2d 644, 648-49 (Ind. 1999), cert. denied (2000). Under the United States Supreme Court's opinion in Brady, “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87.

[21] “Favorable evidence” includes both exculpatory evidence and impeachment evidence. See Prewitt v. State, 819 N.E.2d 393, 401 (Ind. Ct. App. 2004), trans. denied. Evidence is material under Brady “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985). “A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Id. Suppression of Brady evidence is constitutional error warranting a new trial. Turney v. State, 759 N.E.2d 671, 675 (Ind. Ct. App. 2001), trans. denied.

[22] To establish a Brady violation, a defendant must show (1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that the evidence was material to an issue at trial. Stephenson v. State, 864 N.E.2d 1022, 1056-1057 (Ind. 2007), reh'g denied, cert. denied (2008). The Indiana Supreme Court has observed, however, “If the favorable evidence becomes known to the defendant before or during the course of a trial, Brady is not implicated.” Williams, 714 N.E.2d at 649 (citing U.S. v. Agurs, 427 U.S. 97, 103 (1976)); see also Braswell v. State, 550 N.E.2d 1280, 1283 (Ind. 1990) (“[I]n the instant case, the discovery of the recorded statement occurred before the trial concluded. Thus appellant's reliance on Brady is misplaced.”).

[23] M.R.’s July 3 disclosure, which was not clearly favorable to Rax Xi, was revealed during, not after, trial.⁶ Brady applies to the discovery of favorable evidence after trial and does not apply here. Overstreet v. State, 783 N.E.2d 1140, 1154 (Ind. 2003) (citing Lowrimore v. State, 728 N.E.2d 860, 867 (Ind. 2000)), cert. denied. Absent a Brady violation, the late disclosure was at most a discovery violation. The trial court scolded the State for the late disclosure of the evidence and, ultimately, excluded the evidence. Still, the court allowed Rax Xi's counsel to question M.R. and Detective Oxford about the July 3 disclosure and reference the disclosure during closing argument as a prior inconsistent statement to attack M.R.’s credibility. Thus, the jury was able to weigh the disclosure's impeaching value in its verdict. See Lowrimore, 728 N.E. 2d at 867 (holding Brady did not apply where favorable evidence was disclosed during trial; Lowrimore had an opportunity to question the witness about it; and jury was able to weigh its impeaching value in its verdict). The trial court did not abuse its discretion or deprive Rax Xi of due process by denying his motion to dismiss.

[24] Additionally, Rax Xi posits that the late disclosure of evidence during trial can amount to the suppression of evidence in violation of Brady. In support of his argument, Rax Xi cites United States v. Allain, 671 F.2d 248, 255 (7th Cir. 1982); Zanders v. United States, 999 A.2d 149, 164 (D.C. 2010); Perez v. United States, 968 A.2d 39, 66 (D.C. 2009), cert. denied; Miller v. United States, 14 A.3d 1094, 1111 (D.C. 2011); Boyd v. United States, 908 A.2d 39, 57 (D.C. 2006); and United States v. Pollack, 534 F.2d 964, 973 (D.C. Cir. 1976), cert. denied.

[25] We decline Rax Xi's invitation to decide whether under certain circumstances the late disclosure of evidence during trial can be so egregious as to amount to the suppression of evidence in violation of Brady. Most of the cases Rax Xi cites in support of his position are distinguishable and, thus, unpersuasive. See Allain, 671 F.2d 248; Zanders, 999 A.2d 149; Perez, 968 A.2d 39; and Boyd, 908 A.2d 39. And, while we acknowledge the District of Columbia Court of Appeals has contemplated circumstances where the late disclosure of evidence occurred too late and amounted to the suppression of evidence in violation of Brady (see Miller, 14 A.3d 1094 and Pollack, 534 F.2d 964), we note the decisions are not binding upon us. See Ind. Dep't of Pub. Welfare v. Payne, 622 N.E.2d 461, 468 (Ind. 1993) (noting “lower federal court decisions may be persuasive but have non-binding authority on state courts.”).

[26] The judgment of the trial court is affirmed.

FOOTNOTES

1.   In a separate case, the State charged Jose Tiul with two counts of child molesting as Level 1 and Level 4 felonies.

2.   The State amended the charging information several times to add counts of Level 3 felony rape, Level 5 felony incest, Level 6 felony neglect of a dependent, Level 6 felony battery on a person less than fourteen years old, and a second count of Level 1 felony child molesting. The additional counts were later dismissed.

3.   Indiana Evidence Rule 412 provides that “evidence offered to prove that a victim or witness engaged in other sexual behavior” and “evidence offered to prove a victim's or witness's sexual predisposition” is inadmissible in criminal and civil proceedings involving alleged sexual misconduct. There are three exceptions, however, in criminal cases. Relevant to Rax Xi's case, Evidence Rule 412(b)(1) provides: “The court may admit ․ (B) evidence of specific instances of a victim's or witness's sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor[.]”

4.   Defense counsel noted in the Indiana Evidence Rule 412(b) motion that “defense [was] aware that at least one other person ha[d] been charged with molesting this victim.” Appellant's App. Vol. II p. 104.

5.   Defense counsel moved for a mistrial based on Rax Xi's Sixth Amendment right to effective counsel and defense counsel's belief that he could not effectively represent his client due to the late disclosure of the therapy notes. The trial court denied the motion. Rax Xi does not appeal that ruling.

6.   During the July 3 therapy session, M.R. disclosed that up to four people, including Rax Xi, had molested her.

Scheele, Judge.

Judges May and Weissmann concur. May, J., and Weissmann, J., concur.