CRUZ v. STATE (2025)

MEMORANDUM DECISION

[1] Daniel Cruz appeals his convictions for child molesting, battery, and invasion of privacy, arguing that the trial court committed fundamental error by allowing three witnesses to testify that Cruz regularly drank excessive amounts of alcohol. Because the admission of this testimony was both invited by Cruz and harmless, we find no reversible error and affirm Cruz's child molesting and battery convictions. Cruz, however, separately challenges the sufficiency of the evidence to prove he violated the no-contact order on which his invasion of privacy conviction was based. Finding the State indeed failed to prove that a violation occurred, we reverse Cruz's conviction for invasion of privacy.

Facts

[2] Cruz and his wife, Crystal, have three children together: Jonathan (born in 2007), B.C. (born in 2009), and D.C. (born in 2013). The family lived in an apartment in 2017 but soon moved into a house. Then, in 2021, the family began moving from place to place. This included staying with relatives, renting hotel rooms, and sleeping in their cars. Because of the family's housing instability, Cruz's sister, Maria, took temporary custody of the children in March 2023. Jonathan returned to live with his parents a week or two later, but he eventually moved away to attend college. B.C. and D.C., however, remained in Maria's care.

[3] In April 2023, B.C. disclosed to Maria that Cruz had sexually abused B.C. The abuse began at the family's apartment when B.C. was 8 years old. One day, while Cruz and B.C. were alone in Cruz and Crystal's bedroom, Cruz partially inserted his penis into B.C.’s vagina before B.C. pulled away and left the room. On another occasion, when B.C. was 11 years old and the family was living in a hotel room, Cruz kissed B.C. on the lips and tried to force his tongue into her mouth. That same year, Cruz put his hand down B.C.’s pants and fondled her buttocks. And a year or so later, Cruz again kissed B.C. on the lips and tried to force his tongue into her mouth.

[4] Cruz also subjected B.C. to physical abuse. Once, after B.C. was caught stealing food from a gas station, Cruz punched her in the face, splitting her lip. On another occasion, after B.C. jumped on D.C.’s back and made him cry, Cruz whipped B.C. with a rope. And while the family was living in a hotel room, Cruz once swung a skateboard “like a bat” at B.C. because she and D.C. were playing and awoke Cruz with their laughter. Tr. Vol. II, p. 166. The skateboard struck B.C. in the ankle and hurt “a lot.” Id.

[5] After learning of Cruz's alleged abuse of B.C., Maria contacted the Indiana Department of Child Services. The State eventually charged Cruz with three counts of child molesting—a Level 1 felony and two Level 4 felonies—as well as one count of Level 5 felony battery resulting in bodily injury. On the State's motion, the trial court also issued a no-contact order prohibiting Cruz from contacting Crystal and Jonathan, among others. Cruz, however, made telephone calls to both individuals while in jail pending trial and spoke with Jonathan more than a dozen times. The State therefore amended its charging information to add two counts of Class A misdemeanor invasion of privacy—one as to Cruz's contacts with Crystal and another as to his contacts with Jonathan.

[6] At trial, B.C. testified about Cruz's sexual and physical abuse. Maria testified about B.C.’s disclosures, and Jonathan testified about his jailhouse telephone calls with Cruz. All three witnesses also testified that Cruz regularly drank excessive amounts of alcohol. Cruz's defense counsel later used the testimony about Cruz's excessive alcohol consumption to argue in closing statements that B.C. fabricated the abuse allegations to avoid returning to live with him and Crystal. According to defense counsel, B.C. preferred to live with Maria, in part, because there was “no drinking.” Tr. Vol. III, p. 35.

[7] The jury found Cruz guilty of all three child molesting charges, the battery charge, and the invasion of privacy charge as to Jonathan. The jury could not reach a verdict on the invasion of privacy charge as to Crystal, which the trial court ultimately dismissed on the State's motion. The court later entered judgments of conviction and sentenced Cruz to an aggregate sentence of 40 years: (1) 32 years for Level 1 felony child molesting; (2) 5 years consecutive for Level 4 felony child molesting; (3) 5 years concurrent for Level 4 felony child molesting; (4) 3 years consecutive for Level 5 felony battery; and (5) 1 year concurrent for Class A misdemeanor invasion of privacy.

Discussion and Decision

[8] Cruz appeals his convictions, arguing that the trial court erred by allowing Maria, B.C., and Jonathan to testify that Cruz regularly drank excessive amounts of alcohol. He also specifically challenges the sufficiency of the evidence to support his invasion of privacy conviction. We affirm Cruz's child molesting and battery convictions but reverse his conviction for invasion of privacy.

I. The Trial Court's Admission of the Alcohol Testimony Did Not Constitute Fundamental Error

[9] Cruz argues that Maria's, B.C.’s, and Jonathan's testimony about his excessive alcohol consumption was inadmissible under Indiana Evidence Rule 404(b). That Rule provides, in pertinent part, that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” Ind. Evidence Rule 404(b)(1). Rule 404(b), however, “does not totally proscribe other-bad-acts evidence—only its use as character evidence.” Fairbanks v. State, 119 N.E.3d 564, 568 (Ind. 2019) “[T]he Rule plainly states that other-bad-acts evidence may be admissible for other purposes, and it provides an illustrative list—to show ‘motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.’ ” Id. (quoting Evid. R. 404(b)(2)).

[10] “[W]hen the State claims that other-bad-acts evidence is admissible for a proper purpose, the trial court is tasked with deciding whether that evidence ‘is relevant to a matter at issue other than the defendant's propensity to commit the charged act.’ ” Id. (quoting Hicks v. State, 690 N.E.2d 215, 219 (Ind. 1997)). “If the evidence passes that relevance test, it has to clear a second hurdle: Indiana Evidence Rule 403’s balancing test.” Id. Rule 403 authorizes the trial court to “exclude relevant evidence if its probative value is substantially outweighed by a danger of ․ unfair prejudice[.]” Evid. R. 403.

[11] We generally review a trial court's evidentiary rulings for abuse of discretion. Fairbanks, 119 N.E.3d at 567. But at trial, Cruz did not object when Maria, B.C., and Jonathan testified about his excessive alcohol consumption. Therefore, Cruz must establish that the admission of their testimony was fundamental error. See Treadway v. State, 924 N.E.2d 621, 633 (Ind. 2010) (“Failure to object at trial waives the issue for review unless fundamental error occurred.”). “Fundamental error is an extremely narrow exception to the waiver rule where the defendant faces the heavy burden of showing that the alleged errors are so prejudicial to the defendant's rights as to make a fair trial impossible.” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014) (internal quotation marks omitted).

[12] Cruz claims that allowing Maria, B.C., and Jonathan to testify about his excessive alcohol consumption constituted fundamental error because “[t]he only purpose this evidence served was to make Cruz look like a bad person and an irresponsible parent.” Appellant's Br., p. 14. Cruz, however, invited the alleged error as to Maria's testimony, and the alleged error as to B.C.’s and Jonathan's testimony was harmless. His fundamental error claim therefore fails.

A. Maria's Testimony

[13] Maria testified about Cruz's excessive alcohol consumption on two occasions: first, during her cross-examination by Cruz's defense counsel; then again, during her redirect examination by the State. We consider each occasion separately.

1. Cross-Examination

[14] Testimony about Cruz's excessive alcohol consumption first arose during his defense counsel's cross-examination of Maria. When defense counsel asked Maria whether she and Cruz had a close relationship, Maria explained that they did not because Cruz “drinks a lot.” Tr. Vol. II, p. 140. Defense counsel did not move to strike this testimony or seek an admonishment from the court. Instead, he questioned Maria further on the topic. Maria elaborated: “[E]very time we try to get a family reunion, he will be drunk and starting a fight or whatever.” Id. She also denied that anyone in her home “drink[s] excessively.” Id.

[15] Assuming this testimony was inadmissible under Evidence Rules 404(b) or 403, Cruz invited its erroneous admission into evidence when his defense counsel elicited it from Maria during cross-examination. See Robey v. State, 7 N.E.3d 371, 381 (Ind. Ct. App. 2014) (holding defendant invited error in admission of testimony where defense counsel elicited testimony during cross-examination); Cole v. State, 970 N.E.2d 779, 783 (Ind. Ct. App. 2012) (same). “The invited-error doctrine generally precludes a party from obtaining appellate relief for his own errors, even if those errors were fundamental.” Miller v. State, 188 N.E.3d 871, 874-75 (Ind. 2022). Therefore, the admission of Maria's cross-examination testimony did not constitute fundamental error.

2. Redirect Examination

[16] When Maria blamed Cruz's alcohol consumption for their distant relationship during cross-examination, defense counsel suggested that the real reason Maria and Cruz were not close was because Maria did not get along with Crystal. The State later attempted to rebut this suggestion during its redirect examination of Maria. When the State asked Maria why she did not get along with Crystal, Maria explained it was because of her and Cruz's “drinking problems.” Tr. Vol. II, p. 142. The State then asked: “So you disagreed with Crystal about her and [Cruz's] drinking around the children and that's why you didn't get along; is that correct?” Id. Maria answered affirmatively.

[17] The admission of this testimony did not constitute error, let alone fundamental error, because Cruz opened the door to it during his cross-examination of Maria. “[O]therwise inadmissible evidence may become admissible where the defendant ‘opens the door’ to questioning on that evidence.” Jackson v. State, 728 N.E.2d 147, 152 (Ind. 2000). “The door may be opened when the trier of fact has been left with a false or misleading impression of the facts.” Clark v. State, 915 N.E.2d 126, 130 (Ind. 2009). Because Cruz's defense counsel had called into doubt Maria's testimony that Cruz's drinking was the reason for their distant relationship, the State could question Maria on the topic during its redirect examination. Maria's responsive testimony was therefore admissible.

B. B.C.’s and Jonathan's Testimony

[18] Both B.C. and Jonathan testified about Cruz's excessive alcohol consumption during their direct examination by the State. Specifically, B.C. testified that Cruz drank “a lot” of alcohol “every day.” Tr. Vol. II, p. 162. She also explained that Cruz sometimes drank an entire bottle of vodka in a day. Jonathan likewise testified that Cruz drank “a lot” of alcohol “every day.” Id. at 200. But he explained that Cruz drank a case of beer daily.

[19] Assuming this testimony was inadmissible under Evidence Rules 404(b) and 403, its erroneous admission into evidence did not constitute fundamental error because it was cumulative of Maria's testimony. “In general, the admission of evidence that is merely cumulative of other evidence amounts to harmless error as such admission does not affect a party's substantial rights.” Richardson v. State, 189 N.E.3d 629, 636 (Ind. Ct. App. 2022) (citation omitted). “[H]armless error cannot be considered fundamental.” Christopher v. State, 248 N.E.3d 1243, 1246 (Ind. Ct. App. 2024).

[20] “Evidence is cumulative if it supports a fact established by existing evidence and is of the same kind or character as the previously admitted evidence.” Richardson, 189 N.E.3d at 636. When B.C. and Jonathan testified, the fact that Cruz regularly drank excessive amounts of alcohol had already been established by Maria's testimony. The alleged error in the admission of B.C.’s and Jonathan's testimony was therefore harmless and not fundamental. Christopher, 248 N.E.3d at 1246.

II. The State Presented Insufficient Evidence to Support Cruz's Invasion of Privacy Conviction

[21] Cruz next argues that the State presented insufficient evidence to support his conviction for invasion of privacy. When reviewing the sufficiency of evidence to support a criminal conviction, we neither reweigh evidence nor judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). We consider only the evidence supporting the judgment and any reasonable inferences that can be drawn from such evidence. Id. We will affirm if there is substantial evidence of probative value such that a reasonable trier of fact could have concluded the defendant was guilty beyond a reasonable doubt. Id.

[22] To convict Cruz of Class A misdemeanor invasion of privacy, as charged, the State had to prove that he knowingly or intentionally violated the trial court's no-contact order. See Ind. Code § 35-46-1-15.1(a)(11). That order stated, in pertinent part,

[A]s a condition of the Defendant's release from custody pending trial[,] ․ the Defendant is ordered to have no contact with ․ Jonathan ․, in person, by telephone or letter, through an intermediary, or in any other way, directly or indirectly, except through an attorney of record, while released from custody pending trial.

Exhs. Vol. I, p. 11 (all caps and bolding omitted, italics added).

[23] Here, the evidence showed that Cruz had at least a dozen jailhouse telephone contacts with Jonathan after the trial court issued its no-contact order. But Cruz was not “released from custody” when any of those contacts occurred. Id. Therefore, the contacts did not violate the express terms of the order.

[24] The State claims otherwise, highlighting that the order was entitled, “No Contact Order While in Jail Upon Release From Custody on Bail or Personal Recognizance.” Id. (all caps omitted, italics added). But the substance of the order, not its caption, is controlling. See Hunter v. State, 60 N.E.3d 284, 288 (Ind. Ct. App. 2016) (ruling document entitled “Recommendation of Plea” was, in substance, a plea agreement).

[25] The State also emphasizes that Indiana Code § 35-33-8-3.2(a)(4) permits a trial court to impose a no-contact order while “the defendant has not been released from lawful detention.” But the no-contact order imposed upon Cruz expressly applied only “while released from custody.” Exhs. Vol. I, p. 11. It was also identical to the proposed order filed by the State, indicating that the State effectively drafted the language of which it now complains.

[26] The State further points to evidence that Cruz understood he was not permitted to contact Jonathan while in jail, even though the language of the no-contact order did not expressly prohibit it. The State, however, does not explain how such a misunderstanding could result in a violation of a condition that did not exist.

[27] Finally, the State claims Cruz's defense counsel made a judicial admission during closing argument that Cruz committed invasion of privacy as to Jonathan. “An attorney's remarks during opening statement or closing argument may constitute judicial admissions that are binding on the client.” Tanksley v. State, 144 N.E.3d 824, 826 (Ind. Ct. App. 2020). “To qualify as a judicial admission, an attorney's remarks must be a ‘clear and unequivocal admission of fact.’ ” Id. (quoting Parker v. State, 676 N.E.2d 1083, 1086 (Ind. Ct. App. 1997)). “Stated differently, the attorney's remarks ‘must be an intentional act of waiver[,] not merely assertion or concession made for some independent purpose.’ ” Id. (quoting Collins v. State, 366 N.E.2d 229, 232 (1977)).

[28] Here, Cruz's defense counsel remarked during closing argument:

So I'm gonna make this easier for you. Of the six counts that Mr. Cruz has been charged with, I'm not gonna argue anything about counts for the battery ․ I'm not gonna argue that one. Jonathan testified to it, [B].C. testified to it, gonna let that one go. As far as the phone call with Jonathan, Jonathan testified to it and you heard it. I'm not gonna argue that one. So let's start with what we will argue.

Tr. Vol. III, p. 33. Defense counsel went on to argue that the State failed to meet its burden of proving Cruz guilty of the three child molesting charges and the invasion of privacy charge as to Crystal.

[29] Contrary to the State's assertion, defense counsel's remarks were, at most, a clear and unequivocal admission that Cruz made the alleged jailhouse telephone calls to Jonathan. They are not a judicial admission that the trial court's no-contact order prohibited Cruz from contacting Jonathan while in jail. Accordingly, we find the evidence insufficient to support Cruz's conviction for invasion of privacy as to Jonathan.

Conclusion

[30] For these reasons, we affirm Cruz's three child molesting convictions (a Level 1 felony and two Level 4 felonies). We also affirm his conviction for Level 5 felony battery causing bodily injury. But we reverse his conviction for Class A misdemeanor invasion of privacy and remand for the trial court to enter judgment and conduct any subsequent proceedings in accordance with this opinion.

Weissmann, Judge.

Bradford, J., and DeBoer, J., concur.