Juan Ramon Gabarrete-Martinez, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

[1] Juan Ramon Gabarrete-Martinez appeals his conviction of Level 1 felony child molesting ¹ and the thirty-five-year sentence imposed therefor. He raises three issues on appeal, which we reorder and restate as:

1. Whether the trial court abused its discretion by admitting portions of a forensic interview of the child witness;

2. Whether the State presented sufficient evidence to support his conviction; and

3. Whether the trial court abused its discretion when imposing his sentence.

We affirm.

Facts and Procedural History

[2] In April 2024, Bart Kierstens owned a property management company that constructed, leased, and maintained real estate. He had also owned rural property in Pike County with a cabin, shooting range, lake, and other outdoor recreational opportunities. Occasionally Kierstens would ask employees of his property management business if they wanted to bring their families to enjoy the rural property for the weekend in exchange for the employees working a few hours on Saturday helping with upkeep on the property. For the weekend that began Friday, April 19, 2024, Kierstens asked two of his employees – Gabarrete-Martinez and Augustine Ruiz – if they wanted to bring their families to stay at the property, and both families agreed to do so.

[3] Gabarrete-Martinez arrived on Friday evening with his family, which included his wife Parra, his teenage son D.A., and a toddler. Ruiz also arrived on Friday evening with his family, which included his wife Grecia, his nine-year old daughter S.R., and a toddler. Kierstens and his fiancé arrived early Saturday morning with mowing equipment and plants for the garden, and they, along with Gabarrete-Martinez and Ruiz, spent some hours working around the property.

[4] At some point during the weekend, S.R. was in the shooting area watching her father and Gabarrete-Martinez shoot guns. S.R. decided to go alone to the area for throwing knives, which is a walled-off section of the garage between the shooting range and a storage area, while the two men continued shooting. As S.R. was throwing knives, Gabarrete-Martinez “suddenly appeared” behind her. (Tr. Vol. 1 at 100.) He held S.R. from behind with one hand to keep her from moving away, and he put his other hand inside her leggings and underwear, put his finger in her vagina, and asked her if she liked it. S.R. “felt really uncomfortable” and was being hurt by the pressure of Gabarrete-Martinez's finger in her vagina. (Id. at 112.) As soon as Gabarrete-Martinez stopped touching her, she ran to her mother, but she did not report what happened.

[5] On Saturday evening, when most members of the two families were outside roasting marshmallows at a bonfire, S.R. went inside to the bedroom to get a jacket. S.R.’s mother, Grecia, noticed Gabarrete-Martinez followed S.R. into the house, but Grecia remained outside by the bonfire. Gabarrete-Martinez entered the bedroom and told S.R. “to give him a hug.” (Id. at 113.) S.R. refused and tried to run away from the bedroom, but Gabarrete-Martinez caught up to her in the hallway between the bedroom and kitchen, and he grabbed her from behind. Just as Gabarrete-Martinez was able to get ahold of S.R. with both hands, his wife Parra walked into the kitchen and saw that Gabarrete-Martinez was holding S.R., which caused Gabarrete-Martinez to let go of S.R. As soon as he released her, S.R. ran to her mother and told her what happened in the knife throwing area of the garage. Grecia insisted her family leave for home that night, and on the way home, she told her husband what Gabarrete-Martinez had done to S.R.

[6] One week later, Grecia reported that S.R. had been touched inappropriately by Gabarrete-Martinez, and authorities began to investigate. S.R. took part in a forensic interview at a Child Advocacy Center on May 16, 2024. On May 17, 2024, the State charged Gabarrete-Martinez with Level 1 felony child molesting and Level 4 felony child molesting.² Following trial in March 2025, a jury found Gabarrete-Martinez guilty of both crimes. The trial court entered a conviction of only the Level 1 felony because the Level 4 felony was a lesser-included offense.

[7] After a sentencing hearing, the trial court found an aggravator in “[t]he harm, injury, loss, or damage suffered by the victim of the offense was significant and greater than the elements necessary to prove the commission of the offense.” (App. Vol. 3 at 65.) The trial court found a mitigator in the hardship on Gabarrete-Martinez's dependents that would be caused by his imprisonment. The trial court found the aggravator outweighed the mitigator and imposed a thirty-five-year sentence.

Discussion and Decision

1. Admission of evidence

[8] Gabarrete-Martinez challenges the admission of part of the forensic interview of S.R. We review a trial court's evidentiary ruling for an abuse of discretion, which “occurs when the ruling is clearly against the logic and effect of the facts and circumstances.” Snow v. State, 77 N.E.3d 173, 176 (Ind. 2017). As we review the trial court's decision, we consider the totality of circumstances and take “conflicting evidence in the light most favorable to the trial court's ruling.” Id. The reason we provide trial court judges so much discretion to decide the admission and exclusion of evidence is because they are much more practiced at determining questions of relevance and the impact of evidence on “the rhythms of a trial.” Id. at 177 (quoting U.S. v. Hall, 858 F.3d 254, 289 (4th Cir. 2017) (Wilkinson, J., dissenting)).

[9] The portions of S.R.’s forensic interview at issue were played for the jury during the State's redirect examination of S.R. The trial court ruled “the video can be played from rehabilitated [sic] purposes under 801” because it was a prior consistent statement. (Tr. Vol. 1 at 150.) Evidence Rule 801(d)(1)(B) provides an out of court statement is not hearsay, and thus admissible into evidence, if

[t]he declarant testifies and is subject to cross-examination about a prior statement, and the statement ․ is consistent with the declarant's testimony, and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying[.]

[10] To determine whether the trial court abused its discretion, we turn to reviewing how the issue unfolded at trial. At the beginning of defense counsel's cross-examination of S.R., defense counsel asked S.R. if she remembered giving “a deposition a couple of weeks ago[.]” (Tr. Vol. 1 at 132.) Defense counsel then began contrasting S.R.’s trial testimony and her deposition testimony. Then the following interactions occurred:

[Defense]: Now, before the deposition, when you were questioned a couple of weeks ago, I know that you had met with [State] to get ready for it.

[S.R.]: Yeah.

[Defense]: And I'm not asking about that, okay? But I'd asked you if there was any time other than you're talking to [State] when someone had told you what words to say or what words to use․

THE STATE: Your Honor, I know [Defense] doesn't mean anything by it, but I've never told her what words to use or say, interpreted other than when I was talking with him.

THE DEFENSE: I was not insinuating that, Judge. I just didn't want to get into his deposition prep.

THE STATE: Okay, I understand that.

THE DEFENSE: He would have, would have done what we all lawyers do, you know, make sure you keep answers short, make sure answer their questions and all that stuff. I'm not, I'm not saying he told her what to say, but I want to make sure [S.R.] is not confused.

THE JUDGE: If there comes an objection, let the Court know.

THE STATE: I just want it clear I've never told this child what to say, in any way, shape or form whatsoever.

THE DEFENSE: I'm not insinuating that. I know he wouldn't do that.

THE JUDGE: Just so everyone is aware, uh, [Defense] you can proceed.

THE DEFENSE: Okay.

[Defense]: Has anyone told you what words to say at the deposition?

[S.R.]: Yes.

[Defense]: Who?

[S.R.]: Um, so, uh, [State] once told me․

[Defense]: You said [State]?

THE STATE: I want her to explain it though, because I think I know what she's going to say.

THE DEFENSE: I don't want to get into your․

THE STATE: No, I understand. I want the jury to know.

THE DEFENSE: Okay, that's fine go ahead.

THE STATE: Kiddo, go ahead and answer.

[S.R.]: So like if, you don't know a question, um, instead of lying, well, um, that's bad, um, just say you don't know because, um, because also gets, um some trouble if you lie.

[Defense]: And that is perfectly acceptable for him to tell you that. Um, but other than [State] telling you thin[g]s like that, has anyone else told you what to say at the depositions or here today?

[S.R.]: I think my mom has told me to not lie, also, because she will always figure it out and I would get into trouble.

[Defense]: Okay. And I'm sorry for jumping around like this, that's just unfortunately the way it went out in the deposition. Um, when you were in the throwing area, when, when you say Juan grabbed you, um, did he, did he bite you on the back of the neck?

[S.R.]: I can't really remember that.

[Defense]: Okay, do you know if your mom, if you told your mom that he bit you on the back of the neck?

[S.R.]: No, I'm not sure.

(Tr. Vol. 1 at 139-41) (bold emphases added) (other formatting in original). Defense counsel then set up the forensic video and prepared to play portions of that video to contrast with S.R.’s trial testimony. Outside the presence of the jury, the State argued defense counsel was playing portions of the video out of context, which could mislead the jury about the extent to which S.R.’s statements in the forensic interview were different from her trial testimony. The State argued it should be able to play other portions of the video on rebuttal to rehabilitate S.R.’s testimony by demonstrating that the answers were not as different as defense counsel was suggesting. In support, the State cited Evidence Rule 801 and argued:

When an inference is raised, okay, that a child is in some way confused on cross or, or fabricating a statement, prior consistency [sic] statements come into play․ It happened by suggestion that the child has been recently influence[d]. [Defense counsel] asked a series of questions about who's been talking to you about this case. Although I think the child did a magnificent job of answering those questions but the influence [sic] was raise[d] that somebody has been telling this child what to say. In that respect, the rule is under 801, prior consistent statement offer[ed] to rebut motive, a recent motive to fabricate.

(Id. at 146-7.) The trial court viewed the video portions at issue, took a recess to consider caselaw regarding Evidence Rule 801, and then ruled the State could present the prior consistent statements.

[11] On appeal, Gabarrete-Martinez argues Evidence Rule 801(d)(1)(b) did not apply because his “defense in this case has been that S.R.’s claim was made up from the beginning, and therefore could not have been a recent fabrication.” (Appellant's Br. at 27) (bold emphasis in original). He also asserts “the Defense did not expressly or impliedly charge that S.R. recently fabricated her story, making Rule 801(d)(1)(B) inapplicable and the trial court's ruling erroneous.” (Id. at 29.)

[12] Gabarrete-Martinez repeatedly asked S.R. who told her what to say at the trial and deposition, which occurred just two weeks before trial. He asked those questions just before playing portions of her forensic interview in which her answers appeared to differ from her trial testimony, and as such Gabarrete-Martinez suggested S.R. had “a recent improper influence or motive in so testifying” at trial. Evid. R. 801(d)(1)(b). We cannot say the trial court abused its broad discretion in ruling the State was allowed to play other portions of the forensic interview to rehabilitate S.R. following the implication that she had been improperly influenced to alter her testimony.

2. Sufficiency of evidence

[13] Gabarrete-Martinez also argues the State presented insufficient evidence to support his conviction.

Our standard for reviewing evidentiary sufficiency challenges is well established, as we have made clear that “[i]t is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction.” “A conviction is supported by sufficient evidence 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.’ ” This Court reviews only the evidence most favorable to the verdict and the reasonable inferences therefrom, and will reverse only where it is shown that “no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.

Konkle v. State, 253 N.E.3d 1068, 1090-91 (Ind. 2025) (internal citations omitted).

[14] To convict Gabarrete-Martinez of Level 1 felony child molesting, the State needed to prove he was over twenty-one-years old when he “knowingly or intentionally perform[ed] or submit[ted] to sexual intercourse or other sexual conduct (as defined in IC 35-31.5-2-221.5)” with a child under age fourteen. Ind. Code § 35-42-4-3(a) (2022).³ “Other sexual conduct” is an act that involves: “(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.” Ind. Code § 35-31.5-2-221.5. “A finger qualifies as an ‘object’ in this context.” Carranza v. State, 184 N.E.3d 712, 715 (Ind. Ct. App. 2022).

[15] Gabarrete-Martinez argues the State failed to prove he committed the crime because “the evidence shows [he] could not have committed the crime at the time and location stated by S.R.” (Br. of Appellant at 29.) Gabarrete-Martinez notes that S.R. consistently reported that he touched her on Friday and that she testified it occurred during the day, that she thought it was in “the morning.” (Tr. Vol. 1 at 133.) However, as Gabarrete-Martinez also notes, neither he and his family, nor S.R. and her family, were at the rural property until Friday evening. Thus, he could not have molested S.R. on Friday morning. He also argues that the fact none of the other witnesses confirmed that shooting occurred on Friday evening contradicts S.R.’s claim that she went to the knife throwing area on Friday after watching her father and Gabarrete-Martinez shoot guns.

[16] However, the charging information did not allege the molestation happened on Friday, April 19, 2024. It alleged the molestation occurred “in April 2024[.]” (App. Vol. 2 at 30.) The State was not required to prove the exact day and time that the molestation happened because “time is not of the essence” when the charge is child molesting. Carter v. State, 31 N.E.3d 17, 26 n.6 (Ind. Ct. App. 2015), reh'g denied, trans. denied. We have this rule “because ‘it is difficult for children to remember specific dates[.]’ ” Id. (quoting Barger v. State, 587 N.E.2d 1304, 1307 (Ind. 1992), reh'g denied). Accordingly, “the ‘exact date of the offense becomes important only in circumstances where the victim's age at the time of the offense falls at or near the dividing line between classes of felonies.’ ” Giddings v. State, 928 N.E.2d 886, 890 (Ind. Ct. App. 2010), trans. denied.

[17] Gabarrete-Martinez nevertheless asserts his argument “is not a matter of credibility, but of impossibility. It is impossible for the alleged incident to have happened the way S.R. claimed it did.” (Br. of Appellant at 30) (emphases in original). While it may have been impossible for Gabarrete-Martinez to have molested S.R. on Friday morning, as neither of them was at the rural property at that time, it is not impossible that Gabarette-Martinez molested S.R. in the knife throwing area of the garage when they were both at Kierstens's property on Friday evening or Saturday. See, e.g., Carter, 31 N.E.3d at 26 (discussing that allegation of child molesting was not “impossible” simply because others lived in house with defendant and child). As fact-finder, the jury was entitled to determine whether it believed the molesting happened, and this, contrary to Gabarrete-Martinez's assertion, is a credibility question. S.R. testified unequivocally at trial about where and how Gabarette-Martinez molested her. This evidence was sufficient to affirm his conviction. See, e.g., Young v. State, 973 N.E.2d 1225, 1227 (Ind. Ct. App. 2012) (holding testimony of child victim sufficient to support conviction of child molesting), reh'g denied, trans. denied.

3. Sentence imposed

[18] Gabarrete-Martinez also argues the trial court committed multiple errors when sentencing him. We give “considerable deference” to the trial court's exercise of its discretion at sentencing. Cardwell v. State, 895 N.E.2d 1219, 1223 (Ind. 2008). A trial court abuses its discretion if it fails to enter a sentencing statement, enters “a sentencing statement that explains reasons for imposing a sentence – including a finding of aggravating and mitigating factors if any – but the record does not support the reasons,” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on other grounds on reh'g 875 N.E.2d 218 (Ind. 2007), enters a sentencing statement that “omits reasons that are clearly supported by the record and advanced for consideration,” id. at 491, or enters a sentencing statement that includes reasons that “are improper as a matter of law.” Id.

[19] Gabarrete-Martinez first claims the trial court failed to articulate sufficient explanation for the sentence imposed. In Anglemyer, our Supreme Court explained “the [sentencing] statement must include a reasonably detailed recitation of the trial court's reasons for imposing a particular sentence.” 868 N.E.2d at 490. When imposing Gabarrete-Martinez's sentence, the trial court explained:

In this case both your attorney as well as the State have argued that there are aggravators and mitigating factors and in fact I did find an aggravating factor as well as a mitigating factor. I did find that the harm, for the aggravating factors, the harm, injury, loss or damage suffered by the victim of the offense was significant and greater than the elements necessary to prove the commission of the offense. I believe the State's point that, uh, the damage was life altering is well taken. I did find as a mitigating factor that your imprisonment would result in hardship to your dependents. So with that said I did find an aggravator and mitigator in this cause. I do find that, that aggravating offense or that aggravator does outweigh the mitigating factor. I further neither considered as an aggravating factor nor mitigating fact that IRAS assessment, um, in this matter in particular that you scored a very high risk to reoffend, so I did not consider that. With that said at this time I am prepared to proceed to formal sentencing on Count I.

(Tr. Vol. 2 at 92.)

[20] Gabarrete-Martinez argues the trial court needed “to articulate its reasoning, balancing, and evaluation of the aggravating and mitigating factors.” (Br. of Appellant at 25.) This argument appears to rely on his citation to Scott v. State, 840 N.E.2d 376 (Ind. Ct. App. 2006), trans. denied, which contains that “reasoning, balancing, and evaluation” language. Scott, 840 N.E.2d at 381. However, in Anglemyer, our Indiana Supreme Court held trial courts were no longer required to articulate a balancing of the aggravators and mitigators used to impose a sentence because “the trial court no longer has any obligation to ‘weigh’ aggravating and mitigating factors against each other when imposing a sentence[.]” 868 N.E.2d at 491. Gabarrete-Martinez has not demonstrated the trial court's sentencing statement was inadequate or an abuse of discretion.

[21] Gabarrete-Martinez next argues the trial court found an improper aggravator in “the harm, injury, loss or damage suffered by the victim of the offense was significant and greater than the elements necessary to prove the commission of the offense.” (Tr. Vol. 2 at 92.) Gabarrete-Martinez argues ⁴ this factor is inappropriate because the legislature accounted for the impact on the victim when it set the presumptive sentence, and the trial court did not find the harm to S.R. was not greater than any other victim. (Appellant's Br. at 24.) However, in support of its finding, the trial court noted: “I believe the State's point that, uh, the damage was life altering is well taken.” (Tr. Vol. 2 at 92.) At sentencing, the State read the victim impact statement provided by S.R.’s mother, which described the ways the impact on S.R. had been severe. (Id. at 86.) We cannot say the trial court's finding was clearly erroneous when the trial court heard evidence of the impact on S.R., saw S.R. during trial, and found the impact “life altering.” (Id. at 92.)

[22] Finally, Gabarrete-Martinez argues the trial court abused its discretion when it overlooked his lack of criminal history as a mitigator. “[A]n allegation that the trial court failed to identify or find a mitigating factor requires the defendant to establish that the mitigating evidence is not only supported by the record but also that the mitigating evidence is significant.” Anglemyer v. State, 875 N.E.2d 218, 220-21 (Ind. 2007). The record suggests Gabarrete-Martinez did not have criminal history in the United States or Honduras prior to this conviction; thus, the question is whether this fact was significant. The State argued the trial court should not find the lack of criminal history significant when Gabarrete-Martinez is in this country illegally and when we cannot know whether Gabarrete-Martinez might have a conviction record in other countries where he lived between Honduras and the United States. The trial court also explicitly noted Gabarrete-Martinez scored “very high risk to reoffend” on the IRAS and that the trial court was not considering this fact as an aggravator or mitigator. (Tr. Vol. 2 at 92.) In light of all these other facts in the record that may impacted the significance the trial court assessed, we cannot say the trial court abused its discretion when it failed to find his lack of criminal history as a significant mitigator clearly supported by the record.

Conclusion

[23] Gabarrete-Martinez has not demonstrated the trial court abused its discretion when it admitted evidence, the evidence was insufficient to support his conviction, or the trial court abused its discretion when imposing his sentence. We accordingly affirm.

[24] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-4-3(a)(1).

2.   Ind. Code § 35-42-4-3(b).

3.   The statute defining child molesting was modified effective July 1, 2025, but that modification did not alter any of the elements pertinent to Gabarrete-Martinez's charges. See P.L. 186-2025, SEC.235.

4.   Gabarrete-Martinez also argues this factor was inappropriate because the age of the victim is an element of the crime. However, “even where the age of the victim is an element of the offense, the very young age of a child can support an enhanced sentence as a particularized circumstance of the crime.” Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012). If the trial court was referring to S.R.’s age when it entered this finding, we cannot say the trial court's finding was clearly erroneous when S.R. was only nine years old when she was molested by her father's best friend. See id. at 628-9 (holding trial court did not abuse its discretion when it considered age of victims an aggravator because children were five and seven years old).

May, Judge.

Altice, J., and Foley, J., concur.