Opinion
23A-CR-2709
06-20-2024
Freddie R. Pacheco, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Jan B. Berg Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Angela Dow Davis, Judge Trial Court Cause No. 49D27-2012-F1-36759
ATTORNEY FOR APPELLANT
Jan B. Berg Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Indiana Attorney General
Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
CRONE, JUDGE
Case Summary
[¶1] Freddie R. Pacheco appeals his conviction, following a jury trial, for level 1 felony child molesting. Pacheco argues that the trial court erred in admitting what he characterizes as impermissible vouching testimony and that the prosecutor committed misconduct. We affirm.
Facts and Procedural History
[¶2] J.G. was born in September 2006 and lived in Indianapolis. Her father, Jose, married Pacheco's sister in 2011. Jose hired Pacheco to work in his landscaping business. J.G. did not have a close relationship with Jose, and she considered Pacheco, who was born in 1987, to be a father figure.
[¶3] In February 2017, Pacheco went with J.G. to a father-daughter dance. On the car ride home, he made her feel "uncomfortable" by "petting [her] hair." Tr. Vol. 4 at 59. Later that year, J.G. spent the night at the apartment of Pacheco's mother, Sandra, with whom she had "[a] grandmother/granddaughter relationship." Id. at 61. Pacheco lived with Sandra. J.G., who was sleeping on Sandra's bedroom floor, got up to use the restroom. After she left the restroom, Pacheco grabbed her arm and pulled her into his bedroom. He had her sit on the end of the bed, and he sat next to her in the dark. Pacheco asked J.G. if she had ever kissed anyone. She told him no, and he asked, "[C]an you kiss me?" Id. at 67. J.G. "freaked out" and "told him no. You're my uncle." Id. at 68. Pacheco replied, "I'm your step-uncle. It's okay." Id. J.G. went toward the door. Pacheco closed the door and told her not to tell anyone. J.G. "grabbed the doorknob," ran to Sandra's bedroom, crawled under a blanket, and cried. Id. at 69. Pacheco ran into the room and told Sandra "that he wanted to kill himself. And that he was trying to jump in front of cars." Id. at 72. "[H]e hugged Sandra, and he mouthed that he's sorry to [J.G.]" Id. at 73.
[¶4] After that incident, during multiple family gatherings at J.G.'s home, Pacheco pulled J.G. into a bathroom and kissed and fondled her. One night, when J.G. was staying at Sandra's apartment, several people were sleeping in Sandra's bedroom. J.G. found a space in a bed. Pacheco positioned himself behind her and caressed her back, fondled her breasts, and put his fingers inside her vagina. He then repositioned her so that her head was facing his feet, "grabbed [her] head[,]" and "made [her] put his penis in [her] mouth." Id. at 92. His penis "felt hard, and [she] just started crying." Id. at 93. Pacheco told J.G. to "shut up." Id. at 92. Afterward, J.G. "cried [herself] to sleep." Id. at 94. The last incident of abuse occurred when Pacheco pulled J.G. into a bathroom at Sandra's apartment. He forcibly kissed her face, neck, and breasts and tried to take off her pants. J.G. threatened to scream and "ran across the hallway to Sandra's room." Id. at 100.
[¶5] J.G. "knew that [she] couldn't just tell anyone" about the abuse because "the one person that [she] trusted did everything to [her]." Id. at 101. In November 2017, J.G.'s father, Jose, went into J.G.'s bedroom. She "acted a little suspicious" and "hid something under the pillow." Id. at 146. Jose grabbed the item, which was a sheet of notebook paper with the following message:
(Image Omitted)
Ex. Vol. at 20. Jose called 911. J.G. was interviewed by a police officer and by forensic interviewer Jill Carr. J.G. disclosed that Pacheco had abused her, but the investigation was not pursued further at that time.
[¶6] In October 2020, Indianapolis Metropolitan Police Department Sergeant Nicolle Flynn reopened the investigation and interviewed J.G., who again disclosed that Pacheco had abused her. In December 2020, the State charged Pacheco with one count of level 1 felony child molesting and one count of level 4 felony child molesting. After an August 2023 trial, the jury found Pacheco guilty as charged. The trial court vacated the level 4 felony conviction and sentenced him to thirty-eight years, with three years suspended to probation. Pacheco now appeals.
Discussion and Decision
Section 1 - The trial court did not abuse its discretion in admitting testimony about disclosure of abuse by child molestation victims.
[¶7] At trial, both Carr and Sergeant Flynn testified, over Pacheco's objections, about disclosure of abuse by child molestation victims. Carr testified that she had received training on several different types of disclosure and briefly described them as follows:
[An accidental disclosure is] revealed by chance.... So, for example if they weren't planning but somebody walks in on something happening. Or say mom or dad find a journal with something. And then there's purposeful. They make a conscience [sic] decision: I'm ready to tell. Then there is immediate. They tell right away. And then there's delayed, which is what it sounds like. They wait or they didn't have plans to talk about it for a while.
Tr. Vol. 4 at 177-78. Carr testified that delayed disclosure is more common than immediate disclosure, but she was not permitted to testify about "some reasons that children delay in disclosing[.]" Id. at 179. She explained "the process of disclosure" as follows: "So, basically it's not a one-time event. So, it's not uncommon for details to come out over time. Once, say the child feels more safe, or they feel believed, or supported, they've been through therapy, that kind of thing." Id. at 180.
[¶8] Sergeant Flynn also testified that delayed disclosure is more common than immediate disclosure and was allowed to give the following testimony, based on her "training and experience," regarding "some reasons that children delay their disclosures":
In general, sometimes it's due to their age. They just don't understand that it's wrong. Sometimes they're so young that they don't really understand what's happening to their bodies until they get older, and they look back. Sometimes it's fear of the abuser. Fear of reporting. Fear of how their family is going to react to them. Sometimes it's not until the abuser is out of the picture and they don't have to be around them anymore. Sometimes they finally have someone to tell. They have someone that they trust. Sometimes it's to protect a sibling, where they're afraid that the sibling is going to start to be abused, and they try to do it to protect them. There's a lot of different reasons why kids don't tell right away.Id. at 203-04.
[¶9] Pacheco contends that the foregoing testimony was impermissible vouching prohibited by Indiana Evidence Rule 704(b), which provides, "Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions." "A trial court has broad discretion in ruling on the admissibility of evidence, and we will disturb its rulings only where it is shown that the court abused that discretion." Alvarez-Madrigal v. State, 71 N.E.3d 887, 892 (Ind.Ct.App. 2017), trans. denied. "An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before it." Id.
[¶10] Because Carr and Sergeant Flynn merely described "how victims of child molestation behave in general" and did not opine on J.G.'s veracity, their testimony was not improper vouching and thus did not run afoul of Evidence Rule 704(b). Baumholser v. State, 62 N.E.3d 411, 416 (Ind.Ct.App. 2016) (holding that forensic interviewer's testimony that "most of the time [disclosure of abuse by child molestation victims] is delayed in some way" was not improper vouching), trans. denied (2017). Notably, Carr and Sergeant Flynn did not testify that J.G.'s disclosure was consistent with that of other child molesting victims, and the jurors were allowed to draw their own conclusions based on their assessment of the witnesses' and J.G.'s credibility. Accordingly, we find no abuse of discretion.
Pacheco asserts that Baumholser is inapposite because the testimony at issue in that case was very brief. For purposes of Evidence Rule 704(b), it is the content of the testimony that matters, not the extent.
Section 2 - Pacheco failed to preserve his claim of prosecutorial misconduct and has failed to establish either misconduct or fundamental error.
[¶11] On direct examination, the deputy prosecutor asked J.G.'s father the following question: "Jose, you mentioned some other members of the defendant's family that [J.G.] would have been around back then. Do you recognize any of these people in the Courtroom today?" Tr. Vol. 4 at 148. Defense counsel objected and requested a sidebar, which the trial court granted. Defense counsel stated, "I don't understand the relevance of this. I'd like to know where he's going with it. I don't think my client -- I don't know why his family being here has any relevance at all." Id. The deputy prosecutor replied, "Judge, the jury has heard these people's names mentioned throughout as being present for these incidents. I think it's relevant that the jury knows they're here today and not being called as witnesses." Id. Defense counsel accused the deputy prosecutor of "shifting the burden[,]" which the deputy prosecutor denied. Id. The trial court told the jury that defense counsel's objection was sustained, and the deputy prosecutor said, "Nothing further at this time. Thank you." Id. at 149.
[¶12] Pacheco contends that the deputy prosecutor's question was misconduct constituting reversible error. "Generally, in order to properly preserve a claim of prosecutorial misconduct for appeal, a defendant must not only raise a contemporaneous objection, he must also request an admonishment and, if the admonishment is not given or is insufficient to cure the error, then he must request a mistrial." Lainhart v. State, 916 N.E.2d 924, 931 (Ind.Ct.App. 2009). "Failure to do so results in waiver." Jerden v. State, 37 N.E.3d 494, 498 (Ind.Ct.App. 2015). "Our standard of review is different where a claim of prosecutorial misconduct has been waived for a failure to preserve the claim of error." Id. "In such a case, the defendant must establish not only the grounds for prosecutorial misconduct but also that the prosecutorial misconduct constituted fundamental error." Id.
[¶13] Here, defense counsel promptly objected to the deputy prosecutor's question but failed to request either an admonishment or a mistrial. Consequently, Pacheco's claim is waived, and he must establish that the question constituted both prosecutorial misconduct and fundamental error. "In reviewing a claim of prosecutorial misconduct, we first determine whether misconduct occurred, and then, if there was misconduct, whether under all of the circumstances the misconduct placed the defendant in a position of grave peril to which he otherwise would not have been subjected." Fouts v. State, 207 N.E.3d 1257, 1267 (Ind.Ct.App. 2023), aff'd on reh'g, 210 N.E.3d 902, trans. denied. "Whether a prosecutor's statements constitute misconduct is measured by reference to case law and the Rules of Professional Conduct." Id. "The degree of peril is measured by the probable persuasive effect of the misconduct on the jury's decision." Id. "To show fundamental error, a defendant must demonstrate error that caused actual and substantial disadvantage, infecting and tainting the entire proceeding." Henriquez v. State, 973 N.E.2d 1154, 1156 (Ind.Ct.App. 2012), trans. denied. "In other words, the error must so prejudice the rights of the defendant as to make a fair trial impossible." Id.
[¶14] Pacheco asserts that the deputy prosecutor improperly suggested that "it was [his] burden to produce witnesses to contradict the State's evidence." Appellant's Br. at 27; see Lainhart, 916 N.E.2d at 936 ("It is improper for a prosecutor to suggest that a defendant shoulders the burden of proof in a criminal case."). The deputy prosecutor was starting to head down that road by posing the seemingly innocuous question to Jose, but defense counsel's timely objection stopped him in his tracks. We conclude that the jury was none the wiser and that Pacheco was not placed in a position of grave peril, much less subjected to fundamental error. Therefore, we affirm his conviction.
On page 23 of his brief, Pacheco makes an additional claim of fundamental error with no analysis whatsoever. That claim is waived.
[¶15] Affirmed.
Bradford, J., and Tavitas, J., concur.