from the Marion Superior Court Trial Court Cause No.
49G05-1407-FA-33963, The Honorable Grant W. Hawkins, Judge
Attorneys for Appellant Ruth Johnson, Matthew D. Anglemeyer,
Marion County Public Defender Agency, Appellate Division
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Jodi Kathryn Stein Deputy Attorney General
Following a jury trial, Argumedo Alvarez-Madrigal
("Alvarez-Madrigal") was convicted of four counts
of Class A felony child molesting and two counts of Class C
felony child molesting. He appeals, contending that a statement
by a State's witness constituted impermissible vouching
evidence and that it was reversible error to admit it.
and Procedural History
When she was ten years old and in the fourth grade, A.M. met
and became close friends with fellow fourth-grader S.A.O.,
whose father is Alvarez-Madrigal. During the summer before
the girls entered fifth grade, A.M. spent a lot of time at
S.A.O.'s house. S.A.O.'s mother worked nights, and
Alvarez-Madrigal watched the children while she slept during
The facts most favorable to the verdict are that, in May
2014, when A.M. Was eleven years old, Alvarez-Madrigal began
to touch A.M. inappropriately. On May 8 or 9, when A.M. was
spending the night at S.A.O.'s house, S.A.O. left the
room to use the restroom, and Alvarez-Madrigal put his hand
under A.M.'s bra and then felt around her vagina, over
her pajamas. From that date to June 6, A.M. went to
S.A.O.'s house almost every day, and Alvarez-Madrigal
touched A.M. "[e]very time I would go over there."
Tr. at 43. A.M. testified that S.A.O. and her mother
"saw what was going on" on various occasions.
Id. at 93. A.M. was worried that if she told anyone,
it would ruin her friendship with S.A.O.
On June 6, 2014, when A.M. entered S.A.O.'s house and
began to walk up the stairs to S.A.O.'s bedroom,
Alvarez-Madrigal put his hand "on [A.M.'s]
butt" under her underwear. Id. at 47. He kept
his hand there as A.M. walked up the flight of stairs. When
they reached the top of the stairs, S.A.O. came out of her
bedroom, "looked surprised, " and started yelling
at Alvarez-Madrigal. Id. at 48. A.M. testified that
S.A.O.'s mother also came out of her bedroom and asked
what was going on, but the girls went into S.A.O.'s
bedroom without saying anything to S.A.O.'s mother. On
June 10, while other household members were elsewhere in the
house, Alvarez-Madrigal kissed A.M. on the neck and touched
her under her underwear, on her vagina.
On June 14, 2014, Alvarez-Madrigal drove A.M. and S.A.O. to a
swimming pool and then back to S.A.O.'s house.
S.A.O.'s mother was at home sleeping. A.M. went to the
upstairs bathroom to change out of her swimming suit, and
while she was still in the bathroom, she heard S.A.O. open
the door and go outside the house. A.M. put on a swim cover,
which was like a dress, over her underwear and bra. She left
the bathroom and went downstairs, and Alvarez-Madrigal
appeared, picked her up under the arms, put her back to the
wall, and when she started to scream, he put his hand over
her mouth. Despite A.M.'s protests, Alvarez-Madrigal took
off her swim cover and her bra. When A.M. would not spread
her legs, he hit her in the thigh, which left a mark.
Alvarez-Madrigal pulled down her underwear, threw her onto a
couch, and had vaginal and anal intercourse with her. When
she initially would not open her mouth to perform oral sex,
he slapped her on the face, leaving a red mark,
then he stuck his penis in her mouth and moved it back and
When S.A.O. began to enter the house, Alvarez-Madrigal
collected A.M.'s clothes and threw them at her and told
her to go to the bathroom. A.M. saw S.A.O. peeking around the
corner. A.M. hurried to the bathroom, but heard
Alvarez-Madrigal talking to S.A.O. in the kitchen and begging
S.A.O., "Please don't tell your mother. I'll do
anything for you." Tr. at 69. When A.M. left
the bathroom, Alvarez-Madrigal "banged [her] against the
wall" and told A.M. that he would kill her if she told
anyone. Id. at 70. A.M. left the house and spoke to
S.A.O. outside, telling her some, but not all, of the things
Alvarez-Madrigal had done to her, and A.M. asked S.A.O. to
tell her father to stop touching A.M. S.A.O. told A.M. that
she would "have a talk with him." Id. at
72. A few weeks after the June 14 incident, A.M. told a
friend, P.J., about what S.A.O.'s father had done to her,
and P.J. told a mentor. On June 29, 2014, a report was made
to Indiana Department of Child Services ("DCS").
When DCS made an unannounced visit to A.M.'s home on or
about June 29, A.M. told her mother what Alvarez-Madrigal had
done to her. A.M. also told DCS assessment case manager Nola
Hunt ("Hunt") and the accompanying Indianapolis
Metropolitan Police Department ("IMPD") officer
about Alvarez-Madrigal's conduct. Hunt paged IMPD
Detective Mark Barnett ("Detective Barnett"), the
"on-call" child abuse detective. Detective Barnett
decided "an immediate response" was warranted
"based primarily on the proximity of the alleged victim
and suspect . . ., living on the same street."
Id. at 187-88. Hunt then transported A.M. and
A.M.'s parents to DCS offices, where A.M. participated in
a forensic interview at the Child Advocacy Center with IMPD
Detective Nicolle Flynn ("Detective Flynn"). During
the interview, A.M. disclosed information of a sexual nature
describing what had happened to her about two weeks prior.
Hunt and Detective Barnett observed the interview from
another room, and based on what he observed, Detective
Barnett prepared, and later executed, a search warrant for
Alvarez-Madrigal's residence. Detective Barnett
interviewed Alvarez-Madrigal and his wife, and, at some
point, S.A.O. and P.J. were also interviewed by DCS. A.M. was
examined on July 2, 2014, and again on July 9, 2014, at the
Riley Hospital Pediatric Center for Hope.
On July 3, 2014, the State charged Alvarez-Madrigal with five
counts of Class A felony child molesting and two counts of
Class C felony child molesting. At the two-day August 2015
jury trial, the State presented the testimony of A.M., P.J.,
S.A.O., and S.A.O.'s mother. The State also presented the
testimony of Hunt, Detective Flynn, and Detective Barnett.
The last witness to testify was Shannon Thompson, M.D.
("Dr. Thompson"), a pediatrician at Riley
Children's Hospital ("Riley") on the child
abuse protection team.
Dr. Thompson examined A.M. at the second examination, on July
9, 2014. Dr. Thompson stated that the reason A.M. returned to
Riley was because she was having "continued genital pain
and itching." Id. at 293. Dr. Thompson
testified that although neither examination at Riley revealed
physical injuries, the lack of physical findings was
"very common" in sexual abuse cases. Id.
at 296. She explained that there are various reasons for
that, including that no injury occurred in the first place or
that "disclosure often occurs days to months later,
" and the genital tissue heals quickly. Id. at
297. She testified that, therefore, it is "very
common" for a child to have a normal exam. Id.
at 298. The State continued direct examination of Dr.
Thompson regarding the frequency with which she observes
STATE: In terms of the cases you have seen, do you know what
percentage of children you see with injuries?
THOMPSON: So overall about 4 to 5 percent of children who
have been victims of sexual abuse will have some kind of
obvious physical evidence of penetration or sexual abuse. In
my experience I've probably seen one.
STATE: One in 10 years of being a child abuse pediatrician?
THOMPSON: 7 1/2 years.
STATE: My math is not great. Okay. And does that mean that
all the rest of those children are ...