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Vega v. State

Court of Appeals of Indiana

February 14, 2019

Daniel Vega, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal from the Madison Circuit Court The Honorable David A. Happe, Judge Trial Court Cause No. 48C04-1704-F3-1072

          Attorney for Appellant David W. Stone IV Anderson, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana

          Najam, Judge.

         Statement of the Case

         [¶1] Daniel Vega appeals his convictions for one count of child molesting, as a Level 3 felony, and two counts of child solicitation, as Level 5 felonies, following a jury trial. Vega also appeals his fifteen-year sentence. Vega raises six issues for our review, which we restate as follows:

1. Whether the trial court abused its discretion when it admitted into evidence a video-recorded forensic interview of the child victim.
2. Whether the trial court abused its discretion when it denied Vega's request to have an expert psychologist examine the child victim at public expense.
3. Whether Vega preserved for appellate review his argument that the trial court erroneously permitted the State to present inadmissible drumbeat evidence to the jury.
4. Whether Vega preserved for appellate review his argument that the trial court erred when it denied his request for a mistrial.
5. Whether the trial court abused its discretion when it sentenced Vega.
6. Whether Vega's sentence is inappropriate in light of the nature of the offenses and his character.

         [¶2] We affirm.

         Facts and Procedural History

         [¶3] In early 2017, Vega, who was eighteen years old at the time, was living with his uncle, M.S.; M.S.'s then-ten-year-old daughter, E.S.; and M.S.'s wife and stepson in Alexandria. M.S. had helped Vega obtain employment at American Woodwork, where M.S. also worked, and M.S. and Vega would ride to work together. E.S. had her own room at the family residence. Vega slept on a couch in the living room.

         [¶4] During the evening of April 20, Vega entered E.S.'s bedroom, woke her, and told her he would "give [her] twenty dollars if you suck my thing." Tr. Vol. III at 183. E.S. told him that she was "gonna tell [her] dad," and Vega "ran outside." Id. The next day, E.S. spoke of the incident with Holly Eiler, a social worker at E.S.'s school. Eiler contacted the Indiana Department of Child Services ("DCS"), and DCS case workers arranged for E.S. to have a forensic interview at the Child Advocacy Center later that day.

         [¶5] Kelsey Green conducted E.S.'s forensic interview, which was video-recorded. Green has a degree in psychology and has conducted about 2, 000 forensic interviews. During her interview, E.S. detailed the prior night's incident with Vega. E.S. also said that, on another occasion, Vega had tried to make E.S. "touch his thing" by "pull[ing] down his pants and . . . tr[ying] to put [her] hand down there . . . ." Id. at 189-90. Then E.S. told Green that, on a different occasion, Vega had "forced [her] to suck his thing." Id. at 193. Vega had "grabbed [E.S.]" and "ma[de her] put it in [her] mouth" until "[w]hite stuff" came out, which made E.S. "throw[ ]up." Id. at 193-94. E.S. told Green that she did not "feel safe around" Vega. Id. at 193.

         [¶6] Following E.S.'s forensic interview, Alexandria Police Officer Joe Heath interviewed Vega. When Officer Heath informed Vega of E.S.'s allegations and asked Vega if he "kn[ew] anything about" them, Vega responded, "She's nasty. . . . [I]f I were to get [sic] in any kind of sexual way I would have someone more attractive . . . ." Tr. Vol. IV at 57. Officer Heath then asked Vega why E.S. would say what she did, and Vega responded: "I don't know. That's from her part. She knows how to suck dick. Go for it." Id. at 67.

         [¶7] After E.S. opened up about her experiences with Vega, M.S. observed that E.S. began to act differently. In particular, he observed that she was "scared to sleep by herself" in her room. Tr. Vol. III at 157. M.S. also observed that E.S. would "urinate[]" her bed because "she doesn't want to get up [be]cause she's scared" that Vega is "watching her through the window." Tr. Vol. III at 157.

         [¶8] The State charged Vega with one count of child molesting, as a Level 3 felony, and four counts of child solicitation, as Level 5 felonies. On January 29, 2018, the State moved under Indiana's Protected Person Statute to have E.S.'s forensic interview with Green admitted in lieu of E.S. testifying in person at trial. See Ind. Code § 35-37-4-6 (2018). The court held a hearing on the State's request in February, at which Vega appeared with counsel and E.S. appeared by closed-circuit television.

         [¶9] Miyah Grant testified in support of the State's motion. Grant is a doctoral student in the clinical psychology program at the University of Indianapolis, and, under the supervision of Dr. Sharon McNeany, a licensed psychologist, Grant is E.S.'s counselor. Grant testified that E.S. frequently has anxiety about testifying in court such that she "begins crying uncontrollably and shaking," and it is a "struggle to communicate" with her. Tr. Vol. II at 71. Grant also related continuing fear E.S. has of Vega, saying that, on the day of the protected-person hearing, E.S. asked that the room of the closed-circuit television have "lock[ed] . . . doors." Id. at 72. Grant opined that being in the physical presence of Vega at trial could cause E.S. such distress that she would not "be able to reasonably communicate." Id. at 74. Dr. ...


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