Molestation convictions upheld against former stepfather

A Clinton County man convicted of molesting his former stepdaughter has lost his appeal after the Indiana Court of Appeals determined Monday the trial court did not abuse its discretion by excluding evidence that the victim was molested by another man.

In Miguel Alvarado v. State of Indiana, 12A04-1704-CR-818, Miguel Alvarado lived with his wife and her daughter, M.L., until the couple divorced in 2013. One day while Alvarado’s wife was at the grocery store, Alvarado entered M.L.’s room, took off his clothes and vaginally, anally and orally penetrated the young girl.

Alvarado performed the same sexual acts on M.L. on multiple occasions, and she finally reported them to her grandmother in 2015 when she was almost 10 years old. M.L. made similar allegations against her mother’s new boyfriend around the same time.

Alvarado was arrested and charged with nine counts of Class A felony child molesting in May 2015, but before his trial he moved to introduce evidence that M.L. had been molested by her mother’s new boyfriend in January of that year. The Clinton Circuit Court denied that motion and the trial proceeded, with M.L. testifying that she had learned about “good touch, bad touch” at school.

After the state’s closing argument, Alvarado requested the evidence be reopened because the state had opened the door to the excluded evidence during its closing argument. The trial court denied that motion, as well, and a jury found Alvarado guilty of four counts of Class A felony child molesting.

Alvarado then appealed, arguing exclusion of evidence that M.L. had been recently molested by her mother’s boyfriend denied him of his right to confront witnesses against him and to cross-examine them. But he Indiana Court of Appeals rejected that argument on Monday, with Judge Cale Bradford writing the so-called “sexual innocence inference theory” — or the notion that because children are presumed to be ignorant of sexual matters, their ability to describe such matters can convince a jury that the alleged assault occurred — did not affect this case because of her prior knowledge about good and bad touches.

“We consider it worth noting that, despite expressing grave concern about being denied the right to present evidence of possible alternate sources of sexual knowledge, Alvarado did not pursue the issue of M.L.’s ‘good touch, bad touch’ education at any length or argue that it was the source of M.L.’s sexual knowledge,” Bradford wrote. “Under the circumstances, we cannot say (and Alvarado has not established” that the average juror would assume that M.L. lacked the knowledge to fabricate allegations of molestation.”

In a footnote to the Monday opinion, Bradford noted the sexual innocence theory has faced criticism from other courts, such as the Supreme Court of Iowa. Though the appellate panel did not reject the theory, it did note that concerns about “the jury unduly inferring sexual innocence” could be addressed in voir dire.

Finally, because the appellate court concluded the jury did not infer M.L.’s sexual ignorance, it also determined the state’s closing arguments — particularly its statement that M.L. remembered “sex acts as they actually happen with adults” — was simply a “contention that M.L.’s testimony was plausible and consistent with adult sexual activity.”