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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowA convicted child molester has failed to convince the Court of Appeals of Indiana that a mistrial should’ve been granted in his case due to an errant PowerPoint slide and the replaying of his victim’s testimony to the jury. However, the appellate court also denied a cross-appeal by the state challenging the denial of its request to classify the man as a credit-restricted felon.
Hipolito Martinez began molesting his 8-year-old stepdaughter K.R. in 2015. The sexual abuse occurred more than once a month for at least five years.
K.R. reported the molestation in 2020, and the state charged Martinez with two counts of Level 1 felony child molesting and three counts of Level 4 felony child molesting.
During closing arguments in a November 2021 jury trial, the state gave a PowerPoint presentation outlining the charges against Martinez that incorrectly included a slide showing a charge of invasion of privacy. Martinez moved for mistrial, but the Tippecanoe Superior Court denied his motion and admonished the jury to disregard the incorrect slide.
Also, during deliberations, the jury requested to either see a transcript of K.R.’s testimony or to hear it replayed. The trial court referred to Indiana Code § 34-36-1-6, which governs such requests, and initially declined the request.
In response, the jury indicated there was a disagreement regarding the date of one alleged incident of fondling and regarding the frequency of alleged molestations from 2016 to 2021. The trial court then allowed the jury to review the testimony over Martinez’s objection.
The jury found Martinez guilty of two counts of Level 1 felony child molesting and two counts of Level 4 felony child molesting, and the trial court entered convictions on the Level 1 felony courts. The court sentenced Martinez to 35 years for each Level 1 felony conviction, to be served concurrently, and denied the state’s request to classify him as a credit restricted felon.
On appeal, Martinez argued the trial court abused its discretion by playing K.R.’s testimony back to the jury during deliberations and erred by denying his motion for a mistrial regarding the errant slide. On cross-appeal, the state argued the trial court erred in denying the credit-restricted felon request.
The Court of Appeals of Indiana denied both arguments, affirming the trial court’s ruling.
“Martinez argues that replaying K.R.’s testimony in its entirety was the equivalent of doubling its weight in the minds of the jurors,” Chief Judge Cale Bradford wrote. “Martinez, however, points to nothing in the record to support this assertion, much less anything in the law to justify treating it as an exception to the mandatory nature of Indiana Code section 34-36-1-6. The trial court did not err in granting the jury’s request to review K.R.’s testimony.”
Judges also didn’t find the PowerPoint argument convincing, calling it “pure speculation.”
On the credit-restriction issue, judges looked at I.C. 35-31.5-2-72 and 35-38-1-7.8.
“The State argues that molestations occurring after a victim’s twelfth birthday but before her thirteenth should qualify to make the perpetrator a credit restricted felon pursuant to Indiana Code section 35-31.5-2-72,” Bradford wrote. “While we acknowledge that it is customary to refer to persons as ‘twelve years old’ after their twelfth birthdays but before their thirteenth, those persons are, in fact, no longer ‘less than twelve (12) years of age.’ Such persons became twelve years old at some point on the twelfth anniversary of their dates of birth, and, after that, are twelve years of age, plus some fraction of a thirteenth.”
“The State correctly notes that there is ample evidence that could support such a determination, i.e., K.R.’s testimony that the molestation involving intercourse at least once a month had gone on for approximately five or six years beginning in 2015,” he concluded. “That said, the same evidence, along with K.R.’s testimony that Martinez molested her for the last time by having intercourse with her in November or December of 2020, could also support a determination that Martinez molested K.R. after November of 2019, when she turned twelve. The trial court, it would seem, made just such a determination, a determination supported by the evidence presented at trial.”
The case is Hipolito Ramirez Martinez v. State of Indiana, 21A-CR-2797.
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