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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowThe Indiana Court of Appeals has affirmed a trial court’s decision to allow a child molestation victim to testify in court with a comfort animal at her side. The ruling means the defendant’s child molesting convictions will stand.
In Jose L. Izaguirre v. State of Indiana, 21A-CR-2258, appellant-defendant Jose L. Izaguirre was convicted of two counts of Level 1 felony child molestation against his stepdaughter.
Before Izaguirre’s jury trial, the state moved to permit a comfort animal to sit with the victim while she testified, and the Kosciusko Circuit Court granted the motion over Izaguirre’s objection. As such, the child testified with a canine sitting near her, pursuant to Indiana Code § 35-40-5-13.
After he was convicted, Izaguirre was handed an aggregate sentence of 40 years behind bars, with five years suspended.
After the trial court denied his subsequent motion to correct error regarding the child’s ability to testify with a comfort animal, Izaguirre appealed.
He argued the trial court erred by following I.C. 35-40-5-13 because the law “permits a Court to prejudice a Defendant’s Constitutional rights with no findings at all that the action to be taken, i.e. use of a comfort animal, is necessary.” He also argued the statute’s use of “shall” means “that the legislature controls how Trial Courts conduct trials[,]” which he argued contravenes Evidence Rule 611 and constitutional separation of powers.
The Court of Appeals found Izaguirre waived both arguments, however, by providing no standard of review for the issue presented, no separate cogent arguments for his two grounds for reversal, and no discussion of the legal standard for analyzing due process, separation of powers or conflicts between statutes and rules of court.
“In fact, he cites only one case to support his arguments on these complex legal issues,” Judge Melissa May wrote for the appellate panel. “Where an appellant fails to support an argument with cogent reasoning and citations to authorities, an argument is waived.”
Waiver notwithstanding, the appellate court said it failed to see how Izaguirre could have been prejudiced by the presence of the support dog in the courtroom.
It pointed specifically to the state’s “very damning” evidence against Izaguirre and the trial court’s jury instruction regarding the dog, which said, “Neither sympathy nor prejudice for or against either the victim or the Defendant in this case should be allowed to influence you in whatever verdict you may find.”
“In light of the weight of the evidence against Izaguirre and the instructions given by the trial court to minimize any impact of the dog’s presence, Izaguirre cannot demonstrate he was prejudiced by the trial court’s decision to allow Child to testify with a support animal,” May concluded.
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