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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: JAMES A. EDGAR J. Edgar Law Offices, Prof. Corp. Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana ANGELA N. SANCHEZ Deputy Attorney General Indianapolis, Indiana

FILED
of the supreme court, court of appeals and tax court

May 27 2011, 9:41 am

IN THE COURT OF APPEALS OF INDIANA
HERIBERTO E. RIVERA, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

CLERK

No. 49A02-1010-CR-1142

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Carol J. Orbison, Judge Cause No. 49G22-0905-FA-49601

May 27, 2011

MEMORANDUM DECISION - NOT FOR PUBLICATION NAJAM, Judge

STATEMENT OF THE CASE Heriberto Rivera appeals his five convictions for child molesting following a jury trial. Rivera raises a single issue for our review, which we restate as whether the trial court committed fundamental error when it limited Riveras cross-examination of the victims mother. We affirm. FACTS AND PROCEDURAL HISTORY In September of 2008, Rivera sexually molested ten-year-old J.Q. J.Q. did not tell his parents about the molestation, but a few days later J.Q. told his mother that his anus was sore. J.Q.s mother, Transito Carrera, examined the area and told J.Q. that the irritation was because J.Q. had not bathed and that he needed to take a bath. The irritation disappeared after about two weeks. About seven months later, on Good Friday in 2009, J.Q.s family held a party at their home, and Rivera attended. Upon seeing Rivera at the home, J.Q. told Carrera that Rivera had molested him in September of 2008. Carrera took J.Q. to Wishard Hospital the following Monday. On May 22, 2009, the State charged Rivera with five counts of child molesting, two as Class A felonies and three as Class C felonies. The trial court held a jury trial in August of 2010, and J.Q. testified against Rivera. Carrera also testified at the trial, through an interpreter, and the following exchange occurred during cross-examination: Q [by Riveras counsel] You did not tell any police officer who investigated this case that [J.Q.] asked you to look at his butt at any time after this party. Did you? A I dont remember. 2

Q You dont remember whether you did tell a police officer that or not. Is that your answer? A I dont remember. *** Q When the police finally came to investigate this case in Holy Week of 09, dont you think it was important to tell them everything that could possibly relate to the allegation that [J.Q.] was making against Mr. Rivera? A It was important. actually, everything that he has told me. Its just a lot that he has told me. Q You do agree that your son never mentioned anything about Mr. Rivera doing anything bad to him for seven months [from September 2008 to April 2009]? A He didnt tell me anything.

Q Therefore, would you agree that you had no reason to take [J.Q.] to a doctor to have him examined because of any suspicious thing that may have happened with Mr. Rivera? A Q A Of course I had a reason to take him to the doctor. You didnt take him to the doctor, though. Did you? We did take him to the doctor when he told me the truth.

Q Two days after this incident in September of 2008, you took [J.Q.] to the doctor? A Only Saturday and Sunday passed and we waited till Monday so we could take him to his doctor. Q You are telling me and the jury that you took [J.Q.] to the doctor within a week of this alleged incident in September of 08 to have his butt checked out. Is that what you are telling us? A I am saying that I took [J.Q.] to the doctor two days after he told me the truth. 3

Q And isnt it true that you have no medical records from any doctor that establishes or even suggests that [J.Q.] had been sexually molested? Isnt that correct? *** A The doctor is the one that has to give that report and I am the mother of the child that told me he was abused. What more do you want? Q Isnt it true that if you received medical information from a doctor who examined [J.Q.] shortly after this alleged incident, that you would have then immediately gone to the authorities and reported a child molest? A I go, if he tells me it happened, I would go to the doctor, to the authorities, to anybody. Q Isnt it true that you did not go to the authorities with any claim of sexual molestation of your son for seven months after the alleged incident? Yes or no? A I did go to the authorities when the doctor called the report, or the authorities. THE COURT: Mr. Mohler [for Rivera], move on. I think you have covered this area. *** Q Do you recall giving a deposition on May 14 of this year about this case? A I dont know the exact date but we did go with the detective and we had a conversation with him about this. Q Do you recall talking to me and answering my questions, under oath, in May of this year? A Yes. ***

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Q During this deposition, do you agree that I was present, you were present, there was a court reporter, and there was a representative from the prosecutors office? Do you agree with that? A Q A Yes. Do you recall that you were sworn to tell the truth? Yes.

Q Do you recall me asking you questions and you giving answers to my questions? A Yes, of course. The questions you asked, I answered.

Q Do you recall that the purpose for the questions was to find out what you, as [J.Q.s] mother, knew about this case? A I told you I gave no details that day.

Q And you recall I asked you a series of questions about what happened that night in September of 08? A I remember that you asked questions and I answered them.

Q Do you remember me asking questions about what happened the next day after you brought [J.Q.] back from Mr. Riveras house? A Yes, I remember.

Q Do you remember me asking you questions about what, if anything, happened for the seven months before [J.Q.] told you that something bad happened with Mr. Rivera? *** A Yes . . . .

Q Lastly, do you recall me asking you a series of questions about the day in Holy Week when [J.Q.] told you something bad happened with Mr. Rivera? A You asked. 5

Q With all that in mind, would you agree with me that you never once told me, in thirty-six pages of questions and answers, that [J.Q.] asked you to look at his butt a couple of days after this incident? You never told me that. A I dont remember having told you but it is in my memory, my mind, and if you ask me questions I can tell you many things of what he told me. Q Similar question: Isnt it true that you did not tell me in thirty-six pages of questions and answers that you visually saw redness of [J.Q.s] butt after this incident? A You want me to explain why?

Q I asked a "yes" or "no" question. Isnt it true that in thirty-six pages of questions and answers, you never told me that you took [J.Q.] to a doctor within the first few days after this alleged incident with Mr. Rivera? You never told me that. Did you? A Can you repeat the question?

Q Isnt it true that you never told me in May, under oath, that you took [J.Q.] to the doctor within days of this alleged incident? A Q I took him to the doctor after [J.Q.] told me the truth. Thats a nice answer but its not the answer to my question. MISS GARNER [for the State]: Objection. THE COURT: Move on. Mr. Mohler, you have covered this extensively.

MR. MOHLER: She did not answer the question, Your Honor. I would like to ask . . . THE COURT: She has answered the question in many different ways. Move on.

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Transcript at 71-78 (emphases added). The jury then found Rivera guilty as charged, and the trial court entered its judgment of conviction and sentence in due course. This appeal ensued. DISCUSSION AND DECISION Rivera contends that the trial court erroneously interjected itself into his crossexamination of Carrera by telling his trial counsel to "move on," and thus stopping him from continuing certain lines of questioning during the cross-examination. According to our supreme court, however, "[t]he correct procedure to be employed when a judge makes an allegedly improper comment is to request an admonishment and, if further relief is desired, to move for a mistrial. Failure to request an admonishment or move for a mistrial results in waiver of the issue." Mitchell v. State, 726 N.E.2d 1228, 1235 (Ind. 2000) (citation omitted), abrogated on other grounds by Beattie v. State, 924 N.E.2d 643 (Ind. 2010). Here, Riveras trial counsel did not request an admonishment or mistrial after the trial courts allegedly improper comments. Thus, he waived this issue for our review. Seeking to avoid procedural default, Rivera claims the trial courts comments were fundamental error and made his right to a fair trial impossible. According to our supreme court: The fundamental error exception is extremely narrow. To qualify as fundamental error, "an error must be so prejudicial to the rights of the defendant as to make a fair trial impossible." Willey v. State, 712 N.E.2d 434, 444-45 (Ind. 1999) (citations omitted). To be fundamental error, the error "must constitute a blatant violation of basic principles, the harm or potential for harm must be substantial, and the resulting error must deny the defendant fundamental due process." Wilson v. State, 514 N.E.2d 282, 284 7

(Ind. 1987). See also Ford v. State, 704 N.E.2d 457, 461 (Ind. 1998) ("This Court views the fundamental error exception to the waiver rule as an extremely narrow one, available only ,,when the record reveals clearly blatant violations of basic and elementary principles [of due process], and the harm or potential for harm [can]not be denied. ") (quoting Warriner v. State, 435 N.E.2d 562, 563 (Ind. 1982)). Id. at 1236 (alterations original). In Mitchell, our supreme court held as follows: "After reviewing the judges comments, we decline to permit the defendant to avoid procedural default upon her claim of fundamental error. The judges remarks merely . . . asserted reasonable management of the proceedings." Id. Having reviewed the transcript, we decline to accept Riveras attempt to avoid procedural default through his claim of fundamental error. As in Mitchell, the judges remarks here "merely . . . asserted reasonable management of the proceedings." Id. Accordingly, we affirm Riveras convictions. Affirmed. ROBB, C.J., and CRONE, J., concur.

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