Cruz Angeles v. State

751 N.E.2d 790

Celerino CRUZ ANGELES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 12A02-9912-CR-849.

Court of Appeals of Indiana.

July 16, 2001.

Transfer Denied September 4, 2001.

Brian G. Dekker, O'Brien & Dekker, Lafayette, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Adam M. Dulik, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

VAIDIK, Judge

Case Summary

Celerino Cruz Angeles appeals his convictions for sexual misconduct with a minor¹ and child molesting.² In particular, he claims that the interpreter used during his trial lacked the appropriate qualifications to serve as an expert and failed to properly translate testimony. In addition, he challenges the sufficiency of the evidence and his sentence. We affirm because the interpreter was properly qualified, and whether the interpreter accurately translated testimony is not an issue properly before us. Furthermore, sufficient evidence supports the convictions, and the sentence was not erroneous.

Facts and Procedural History

Angeles and Riselda, his wife, have four minor daughters: V.A., E .A., Ma.A., Mo.A. The family is originally from Mexico, and Spanish is their native language. In July 1995, the family moved to Frankfort, Indiana. With the exception of E.A., the family moved into a home at 752 Columbia Street in November 1995. They remained there for approximately one year. At that point, the family including E.A. moved to 309 West Wabash Street. They lived there for approximately two years before moving to a house on North Clay Street. Riselda filed for a divorce in November of 1998. The day before she filed for divorce, her daughters informed Riselda that Angeles had been molesting them at night. A Clinton County investigator interviewed the girls at their schools regarding the incidents.

When the family lived on Columbia Street, Ma.A., and Mo.A. shared a bedroom. After Riselda fell asleep, Angeles would enter the girls' bedroom and molest them. Ma.A. testified that Angeles touched her between her legs on her private parts and on her breasts underneath her clothing. She stated that this occurred almost every night. When the family moved to Wabash Street, Angeles continued to touch Ma.A.'s breasts and private parts under her clothing in her bedroom at night. Ma.A. saw Angeles touch Mo.A. three times on her "privates" when they lived on Wabash Street. Angeles also touched Mo.A. between her legs, on her private parts under her clothing every night while the family lived on Columbia Street. Angeles would touch Mo.A. when she was asleep and would leave when she awoke. Angeles continued to touch Mo.A. when they lived on Wabash Street.

Angeles touched V.A. once or twice on her breasts over her clothing when they lived on Columbia Street. He also touched V.A.'s breasts through her clothing while the family lived on Wabash Street. Further, he touched E.A.'s breasts over her clothing eight to twelve times in her bedroom at night when the family lived on Wabash Street.

Angeles was charged with three counts of sexual misconduct with a minor, all Class C felonies and six counts of child molesting as Class C felonies. Angeles did not appear for his trial. Two interpreters were provided for use at trial. One interpreter was to translate for Angeles and the other translator, Renata Rae Harris, was to translate the testimony of Spanish-speaking witnesses. At trial, Mo.A., E.A., and V.A. testified in Spanish, and Harris translated their testimony into English. The trial court swore in Harris before Mo.A. began to testify. After Mo.A. testified, but before E.A. and V.A. testified, Angeles objected to Harris' qualifications. Following the objection, the trial court questioned Harris regarding her qualifications and found her qualified to interpret. Angeles' attorney did not object to the trial court's establishment of Harris' qualifications.

Angeles was convicted of two counts of sexual misconduct with a minor based on his touching of V.A., one count of child molesting based on his touching of E.A., one count of child molesting based on his touching of Mo.A., and one count of child molesting based on his touching of Ma.A.

At the sentencing hearing, the court found several aggravating factors. The aggravators included the ongoing nature of his crimes, that he was in a position of trust with the four victims by virtue of being their father, and that he exhibited a lack of remorse by not appearing for his trial and causing his victims embarrassment when testifying against him. The trial court found one mitigating factor, namely, his lack of a criminal history. The court found that the aggravating factors outweighed the mitigating factors. The court sentenced him to seven years for each of his convictions to be served consecutively with five years suspended. Thus, he was sentenced to thirty years imprisonment.

Angeles filed the Record of Proceedings on April 10, 2000. Angeles included a retranslation of Harris' original translation by a second interpreter, Claudia Samulowitz, in the record. The new translation had not been presented at trial or reviewed by the trial court. The State moved to strike the Record of Proceedings because Angeles failed to present a certified record of the jury trial to the trial court. We granted the motion and remanded to the trial court for certification of the trial transcript. Upon remand, Harris reviewed the tape of the trial and Samulowitz's notations in the record and responded with a document presenting a critique of Samulowitz's review of the translation. The trial court certified the Record of Proceedings as filed including Samulowitz's translation without including Harris' critique.

Discussion and Decision

Angeles presents four issues for review on appeal. First, he asserts that Harris was not qualified to serve as his interpreter. Second, he claims that Harris improperly translated V.A.'s testimony. Third, he argues that there is insufficient evidence to support his convictions for child molesting of E.A. and sexual misconduct with V.A. Finally, he maintains that his sentence is manifestly unreasonable. We address each argument in turn.

I. The Qualifications of the Interpreter

Angeles contends that the trial court abused its discretion when it found Harris qualified as an expert. In particular, he asserts that Harris was not qualified because she stated she was not bilingual. Mo.A., E.A., and V.A. spoke little English at trial and required the translation services of Harris during the proceedings. Before Mo.A. testified, the trial court swore in Harris. Angeles objected to her qualifications after Mo.A. testified, but before E.A. and V.A. testified. Thus, any error was preserved regarding the translation of E.A. and V.A.'s testimony, but was waived regarding the translation of Mo.A.'s testimony.

Under Indiana Rule of Evidence 604, "An interpreter is subject to the provisions of these rules relating to qualification of an expert and the administration of an oath or affirmation to make a true translation."³ Qualification of an expert is governed by Indiana Rule of Evidence 702(a), which states in pertinent part:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.

In order to qualify as an expert, an interpreter must have "specialized knowledge in the language or particular form of communication sufficient to assist the trier of fact to understand the evidence." 13 ROBERT L. MILLER, INDIANA EVIDENCE § 604.101 at 66 (2d ed.1995).

In this case, the following colloquy highlighted the translator's experience:

Court: And you have been a teacher at both the high school system and also in the college system of Spanish, is that correct?

Ms. Harris: Yes.

Court: You worked thirty-four years in the Frankfort school system?

Ms. Harris: No.

Court: Thirty-four years?

Ms. Harris: At Western School Corporation in Kokomo.

Court: Sorry. At Western in Kokomo?

Ms. Harris: Right.

Court: Excuse me. In teaching Spanish, is that correct?

Ms. Harris: Right.

Court: And that would include all levels of Spanish?

Ms. Harris: Right.

Court: You also have worked at IU or Indiana University of Kokomo and taught Spanish there—

Ms. Harris: That's true.

Court:—is that correct?

Ms. Harris: Yes.

Court: And you've been to foreign countries where they speak Spanish, is that correct?

Ms. Harris: Yes, I have.

Court: And you are fluent in Spanish in both—is that correct?

Ms. Harris: Yes. I am not a bilingual but I am fluent.

Court: Okay. The Court feels under the law that the interpreter is qualified both under the case law, which leaves it to the discretion of the Court, the statutory law, and the rules. All right. The Court's made a ruling.

Record at 204-06. We have long held that where an interpreter is appointed, the manner in which the examination is conducted is largely within the discretion of the trial court. Diaz v. State, 444 N.E.2d 340, 342 (Ind.Ct.App.1983). Based on the trial court's examination, the record shows that Harris had thirty-four years of experience teaching Spanish at the high school level. Additionally, she taught Spanish at the college level. She also traveled in Spanish speaking countries. Furthermore, although she indicated that she was not bilingual, she considered herself to be fluent in Spanish. The questions asked by the trial court established that Harris had extensive experience with the Spanish language and felt comfortable with her own ability to translate. Based on the trial court's examination of Harris' experience in this case, there was sufficient evidence to support the trial court's finding that she was qualified to translate. Thus, the trial court did not abuse its discretion in concluding...