Rodriguez v. State

158 N.E.3d 802

Ausencio Garcia RODRIGUEZ, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 20A-CR-324

Court of Appeals of Indiana.

Filed October 26, 2020

Publication Ordered November 19, 2020

Attorneys for Appellant: Valerie K. Boots, Marion County Public Defender Agency – Appellate Division, Joel M. Schumm, Indianapolis, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, Indiana

Mathias, Judge.

[1] Ausencio Garcia Rodriguez appeals his conviction for Level 1 felony child molesting, claiming that the trial court committed reversible error when it admitted evidence of inconclusive scientific test results.

[2] We affirm.

Facts and Procedural History

[3] On the morning of March 30, 2018, Renee Hill left home—where she lived with her ten-year-old daughter O.G.—to begin her first day of work at a new job. O.G. remained behind under the care of her mother's boyfriend, Rodriguez, who the young girl considered family. Sometime that afternoon, the two were playing inside when O.G. tripped over a chair and fell to the ground, landing on her back. Rodriguez got up from the couch and joined the young girl on the floor where he pulled her pajama pants down and licked her vagina. She repeatedly asked him to stop, and Rodriguez eventually complied. O.G. then got up and went to her room "to try and hide" that she was upset "because [she] wanted to be safe." Tr. Vol. 2, p. 140.

[4] Soon after, O.G. left her house and walked the short distance to the home of her best friend M.M. Upon entering, O.G. was so upset that she "couldn't even speak." Id. at 190. M.M. and her mother knew that something was seriously wrong. So, with M.M.'s help, O.G. called her mother who promptly left work. After O.G.'s mother arrived, she spoke with her daughter for a few minutes, and the pair left for the hospital.

[5] At the hospital, O.G. was examined by a forensic nurse who collected two internal and two external vaginal swabs for forensic testing. O.G. and her mother also met and spoke with a family case manager from the Department of Health Services. They met with the case manager again a few days later for a more formal interview. Detective Nicolle Flynn watched that interview through a live video feed, and afterwards, she acquired a search warrant to obtain a DNA sample from Rodriguez.

[6] Law enforcement eventually tracked down Rodriguez, and he was interviewed by Detective Flynn and a second officer who assisted as a Spanish–English interpreter. Rodriguez denied O.G.'s specific allegation, but he admitted to watching the young girl on March 30. He also acknowledged that, while "play biting" with O.G., it was possible that his mouth went near her vaginal area. Conf. Ex. Vol. pp. 86–87. After the interview, Detective Flynn arrested Rodriguez.

[7] Meanwhile, two crime-lab forensic scientists examined the internal and external genital swabs taken from O.G. Shea Anderson performed the serological testing on the swabs to identify the presence of saliva. This test assesses the amount of the enzyme amylase in a given sample. Amylase "helps with digestion in [the] mouth" and is thus expected to be at elevated levels in saliva. Tr. Vol. 2, p. 28. But because there is "nothing unique to saliva," the test cannot confirm its presence. Tr. Vol. 3, p. 9. Instead, based on the amount of amylase present, the test produces one of three outcomes: (1) no indication of saliva; (2) inconclusive for saliva; or (3) indicative of saliva. The swabs here were inconclusive for saliva—each contained amylase, but not at a high enough level to be indicative. The samples were then sent for DNA analysis.

[8] Tonya Fishburn performed the DNA testing on the swabs. Because "there was so much female DNA present," she was only able to perform Y-STR testing and not traditional STR testing. Id. at 69. The latter evaluates male and female DNA to create a profile unique to an individual; the former looks for the Y chromosome, which is found only in male DNA. If enough Y-STR DNA is obtained, Fishburn can produce a comparable profile that is used to identify a particular patrilineal line—grandfather, father, son, grandson, etc. To create the comparable profile, Fishburn tests "25 different areas on the DNA," and she must obtain results from at least five of those locations. Id. at 83, 86.

[9] Fishburn observed male DNA on both sets of vaginal swabs, but she was only able to create a comparable profile for the external sample. For the internal swabs, though male DNA was present, Fishburn was unable to retrieve DNA data from five of the twenty-five locations tested. Thus, the profile was "inconclusive due to insufficient sample data." Conf. Ex. Vol. p. 10. But the comparable Y-STR DNA profile from the external swabs was consistent with Rodriguez's Y-STR DNA profile to the highest statistical degree possible based on the crime lab's database.

[10] The State ultimately charged Rodriguez with two counts of felony child molesting. Prior to trial, Rodriguez filed a motion in limine that, in part, sought to exclude evidence of the inconclusive test results.¹ After a hearing, the trial court summarily denied the motion. The evidence was introduced over objection at trial, and the jury found Rodriguez guilty as charged. The trial court subsequently vacated one of the convictions due to double jeopardy concerns and sentenced Rodriguez accordingly. He now appeals.

Standard of Review

[11] Rodriguez argues that the court committed reversible error by admitting evidence of the inconclusive scientific test results. A trial court has broad discretion in ruling on the admissibility of evidence, and thus we review an evidentiary ruling for an abuse of that discretion. Scanland v. State , 139 N.E.3d 237, 242 (Ind. Ct. App. 2019). An abuse of discretion occurs if the trial court's decision clearly contravenes the logic and effect of the facts and circumstances, or if the court misinterprets the law. Id. Yet, even when a trial court abuses its discretion in admitting evidence, the error is harmless unless it affects the substantial rights of a party. Ind. Trial Rule 61.

Discussion and Decision

[12] Rodriguez asserts that evidence of the inconclusive results from both the serological test for saliva and the Y-STR analysis of the internal genital swabs should not have been admitted for two reasons: (1) it is irrelevant, Ind. Evidence Rules 401 & 402 ; and (2) even if the evidence is relevant, it is unduly prejudicial, Ind. Evidence Rule 403. Rodriguez then argues that the court's error was not harmless. We disagree and address each contention in turn.

I. The trial court did not abuse its discretion in admitting evidence of the inconclusive test results.

[13] Evidence is relevant if it has any tendency to alter the probability of a material fact. Evid. R. 401. This standard is "a low bar," and trial courts enjoy broad discretion "in deciding whether that bar is cleared." Snow v. State , 77 N.E.3d 173, 177 (Ind. 2017). Generally, evidence that clears this low bar is admissible. See Evid. R. 402. Yet, even relevant evidence may be excluded "if its probative value is substantially outweighed by a danger of ... unfair prejudice, confusing the issues, misleading the jury ...." Evid. R. 403.

[14] Rodriguez first argues that the inconclusive test results were not relevant, relying heavily on Deloney v. State , 938 N.E.2d 724 (Ind. Ct. App. 2010), trans. denied . But he reads that too decision too broadly, and we decline to extend its holding to the challenged evidence here.

[15] The Deloney panel addressed the admissibility of a mixed sample of nonmatch crime-scene DNA evidence that was unaccompanied by statistical data to show the probability of an individual's contribution. Id. at 729–30. There, a forensic scientist used STR analysis on a mixed sample of DNA found on a hat that was recovered from the scene of a murder. Id. at 728. From the DNA profile obtained, the scientist could not either exclude or include Deloney "as one of the people who deposited" DNA on the hat. Id. at 729. And, "because the mixed sample did not allow for statistical analysis," the scientist could not calculate the probability that the DNA came from Deloney. Id. A panel of this court, in finding this particular DNA evidence irrelevant, aptly noted, "Without statistical data, evidence of a non-match is meaningless, and does not assist the trier of fact in determining the guilt or innocence of the defendant." Id. at 730.

[16] Rodriguez argues that, just as in Deloney , evidence of the Y-STR analysis of the internal swabs is irrelevant and that the logic of that case "should extend to the serology report." Appellant's Br. at 10, 12. Under the facts of this case, we disagree.

[17] The same concerns addressed by the Deloney panel are not present here for two reasons. First, the DNA evidence in Deloney is distinct from the challenged evidence. Unlike the STR analysis in Deloney , which creates a unique DNA profile that is used to identity a match, neither the serological test for saliva nor the Y-STR analysis can be used to "match" a particular individual. Indeed, for the serological test, the "most" a scientist can say is that a sample is "inconclusive or indicative of" saliva. Tr. Vol. 3, p. 28. And, for the Y-STR analysis, even when there is enough male DNA to create a comparable profile, it "is not unique to an individual." Id. at 72. Thus, the Deloney panel's concern with "DNA evidence that does not constitute a match" is not implicated in the same way here. 938 N.E.2d at 730.

[18] Second, this case does not involve a mixed sample of male DNA or the question of identity. There is no dispute that Rodriguez watched O.G. on the day in question, and there is no suggestion that the male DNA profile obtained from the internal swabs was a mixed example. As a result, this case does not involve "statistical data regarding the probability of ...