Jose A. Bonilla v. State of Indiana ( 2013 )

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 Oct 30 2013, 5:44 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEVEN E. RIPSTRA GREGORY F. ZOELLER
MELISSA J. HALEY Attorney General of Indiana
Ripstra Law Office
Jasper, Indiana RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JOSE A. BONILLA, )
)
Appellant-Defendant, )
)
vs. ) No. 19A01-1303-CR-146
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE DUBOIS CIRCUIT COURT
The Honorable William E. Weikert, Judge
Cause No. 19C01-1009-FC-196
October 30, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
GARRARD, Senior Judge
Jose Bonilla appeals his conviction for molesting his girlfriend’s young daughter.
We affirm.
Bonilla and Amy Crowe moved in together shortly after Crowe’s daughter T.C.
was born in January 2005.1 From August 2007 to April 2010, they lived on North
Washington Street in Huntingburg in Dubois County. During this time, Crowe often left
T.C. alone with Bonilla while she and her younger daughter ran errands.2 T.C. would
frequently lie on the living room couch and watch television on such occasions. Bonilla
would then go over to her and put his hard penis in the crack of her bottom. These
actions “hurt” and made her bottom feel “[n]asty.” Tr. p. 29. Bonilla repeated these acts
against T.C. over fifty times while they lived on North Washington Street. One night,
Bonilla perpetrated this act on T.C. while she was in her bed and her younger sister was
asleep in the same room. Other than that incident, the abuse always occurred when they
were alone. Bonilla, whom T.C. called “[D]addy,” id. at 86, called her a “whore” more
than once, id. at 37. T.C. was scared to tell anybody about the abuse. T.C. was just five
years old when Bonilla finally moved out of the home in April 2010.
In August 2010, T.C. was at Crowe’s friend Nichole Cordova’s house playing
with Cordova’s nephew. T.C. told Cordova’s nephew that Bonilla had touched her
inappropriately. When Cordova told Crowe about the disclosure, Crowe took T.C. to talk
with Crowe’s mother. T.C. told her grandmother everything. Crowe immediately took
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T.C. is not Bonilla’s child.
2
Bonilla and Crowe broke up several times during their relationship. Crowe’s younger daughter is not
Bonilla’s child.
2
T.C. to the police department and filed a report, and on September 10, 2010, T.C.
completed a forensic interview.
Sometime after T.C. disclosed the abuse, Bonilla knocked on Crowe’s door to get
some of his belongings. When Crowe was uncooperative, Bonilla asked if he was in
trouble. Crowe told him to get a lawyer and slammed the door.
Bonilla had a job with a landscaping and lawn service. In the middle of
September 2010, he left his job without notice. He did not leave a forwarding address or
contact his employer about getting his last paycheck.
After T.C.’s interview, the police looked for Bonilla throughout Huntingburg but
were unable to locate him. Believing he had fled the area, the police prepared paperwork
for a warrant, and the State charged him with Class C felony child molesting.
Bonilla was picked up in Texas and returned to Indiana in February 2012. At his
jury trial, T.C., who was then eight years old, and others testified for the State. Bonilla
testified in his own defense. Bonilla said that Crowe would leave T.C. alone with him
while she ran errands with her younger daughter and that T.C. would watch television,
but he denied ever touching T.C. in a sexual manner. He admitted he called T.C. a whore
at times. When asked why he went to Texas, he explained he was concerned about his
immigration status after Crowe told him to get a lawyer and after he heard rumors of the
accusations against him. However, he claimed the main reason he left was because his
mother was sick.
The jury found Bonilla guilty as charged, and the trial court later sentenced him to
eight years, with two of those years suspended to supervised probation.
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Bonilla now appeals, contending the evidence is insufficient to sustain his
conviction. In reviewing a sufficiency of the evidence claim, we neither reweigh the
evidence nor assess the credibility of witnesses. Bailey v. State, 979 N.E.2d 133, 135
(Ind. 2012). Rather, we look to the evidence and reasonable inferences drawn therefrom
that support the verdict. Id. We affirm if there is probative evidence from which a
reasonable jury could have found the defendant guilty beyond a reasonable doubt. Id. A
victim’s testimony, even if uncorroborated, is ordinarily sufficient to sustain a child
molesting conviction. Bowles v. State, 737 N.E.2d 1150, 1152 (Ind. 2000).
To convict Bonilla of Class C felony child molesting, the State had to prove
beyond a reasonable doubt that he “did perform or submit to fondling or touching with a
child under the age of fourteen years, to-wit: [T.C.,] with the intent to arouse or satisfy
the sexual desires of the child or defendant.” Appellant’s App. p. 8; see Ind. Code § 35-
42-4-3(b) (2007).
T.C. testified that Bonilla put his hard penis in the crack of her bottom on over
fifty different occasions. Bonilla was always alone with T.C. when he perpetrated the
abuse, except for one time when T.C.’s little sister was in the room.
Despite this clear evidence, Bonilla argues that T.C.’s testimony is incredibly
dubious. Appellate courts may apply the incredible dubiosity rule to impinge upon the
jury’s function to judge witness credibility. Fajardo v. State, 859 N.E.2d 1201, 1208
(Ind. 2007), superseded by statute on other grounds. Under this rule, a defendant’s
conviction may be reversed if: (1) a sole witness presents inherently improbable
testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity
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and (2) there is a complete lack of circumstantial evidence. Id. “Application of this rule
is rare and the standard to be applied is whether the testimony is so incredibly dubious or
inherently improbable that no reasonable person could believe it.” Id.Bonilla claims we must reverse his conviction because T.C. gave conflicting
accounts at trial about whether Bonilla had his underwear on or off and whether T.C. had
her underwear on or off.
A jury, however, could reasonably conclude that any inconsistencies or
uncertainties in T.C.’s testimony about underwear were due to the fact that she was
testifying about multiple molestations. Given the sheer number of times Bonilla
subjected her to abuse,3 it is reasonable to conclude that the status of their clothing was
not always the same.
More importantly, T.C. never wavered about the fact that Bonilla put his penis in
the crack of her bottom on over fifty different occasions. See id. at 1209 (rejecting
defendant’s incredible dubiosity argument, stating: “While equivocations, uncertainties,
and inconsistencies appear, they are appropriate to the circumstances presented, the age
of the witness, and the passage of time between the incident and the time of her
3
Bonilla also claims T.C. was inconsistent about the number of times he molested her. Appellant’s Br. p.
7 (“This may have happened a few times, or 50.”). This is a mischaracterization of the evidence. T.C.
did not say or even imply that Bonilla may have molested her only a few times. Instead, her testimony
was as follows:
Q. . . . [D]id this happen one time or more than one time?
A. More than one time.
Q. Okay. Did it happen more than ten times?
A. Yes.
Q. Did it happen more than fifty times?
A. Yes.
Tr. p. 30. T.C.’s testimony was clear and unequivocal.
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statements and testimony. And there is clear, unequivocal testimony from the child that
establishes the necessary elements of the charged offense.”).
Finally, there is not a complete lack of circumstantial evidence. “Flight and
related conduct may be considered by a jury in determining a defendant’s guilt.” Dill v.
State, 741 N.E.2d 1230, 1232 (Ind. 2001). The evidence shows that Bonilla abruptly left
for Texas after he asked Crowe whether he was in trouble, Crowe told him to get a
lawyer, and he heard rumors of the accusations. He left his job without notice and did
not bother collecting his last paycheck. A jury could reasonably conclude that Bonilla
fled the state and that his flight was circumstantial evidence of his guilt.
We thus decline to invoke the incredible dubiosity rule to impinge upon the jury’s
evaluation of the evidence. The evidence is sufficient to sustain Bonilla’s child molesting
conviction.
Affirmed.
ROBB, C.J., and RILEY, J., concur.
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