By Liz Shepherd
InkFreeNews

Jose Luis Izaguirre

WARSAW — The State of Indiana has filed a brief with the Indiana Court of Appeals in response to Jose Izaguirre’s appellant’s brief.

Izaguirre, 33, is appealing a 35-year prison sentence after he was convicted on two Level 1 felony child molesting charges.

During a three-day jury trial in April 2021, Izaguirre was found guilty on the charges. He was sentenced in Kosciusko Circuit Court in May 2021.

Izaguirre is currently serving his prison sentence at Miami Correctional Level 3 Facility, with an estimated release date of March 28, 2049.

According to court documents, on March 29, 2019, a Child Protective Services caseworker received information that Izaguirre was having sexual intercourse with a child.

The child told the caseworker that Izaguirre inappropriately touched them. They said the interactions turned into sexual intercourse two years after the molestations began. The child said they would tell Izaguirre no but that he would hold them down and yell. They also said Izaguirre made them watch pornographic videos.

Izaguirre admitted to sexually touching and molesting the child more than 20 times. He also admitted to watching pornographic videos with them.

In his appeal, Izaguirre and his counsel argued the trial court erred in permitting the child to testify during the trial with a comfort animal. Indiana Code 35-40-5-13 reads as follows: “When a child less than 16 years of age is summoned as a witness to any hearing in any criminal matter, including a preliminary hearing, a comfort item or a comfort animal shall be allowed to remain in the courtroom with the child during the child’s testimony unless the court finds that the defendant’s constitutional right to a fair trial will be unduly prejudiced.”

Indiana Supervising Deputy Attorney General George P. Sherman has filed the appellee’s brief on behalf of the state.

The 13-page brief, filed April 27, argues that the trial court properly allowed the child to testify with a comfort dog and requested the trial court’s judgment be affirmed.

Sherman argues that Izaguirre failed to demonstrate that the use of a comfort animal was unduly prejudicial to him and his case; the brief also argues that any error in the application of IC 35-40-5-13 would have been harmless.

“It appears that Izaguirre’s primary complaint about the statute is that it cannot be determined whether something is unduly prejudicial until a trial is completed,” reads the brief. “However, our trial courts routinely evaluate whether a matter is unduly prejudicial to a litigant during a trial.”

The brief further elaborates on Izaguirre failing to show the use of a comfort dog was unduly prejudicial to him by listing three examples of cases in which courts held there was nothing prejudicial about allowing a witness to testify with a support animal.

“As Izaguirre has failed to establish any prejudice, let alone undue prejudice, from the dog’s presence, his challenge to the trial court’s ruling should be rejected,” read the brief.

In regards to Izaguirre’s argument on a therapy dog generating sympathy for the victim, the state argued that the jury believing a dog is “on the side of the witness is irrelevant since the jury would obviously know that the dog has no way of determining whether the witness is telling the truth.”

The state also argued that any error in allowing the victim to testify with a comfort dog would have been harmless.

“The record does not show any disruptions or improper behavior by the dog during (the child’s) testimony,” read the brief. “Additionally, in final jury instructions, the jury was instructed not to allow sympathy for an individual to influence them in reaching a verdict. Moreover, (the child) unequivocally testified that Izaguirre molested (them) and (their) testimony was corroborated by Izaguirre’s admission that he had molested (them.) Therefore, any error resulting from the dog’s presence could only have been harmless.”