IN THE
Court of Appeals of Indiana
FILED
Andres Solis Guerra, Jul 09 2026, 10:21 am
Appellant-Defendant CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
v.
State of Indiana,
Appellee-Plaintiff
July 9, 2026
Court of Appeals Case No.
25A-CR-3231
Appeal from the Lake Superior Court
The Honorable Gina L. Jones, Judge
Trial Court Cause No.
45G03-1704-FA-1
Opinion by Judge DeBoer
Judges Mathias and Kenworthy concur.
Court of Appeals of Indiana Opinion 25A-CR-3231 July 9, 2026 Page 1 of 27
DeBoer, Judge.
Case Summary
[1] The State charged Andres Guerra and his girlfriend, Stephanie Alvarado, with
molesting Guerra’s child, K.G. Before Guerra’s trial, the State filed a motion in
limine to keep out any reference to or evidence of a physical altercation that
took place between Alvarado and K.G. near the end of a period during which
Guerra allegedly molested K.G. As a result of the altercation, Alvarado pled
guilty to misdemeanor battery, and a no-contact order was entered. Guerra’s
defense at trial was that K.G. had falsely accused him, and he wanted to present
evidence that she had done so because the no-contact order was about to expire
and she did not want Alvarado to move back into the house. However,
between the trial court’s order in limine and rulings throughout trial, Guerra
was prohibited from mentioning the physical altercation, battery charge,
conviction, and no-contact order. Ultimately, the jury found him guilty of two
counts of child molestation. On appeal, he raises issues related to the exclusion
of evidence, the sufficiency of the evidence, substantive double jeopardy, and
the trial court’s sentencing discretion. We affirm.
Facts and Procedural History
[2] K.G. (born February 2003) is Guerra’s biological daughter. Guerra and K.G.’s
mother separated when K.G. was three years old. Growing up, K.G. and her
younger brother lived with their mother but visited Guerra at his house in
Hammond on weekends and in the summer. When K.G. was around eleven
Court of Appeals of Indiana Opinion 25A-CR-3231 July 9, 2026 Page 2 of 27
years old, she woke up one night “to [Guerra] in between [her] legs[.]”
Transcript Vol. 4 at 56. She did not have pants on, and Guerra’s “mouth was
on . . . [her] vagina . . . and he was licking[.]” Id. at 57. K.G. tried to make
Guerra stop by squeezing his head with her legs, but he did not stop. After that
incident, Guerra “continued to do sexual things to” K.G. to the point where it
became “a normal thing” and K.G. could not remember a time before the
abuse. Id. at 57, 58.
[3] When K.G. was twelve or thirteen, Guerra moved into an apartment in East
Chicago with Alvarado and her two children. Guerra and Alvarado had their
own child together thereafter. At the apartment, Guerra continued to regularly
“us[e] his mouth on” K.G. Id. at 63. On one occasion, Guerra “tried to stick
his penis in” K.G., but “it couldn’t fit” and it hurt K.G., so he stopped. Id. at
62. The abuse occurred nearly every time K.G. visited Guerra, so she couldn’t
“pinpoint every single time it happened.” Id. at 64. At some point, Alvarado
started sexually abusing K.G. as well. It started with massages, but then
Alvarado began “go[ing] down on [K.G.] too.” Id. at 65. Eventually, Alvarado
and Guerra started having sex with K.G. present, and they would involve her to
“jerk [Guerra] off” or have him “go[] down on” K.G. Id. at 68.
[4] In January 2017, K.G. told an online friend about the sexual abuse and
promised she would tell an adult. At the time, K.G. was an eighth-grade
honors student at Lane Tech College Prep in Chicago. That same month, K.G.
was silently reading the Greek myth of Persephone when her English teacher,
Elizabeth Cramarosso, noticed she looked “physically shaky” and “disturbed.”
Court of Appeals of Indiana Opinion 25A-CR-3231 July 9, 2026 Page 3 of 27
Tr. Vol. 3 at 144. The myth contains “imagery that suggests sexual violence[,]”
and Cramarosso told K.G. she didn’t have to read it if it was “too much.” Id. at
143, 144. K.G. indicated she had something to tell Cramarosso, but she
seemed hesitant to share. The teacher brought K.G. to a private room and gave
her space, and after a few class periods passed, K.G. told Cramarosso she had
been sexually abused and “appeared relieved” after telling her. Id. at 152.
Being a mandated reporter, Cramarosso relayed the information to the
Department of Child Services (DCS).
[5] On February 20, 2017, K.G. was forensically interviewed by Lawrence
Thurmond, the deputy commander of the Lake County Sheriff’s Department
Special Victims Unit. When Thurmond asked questions about the sexual
abuse, K.G. “became a little nervous” but “spoke freely and fluently about the
things that happened to her.” Id. at 185-86. Thurmond, who had conducted
over a thousand child forensic interviews, believed K.G.’s behavior was
consistent with what he’d observed in other interviews. The next day, East
Chicago Police Department Detective Miguel Pena interviewed Guerra.
Guerra initially said he was “nervous because [he had] no idea what [the
interview was] about.” State’s Exhibit 4(a) 4:06-4:09. After the detective told
Guerra about K.G.’s allegations, Guerra called them “scary” and “alarming.”
Id. at 7:39, 8:56; Tr. Vol. 4 at 166-67. When Pena asked Guerra specific
questions like whether he’d ever put his mouth on K.G.’s vagina, Guerra would
“firmly” deny the misconduct but “break eye contact with” the detective. Tr.
Vol. 4 at 171; see State’s Ex. 4(a) at 10:16-10:50.
Court of Appeals of Indiana Opinion 25A-CR-3231 July 9, 2026 Page 4 of 27
[6] On April 24, 2017, the State charged Guerra and Alvarado with child
molesting. Guerra was charged with committing Class A felony child
molesting between February 1, 2013 and June 30, 2014, and Level 1 felony
child molesting between July 1, 2014 and October 31, 2015. 1 Guerra was tried
separately from Alvarado, and she did not testify at his three-day jury trial in
October 2025.
[7] The day before the trial began, the State filed a motion in limine to exclude
evidence related to a “physical altercation” that occurred between K.G. and
Alvarado on October 30, 2015. Appellant’s Appendix Vol. 2 at 69-70. After
law enforcement investigated the altercation, Alvarado was charged with Level
6 felony battery resulting in injury to a child under fourteen. As part of the
criminal case, the court entered a no-contact order prohibiting contact between
1
During the period the Class A felony was alleged to have occurred, February 1, 2013 through June 30,
2014, Indiana Code section 35-42-4-3 read in relevant part:
(a) A person who, with a child under fourteen . . . years of age, performs or submits to
sexual intercourse or deviate sexual conduct commits child molesting, a Class B felony.
However, the offense is a Class A felony if:
(1) it is committed by a person at least twenty-one . . . years of age[.]
The statute was amended on July 1, 2014, and from then through the end of the charged period for the Level
1 felony, the statute read:
(a) A person who, with a child under fourteen . . . years of age, knowingly or intentionally
performs or submits to sexual intercourse or other sexual conduct (as defined in IC 35-31.5-2-221.5) commits child molesting, a Level 3 felony. However, the offense is a Level 1
felony if:
(1) it is committed by a person at least twenty-one . . . years of age[.]
Ind. Code § 35-42-4-3(a)(1) (as amended July 1, 2014); see Adcock v. State, 22 N.E.3d 720, 725 n.6 (Ind. Ct.
App. 2014) (noting the 2014 amendment replaced “deviate sexual conduct” with “other sexual conduct” and
showing the phrases carry the same definition); Boling v. State, 982 N.E.2d 1055, 1057 (Ind. Ct. App. 2013)
(noting that although the pre-amendment version of the child molesting statute was silent as to mens rea,
“[t]he culpability requirement . . . [was] knowingly or intentionally.”).
Court of Appeals of Indiana Opinion 25A-CR-3231 July 9, 2026 Page 5 of 27
Alvarado and K.G. through January 8, 2017. Alvarado pled guilty to Class A
misdemeanor battery in July 2016 and received one year of probation.
Pursuant to Indiana Evidence Rules 401, 403, and 608(b), the State’s motion
sought to prohibit “defense counsel from presenting any evidence of or
[making] any mention of in closing, direct, or cross-examination[,] the physical
altercation and subsequent criminal case of Stephanie Alvarado, or of the No
Contact Order associated with said case.” Id. at 69-70.
[8] Before jury selection the next day, the court addressed the State’s motion.
Guerra’s attorney confirmed many of the factual details and objected to the
motion as follows:
Alvarado[,] who is charged separately . . . , she was previously
charged with battery as a felony in a separate . . . proceeding
back in 2015. The alleged victim in this case was the victim in
that case. There was some allegation that [Alvarado] and [K.G.]
got into a fistfight. [Alvarado] gets charged with a crime. She’s
charged with a felony. The case is pending for a while. She
pleads guilty to a misdemeanor. She gets a year probation, gets a
no contact order, all those things were in place.
Now what happened during that period of time, DCS stepped in.
. . . Alvarado, [Guerra’s] girlfriend[,] had to move out of the
house. Mr. Guerra got custody of her children while she was out
of the house, so he was living with him and [Alvarado’s] child,
her older children, and then he would see his kids on the
weekend. But that whole time Ms. Alvarado was . . . out of the
house and the kids were visiting for the weekend. So this . . .
information is part of the story.
Court of Appeals of Indiana Opinion 25A-CR-3231 July 9, 2026 Page 6 of 27
Now, I’m not planning on telling the story where there was
mutual combat because the State’s trying to ask that that battery
case not come into the evidence because it shows perhaps . . . a
prior bad act from the alleged victim in this case. But the only
person who was charged with a crime was . . . Alvarado. The
alleged victim in this case was the victim in that case, so if we’re
going to tell the story, . . . [w]e can just talk about how Ms.
Alvarado was charged with a crime[,] and we can make sure that
the jury doesn’t get [the] impression that [K.G.] did anything
wrong that day if that’s what the State’s worried about[.] . . .
But this is all part of the story[,] and it goes to our theory of the
defense[.] . . . When Ms. Alvarado was on probation the plan
was reunification. She was going to come back and . . . live as a
family in the household together when the case was over. So this
is all part of the story. So if the State’s concerned that we’re
trying to run the alleged victim [K.G.] through the mud, that’s
not our intention . . . . [T]hat’s my objection for the battery case.
Tr. Vol. 2 at 8-10.
[9] In response, the State argued the information was “irrelevant because [it]
involve[d] . . . Alvarado[,]” who was not going to testify at Guerra’s trial. Id. at
10. It said the evidence would portray K.G. as “a fighter” who “gets into
heated arguments with [Alvarado].” Id. at 11. The State also argued that even
if the evidence tended to show K.G. had “a motive to fabricate [sexual abuse
allegations] against . . . Alvarado[,]” it did not suggest the same as to Guerra.
Id. “[D]uring that time when the no contact order was in place against
[Alvarado], [K.G.] still had visitation with [Guerra].” Id. The State also noted
the “risk [of] confusing the jury by introducing this little mini trial of what
happened between [K.G.] and [Alvarado].” Id. at 12.
Court of Appeals of Indiana Opinion 25A-CR-3231 July 9, 2026 Page 7 of 27 [10] In reply, defense counsel argued the evidence gave K.G. “a reason to make up a
story against [Guerra] and [Alvarado] because [Guerra] was telling [K.G.] that .
. . her abuser’s going to come back and live with them, and then this allegation
was brought to light . . . .” Id. at 13-14. He also said the evidence was relevant
to show “there was a delay in reporting” because K.G. had talked to law
enforcement about the physical altercation but failed to disclose she was being
sexually abused. Id. at 16. Ultimately, the court granted the State’s motion in
limine in part, permitting “counsel to inquire about the relationship with
[Alvarado]” but not the physical altercation. Id. at 18.
[11] The State’s first witness was Cramarosso, and she testified about K.G.’s
disclosure. Next, Thurmond testified about his forensic interview with K.G.
The State then called Angela Rodts, the director of the Dunebrook Child
Advocacy Center. Neither Rodts nor her organization was involved in K.G.’s
forensic interview, but she testified generally about child forensic interview
procedures, the prevalence of delayed disclosures, that most children who
disclose sexual abuse give true reports, and that physical evidence is rarely
available in child sexual abuse cases.
[12] K.G., who was twenty-two years old at the time of trial, testified next. On
direct examination, she described the sexual abuse and her disclosure of that
abuse consistent with the facts described above. The State also asked her to
“tell [the jury] a little bit about [her] relationship with [Alvarado] outside of just
the sexual part of it[,]” specifically, whether she got “along with her[.]” Tr.
Vol. 4 at 66. K.G. said they “used to get along well” and “have girl time”
Court of Appeals of Indiana Opinion 25A-CR-3231 July 9, 2026 Page 8 of 27
together, including going to the movies and painting their nails. Id. She
testified that she had “trust[ed]” and “liked [Alvarado].” Id. at 67. K.G. then
explained that the sexual abuse had “affected [her] life in every way[,]”
especially when she was younger, but she was doing “a lot better now.” Id. at
71, 72. She elaborated that she had been diagnosed with PTSD and depression,
took antidepressants for a while, and spent time in an inpatient facility to
address her struggles with self-harm.
[13] On cross-examination, defense counsel asked to “make a motion outside the
presence of the jury” because he believed “the questions the State asked on
direct examination . . . opened up the door in relation to exploring the
relationship between [K.G.] and Stephanie Alvarado.” Id. at 85. After the jury
was excused, defense counsel argued K.G.’s testimony on direct had painted a
false “picture that [she] and [Alvarado] got along[.]” Id. at 92. He again
summarized the timeline following the October 2015 physical altercation and
complained that “to not let us talk about it deprives [Guerra] of his
constitutional right[] to present his theory of the case.” Id. at 92. He reiterated
that he did not “want to get into the facts of” the incident or “paint [K.G.] in a
bad light[,]” but he needed to introduce “something that explains why [K.G.]
wasn’t having contact with [Alvarado] and then [that Guerra told her] about the
plan of reunification, [because] that’s what we believe led to these charges.” Id.
[14] After the State reasserted its position, the court stated the direct examination
had not opened the door despite the characterization of K.G. and Alvarado’s
“relationship as hunky-dory great” not being “accurate [to a] certain point.” Id.
Court of Appeals of Indiana Opinion 25A-CR-3231 July 9, 2026 Page 9 of 27
at 97. The court still did not believe “identifying the battery and subsequent
DCS case” was appropriate but said it would allow narrow impeachment
evidence. Id. at 95-96. Defense counsel argued the disputed evidence was
“fodder for cross-examination” because K.G. spoke to officers about Alvarado
in 2015 and “never mentioned that she was being molested by [Alvarado] . . . .”
Id. at 98. But the court responded, “I would agree . . . if [Alvarado] was in that
seat . . . but she’s not. This isn’t [Alvarado’s] case.” Id. at 99. As part of his
offer of proof, defense counsel introduced the 2015 charging information
against Alvarado, probable cause affidavit, order finding probable cause, and
plea agreement. See Exhibits at 15-18. Thereafter, the attorneys and the court
worked at length to configure “real[ly] specific” questions defense counsel could
ask K.G. consistent with the court’s rulings. Tr. Vol. 4 at 112.
[15] Eventually, defense counsel asked K.G.:
Q: . . .Was there a time period that you recall when you would
go for a weekend and [Alvarado] would not be there, like months
at a time?
A: Yeah.
Q: At the time that you talked to Ms. Cramarosso at school, you
hadn’t seen [Alvarado] for a long period of time? Would you say
that’s correct?
A: I guess so.
Q: Over . . . a year, correct?
Court of Appeals of Indiana Opinion 25A-CR-3231 July 9, 2026 Page 10 of 27
A: Yeah. . . .
Q: . . . So at some point, you recalled having a conversation with
a police officer? I’m not expecting you to remember every detail,
but do you remember having a conversation with a police officer
and not mentioning to the police officer that both your dad and
your dad’s girlfriend, [Alvarado], were sexually touching you?
A: Yeah.
Q: We could agree that you didn’t say anything, correct?
A: Yes.
Q: Okay. And then years later you made a disclosure to Ms.
Cramarosso at school, correct?
A: Yes.
Id. at 123-25. After another sidebar, K.G. confirmed she had not been touched
inappropriately during the period of time she stayed with Guerra when
Alvarado was not there.
[16] On the third and final day of trial, Pena testified about interviewing Guerra on
February 21, 2017 and law enforcement’s investigation of K.G.’s allegations.
Guerra then elected not to testify on his own behalf. In closing, defense counsel
argued K.G. falsely accused Guerra, which he alleged “had to do with the
custody and divorce battle” between Guerra and K.G.’s biological mother, who
Court of Appeals of Indiana Opinion 25A-CR-3231 July 9, 2026 Page 11 of 27
had passed away. Tr. Vol. 5 at 45. He also attacked the credibility of the
State’s witnesses and argued there was a “lack of investigation” in the case. Id.
at 53.
[17] After deliberating, the jury found Guerra guilty of both counts of child
molestation. The court imposed two forty-year sentences to be served
consecutively in the Department of Correction. Guerra now appeals.
Discussion and Decision
1. Exclusion of Evidence
[18] Guerra argues the trial court erred by excluding all evidence related to Alvarado
and K.G.’s October 2015 physical altercation and Alvarado’s subsequent
battery charge, conviction, and no contact order. A trial court has broad
discretion to admit or exclude evidence. Russell v. State, 234 N.E.3d 829, 858
(Ind. 2024), cert. denied. “We will reverse only if the trial court’s ruling was
clearly against the logic and effect of the facts and circumstances before it and
the errors affect a party’s substantial rights.” Jones v. State, 258 N.E.3d 1063,
1075 (Ind. Ct. App. 2025), trans. denied. 2
2
Before trial, the trial court partially granted the State’s motion in limine to exclude the disputed evidence.
“A motion in limine is a preliminary ruling that, in itself, does not result in reversible error.” McBride v. State,
261 N.E.3d 274, 278 (Ind. Ct. App. 2025), reh’g denied. Moreover, to preserve a claim of error based on the
exclusion of evidence, the defendant must, as Guerra did here, make an appropriate offer of proof. Id. at 279;
see Ind. Evidence Rule 103(a)(2) (2025). The State does not argue Guerra failed to preserve this issue for
appeal. We also note that after July 1, 2026, a party need not renew an offer of proof to preserve a claim of
error once the trial court makes a definitive ruling on the record—before or during trial—including a ruling
on a motion in limine. Evid. R. 103(b) (as amended July 1, 2026).
Court of Appeals of Indiana Opinion 25A-CR-3231 July 9, 2026 Page 12 of 27 [19] Criminal defendants must be afforded “a meaningful opportunity to present a
complete defense.” Crossland v. State, 256 N.E.3d 517, 528 (Ind. 2025) (quoting
Kubsch v. State, 784 N.E.2d 905, 924 (Ind. 2003)). They have a related right to
cross-examine witnesses. Koenig v. State, 933 N.E.2d 1271, 1273 (Ind. 2010). 3
A key component of the right to present a defense is the defendant’s prerogative
to present his own version of the facts. Roach v. State, 695 N.E.2d 934, 939 (Ind.
1998), reh’g granted. This gives the jury an opportunity to contrast the
defendant’s version of events with the prosecution’s before deciding where the
truth lies. Id. “Although the right to present a defense ‘is of the utmost
importance, it is not absolute.’” Marley v. State, 747 N.E.2d 1123, 1132 (Ind.
2001) (quoting Roach, 695 N.E.2d at 939). “The accused, as is required of the
State, must comply with established rules of procedure and evidence designed
to assure both fairness and reliability in the ascertainment of guilt and
innocence.” Parker v. State, 965 N.E.2d 50, 53 (Ind. Ct. App. 2012) (quoting
Marley, 747 N.E.2d at 1132), trans. denied.
[20] One such rule is Evidence Rule 402, which provides that only relevant evidence
can be admitted. Another is Rule 403, under which “[t]he court may exclude
relevant evidence if its probative value is substantially outweighed by a danger
of one or more of the following: unfair prejudice, confusing the issues,
3
The rights to present a defense and cross-examine witnesses, which were clearly implicated here by the trial
court’s decisions to prohibit certain questioning and evidence, stem from several provisions of the United
States Constitution. See Crossland, 256 N.E.3d at 528; Koenig, 933 N.E.2d at 1273. While Guerra’s trial
counsel alleged exclusion of the disputed evidence amounted to a constitutional violation, see Tr. Vol. 4 at 92,
Guerra fails to argue the same on appeal.
Court of Appeals of Indiana Opinion 25A-CR-3231 July 9, 2026 Page 13 of 27
misleading the jury, undue delay, or needlessly presenting cumulative
evidence.” Ind. Evidence Rule 403. Under this rule, the bar is high for unfair
prejudice, so “courts err on the side of admissibility and consider whether there
is risk that a jury will ‘substantially overestimate the value of the evidence or
that the evidence will arouse or inflame the passions or sympathies of the
jury.’” Schnitzmeyer v. State, 168 N.E.3d 1041, 1045 (Ind. Ct. App. 2021)
(quoting State v. Seabrooks, 803 N.E.2d 1190, 1194 (Ind. Ct. App. 2004), reh’g
denied). When a trial court could have reasonably admitted or excluded
evidence under Rule 403, we will not “second-guess the trial court’s
determination . . . .” Snow v. State, 77 N.E.3d 173, 179 (Ind. 2017).
[21] On appeal, the State argues Alvarado and K.G.’s physical altercation and its
aftermath were irrelevant to Guerra’s trial, but to the extent that evidence had
any probative value, it was properly excluded under Rule 403 because “it was
prejudicial to the State and substantially likely to confuse the jury.” 4 Appellee’s
Brief at 21 (arguing the disputed evidence “had minimal, if any, probative
value”).
4
Although the State’s motion in limine raised Evidence Rule 608(b) as a basis for exclusion and Guerra
refuted this notion in his initial appellate brief, the State makes no 608(b) argument on appeal. Rule 608(b)
provides:
(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609,
extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in
order to attack or support the witness’s character for truthfulness. But the court may, on
cross-examination, allow them to be inquired into if they are probative of the character for
truthfulness or untruthfulness of another witness whose character the witness being crossexamined has testified about.
Court of Appeals of Indiana Opinion 25A-CR-3231 July 9, 2026 Page 14 of 27 [22] Evidence is relevant “if . . . it has any tendency to make a fact [of consequence]
more or less probable than it would be without the evidence[.]” See Evid. R.
401. When addressing the State’s motion in limine before trial, Guerra argued
the excluded evidence was relevant for three reasons: (1) the details were “all
part of the story[;]” (2) the evidence showed K.G. had “a reason to make up a
story against [him][;]” and (3) the evidence illustrated K.G.’s “delay in
reporting.” Tr. Vol. 2 at 10, 13, 16. On appeal, Guerra focuses on the third
reason, arguing “[t]he jury had every right to know that K.G. had previously
met with the police regarding Alvarado’s conduct towards her, and did not
report the sexual abuse.” Appellant’s Br. at 38. He frames this as a matter of
impeaching K.G.’s credibility.
[23] As the State notes, Guerra was permitted to establish on cross-examination that
K.G. talked to law enforcement during a period she was not seeing Alvarado
and failed to tell them she’d been repeatedly molested. In other words, the jury
heard she had an earlier opportunity to disclose the sexual abuse and failed to
do so. The critical issue then becomes whether it was relevant why that
discussion with police took place (the physical altercation) and its outcome
(charges, conviction, no-contact order). The relevancy of those details to
Guerra’s trial hinged on whether they tended to prove his defense that K.G.
fabricated allegations against him. And for that to be the case, the evidence
must have tended to prove K.G. had a motivation to falsely accuse Guerra.
[24] On this point, Guerra failed to provide a compelling argument below or on
appeal. In opposition to the State’s motion in limine, Guerra argued the
Court of Appeals of Indiana Opinion 25A-CR-3231 July 9, 2026 Page 15 of 27
evidence showed K.G. had “a reason to make up a story against [him] and
[Alvarado] because [Guerra] was telling her that . . . her abuser’s going to come
back and live with them, and then this allegation was brought to light . . . .” Tr.
Vol. 2 at 13-14. However, he didn’t articulate why this would have led K.G. to
falsely accuse him of child molesting. And as the State explained, “even if” the
excluded evidence tended to show K.G. had “a motive to fabricate against”
Alvarado, it did not show the same as to Guerra. Id. at 11. Indeed, K.G.
continued to have regular visitations with Guerra while Alvarado was restricted
from seeing her. After giving its oral order in limine, the court stressed it did
not “want to shift the blame” and “try [Alvarado] here.” Id. at 19. Later,
during a discussion outside the presence of the jury during K.G.’s crossexamination, defense counsel argued the excluded evidence was “fodder for
cross-examination” to show her initial opportunity and failure to disclose. Tr.
Vol. 4 at 98. The court responded that it “would agree . . . if [Alvarado] was in
that seat . . . but she’s not. This isn’t [Alvarado’s] case.” Id. at 99.
Subsequently, the court allowed Guerra (without getting into the excluded
evidence) to elicit testimony from K.G. that before her ultimate disclosure she
had talked to law enforcement yet failed to disclose that Alvarado and Guerra
had molested her.
[25] On this record, we conclude the court appropriately threaded the needle,
protecting Guerra’s rights to present a defense and cross-examine K.G. while
also acting within its discretion to exclude evidence that was irrelevant to
Guerra’s case.
Court of Appeals of Indiana Opinion 25A-CR-3231 July 9, 2026 Page 16 of 27 [26] Further, we note that even if the excluded evidence had some relevance, its
probative value was minimal, and it could have been properly excluded under
Rule 403. We agree with the State that evidence of the tumultuous history
between Alvarado and K.G. “was likely to confuse the jury by shifting the focus
of the trial onto Alvarado[.]” Appellee’s Br. at 22. Though Guerra offered to
mitigate the potential for unfair prejudice by saying he would not “drag [K.G.]
through the mud[,]” “get into the facts of” the incident, or “paint [K.G.] in a
bad light[,]” the potential for confusion remained substantial. Tr. Vol. 2 at 14;
Tr. Vol. 4 at 92. This was especially so given Guerra’s failure to explain why
the altercation between Alvarado and K.G. would have motivated K.G. to
fabricate allegations against him. See Hinkle v. State, 97 N.E.3d 654, 663-64
(Ind. Ct. App. 2018) (affirming the exclusion of evidence related to the childvictim’s drug use because the defendant’s theory that the victim fabricated child
molesting allegations to avoid facing consequences for his drug use was mere
“speculation”), trans. denied; cf. Hyser v. State, 996 N.E.2d 443, 448-50 (Ind. Ct.
App 2013) (concluding the defendant’s right to present a defense was violated
when he was precluded from presenting evidence that tended to prove someone
he reported for child abuse fabricated child molesting allegations against him in
retaliation, and the probative value of that evidence was not substantially
outweighed by the danger of unfair prejudice), reh’g denied.
[27] Finally, Guerra argues “[t]he State opened the door to the admission of” the
excluded evidence. Appellant’s Br. at 39. “Opening the door refers to the
principle that where one party introduces evidence of a particular fact, the
Court of Appeals of Indiana Opinion 25A-CR-3231 July 9, 2026 Page 17 of 27
opposing party is entitled to introduce evidence in explanation or rebuttal
thereof, even though the rebuttal evidence otherwise would have been
inadmissible.” Sampson v. State, 38 N.E.3d 985, 992 n.4 (Ind. 2015). “The door
may be opened when the trier of fact has been left with a false or misleading
impression of the facts.” Griffith v. State, 259 N.E.3d 1025, 1034 (Ind. Ct. App.
2025) (quoting Clark v. State, 915 N.E.2d 126, 130 (Ind. 2009), reh’g denied).
[28] On direct, the State asked K.G. to “tell [the jury] a little bit about [her]
relationship with [Alvarado] outside of just the sexual part of it[,]” including
whether they got along with each other. Tr. Vol. 4 at 66. K.G. responded that
they “used to get along well” and do certain activities together. Id. She also
testified that she had “trust[ed]” and “liked [Alvarado].” Id. at 67. At a sidebar
during K.G.’s cross-examination, defense counsel argued the State had “opened
up the door in relation to exploring the relationship between [K.G.] and
[Alvarado].” Id. at 85. While the court observed that the characterization of
K.G. and Alvarado’s “relationship as hunky-dory great” was “not accurate [to
a] certain point[,]” it found the door had not been opened for Guerra to
introduce the excluded evidence. Id. at 97.
[29] We conclude the trial court did not abuse its discretion by finding K.G.’s
testimony on direct examination did not open the door for Guerra to elicit
testimony or introduce evidence about the October 2015 physical altercation
and its consequences. First, K.G.’s testimony seemed to refer to her
relationship with Alvarado before the October 2015 incident. A door is only
opened “[w]here evidence on a certain issue is introduced by one party, and it
Court of Appeals of Indiana Opinion 25A-CR-3231 July 9, 2026 Page 18 of 27
appears likely that the other party will be prejudiced unless he is permitted to
introduce contradictory or explanatory evidence[.]” Pavey v. State, 764 N.E.2d
692, 705 (Ind. Ct. App. 2002) (first alteration in original) (quoting Fahler v.
Freeman, 241 N.E.2d 394, 396 (Ind. App. 1968)), trans. denied. Again, whether
their relationship outside the sexual abuse was good, bad, or even eventually
ruptured due to a physical altercation had no bearing on whether K.G. would
later falsely accuse Guerra of molesting her. Guerra was also free to make the
point that K.G.’s description of her relationship with Alvarado was dubious
considering the sexual abuse K.G. was supposedly suffering at her hands.
Additionally, the State’s questioning was entirely consistent with the court’s
order in limine that counsel could “inquire about [K.G.’s] relationship with
[Alvarado]” but not the physical altercation. Tr. Vol. 2 at 18. Finally, the
totality of K.G.’s testimony showed she had complicated feelings about the
sexual abuse while it was happening and before her disclosure. See Tr. Vol. 4 at
68, 69 (K.G. testifying she still loved Guerra while the sexual abuse was
happening, he apologized on one occasion, and although she “knew it wasn’t
probably right, . . . it was what [she] was used to”). Thus, her testimony that
her relationship with Alvarado had positive aspects outside of the sexual abuse
was not false or misleading.
[30] In short, we conclude the trial court did not abuse its discretion by excluding
evidence of the October 2015 physical altercation between Alvarado and K.G.
and Alvarado’s subsequent battery charge, conviction, and no-contact order.
Court of Appeals of Indiana Opinion 25A-CR-3231 July 9, 2026 Page 19 of 27
2. Sufficiency of the Evidence
[31] Guerra also argues there was insufficient evidence to support his convictions.
We review sufficiency-of-the-evidence claims with deference, mindful that it’s
the fact-finder’s role to weigh the evidence and judge witness credibility. HanczBarron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024). “A conviction is supported
by sufficient evidence if ‘there is substantial evidence of probative value
supporting each element of the offense such that a reasonable trier of fact could
have found the defendant guilty beyond a reasonable doubt.’” Id. (quoting
Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015)). In making this
determination, we consider only the evidence and reasonable inferences that
support the jury’s verdict. Id.
[32] Guerra does not challenge any of the substantive elements the State had to
prove to convict him of Class A and Level 1 felony child molestation. Rather,
he argues the convictions cannot stand because the State failed to prove “when
the incidents occurred other than that K.G. testified they occurred [when she
was] between the ages of 11-13.” Appellant’s Br. at 33 (“No reasonable fact
finder should have found Guerra guilty without [at] the very minimum a more
specific date range for the offenses.”). 5
5
To be clear, neither here nor in his double jeopardy argument has Guerra raised an issue regarding the
principle of juror unanimity. See Baker v. State, 948 N.E.2d 1169, 1177 (Ind. 2011) (holding that “if the State
decides not to . . . designate [specific acts on which it relies to prove a particular charge], then the jurors
should be instructed that in order to convict the defendant they must either unanimously agree that the
defendant committed the same act or acts or that the defendant committed all of the acts described by the
victim and included within the time period charged”), reh’g denied.
Court of Appeals of Indiana Opinion 25A-CR-3231 July 9, 2026 Page 20 of 27 [33] But generally, “the precise time and date of the commission of a child
molestation offense is not regarded as a material element of the crime.” Baker v.
State, 948 N.E.2d 1169, 1174 (Ind. 2011), reh’g denied. Our Supreme Court “has
long recognized ‘that time is not of the essence in the crime of child molesting.
It is difficult for children to remember specific dates, particularly when the
incident is not immediately reported as is often the situation in child molesting
cases.’” Id. (quoting Barger v. State, 587 N.E.2d 1304, 1307 (Ind.1992), reh’g
denied). “The exact date becomes important only in limited circumstances,
including the case where the victim’s age at the time of the offense falls at or
near the dividing line between classes of felonies.” Keister v. State, 203 N.E.3d
548, 553 (Ind. Ct. App. 2023) (quoting Barger, 587 N.E.2d at 1307).
[34] Here, a timeline was relevant insofar as the State was required to prove Guerra
molested K.G. at least once between February 1, 2013 and June 30, 2014, to
convict him of Class A felony child molesting, and at least once between July 1,
2014 and October 31, 2015, to convict him of Level 1 felony child molesting.
Guerra does not argue the State failed to prove this, but even if he had made
that argument, K.G.’s testimony that she was regularly molested for multiple
years between the approximate ages of eleven and thirteen was sufficient to do
so. See Tr. Vol. 4 at 54-68.
3. Double Jeopardy
[35] Next, Guerra purports to argue “[t]he [t]rial [c]ourt violated the Indiana
Constitution’s prohibition against double jeopardy[.]” Appellant’s Br. at 23.
Court of Appeals of Indiana Opinion 25A-CR-3231 July 9, 2026 Page 21 of 27
He claims to raise a matter of first impression: when there is a change in the
way a statute is classified (here, from a Class A felony to a Level 1 felony) but
“the elements of [the] crime [remain] substantially the same, . . . is double
jeopardy violated” by “charging a defendant with [two] separate crimes?”
Appellant’s Reply Br. at 4, 8. We conclude Guerra has waived review of this
issue for two reasons.
[36] First, Guerra impermissibly altered his argument in his reply brief. See Chupp v.
State, 830 N.E.2d 119, 126 (Ind. Ct. App. 2005) (“An issue not raised in an
appellant’s brief may not be raised for the first time in a reply brief.”). While
Guerra mentioned the statute change in his opening brief, he focused on
whether his convictions violated the continuous crime doctrine, an argument
with its own problems given the development of substantive double jeopardy
case law. See Jones v. State, 159 N.E.3d 55, 61 (Ind. Ct. App. 2020) (“Wadle [v.
State, 151 N.E.3d 227 (Ind. 2020)] and Powell [v. State, 151 N.E.3d 256 (Ind.
2020)] not only overruled the constitutional substantive double jeopardy test in
Richardson [v. State, 717 N.E.2d 32 (Ind. 1999)], they also swallowed statutory
and common law to create one unified framework for substantive double
jeopardy claims—including the continuous crime doctrine.”), trans. denied.
[37] Specifically, he argued that “because [his] sexual acts on K.G. were not distinct
and separate acts, they were all the exact same sexual act (i.e. performing oral
sex on K.G.).” Appellant’s Br. at 30. Despite acknowledging he “performed
oral sex on K.G. over a period of time[,]” id. at 31, he claimed he “committed
[one] continuous act of ‘deviate sexual conduct,’ and ‘other sexual acts,’ on
Court of Appeals of Indiana Opinion 25A-CR-3231 July 9, 2026 Page 22 of 27 K.G.: performing oral sex on K.G[,]” id. at 32. 6 Guerra’s argument
misunderstands what it means to receive “multiple convictions for the same
offense in a single trial.” Moyers v. State, 277 N.E.3d 33, 36 (Ind. 2026); see
Jones, 159 N.E.3d at 62 (noting the last step of both Wadle and Powell involves
analyzing “whether the defendant’s actions were ‘so compressed in terms of
time, place, singleness of purpose, and continuity of action as to constitute a
single transaction.’” (quoting Wadle, 151 N.E.3d at 249; Powell, 151 N.E.3d at
264)). It defies all logic that an act of child molestation could be so compressed
in time, place, singleness of purpose, and continuity of action with another act
of child molestation performed a day, week, month, or year earlier simply
because both offenses were committed by performing oral sex. If that were the
case (it is not), child predators could avoid being convicted of and punished for
multiple counts of child molestation that may have spanned years by repeatedly
engaging in the same method of molestation. See White v. State, 264 N.E.3d 99,
106 (Ind. Ct. App. 2025) (the prohibition against substantive double jeopardy
“does not mean that the State cannot bring multiple charges against a defendant
under the same statutory language for multiple, discrete acts”).
6
This argument also disregards evidence showing Guerra committed child molestation in another manner— by sexual intercourse. K.G. testified that Guerra “tr[ied] to penetrate [her] one time” at the apartment but it “didn’t work” because his penis “couldn’t fit.” Tr. Vol. 4 at 62. “Proof of the slightest penetration of the sex organ, including penetration of the external genitalia, is sufficient to sustain a conviction for child molestation based on sexual intercourse.” Padilla v. State, 259 N.E.3d 356, 360 (Ind. Ct. App. 2025) (quoting Boggs v. State, 104 N.E.3d 1287, 1289 (Ind. 2018)).
Court of Appeals of Indiana Opinion 25A-CR-3231 July 9, 2026 Page 23 of 27 [38] Second, the question Guerra asks us to answer has nothing to do with double
jeopardy. Indeed, Guerra himself concedes “neither Wadle nor Powell[] are
applicable to the current case[.]” Appellant’s Reply Br. at 6. And besides
speculation, he provides no other cogent argument explaining why charging
him with two counts of child molesting was improper. See Lampitok v. State, 817
N.E.2d 630, 636 (Ind. Ct. App. 2004) (“The decisions whether to prosecute and
what charges to file are within the prosecutor’s discretion.”), reh’g denied, trans.
denied; Baker, 948 N.E.2d at 1174 (noting it can be difficult to charge the
defendant with “specific incidents” in child sexual abuse cases when there has
been a “pattern of abuse”). Thus, we conclude Guerra has waived this issue for
review. See Appellate Rule 46(A)(8)(a) (stating appellant’s contentions must be
“supported by cogent reasoning”); Willet v. State, 151 N.E.3d 1274, 1277 (Ind.
Ct. App. 2020) (“It is well established that failure to present a cogent argument
results in waiver on appeal.”).
4. Sentencing Discretion
[39] Finally, Guerra argues the trial court erred in sentencing because it “fail[ed] to
take [his] lack of any criminal history into account as a mitigating factor.”
Appellant’s Br. at 34. The determination of mitigating factors, like sentencing
decisions generally, “rest[s] within the sound discretion of the trial court.” Wills
v. State, 269 N.E.3d 1273, 1281-82 (Ind. Ct. App. 2025), trans. denied. To show
the court abused its discretion by omitting a mitigating factor that was advanced
for consideration, a defendant must show “the mitigating evidence [was] both
significant and clearly supported by the record.” Id. at 1282. That said, the
Court of Appeals of Indiana Opinion 25A-CR-3231 July 9, 2026 Page 24 of 27
sentencing court has no obligation to credit the defendant’s contentions or
evidence regarding a mitigating factor, explain why it rejected a factor, or find a
factor mitigating simply because there is some evidence to support it. Russell v.
State, 234 N.E.3d 829, 847-48 (Ind. 2024), cert. denied.
[40] A lack of criminal history is not always a significant mitigating factor that must
be identified at sentencing. Williams v. State, 997 N.E.2d 1154, 1164 (Ind. Ct.
App. 2013) (the trial court did not abuse its discretion in declining to find the
defendant’s lack of criminal history mitigating in a multi-count child molesting
case). Here, despite having no prior criminal convictions, the trial court had
ample reason to believe Guerra had been flouting the law for some time. The
evidence showed Guerra had repeatedly molested his own daughter for
multiple years and even involved his girlfriend in the abuse. See Parker v. State,
273 N.E.3d 500, 505 (Ind. Ct. App. 2025) (noting in years-long child molesting
cases, a defendant’s lack of criminal history “is a testament to his criminal
conduct being kept secret rather than to his being a law-abiding citizen”).
Under these circumstances, we cannot say the trial court abused its discretion
by failing to identify Guerra’s lack of criminal history in mitigation.
[41] And even if the court did err in this respect, we “remand for resentencing only if
‘we cannot say with confidence that the trial court would have imposed the
same sentence had it properly considered reasons that enjoy support in the
record.’” Ackerman v. State, 51 N.E.3d 171, 194 (Ind. 2016) (quoting Anglemyer
v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind.
2007)), cert. denied. Here, where the court found several other valid and
Court of Appeals of Indiana Opinion 25A-CR-3231 July 9, 2026 Page 25 of 27
unchallenged aggravating factors, including (1) that Guerra violated a position
of care and trust, (2) the heinous nature of the repeated molestations, and (3)
that K.G. suffered significant harm as a result of the offenses, we are confident
the trial court would have imposed the same sentence had it identified Guerra’s
lack of criminal history as a mitigating factor. See McCoy v. State, 856 N.E.2d
1259, 1262 (Ind. Ct. App. 2006) (“[A] ‘position of trust’ by itself constitutes a
valid aggravating factor, which supports the maximum enhancement of a
sentence for child molesting.”). 7
Conclusion
[42] For the foregoing reasons, we affirm Guerra’s convictions for Class A felony
child molesting and Level 1 felony child molesting.
[43] Affirmed.
Mathias, J., and Kenworthy, J., concur.
7
In the last paragraph of his sentencing argument, Guerra asks us to exercise our authority under Appellate
Rule 7(B) to “reduce [his] sentence to 20 years on each offense in light of his lack of any criminal history[.]”
Appellant’s Br. at 35. However, it is well-established that Rule 7(B) review and challenges to the trial court’s
identification of aggravating and mitigating factors “are distinct [claims] and are to be analyzed separately.”
Merriweather v. State, 151 N.E.3d 1281, 1285 n.1 (Ind. Ct. App. 2020). Consequently, “inappropriate sentence
argument[s] [are] waived . . . when the defendant claims to be making a 7(B) argument but instead asserts the
trial court erred in its identification or weighing of aggravators and mitigators[.]” Connor v. State, 58 N.E.3d
215, 219 n.3 (Ind. Ct. App. 2016). Because Guerra clearly argues his lack of criminal history should have
been considered a mitigating factor and has not provided a standard of review or cogent argument that his
sentence is inappropriate in light of the nature of his offenses and his character, he has waived 7(B) review.
Court of Appeals of Indiana Opinion 25A-CR-3231 July 9, 2026 Page 26 of 27 ATTORNEY FOR APPELLANT
Andrew P. Martin
Miller Sachs & Hess, P.C.
Crown Point, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Indiana Attorney General
Indianapolis, Indiana
Rebekah D. Bennett
Deputy Attorney General
Indianapolis, Indiana
Court of Appeals of Indiana Opinion 25A-CR-3231 July 9, 2026 Page 27 of 27