By Liz Shepherd
InkFreeNews

Jose Luis Izaguirre

WARSAW — Jose L. Izaguirre, a 32-year-old Warsaw man who molested a child more than 20 times, is appealing his 35-year prison sentence with the Indiana Court of Appeals.

Jay Rigdon, with Rockhill Pinnick LLP in Warsaw, is the attorney representing Izaguirre in his appeal. Rigdon also represented Izaguirre in a three-day jury trial in April 2021. In his appeal, Izaguirre requests that the court reverse his convictions and have a new jury trial.

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.

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

During a three-day jury trial in April 2021, Izaguirre was found guilty on two Level 1 felony child molesting charges. He was found not guilty on a third Level 1 felony child molesting charge.

In May 2021, Kosciusko Circuit Court Judge Michael Reed sentenced Izaguirre to 40 years in the Indiana Department of Correction for the first count of child molesting. Izaguirre was sentenced to 30 years in DoC for the second count. Both counts were ordered to be served concurrently, or at the same time. Five years of the sentence was suspended on probation. In total, Izaguirre received a 35-year prison sentence.

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

The 15-page appeal, filed on Jan. 3, lists one argument as to why Izaguirre’s case should be retried.

• Did the Trial Court err in permitting the alleged victim in this case to testify with a comfort animal pursuant to Indiana Code 35-40-5-13?

During Izaguirre’s jury trial, the child molested by Izaguirre testified while in the accompaniment of a therapy dog.

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 Court room 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.”

The appeal argues that the local court read the word “shall” in IC 35-40-5-13 as mandatory.

“This contravenes the Indiana Rules of Evidence, specifically Rule 611, which says the Court (emphasis noted in appeal) shall exercise reasonable control over the mode and order of examining witnesses, and the constitutional requirement that the separate judicial branch of government shall conduct its own affairs and govern its own proceedings.”

The appeal also argues that during Izaguirre’s jury trial, the state didn’t make any effort to show the use of a comfort animal was necessary in order for the child to testify. Rigdon argues in the appeal that the court shifted the burden to Izaguirre to prove he would be unduly prejudiced in the manner discussed in IC 35-40-5-13.

The appeal states there is no way to prove the therapy dog’s existence or presence unduly prejudiced Izaguirre without the entire trial being examined.

“If this Court accepts the plain reading of the statute passed by the legislature in 2019, no defendant will ever be able to overcome the mandatory language of 35-40-5-13,” reads the appeal. “The presence of a comfort animal for any witness implies a need for extra care or caution to be given to that witness. It inevitably places them in a special light. It produces sympathy for them which (Izaguirre) should not have the burden to overcome.”

The appeal particularly focuses on when the state provided evidence relating to the therapy dog used in Izaguirre’s jury trial acting as a comfort animal for witnesses. The State said the therapy dog had never been used for witnesses presented by a defendant.

“There is no question that jurors looking at this animal would believe that the animal is in some sense on the side of the witness,” read the appeal. “If that witness is always a state’s witness, then the statute clearly is designed to prejudice a defendant’s rights. The legislature created empathy for the witness with no showing of need, and unnecessary action which presents sympathy for a witness without need, and is also prejudicial to (Izaguirre) in that sense, should be prohibited and not encouraged.”