Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-654 | August 24, 2017 Page 1 of 10

MEMORANDUM DECISION

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 establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Scott H. Duerring

South Bend, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

James B. Martin

Deputy Attorney General

Indianapolis, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

Tony Arguello,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

August 24, 2017

Court of Appeals Case No.

71A03-1703-CR-654

Appeal from the St. Joseph Superior

Court

The Hon. Jeffrey L. Sanford, Judge

Trial Court Cause No. 

71D03-1605-F1-11

Bradford, Judge.
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Case Summary

[1] In November of 2014, Ashley Wharton, her husband, and her three children, 

including four-year-old B.W. and six-year-old A.W., moved into the home of 

Clarice Wharton, her mother-in-law. Clarice was living there with AppellantDefendant Tony Arguello. Between November of 2014 and May of 2016, 

Arguello inserted his penis into A.W.’s vagina, performed oral sex on her, and 

digitally penetrated her vagina and anus. Also during that period, Arguello 

submitted to oral sex by B.W. and performed oral sex on him. In an interview 

with a police detective, Arguello confessed to committing the above acts with 

A.W. 

[2] The State charged Arguello with seven counts of Level 1 felony child molesting, 

and, following a jury trial, he was convicted of six counts and received an 

aggregate sentence of 160 years of incarceration. Arguello contends that 

fundamental error occurred when (1) a sexual assault nurse examiner testified 

that A.W. told her that someone had anally penetrated her with his penis and 

(2) the State failed to satisfy the corpus delicti requirement for three of the charges 

against him. Because we disagree, we affirm. 

Facts and Procedural History

[3] Ashley, her husband, and her three children, A.W., B.W., and a younger son

moved into Clarice’s home at 1729 Robinson Street, South Bend, in November 

of 2014. Clarice and her boyfriend Arguello lived in the home when Ashley’s 
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family moved in. B.W. was four years old and A.W. was six years old when 

they moved in. Clarice’s house has two bedrooms upstairs and one in the 

basement. Clarice slept on a pull-out bed on the main floor, Ashley and her 

husband had a bedroom in the basement, and B.W. and A.W. were in a 

bedroom across from Arguello’s bedroom upstairs. 

[4] Arguello lived in Clarice’s house the entire time Ashley and her family lived 

there, with the exception of a few months when he had his own place in May 

through August of 2015. The house Arguello lived in during that period was 

only a short walk from Clarice’s. Arguello babysat for A.W. and B.W. often, 

and they regarded him as a grandfather. The children missed Arguello very 

much when he was living in his own place, and they visited him at his place 

and stayed overnight. 

[5] Arguello started touching A.W. sexually when she was five years old, having 

A.W. remove her clothes in the basement. Arguello touched A.W. with his 

hands and with his penis (which A.W. called his “popcorn”) on her vagina 

(which A.W. called her “popsicle”). Tr. Vol. III p. 28. Arguello did this to 

A.W. in both the upstairs bedroom and in the basement. A.W. said that white, 

“watery stuff” would come out of Arguello’s “popcorn” onto her stomach when 

he did this. Tr. Vol. III p. 29. Arguello ejaculated into A.W.’s mouth, and 

A.W. described that it tasted like “socks in a sewer[.]” Tr. Vol. III p. 33. 

Arguello licked A.W.’s vagina and put candy on it, then would remove the 

candy with his mouth. Arguello did these things to A.W. upstairs and in the 

basement. A.W. explained that it was easier to clean up Arguello’s ejaculate in 
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the basement. Arguello also asked A.W. to “pee” on him. Tr. Vol. III at 40. 

A.W. did this to Arguello and Arguello also urinated on A.W. Arguello

referred to this as “golden showers[.]” Tr. Vol. III p. 41. Arguello also inserted 

a straw into A.W.’s vagina and her “butt” and rubbed them with it. Tr. Vol. III

p. 47. Arguello asked A.W. to be his girlfriend. 

[6] Arguello also touched B.W. sexually when he was alone with him. Arguello

would touch his penis to B.W.’s penis, which B.W. referred to as a “pee pee[,]”

and rub them together. Tr. Vol. III p. 63. When Arguello did this, B.W. said 

“[h]oney would come out[.]” Tr. Vol. III p. 64. B.W. explained that he and 

Arguello would wipe the “honey” up with a towel. Arguello did this to B.W. at 

his house. Arguello would also touch B.W.’s “butt” with his penis and “rub 

it[,]” which hurt, according to B.W. Tr. Vol. III pp. 70–71. Arguello also put 

B.W.’s “pee pee” in his mouth. Tr. Vol. III p. 71. 

[7] In May of 2016, Ashley had a conversation with the children about 

inappropriate touching. After this conversation, Ashley called the South Bend 

Police Department, and officers came to Clarice’s house. Ashley and the 

children were referred to the CASIE Center, where A.W. and B.W. were 

interviewed. Afterward, A.W. and B.W. were taken to the emergency room of 

St. Joseph Memorial Hospital, where sexual assault nurse examiner Abbie 

Baker examined both children for injury from sexual assault. Nurse Baker’s 

examination of A.W. revealed redness to her labia majora and a pronounced 

and abnormal dilation of the sphincter muscles of A.W.’s anus. 
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[8] On May 19, 2016, South Bend Police Detective Maranda Baker interviewed 

Arguello. Arguello told Detective Baker that he had penetrated A.W.’s vagina 

with his middle and index fingers, and that he had vaginally penetrated her on 

three occasions. Arguello also said that he had penetrated A.W.’s anus with 

one finger, and that this had occurred on three occasions as well. Arguello

stated that A.W. had sat on his face, and that this had happened “no more 

than” four times. State’s Ex. 26 at 17:52:27, 18:18:39. Arguello explained to 

Detective Baker that when A.W. did this, he was performing oral sex on her.

Arguello also admitted to placing candy on A.W.’s genitals and removing the 

candy with his mouth. Finally, Arguello said to Detective Baker that A.W. 

would “grind” on him while holding his erect penis and trying to sit on it. 

State’s Ex. 26 at 17:47:32, 17:48:26. Arguello said that A.W. had put his penis 

between her vaginal “lips” on eight different occasions. State’s Ex. 26 at 

18:17:00. Arguello said that when A.W. would do this, the tip of his penis 

would slip inside of her. 

[9] On May 25, 2016, the State charged Arguello with seven counts of Level 1 

felony child molesting, five related to A.W. and two related to B.W. The State 

charged Arguello with the following acts with A.W.: Count I, sexual 

intercourse; Count II, performing oral sex on her; Count III, digitally 

penetrating her vagina; Count IV, digitally penetrating her anus; and Count V, 

submitting to oral sex performed by her. A jury trial took place January 23 

through 25, 2017. The State offered the testimony of Nurse Baker regarding her 

examination of A.W. and B.W. at the St. Joseph Hospital emergency room. 
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After Nurse Baker testified about her credentials, experience and practice in 

conducting sexual assault examinations, Arguello objected to her providing any 

testimony regarding what A.W. told her during the examination about how she 

sustained any injuries. The trial court prohibited Nurse Baker from testifying to 

A.W.’s identification of the person who touched her. However, the trial court 

overruled Arguello’s objection to Nurse Baker’s testimony regarding A.W.’s 

statements about what happened to her, explaining that, “What happened to 

her I think is admissible for purposes of treatment. But who did it is not.” Tr. 

Vol. III p. 112. Nurse Baker testified that A.W. told her that a penis had been 

inserted in her anus. 

[10] Arguello’s video recorded interview with Detective Baker was admitted at trial 

after redaction and without objection. After the evidence had been presented, 

Arguello moved for a directed verdict on Count V (which alleged that Arguello 

had submitted to oral sex performed by A.W.), and the State agreed that it had 

not presented evidence to support that charge and moved to dismiss. The jury 

returned verdicts of guilty on all remaining counts. On February 24, 2017, the 

trial court sentenced Arguello to an aggregate sentence of 160 years of 

incarceration. 

Discussion and Decision

I. Nurse Baker’s Testimony

[11] Arguello contends that the trial court abused its discretion in allowing Nurse 

Baker to testify regarding what A.W. told her had happened to her. As 
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mentioned, Nurse Baker testified that A.W. told her that she had been anally 

penetrated by a penis. As Arguello points out, however, he was not charged 

with anally penetrating A.W. with his penis. We assume, without deciding, 

that this evidence was not relevant and that a timely objection to it on that basis 

would properly have been sustained. 

[12] Arguello claims, however, that its admission amounts to fundamental error. 

Appellate courts may, on rare occasions, resort to the 

fundamental error exception to address on direct appeal an 

otherwise procedurally defaulted claim. But fundamental error is 

extremely narrow and available only when the record reveals a 

clearly blatant violation of basic and elementary principles, 

where the harm or potential for harm cannot be denied, and 

which violation is so prejudicial to the rights of the defendant as 

to make a fair trial impossible.

Jewell v. State, 887 N.E.2d 939, 942 (Ind. 2008). 

[13] Considering the overwhelming evidence of Arguello’s guilt, namely A.W.’s trial 

testimony and his own confession, we conclude that he has failed to establish 

fundamental error in this regard. A.W. testified that Arguello touched her with 

his hands and with his penis on her vagina, supporting a reasonable inference of 

sexual intercourse. Tr. Vol. III p. 28. A.W. said that white, “watery stuff” 

would come out of Arguello’s penis onto her stomach when he did this. Tr. 

Vol. III p. 29. A.W. testified that Arguello licked her vagina and put candy on 

it, then would remove the candy with his mouth. Even more damning was 

Arguello’s own confession. Arguello told Detective Baker that he had 

penetrated A.W.’s vagina with his middle and index fingers on three occasions, 
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penetrated A.W.’s anus with one finger on three occasions, performed oral sex 

on A.W., and vaginally penetrated A.W. with the tip of his penis. Given the 

overwhelming evidence of Arguello’s guilt, it can hardly be said that the 

admission of Nurse Baker’s testimony was so harmful that the harm or 

potential for harm cannot be denied and was so prejudicial to Arguello’s rights

as to make a fair trial impossible. Arguello has failed to establish fundamental 

error. 

II. Corpus Delicti

[14] Arguello contends that the State failed to establish corpus delicti for three of the 

four crimes he was convicted of committing against A.W. Arguello did not 

raise this argument below but now claims that fundamental error occurred. As 

mentioned, fundamental error occurs “when the record reveals a clearly blatant 

violation of basic and elementary principles, where the harm or potential for 

harm cannot be denied, and which violation is so prejudicial to the rights of the 

defendant as to make a fair trial impossible.” Jewell, 887 N.E.2d at 942. 

[15] “Proof of the corpus delicti means proof that the specific crime charged has 

actually been committed by someone.” Taylor v. State, 236 Ind. 415, 421, 140 

N.E.2d 104, 108 (1957). 

For a confession to be admitted into evidence, the State must 

establish the corpus delicti. Rickey v. State, 661 N.E.2d 18, 23 

(Ind. Ct. App. 1996), trans. denied. The purpose for requiring 

proof of the corpus delicti is to prevent the admission of a 

defendant’s confession to a crime that never occurred. Hurt v. 

State, 570 N.E.2d 16, 19 (Ind. 1991). The State is not required to 
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prove the corpus delicti beyond a reasonable doubt, but must 

present independent evidence from which an inference may be 

drawn that a crime was committed. Douglas v. State, 481 N.E.2d 

107, 110 (Ind. 1985). The corpus delicti need not be established 

prior to admission of the confession so long as the totality of 

independent evidence presented at trial establishes it. Morgan v. 

State, 544 N.E.2d 143, 146 (Ind. 1989). The corpus delicti may 

be established by circumstantial evidence. Grey v. State, 273 Ind. 

439, 442, 404 N.E.2d 1348, 1350 (1980). 

Weida v. State, 693 N.E.2d 598, 600 (Ind. Ct. App. 1998), trans. denied. 

[16] We conclude that Arguello has not established any error in this regard, much 

less fundamental error. Arguello’s argument is that three of his four convictions 

arising out of his molestation of A.W. were insufficiently supported by 

independent evidence. Arguello notes that A.W. did not expressly testified that 

Arguello’s fingers and penis penetrated her vagina and anus, only that he 

“rubbed” her anus and genitalia with his fingers and penis. 

[17] Arguello’s argument seems premised on the notion that each element of each 

charge must be independently corroborated in order the satisfy the corpus delicti

requirement. Put another way, Arguello would seemingly require the State to 

prove each charge twice in cases involving a confession. The law does not 

require such comprehensive corroboration: 

We are persuaded that where a defendant confesses to several 

crimes of varying severity within a single criminal episode, strict 

and separate application of the corpus delicti rule to each offense 

adds little to the ultimate reliability of the confession once 

independent evidence of the principal crimes is introduced. The 

confession at that point has been substantially corroborated. In 
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such a case the confession stands as direct evidence of each 

crime, even those not separately corroborated, if the independent 

evidence establishes the corpus delicti of the principal crime or 

crimes. 

Willoughby v. State, 552 N.E.2d 462, 467 (Ind. 1990). 

[18] At issue here are the charges that Arguello had sexual intercourse with A.W. 

and digitally penetrated her anus and vagina. Nurse Baker testified that her 

examination of A.W. revealed redness to her labia majora and a pronounced 

and abnormal dilation of the sphincter muscles of her anus. Nurse Baker also 

testified that digital penetration could cause redness to the labia and anal 

dilation. Moreover, based on the above, we conclude that one could reasonably 

infer that redness to the labia could have been caused by penile penetration as 

well. Nurse Baker’s testimony is sufficient to raise an inference that the crimes 

charged were committed by someone, which is all that is required. Arguello 

has failed to establish error in this regard, much less fundamental error. 

[19] We affirm the judgment of the trial court. 

May, J., and Barnes, J., concur.