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Baca v. State

Court of Appeals of Indiana

April 30, 2019

Carlos Robles Baca, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal from the Marion Superior Court The Honorable Kurt M. Eisgruber, Judge Trial Court Cause No. 49G01-1802-F1-5391

          Attorney for Appellant Michael R. Fisher Marion County Public Defender Agency Indianapolis, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana

          NAJAM, JUDGE.

         Statement of the Case

         [¶1] Carlos Robles Baca appeals his conviction for child molesting, as a Class C felony, following a jury trial. Baca presents a single issue for our review, namely, whether the trial court erred when, after it had entered a directed verdict for Baca on two counts, the court then permitted the State to amend one of those counts. Baca maintains that his subsequent conviction on the amended count violates the protections against double jeopardy under the Fifth Amendment to the United States Constitution and Article 1, Section 14 of the Indiana Constitution.

         [¶2] We reverse.

         Facts and Procedural History

         [¶3] In 2009 or 2010, when J.P. was approximately five years old, J.P. was in the kitchen of her home with Baca, who was a friend of J.P.'s father. Baca pulled down J.P.'s pants and touched her vagina with his hands. Baca then gave J.P. some money, but he did not say anything to her.

         [¶4] Several years later, in late 2017 or early 2018, Baca drove J.P. and her younger brother to a park. J.P.'s brother was playing while J.P. and Baca sat in the car. Baca told J.P. to get in the back seat, and he followed her there. Once they were both sitting in the back seat, Baca pulled down J.P.'s pants and touched her vagina with his hands. Baca's phone rang, and he stopped. Baca then drove J.P. and her brother home.

         [¶5] Sometime after that, J.P. told two friends about these incidents, and J.P. and the two friends told a school counselor. The counselor called J.P.'s parents, the Department of Child Services, and law enforcement.

         [¶6] The State charged Baca with three counts of child molesting, one as a Level 1 felony (2017-2018) ("Count I"), one as a Class A felony (2009-2010) ("Count II"), and one as a Level 4 felony (2017-2018) ("Count III"). As relevant here, Count I alleged that Baca had "perform[ed] or submit[tted] to other sexual conduct as defined in Indiana Code Section 35-31.5-2-221.5," which includes "the penetration of the sex organ . . . of a person by an object," with J.P. Appellant's App. Vol. 2 at 18. And Count II alleged that Baca "did perform or submit to deviate sexual conduct" with J.P. Id. At the time of the alleged offense, "deviate sexual conduct" included "the penetration of the sex organ . . . of a person by an object." Ind. Code § 35-41-1-9 (2009).

         [¶7] The trial court conducted a jury trial on September 24 and 25, 2018. After the State concluded its case-in-chief, Baca moved for a directed verdict with respect to Counts I and II. In particular, Baca argued that the State had presented insufficient evidence to prove the penetration elements in both counts. The trial court agreed and granted Baca's motion. The State then moved to amend Count II to charge child molesting, as a Class C felony, [1] and the trial court permitted the amendment over Baca's objection. The jury ...


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