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
of the Case
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.
and Procedural History
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.
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.
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.
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).
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,  and the trial
court permitted the amendment over Baca's objection. The