Carlos Robles Baca v. State of Indiana , 122 N.E.3d 1019 ( 2019 )

FILED
Apr 30 2019, 10:55 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael R. Fisher Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Matthew B. MacKenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Carlos Robles Baca, April 30, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2756
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Kurt M. Eisgruber,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G01-1802-F1-5391
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
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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.
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[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 found Baca guilty on
the amended Count II and on Count III. The trial court entered judgment of
conviction and sentence accordingly. This appeal ensued.
1
At the time of the alleged offense in late 2009 or early 2010, Indiana Code Section 35-42-4-3 provided in
relevant part that person who, with a child under fourteen (14) years of age, performs or submits to any
fondling or touching, of either the child or the older person, with intent to arouse or to satisfy the sexual
desires of either the child or the older person, commits child molesting, a Class C felony.
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Discussion and Decision
[8] Baca contends that the trial court erred when it permitted the State to amend
Count II after the court had granted Baca’s Trial Rule 50 motion for a directed
verdict on that count. In particular, Baca maintains that his conviction on
Count II violates the protections against double jeopardy under the Fifth
Amendment to the United States Constitution and Article 1, Section 14 of the
Indiana Constitution. “‘Both the United States and Indiana constitutions
prohibit a second prosecution for the same offense after an acquittal, a second
prosecution for the same offense after a conviction, and multiple punishments
for the same offense.’” G.K. v. State, 104 N.E.3d 598, 600 (Ind. Ct. App. 2018)
(quoting Wilcox v. State, 748 N.E.2d 906, 909 (Ind. Ct. App. 2001), trans. denied).
“[T]he Double Jeopardy Clause bars retrial following a court-decreed acquittal,
even if the acquittal is ‘based upon an egregiously erroneous foundation.’”
Evans v. Michigan, 568 U.S. 313, 318 (2013) (quoting Fong Foo v. United States,
369 U.S. 141, 143 (1962)). Whether Baca’s conviction on the amended Count
II violates double jeopardy principles is a question of law, which we review de
novo. G.K., 104 N.E.3d at 600.
[9] At the close of the State’s case-in-chief, Baca moved for a directed verdict under
Trial Rule 50, and this colloquy ensued:
Defense Counsel: Thank you, Judge. Judge, in this case my
client was charged with three counts—two of which require the
State to prove penetration[,] so Count 1 as a level 1 felony child
molest requires . . . other sexual conduct and Count 2, deviate
sexual conduct[,] which we know now means essentially the
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same thing which requires penetration of a sexual organ. At this
time there’s been no substantive evidence that there’s been any
type of penetration. The only . . . substantive testimony that we
had during this trial was that [J.P.] was touched on the outside of
her vagina which does not . . . get the State into penetration so at
this time we are asking that . . . Counts 1 and 2 be dismissed on a
[Trial Rule] 50(A) motion. . . .
Court: Okay, State?
State: Judge, I think that . . . the case law on directed verdict is
a—it’s just a mere scintilla of evidence that needs to be presented
and I think that [J.B.]’s testimony [showed that there was]
penetration for purposes of the law. . . .
***
Court: . . . Okay. I’m granting defense motion for directed verdict as
to Counts 1 and 2. We’ll proceed on Count 3 and Count 3 only as
a level 4 so . . . that translates to time [sic] . . . there were three
submitted instructions by the State.
State: Judge, the State asks for the lesser included of Count 2
which is the C felony fondling.
Defense Counsel: But if the [Class] A[ child molesting charge
has] been dismissed I don’t know that there’s a lesser included. . .
if the Court[ ha]s dismissed the [Class] A [child molesting
charge,] I don’t know that. . . .
Court: I thought this would happen in the reverse and I don’t
know that . . . [the] State should have sat on it but I think we
clearly have a lesser contemporaneous with your motion.
Defense Counsel: I don’t disagree with that but what I’m saying
is now [that] the Court’s granted the [Trial Rule] 50(A) [motion]
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so I don’t know if the [Class] A’s dismissed then—and I’m not
saying that that’s not true—it absolutely can be—I just don’t
know and I just—I’m asking for five minutes to look at the case
law.
Court: Okay. But in your five minutes I ask you to consider—so
had the State made that presentation prior to your motion you’re saying
it would have survived?
Defense Counsel: I don’t—maybe—probably. . . .
Court: Yeah, I expected that before I heard what you said
so our timing’s a little different but it makes sense for them to stand
on it.
***
[Recess]
Defense Counsel: Yes, Judge, . . . [o]ur only objection [is that]
the State was permitted to amend Count 2 to a C felony and . . . I
do object to that amendment.
***
Court: Yeah, you know, I think this is an interesting legal issue
that could wind up at the Court of Appeals I guess. The . . . but I
do view the overwhelming duty of the Court is to ensure both
sides receive a fair trial. I think the evidence gets us to this point.
That is really the basis in the Court’s opinion. I think the
defense’s argument is a . . . legal argument that they have
preserved and because it was all contemporaneous with another [sic]
I believed it was appropriate to allow the State to file the lesser as
Count 2.
Tr. at 119-27 (emphases added).
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[10] On appeal, Baca maintains that, when the trial court granted his Trial Rule 50
motion, the court acquitted him on Counts I and II. Thus, he asserts, his
conviction on Count II violated double jeopardy principles. The State contends
that Baca “was not reprosecuted after an acquittal” because, as the trial court
stated, Baca’s motion for a directed verdict and the State’s motion to amend
Count II were “contemporaneous.” Appellee’s Br. at 9.
[11] To resolve this issue, we have to determine whether, as the trial court found, the
parties’ motions were contemporaneous or whether Baca was acquitted before
the State’s motion to amend. “Contemporaneous” means “occurring . . . at the
same time.” Black’s Law Dictionary 384 (10th ed. 2014). While the State had
ample opportunity to move to amend Count II during the side bar discussion of
Baca’s motion for a directed verdict, the State waited until after the trial court
had granted Baca’s motion for a directed verdict before it made its motion to
amend Count II. The timing of the two motions is clear. They were not
contemporaneous.
[12] In State v. Lewis, our Supreme Court observed that
“a judgment that the evidence is legally insufficient to sustain a
guilty verdict constitutes an acquittal for purposes of the Double
Jeopardy Clause.” Smalis[ v. Pennsylvania], 476 U.S. [140,] 142
[(1986).] This remains true despite the fact that the order was not
formally designated as an acquittal. The United States Supreme
Court has “emphasized that what constitutes an ‘acquittal’ is not to
be controlled by the form of the judge’s action[, but by] whether the ruling
of the judge, whatever its label, actually represents a resolution, correct or
not, of some or all of the factual elements of the offense charged.”
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[United States v. ]Martin Linen[ Supply Co.], 430 U.S. [564,] 571
[(1977)] (citations and footnote omitted).
543 N.E.2d 1116, 1117-18 (Ind. 1989) (emphasis added, some citations
omitted).
[13] Here, the trial court found that the State had presented insufficient evidence to
show the element of penetration, as required to prove Counts I and II, and the
court granted Baca’s motion for a directed verdict. 2 The State was not caught
by surprise. This was not a “gotcha” moment. The issue of penetration was
squarely before the court. The State simply failed to present sufficient evidence
on that issue, and the trial court correctly granted the defendant’s motion for a
directed verdict on those two counts.
[14] The sequence is unmistakable, and it matters. The State’s motion to amend
was not contemporaneous but was made after-the-fact. It was not until after the
trial court had granted the defendant’s motion and Count II was a nullity that
the State moved to amend a charge that had been adjudicated. But at that
point, there was not charge left to amend.
[15] A trial court’s grant of a directed verdict for the defendant under Trial Rule 50
“acts as an acquittal” and bars retrial. State v. Goodrich, 504 N.E.2d 1023, 1024
(Ind. 1987). As a matter of law, the trial court acquitted Baca on Counts I and
2
A directed verdict is a “ruling by a trial judge taking a case from the jury because the evidence will permit
only one reasonable verdict.” Black’s Law Dictionary 1791 (10th ed. 2014).
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II, and the trial court’s subsequent grant of the State’s motion to amend Count
II and Baca’s conviction on that purportedly amended count violated
constitutional prohibitions against double jeopardy. Thus, we reverse Baca’s
conviction on Count II, child molesting, as a Class C felony. 3
[16] Reversed.
Baker, J., and Robb, J., concur.
3
Baca does not appeal his conviction for child molesting, as a Level 4 felony, on Count III. That conviction
stands. Resentencing is not required, as the trial court imposed consecutive sentences on Counts II and III.
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