FOR PUBLICATION                                          Jun 04 2013, 8:13 am




ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

KAREN CELESTINO-HORSEMAN                    GREGORY F. ZOELLER
Indianapolis, Indiana                       Attorney General of Indiana

                                            ANGELA N. SANCHEZ
                                            Deputy Attorney General
                                            Indianapolis, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

CESAR CHAVEZ,                               )
                                            )
     Appellant-Defendant,                   )
                                            )
            vs.                             )      No. 49A02-1211-CR-892
                                            )
STATE OF INDIANA,                           )
                                            )
     Appellee-Plaintiff.                    )


                  APPEAL FROM THE MARION SUPERIOR COURT
                      The Honorable Grant W. Hawkins, Judge
                          Cause No. 49G05-1201-FC-1680



                                   June 4, 2013


                            OPINION - FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

      Cesar Chavez appeals his five convictions for child molesting, each as a Class C

felony. Chavez raises two issues for our review, which we reorder and state as follows:

      1.     Whether the State’s five counts against Chavez were in violation of
             the continuing crime doctrine.

      2.     Whether the State’s charging information, which stated five
             identically worded counts against Chavez, denied Chavez due
             process.

      We affirm in part, reverse in part, and remand with instructions.

                      FACTS AND PROCEDURAL HISTORY

      On January 6, 2012, E.M.R., Chavez’s wife, babysat eight-year-old K.W. and

others at Chavez’s home. At some point, Chavez and K.W. were alone in a computer

room. Chavez kissed K.W. on the mouth and inserted his tongue into her mouth. While

kissing her, Chavez put his hand underneath K.W.’s shirt and rubbed her nipple. Chavez

also held his hand on K.W.’s buttocks. K.W. then left the room.

      K.W. later returned to the room. Chavez again kissed K.W. and inserted his

tongue into her mouth. While kissing her this time, Chavez placed his hand, over K.W.’s

clothes, on her vagina. Chavez told K.W. to keep the occurrences a secret, and K.W.

feared Chavez would harm her if she told anyone.

      That evening, K.W. told her mother what had happened. K.W.’s mother called the

police, and Chavez was arrested.

      On January 10, the State charged Chavez with five counts of child molesting, each

as a Class C felony. Each count was identically worded and stated as follows:



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      Cesar Chavez, on or about January 6, 2012, did perform or submit to any
      fondling or touching with K.W., a child who was then under the age of
      fourteen (14) years, that is: eight (8) years of age, with intent to arouse or
      satisfy the sexual desires of K.W. and/or the sexual desires of Cesar
      Chavez.

Appellant’s App. at 23-24.

      The court held Chavez’s jury trial on September 27. Chavez testified in his own

defense and acknowledged that he had kissed K.W., albeit accidentally, but he denied

inappropriately touching her. During the State’s closing argument, the prosecutor stated:

      Chavez is charged with [five] separate counts of child molest[] because
      there were [five] separate instances of touching with fondling committed by
      the defendant that day[,] which I will go over with you in detail.

                                          ***

      [Y]ou heard [K.W.] describe [five] separate instances of touching and
      fondling that day, at the defendant’s house, that constitutes the basis [sic]
      for the [five] different counts. And let’s go over those. The first kiss was
      the defendant’s tongue in her mouth, and she said that while that kiss was
      going on is when he had reached up under her shirt and touched her nipple
      . . . , that would be the second count. And the third count is during that
      same kiss when he was touching her on the butt over the clothes . . . . The
      fourth instance was he kissed her again, and she said again it was with his
      tongue in her mouth. And she said that on that occasion he also touched
      her on what she called her pee pee, her vaginal area, and that would be
      number [five]. Those are your [five] different instances of fondling and
      touching.

Transcript at 144, 150-51. The jury found Chavez guilty as charged, and the trial court

ordered Chavez to serve an aggregate term of four years in the Department of Correction.

This appeal ensued.




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                            DISCUSSION AND DECISION

                        Issue One: Continuing Crime Doctrine

       Chavez contends that the State was not permitted to charge him with five counts of

child molesting and, instead, his acts were one chargeable crime under the continuing

crime doctrine. “The continuing crime doctrine essentially provides that actions that are

sufficient in themselves to constitute separate criminal offenses may be so compressed in

terms of time, place, singleness of purpose, and continuity of action as to constitute a

single transaction.” Riehle v. State, 823 N.E.2d 287, 296 (Ind. Ct. App. 2005), trans.

denied. “[T]he continuing crime doctrine reflects a category of Indiana’s prohibition

against double jeopardy.” Walker v. State, 932 N.E.2d 733, 736 (Ind. Ct. App. 2010).

As we have explained:

       The statutory elements and actual evidence tests [of double jeopardy, as
       described in Richardson v. State, 717 N.E.2d 32 (Ind. 1999),] are designed
       to assist courts in determining whether two separate[ly] chargeable crimes
       amount to the “same offense” for double jeopardy purposes. The
       continuous crime doctrine does not seek to reconcile the double jeopardy
       implications of two distinct[,] chargeable crimes; rather, it defines those
       instances where a defendant’s conduct amounts only to a single[,]
       chargeable crime. In doing so, the continuous crime doctrine prevents the
       state from charging a defendant twice for the same continuous offense.

Boyd v. State, 766 N.E.2d 396, 400 (Ind. Ct. App. 2002) (emphasis original). That is,

“while Indiana’s double jeopardy clause prohibits convicting a defendant of two or more

distinct[,] chargeable crimes when they constitute the ‘same offense’ . . . , it also

prohibits” charging a defendant “multiple times for the same continuous offense.”

Walker, 932 N.E.2d at 736-37. Although Chavez did not object on these grounds in the

trial court, the issue is not waived because, as a category of Indiana’s prohibition against


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double jeopardy, a violation, if shown, would constitute fundamental error. See Cossel v.

State, 675 N.E.2d 355, 362 (Ind. Ct. App. 1996).

      On appeal, the State defends its five charges by analogizing the facts of this case

to those in Collins v. State, 717 N.E.2d 108 (Ind. 1999), and Brown v. State, 459 N.E.2d

376 (Ind. 1984). In Collins, the court discussed two convictions for criminal deviate

conduct, one based on oral intercourse and one based on anal intercourse. 717 N.E.2d at

110-11.   Similarly, in Brown the court discussed multiple convictions for rape and

criminal deviate conduct, which “occurred at different times.” 459 N.E.2d at 378. In

both cases the court was concerned with whether the State had violated the defendant’s

double jeopardy rights when it had obtained multiple convictions for separately

chargeable crimes. Collins, 717 N.E.2d at 110-11; Brown, 459 N.E.2d at 378. But that is

not the issue Chavez presents. Rather, Chavez asserts that his actions did not amount to

five separately chargeable offenses but were only a single, chargeable crime. See Boyd,

766 N.E.2d at 400 (rejecting the State’s argument that the “double jeopardy analysis

[announced in Richardson] render[ed] the ‘continuing crime doctrine’ obsolete”).

      The continuing crime doctrine requires a fact-sensitive analysis. For example, in

Firestone v. State, 838 N.E.2d 468, 470 (Ind. Ct. App. 2005), the defendant “forced his

penis inside [his victim’s] vagina.” He then forced her to perform oral sex on him. The

State charged the defendant with rape and criminal deviate conduct, and the jury found

him guilty of both counts. On appeal, he argued that the two events were so closely

related that they should have been charged as one offense under the continuing crime

doctrine. We disagreed and held that the defendant “clearly committed two different


                                           5
offenses at two different times” and that “[t]he continuity of the actions does not negate

the fact that they were completely different sexual acts committed at different times.” Id.

at 472.

          However, in Duvall v. State, 978 N.E.2d 417, 428 (Ind. Ct. App. 2012), trans.

denied, we reversed several of the defendant’s convictions under the continuing crime

doctrine. Specifically, we stated that the defendant’s six “convictions for Insurance

Fraud stem[med] from six false statements given in a single insurance investigation

interview . . . .”    Id.   Further, “[h]er three convictions for Obstruction of Justice

stem[med] from a single crime scene clean-up (in which she removed an alcohol bottle,

medication container, and foam from [the decedent’s] mouth) . . . .” Id. We held that the

defendant’s conduct “was continuous so as to constitute one offense of Insurance Fraud

and one offense of Obstruction of Justice.” Id.

          The facts of this case share similarities with both Duvall and Firestone, and we

hold that Chavez committed two chargeable acts of child molesting on January 6, 2012,

not five. During his first encounter with K.W. that day, he kissed her on the mouth and

inserted his tongue into her mouth. While kissing her, he put his hand underneath her

shirt and rubbed her nipple, and he held his hand on her buttocks. Those three acts were

“so compressed in terms of time, place, singleness of purpose, and continuity of action as

to constitute a single transaction.” Riehle, 823 N.E.2d at 296; see Duvall, 978 N.E.2d at

428. Accordingly, we affirm Chavez’s conviction on Count I but we reverse and remand

with instructions that the trial court vacate Chavez’s convictions on Count II and Count

III.


                                              6
       Later that same day, Chavez again engaged K.W. This encounter clearly occurred

at a different time from the first encounter and is, therefore, separately chargeable. See

Firestone, 838 N.E.2d at 472. During this second encounter, Chavez again kissed K.W.

and inserted his tongue into her mouth. While kissing her, Chavez placed his hand, over

K.W.’s clothes, on her vagina. Those two acts “constitute a single transaction.” See

Duvall, 978 N.E.2d at 428. Thus, we affirm Chavez’s conviction on Count IV but we

reverse and remand with instructions to vacate his conviction on Count V.

                       Issue Two: Identically Worded Charges

       Chavez also asserts that the State’s five “carbon-copy counts . . . failed to provide

any specific factual details to differentiate the counts” and, as such, the charging

information failed to place him on proper notice of the factual basis for the State’s

allegations against him. Appellant’s Br. at 7. But we agree with the State that Chavez

has not preserved this issue for our review.         “‘The proper method to challenge

deficiencies in a charging information is to file a motion to dismiss the information, no

later than twenty days before the omnibus date.’” Leggs v. State, 966 N.E.2d 204, 207

(Ind. Ct. App. 2012) (quoting Miller v. State, 634 N.E.2d 57, 60 (Ind. Ct. App. 1994)).

Chavez did not file such a motion.

       Neither does Chavez’s argument on appeal demonstrate fundamental error.

“‘Failure to timely challenge . . . ordinarily would result in waiver of the issues, unless

the omission was so prejudicial to [the defendant’s] rights that fundamental error

resulted.’” Id. (quoting Miller, 634 N.E.2d at 60). “For error in a charging information

to be fundamental, ‘it must mislead the defendant or fail to give him notice of the charges


                                             7
against him so that he is unable to prepare a defense to the accusation.’” Id. (quoting

Miller, 634 N.E.2d at 61).

       Chavez was not unable to prepare a defense to the State’s allegations. Indeed, he

testified in his own defense, and his testimony shows that he plainly understood the

State’s allegations against him and was able to prepare his defense accordingly. See

Wine v. State, 637 N.E.2d 1369, 1374 (Ind. Ct. App. 1994) (holding there was no

fundamental error where the defendant did not demonstrate his defense was impeded by

the inadequacy of the charging information), trans. denied. And insofar as Chavez’s

argument here is based on double jeopardy concerns, we addressed those concerns in

Issue One.     Thus, Chavez cannot demonstrate fundamental error in the charging

information.

                                       Conclusion

       In sum, we hold that the State’s five counts for child molesting were in violation

of the continuing crime doctrine. Applying that doctrine to the facts in this case, we hold

that Chavez committed two chargeable crimes, not five. We also hold that Chavez did

not preserve his objection to the charging information, and, on appeal, he has not

demonstrated fundamental error in the information. Accordingly, we affirm in part,

reverse in part, and remand with instructions that the trial court vacate Chavez’s

convictions under Counts II, III, and V.

       Affirmed in part, reversed in part, and remanded with instructions.

BAILEY, J., and BARNES, J., concur.




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