                                                                              FILED
                                                                         Nov 21 2018, 10:29 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      David Becsey                                              Curtis T. Hill, Jr.
      Zeigler Cohen & Koch                                      Attorney General
      Indianapolis, Indiana                                     Chandra K. Hein
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Oscar Flores,                                             November 21, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                18A-CR-1632
              v.                                                Appeal from the Marion Superior
                                                                Court
      State of Indiana,                                         The Honorable Grant W.
      Appellee-Plaintiff                                        Hawkins, Judge
                                                                Trial Court Cause No.
                                                                49G05-1606-F4-22070



      Vaidik, Chief Judge.



                                           Case Summary
[1]   Oscar Flores was convicted of two counts of Level 4 felony child molesting of

      his niece—one for fondling and the other for touching. He now appeals,

      arguing that the fondling and touching occurred during a single transaction and

      Court of Appeals of Indiana | Opinion 18A-CR-1632 | November 21, 2018                       Page 1 of 5
      therefore one of his convictions should be vacated under the continuous-crime

      doctrine. We agree with Flores and therefore reverse and remand with

      instructions for the trial court to vacate one of his convictions.



                                Facts and Procedural History
[2]   Flores is C.G.’s1 uncle by marriage. One night in the spring of 2016, twelve-

      year-old C.G. spent the night at her aunt and Flores’s house. After helping get

      her younger cousins to sleep, C.G. went to sleep alone in her cousin’s bed.

      Later that night, C.G., who was sleeping on her side, woke up when she heard

      a zipper and felt “somebody touch[ing] [her]” from behind. Tr. Vol. II p. 39.

      C.G.’s pants and underwear were about halfway down in the back. C.G. then

      felt a penis touching “in between” her “butt cheeks” and fingers touching her

      vagina under her pants but on top of her underwear. Id. at 43. Scared, C.G.

      rolled off the bed, at which point she saw that Flores was the one who had

      touched her.


[3]   The State charged Flores with two counts of Level 4 felony child molesting

      under Indiana Code section 35-42-4-3(b), one for “fondling” C.G. with the

      intent to arouse or satisfy sexual desires and the other for “touching” C.G. with

      the intent to arouse or satisfy sexual desires. Appellant’s App. Vol. II p. 20. A

      jury trial was held. During closing arguments, the State argued that Flores




      1
          The transcript refers to the victim as “Alleged Victim” or “A.V.” See Tr. Table of Contents p. 2.


      Court of Appeals of Indiana | Opinion 18A-CR-1632 | November 21, 2018                                   Page 2 of 5
      “touched and fondled” C.G. during an “event” where he touched C.G.’s butt

      cheeks and vagina. Tr. Vol. II pp. 175-78. The jury found Flores guilty on

      both counts, and the trial court sentenced him to concurrent terms of ten years.


[4]   Flores now appeals.



                                  Discussion and Decision
[5]   Flores contends that his two convictions for Level 4 felony child molesting

      violate the continuous-crime doctrine.2 The continuous-crime doctrine is a rule

      of statutory construction and common law limited to situations where a

      defendant has been charged multiple times with the same “continuous” offense.

      Hines v. State, 30 N.E.3d 1216, 1219 (Ind. 2015). The 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. Id. A crime that is continuous in its purpose and

      objective is deemed to be a single uninterrupted transaction. Id. at 1220. In

      addition, offenses are deemed to be one continuous transaction when they are

      closely connected in time, place, and continuity of action. Id.


[6]   Flores argues that Chavez v. State, 988 N.E.2d 1226 (Ind. Ct. App. 2013), trans.

      denied, is controlling. We agree. In Chavez, the defendant was alone in a room




      2
       Indiana case law alternates between “continuing” crime doctrine and “continuous” crime doctrine.
      Because the Indiana Supreme Court referred to it as the “continuous” crime doctrine in its 2015 decision in
      Hines v. State, 30 N.E.3d 1216 (Ind. 2015), so do we.

      Court of Appeals of Indiana | Opinion 18A-CR-1632 | November 21, 2018                             Page 3 of 5
      with eight-year-old K.W. when he kissed K.W. on the mouth and inserted his

      tongue into her mouth. While kissing her, the defendant placed his hand

      underneath K.W.’s shirt and rubbed her nipple and held his hand on her

      buttocks. K.W. then left the room. K.W. later returned to the room, and a

      second encounter ensued. The defendant again kissed K.W. on the mouth and

      inserted his tongue into her mouth. While kissing her, the defendant placed his

      hand, over K.W.’s clothes, on her vagina. As to the first encounter, the State

      charged the defendant with three counts of Class C felony child molesting

      (touching or fondling with intent to arouse or satisfy sexual desires), citing the

      acts of kissing K.W., touching her nipple, and touching her buttocks. As to the

      second encounter, the State charged the defendant with two counts of Class C

      felony child molesting (touching or fondling with intent to arouse or satisfy

      sexual desires), citing the acts of kissing K.W. and touching her vagina over her

      clothes. The defendant was convicted on all five counts.


[7]   On appeal, the defendant argued that his five acts were “one chargeable crime”

      under the continuous-crime doctrine. Id. at 1228. We concluded that the

      defendant committed two chargeable acts of child molesting, not five. Id. at

      1229. As to the first encounter, we acknowledged that the defendant

      committed three different acts; however, we concluded that the acts of touching

      K.W.’s nipple and buttocks “[w]hile kissing her” were closely connected in

      time, place, and continuity of action and therefore constituted a single

      transaction. Id. We applied the same logic and reasoning to the second




      Court of Appeals of Indiana | Opinion 18A-CR-1632 | November 21, 2018      Page 4 of 5
      encounter. See id. at 1229-30. We therefore reversed and remanded with

      instructions for the trial court to vacate three of the defendant’s five convictions.


[8]   The reasoning and logic of Chavez apply here. That is, the evidence shows that

      Flores put his penis between C.G.’s butt cheeks while he touched her vagina

      over her underwear. See Tr. Vol. II pp. 43-44. Just as in Chavez, these acts were

      closely connected in time, place, and continuity of action and therefore

      constitute a single transaction. 988 N.E.2d at 1229-30. Despite Flores’s heavy

      reliance on Chavez, the State makes no effort at all to distinguish the two cases.

      Because Flores’s conduct amounts only to a single chargeable crime, we reverse

      and remand with instructions for the trial court to vacate one of his convictions.


[9]   Reversed in part and remanded.


      Mathias, J., and Crone, J., concur.




      Court of Appeals of Indiana | Opinion 18A-CR-1632 | November 21, 2018       Page 5 of 5
