                                                                                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

      Court of Appeals of Indiana | Opinion 18A-CR-2756 | April 30, 2019                            Page 1 of 9
      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.




      Court of Appeals of Indiana | Opinion 18A-CR-2756 | April 30, 2019       Page 2 of 9
[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.

      Court of Appeals of Indiana | Opinion 18A-CR-2756 | April 30, 2019                                   Page 3 of 9
                                      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

      Court of Appeals of Indiana | Opinion 18A-CR-2756 | April 30, 2019           Page 4 of 9
        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]


Court of Appeals of Indiana | Opinion 18A-CR-2756 | April 30, 2019                Page 5 of 9
        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).

Court of Appeals of Indiana | Opinion 18A-CR-2756 | April 30, 2019                Page 6 of 9
[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.”


       Court of Appeals of Indiana | Opinion 18A-CR-2756 | April 30, 2019                   Page 7 of 9
                [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).

       Court of Appeals of Indiana | Opinion 18A-CR-2756 | April 30, 2019                                   Page 8 of 9
       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.

       Court of Appeals of Indiana | Opinion 18A-CR-2756 | April 30, 2019                                Page 9 of 9
