MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),                             Apr 06 2016, 8:18 am
this Memorandum Decision shall not be
                                                                        CLERK
regarded as precedent or cited before any                           Indiana Supreme Court
                                                                       Court of Appeals
court except for the purpose of establishing                             and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Brett M. Roy                                             Gregory F. Zoeller
Roy Law Office                                           Attorney General of Indiana
Boonville, Indiana
                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jair Ortega Regalado,                                    April 6, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         87A05-1508-CR-1093
        v.                                               Appeal from the Warrick Superior
                                                         Court
State of Indiana,                                        The Honorable Robert R.
Appellee-Plaintiff.                                      Aylsworth, Judge
                                                         Trial Court Cause No.
                                                         87D02-1307-FC-265



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 87A05-1508-CR-1093 | April 6, 2016        Page 1 of 6
                                                                                                      1
[1]   Jair Ortega Regalado appeals his conviction of Class C felony child molesting.

      He argues the court abused its discretion by allowing vouching testimony and

      there was insufficient evidence to support his conviction. We dismiss

      Regalado’s appeal sua sponte, concluding we lack jurisdiction because the trial

      court has yet to rule on Regalado’s motion to correct error.


                                     Facts and Procedural History
[2]   Regalado was accused of touching his daughter, B.O., on more than one

      occasion in an inappropriate manner. At the time of the incidents, B.O. was

      ten years old. Following an investigation, Regalado was charged with Class C

      felony child molesting.


[3]   A jury trial took place on April 13-14, 2015. After the State rested, Regalado’s

      counsel moved for judgment on the evidence, alleging the State did not prove

      intent. The trial court denied the motion. The jury found Regalado guilty as

      charged.


[4]   Regalado moved to correct error, alleging the evidence was insufficient and the

      trial court allowed impermissible vouching testimony. He asked the trial court

      to either set aside the conviction or order a new trial. The court denied the

      motion on July 7, 2015. On July 31, 2015, Regalado filed a motion to

      reconsider based on Sampson v. State, 38 N.E.3d 985 (Ind. 2015), which was




      1
          Ind. Code § 35-42-4-3(b) (2007).

      Court of Appeals of Indiana | Memorandum Decision 87A05-1508-CR-1093 | April 6, 2016   Page 2 of 6
                                       2
      decided the day before. On August 4, 2015, after reviewing Sampson, the trial

      court granted the motion to reconsider. It set aside the order denying the

      motion to correct error, “. . . such that the motion to correct error remains

      pending.” (App. at 16-17.) The court added that “[u]nless a party requests

      argument on or before 08/10/2015, the court will enter a ruling on defendant’s

      motion to correct error.” (Id. at 17.)


[5]   On August 4, 2015, the State filed a motion to certify the court’s order for

      interlocutory appeal and for a stay of proceedings. On August 6, 2015, the

      court heard arguments on the State’s motion, denied the motion, and confirmed

      its earlier order setting aside the denial of the motion to correct error. The court

      stated:

                Court allows the state the opportunity to review testimony of trial
                witnesses to determine whether or not the defendant did in fact
                suggest coaching of B.O. may have occurred. State to advise as
                to which witness testimony they [sic] want transcribed. Court
                assigns hearing on defendant’s motion to correct error, over
                objection by counsel for defendant who request [sic] a ruling
                today, for 08/27/2015 at 1:00 p.m. . . .


      (Id.)




      2
        In Sampson, our Supreme Court concluded that, “the subtle distinction between an expert’s testimony that a
      child has or has not been coached versus an expert’s testimony that the child did or did not exhibit any ‘signs or
      indicators’ of coaching is insufficient to guard against the dangers that such testimony will constitute
      impermissible vouching . . . .” Sampson v. State, 38 N.E.3d 985, 991-92 (Ind. 2015) (emphasis in original).

      Court of Appeals of Indiana | Memorandum Decision 87A05-1508-CR-1093 | April 6, 2016                  Page 3 of 6
[6]   Defense counsel filed a notice of appeal on August 10, 2015. On that same day,

      the State filed an additional objection to defense counsel’s motion to reconsider

      the ruling on the motion to correct error. The notice of completion of clerk’s

      record was issued on August 12, 2015.


                                        Discussion and Decision
[7]   A motion to reconsider or rehear a motion to correct error does not extend time

      for taking an appeal. Fancher v. State, 436 N.E.2d 311, 312 (Ind. 1982). Once a

      timely motion to correct error has been denied, time for perfecting the appeal

      begins to run. Id. An exception arises if the trial court amends, modifies, or

      alters its original judgment, instead of denying the motion. Id. Under such

      circumstances, an adversely affected party may perfect an appeal, or may file

      his own motion to correct error, and thereby extend time for perfecting an

      appeal. Id.; see also, Ind. Trial Rule 59(F) (“Any modification or setting aside of

      a final judgment or an appealable final order following the filing of a Motion to

      Correct Error shall be an appealable final judgment or order.”); Calloway v.

      State, 500 N.E.2d 1196, 1198 (Ind. 1986) (holding “under the circumstances of

      this case the [trial] court [judge] did not commit reversible error in correcting
                                                                          3
      his ruling on the first motion [to correct error]”).




      3
        In Calloway v. State, 500 N.E.2d 1196 (Ind. 1986), due to a recent decision clarifying the law at issue, a
      second motion to correct error was filed one week after the first motion was denied. Relying on the new case
      law, the trial court granted the second motion to correct error and set aside its earlier post-conviction relief
      judgment.

      Court of Appeals of Indiana | Memorandum Decision 87A05-1508-CR-1093 | April 6, 2016                 Page 4 of 6
[8]    We do not have jurisdiction over this appeal because there has been no final

       judgment. Whether an order is a final judgment governs an appellate court’s

       subject matter jurisdiction. Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind. 2003).

       The lack of appellate subject matter jurisdiction may be raised at any time, and

       where the parties do not raise the issue, we may consider it sua sponte. Id. A

       party wishing to appeal the judgment of a trial court must file a notice of appeal

       within thirty days after the entry of the final judgment. Ind. Appellate Rule

       9(A)(1). If a party timely files a motion to correct error, a notice of appeal must

       be filed within thirty days after the trial court’s ruling on the motion, or thirty

       (30) days after the motion is deemed denied under Trial Rule 53.3, whichever

       occurs first. Id.


[9]    The trial court denied Regalado’s motion to correct error and Regalado filed a

       motion to reconsider. On August 4, 2015, the trial court granted Regalado’s

       motion to reconsider, set aside the denial of the motion to correct error, and

       indicated the motion to correct error was “pending.” (App. at 17.) The court

       explicitly denied the State’s motion to certify its August 4, 2015 order for

       interlocutory appeal. On August 6, 2015, the trial court set the “pending”

       motion to correct error for a hearing to be held on August 27, 2015.


[10]   The trial court scheduled the hearing on the pending motion to correct error

       within forty-five days after the original ruling on the motion was set aside, but

       the hearing could not take place because Regalado filed a notice of appeal. The

       motion to correct error had not been deemed denied under T.R. 53.3(A), and

       the trial court has yet to issue a ruling on the motion to correct error. Thus,

       Court of Appeals of Indiana | Memorandum Decision 87A05-1508-CR-1093 | April 6, 2016   Page 5 of 6
       there is no final judgment for us to review, and we do not have jurisdiction over

       this case. See App. R. 5(A) (“the Court of Appeals shall have jurisdiction in all

       appeals from Final Judgments . . . .”); see also, In re Estate of Botkins, 970 N.E.2d

       164, 168 (Ind. Ct. App. 2012) (appellate court did not have jurisdiction because

       appealed order was not a final judgment or appealable interlocutory order); cf.

       Calloway, 500 N.E.2d at 1198 (though prosecution filed a praecipe prior to trial

       court’s ruling on second motion to correct error, trial court retained jurisdiction

       to make ruling, as record of proceedings had not yet been filed).


                                                 Conclusion
[11]   This appeal is dismissed without prejudice.


[12]   Dismissed.


       Najam, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 87A05-1508-CR-1093 | April 6, 2016   Page 6 of 6
