MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Jun 25 2019, 10:29 am

court except for the purpose of establishing                                   CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Valerie K. Boots                                          Curtis T. Hill, Jr.
Marion County Public Defender Agency                      Attorney General of Indiana
Indianapolis, Indiana
                                                          Evan Matthew Comer
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

B.L.S.,                                                   June 25, 2019
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          19A-JV-252
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Mark Jones, Judge
Appellee-Petitioner.                                      The Honorable Gary Chavers,
                                                          Magistrate

                                                          Trial Court Cause No.
                                                          49D15-1806-JD-656



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-JV-252 | June 25, 2019                       Page 1 of 7
                                           Case Summary
[1]   B.L.S. appeals after he was adjudicated to be a delinquent child for committing

      what would be Level 3 felony child molesting and Level 6 felony sexual battery

      if committed by an adult. B.L.S. contends that the true findings for both child

      molesting and sexual battery violate the prohibitions against double jeopardy.

      Because the evidence establishes that B.L.S. committed only one continuous act

      of sexual touching, we must agree. As such, we remand to the juvenile court

      with instructions for the court to vacate its true finding for sexual battery.



                            Facts and Procedural History
[2]   In June of 2018, thirteen-year-old C.S. was a seventh grader and fourteen-year-

      old B.L.S. was an eighth grader at the Positive Support Academy. On June 6,

      2018, C.S. went to the classroom of Rita Dewes. When C.S. arrived in Ms.

      Dewes’s classroom, there were about four persons there, including Z.D., J.H.,

      B.L.S., and one of B.L.S.’s friends. At some point, C.S. heard Ms. Dewes tell

      B.L.S. and his friend “to leave because they were playing” around. Tr. Vol. II

      p. 11. C.S., who was tired, “went to the back of the class and laid down” by the

      file cabinets. Tr. Vol. II p. 11. While lying on the floor, C.S. fell asleep on her

      stomach. She awoke when she felt “somebody touching” her. Tr. Vol. II p. 12.

      C.S. saw B.L.S. and felt his hand on her bare skin under her pants moving

      towards her vagina. C.S. then felt B.L.S. start “using his fingers, putting it in

      and out” of her vagina. Tr. Vol. II p. 13. C.S. unsuccessfully tried to remove

      B.L.S.’s hand before telling him to stop “one or two times.” Tr. Vol. II p. 13.

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-252 | June 25, 2019   Page 2 of 7
      Although B.L.S. initially ignored C.S.’s request that he stop, he removed his

      hand a short time later “when the bell rang.” Tr. Vol. II p. 14. C.S. then sat up

      and adjusted her pants which had “come down a bit.” Tr. Vol. II p. 14. Later

      that day, C.S. reported B.L.S.’s behavior to school authorities.


[3]   Detective Nicholas Ragsdale was dispatched to the school after school

      authorities reported the alleged incident to the Indianapolis Metropolitan Police

      Department. Detective Ragsdale interviewed Z.D. and J.H., both of whom

      were in the classroom during the alleged incident. Z.D. indicated that she had

      observed B.L.S. reach “his hand down in the back of [C.S.’s] pants,” heard C.S.

      tell B.L.S. to stop, and observed C.S. attempting to pull B.L.S.’s “hands out of

      the back of her pants.” Tr. Vol. II p. 28. J.H. also indicated that he observed

      B.L.S. “touch [C.S.] sexually” and heard C.S. tell B.L.S. to stop. Tr. Vol. II p.

      38.


[4]   On June 7, 2018, the juvenile court approved the filing of the State’s petition

      alleging that B.L.S. was a delinquent child for committing what would be the

      following crimes if committed by an adult: Level 3 felony rape, Level 3 felony

      child molesting, and Level 6 felony sexual battery. The juvenile court

      conducted a fact-finding hearing on November 8, 2018, after which it entered a

      “not true” finding on the rape allegation and “true” findings on the child

      molesting and sexual battery allegations. Appellant’s App. Vol. II p. 105.

      Following a dispositional hearing, the juvenile court ordered that “[B.L.S.] is

      placed on probation with a suspended commitment to the Indiana Department

      of Correction.” Appellant’s App. Vol. II p. 165.

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-252 | June 25, 2019   Page 3 of 7
                                 Discussion and Decision
[5]   On appeal, B.L.S. contends that the juvenile court’s true findings for acts that

      would constitute both Level 3 felony child molesting and Level 6 felony sexual

      battery if committed by an adult violate the prohibitions against double

      jeopardy. Specifically, he argues that because the evidence establishes that

      there was only one instance of sexual touching between him and C.S., he

      cannot be found to have committed two separate sex-related criminal acts.


[6]   The Indiana Constitution guarantees “[n]o person shall be put in jeopardy twice

      for the same offense.” Ind. Const. Art. 1, § 14. Double jeopardy principles

      attach in juvenile delinquency adjudications. D.J. v. State, 88 N.E.3d 236, 240

      (Ind. Ct. App. 2017).


              The analysis of double jeopardy claims under the Indiana
              Constitution is governed by Richardson v. State, 717 N.E.2d 32
              (Ind. 1999), in which our supreme court described two tests, the
              statutory elements test and the actual evidence test. Two offenses
              are the same offense in violation of Article 1, Section 14 of our
              constitution if, with respect to either the statutory elements of the
              challenged crimes or the actual evidence used to convict, the
              essential elements of one challenged offense also establish the
              essential elements of another challenged offense.…

              Under the actual evidence test, the evidence presented at trial is
              examined to determine whether each challenged offense was
              established by separate and distinct facts. To show that two
              challenged offenses constitute the same offense under the actual
              evidence test, a defendant must show a reasonable possibility that
              the evidentiary facts used by the fact[-]finder to establish the



      Court of Appeals of Indiana | Memorandum Decision 19A-JV-252 | June 25, 2019   Page 4 of 7
              essential elements of one offense may also have been used to
              establish the essential elements of a second challenged offense.


      Id. (internal citations and quotations omitted).


[7]   In D.B. v. State, 842 N.E.2d 399 (Ind. Ct. App. 2006), we considered whether

      true findings for both rape and child molesting violated the prohibitions against

      double jeopardy when the respondent committed only one instance of

      nonconsensual sexual intercourse with the victim. In finding that the true

      findings for both did violate the prohibitions against double jeopardy, we stated

      the following:


              Because the gravamen of both offenses is nonconsensual sexual
              intercourse, a conviction and sentence for rape and child
              molesting based [on] a single act has been held to violate
              principles of double jeopardy. As A.B. testified to only one
              instance of nonconsensual sexual intercourse with D.B., there is
              a “reasonable possibility” the juvenile court used this fact to
              establish the essential elements of both rape and child molesting.


      842 N.E.2d at 404 (internal citations omitted).


[8]   Similar to D.B., in this case, the gravamen of both offenses is a sexual touching.

      C.S. testified to only one instance of nonconsensual sexual touching by B.L.S.

      She also testified that the encounter lasted for a “short period of time.” Tr. Vol.

      II p. 21. Z.D. and J.H., both of whom witnessed the encounter, testified to

      observing a single continuous sexual touching. Even the deputy prosecutor’s

      closing argument depicts B.L.S.’s actions as a single continuous act of sexual

      touching:

      Court of Appeals of Indiana | Memorandum Decision 19A-JV-252 | June 25, 2019   Page 5 of 7
              [C.S.] said that when she was laying on her stomach, [B.L.S.] put
              his hands down her pants and up into her lady parts; her vagina
              and he moved his hand in and out – well his finger in and out,
              excuse me. We heard that she said stop, that she tried to move
              his hand away and she was unsuccessful of doing that which
              establishes the element of force.


      Tr. Vol. II p. 66. The evidence establishes that B.L.S. committed one

      continuous act of sexual touching of C.S. Given this fact, we conclude that

      there is a reasonable possibility that the juvenile court used this single act to

      establish the essential elements of both child molesting and sexual battery. See

      D.B., 842 N.E.2d at 404. As such, the true findings for what would be both

      child molesting and sexual battery if committed by an adult violate the

      prohibitions against double jeopardy.


[9]           When two convictions are found to contravene the double
              jeopardy principles, a reviewing court may remedy the violation
              by reducing either conviction to a less serious form of the same
              offense if doing so will eliminate the violation. If it will not, one
              of the convictions must be vacated. The reviewing court will
              make this determination itself, being mindful of the penal
              consequences that the trial court found appropriate.


      Id. (internal quotations omitted). In this case, the appropriate remedy is to

      vacate the true finding for the less serious offense, i.e., sexual battery. As such,

      we remand the matter to the juvenile court with instructions to vacate the true

      finding for sexual battery. See id. at 407; Spears v. State, 735 N.E.2d 1161, 1169

      (Ind. 2000) (remanding the matter to the trial court with instruction to vacate



      Court of Appeals of Indiana | Memorandum Decision 19A-JV-252 | June 25, 2019    Page 6 of 7
       the less serious offense following a finding that the defendant’s convictions

       violated the prohibitions against double jeopardy).


[10]   The judgment of the juvenile court is reversed in part and remanded with

       instructions.


       Crone, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JV-252 | June 25, 2019   Page 7 of 7
