MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                              Jun 09 2017, 8:24 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
Brandon E. Murphy                                        Curtis T. Hill, Jr.
Muncie, Indiana                                          Attorney General of Indiana

                                                         Ellen H. Meilaender
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthony T. Orr,                                          June 9, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         05A04-1608-CR-1791
        v.                                               Appeal from the Blackford Circuit
                                                         Court
State of Indiana,                                        The Honorable Dean A. Young,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         05C01-1507-FB-191



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 05A04-1608-CR-1791 | June 9, 2017            Page 1 of 10
[1]   Anthony T. Orr appeals his conviction of Class B felony child molesting. 1 Orr

      argues fundamental error occurred when the jury received inadequate

      instruction regarding the unanimity required to convict him of child molesting.

      We reverse and remand.



                                Facts and Procedural History
[2]   Orr’s half-brother was married to S.H.’s mother. From August 2010 to May

      2011, Orr would babysit for S.H. and her siblings occasionally while her mother

      and stepfather worked. S.H.’s mother said Orr babysat “maybe 10 times.” (Tr.

      at 61.) While alone with the children, Orr forced kindergarten-age S.H. to

      submit to anal sex several times. 2 In January 2015, during counseling sessions,

      S.H. disclosed Orr had molested her.


[3]   On July 16, 2015, the State charged Orr with ten counts of Class B felony child

      molesting. All ten counts alleged “that between August 16, 2010 and May 28,

      2011 in Blackford County, State of Indiana, Anthony T [sic] Orr did perform or

      submit to sexual intercourse or deviate sexual conduct with S.H., a child under

      the age of fourteen years . . . .” (App. Vol. II at 29-30.) No other specifics were

      included in any of the charges.




      1
          Ind. Code § 35-42-4-3(a) (2007).
      2
       The trial court clerk’s failure to include Exhibit 1A - the redacted version of S.H.’s interview at the Child
      Advocacy Center, which was played for the jury - has greatly hindered our review of the record. We
      encourage counsel to ensure the record is complete.

      Court of Appeals of Indiana | Memorandum Decision 05A04-1608-CR-1791 | June 9, 2017                  Page 2 of 10
[4]   S.H. remembered the first time Orr molested her was in her bedroom and she

      was “very freaked out and very scared.” (Tr. at 112.) She also recalled the last

      time it happened because her stepfather and Orr had a fight shortly thereafter.

      At times, her brother would sleep on the couch and Orr would tell her “to go to

      [her] brother’s room.” (Id. at 114.) Once, when S.H.’s sister was sleeping in

      her room, Orr put the sister “in the hallway” before he removed his own and

      S.H.’s clothing. (Id. at 119.) S.H. testified Orr penetrated her anally each time.


[5]   Orr moved for a directed verdict after the State presented its case. Orr argued

      the State had not presented evidence of ten incidences of child molesting. The

      trial court took the motion under advisement but refused to grant the directed

      verdict as to any counts for fear it would cause the jury “to believe that the

      Court has somehow determined that Mr. Orr is not guilty or guilty of any of

      them.” (Id. at 148-49.) The trial court also stated it would “be giving the jury

      an instruction indicating that all counts, the 10 counts in this case, must be

      weighed on their own merits and decided individually based upon the burden of

      proof.” (Id. at 148.)


[6]   When giving final jury instructions, the trial court gave instructions as to the

      elements to be found for each charge, which were the same for all ten counts.

      Additionally, the trial court gave Final Instruction 14, which stated: “Although

      all the counts are contained within one charging document, you are to consider

      the law and the evidence as it may apply to each count individually and

      separately from the other counts.” (App. Vol. II at 144.) Final Instruction 23

      told the jury it must agree to the verdict and told the foreperson to “not sign any

      Court of Appeals of Indiana | Memorandum Decision 05A04-1608-CR-1791 | June 9, 2017   Page 3 of 10
      verdict form for which there is not unanimous agreement.” (Id. at 153.) Orr

      did not object or offer alternative instructions.


[7]   During jury deliberations, the jury indicated it was at an impasse and requested

      the trial court’s assistance. Specifically, it wanted to know if it could have

      access to a deposition of S.H. that was used to impeach S.H. at trial but was not

      published to the jury. Orr objected, and the trial court denied the request. Ten

      minutes after that denial, the jury indicated it was ready to return a verdict.

      The jury found Orr guilty of the first count, but acquitted him of the other nine

      counts. When polled, each juror agreed this was his or her verdict. The verdict

      forms do not indicate any specific evidence the jury relied on to support that

      count.



                                 Discussion and Decision
[8]   Orr asserts the trial court committed fundamental error by failing to give

      adequate instruction regarding jury unanimity. Orr acknowledges he did not

      object to the instruction at trial nor did he provide his own unanimity

      instruction. Thus, unless he demonstrates error is fundamental, he has waived

      this issue for review. Evans v. State, 30 N.E.3d 769, 775 (Ind. Ct. App. 2015),

      trans. denied. Appellate courts may, on rare occasions, resort to the fundamental

      error exception to address on direct appeal an otherwise procedurally defaulted

      claim. Jewell v. State, 887 N.E.2d 939, 942 (Ind. 2008). But fundamental error

      is extremely narrow and available only when the record reveals a clearly blatant

      violation of basic and elementary principles, where the harm or potential for

      Court of Appeals of Indiana | Memorandum Decision 05A04-1608-CR-1791 | June 9, 2017   Page 4 of 10
       harm cannot be denied, and when the violation is so prejudicial to the rights of

       the defendant as to make a fair trial impossible. Id.


[9]    Indiana has “long required that a verdict of guilty in a criminal case ‘must be

       unanimous.’” Baker v. State, 948 N.E.2d 1169, 1174 (Ind. 2011) (internal

       citation omitted), reh’g denied. Our Supreme Court in Baker recognized three

       situations in which the “issue of jury unanimity commonly arises in child sex

       offense cases.” Id. The first situation is one in which the abuse is so frequent

       the child can no longer distinguish the circumstances surrounding separate

       incidences of abuse. Id. Second is when the jury instruction or the charging

       information is written in the disjunctive and would allow the jury to convict for

       two different offenses. Id. at 1175. The last situation is one in which more

       evidence is presented than was charged, i.e., one charge was filed but evidence

       of three distinct crimes was presented in court. Id.


[10]   The facts before us are analogous to the first situation recognized in Baker, in

       which a child loses perspective of the timeframe of any particular offense due to

       the ongoing nature of the abuse. In these situations, it may be difficult to

       discern whether the jury unanimously agreed the defendant committed any

       specific act. Id. at 1174. Although other jurisdictions have adopted legislation

       to manage such situations, 3 our Indiana Supreme Court noted Indiana has not

       done so and it “encourage[d] the General Assembly to consider this issue.” Id.



       3
         New Hampshire recognizes a “continuous course of conduct crime.” Baker v. State, 948 N.E.2d 1169, 1174
       (Ind. 2011), reh’g denied. Alabama recognizes “generic evidence” to “describe a pattern of abuse.” Id.

       Court of Appeals of Indiana | Memorandum Decision 05A04-1608-CR-1791 | June 9, 2017          Page 5 of 10
       at 1175. Thus far, our legislature has not done so, and we must decide this case

       by analogizing the facts herein to prior cases.


[11]   The State relies on Baker. In Baker, the defendant was charged with one crime,

       but the State presented evidence of multiple crimes. Our Indiana Supreme

       Court adopted the California Supreme Court’s reasoning that either (1) the

       State had to designate the evidence it relied on to bring the charge; or (2) the

       jury had to be presented with a detailed unanimity instruction. Id. at 1177. The

       State had not designated the specific facts supporting the charge against Baker,

       so the Court turned to the jury instruction. Id. at 1178. The instruction advised

       Baker’s jurors they “must all agree [and e]ach verdict must be unanimous.” Id.

       Our Indiana Supreme Court held that instruction was insufficient to advise the

       jury it must “either unanimously agree that [Baker] committed the same act or

       acts or that he committed all the acts described by the victim[.]” Id.


[12]   Ultimately, our Indiana Supreme Court held that erroneous instruction did not

       create fundamental error because the “only issue was the credibility of the

       alleged victims.” Id. at 1179. Baker said the children were lying about the

       allegations in order to exact revenge against him because one of the victims had

       been grounded due to Baker informing her parents she had been in a car with a

       boy. Id. at 1173. Because the jury convicted Baker of all the crimes, our

       Indiana Supreme Court inferred the jury found the victims credible such that

       the erroneous instruction did not prejudice Baker. Id. at 1179.




       Court of Appeals of Indiana | Memorandum Decision 05A04-1608-CR-1791 | June 9, 2017   Page 6 of 10
[13]   Orr relies on Lainhart v. State, 916 N.E.2d 924 (Ind. Ct. App. 2009), claiming

       fundamental error occurred because, as in Lainhart, the jury “may have

       disagreed as to which crime occurred . . . .” Id. at 942. In Lainhart, the State

       charged Lainhart with one count of intimidation and alleged three possible

       victims. Id. at 930. The State presented evidence of incidents involving three

       victims but it was unclear whether the jury believed the same act occurred to

       support the verdict of guilty. Id. at 942. Although there was only one criminal

       charge brought, because it was written in the disjunctive, we held “the State

       actually charged [Lainhart] with several alternative crimes.” Id. As such, the

       “trial court erred by not issuing a unanimity instruction.” Id.


[14]   Here, the State charged Orr with ten counts of child molesting. The State did

       not designate the evidence it relied on in support of any particular count. Thus,

       the trial court was required to give the jury an instruction as to unanimity. See

       id. The trial court instructed the jury to “consider the law and the evidence as it

       may apply to each count individually and separately from the other counts,”

       (App. Vol. II at 144), along with instructions that each jury member “must

       agree to it” and that the foreperson should “not sign any verdict form for which

       there is not unanimous agreement.” (Id. at 153.) However, as the court held in

       Baker, these generic instructions are not sufficient to put the jurors on notice

       they “must either unanimously agree that [the defendant] committed the same

       act or acts or that he committed all of the acts described by the victim and

       included within the time period charged.” Baker, 948 N.E.2d at 1178.




       Court of Appeals of Indiana | Memorandum Decision 05A04-1608-CR-1791 | June 9, 2017   Page 7 of 10
[15]   The circumstances herein are most analogous to Lainhart where the State

       charged several crimes and presented evidence of multiple criminal acts but the

       trial court did not instruct the jury adequately about the unanimity required to

       convict Orr. Nor did the jury’s verdict form reveal whether the jurors all relied

       on the same evidence. Accordingly, we cannot know whether Orr’s jury

       rendered a unanimous verdict. Nor can we hold, like in Baker, that the error

       was harmless when Orr’s jury found him guilty of one of ten charges, not “all

       the acts.” Baker, 948 N.E.2d at 1178. Thus, we reverse. 4 See Lainhart, 916

       N.E.2d at 942 (reversal warranted when jury unanimity is not clarified with a

       proper instruction). 5


[16]   As we reverse Orr’s conviction due to an instructional error, we turn to whether

       he can be retried. When the reversal of a conviction is due to an error in

       instruction but sufficient evidence exists to support the conviction, “double

       jeopardy does not bar retrial[.]” Edwards v. State, 773 N.E.2d 360, 364 (Ind. Ct.

       App. 2002), trans. denied. Accordingly, we now address whether the record

       contained sufficient evidence to support Orr’s conviction.


[17]   When reviewing sufficiency of the evidence in support of a conviction, we will

       consider only probative evidence in the light most favorable to the trial court’s

       judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 2007), reh’g denied. The



       4
           As we reverse on this first issue, we need not address Orr’s assertion the jury’s verdicts were irreconcilable.

       5
        We encourage the State to organize and present the evidence in a manner that the jury can return a
       unanimous verdict and avoid the necessity of a retrial.

       Court of Appeals of Indiana | Memorandum Decision 05A04-1608-CR-1791 | June 9, 2017                     Page 8 of 10
       decision comes before us with a presumption of legitimacy, and we will not

       substitute our judgment for that of the fact-finder. Id. We do not assess the

       credibility of the witnesses or reweigh the evidence in determining whether the

       evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal

       is appropriate only when no reasonable fact-finder could find the elements of

       the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not

       required to overcome every reasonable hypothesis of innocence and is sufficient

       if an inference may reasonably be drawn from it to support the verdict. Id. at

       147.


[18]   To prove child molesting, the State had to prove Orr, “with a child under

       fourteen (14) years of age, perform[ed] or submit[ted] to sexual intercourse or

       deviate sexual conduct . . . .” Ind. Code § 35-42-4-3(a) (2007). The State

       presented evidence Orr had performed anal sex on S.H. in her room and in her

       brother’s room. S.H. testified to the first time this happened, a time it happened

       in her brother’s room, a time it happened when her sister was moved into the

       hallway, and the final time it happened when her stepfather argued with Orr

       afterward. Any one of these incidences supports the jury’s decision that Orr

       was guilty of child molesting. As sufficient evidence was presented to support a

       conviction, double jeopardy does not bar the State from retrying Orr when we

       reverse for a procedural error. See Edwards, 773 N.E.2d at 364 (retrial not

       barred by principles of double jeopardy when the reversal of the original

       conviction was based on instructional error and the evidence was sufficient to

       convict).


       Court of Appeals of Indiana | Memorandum Decision 05A04-1608-CR-1791 | June 9, 2017   Page 9 of 10
                                               Conclusion
[19]   As it is unclear which act or acts the jurors may have relied on to find Orr guilty

       of one of the ten counts charged, we reverse and remand for a new trial

       consistent with this decision.


[20]   Reversed and remanded.


       Najam, J., concurs. Bailey, J., concurs in result.




       Court of Appeals of Indiana | Memorandum Decision 05A04-1608-CR-1791 | June 9, 2017   Page 10 of 10
