MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              FILED
regarded as precedent or cited before any                     Dec 14 2016, 8:18 am
court except for the purpose of establishing                       CLERK
the defense of res judicata, collateral                        Indiana Supreme Court
                                                                  Court of Appeals
estoppel, or the law of the case.                                   and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Elizabeth A. Bellin                                     Gregory F. Zoeller
Elkhart, Indiana                                        Attorney General of Indiana


                                                        Larry D. Allen
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Julian Rodriguez,                                       December 14, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        20A05-1604-CR-903
        v.                                              Appeal from the Elkhart Superior
                                                        Court
State of Indiana,                                       The Honorable Teresa L. Cataldo,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        20D03-1504-F1-1



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 20A05-1604-CR-903| December 14, 2016   Page 1 of 5
                                          Case Summary
[1]   Julian Rodriguez was convicted on three counts of child molesting. On appeal,

      Rodriguez argues that Counts II and III violate Indiana’s constitutional

      prohibition against double jeopardy. He contends that there is a reasonable

      possibility that the jury relied on the same evidence when it convicted him on

      all three counts. Finding no violation, we affirm.



                            Facts and Procedural History
[2]   From August 2014 to March 2015, Griselda Leyva-Moreno took her two

      children, A.L. and D.E., to Rodriguez’s house almost every night because of

      her work schedule. In March 2015, A.L., who was nine years old at the time,

      told her mother that Rodriguez had touched her “nookie” (A.L.’s word for her

      vagina) on multiple occasions. Leyva-Moreno called the police, and A.L. was

      interviewed and taken for a sexual-assault examination. After A.L.’s interview

      and exam, Rodriguez was arrested and charged with three counts of Level 1

      felony child molesting.

[3]   At trial, the sexual-assault nurse who examined A.L testified that during the

      exam A.L. told the nurse that Rodriguez “touched her nookie, he put his hand

      through her pants . . . moved her underwear over and put his finger in her

      nookie[]. And—and then he does that whenever she’s there.” Tr. p. 258-59.

      Upon examining A.L.’s vagina, the nurse found that the vaginal area was

      “very—very red, more so than what I would normally see. And then on her left


      Court of Appeals of Indiana | Memorandum Decision 20A05-1604-CR-903| December 14, 2016   Page 2 of 5
      side there was a scratch in the labia minora.” Id. at 259. She acknowledged

      that the scratch “only identifies one incident” of penetration, id. at 278, but

      added that the single scratch was not inconsistent with A.L.’s explanation that

      Rodriguez penetrated her on multiple occasions with his fingers because the

      vaginal area heals quickly. A.L.’s own testimony was consistent with what she

      told the nurse during the exam: Rodriguez would place his hand inside of her

      pants, put his hand on her skin, and touch her “nookie” and that it happened

      “every day” that she was at his house. Id. at 341, 343. The State asked A.L.,

      “[D]id he do anything with his hand once it was inside of your nookie?” Id. at

      342. A.L. responded that he would wash his hands afterwards. Detective

      Mora, one of the investigating officers, testified that Rodriguez admitted that he

      had “adjusted” A.L. three different times; Rodriguez demonstrated what he

      meant by placing his hand “between his legs in his crotch area,” essentially

      “cupping” his private parts. Id. at 399, 401.


[4]   The jury found Rodriguez guilty on all three counts. The trial court sentenced

      Rodriguez to thirty years on each count, with Count II to run consecutive to

      Count I and Count III to run concurrent with Count I, for a total of sixty years.

[5]   Rodriguez appeals.



                                Discussion and Decision
[6]   Rodriguez contends that his multiple convictions violate the Indiana

      Constitution’s double jeopardy clause, which provides, “No person shall be put


      Court of Appeals of Indiana | Memorandum Decision 20A05-1604-CR-903| December 14, 2016   Page 3 of 5
      in jeopardy twice for the same offense.” Ind. Const., art. 1 § 14. “[T]wo or

      more offenses are the ‘same offense’ . . ., 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.” Richardson v. State, 717 N.E.2d 32, 49 (Ind.

      1999). Rodriguez argues a violation of the actual-evidence test. To satisfy this

      test, he must demonstrate a “reasonable possibility” that the same evidence was

      used by the factfinder to establish the essential elements for multiple offenses.

      Id. at 53. “[A]s long as each conviction requires proof of at least one unique

      evidentiary fact, no violation of the actual evidence test occurs.” Weddle v.

      State, 997 N.E.2d 45, 47 (Ind. Ct. App. 2013) (quotation omitted), trans. denied.


[7]   Each of Rodriguez’s charges for child molesting was worded identically: “[O]n

      or about or between the 1st day of January 2015, through the 31st day of March

      2015, . . . Julian Rodriguez, a person at least twenty-one years of age, did

      knowingly perform or submit to other sexual conduct with A.L, a child under

      fourteen years of age . . . .” Appellant’s App. p. 131; see Ind. Code § 35-42-4-

      3(a)(1). As relevant here, “other sexual conduct” includes “the penetration of

      the sex organ or anus of a person by an object.” Ind. Code § 35-31.5-2-221.5(2);

      Appellant’s App. p. 58. As such, the jury was required to find three separate

      acts of penetration. Rodriguez argues, “The only act of penetration offered to

      the jury was A.L.’s testimony that the Defendant touched her and the [sexual-

      assault] nurse testified that there was a scratch to the left side of the labia

      minora and that the area was very red.” Appellant’s Br. p. 11. In other words,

      Court of Appeals of Indiana | Memorandum Decision 20A05-1604-CR-903| December 14, 2016   Page 4 of 5
      Rodriguez contends that the State proved only one act of penetration and that

      the jury had to have relied on the single act for all three counts. We disagree.


[8]   The State established that A.L. had been going to Rodriguez’s house almost

      every night for seven months. Rodriguez confessed to placing his hand in

      A.L.’s crotch area on three occasions when he “adjusted” her. The sexual-

      assault nurse testified that A.L. told her that Rodriguez “put his finger in her

      nookie” whenever she went to his house. A.L. also testified that Rodriguez

      touched her “every day” that she was at his house. When the State asked her if

      Rodriguez did anything with his hand when it was “inside of [her] nookie,”

      A.L. said that he would wash his hands after. Given this testimony about

      multiple penetrations—testimony that Rodriguez ignores in his brief—we

      conclude that Rodriguez has not demonstrated a reasonable possibility that the

      jury relied on one act of penetration to convict him on all three counts of child

      molesting.

[9]   Affirmed.


      Baker, J., and Najam, J., concur.




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