                                                                        Nov 04 2013, 6:43 am



FOR PUBLICATION

ATTORNEY FOR APPELLANT:                   ATTORNEYS FOR APPELLEE:

R. PATRICK MAGRATH                        GREGORY F. ZOELLER
Alcorn Goering & Sage, LLP                Attorney General of Indiana
Madison, Indiana
                                          ANGELA N. SANCHEZ
                                          Deputy Attorney General
                                          Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

GREGORY A. HARRIS,                        )
                                          )
      Appellant-Defendant,                )
                                          )
             vs.                          )    No. 39A05-1205-CR-239
                                          )
STATE OF INDIANA,                         )
                                          )
      Appellee-Plaintiff.                 )


                   APPEAL FROM THE JEFFERSON CIRCUIT COURT
                          The Honorable Ted R. Todd, Judge
                           Cause No. 39C01-0912-FC-203



                               November 4, 2013


                   OPINION ON REHEARING - FOR PUBLICATION


CRONE, Judge
       Both Gregory A. Harris and the State have petitioned for rehearing of our opinion in

Harris v. State, 992 N.E.2d 887 (Ind. Ct. App. 2013), in which we held that (1) Harris’s

acquittal on a rape charge did not preclude relitigation of a hung charge of sexual misconduct

with a minor for the same act of sexual intercourse and (2) the State could not amend the

charging information to add “or deviate sexual conduct” to the sexual misconduct charge.

We grant rehearing for the limited purpose of addressing a subsequent decision by the

Indiana Supreme Court on the issue of double jeopardy but affirm our opinion in all other

respects.

       Our original opinion includes the following facts relevant to both petitions for

rehearing:

              Harris and his wife moved to Indiana in December 2005. Harris’s wife
       had a younger sister, A.M. On December 25, 2005, members of A.M.’s family
       and Harris were gathered for Christmas at the Hanover residence of A.M.’s
       uncle. Harris was eighteen at the time, and A.M. was fourteen. That evening,
       Harris and A.M. left the uncle’s residence together in Harris’s car and headed
       to A.M.’s mother’s residence in nearby Madison. On the way, Harris and
       A.M. stopped at the Madison Walmart and found it to be closed. The
       aforementioned facts are undisputed by the parties.

              On December 23, 2009, the State charged Harris with two counts of
       sexual misconduct with a minor pursuant to Indiana Code Section 35-42-4-9.
       Count I alleged “sexual intercourse with a child,” and Count II alleged
       “deviate sexual conduct with a child.” On January 3, 2011, the State filed a
       motion to amend the charges, which was granted on January 6, 2011. The new
       Count I charged Harris with rape as a class B felony. The new Count II
       charged Harris with sexual misconduct with a minor, specifically “sexual
       intercourse with a child,” the same as the original Count I, a class C felony.
       The original Count II, which had charged Harris with sexual misconduct with a
       minor, specifically “deviate sexual conduct with a child,” was dismissed.

               In September 2011, the case went to trial on the amended charges. At
       trial, Harris testified that upon discovering that Walmart was closed, he

                                              2
       dropped A.M. off at her mother’s residence and returned to the uncle’s
       residence the night of December 25, 2005. A.M. testified that Harris parked
       the vehicle in the Walmart parking lot, exposed his penis, and compelled her to
       perform oral sex on him. A.M. further testified that Harris then exited his side
       of the vehicle, entered her side of the vehicle, and engaged in sexual
       intercourse with her. A.M. testified that she said “No” during the intercourse.
       Harris denied that any inappropriate sexual contact occurred between him and
       A.M.

              On September 16, 2011, the jury found Harris not guilty on Count I and
       was unable to reach a verdict on Count II. The trial court declared a mistrial
       on Count II. On September 20, 2011, the State moved to strike Count I and
       recaption Count II, sexual misconduct with a minor, as Count I. The State also
       moved to add the words “or deviate sexual conduct” to the charge. The trial
       court granted the State’s request to recaption Count II as Count I, but denied
       the motion to add the words “or deviate sexual conduct” to the charge. On
       October 18, 2011, Harris filed a motion to dismiss the sexual misconduct
       charge on double jeopardy grounds, which was denied.

Id. at 889-90 (footnote and citations to appendix and transcript omitted).

                             I. Harris’s Petition for Rehearing

       Harris appealed the trial court’s denial of his motion to dismiss, arguing that “a retrial

on the hung charge, sexual misconduct with a minor alleging ‘sexual intercourse with a

child,’ would violate the double jeopardy provisions of the Indiana Constitution.” Id. at 890.

He asserted that “such a retrial would run afoul of the actual evidence test enunciated by our

supreme court in Richardson v. State, 717 N.E.2d 32 (Ind. 1999).” Id. We declined to use

the actual evidence test, finding that it did not apply (and indeed had never been applied) to

“acquittals, mistrials, or the present situation of an acquittal and mistrial combination.” Id. at

891. Instead, relying on Buggs v. State, 844 N.E.2d 195 (Ind. Ct. App. 2006), trans. denied,

we applied the doctrine of collateral estoppel and made the following determination:



                                                3
       [A]cquittal on the rape charge does not preclude relitigation of the
sexual misconduct with a minor charge. Harris was charged with rape as a
class B felony pursuant to Indiana Code Section 35-42-4-1(a), which states:

              [A] person who knowingly or intentionally has sexual
       intercourse with a member of the opposite sex when: (1) the
       other person is compelled by force or imminent threat of force;
       (2) the other person is unaware that the sexual intercourse is
       occurring; or (3) the other person is so mentally disabled or
       deficient that consent to sexual intercourse cannot be given;
       commits rape, a Class B felony.

Harris was also charged with sexual misconduct with a minor as a class C
felony pursuant to Indiana Code Section 35-42-4-9(a), which states:

               A person at least eighteen (18) years of age who, with a
       child at least fourteen (14) years of age but less than sixteen (16)
       years of age, performs or submits to sexual intercourse or
       deviate sexual conduct commits sexual misconduct with a
       minor, a Class C felony.

The rape charge alleged that A.M. was compelled to have sexual intercourse
with Harris “by force or imminent threat of force.” The sexual misconduct
with a minor charge alleged that Harris “did perform or submit to sexual
intercourse with a child.” The evidence concerning force was not
overwhelming. A.M. testified that she did not know what to do, that she was
scared, and felt paralyzed. The jury may have acquitted Harris of rape because
it found a lack of force; the acquittal does not necessarily mean that the jury
found that sexual intercourse did not occur. Had it done so, the jury would
have acquitted Harris on the sexual misconduct charge. Therefore, we cannot
say that retrial for sexual misconduct with a minor would require proof of a
factor necessarily found in Harris’s favor by virtue of the rape acquittal.
Consequently, collateral estoppel does not bar relitigation of whether Harris
had sexual intercourse with A.M.

        The jeopardy which attached to the sexual misconduct with a minor
charge did not terminate due to juror deadlock, but continues, just as it would
have if Harris was originally charged and tried solely on that charge. [Griffin
v. State, 717 N.E.2d 73, 78 (Ind. 1999)]. Double jeopardy does not preclude
the State from completing its initial prosecution, nor is the State prohibited
from pursuing relitigation on principles of collateral estoppel.


                                        4
Id. at 893 (citations to appendix and transcript omitted).

       Fifteen days after we issued our opinion in Harris, our supreme court decided Garrett

v. State, 992 N.E.2d 710 (Ind. 2013). In that case, Garrett was charged with two counts of

class A felony rape, class C felony criminal confinement, class B felony criminal

confinement, and class B felony criminal deviate conduct based on an assault involving a

single victim. A jury found him not guilty on one rape count, the class C felony criminal

confinement count, and the criminal deviate conduct count. The jury deadlocked on the two

remaining counts, which were retried to the bench. The trial court found Garrett guilty of

class B felony rape but not guilty of criminal confinement.

       On direct appeal, Garrett unsuccessfully challenged the admissibility of his statements

to the police and the sufficiency of the evidence. In a petition for post-conviction relief, he

alleged that he

       was denied the effective assistance of trial counsel because, prior to retrial,
       counsel failed to object and/or move for a dismissal of the rape charge on
       federal and state double jeopardy grounds. The petition also alleged that
       appellate counsel rendered ineffective assistance for failing to raise the double
       jeopardy issues on direct appeal.

Id. at 718. The post-conviction court denied his petition.

       Garrett appealed raising the same claims he raised before the post-conviction
       court. The Court of Appeals rejected Garrett’s federal double jeopardy claim.
       As for Garrett’s state double jeopardy claim the Court of Appeals concluded
       “the actual evidence test [a component of this State’s double jeopardy analysis]
       does not apply to this case.” Garrett v. State, 965 N.E.2d 115, 122 (Ind. Ct.
       App. 2012). Instead, applying the doctrine of collateral estoppel the Court of
       Appeals affirmed the judgment of the post-conviction court.

Id.


                                              5
       Our supreme court granted transfer and addressed Garrett’s double jeopardy argument

in pertinent part as follows:

               Garrett contends he was twice prosecuted for the same offense and thus
       his conviction violates the Double Jeopardy Clause of the Indiana Constitution
       which provides “[n]o person shall be put in jeopardy twice for the same
       offense.” Ind. Const. art. 1, § 14. In Richardson v. State, 717 N.E.2d 32 (Ind.
       1999) this Court concluded that two or more offenses are the same offense in
       violation of article 1, section 14 if, with respect to either the statutory elements
       of the challenged crimes or the actual evidence used to obtain convictions, the
       essential elements of one challenged offense also establish the essential
       elements of another challenged offense. Under the actual evidence test, we
       examine the actual evidence presented at trial in order to determine whether
       each challenged offense was established by separate and distinct facts. Id. at
       53. To find a double jeopardy violation under this test, we must conclude that
       there is “a reasonable possibility that the evidentiary facts used by the fact-
       finder to establish the essential elements of one offense may also have been
       used to establish the essential elements of a second challenged offense.” Id.
       The actual evidence test is applied to all the elements of both offenses. “In
       other words … the Indiana Double Jeopardy Clause is not violated when the
       evidentiary facts establishing the essential elements of one offense also
       establish only one or even several, but not all, of the essential elements of a
       second offense.” Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002).

              Our precedents “instruct that a ‘reasonable possibility’ that the jury used
       the same facts to reach two convictions requires substantially more than a
       logical possibility.” Lee v. State, 892 N.E.2d 1231, 1236 (Ind. 2008) (citing
       cases). The reasonable possibility standard “fairly implements the protections
       of the Indiana Double Jeopardy Clause and also permits convictions for
       multiple offenses committed in a protracted criminal episode when the case is
       prosecuted in a manner that insures that multiple guilty verdicts are not based
       on the same evidentiary facts.” Richardson, 717 N.E.2d at 53 n.46. The
       existence of a “‘reasonable possibility’ turns on a practical assessment of
       whether the [fact finder] may have latched on to exactly the same facts for both
       convictions.” Lee, 892 N.E.2d at 1236. We evaluate the evidence from the
       jury’s perspective and may consider the charging information, jury
       instructions, and arguments of counsel. Id. at 1234.

             As recounted earlier the Court of Appeals declined to address Garrett’s
       Richardson double-jeopardy claim on grounds that the “actual evidence test
       does not apply to this case.” Garrett, 965 N.E.2d at 122. In support the court

                                                6
relied on Buggs v. State, 844 N.E.2d 195 (Ind. Ct. App. 2006), trans. denied.…
 [T]he Court of Appeals [in Buggs] noted that neither party cited to any case in
which an Indiana appellate court had applied the actual evidence test in cases
where there is an acquittal on one charge and retrial on another charge after a
hung jury. The Court then noted “[i]n fact, our Supreme Court has made no
indication that the actual evidence test is even used to determine whether two
offenses are the same offense when there is an acquittal on one offense and
retrial on another offense. Perhaps this is because there is already a recognized
doctrine that applies to this situation, namely, collateral estoppel. Because of
the availability of the doctrine of collateral estoppel, we choose not to extend
the Richardson actual evidence test to this situation.” Buggs, 844 N.E.2d at
201-02.

        We make two observations. First, this Court has not heretofore been
presented with, and thus has not had the opportunity to address, the precise
question facing us today. Indeed as the Court of Appeals observed most
double jeopardy claims and most Indiana reported decisions arise from
defendants challenging two convictions, not retrial after an acquittal. See id. at
201 n.5. This does not mean however that Indiana Double Jeopardy analysis is
inapplicable to assess whether two offenses are the same offense when there is
an acquittal on one offense and retrial on another offense. Second, we are not
persuaded that the availability of the doctrine of collateral estoppel forecloses
applying Indiana Double Jeopardy analysis. The doctrine of collateral estoppel
(also referred to as issue preclusion) is not the same as double jeopardy, “but
rather is embodied within the protection against double jeopardy.” Coleman v.
State, 946 N.E.2d 1160, 1165 (Ind. 2011). “[T]he traditional bar of jeopardy
prohibits the prosecution of the crime itself, whereas collateral estoppel, in a
more modest fashion, simply forbids the government from relitigating certain
facts in order to establish the fact of the crime.” Id. (internal quotation
omitted). Essentially the doctrine of collateral estoppel “precludes the
Government from relitigating any issue that was necessarily decided by a
jury’s acquittal in a prior trial.” Id. (quoting Yeager v. United States, 557 U.S.
110, 119, 129 S. Ct. 2360, 174 L. Ed. 2d 78 (2009)).

        In this case the Court of Appeals applied the doctrine of collateral
estoppel and concluded it “did not bar relitigation of the second count of rape.”
Garrett, 965 N.E.2d at 123. But see Richardson, 717 N.E.2d at 68 n.23
(Boehm, J., concurring in result) (noting that the doctrine of collateral estoppel
is of limited practical value “particularly if the first result is an acquittal,
[because] the basis of the jury’s ruling is often unascertainable”). Left
unresolved is the question of whether Indiana Double Jeopardy is applicable to
the facts before us. We answer this question in the affirmative.

                                        7
               First, “[t]he Double Jeopardy clause is assurance that the State will not
        be allowed to make repeated attempts to convict an accused for the same
        offense.” Thompson v. State, 259 Ind. 587, 290 N.E.2d 724, 726 (1972) (citing
        U.S. Const. amend. V and XIV; Ind. Const. art. 1, § 14; Benton v. Md., 395
        U.S. 784, 796, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); Green v. United States,
        355 U.S. 184, 187, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957)) (emphasis in
        original). Indeed, as we have recognized, the idea underlying the Double
        Jeopardy Clause’s prohibition against multiple prosecutions “is that the State
        with all its resources and power should not be allowed to make repeated
        attempts to convict an individual for an alleged offense, thereby … enhancing
        the possibility that even though innocent he may be found guilty.” State v.
        Monticello Developers, Inc., 527 N.E.2d 1111, 1112 (Ind. 1988) (quoting
        Green, 355 U.S. at 187–88, 78 S. Ct. 221). Having had one full opportunity to
        convict an accused, the State should not receive a “second bite at the apple.”
        See Burks v. United States, 437 U.S. 1, 17, 98 S. Ct. 2141, 57 L. Ed. 2d 1
        (1978).

                Second, “[t]he notion that ‘jeopardy’ is ‘risk’ is the very core of double
        jeopardy jurisprudence.” Bryant v. State, 660 N.E.2d 290, 299 (Ind. 1995)
        (citing Breed v. Jones, 421 U.S. 519, 528, 95 S. Ct. 1779, 44 L. Ed. 2d 346
        (1975)). Jeopardy is the risk of trial and conviction, not punishment. Id.
        (citing Price v. Ga., 398 U.S. 323, 326, 90 S. Ct. 1757, 26 L. Ed. 2d 300
        (1970)). In other words, double jeopardy protection prohibits twice subjecting
        an accused to the risk that he will be convicted of a single crime. Therefore it
        is not surprising that we have previously recognized a double jeopardy
        violation where a defendant demonstrated “that he might have been acquitted
        or convicted on the former trial” of the same crime for which he was convicted
        at the second trial. Brinkman v. State, 57 Ind. 76, 79 (1877). Finally, we see
        no reason why the Richardson actual evidence test would not apply any time
        there are multiple verdicts, not simply multiple convictions, on the same facts.
        In fact, the plain language of the test refers not just to convictions: “[A]
        defendant must demonstrate a reasonable possibility that the evidentiary facts
        used by the fact-finder to establish the essential elements of one offense may
        also have been used to establish the essential elements of a second challenged
        offense.” Richardson, 717 N.E.2d at 53 (emphasis added).[1]

                 ….

        1
          We note, however, that the Richardson court also framed the actual evidence test as follows: “[T]wo
or more offenses are the ‘same offense’ in violation of Article I, Section 14 of the Indiana 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.” 717 N.E.2d at 49 (emphasis added).

                                                        8
               Under our traditional formulation, in order to find a double-jeopardy
       violation pursuant to the Richardson actual evidence test, we must conclude
       there is “a reasonable possibility that the evidentiary facts used by the fact-
       finder to establish the essential elements of one offense may also have been
       used to establish the essential elements of a second challenged offense.”
       Richardson, 717 N.E.2d at 53. As slightly modified, we hold today that a
       double jeopardy violation under the Richardson actual evidence test may also
       rest on our conclusion that there is a reasonable possibility that the evidentiary
       facts used by the fact-finder to establish the essential elements of the offense
       for which the defendant was acquitted may also have been used to establish all
       of the essential elements of the offense for which the defendant was convicted.

               We acknowledge that in a different factual context this modified test
       may prove challenging in its application. But here the facts are fairly
       straightforward. In essence on retrial the State presented the same evidence of
       Rape A—the first-in-time rape—on which the State relied in the first trial and
       upon which the jury found Garrett not guilty. And given the relative paucity of
       evidence on retrial concerning Rape B—the second-in-time rape—we
       conclude there is reasonable possibility that the evidentiary facts used by the
       jury in the first trial to establish the essential elements of Rape, for which
       Garrett was acquitted, may also have been used on retrial to establish all of the
       essential elements of Rape for which Garrett was convicted. We conclude
       therefore that Garrett was twice prosecuted for the same offense in violation of
       article 1, section 14 of the Indiana Constitution.

Id. at 719-723 (footnotes and citations to appendix and transcript omitted).

       In his petition for rehearing, Harris contends that Garrett compels the dismissal of the

sexual misconduct charge based on the actual evidence test. He argues that

       the State has already presented all of the same “actual evidence” in support of
       both counts. Because a retrial of Harris would necessarily require the
       admission of evidence that would be nearly identical to the evidence admitted
       in his first trial, the only possible method for Harris to be convicted at the
       second trial would be on the basis of “essentially the same evidence.”
       Additionally, retrial of Harris would place him in jeopardy, that is the risk of
       trial and conviction for the exact same alleged conduct [i.e., the same act of
       sexual intercourse]. Thus, any retrial of Harris would necessary [sic] run afoul
       of Indiana Double Jeopardy.

Appellant’s Pet. for Reh’g at 8-9.

                                               9
        In response, the State contends that

        Garrett does not dictate a different outcome in this case, and the actual
        evidence test does not prevent [Harris] from being retried.… Assuming that
        exactly the same evidence will be presented at [Harris’s] second trial, it would
        still not be true that the evidence used to try to prove that [Harris] forced A.M.
        to have sex would establish all of the elements of sexual misconduct because
        A.M.’s age, which is essential to the sexual misconduct charge, was irrelevant
        to the rape charge. Whether in a single trial or multiple trials, the ultimate
        question remains whether [Harris] has been both acquitted and convicted of
        committing precisely the same acts. He has not.

                [Harris] was acquitted of forcing A.M. to have sex but if he is convicted
        following retrial it will be for engaging in unforced sex with A.M. while she
        was a minor. Though there is but one alleged act of sexual intercourse, the
        essential conduct that makes that sex criminal differs, and the jury’s verdict on
        one does not dictate any conclusion about the other. If [Harris’s] reasoning
        were to obtain, then no one could ever be acquitted of rape and convicted of
        either child molesting or sexual misconduct with a minor for the same sexual
        act even in the same trial. This is certainly not the case. It is reasonable and
        rational that a fact finder may conclude that sexual intercourse was not forced,
        thus not rape, but still criminal because of the age of the parties, and those
        verdicts would not offend the constitution. [Harris] does not claim that such
        verdicts reached in a single trial would violate double jeopardy or that he
        should never have been so charged in his original trial. He does not enjoy
        greater double jeopardy protections merely because the jury in his first trial
        was unable to reach a verdict on the sexual misconduct charge.

Appellee’s Response to Appellant’s Pet. for Reh’g at 2-4. We agree with the State’s

argument in all respects and decline Harris’s invitation to reverse the trial court’s denial of

his motion to dismiss based on Garrett.2




        2
           In his petition for rehearing, Harris focuses primarily on Garrett and the actual evidence test. The
other double jeopardy cases cited by Harris involve the constitutional protection against multiple punishments
for the same offense in a single trial, which is inapplicable here. To the extent he contends that he is entitled to
relief based on collateral estoppel, we are unpersuaded for the reasons stated in our original opinion.



                                                        10
                             II. State’s Petition for Rehearing

       The State cross-appealed the trial court’s denial of its motion to amend the charging

information by adding “or deviate sexual conduct” to the sexual misconduct charge. We

addressed that issue as follows:

       In their briefs, the parties have characterized the matter as an issue of the trial
       court’s discretion or abuse thereof, prosecutorial vindictiveness, double
       jeopardy, and the statute of limitations. We find the dispositive issue to be the
       statute of limitations.

              The period of limitations begins with the “commission of the offense.”
       Ind. Code § 35-41-4-2(a)(l ). The alleged crime occurred on December 25,
       2005. A class C felony has a period of limitations of five years. Thus, the
       period of limitations regarding the alleged deviate sexual conduct ended on
       December 25, 2010. After the first trial, the State moved to amend its
       remaining count against Harris by adding “or deviate sexual conduct” on
       September 20, 2011, nearly a year after the period of limitations for the alleged
       deviate sexual conduct expired.

              The proposed amendment here is not merely a correction of information
       or an alternate theory of culpability, as the State suggests. Rather, the
       proposed amendment constitutes a matter of substance and includes a new and
       additional offense. Thus the amendment carries the weight and practical effect
       of a new or refiled charge. Just as the State would be barred from bringing a
       new or refiled charge of deviate sexual conduct, it is barred from bringing the
       charge through an amendment. The statute of limitations cannot be
       circumvented because of the procedural availability of amending informations
       or the happenstance of mistrial.

               The State’s motion to amend by adding “or deviate sexual conduct” to
       the charge is untimely. As such, we conclude that the trial court did not abuse
       its discretion in denying the State’s motion to amend the information prior to
       retrial on the hung count.

Id. at 893-94 (footnote and citations to brief omitted).

       In its petition for rehearing, the State argues,



                                               11
       [T]his Court fails to explain how this amendment alleges a distinct crime from
       the existing charge rather than simply a new theory of liability. This finding
       ignores that [Harris] still is only facing one count of sexual misconduct with a
       minor and is subject to liability for one count of sexual misconduct with a
       minor. Further, the Court does not explain why this case should be exempted
       from analysis under the usual rules governing pretrial amendments to the
       charging information. Properly applied, that analysis would show that the trial
       court abused its discretion by denying the State’s motion to amend because the
       amendment would not cause any prejudice to [Harris’s] substantial rights in
       this case.

Appellee’s Pet. for Reh’g at 5.

       The State’s argument ignores the fact that it originally charged the deviate sexual

conduct as a distinct crime from the sexual intercourse. The State then voluntarily dismissed

the deviate sexual conduct charge. At Harris’s trial, A.M. testified that Harris performed

both deviate sexual conduct and sexual intercourse with her. Under these circumstances, the

State’s characterization of deviate sexual conduct as merely a “new theory of liability” rings

hollow. The State cites no authority for the proposition that it may charge Harris for a crime

committed outside the statute of limitations simply because it has the same name (sexual

misconduct with a minor) as another crime for which he is being retried.3 Consequently, we

reaffirm the trial court’s denial of the State’s motion to amend the charging information.

ROBB, C.J., and FRIEDLANDER, J., concur.




       3
           Nor does the State contend that dismissing a charge tolls the statute of limitations for that crime.

                                                      12
