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COA vacates sex-abuse confinement conviction as double jeopardy

January 27, 2014

The Indiana Court of Appeals on Monday vacated a conviction of Class C felony criminal confinement for a man also convicted of Class B felony criminal deviate conduct, finding the lesser conviction resulted in double jeopardy.

Frank Jacobs was convicted of both counts in Marion Superior Court that heard evidence that he forcibly performed oral sex on a minor boy. In Frank Jacobs v. State of Indiana, 49A04-1304-CR-183, the appeals court ruled “Jacobs did not use more force than was necessary to commit criminal deviate conduct, and Jacobs’ conviction of confinement based on the same force subjected him to double jeopardy.”

Vacating the lesser charge is unlikely to affect Jacobs’ sentence, however. He was sentenced to 10 years in prison on the deviate conduct charge and four years for confinement, to be served concurrently.

Judge Melissa May wrote for the panel that Jacobs’ arguments that the trial court abused its discretion by excluding testimony about the victim’s truthfulness and refusing his request to admit evidence from Jacobs’ son. Any error in refusing such testimony was harmless, May wrote, because of independent evidence of Jacobs’ guilt.

 

 

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