An Indiana Court of Appeals panel was unmoved by a recent Indiana Supreme Court decision, and the appellate panel reaffirmed that a charge of sexual misconduct with a minor should not be dismissed against a defendant acquitted of rape based on the same incident.
The panel also reaffirmed in Gregory A. Harris v. State of Indiana, 39A05-1205-CR-239, that the state could not amend the remaining charge by adding “or criminal deviate conduct.” Rehearing was granted for the sole purpose of evaluating whether the recent Supreme Court decision in Garrett v. State, 992 N.E.2d 710 (Ind. 2013), would impact the decision. The Supreme Court ruled in Garrett that the actual evidence test established in Richardson v. State, 717 N.E.2d 32 (Ind. 1999) is applicable to cases in which there has been an acquittal on one charge and retrial on another charge after a hung jury.
In August, the COA ruled that Harris could be retried on the sexual misconduct with a minor charge, but the state couldn’t amend the charge, noting a prior deviate conduct charge had been dropped. The COA noted on rehearing that the amended charge also would be barred by the statute of limitations.
Judge Terry Crone wrote that he and COA judges Ezra Friedlander and Margret Robb “decline Harris’s invitation to reverse the trial court’s denial of his motion to dismiss based on Garrett.”