A man convicted for child molesting was granted relief from one of his convictions after an appellate panel agreed that his double jeopardy rights were violated when the state was permitted to amend a charge for which he had already been acquitted.
After Carlos Baca was charged with three counts of felony child molesting, he moved for a directed verdict with respect to the first two counts, arguing the state presented insufficient evidence to prove the penetration elements of the charges.
Specifically, Count I alleged Baca had “perform[ed] or submit[tted] to other sexual conduct as defined in Indiana Code Section 35-31.5-2-221.5,” which includes “the penetration of the sex organ . . . of a person by an object.” Count II alleged Baca “did perform or submit to deviate sexual conduct” with the victim. At the time of the alleged offense, “deviate sexual conduct” included “the penetration of the sex organ . . . of a person by an object” pursuant to I.C. 35-41-1-9 (2009).
The Marion Superior Court agreed and granted Baca’s motion, but permitted the state to amend Count II to a charge Class C felony child molesting, as opposed to the original Class A charge, over Baca’s objection. A jury ultimately found him guilty on the amended Count II and Count III.
On appeal, Baca argued the trial court erred when it permitted the state to amend Count II after the court had granted his Trial Rule 50 motion for a directed verdict on that count. He argued his conviction on Count II violated the protections against double jeopardy under the Fifth Amendment to the U.S. Constitution and Article 1, Section 14 of the Indiana Constitution.
Baca maintained that, when the trial court granted his Trial Rule 50 motion, the court acquitted him on Counts I and II. Thus, his subsequent conviction on Count II violated double jeopardy principles. The state, however, argued Baca was not was not “reprosecuted” because his motion for a directed verdict and the states motion to amend Count II were “contemporaneous.”
But the appellate court found the state failed to provide sufficient evidence of penetration and that its motion to amend was not contemporaneous, but rather was made after-the-fact.
“The sequence is unmistakable, and it matters,” Judge Edward Najam wrote for the unanimous panel. “… It was not until after the trial court had granted the defendant’s motion and Count II was a nullity that the State moved to amend a charge that had been adjudicated. But at that point, there was not (sic) charge left to amend.
“A trial court’s grant of a directed verdict for the defendant under Trial Rule 50 ‘acts as an acquittal’ and bars retrial,” Najam continued, citing State v. Goodrich, 504 N.E.2d 1023, 1024 (Ind. 1987). “As a matter of law, the trial court acquitted Baca on Counts I and II, and the trial court’s subsequent grant of the State’s motion to amend Count II and Baca’s conviction on that purportedly amended count violated constitutional prohibitions against double jeopardy.”
The appellate court therefore reversed Baca’s conviction for count II, Class C felony child molesting, in Carlos Robles Baca v. State of Indiana,18A-CR-2756.