COA finds charging information had ‘sufficient particularity’ in child molesting case

An Indianapolis man who did not challenge the sufficiency of the charging information at his trial and then argued to the Indiana Court of Appeals that the lower court committed a fundamental error by holding a trial was told in a six-page opinion that his argument was unavailing.

Gabriel Cabrera was charged for having sexual relations with his stepdaughter over a four-year period. At a bench trial, he was convicted of four counts of Level 1 felony child molestation and two counts of Level 4 felony sexual misconduct with a minor and sentenced to 30 years in the Indiana Department of Correction, with three years suspended.

On appeal, he claimed the charging information failed to state with sufficient particularity the facts that formed the basis of the criminal charges. To get around his failure to file a motion to dismiss or raise any objection before or during his trial, he argued the Marion Superior Court committed fundamental error by holding his trial.

The Court of Appeals disagreed in Gabriel Cabrera v. State of Indiana, 21A-CR-446, finding the trial court did not commit a fundamental error and the charging information satisfied the statutory requirement for the time limitations.

Specifically, the appellate panel noted the charging information alleged a time period that did not exceed one year for each of the eight charged counts.

Indiana Code § 35-34-1-2(a)(5) requires the indictment or information provide the date of the offense with “sufficient particularity to show the offense was committed within the period of limitations applicable to that offense,” Judge Paul Mathias wrote for the court.

In this case, the victim turned 16 in December 2019, and the time periods alleged by the state only covered dates through September 2019. Because the limitations period for both child molestation and sexual misconduct ends when the victim reaches age 31, the charging information showed that each of the charged offenses was committed within the applicable limitations period.

Also, Mathias cited Love v. State, 761 N.E.2d 806, 809 (Ind. 2002), in noting the state is not confined to proving the commission of the crime on the date alleged but may prove the commission at any time within the statutory period of limitations.

“The time frames alleged by the State here satisfy this requirement, as well,” Mathias wrote. “The respective date ranges covering each offense spanned no more than one year. Plus, as the State highlights, B.L.’s recall of each of Cabrera’s offenses was relative to her grade in school.

“The State crafted each time frame to correspond with B.L.’s progression through each grade in school, which is as definitely as the State could have framed them,” Mathias continued. “… (T)he State’s allegation of separate time frames spanning less than one year did not deprive him of a fair trial.”

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