Cesar Chavez v. State of Indiana , 2013 Ind. App. LEXIS 268 ( 2013 )

FOR PUBLICATION Jun 04 2013, 8:13 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KAREN CELESTINO-HORSEMAN GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
ANGELA N. SANCHEZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CESAR CHAVEZ, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1211-CR-892
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Grant W. Hawkins, Judge
Cause No. 49G05-1201-FC-1680
June 4, 2013
OPINION - FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Cesar Chavez appeals his five convictions for child molesting, each as a Class C
felony. Chavez raises two issues for our review, which we reorder and state as follows:
1. Whether the State’s five counts against Chavez were in violation of
the continuing crime doctrine.
2. Whether the State’s charging information, which stated five
identically worded counts against Chavez, denied Chavez due
process.
We affirm in part, reverse in part, and remand with instructions.
FACTS AND PROCEDURAL HISTORY
On January 6, 2012, E.M.R., Chavez’s wife, babysat eight-year-old K.W. and
others at Chavez’s home. At some point, Chavez and K.W. were alone in a computer
room. Chavez kissed K.W. on the mouth and inserted his tongue into her mouth. While
kissing her, Chavez put his hand underneath K.W.’s shirt and rubbed her nipple. Chavez
also held his hand on K.W.’s buttocks. K.W. then left the room.
K.W. later returned to the room. Chavez again kissed K.W. and inserted his
tongue into her mouth. While kissing her this time, Chavez placed his hand, over K.W.’s
clothes, on her vagina. Chavez told K.W. to keep the occurrences a secret, and K.W.
feared Chavez would harm her if she told anyone.
That evening, K.W. told her mother what had happened. K.W.’s mother called the
police, and Chavez was arrested.
On January 10, the State charged Chavez with five counts of child molesting, each
as a Class C felony. Each count was identically worded and stated as follows:
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Cesar Chavez, on or about January 6, 2012, did perform or submit to any
fondling or touching with K.W., a child who was then under the age of
fourteen (14) years, that is: eight (8) years of age, with intent to arouse or
satisfy the sexual desires of K.W. and/or the sexual desires of Cesar
Chavez.
Appellant’s App. at 23-24.
The court held Chavez’s jury trial on September 27. Chavez testified in his own
defense and acknowledged that he had kissed K.W., albeit accidentally, but he denied
inappropriately touching her. During the State’s closing argument, the prosecutor stated:
Chavez is charged with [five] separate counts of child molest[] because
there were [five] separate instances of touching with fondling committed by
the defendant that day[,] which I will go over with you in detail.
***
[Y]ou heard [K.W.] describe [five] separate instances of touching and
fondling that day, at the defendant’s house, that constitutes the basis [sic]
for the [five] different counts. And let’s go over those. The first kiss was
the defendant’s tongue in her mouth, and she said that while that kiss was
going on is when he had reached up under her shirt and touched her nipple
. . . , that would be the second count. And the third count is during that
same kiss when he was touching her on the butt over the clothes . . . . The
fourth instance was he kissed her again, and she said again it was with his
tongue in her mouth. And she said that on that occasion he also touched
her on what she called her pee pee, her vaginal area, and that would be
number [five]. Those are your [five] different instances of fondling and
touching.
Transcript at 144, 150-51. The jury found Chavez guilty as charged, and the trial court
ordered Chavez to serve an aggregate term of four years in the Department of Correction.
This appeal ensued.
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DISCUSSION AND DECISION
Issue One: Continuing Crime Doctrine
Chavez contends that the State was not permitted to charge him with five counts of
child molesting and, instead, his acts were one chargeable crime under the continuing
crime doctrine. “The continuing crime doctrine essentially provides that actions that are
sufficient in themselves to constitute separate criminal offenses may be so compressed in
terms of time, place, singleness of purpose, and continuity of action as to constitute a
single transaction.” Riehle v. State, 823 N.E.2d 287, 296 (Ind. Ct. App. 2005), trans.
denied. “[T]he continuing crime doctrine reflects a category of Indiana’s prohibition
against double jeopardy.” Walker v. State, 932 N.E.2d 733, 736 (Ind. Ct. App. 2010).
As we have explained:
The statutory elements and actual evidence tests [of double jeopardy, as
described in Richardson v. State, 717 N.E.2d 32 (Ind. 1999),] are designed
to assist courts in determining whether two separate[ly] chargeable crimes
amount to the “same offense” for double jeopardy purposes. The
continuous crime doctrine does not seek to reconcile the double jeopardy
implications of two distinct[,] chargeable crimes; rather, it defines those
instances where a defendant’s conduct amounts only to a single[,]
chargeable crime. In doing so, the continuous crime doctrine prevents the
state from charging a defendant twice for the same continuous offense.
Boyd v. State, 766 N.E.2d 396, 400 (Ind. Ct. App. 2002) (emphasis original). That is,
“while Indiana’s double jeopardy clause prohibits convicting a defendant of two or more
distinct[,] chargeable crimes when they constitute the ‘same offense’ . . . , it also
prohibits” charging a defendant “multiple times for the same continuous offense.”
Walker, 932 N.E.2d at 736-37. Although Chavez did not object on these grounds in the
trial court, the issue is not waived because, as a category of Indiana’s prohibition against
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double jeopardy, a violation, if shown, would constitute fundamental error. See Cossel v.
State, 675 N.E.2d 355, 362 (Ind. Ct. App. 1996).
On appeal, the State defends its five charges by analogizing the facts of this case
to those in Collins v. State, 717 N.E.2d 108 (Ind. 1999), and Brown v. State, 459 N.E.2d
376 (Ind. 1984). In Collins, the court discussed two convictions for criminal deviate
conduct, one based on oral intercourse and one based on anal intercourse. 717 N.E.2d at
110-11. Similarly, in Brown the court discussed multiple convictions for rape and
criminal deviate conduct, which “occurred at different times.” 459 N.E.2d at 378. In
both cases the court was concerned with whether the State had violated the defendant’s
double jeopardy rights when it had obtained multiple convictions for separately
chargeable crimes. Collins, 717 N.E.2d at 110-11; Brown, 459 N.E.2d at 378. But that is
not the issue Chavez presents. Rather, Chavez asserts that his actions did not amount to
five separately chargeable offenses but were only a single, chargeable crime. See Boyd,
766 N.E.2d at 400 (rejecting the State’s argument that the “double jeopardy analysis
[announced in Richardson] render[ed] the ‘continuing crime doctrine’ obsolete”).
The continuing crime doctrine requires a fact-sensitive analysis. For example, in
Firestone v. State, 838 N.E.2d 468, 470 (Ind. Ct. App. 2005), the defendant “forced his
penis inside [his victim’s] vagina.” He then forced her to perform oral sex on him. The
State charged the defendant with rape and criminal deviate conduct, and the jury found
him guilty of both counts. On appeal, he argued that the two events were so closely
related that they should have been charged as one offense under the continuing crime
doctrine. We disagreed and held that the defendant “clearly committed two different
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offenses at two different times” and that “[t]he continuity of the actions does not negate
the fact that they were completely different sexual acts committed at different times.” Id.
at 472.
However, in Duvall v. State, 978 N.E.2d 417, 428 (Ind. Ct. App. 2012), trans.
denied, we reversed several of the defendant’s convictions under the continuing crime
doctrine. Specifically, we stated that the defendant’s six “convictions for Insurance
Fraud stem[med] from six false statements given in a single insurance investigation
interview . . . .” Id. Further, “[h]er three convictions for Obstruction of Justice
stem[med] from a single crime scene clean-up (in which she removed an alcohol bottle,
medication container, and foam from [the decedent’s] mouth) . . . .” Id. We held that the
defendant’s conduct “was continuous so as to constitute one offense of Insurance Fraud
and one offense of Obstruction of Justice.” Id.The facts of this case share similarities with both Duvall and Firestone, and we
hold that Chavez committed two chargeable acts of child molesting on January 6, 2012,
not five. During his first encounter with K.W. that day, he kissed her on the mouth and
inserted his tongue into her mouth. While kissing her, he put his hand underneath her
shirt and rubbed her nipple, and he held his hand on her buttocks. Those three acts were
“so compressed in terms of time, place, singleness of purpose, and continuity of action as
to constitute a single transaction.” Riehle, 823 N.E.2d at 296; see Duvall, 978 N.E.2d at
428. Accordingly, we affirm Chavez’s conviction on Count I but we reverse and remand
with instructions that the trial court vacate Chavez’s convictions on Count II and Count
III.
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Later that same day, Chavez again engaged K.W. This encounter clearly occurred
at a different time from the first encounter and is, therefore, separately chargeable. See
Firestone, 838 N.E.2d at 472. During this second encounter, Chavez again kissed K.W.
and inserted his tongue into her mouth. While kissing her, Chavez placed his hand, over
K.W.’s clothes, on her vagina. Those two acts “constitute a single transaction.” See
Duvall, 978 N.E.2d at 428. Thus, we affirm Chavez’s conviction on Count IV but we
reverse and remand with instructions to vacate his conviction on Count V.
Issue Two: Identically Worded Charges
Chavez also asserts that the State’s five “carbon-copy counts . . . failed to provide
any specific factual details to differentiate the counts” and, as such, the charging
information failed to place him on proper notice of the factual basis for the State’s
allegations against him. Appellant’s Br. at 7. But we agree with the State that Chavez
has not preserved this issue for our review. “‘The proper method to challenge
deficiencies in a charging information is to file a motion to dismiss the information, no
later than twenty days before the omnibus date.’” Leggs v. State, 966 N.E.2d 204, 207
(Ind. Ct. App. 2012) (quoting Miller v. State, 634 N.E.2d 57, 60 (Ind. Ct. App. 1994)).
Chavez did not file such a motion.
Neither does Chavez’s argument on appeal demonstrate fundamental error.
“‘Failure to timely challenge . . . ordinarily would result in waiver of the issues, unless
the omission was so prejudicial to [the defendant’s] rights that fundamental error
resulted.’” Id. (quoting Miller, 634 N.E.2d at 60). “For error in a charging information
to be fundamental, ‘it must mislead the defendant or fail to give him notice of the charges
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against him so that he is unable to prepare a defense to the accusation.’” Id. (quoting
Miller, 634 N.E.2d at 61).
Chavez was not unable to prepare a defense to the State’s allegations. Indeed, he
testified in his own defense, and his testimony shows that he plainly understood the
State’s allegations against him and was able to prepare his defense accordingly. See
Wine v. State, 637 N.E.2d 1369, 1374 (Ind. Ct. App. 1994) (holding there was no
fundamental error where the defendant did not demonstrate his defense was impeded by
the inadequacy of the charging information), trans. denied. And insofar as Chavez’s
argument here is based on double jeopardy concerns, we addressed those concerns in
Issue One. Thus, Chavez cannot demonstrate fundamental error in the charging
information.
Conclusion
In sum, we hold that the State’s five counts for child molesting were in violation
of the continuing crime doctrine. Applying that doctrine to the facts in this case, we hold
that Chavez committed two chargeable crimes, not five. We also hold that Chavez did
not preserve his objection to the charging information, and, on appeal, he has not
demonstrated fundamental error in the information. Accordingly, we affirm in part,
reverse in part, and remand with instructions that the trial court vacate Chavez’s
convictions under Counts II, III, and V.
Affirmed in part, reversed in part, and remanded with instructions.
BAILEY, J., and BARNES, J., concur.
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