Anthony T. Orr v. State of Indiana (mem. dec.)
05A04-1608-CR-1791
| Ind. Ct. App. | Jun 9, 2017Background
- Anthony T. Orr was charged with ten counts of Class B felony child molesting for acts alleged to have occurred between August 2010 and May 2011 against a single child, S.H.
- The charging information used identical, non-specific language for all ten counts and did not designate which specific acts supported which count.
- At trial S.H. described multiple incidents of anal penetration occurring in different locations/times, but the State did not tie particular incidents to particular counts.
- Orr moved for a directed verdict arguing the State had not proven ten separate incidents; the court denied the motion and instructed the jury only with generic unanimity language (consider each count separately; verdicts must be unanimous).
- The jury convicted Orr on one count and acquitted him on nine; the verdict form and record do not reveal which specific act supported the guilty verdict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court committed fundamental error by failing to give a specific unanimity instruction when multiple similar acts were presented | State: generic unanimity instructions and separate-count forms suffice | Orr: lack of designation and inadequate instruction risk nonunanimous verdict on which act supported conviction | Court reversed: generic instructions were insufficient; fundamental error warranted reversal because jurors may not have unanimously agreed on the same act |
| Whether double jeopardy bars retrial after reversal for instructional error where the evidence was sufficient | State: retrial permitted if evidence is sufficient | Orr: argued (implicitly) retrial may be barred | Court held retrial is not barred because sufficient evidence supported a conviction and reversal was for instructional (procedural) error |
Key Cases Cited
- Baker v. State, 948 N.E.2d 1169 (Ind. 2011) (requires either State designation of the specific act or a detailed unanimity instruction when multiple acts are presented)
- Lainhart v. State, 916 N.E.2d 924 (Ind. Ct. App. 2009) (reversal where multiple alternative acts/victims were presented without a proper unanimity instruction)
- Edwards v. State, 773 N.E.2d 360 (Ind. Ct. App. 2002) (retrial not barred by double jeopardy when reversal stems from instructional error and evidence is sufficient)