963 N.E.2d 37
Ind. Ct. App.2012Background
- Quiroz was convicted in Marion Superior Court of Class A and Class C felony child molesting and Class D felony criminal confinement.
- Counts II and III were dismissed before or during trial; Counts I and IV proceeded to verdict, Count V was crime confinement.
- DNA evidence showed Quiroz's saliva on S.H.'s underpants; S.H. was six years old at the time of the offenses.
- The jury found Quiroz guilty on Counts I and IV and the lesser-included Count V; sentencing followed.
- The trial court imposed forty years on Count I, six years on Count IV, and six years on Count V, all concurrent.
- On appeal, Quiroz challenges sufficiency of evidence, double jeopardy, jury instruction handling of dismissed charges, and sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for Class C felony | Quiroz asserts insufficient evidence for Count IV. | State contends evidence supports Count IV. | Sufficient evidence established Count IV. |
| Double jeopardy between Counts I and IV | Counts I and IV rely on same act; violates double jeopardy. | No double jeopardy violation argued by State; can sustain both. | Counts I and IV violate double jeopardy; vacate Count IV. |
| Jury instructions including dismissed charges | Inclusion of dismissed counts in charging information misleads jury. | Instructional method within trial court discretion; no fundamental error. | No fundamental error; did not deprive fair trial under circumstances. |
| Overall sentence appropriateness | Aggregate forty-year sentence is inappropriate. | Sentence is appropriate given nature and offender's history. | Forty-year sentence not inappropriate. |
Key Cases Cited
- Richardson v. State, 717 N.E.2d 32 (Ind.1999) (actual-evidence test for same-offense double jeopardy)
- Orta v. State, 940 N.E.2d 370 (Ind.Ct.App.2011) (remedy for double jeopardy is to vacate one offense)
- Berry v. State, 148 N.E.2d 143 (Ind.1925) (indictment can be read to jury with dismissed counts unless instructed otherwise)
- Nordyke v. State, 11 N.E.2d 169 (Ind.1937) (jury receipt of indictment with dismissed counts; must instruct not to consider them)
- Haynes, 573 F.2d 236 (5th Cir.1978) (indictment copy in jury room not reversible error when not considered evidence)
- Foster v. State, 198 S.E.2d 847 (Ga.1973) (indictment with abandoned counts; jury instructed not to consider them)
- Warner v. United States, 428 F.2d 730 (8th Cir.1970) (indictment with dismissed counts; proper instructions render harmless error)
- Begyn v. State, 156 A.2d 15 (N.J.Super. Ct. App.Div.1959) (indictment possession of counts; permissible to take indictment to jury room)