Anthony T. Orr v. State of Indiana (mem. dec.)

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 09 2017, 8:24 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brandon E. Murphy Curtis T. Hill, Jr. Muncie, Indiana Attorney General of Indiana

Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Anthony T. Orr, June 9, 2017 Appellant-Defendant, Court of Appeals Case No. 05A04-1608-CR-1791 v. Appeal from the Blackford Circuit Court State of Indiana, The Honorable Dean A. Young, Appellee-Plaintiff Judge Trial Court Cause No. 05C01-1507-FB-191

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 05A04-1608-CR-1791 | June 9, 2017 Page 1 of 10 [1] Anthony T. Orr appeals his conviction of Class B felony child molesting. 1 Orr

argues fundamental error occurred when the jury received inadequate

instruction regarding the unanimity required to convict him of child molesting.

We reverse and remand.

Facts and Procedural History [2] Orr’s half-brother was married to S.H.’s mother. From August 2010 to May

2011, Orr would babysit for S.H. and her siblings occasionally while her mother

and stepfather worked. S.H.’s mother said Orr babysat “maybe 10 times.” (Tr.

at 61.) While alone with the children, Orr forced kindergarten-age S.H. to

submit to anal sex several times. 2 In January 2015, during counseling sessions,

S.H. disclosed Orr had molested her.

[3] On July 16, 2015, the State charged Orr with ten counts of Class B felony child

molesting. All ten counts alleged “that between August 16, 2010 and May 28,

2011 in Blackford County, State of Indiana, Anthony T [sic] Orr did perform or

submit to sexual intercourse or deviate sexual conduct with S.H., a child under

the age of fourteen years . . . .” (App. Vol. II at 29-30.) No other specifics were

included in any of the charges.

1 Ind. Code § 35-42-4-3(a) (2007). 2 The trial court clerk’s failure to include Exhibit 1A - the redacted version of S.H.’s interview at the Child Advocacy Center, which was played for the jury - has greatly hindered our review of the record. We encourage counsel to ensure the record is complete.

Court of Appeals of Indiana | Memorandum Decision 05A04-1608-CR-1791 | June 9, 2017 Page 2 of 10 [4] S.H. remembered the first time Orr molested her was in her bedroom and she

was “very freaked out and very scared.” (Tr. at 112.) She also recalled the last

time it happened because her stepfather and Orr had a fight shortly thereafter.

At times, her brother would sleep on the couch and Orr would tell her “to go to

[her] brother’s room.” (Id. at 114.) Once, when S.H.’s sister was sleeping in

her room, Orr put the sister “in the hallway” before he removed his own and

S.H.’s clothing. (Id. at 119.) S.H. testified Orr penetrated her anally each time.

[5] Orr moved for a directed verdict after the State presented its case. Orr argued

the State had not presented evidence of ten incidences of child molesting. The

trial court took the motion under advisement but refused to grant the directed

verdict as to any counts for fear it would cause the jury “to believe that the

Court has somehow determined that Mr. Orr is not guilty or guilty of any of

them.” (Id. at 148-49.) The trial court also stated it would “be giving the jury

an instruction indicating that all counts, the 10 counts in this case, must be

weighed on their own merits and decided individually based upon the burden of

proof.” (Id. at 148.)

[6] When giving final jury instructions, the trial court gave instructions as to the

elements to be found for each charge, which were the same for all ten counts.

Additionally, the trial court gave Final Instruction 14, which stated: “Although

all the counts are contained within one charging document, you are to consider

the law and the evidence as it may apply to each count individually and

separately from the other counts.” (App. Vol. II at 144.) Final Instruction 23

told the jury it must agree to the verdict and told the foreperson to “not sign any

Court of Appeals of Indiana | Memorandum Decision 05A04-1608-CR-1791 | June 9, 2017 Page 3 of 10 verdict form for which there is not unanimous agreement.” (Id. at 153.) Orr

did not object or offer alternative instructions.

[7] During jury deliberations, the jury indicated it was at an impasse and requested

the trial court’s assistance. Specifically, it wanted to know if it could have

access to a deposition of S.H. that was used to impeach S.H. at trial but was not

published to the jury. Orr objected, and the trial court denied the request. Ten

minutes after that denial, the jury indicated it was ready to return a verdict.

The jury found Orr guilty of the first count, but acquitted him of the other nine

counts. When polled, each juror agreed this was his or her verdict. The verdict

forms do not indicate any specific evidence the jury relied on to support that

count.

Discussion and Decision [8] Orr asserts the trial court committed fundamental error by failing to give

adequate instruction regarding jury unanimity. Orr acknowledges he did not

object to the instruction at trial nor did he provide his own unanimity

instruction. Thus, unless he demonstrates error is fundamental, he has waived

this issue for review. Evans v. State, 30 N.E.3d 769, 775 (Ind. Ct. App. 2015),

trans. denied. Appellate courts may, on rare occasions, resort to the fundamental

error exception to address on direct appeal an otherwise procedurally defaulted

claim. Jewell v. State, 887 N.E.2d 939, 942 (Ind. 2008). But fundamental error

is extremely narrow and available only when the record reveals a clearly blatant

violation of basic and elementary principles, where the harm or potential for

Court of Appeals of Indiana | Memorandum Decision 05A04-1608-CR-1791 | June 9, 2017 Page 4 of 10 harm cannot be denied, and when the violation is so prejudicial to the rights of

the defendant as to make a fair trial impossible. Id.

[9] Indiana has “long required that a verdict of guilty in a criminal case ‘must be

unanimous.’” Baker v. State, 948 N.E.2d 1169, 1174 (Ind. 2011) (internal

citation omitted), reh’g denied. Our Supreme Court in Baker recognized three

situations in which the “issue of jury unanimity commonly arises in child sex

offense cases.” Id. The first situation is one in which the abuse is so frequent

the child can no longer distinguish the circumstances surrounding separate

incidences of abuse. Id. Second is when the jury instruction or the charging

information is written in the disjunctive and would allow the jury to convict for

two different offenses. Id. at 1175. The last situation is one in which more

evidence is presented than was charged, i.e., one charge was filed but evidence

of three distinct crimes was presented in court. Id.

[10] The facts before us are analogous to the first situation recognized in Baker, in

which a child loses perspective of the timeframe of any particular offense due to

the ongoing nature of the abuse. In these situations, it may be difficult to

discern whether the jury unanimously agreed the defendant committed any

specific act. Id. at 1174. Although other jurisdictions have adopted legislation

to manage such situations, 3 our Indiana Supreme Court noted Indiana has not

done so and it “encourage[d] the General Assembly to consider this issue.” Id.

3 New Hampshire recognizes a “continuous course of conduct crime.” Baker v. State, 948 N.E.2d 1169, 1174 (Ind. 2011), reh’g denied. Alabama recognizes “generic evidence” to “describe a pattern of abuse.” Id.

Court of Appeals of Indiana | Memorandum Decision 05A04-1608-CR-1791 | June 9, 2017 Page 5 of 10 at 1175. Thus far, our legislature has not done so, and we must decide this case

by analogizing the facts herein to prior cases.

[11] The State relies on Baker. In Baker, the defendant was charged with one crime,

but the State presented evidence of multiple crimes. Our Indiana Supreme

Court adopted the California Supreme Court’s reasoning that either (1) the

State had to designate the evidence it relied on to bring the charge; or (2) the

jury had to be presented with a detailed unanimity instruction. Id. at 1177. The

State had not designated the specific facts supporting the charge against Baker,

so the Court turned to the jury instruction. Id. at 1178. The instruction advised

Baker’s jurors they “must all agree [and e]ach verdict must be unanimous.” Id.

Our Indiana Supreme Court held that instruction was insufficient to advise the

jury it must “either unanimously agree that [Baker] committed the same act or

acts or that he committed all the acts described by the victim[.]” Id.

[12] Ultimately, our Indiana Supreme Court held that erroneous instruction did not

create fundamental error because the “only issue was the credibility of the

alleged victims.” Id. at 1179. Baker said the children were lying about the

allegations in order to exact revenge against him because one of the victims had

been grounded due to Baker informing her parents she had been in a car with a

boy. Id. at 1173. Because the jury convicted Baker of all the crimes, our

Indiana Supreme Court inferred the jury found the victims credible such that

the erroneous instruction did not prejudice Baker. Id. at 1179.

Court of Appeals of Indiana | Memorandum Decision 05A04-1608-CR-1791 | June 9, 2017 Page 6 of 10 [13] Orr relies on Lainhart v. State, 916 N.E.2d 924 (Ind. Ct. App. 2009), claiming

fundamental error occurred because, as in Lainhart, the jury “may have

disagreed as to which crime occurred . . . .” Id. at 942. In Lainhart, the State

charged Lainhart with one count of intimidation and alleged three possible

victims. Id. at 930. The State presented evidence of incidents involving three

victims but it was unclear whether the jury believed the same act occurred to

support the verdict of guilty. Id. at 942. Although there was only one criminal

charge brought, because it was written in the disjunctive, we held “the State

actually charged [Lainhart] with several alternative crimes.” Id. As such, the

“trial court erred by not issuing a unanimity instruction.” Id.

[14] Here, the State charged Orr with ten counts of child molesting. The State did

not designate the evidence it relied on in support of any particular count. Thus,

the trial court was required to give the jury an instruction as to unanimity. See

id. The trial court instructed the jury to “consider the law and the evidence as it

may apply to each count individually and separately from the other counts,”

(App. Vol. II at 144), along with instructions that each jury member “must

agree to it” and that the foreperson should “not sign any verdict form for which

there is not unanimous agreement.” (Id. at 153.) However, as the court held in

Baker, these generic instructions are not sufficient to put the jurors on notice

they “must either unanimously agree that [the defendant] committed the same

act or acts or that he committed all of the acts described by the victim and

included within the time period charged.” Baker, 948 N.E.2d at 1178.

Court of Appeals of Indiana | Memorandum Decision 05A04-1608-CR-1791 | June 9, 2017 Page 7 of 10 [15] The circumstances herein are most analogous to Lainhart where the State

charged several crimes and presented evidence of multiple criminal acts but the

trial court did not instruct the jury adequately about the unanimity required to

convict Orr. Nor did the jury’s verdict form reveal whether the jurors all relied

on the same evidence. Accordingly, we cannot know whether Orr’s jury

rendered a unanimous verdict. Nor can we hold, like in Baker, that the error

was harmless when Orr’s jury found him guilty of one of ten charges, not “all

the acts.” Baker, 948 N.E.2d at 1178. Thus, we reverse. 4 See Lainhart, 916

N.E.2d at 942 (reversal warranted when jury unanimity is not clarified with a

proper instruction). 5

[16] As we reverse Orr’s conviction due to an instructional error, we turn to whether

he can be retried. When the reversal of a conviction is due to an error in

instruction but sufficient evidence exists to support the conviction, “double

jeopardy does not bar retrial[.]” Edwards v. State, 773 N.E.2d 360, 364 (Ind. Ct.

App. 2002), trans. denied. Accordingly, we now address whether the record

contained sufficient evidence to support Orr’s conviction.

[17] When reviewing sufficiency of the evidence in support of a conviction, we will

consider only probative evidence in the light most favorable to the trial court’s

judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 2007), reh’g denied. The

4 As we reverse on this first issue, we need not address Orr’s assertion the jury’s verdicts were irreconcilable.

5 We encourage the State to organize and present the evidence in a manner that the jury can return a unanimous verdict and avoid the necessity of a retrial.

Court of Appeals of Indiana | Memorandum Decision 05A04-1608-CR-1791 | June 9, 2017 Page 8 of 10 decision comes before us with a presumption of legitimacy, and we will not

substitute our judgment for that of the fact-finder. Id. We do not assess the

credibility of the witnesses or reweigh the evidence in determining whether the

evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal

is appropriate only when no reasonable fact-finder could find the elements of

the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not

required to overcome every reasonable hypothesis of innocence and is sufficient

if an inference may reasonably be drawn from it to support the verdict. Id. at

147.

[18] To prove child molesting, the State had to prove Orr, “with a child under

fourteen (14) years of age, perform[ed] or submit[ted] to sexual intercourse or

deviate sexual conduct . . . .” Ind. Code § 35-42-4-3(a) (2007). The State

presented evidence Orr had performed anal sex on S.H. in her room and in her

brother’s room. S.H. testified to the first time this happened, a time it happened

in her brother’s room, a time it happened when her sister was moved into the

hallway, and the final time it happened when her stepfather argued with Orr

afterward. Any one of these incidences supports the jury’s decision that Orr

was guilty of child molesting. As sufficient evidence was presented to support a

conviction, double jeopardy does not bar the State from retrying Orr when we

reverse for a procedural error. See Edwards, 773 N.E.2d at 364 (retrial not

barred by principles of double jeopardy when the reversal of the original

conviction was based on instructional error and the evidence was sufficient to

convict).

Court of Appeals of Indiana | Memorandum Decision 05A04-1608-CR-1791 | June 9, 2017 Page 9 of 10 Conclusion [19] As it is unclear which act or acts the jurors may have relied on to find Orr guilty

of one of the ten counts charged, we reverse and remand for a new trial

consistent with this decision.

[20] Reversed and remanded.

Najam, J., concurs. Bailey, J., concurs in result.

Court of Appeals of Indiana | Memorandum Decision 05A04-1608-CR-1791 | June 9, 2017 Page 10 of 10