No fundamental error in jury seeing previously dismissed counts

The Indiana Court of Appeals relied in part on two decades-old cases from the state Supreme Court to find that exposing the jury to dismissed charges did not deprive a defendant of a fundamentally fair trial.

In Eriberto Quiroz v. State of Indiana, No. 49A02-1107-CR-577, Eriberto Quiroz appealed his convictions of Class A and Class C felony child molesting and argued that he was denied a fair trial when the jury was given a copy of the charging information which included counts that had been dismissed.

Quiroz, 27, had molested the six-year-old half-sister of his friend by pulling down the girl’s pants and licking her vagina. He also threatened her with a knife to not tell anyone.

The jury was given the charging information, which included two child molesting charges that were dismissed. He didn’t object at trial and the judge specifically instructed the jury that those two counts had been withdrawn and to not consider them when evaluating the other charges. Although the appellate court couldn’t find any Indiana case directly on point, it relied on Berry v. State, 196 Ind. 258, 148 N.E. 143 (1925), and Nordyke v. State, 213 Ind. 243, 11 N.E. 2d 165 (1937), as well as decisions from outside of Indiana to find there is no error in permitting the jury to have access to an information or indictment that has dismissed counts when the jury is also told that the dismissed counts aren’t to be considered or the charging instrument isn’t evidence.

“In short, while certainly not the best practice, the trial court did not commit fundamental error in including in the jury instructions a copy of the charging information that included the counts against Quiroz that had previously been dismissed,” wrote Judge Paul Mathias.

The judges ordered that Quiroz’s Class C felony conviction be vacated because the same act was used to support the Class C felony and Class A felony charges. The judges also upheld his 40-year sentence.