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A man’s convictions of two felony counts of child molesting don’t violate double jeopardy principles, according to the Court of Appeals of Indiana.
In reaching its decision, the COA denied the defendant’s request to use the test in Powell v State, 151 N.E.3d 256 (Ind. 2020), determining the test in Wadle v. State, 151 N.E.3 227 (Ind. 2020), was appropriate.
The case of Espedicto Padilla Carranza v. State of Indiana 21A-CR-1742, started in 2019, when Carranza molested his 8-year-old daughter.
The state charged Carranza with two counts of child molesting under Indiana Code § 35-42-4-3. Count I alleged a Level 1 felony for “other sexual conduct” under subsection (a) and Count II alleged a Level 4 felony for “fondling or touching” under subsection (b).
After a jury trial, Carranza was convicted on both counts. The Hamilton Superior Court sentenced him to 35 years on Count I and eight years on Count II, to be served consecutively.
In explaining the enhanced sentence, the court identified the following factors: Carranza’s lack of remorse, nonacceptance of responsibility and betrayal of his daughter’s trust; the emotional trauma caused to his daughter; and the commission of the offenses in the presence of his 11-year-old son, who was asleep in the same room when the molesting occurred.
Asserting his right to maintain his innocence, Carranza objected to the trial court considering lack of remorse and nonacceptance of responsibility as aggravating factors. The court, however, assured Carranza that the remaining factors supported imposition of the same 43-year sentence.
On appeal, Carranza argued his two child molesting convictions constituted double jeopardy.
While Carranza asked that the Powell test be applied, the Court of Appeals determined the case actually fell under the Wadle test, citing Koziski v. State, 172 N.E.3d 338, 342 (Ind. Ct. App. 2021), trans. denied.
“… Carranza’s convictions were based on separate subsections of the primary charging statute rather than a statutory definition incorporated by reference therein,” Judge Leanna Weissmann opined for the COA. “… Though both fall under the Child Molesting Statute, ‘[w]e don’t believe the legislature’s decision to delineate separate crimes in one statute as opposed to two should control which double-jeopardy test is applicable.’ We conclude Wadle applies to Carranza’s claim.
“… Because neither of Carranza’s offenses is included in the other, his dual convictions do not constitute double jeopardy under Wadle,” Weissmann continued. “We therefore affirm both of Carranza’s child molesting convictions.”
The appellate court also concluded the Hamilton Superior Court didn’t abuse its discretion in handing down a 43-year sentence.
“After Carranza objected to the trial court considering lack of remorse and non-acceptance of responsibility as aggravating factors, the court expressly stated that the remaining aggravating factors still supported the 43-year sentence,” Weismann wrote.
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