Tuesday, January 16, 2007
Ind. Decisions - Supreme Court decides one today
In Fajardo v. State, an 11-page, 5-0 opinion, Justice Dickson writes:
The defendant, Eligio C. Fajardo, appeals his convictions on each of two counts of Child Molesting, one as a class C felony and the other as a class A felony. The trial court ordered concurrent sentences of two years and twenty years, respectively. The Court of Appeals, in a memorandum decision, affirmed the convictions. We granted transfer and now affirm the defen-dant's conviction for class C felony Child Molesting, but we reverse the class A felony conviction. * * *
Applying the rule for distinguishing between amendments to matters of form and those of substance, we find that the addition of Count 2 charging a new separate offense constituted an amendment to matters of substance. The defendant's evidence addressed to disputing the occur-rence of the original charge would not be "equally applicable" to dispute the date nor the specific conduct alleged in the separate additional charge sought to be added by the amendment. And because the amendment charges the commission of a separate crime, it also is unquestionably essential to making a valid charge of the crime, and thus it is not disqualified from being consid-ered an amendment to a matter of substance.
Because the challenged amendment in this case sought to modify the original felony in-formation in matters of substance, it was permissible only up to thirty days before the omnibus date. Ind. Code § 35-34-1-5(b). The amendment was not sought by the State, however, until seven days after the omnibus date, and thus failed to comply with the statute. The defendant's objection should have been sustained and the amendment denied. The conviction and sentence for Count 2, Child Molesting as a class A felony, must be vacated. * * *
Having reviewed the trial transcript, we find that the testimony of the eleven-year-old witness was not so incredibly dubious or inherently improbable that no reasonable person could believe it. While equivocations, uncertainties, and inconsistencies appear, they are appropriate to the circumstances presented, the age of the witness, and the passage of time between the incident and the time of her statements and testimony. And there is clear, unequivocal testimony from the child that establishes the necessary elements of the charged offense. We decline to invoke the incredible dubiosity rule to impinge on the jury's evaluation of the evidence in this case and conclude from the evidence that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.
Posted by Marcia Oddi on January 16, 2007 01:30 PM
Posted to Ind. Sup.Ct. Decisions