Crone, J.
Gregory A. Harris was charged with and tried on two counts, rape and sexual misconduct with a minor. The charging information for sexual misconduct with a minor alleged that Harris had “sexual intercourse with a child.” A jury acquitted Harris on the rape charge, but hung on the sexual misconduct charge, and the trial court declared a mistrial on that count. The State, seeking to retry Harris on the sexual misconduct charge, filed a motion to amend the charge by adding the language “or deviate sexual conduct.” Harris filed a motion to dismiss, arguing that double jeopardy bars a retrial on the sexual misconduct charge. The trial court denied both motions. Harris appealed, and the State cross-appealed. We find that double jeopardy does not bar Harris’s retrial on the sexual misconduct charge and that the statute of limitations precludes the State from amending the sexual misconduct charge. Accordingly, we affirm the trial court in all respects.
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Harris claims a violation of the Indiana double jeopardy clause under the actual evidence test. To show that two offenses constitute the same offense under the actual evidence test, “a defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.” Id. at 52-53. Harris argues that the same evidentiary facts, those concerning one act of nonconsensual sexual intercourse, were used to try him for both charges, rape and sexual misconduct with a minor (alleging sexual intercourse with a child), and because he was acquitted of rape, retrial on sexual misconduct with a minor (alleging sexual intercourse with a child) would violate his double jeopardy rights under the Indiana Constitution.
We disagree. The actual evidence test does not apply to acquittals, mistrials, or the present situation of an acquittal and mistrial combination. The plain language from Richardson states that the actual evidence test applies only to convictions. See id. at 49-50 (“[W]e therefore conclude and hold that two or more offenses are the ‘same offense’ in violation of Article I, Section 14 of the Indiana Constitution, if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.”) (bold emphasis added).
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Since this case does not involve multiple convictions, we cannot analyze evidentiary facts pursuant to the actual evidence test. Rather, we can determine which issues the State is precluded from retrying by applying collateral estoppel. . . . .
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Applying collateral estoppel to this case, we find that acquittal on the rape charge does not preclude relitigation of the sexual misconduct with a minor charge. . . . .
The rape charge alleged that A.M. was compelled to have sexual intercourse with Harris “by force or imminent threat of force.” Appellant’s App. at 29. The sexual misconduct with a minor charge alleged that Harris “did perform or submit to sexual intercourse with a child.” Id. The evidence concerning force was not overwhelming. A.M. testified that she did not know what to do, that she was scared, and felt paralyzed. Vol. II Tr. at 31-32. The jury may have acquitted Harris of rape because it found a lack of force; the acquittal does not necessarily mean that the jury found that sexual intercourse did not occur. Had it done so, the jury would have acquitted Harris on the sexual misconduct charge. Therefore, we cannot say that retrial for sexual misconduct with a minor would require proof of a factor necessarily found in Harris’s favor by virtue of the rape acquittal. Consequently, collateral estoppel does not bar relitigation of whether Harris had sexual intercourse with A.M.
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The period of limitations begins with the “commission of the offense.” Ind. Code § 35-41-4-2(a)(1). The alleged crime occurred on December 25, 2005. A class C felony has a period of limitations of five years. Id. Thus, the period of limitations regarding the alleged deviate sexual conduct ended on December 25, 2010. After the first trial, the State moved to amend its remaining count against Harris by adding “or deviate sexual conduct” on September 20, 2011, nearly a year after the period of limitations for the alleged deviate sexual conduct expired.
The proposed amendment here is not merely a correction of information or an alternate theory of culpability, as the State suggests. Appellee’s Br. at 9. Rather, the proposed amendment constitutes a matter of substance and includes a new and additional offense. Thus the amendment carries the weight and practical effect of a new or refiled charge. Just as the State would be barred from bringing a new or refiled charge of deviate sexual conduct, it is barred from bringing the charge through an amendment. The statute of limitations cannot be circumvented because of the procedural availability of amending informations or the happenstance of mistrial.
ROBB, C.J., and FRIEDLANDER, J., concur.