Najam, J.
Carlos Robles Baca appeals his conviction for child molesting, as a Class C felony, following a jury trial. Baca presents a single issue for our review, namely, whether the trial court erred when, after it had entered a directed verdict for Baca on two counts, the court then permitted the State to amend one of those counts. Baca maintains that his subsequent conviction on the amended count violates the protections against double jeopardy under the Fifth Amendment to the United States Constitution and Article 1, Section 14 of the Indiana Constitution.
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The State charged Baca with three counts of child molesting, one as a Level 1 felony (“Count I”), one as a Class A felony (“Count II”), and one as a Level 4 felony (“Count III”). As relevant here, Count I alleged that Baca had “perform[ed] or submit[ted] to other sexual conduct as defined in Indiana Code Section 35-31.5-2-221.5,” which includes “the penetration of the sex organ . . . of a person by an object,” with J.P. And Count II alleged that Baca “did perform or submit to deviate sexual conduct” with J.P. Id. At the time of the alleged offense, “deviate sexual conduct” included “the penetration of the sex organ . . . of a person by an object.” Ind. Code § 35-41-1-9 (2009).
The trial court conducted a jury trial on September 24 and 25, 2018. After the State concluded its case-in-chief, Baca moved for a directed verdict with respect to Counts I and II. In particular, Baca argued that the State had presented insufficient evidence to prove the penetration elements in both counts. The trial court agreed and granted Baca’s motion. The State then moved to amend Count II to charge child molesting, as a Class C felony, and the trial court permitted the amendment over Baca’s objection. The jury found Baca guilty on the amended Count II and on Count III. The trial court entered judgment of conviction and sentence accordingly. This appeal ensued.
Baca contends that the trial court erred when it permitted the State to amend Count II after the court had granted Baca’s Trial Rule 50 motion for a directed verdict on that count. In particular, Baca maintains that his conviction on Count II violates the protections against double jeopardy under the Fifth Amendment to the United States Constitution and Article 1, Section 14 of the Indiana Constitution. …
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… The State contends that Baca “was not reprosecuted after an acquittal” because, as the trial court stated, Baca’s motion for a directed verdict and the State’s motion to amend Count II were “contemporaneous.”
To resolve this issue, we have to determine whether, as the trial court found, the parties’ motions were contemporaneous or whether Baca was acquitted before the State’s motion to amend. “Contemporaneous” means “occurring . . . at the same time.” Black’s Law Dictionary 384 (10th ed. 2014). While the State had ample opportunity to move to amend Count II during the side bar discussion of Baca’s motion for a directed verdict, the State waited until after the trial court had granted Baca’s motion for a directed verdict before it made its motion to amend Count II. The timing of the two motions is clear. They were not contemporaneous.
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Here, the trial court found that the State had presented insufficient evidence to show the element of penetration, as required to prove Counts I and II, and the court granted Baca’s motion for a directed verdict. The State was not caught by surprise. This was not a “gotcha” moment. The issue of penetration was squarely before the court. The State simply failed to present sufficient evidence on that issue, and the trial court correctly granted the defendant’s motion for a directed verdict on those two counts.
The sequence is unmistakable, and it matters. The State’s motion to amend was not contemporaneous but was made after-the-fact. It was not until after the trial court had granted the defendant’s motion and Count II was a nullity that the State moved to amend a charge that had been adjudicated. But at that point, there was not charge left to amend.
A trial court’s grant of a directed verdict for the defendant under Trial Rule 50 “acts as an acquittal” and bars retrial. State v. Goodrich, 504 N.E.2d 1023, 1024 (Ind. 1987). As a matter of law, the trial court acquitted Baca on Counts I and II, and the trial court’s subsequent grant of the State’s motion to amend Count II and Baca’s conviction on that purportedly amended count violated constitutional prohibitions against double jeopardy. Thus, we reverse Baca’s conviction on Count II, child molesting, as a Class C felony.
Reversed.
Baker, J., and Robb, J., concur.