ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUSAN K. CARPENTER KAREN M. FREEMAN-WILSON
Public Defender of Indiana Attorney General of Indiana
LORRAINE L. RODTS TIMOTHY W. BEAM
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
HECTOR ORTIZ, )
)
Appellant-Defendant, )
) Supreme Court Cause Number
v. ) 71S00-0002-CR-73
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable R. W. Chamblee, Judge
Cause No. 71D01-9808-CF-356
ON DIRECT APPEAL
April 22, 2002
RUCKER, Justice
Case Summary
A jury convicted Hector Ortiz of three counts of Class A felony child
molesting, and he pleaded guilty to the status of habitual offender. The
trial court sentenced him to an aggregate term of ninety years
imprisonment. In this direct appeal, Ortiz raises four issues for review
which we rephrase as follows: (1) did the State present sufficient
evidence to establish territorial jurisdiction; (2) did the trial court err
in failing to instruct the jury on territorial jurisdiction; (3) did the
trial court err in denying Ortiz’ motion to correct error without first
conducting an evidentiary hearing; and (4) did the trial court err in
sentencing Ortiz. We affirm the trial court’s judgment but revise the
sentence.
Facts
On August 13, 1998, then twelve-year-old H.M. and her younger brother
were preparing to walk to a local park when forty-three-year-old Ortiz
offered to give them a ride. Ortiz is the ex-boyfriend of H.M.’s mother.
H.M. accepted the offer. However, rather than drive to the local park,
Ortiz proceeded to a park in another location. Approximately ten minutes
into the trip, Ortiz placed his hand on H.M.’s leg, told her to remove her
shorts and underwear, and placed his finger in her vagina. Upon arrival at
the park, Ortiz kissed H.M., removed her shirt, and fondled her breasts.
Shortly thereafter, Ortiz proceeded to drive H.M. and her brother back
home. During the drive, Ortiz again told H.M. to remove her shorts and
again placed his finger in her vagina. After arriving at the house, H.M.
remained outside for a few minutes talking with a neighborhood friend. In
the meantime, Ortiz went inside and waited for H.M. in her bedroom. H.M.
entered her home and over her protests, Ortiz told H.M. to remove her
shorts and underwear and sit on the edge of the bed. He then performed
oral sex on H.M. and engaged her in sexual intercourse.
Ortiz was arrested and charged with three counts of child molesting
as Class A felonies.[1] Count I concerned the acts occurring in the car,
and counts II and III referred to Ortiz’ conduct at H.M.’s home. Ortiz
also was charged as a habitual offender. After a trial by jury, he was
convicted of the child molesting charges. He then pleaded guilty to the
status of habitual offender. The trial court sentenced Ortiz to concurrent
thirty-year terms on counts II and III to run consecutively to a thirty-
year term on count I. The trial court enhanced count III by an additional
term of thirty years for the habitual offender adjudication. This appeal
followed in due course. Additional facts are set forth below where
relevant.
Discussion
I.
Contesting the sufficiency of the evidence concerning count I only,
Ortiz contends the State failed to prove that the act of child molesting
occurred in the State of Indiana. Noting that portions of St. Joseph
County border the State of Michigan, Ortiz argues H.M. did not testify that
the crime occurred in Indiana and the State “offered no other evidence from
which a rational trier of fact might infer that the crime was committed in
Indiana.” Br. of Defendant-Appellant at 25.
A person may be convicted of a crime in Indiana if either the conduct
or the result that is an element of the offense occurred in Indiana. I.C.
§ 35-41-1-1(b)(1). Territorial jurisdiction, which relates to the
authority of the State to prosecute a person for an act committed within
the State’s territorial boundaries, is not necessarily thought of as an
element of the offense. Nonetheless, we have determined that the State is
required to prove territorial jurisdiction beyond a reasonable doubt.
Benham v. State, 637 N.E.2d 133, 138 (Ind. 1994). This is so because
“where the law has established the necessity of a certain fact for an
accused to be guilty of an offense, the existence of that fact is treated
much like an element of the offense.” McKinney v. State, 553 N.E.2d 860,
863 (Ind. Ct. App. 1990) (citing McGowan v. State, 267 Ind. 16, 366 N.E.2d
1164, 1165 (1977); Sumpter v. State, 261 Ind. 471, 306 N.E.2d 95, 98
(1974); Young v. State, 258 Ind. 246, 280 N.E.2d 595, 597 (1972)). Thus,
territorial jurisdiction must be proved by the State beyond a reasonable
doubt.
In reviewing a claim of insufficient evidence, our standard of review
is well settled.[2] We neither reweigh the evidence nor judge the
credibility of witnesses. Warren v. State, 725 N.E.2d 828, 834 (Ind.
2000). Rather, we consider only that evidence which supports the verdict
and all reasonable inferences drawn therefrom. Id. We will uphold a
conviction if there is substantial evidence of probative value from which a
jury could have found the defendant guilty beyond a reasonable doubt. Id.
H.M. testified that Ortiz first molested her within ten minutes of leaving
her home.[3] On direct examination officer Jeffrey Giannuzzi testified
that from H.M.’s home, traveling the speed limit, one could not leave the
State of Indiana in less than twenty to thirty minutes. On cross-
examination the officer conceded the possibility that a person could travel
into the State of Michigan from H.M.’s home within twenty to thirty minutes
depending on the route taken. According to the officer, “It could be done.
I’m not saying that it couldn’t be done. It could be done.” R. at 669.
Seizing on the officer’s cross-examination response and directing this
Court’s attention to an area map that was included in the appendix but not
introduced into evidence, Ortiz at one point baldly asserts, “At a speed of
forty miles per hour, conservative for much of the distance, Ortiz would
have been in Michigan in twelve and one-half minutes.” Br. of Defendant-
Appellant at 22. At another point he says “it is a matter of common
knowledge . . . that a person residing in the [community where H.M. lived]
can easily be in the State of Michigan within ten minutes by a variety of
routes . . . .” Id.
Ortiz’ focus on whether a person could cross the Indiana/Michigan
border from H.M.’s home in twelve and a half minutes or twenty minutes is
quite beside the point. H.M. testified that Ortiz first molested her
within ten minutes of leaving her home. As for Ortiz’ assertion that a
person residing in H.M.’s community could arrive in Michigan within ten
minutes, this is essentially an invitation for this Court to reweigh the
evidence. We decline. The State presented sufficient evidence to
establish that Ortiz molested H.M. within the territorial jurisdiction of
Indiana.
II.
In a related argument, Ortiz complains the trial court failed to give
the jury an instruction on the issue of territorial jurisdiction. This
claim is unavailing. When the asserted error is failure to give an
instruction, “[A] tendered instruction is necessary to preserve error
because, without the substance of an instruction upon which to rule, the
trial court has not been given a reasonable opportunity to consider and
implement the request.” Mitchell v. State, 742 N.E.2d 953, 955 (Ind. 2001)
(quoting Scisney v. State, 701 N.E.2d 847, 848 n.3 (Ind. 1998)
(distinguishing between failing to give an instruction versus giving an
erroneous one)). Failure to tender an instruction results in waiver of the
issue for review. Acknowledging that he failed to tender his own
instruction, Ortiz attempts to avoid waiver by asserting fundamental error.
The fundamental error doctrine provides a vehicle for the review of
error not properly preserved for appeal. In order to be fundamental, the
error must represent a blatant violation of basic principles rendering the
trial unfair to the defendant and thereby depriving the defendant of
fundamental due process. Pope v. State, 737 N.E.2d 374, 380 (Ind. 2000),
reh’g denied. The error must be so prejudicial to the defendant’s rights
as to make a fair trial impossible. Id. In considering whether a claimed
error denied the defendant a fair trial, we determine whether the resulting
harm or potential for harm is substantial. Id. Harm is not shown by the
fact that the defendant was ultimately convicted. Id. Rather, harm is
determined by whether the defendant’s right to a fair trial was
detrimentally affected by the denial of procedural opportunities for the
ascertainment of truth to which he would have been entitled. Id.
Although the State must prove territorial jurisdiction beyond a
reasonable doubt, that does not necessarily mean that a defendant is
entitled to a jury instruction on the issue. This point was made clear in
McKinney v. State, 553 N.E.2d 860 (Ind. Ct. App. 1990). In that case, the
defendant was charged with murder, but there was a dispute concerning
whether the crime occurred in Ohio or Indiana. After the State had begun
to present its case in chief, the defendant moved to dismiss the charge on
grounds of lack of territorial jurisdiction. The trial court denied the
motion, and the defendant thereafter submitted a jury instruction on the
issue. The instruction was rejected, and the jury convicted the defendant
as charged. The Court of Appeals reversed, determining that the jury
“should have been instructed on the necessity of establishing territorial
jurisdiction.” Id. at 865. Although the case itself does not explicitly
make the point, the Court apparently reached this determination because the
question of jurisdiction was challenged from the very beginning of trial,
and there was conflicting evidence and inferences on the question of
jurisdiction. The Court held “[b]ecause the prosecution must prove
territorial jurisdiction, the issue must be submitted to the jury unless
the court determines no reasonable jury could fail to find territorial
jurisdiction beyond a reasonable doubt.” Id. at 863-64. Another way to
make the same point, and the position this Court endorses today, is that if
there is no serious evidentiary dispute that the trial court has
territorial jurisdiction, then a special instruction on territorial
jurisdiction need not be given to the jury. This view is consistent with
those states that have addressed the issue and submit
the issue of territorial jurisdiction to the jury.[4] See, e.g., Colorado
v. Cullen, 695 P.2d 750, 751 (Colo. Ct. App. 1984) (stating that the issue
of territorial jurisdiction must be submitted to the jury with an
appropriate instruction if territorial jurisdiction depends upon the
resolution of disputed facts, but there is no error in not submitting the
issue to the jury if the facts overwhelmingly support jurisdiction);
Johnson v. Florida, 465 So.2d 499, 504 (Fla. 1985) (holding that it was not
necessary to give a special instruction on territorial jurisdiction when
all the physical and circumstantial evidence indicated that all elements of
the offense occurred in Florida with the only conflicting evidence being
defendant’s bare assertion that the acts took place outside the state),
overruled on other grounds by In re Instructions in Criminal Cases, 652
So.2d 814, 815 (Fla. 1995); Pennsylvania v. Bighum, 307 A.2d 255, 259 (Pa.
1973) (“Where the facts overwhelmingly support jurisdiction, it is
certainly not basic and fundamental error not to charge the jury on the
issue.”), abrogated on other grounds by Pennsylvania v. Randall, 528 A.2d
1326, 1329 (Pa. 1987).
In this case, there was no serious evidentiary dispute concerning
territorial jurisdiction. Not only was there sufficient evidence to prove
the molestations occurred in Indiana, but also Ortiz never contested
jurisdiction at trial. His defense was that he committed no crime, that
H.M. lied under oath, and that H.M.’s mother was angry because he
discontinued their relationship. We conclude that no fundamental error
occurred on this issue.
III.
Ortiz filed a motion to correct error with the trial court that
included a supporting affidavit. His sole allegation of error was that he
was denied a fair trial when one of the jurors failed to disclose that she
knew Ortiz and his family and that the same juror at one time had an
adverse confrontation with Ortiz at the juror’s place of employment. The
trial court denied the motion in a two-and-a-half page order. In this
appeal, Ortiz does not appear to contest the merits of the trial court’s
denial. Rather, he complains the trial court should have conducted a
hearing before ruling on the motion.[5]
This Court has long and consistently held that a trial court is not
required to hold an evidentiary hearing on a motion to correct error. See
Callahan v. State, 527 N.E.2d 1133, 1138 (Ind. 1988); Calhoun v. State, 484
N.E.2d 7, 10 (Ind. 1985); Douglas v. State, 441 N.E.2d 957, 962 (Ind.
1982); Keys v. State, 271 Ind. 52, 390 N.E.2d 148, 151 (1979). Rather,
Criminal Rule 17 and Trial Rule 59(H) contemplate filing affidavits that
set forth sufficient grounds in support of a motion to correct error.
Kindred v. State, 521 N.E.2d 320, 329 (Ind. 1988). The trial court may
then rule on the merits of the motion without the necessity of an
evidentiary hearing. Id. In this case, the affidavit was sufficient to
support Ortiz’ motion, and the trial court entered its ruling based on the
allegations contained therein. There was no error committed by the trial
court in failing to hold an evidentiary hearing.
IV.
Finally, Ortiz argues the trial court erred in ordering his sentences
to run consecutively because it failed to find aggravating circumstances.
The State concedes this point.
In order to impose consecutive sentences, a trial court must find at
least one aggravating circumstance. Jones v. State, 705 N.E.2d 452, 455
(Ind. 1999). When a trial court imposes consecutive sentences, when not
required to do so by statute, this Court will examine the record to insure
that the trial court explained its reasons for selecting the sentence
imposed. Evans v. State, 727 N.E.2d 1072, 1082 (Ind. 2000). The trial
court’s statement of reasons must include: (1) the identification of all
significant aggravating and mitigating circumstances; (2) the specific
facts and reasons that lead the court to find the existence of each such
circumstance; and (3) an articulation demonstrating that the mitigating and
aggravating circumstances have been evaluated and balanced in determining
the sentence. Id.; Mitchem v. State, 685 N.E.2d 671, 678 (Ind. 1997);
Henderson v. State, 489 N.E.2d 68, 71-72 (Ind. 1986). When imposing
consecutive sentences in this case, the trial court declared, “[I]t’s
because of the fact that those sets of circumstances were totally different
at the time that those offenses occurred. And to that extent, it adds
insult to the injury.” R. at 843-44. This articulation falls short of the
requirement that a trial court’s sentencing statement identify, explain,
and evaluate any aggravating circumstances used to impose consecutive
sentences. I.C. § 35-50-1-2; Evans, 727 N.E.2d at 1082.
Upon determining that a trial court improperly applied a justification
for enhanced or consecutive sentences, we are not required to remand for
resentencing. Rather, this Court may exercise its authority to review and
revise the sentence. Sanquenetti v. State, 727 N.E.2d 437, 443 (Ind.
2000). We exercise that authority here and revise the trial court’s
sentencing order to provide that the thirty-year sentences for each count
of child molesting run concurrently. The remainder of the sentencing order
is left undisturbed.
Conclusion
We revise the trial court’s sentencing order. In all other respects,
the judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
-----------------------
[1] Ind. Code § 35-42-4-3(a).
[2] Ortiz contends it is not his intent to raise an issue of state
sufficiency law. Rather, according to Ortiz, he is alleging a violation of
the Due Process Clause pursuant to Jackson v. Virginia, 443 U.S. 307
(1979). However, we have observed that the federal standard articulated in
Jackson “is equivalent to the one we routinely employ in reviewing
evidentiary sufficiency.” Bethel v. State, 730 N.E.2d 1242, 1243 n.6 (Ind.
2000). Thus, we review Ortiz’ sufficiency claim relying on Indiana law
only.
[3] As recited in the Facts section of this opinion, Ortiz twice
molested H.M. while in his car: once in route to the park and again after
leaving. Both Ortiz and the State concede only the first car molestation
was charged in this case and is the subject of count I of the charging
information.
[4] In some states, territorial jurisdiction is considered a question
of law to be decided by the court. See, e.g., Connecticut v. Beverly, 618
A.2d 1335, 1338 (Conn. 1993); New Jersey v. Reldan, 449 A.2d 1317, 1324
(N.J. Super. Ct. App. Div. 1982).
[5] Ortiz talks about the merits of the trial court’s order.
However, he continues:
Ortiz is not claiming a right to peremptorily challenge [the
juror] or a new trial due to juror misconduct but the right to an
evidentiary hearing to determine the existence of actual bias. . . .
[T]he possibility of [a biased] juror presents a question of serious
error which cannot be resolved by the trial court properly in the
exercise of discretion without an evidentiary hearing . . . .
Br. of Defendant-Appellant at 44-45.