Pursuant to Ind. Appellate Rule 65(D), this

Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT : ATTORNEYS FOR APPELLEE : P. JEFFREY SCHLESINGER GREGORY F. ZOELLER Lake County Public Defender’s Office Attorney General of Indiana Appellate Division Crown Point , Indiana JODI KATHRYN STEIN Deputy Attorney General Indianap olis, Indiana



## IN THE COURT OF APPEALS OF INDIANA

JAIME MIGUEL CORDERO , ) ) Appellant

- Defendant, ) ) vs. ) No. 45A04

- 1401

- CR

- 28 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Diane Ross Boswell , Judge Cause No. 45G03

- 1210

- FA

- 26

July 2 9 , 2014

MEMORANDUM DECISION
- NOT FOR PUBLICATION
KIRSCH, Judge2

Jaime Miguel Cordero appeals his convictions and sentence following a jury trial
for criminal deviate conduct 1 as a C lass A felony and burglary as a Class B felony

. 2 On appeal, Cordero raises the following restated issue: W hether ordering Cordero’s sentences
for Class A criminal deviate conduct and Class B felony burglary to run consecutively to
each other violated the princ iples of double jeopardy. We affirm

. FACTS AND PROCEDURAL HISTORY 3 J.C

. , her husband, and three school

- aged children lived in a subdivision in Munster,
In diana. On the morning of June 3 , 2002, J.C. , who was the only one home, was doing yard work. While outside, J.C. left her garage door up and the interior door to her home
open. Having finished the yard work, J.C. went into her home and closed and locked all
of the doors behind her. Safely inside, J.C. saw a masked ma n, lat er identified by DNA evidence as Cordero, charge at her from around a corner. J.C. tried to run away, but Cordero caught her leg and pulled her down onto the hardwood foyer floor. J.C. fought

1 See Ind. Code § 35

- 42

- 4

- 2. We note that, effective July 1, 2014, this statute was repealed and recodified at Indiana Code section 35

- 42

- 4

- 1. Because Cordero committed t his crime prior to July 1, 2014, we will apply the statute in effect at th e time he committed his crimes

.

2 See Ind. Code § 35

- 43

- 2

- 1

. We note that, effective July 1, 2014, a new version of this criminal statute was enacted. Because Cordero committed t his crime prior to July 1, 2014, we will apply the statute in effect at th e time he committed his crimes

.

3 The record on appeal in this case was prepared pursua nt to the Indiana Supreme Court’ s “Order For the Indiana Court Reporting Pilot Project By Using Professional Transcription Experts On Appeal[,]” issued o n November 8, 2012, and effective on November 1, 2012. See In re Pilot Project For Expedited Transcripts In the Preparation of the Record and Briefing on Appeal , 977 N.E.2d 1010 (Ind. 2012). We are grateful for the ongoing cooperation of the Honorable Di ane Ross Boswell of Lake Superior Court, eScribers, appellate counsel, and the Office of the Indiana Attorney General in the execution of this pilot project.3

back, screaming and yelling, but Cordero grabbed the back of h er head and “pounded” her head down onto the floor multiple times. Tr . at 39

- 41. J.C.’s nose began to bleed , and she later testified that she thought she was going to die. Id

. at 41. Cordero, using an aggressive voice, told J.C. not to look at him. J. C. never saw Cordero’s face. J.C. stopped fighting , and Cordero duct taped her hands and put duct tape over her eyes and mouth by encircling her head

. Cordero pulled J.C. off of the floor and pushed her into the kitchen, where he armed himself with a knife. Cordero placed the knife against J.C.’s neck and told her that he would kill her if she did not cooperate. When J.C. indicated
that she could not b reathe, Cordero removed the tape from J.C.’s nose . Aggressively, Cordero moved J.C. into the dining room while still holding the knife to her neck. Cordero pushed J.C. to the floor and removed all of her clothing. Leaving her face down on the carpet, Cor dero inserted his penis into J.C.’s anus, which caused her pain.
Cordero subsequently ejaculated on J.C.’s back, and he wiped her back off with a cloth. Cordero then took J.C. upstairs, where he ran a bath, put J.C. into it, and used a wash cloth to agg ressively wash her “[i]n the vaginal area and the rectal area

. ” Tr . at 57. At one point, when J.C. thought that Cordero had left the house, J.C. tried to leave the bath tub

. Cordero , however, was still there and put J.C. back into the bath tub . Cordero told J.C. that if she told anyone he would “come back” to “get” J.C. and her boys. Id

. at 56.
A short time later, when Cordero again left the bathroom, J.C. left the tub and was able to remove enough tape from one eye so that she could see. J .C., totally naked and still
bound in duct tape, ran downstairs and out the front door to her immediate neighbor, M.A. M.A., who was in his garage, quickly provided aid and called the police. The police arrived4

and took J.C. to the hospital. In addition to the sexual assault, a nurse who treated J.C.
later testified that J.C. had bruising on her forehead, a swollen eye, dried blood on her nose, and bruises on her hands, knees, and left shoulder. Id . at 253

- 54. The next day, J.C. gave
her statement to a n FBI agent. A crime

- scene investigator from the Lake County Police Department identified stains on the dining room carpet where the sexual assault had occurred and removed the piece of carpe t ing

. Id

. at 296

- 97. The piece of carpet ing was later transported to an FBI lab. Subsequent FBI testing of the semen on the carpeting resulted in a DNA profile of the perpetrator. Because there were no suspects that matched the DNA profile, the profile was uploaded in 2003 into the FBI’s Combined DNA Index System (“CODIS”)

. The identity of the attacker remained a mystery for ten years until Cordero was arrested in Florida in January 2012. At that time, the police uploaded a sample of Cordero’s
DNA into CODIS. Cordero’s DNA matched the DNA samp le obtained from the carpeting sample from J.C.’s home

. On March 12, 2012, Cordero was arrested in his home in Hammond, Indiana. Additional testing was completed , and the FBI confirmed that Cordero was the source of the DNA found on J.C.’s carpeting.
The State charged Cordero with Class A felony criminal deviate conduct and Class A felony burglary. Cordero was tried by jury in October 2013

. At the conclusion of the State’s case, Cordero moved for judgment on the evidence, which the trial court denied. At the completion of the trial, the jury found Cordero guilty as charged. At sentencing, Cordero argued that sentencing him for both criminal deviate conduct and burglary would violate double jeopardy concerns. Tr . at 655. T he trial court reduced Corder o’s Class A5

felony burglary conviction to a Class B felony conviction on the basis “ that the enhancement of the burglary to an A is based on the same conduct that the criminal deviate conduct is based on.” Id . at 658

. Cordero was sentenced to thirty

- five years for the Class A felony criminal deviate conduct conviction and a consecutive ten years for the Class B felony burglary conviction , for an aggregate sentence of forty

- five year s executed at the Department of Correction . Cordero now appeals. DISCUSSION AND DECISION The Indiana Double Jeopardy Clause provides, “No person shall be put in jeopardy twice for the same offense.” Ind. Const. art. I , § 14. A trial court’s legal conclusion regarding whether convictions and sentences violate double j eopardy principles is reviewed de novo. Sloan v. State , 947 N.E.2d 917, 920 (Ind. 2011). We analyze alleged violations of Indiana’s Double Jeopardy Clause pursuant to our Supreme Court’ s opinion
in Richardson v. State, 717 N.E.2d 32 (Ind. 1999). In Rich ardson, our Supreme Court held 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 co nvict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.” 717 N.E.2d
at 49 (emphasis in original). Citing Richardson , Cordero contends that applying the “ actual evidence test, ” his convictions for burglary and criminal deviate conduct violate Indiana’s Double Jeopardy Clause

. Appellant’s Br . at 8. Under the “actual evidence” test, a defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fac t

- finder to establish the essential6

elements of one offense may also have been used to establish all of the essential elements of a second challenged offense. Richardson , 717 N.E.2d at 53. “Application of this test requires the court to ‘identify the es sential elements of each of the challenged crimes and to eval uate the evidence from the jury’ s perspective[.]’ ” Lee v. State, 892 N.E.2d 1231, 1234 (Ind. 2008) (quoting Spivey v. State, 761 N.E.2d 831, 832 (Ind. 2002)). Therefore, we consider the essenti al elements of the offenses, the charging information, the jury instructions, the evidence, and the arguments of counsel. Id. The term “reasonable possibility” “turns on a practical assessment of whether the jury may have latched on to exactly the same f acts for both convictions.” Id. at 1236. Bunch v. State , 937 N.E.2d 839, 845

- 46 (Ind. Ct. App. 2010) , trans. denied

. Cordero was charged with criminal deviate conduct as follows: [O]n or about June 3, 2002 . . ., [Cordero] did knowingly or intentionally, cause [J.C.] to perform or submit to deviate sexual conduct when [J.C.] was compelled by deadly force or threat of de adly force. Appellant’s App. at 7. Final Instruction Number 2 instructed the jury, in pertinent part, as follows: CRIMINAL DEVIATE CONDUCT, a Class A felony, is defined by statute in the State of Indiana as follows :

. . . . Before you may convict the defendant of the offense of Criminal Deviate Conduct as a Class A felony, the State must have proved each of the following eleme nts : 1) The defendant 2) knowingly or intentionally 3) caused [J.C.] to perform or submit to deviate sexual conduct and 4) t he crime was committed by using or threatening the use of deadly force. Id

. at 67. Final Instruction Number 4 instructed the jury in pertinent part: “ Deviate sexual conduct means an act involving: 1) a sex organ of one person and the mouth or anus of

a nother person . . . . ” Id

. at 69.7

Cordero was charged with burglary as follows: “[O] n or about June 3, 2002

. . . [Cordero] did break and enter the dwelling of [J.C.] with intent to commit a felony in it, which resulted in bodily injury to [J.C.] . . . .” Id

. at 7. Final Instruction Number 3 instructed the jury, in pertinent part, as follows:

BURGLARY, a Class A felony, is defined by [s] tatute in the State of Indiana as follows:

. . . . To convict the defendant of a crime of Burglary, a Class A felony, the State must have proven each of the following elements beyond a reasonable doubt: The d efendant 1) broke and entered the dwelling of [J.C.]; 2) with intent to commit a felony in it; 3) which resulted in bodily injury to [J.C.]

. Id

. at 68

. Final Instruction Number 5 provided: “Bodily injury means any impairment of physical condition, including physical pain.” Id

. at 70. Regarding the burglary conviction, Cordero does not deny that he broke and entered J.C.’s dwelling

. Appellant’s Br

. at 9. Instead, he contends that proof of burglary required evidence he intended to commit a felony therein, and that this evidence was established by Cordero’s commission of the felony of criminal deviate conduct. Accordingly, because criminal deviate cond uct had to be proven to convict Cordero for both crimes, and thus the same actual evidence was used, Cordero argues that the conviction s for both and imposition of consecutive sentences was a double jeopardy violation. Appellant’s Br . at 8. We disagree. As our Supreme Court explained: The criminal transgression addressed by the proscription on burglary is the breaking into and entering of a building or structure of another person with8

the intent to commit a felony. Thus, the criminal transgression of bur glary is committed by a person intending to commit an underlying felony at the moment the building or structure is broken into and entered. The person’ s culpability is established at the point of entry regardless of whether the underlying intended felony is ever completed. Indeed, a person who breaks and enters without any intent to commit an underlying felony is not guilty of burglary. Because burglar y and the underlying intended felony (if committed) are separate criminal transgressions, Richardson does not prohibit conviction and sentencing for both. Swaynie v. State , 762 N.E.2d 112, 114 (Ind. 2002) (emphasis added) . Here, Cordero entered J.C.’s dwe lling and, by his own admission, intended to commit the felony of criminal deviate con duct therein. Appellant’s Br . at 9. Cordero’s culpability was established at the point of entry regardless of whether the underlying intended felony was ever completed. Swaynie , 762 N.E.2d at 114

. This evidence was sufficient to convict Cordero of the lesser included offense of Class B felony burglary

— the crime for which he was sentenced. 4 After breaking into J.C.’s home , and as a separate act , Cordero intentionally placed his penis into J.C.’s anus while threatening that he would kill her if she did not cooperate. The fact that Cordero’s actions after breaking into J.C.’s dwelling constituted criminal deviate conduct did not make him any less culpable for the burgl ary, but instead, made him additionally culpable for the offense of criminal deviate conduct. This evidence was

4 To convict Cordero of Class A felony burglary, the State was required to prove that he: (1) broke and entered the building or structure of another; (2) with the intent to commit a felony in it; and (3) it resulted in bodily injury to any person other than a defendant. See I.C. § 35

- 43

- 2

- 1(2) . Class B felony burglary is a lesser included offens e and requires the State to prove that a defendant : (1) broke and entered the building or structure of another; (2) with the intent to commit a felony in it; and (3) that the building or structure was a dwelling. See I.C. § 35

- 43

- 2

- 1(1). While there was sufficient evidence to convict Cordero of Class A felony burglary, recognizing that J.C.’s injuries were, in part, the result of the act of criminal deviate conduct, the trial court, apparently prompted by double jeopardy concerns, sentenced Cor dero only for a Class B felony conviction.9

sufficient to convict Cordero of the crime of criminal deviate conduct without reference to the burglary conviction. Double jeopardy principl es were not violated when Cordero was convicted of and consecutively sentenced for the crimes of Class B felony burglary and Class A felony criminal deviate conduct. Affirmed. MAY, J., and BRADFORD, J. , concur.