INDIANAPOLIS – The convictions and 106-year prison sentence of a DeKalb County child molester are at stake in an appeal heard Wednesday by the Indiana Supreme Court.
Elmer Baker, 63, was convicted in 2008 of three counts of child molesting against three different young girls. It was the second trial for Baker after the jury in the first one failed to reach a verdict in 2007.
He received more than 100 years in prison for the crimes, including being a habitual offender, and his release date is currently set for 2061.
But defense attorney Latriealle Wheat argues that Bakers convictions should be reversed on two grounds.
She first said the prosecution should not have been allowed to amend the charges involving two of the girls after the first trial. Wheat said the amendment changed the time frame of the molesting from a two-month period to 34 months.
Prosecutors also added a third count of child molesting involving a third victim.
Wheat said state law prohibits amending charges less than 30 days before the commencement of trial and argued the prosecution should not have been allowed to amend the charges for the second trial because the deadline had already passed.
The law does not specifically address the prospect of a second trial after a hung verdict.
Justice Frank Sullivan Jr. said that prosecutors could have just dismissed the charges and filed them again.
But Justice Brent Dickson also noted that when a statute is ambiguous, courts are supposed to interpret the law in favor of the rights of the defendant.
Wheat also argued there was no evidence that the jury had reached unanimity on the convictions. The jury was indeed polled and all agreed Baker was guilty of child molesting.
But she cited previous court rulings that showed jurors must all agree on which specific offense made him guilty. In the Baker case, the girls testified about numerous assaults and there is no way to tell for which one he was found guilty, Wheat said.
Deputy Attorney General Ian McLean said the issue was not raised at trial by defense counsel and therefore cannot be used to challenge the convictions now.
To prevail he has to prove the jury could not have been unanimous and they cannot make that showing, he argued.
The court took the case under advisement and will rule in the coming months.