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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: MICHAEL B. TROEMEL Lafayette, Indiana

FILED
Sep 09 2009, 10:20 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana MONIKA PREKOPA TALBOT Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
MICHAEL COX, Appellant- Defendant, vs. STATE OF INDIANA, Appellee- Plaintiff, ) ) ) ) ) ) ) ) )

No. 79A02-0903-CR-255

APPEAL FROM THE TIPPECANOE CIRCUIT COURT The Honorable Bruce Graham, Judge Pro Tempore Cause No. 79C01-0610-FA-18

September 9, 2009

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issue Following a bench trial and a remand by this court, Michael Cox appeals his convictions for child molesting and attempted child molesting, both Class A felonies. On appeal, Cox raises one issue, which we restate as whether his convictions violate the prohibition against double jeopardy as guaranteed by Article I, Section 14, of the Indiana Constitution. Concluding the law of the case doctrine bars Coxs double jeopardy

challenge, we affirm. Facts and Procedural History The facts leading to Coxs convictions are described as "heinous" in a previous appellate decision, Cox v. State, 2008 WL 2953736, at *1 (Ind. Ct. App., Aug. 4, 2008) ("Cox I"), but we wish to elaborate briefly to provide some context. On September 29, 2006, Cox was babysitting five-year-old Li.L., four-year-old Lo.L., and two-year-old M.L., at the childrens home in Tippecanoe County. When the childrens mother

returned home that afternoon, Lo.L. told her that Cox had touched him inappropriately. Several days later during a police interview, Cox stated that while he and Lo.L. were in the bathroom, he let Lo.L. touch his penis to help him masturbate and that he ejaculated in his hand and had Lo.L. taste his semen. Cox also stated that shortly after this incident, he touched Lo.L.s penis while the two were on a couch in the living room. Cox stated the two then returned to the bathroom, where he put his penis between Lo.L.s buttocks. Lo.L. also participated in a police interview, and his descriptions of these incidents were similar to Coxs, though less detailed; he stated that Cox touched the inside of his

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buttocks with a finger, that he pulled on Coxs penis, and that Cox made him "drink the white stuff." States Exhibit 2, at 11. On October 4, 2006, the State charged Cox with Count I, Class A felony child molesting; Count II, Class A felony attempted child molesting; and Count III, Class C felony child molesting. Counts I and II were charged under subsection (a) of the child molesting statute, while Count III was charged under subsection (b). See Ind. Code

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