Blanton v. State
533 N.E.2d 190
Ind. Ct. App.
1989
Check Treatment

*1 control his unauthorized tionally exerted deprive the vehicle’s own- to

with the intent

er its use value.2 or AFFIRMED.

JUDGMENT J.,

RATLIFF, C.J., and

concur. (a/k/a BLANTON,

Reginald Venita Blanton) Appellant

(Defendant Below), Indiana, Appellee.

STATE

No. 4 9A02-8712-CR-518. Indiana, Appeals of

Court of District.

Second 31, 1989.

Jan. Rader, Indianapolis, ap-

Carolyn W. pellant. Pearson, Gen., Atty. Richard C.

Linley E. Gen., Webster, Deputy Indianapolis, Atty. appellee. SULLIVAN, Judge. Blanton,

Reginald Blanton, a/k/a Venita for Prostitution as a appeals his convictions Indecency, for Public as two a A misdemeanor.1 Because of 2. trol over ble possession or control. consent. unauthorized 43-4-2.5(b) course, "exert (1988). hicle sustain Arguably, used extent, possessing the vehicle. was a stolen vehicle when control over unauthorized. in IC Gibson's conviction of auto theft under the Gibson did that. IC there car which this same evidence 35-43-4-l(b)(l). if it is exerted without the owner’s 35-43-4-2.5(c) (c), is an theory particularly property" he Thus, to some overlap IC knows 35-43-4-l(c). Further, includes includes IC he between he when is person’s knew the 35-43-4-l(a) drove it. sufficient stolen considera- control receiving, acquiring driving is, con- ve- To as 1. Indiana Code 35-45-4-2 Repl.1985) provides in 1985) provides as follows: Indiana Code offense "A conduct; or for tution, "A form, public place: person person money genitals [2] Fondles, Performs, a is a class D prior class A misdemeanor. who or other who 35-45-4-l(a) intercourse or or offers knowingly another or offers or knowingly property pertinent part: (Burns or under this section.” if the (Burns Code Ed. agrees or intentionally, agrees deviate Code However, intentionally: person has Ed.RepI. fondle, prosti- sexual *2 prior cency charge convictions for the act of was couched terms of D felony genitals....” was a Class for which “FELLATIO fondle the for a term Blanton was sentenced of four Record at 4. Nevertheless the same alle- years. one-year gation sentence gravamen He received fellatio constitutes the upon charge the misdemeanor conviction to be of each and there was no evidence concurrently. fondling served other than of the act of fellatio improper upon itself. It was to sentence felony D Blanton attacks (1988)Ind., both convictions. Ellis v. State claiming sentence as excessive that 528 N.E.2d 60. offenses, regardless number, sex should regard necessary this it is to observe permitted not be to constitute the the Blockburger upon by relied a Class D enhance as well to dissent, Judge Buchanan’s is not the sole D felony the Class sentence from two to criterion which to multiple pun- assess years. four What would otherwise have jeopardy ishment—double considerations in been a Class misdemeanor became a State, cases such as this. supra; Ellis v. D because Blanton had two (1986) Ind., Hall v. State 493 N.E.2d 433. prior prostitution convictions. We reverse the conviction for Public In- two-year presump- Enhancement of the decency and order that it be set aside. We sentence for tive the Class to a affirm the conviction and the im- sentence four-year sentence result of other posed upon felony. the Class D aggravating circumstances. He had at prior prostitution three least other convic- ROBERTSON, J.,

tions in addition to the two used to concurs. elevate D felony. offense to a Class Addition- BUCHANAN, J., dissents with ally, rang- he had convictions for offenses separate opinion. Conduct, ing Forgery Disorderly Fleeing, Operator’s to No Judge, dissenting. License. sen- tencing the defendant the trial court also Again Jeop- we consider whether Double likely observed that Blanton was to commit ardy is a decisive factor in a prostitution again in the future. These involving multiple trial convictions. It is justify four-year factors enhanced sen- my conclusion that Double does (1983)Ind., tence. Jones v. State 456 N.E. prostitu- not bar Blanton’s convictions for 1025; Gary v. State 3d Dist.Ind. public tion and App., 400 N.E.2d 215. In Ohio v. Johnson Notwithstanding rejection our 81 L.Ed.2d argument concerning Blanton’s sentence that; Rehnquist observed enhancement, compelled to note jeopardy pro- “In contrast to the double public that the conviction for indecency trials, against multiple tection the final offense must be set aside. component jeopardy protec- of double — arguably against The act which could punishments consti- tion cumulative —is Indecency very designed tute Public was the act of to ensure that the prostitu- fellatio which was the basis of the discretion of courts is confined to the sure, charge. tion To be legislature. inde- limits established Be- Conduct, Deviate Sexual FELLATIO to-wit: conduct; (2) Engages in deviate sexual property, to-wit: FIFTEEN DOL- $15.00 ****** Currency....” LARS in United States Record genitals Fondles the of himself or an- at 4. other indecency count that: a' class A misde- knowingly, unlawfully "[Blanton] meanor.” public place, to-wit: 1500 NORTH CARROL- prostitution charge against Blanton was Conduct, engage in to- TON Deviate Sexual as follows: genitals FELLATIO of RICH- wit: fondle the unlawfully knowingly per- ‘‘[Blanton] ARD A. Record at 4. JOHNSON....” form with RICHARD A. JOHNSON an act of prescribe nothing rough power proxy analy- but for such cause the substantive since, punishments history], by asking and determine crimes sis [of legislature, question vested with include not, under element the a court other does ‘multiple’ is es- punishments are really asking mani- whether the legislative intent.” sentially one of intention fested an to serve two different *3 enacting in interests statutes.” (cita 499, 467 at 104 S.Ct. at 2540 Id. U.S. (1980), v. United 445 Whalen States U.S. omitted). v. Hunter tions Missouri 684, 713-14, 1432, 1449, 100 63 S.Ct. L.Ed. 359, 103 673, (1983), 74 L.Ed. 459 U.S. S.Ct. (Rehnquist, J., dissenting). 2d 715 535, Supreme developed the Court it in the con theme when held that same present case, In the Blanton was convict- in multiple punishments imposed text of felony, a class D ed of both trial, single “the public indecency, a class A misdemean- prevent does no more than or, single, public of fellatio for a act prescribing greater punishment court paying formed on a customer. Blanton’s legislature Id. 459 than the intended.” two convictions for a act thus invite 366, light 103 of U.S. at S.Ct. at 678. regarding legislature inquiry legislative multiple punish to impose intent permit punishments. multiple intended to perpe weapon ments for the use of a in the legislative policy appearing, No other we tration of a the Court reinstated only apply the Blockburger can test. degree robbery for first and for convictions statutes, Blanton’s actions violate two action, though the con armed even require proof both of which of an additional constituted offense” un victions the “same knowingly performed Blanton element. analysis. der traditional Id. conduct, i.e., fellatio, act of deviate sexual In the absence of intent to the money, supplying thus the evidentiary for contrary, presumed it must be prostitution. of elements IC 35-45-4-2 multiple not permit intend to (here elevated to a class D punishments for the It same Id. offense. convictions). The same act of thus essential to determine wheth- becomes performed deviate sexual conduct was proscribe offense. er two statutes the same public place, satisfying thus purpose discerning For the requirements proscribe the same payment money not 45-4-1. inevitably Blockburger led test. proof required fact (1932), v. 284 Blockburger United States nor was nature of the act 180, 306, L.Ed. cited U.S. required prove prostitution. order to Hunter, supra. in Missouri v. The Block- that, inescapable conclusion un- seems repeating: burger test bears Blockburger der the the two crimes requires “Each of the offenses created offense,” not constitute the “same appli- proof of a different element. The multiple punishments imposed here are is that cable rule where the same act prohibited not the Double of two transaction constitutes a violation There Clause. is an additional element for statutory provisions, distinct the test to of the offenses. each applied be to determine whether there ignore one, I fail to see how this court can offenses or are two is whether requires import of provision proof Blockburger of a fact clear Missouri the other these which does not.” Hunter. We are bound deci- Both should be af- sions. supra, at Blockburger, 284 U.S. firmed. context, at 182. In this the Blockbur S.Ct. ger statutory test is a rule of construction.

Albernaz v. United States

333, 101 S.Ct. 67 L.Ed.2d 275. As observed, Rehnquist “the has test

Blockburger itself could be viewed