Richardson v. State

рresent entry time of or arose after foreseeable within a warranty of habitabili- any nor taking possession, ty. does she have giving contention Scandia notice of about reasons, For these affirm we the trial

the defect. court. says her leasehold Johnson contract is SULLIVAN, SELBY, JJ, concur. writing, a governed so we look within if BOEHM, to see it extended her a J., result, document agreeing concurs warranty. There is no mention of a war- with Justice im- DICKSON that the law ranty habitability. writing Because the plies habitability, of a of warranty but con- expressly does show Scandia war- cluding that for remedies breach of the apartment’s habitability, warranty ranted John- are essentially along the (Second) can just son’s assertion mean lines indicated thing: by Restatement 10.2, impliedly § Property recovery per- Scandia Associates warranted and that for habitability injuries sonal apartment. requires showing negli- Johnson’s which, true, gence. pleads no if Johnson facts agreement tend to show that the formed DICKSON, dissents, J., believing that warranty gives Scandia of habitabil- implied an warranty habitability ity. plead Her failure factual basis premises leased residential should be rec- showing actually that Scandia extended ognized aas matter of law. warranty part of the agreement in a failure a valid

results to state claim warranty

that the was breached.13

VII. Conclusion

Indiana’s common law of. con

tract governing the landlord-tenant rela

tionship developed warranty has of hab warranty itability. universally The is not RICHARDSON, Robert II law, imposed by derives from but Defendant-Appellant, agreement between the tenant and the may express implied. landlord and or Indiana, Plaintiff-Appellee. STATE of implied warranty existence of an may proven through parties’ evidence No. 67S01-9910-CR-506. dealing performance course of Supreme of Indiana. ordinary practices evidence of in the trade. express, the warranty Where conse Oct. 1999. quential damages injury person to the may remedy. be available as a Where the

warranty however, implied-in-faet, con

sequential damages may not be awarded personal injury par

because is outside the contemplation. complaint

ties’ Johnson’s

does not aver tending facts show that apartment’s

Scandia warranted the habita

bility injury or that her reasonably Moreover, because injury Johnson's claim is ical are not available on claim for implied warranty theory, based on an way implied warranty habitability, breach of requests she could receive the she relief entitling Johnson cannot state a claim her to through consequential damages. would be relief. damages consequential phys- Inasmuch as Ap The Constitution.

peals affirmed the convictions. Richard (Ind.Ct.App. 687 N.E.2d 241 son 1997). grant transfer. We Prohibitions against jeop Defender of Carpenter, K. Public Susan ardy protect integrity jury acquit Lewis, Indiana, Public Deputy L. Gregory defendants, finality tals and the interest of Indiana, Attorneys Indianapolis, Defender against oppressive shield excessive and Appellant. prosecutions, ensure defendants Modisett, Attorney Jeffrey A. General anxiety expense will not undergo Indiana, Davis, Attorney Deputy Geoff repeated prosecution and the increasеd General, Indiana, Attorneys Indianapolis, probability upon reprosecut of conviction Appellee. Matz, Note, _ ion.3 Robert Dual Sover eignty Jeopardy and the Double Clause: PETITION TO TRANSFER ON Convict, Try, Try at First You Don’t If Again, 24 Fordham Urb. 356-57 L.J. DICKSON, J. (1997) (citations omitted). While double decision, today’s we address the With jeopardy provisions are found in both the Jeopardy the Indiana Double application of and the Indiana Consti U.S. Constitution Clause, I, 14 of the Indiana Article Section tution, the defendant in this case does not Constitution, from its federal as distinct allege any violation federal Double Fifth Amendment to the counterpart Rather, he Jeopardy Clause.4 claims the United States Constitution. protection of the Indiana Double Robert Rich- defendant-appellant, Clause. ardson, II, robbery as a was convicted of analysis application A and of double felony1 battery and as a class The class C a jeopardy provisions proven have to be misdemeanor.2 The defendant was sen- judicial challenge. eight years imprisonment significant for the Commenta- tenced jeopardy provisions, robbery year battery. and one for the tors note double simple, and consecutively appear straightforward run for a which sentences were to extremely apply difficult to years imprisonment. ap- nine On are often total of underlying jurisprudence enormously the he that the convictions vio- peal, contends Recently, in a challenging complex.5 of the Jeopardy late the Double Clause (Dep’t lowing previous civil 1. 35-42-5-1. Ind.Code§ of Ranch, U.S. Revenue Montana v. Kurth 511 of Ind.Code§ 2. 1937, 35-42-2-1. 767, (1994)); 767 114 S.Ct. 128 L.Ed.2d (6) reprosecution defendant in limited of a against jeopardy protect 3. Prohibitions double a mistrial has been de- circumstances after (1) against: reprosecution for an offense after 497, (Arizona Washington, 434 U.S. v. clared already convicted of the a defendant has been 824, (1978); State v. 98 S.Ct. 54 L.Ed.2d 717 (North previous prosecution offense (1873)). Leunig, 42 Ind. 541 Pearce, 711, 89 S.Ct. Carolina v. 2072, 395 U.S. (1969); Trittipo v. 23 L.Ed.2d 656 Jeopardy pro- Clause 4. The federal Double (1859)); (2) reprosecution of a 13 Ind. 360 part: any person be sub- vides in "nor shall (Pearce; acquittal v. defendant after an State put ject twice for the same offense to be Davis, 1837)); (Ind. (3) multiple 4 Blackf. 345 Const, amend. life or limb." U.S. single punishments the same offense in a V. 476, (Pearce; trial Kokenes v. 213 Ind. (1938)); reprosecution of a 13 N.E.2d 524 States, See, e.g., re v. United defendant after the conviction has been Albernaz 1137, 1144, 333, 343, (Burks S.Ct. 67 L.Ed.2d evidence v. Unit 101 versed for insufficient 275, States, (1981) ("[T]he the decisional law in U.S. 284 ed (1978)); (5) Sargasso jeopardy] reprosecution area is veritable [double L.Ed.2d 1 criminal challenge the could not fail to most limited fol- Sea which defendant in circumstances decisions, Gibson, ing this Court v. acknowl State series (1871)). our during decisions edged some Because the “intent of the fram- years past twenty misapplied the federal paramount ers of the Constitution is jurisprudence. See Grin determining meaning provision,” the of a stead, State, (Ind.1997); N.E.2d Capital Improve- Eakin v. ex rel. State (Ind.1997), 684 N.E.2d 466 Games Managers, ment Bd. grounds, 690 N.E.2d on other (Ind.1985), this Court will consider “the modified 211 (Ind.1997). not, however, We did ad which purpose adoption,” induced the id. Clapse Jeopardy the.Double dress whether “in order may that we ascertain provides identi of the Indiana Constitution particular provision what the constitutional protections cal than its federal or different designed prevent,” Northern Ind. with, Today, opinions our counterpart.6 Fin., Bank & Trust Co. v. State Bd. cases, companion case and we ad its (Ind.1983). N.E.2d dress this issue. When this State was founded in The'Double Clause of the adopted framers ratifiers the Indiana Constitution that, jeopardy provision provided “in Questions arising under prosecutions, all criminal the accused ... Indiana Constitution are be resolved put shall not -... be in jeopardy twice “examining language of the text CONST, 1, § the same offence.” art history surrounding its context of (1816). However, ability our to discern ratification, drafting purpose the framers’ intentions is limited because constitution, and structure of our case law journal of the 1816 Constitutional Con- interpreting specific provisions.” report delegates’ vention does not re- Gaming Moseley, Comm’n procedural marks or disclose in- matters (Ind.1994). construing formative to the issue.7 “ Constitution, ‘a look to court should times, present When version of our and examine the history adopted orig Constitution was things existing state of constitu when jeopardy provision inal double any was framed and part tion or thereof I, law, slightly modified. Article adopted, to ascertain the old the mis Section ” chief, provides in remedy.’ Bayh part: person put and the v. Sonnen “No shall be (Ind.1991) 398, burg, (quot- jeopardy 573 N.E.2d 412 twice for the same offense.”8 intrepid judicial navigator.”); following United States v. Footnote 7 in included the Games sentence; Larkin, 1360, (5th Cir.1979) "However, 1361 605 F.2d unfortunate the defen- (“This involving principles case the arcane of provide authority, dant does not Indiana jeopardy estoppel Court, double and collateral is not establishing we find from none this an bright-letter susceptible of law or black-letter independent jeopardy protection state double law; gray, dimly the areas are most often upon analysis based an the of Indiana Consti- say, entering to be seen. Needless one this tution.” 684 N.E.2d at 473 n. 7. As discussed trepidation.”); field must do so with Akhil separate opinion below and in the of Justice Amar, Jeopardy Reed Double Law Made Sim- Boehm, early the cases of Court exten- this 1807, (1997) (“Modern ple, 106 Yale LJ. 1807 sively application discuss the of Supreme Court case law is full of double Jeopardy Double Clause. Footnоte 7 of talk.”); Richardson, jeopardy double Eli J. proposition Games should not be read for the Eliminating Double-Talk the Law from of independent jeopardy that there is no double 119, Jeopardy, Double 22 Fla. 119 St. U.L.Rev. protection under the Indiana Constitution. confusion, however, (1994) ("A great deal of renowned, appealing, underlies this 7. See Journal of the Convention of the Indiana seemingly self-explanatory constitutional Mag. reprinted in 61 Ind. of Hist. 89- Territory, guarantee.”). (1965). 155 Grinstead, 485-86; 6. See 684 N.E.2d at Games, Discussing Jeopardy 8. our 684 N.E.2d at 473 7. state Double n. See also Clause, State, (Ind. Gillespie Valentin v. 688 N.E.2d 413 this Court in v. 168 1997) (1907), (saving day”). this issue "for another 80 N.E. 829 noted that a

39 English and ratifiers derived from debate framers adopted with no The was provision principles. jeopardy modified to date. The common law double not been and has “ (1879) Elder, con of constitutional See State 65 Ind. 284 principle ‘cardinal (“That person put consid in jeopardy are no shall be that words [is] struction ” ordinary their sense.’ offence is a used in twice for same common- ered as (Ind. which, believe, 929 law we principle, incorpo- Ajabu 1998) Tucker v. (quoting rated into constitution each of (1941)). States.”). 614, 670, Con compose which the United States adoption of the temporaneous with the understanding the constitu- With the Constitution, “offense” defined against tional protection “transgression of law.” a “crime” or of the understood” and “most “least Noah frequently litigated provisions of the Bill of THE An DICTIONARY OF WEBSTER, AMERICAN (1856). This defini States, English Language Rights,” Whalen United however, “offense,” explain does tion of 684, 699, L.Ed.2d S.Ct. offense,” which has meaning “same (1980) J., (Rehnquist, 728-29 dissent- not surprising term art. It is become a always accepted ing), has been “[i]t that, decades, commentators and “[f]or judicial technique to have resort to the of attempted to define which judges have common law in order ascertain the true same, problem con and the are clause,” fenses of the double meaning of the to be the focus of much tinues History Jeopar- Jay Sigler, A. A Double scholarly criticism of contemporary dy, Legal Am. J. Hist. King, Por Nancy doctrine.” J. (hereinafter Thus, History). un- Sigler, Lim Punishment: Constitutional tioning derstanding Jeopardy our Double Clause Penalties, its and Excessive on Successive beyond its requires go that we text. The 101, 129 n. U. determining helpful common law is Pa. L.Rev. understanding the term “same framers’ the lack of discussion at Despite offense.”. regarding 1850-51 Convention Clause, jeopardy princi- trace double Scholars Indiana’s Double Greek,9 Roman,10and to ancient ples the intent of the back recognized has (J. state, thing 1 Demosthenes “provision of a else the sort.” in a former constitution 1962). interpreted by Vince trans. has or construed which been thereof, highest and thereafter is court Digest pronounced that of Justinian incorporated readopted into a new or "[tjhe governor permit same should not ... later constitution was intended person again of a crime of accused later and ratifiers of the new or con framers Dig. acquitted.” he has been provision should have and Just stitution in, 48.2.7, reprinted Juris Civilis Corpus interpretation or con be accorded the Paulus, 1973). (A. leading Ro- Scott trans. placed upon it struction which jurist, explaining the man duties readoption.” Id. highest prior to court its de- 310-11, proconsul, Senate "[t]he recorded Unfortunately, only 80 N.E. at 833. no can be of the same creed that one accused reported five decisions between 1817 and Dig. 48.2.14, under several laws.” crime jeopardy, ad and none 1850 involved double Just. in, 20. The reprinted Corpus the in the case at bar. See dressed situation Juris Civilis pro delic- Johnson, 1847); puniré "Nemo bis uno (Ind. maxim debet 8 Blackf. State ” in A.D. and (Ind. originates to in Roman law 289 Weinzorpflin 7 Blackf. 186 "[ajnyone (Ind. who has been declares 1844); Davis v. 6 Blackf. 494 crime, again Mead, (Ind. charged public with a cannot be 1843); State v. Blackf. 309 by person. Davis, (Ind. of the crime another 1837); accused If, however, same State v. Blackf. 345 arise from the several offences 1837). act, only of complaint made and them, Demosthenes, an of it is forbidden for accusation who not Athenian statesman 9. Greece, other individu- century of be filed some B.C. wrote: another lived in fourth Emperors al.” of Same to be Statement the laws forbid the same man "Now issue, 289), S.P. (Sept. in 14 Honoratus twice be it civil Scott, tried on (1932) (from claim, action, of the any- Book IX scrutiny, a contested or Civil Law began using “jeopardy” some historians phrase sources. While stone biblical11 often, in jeopardy protections Eng- noting plea more that “the of autre- double trace dispute Henry acquit, between II King acquittal, to the or former land fois Archbishop grounded Thomas á Becket in on this maxim of and universal 1176,12 English England treatise on the common that man the earliest law of no is to law, life, published brought in the late of jeopardy common twelfth into his more once, directly not century, did mention double than for the same offence.” Wil- Sigler, History, su- jeopardy protections. Blacestone, liam on the Commentaries England (referring to Ranulf pra, de (1769). Glan- of Laws *329 ville, A on the Laws AND Treatise Customs of As further indicator the framers’ EnglaND Kingdom Composed of of understanding of common law dou- King Henry Second). the Time of early jeopardy, ble we note that the Amer- English reporters case between 1290 departed ican respects colonies some ‘jeopardy’ only word occurs and “the law, English recognizing from common involving reports eleven times in criminal jeopardy protections. broader double For cases, of and in three these instances against example, jeopardy the bar double it that a used statement man’s depended for Lord Coke thе reasons ‘put jeopardy’ twice life shall for prior acquittal,15 early whereas Kirk, Marion “Jeop- the same offense.” S. American double jeopardy law barred re- ardy” During Period Year any trial for prior acquittal. Blackstone Books, 604-05 U. Pa. L.Rev. described jeopardy protections double as (footnotes omitted). applying only prosecu- felony criminal 1700s, During tions, early the 1600s whereas jeop- American double jeopardy protections protections were further exam- ardy applied to all criminal prosecutions. English ined Lord Edward Coke William Under common law, only found jeopardy Blackstone.13 Lord Coke dou- did not until a attach verdict pleas acquittal actually rendered, ble the three or protections thus (former acquit acquittal), allowing au- following juries retrials hung or autrefois (former conviction), mistrials, convict for- whereas early American double trefois pardon. supra, Sigler, History, mer jeopardy law barred reprosecution cer- 1700s, By plea hung 296. the late a fourth tain jury mistrial circumstances. Further, recognized. attaint14 was also early English autrefois Coke, Id. after Writing years protections Black- were developed the context Justinian). concept gave Code The editor notes that impor- ified it the first salutary equitable "[t]his rule is undoubt- subsequently tance which it attained in the edly original source whence is derived the Sigler, History, United supra, States.” at 294. provision organic prohibiting any law of our person put ‘for the same offence to be twice "[fjormer attaint is the forfeiture Autrefois life or as set forth in limb/ property government.” Gary Di- V of the [Amendment] Constitution.” Id. at Bianco, Note, Truly Constitutional? The n. 1. American Double Clause and Its Aus- Analogues, tralian 33 Am.Crim. L.Rev. A.D., interpreted 11. In 391 Saint Jerome Testament, n. 22 verse from the Old part which reads in vengeance that "he will not take twice on foes,” (R.S.V.), establishing his Nahum 1:9 example, acquittal upon 15. For based self- principle judges twice "God prosecutions, a bar defense was to all future the same L. offence.” Martin Friedland, acquittals grounds Dou- but on other would not bar 5 Jeopardy ble prosecutions. future See A. Sigler, Jay Double Jeopardy: Development The of a and Social 12. See Id. (1969) (citing Legal Policy 18 Coke, Edward important 13. "The most individuals The Third Part Institutes of the Laws of 1669)). (4th England 213 ed. history jeopardy undoubtedly of double are Coke and Blackstone. These two writers clar-

41 Cantrall, L. dif- be fundamental.” Charles procedure and practice criminal law of Jeopardy Multiple and Punish- which and contin- Double from that existed ferent An and ment: Historical Constitutional country. in this When Coke to exist ues (1983).17 735, 24 prohibition Analysis, S. L.J. 765 jeopardy double formulated the Tex. Hampshire Although for the same New first prosecutions against seсond (and offense, only) include jeopardy the same num- state to double there did exist protections in constitution to prior as we have its state closely of related offenses ber noted, Constitution,18 the U.S. has the ratification of today. As one commentator 766, arson, every has among rape, id. at almost state now distinguished “the law ‘intimidating protection against of murder, type included some and but between constitution, ‘interfering jeopardy in its state voting’ and any person from ” Simon, Simon, 307-08; Larry History, supra, Sigler, his to vote.’ right 262, Note, at 262. supra, 75 Yale Jeopardy, Twice in L.J. (1965).16 III Henry “At time of

279 developed applied As states and their In only eleven felonies. Coke’s there were respective principles, thirty.” had Id. the number risen time divergent analyses appeared for determin- By n. the time the U.S. Consti- at 279 75. (1) whether the offenses are the same: ing ratified, dif- England had 160 tution was (2) the approach; the behavioral evi- felonies. Id. ferent Id. dentiary approach. at 269-70. The .-Also, approach focuses on the defen- American colonies and states “behavioral early prosecu- conduct rather than on the jeopardy principles dant’s embodied double laws, Eng- ap- evidence. which use this statutory organic unlike tor’s Courts act, transaction, or intent Colony proach adopt In of Massa- an Bay land. omitted). Liberties, This (emphasis of Id. Body test.” chusetts drafted (also referred to as adoption approach of the Massachu- behavioral led to the ap- or conduct Bay fact that the the same transaction same Code of 1648. “The setts rejected early by protection proach) was Colony explicitly reduced double Elder, Supreme beyond Court State expanded a written form and it Indiana (1879).19 Elder guarantee Ind. The common law demonstrates of that two lines Double regarded concept that the noted colonists sig- Rights, commentary A Documentary History This has been accorded 16. Bill of Klein, (1971)). R. regard. nificant See Susan Civil Jeopardy, 82 Iowa Rem Double Forfeiture (1996) (noting this 242 n. tried, L.Rev. subject be liable to be after 18. "No shall commentary article in "remains the seminal acquittal, or offense.” for the same crime area”). proce- In his on criminal treatise pt. art. XVI. Const, N.H. dure, notes, Supreme "The Joshua Dressier saying’ Court’s about the double 'favorite rejection the same 19. This transaction/con jeopardy con- jeopardy clause”—that double recognized test in has been con duct against protections sists three successive sistently See Ford v. since 1879. acquittal, prose- successive after 516, 520-21, Ind. ("If conviction, multiple punish- cution after claiming appellant 'same that the trans "adopted [this] ment —was from law review applied, test test action’ should Understanding article.” Dressier, Joshua law].”) repudiated case expressly [Indiana (1991) (citing Peter Criminal Procedure Elder); Foran v. (citing Westen, Jeopardy: Double The Three Faces of (1924) (noting that the N.E. Appeals Reflecting Government Criminal arguing "that the offenses defendant was Sentences, (1980)). 78 Mich. L.Rev. transaction; charged grew ... out juris quotes applied the test in some [he] twice 42 stated: “No man shall be Section as ‘the transaction dictions ... known same and the sentenced Civil Justice one Crime, offence, repudiated expressly been Trespasse.” test.’ This test has Cant- However, that, rall, state.”). (citing we note supra, n. in this at 764 Massachu- Liberties, prior the Court Body Copie A isolated case setts 1641: employed what seems to New without discussion the Massachusetts Colonie in Liberties of to find double England, reprinted in a behavioral test Schwartz, 1 Bernard 42 The English common law case of throughout appeared interpretation

Clause Abbot, 2 King v. & Leach line that state double Vandercomb held nation. One (1796). court Eng. 455 That ex- “a 168 provide more liberal jeopardy clauses “if crimes are plained at the test as follows: the accused.” Id. ... in favor of rule will not that evidence of the one rule was the same so distinct liberal This more 284. other, test, it is as inconsistent with support the prohibited which transaction/conduct reason, repugnant as it is to the rules of out of the arising multiple prosecutions facts, law, far the same they may say they are so although state of “same be a bar acquittal that an shall Id. at 285. Un- offences.” include several for the other.” Id. at interpretation, prosecution to a line of other der the However, American Eng. 168 at 460.20 jeopar- state double evidentiary approach, centuries jurisprudence in the last two more than the com- “mean no dy clauses ar- single, generally accepted provides at 284. After re- no Id. principle.” mon-law test. Rath- ticulation of the same evidence court decisions and viewing er, three the test has assumed other state and federal from decisions test,”21 courts, rejected “required the more formulations: a evidence the Elder test,”22 test, “alleged evidence and an “actu- adopt that it could “not an stating liberal Simon, States,' at supra, al evidence test.”23 269- rule held in some State, case, not, Haynes also v. 249 Ga. any be convicted 270. See accused can (1989) (dis- they 188-90 facts when 288 S.E.2d upon once the same but ” these three tests extensive de- cussing Id. at constitute different offences.... tail). 286-87. (also by discerning approach required In evidentiary referred approach

The test) Constitution, we note that apparent the Indiana first evidence to as the same (12 Pick.) Roby, Mass. for the mur Commonwealth v. 496, two сonvictions violated thereafter, (1832). persons Soon that court because "the ders of two different test, holding convic persons "[a] restricted the killing two or more acquittal upon no v. tion or one indictment is crime....” Clem act constitutes but one (1873). subsequent based its bar to a conviction and sentence Clem 42 Ind. another, Damon, (Vt. required Tyl. upon unless the evidence decision on State 1803), support upon one of them would Supreme Court conviction in which the Vermont " that, ‘wound have been sufficient to warrant a conviction when the defendant had held Commonwealth, Morey affray, upon persons at the the other.” ed in the same time, (1871). 108 Mass. Present federal and with same instant of stroke,’ Clem, ” Morey, (quoting jurisprudence upon at 429 Da is based Ind. offense, stated, mon, 390), single may "A act be an offense Tyl. it was the same had at against ... if each re not be held to an two statutes statute and the defendant could Clem, offense, quires proof an additional fact which the again swer for the same Damon, 390-91). Blockburger v. (citing Tyl. In a other does not....” United at 430 299, 304, 180, 182, States, decision, Court reviewed the Clem later Morey, (quoting applied 76 L.Ed. that it to circum decision and found 434) added). (emphasis single Mass. at was but one act: stances in which there that, Cfem[], person if a as- it is held required evidence test determines 21. The single persons with a and kills two saults shot, based on whether the offenses are the same single an instru- blow of Simon, analysis supra, of the statute. ment, injury to both results from so that 269. act, against it is one offense one indivisible having mur- conviction alleged evidence test "finds offenses dered one will bar a similarity be- the same if there is sufficient other. murder of the allegations tween the of the two indictments.” 577, 581, Hughes Id. apply actual evidence test assesses whether country to 23. The 20.The first court in this on "the evi- approach offenses are the same based was the Vandercomb same evidence at 270. presented dence at the two trials.” Id. Supreme Judicial Court Massachusetts

43 1930,25 emerge until interpret- of this Court after and because “[e]arly decisions ... distinguished have been accord- this Court has not between ing our Constitution superseding precedential jeopardy protections double strong multiple ed 72, Day, v. value.” Collins punishment 644 N.E.2d 76 cases and those in subsequent (Ind.1994).24 seeking In inter- cases. proper Our double Clause, law pretation Jeopardy appears of our Double case to fall into five different involving subsequent subsequent prosecution categories we draw from cases —those conviction;26 following because a mistrial or the prosecutions defendant;27 multiple punishments discharge jury cases did claims State, (1881); Jeopardy 24. did Halloran v. The federal Double Clause 80 Ind. 586 David State, (1885); apply prosecutions v. to criminal in state son 99 Ind. 366 Boswell v. date, State, 47, (1887); protec until Before this 111 Ind. 11 N.E. 788 Pehl courts 1969. State, 131, against man v. 115 Ind. 17 270 tion existed un N.E. (1888); State, 501, 1969, Freeman v. Ind. 119 21 der state constitutions. the U.S. State, (1889); Ledgerwood N.E. 1101 applied incorpo v. 134 Supreme Court its "selective 81, Reed, (1893); Ind. 33 N.E. 631 State v. ration” doctrine and determined that the fed 588, (1907); 168 Ind. 81 N.E. 571 Wood thereafter eral Double Clause was worth, 582, 86; 185 Ind. 114 N.E. v. Anderson applicable binding upon to and the states State, 94, (1918); 187 Ind. N.E. 118 567 Heier under the Due Process Clause of the Four State, 410, (1921); v. 191 Ind. 133 N.E. 200 Maryland, v. teenth Amendment. Benton 395 State, ‍‌‌​‌​‌‌​‌​‌‌‌‌‌‌‌​​​​​‌​‌​‌​​​‌​​​‌​​‌‌​​‌‌‌‌‌​‌‍431, 784, 2056, Cambron v. 191 Ind. 133 N.E. 498 U.S. 23 L.Ed.2d 707 (1922); City Indianapolis, Thomas v. 195 (1969). recently Ajabu, As we noted in 440, State, (1924); Alyea Ind. 145 N.E. 550 v. construing Indiana case law an Indiana con 364, 801, 198 Ind. 152 N.E. 153 N.E. 775 provision prior stitutional to the date of such (1926); State, 370, Durke v. 204 Ind. 183 N.E. significance incorporation great selective is of (1932); State, 321, 97 Arrol v. 207 Ind. 192 determining "in whether the Indiana Consti State, 593, (1934); N.E. 440 Hanks v. 225 Ind. tution demands more than its counter federal Ford, 516, (1948); 76 N.E.2d 702 229 Ind. 98 part.” Ajabu, (citing 693 N.E.2d 929 Peter 655, denied, 873, State, 528, N.E.2d 72 (Ind. cert. son v. 674 N.E.2d 533-34 116, 656; State, S.Ct. State, 536, 96 L.Ed. Gullett v. 233 1996); 644 Moran v. 540 6, (1953). Ind. 116 N.E.2d 234 (Ind.1994)). State, (Ind. 1843); v. 6 27. Davis Blackf. 494 State, 417, 25. Pivak v. 202 Ind. 175 N.E. 278 State, (Ind. Weinzorpflin v. 7 Blackf. 186 State, 583, (1931); Lawson v. 202 Ind. 177 State, 1844); (1854); Wright v. 5 Ind. 290 State, (1931); N.E. 266 476, Kokenes v. 213 Ind. State, (1854); Wright Ind. v. v. 5 527 Miller (1938); State, 13 N.E.2d 524 Carter v. State, (1856), part 8 overruled in Ind. 325 205, (1951); 229 Ind. 96 N.E.2d 273 Havener Walker, (1866); Morgan v. 26 Ind. v. State State, 346 State, 148, (1955); v. 234 Ind. 125 N.E.2d 25 Wamire, (1859); 16 13 Ind. 215 State v. 598, State, Woods v. 234 Ind. 130 N.E.2d 139 (1861); Sumpter Ind. 357 State ex rel. v. Barb- State, 439, (1955); v. Mims 236 Ind. 140 State, our, (1861); Rulo v. 17 Ind. 526 19 Ind. State, (1957); Tungate N.E.2d 878 48, v. 238 Ind. Walker, 346; (1862); v. 298 26 Ind. State (1958), overruling recog- 147 N.E.2d 232 State, Nelson, (1866); 26 Ind. 366 v. State, 306, Shaffer Ind.App. Elmore v. 176 nized State, (1866); 27 Ind. 131 Bescher v. 32 Ind. (1978); State, 375 N.E.2d Dunkle v. 241 660 (1870); Leunig, v. 42 Ind. 541 480 State 548, (1961); Ind. Todd, 173 N.E.2d 657 Dowd v. State, (1873); (1874); Kingen v. 46 Ind. 132 232, (1962); 243 4 Ind. State, (1882); Weaverv. 83 289 Maden v. Ind. State, 1, v. 248 Sutton Ind. 221 N.E.2d 430 Emmons, (1882), part Ind. 331 overruled 83 457, by Gillespie Rump, v. 163 Ind. 72 N.E. State, (1904); State, (1855); v. 6 351 v. 85 Ind. 538 Ambrose Ind. State 138 Fowler Moore, State, State, (1855); (1882); (1884); Ind. v. 6 Ind. 436 Bruce v. 9 Doles v. 97 555 State, State, (1857); (1884); Hensley Trittipo 244 v. Ind. 206 v. 13 360 Adams v. 99 Ind. 587, Ind. State, State, (1886); (1859); (1859); Wininger v. 540 107 Ind. 8 N.E. 692 State 13 Ind. Leach, State, (1860); (1889); v. 14 Ind. 327 v. v. 120 Ind. N.E. 111 Jackson Fritz 829; State, (1872), reasoning Gillespie, N.E. Blocher 40 Ind. 18 overruled 168 Ind. State, State, (1912); in Woodworth v. 185 Ind. 114 N.E. v. 177 Ind. N.E. State, (1916); Clem, 420; 42 Ind. Brinkman v. Harlan v. 190 Ind. 130 N.E. 413 State, State, (1877); (1921); Hattabough, Mood v. 194 Ind. 142 N.E. Ind. 76 State v. State, (1879); (1924); 66 Ind. 223 Greenwood v. Mann 205 Ind. (1933); (1878); Bryant 72 Ind. 400 N.E. State, 187 N.E. 343 Foreman Ind. (1880); (1938); (1881); 14 N.E.2d 546 Jenkins v. decisions of some of Noting and a “conflict the acquittal;29 appeal;28 successful states,” Wininger con- the sister civil action.30 was vio- sidered whether double jurisprudence demonstrates earliest Our rule, lated, prose- holding that “the true any not limit itself to did that this Court character, is, for offenses of this cutions test, of the evidence single formulation riot con- test,” gravamen that where the a “re- “actual evidence such as an test,” evi- in the commission of an assault and “alleged or an sists evidence quired test,” assault, determining then, whether the battery, a conviction for that dence same. In the cases most c., offenses were the to a for a prosecution & would be a bar (1859 1884) contemporaneous However, at 541. “where riot....” Id. Constitution, 1851 adoption of the battery the commission of an assault and test or identify singular Court did riot, merely incidental to the then a was inquiry to the the double restrict for the one would not bar a conviction statutory charging elements or instru- Thus, Id. prosecution for the other....” ments, all of the but instead considered be, would is the one act quеstion “[t]he available to and evidence circumstances Looking in the other?”31 Id. included whether reviewing court to determine trial, the evidence introduced at the Court offenses were the same. conviction, finding the second reversed our After the ratification of Constitution Jeopardy that the Double Clause vio- 1851, Supreme the Indiana Court con- gravamen lated because “the of the riot whether the convictions were the sidered battery.” the assault Id. State, Wininger v. 13 “same offense” State, (1877), In Brinkman v. 57 Ind. 76 (1859). Wininger, the defen- Ind. 540 defendant was indicted twice for sell- convicted of assault and dant was first day. a minor on the same ing alcohol to the crime of battery and then tried for riot, on the first out of the same event. He was tried and convicted arising each Warner, Elder, State, 273, (1860); 15 N.E.2d 14 Ind. 572 State v. 65

Armentrout v. 214 Ind. State, 217, State, (1879); (1938); Burk v. 81 Ind. 128 Holt v. 223 Ind. 59 Ind. 282 (1881); 363 State, Soucie, (1882); (1945); v. 85 Ind. 553 N.E.2d 563 State v. 234 Ind. Smith 98, 343, (1955); State, Taylor, Brackney 123 N.E.2d 888 State v. v. 182 Ind. 106 N.E. 532 263, 632, State, (1956); (1914); John- v. 188 Ind. 235 Ind. 137 N.E.2d 537 Barker 120 State, 79, Foran, 55, (1918); 246 181 son v. 252 Ind. N.E.2d N.E. 593 195 Ind. 144 State, 672, (1969); Majors v. 252 Ind. 251 N.E. 529. (1969). N.E.2d 571 Stevens, 55, Scobey 30. State ex rel. v. 103 Ind. Fritz, State, (1860); Joy v. 14 Ind. 139 40 (1885); Burgh v. ex rel. N.E. 214 State 18; (1874); Bradley, parte 48 Ind. 548 Ind. Ex 132, McCormick, (1886); 108 Ind. 9 N.E. 75 State, (1875); Mills v. 52 Ind. 187 State v. Schoonover, v. State ex rel. Beedle Ind. 395, (1902); Balsley, Duensing 159 Ind. 65 N.E. 185 526, (1893); State ex rel. 35 N.E. 119 397, Lopez Killigrew, ex rel. v. 202 Ind. State 168, (1895). Roby, 142 Ind. 41 N.E. 145 v. State, (1931); Jacoby v. Ind. 174 N.E. 808 49, State, (1936); 199 N.E. 563 McDowell v. provided following 31. The Court illustra- (1947); 76 N.E.2d v. Slack of a which would not tion similar scenario (1951), Grigsby, 229 Ind. 97 N.E.2d 145 the Double Clause: violate Gurecki, v. in State ‍‌‌​‌​‌‌​‌​‌‌‌‌‌‌‌​​​​​‌​‌​‌​​​‌​​​‌​​‌‌​​‌‌‌‌‌​‌‍233 Ind. criticized (1954); [persons] riotously 119 N.E.2d 895 Todd v. should [WJhere several (1951), and, house, attempt Ind. Gurecki, N.E.2d 45 tear down a in that criticized 895; house, 233 Ind. Gu attempt, in the the owner recki, 895; thereof, assaulted, 233 Ind. 119 N.E.2d Cichos v. . defense should be .. be, 246 Ind. purposed and main offense would (1965); house, Layton N.E.2d 363 v. the demolition of the but at the same might, perpetration 240 N.E.2d 489 parties time the offense, other unlawful acts commit Mead, (Ind. 1837); 29. State which a could be main- Blackf. 309 tained, Davis, (Ind. 1837); State v. 4 Blackf. 345 State as well as for the riot. Johnson, (Ind.1847); Blackf. Id. State indictment, and then tried convicted viction for a second assault and battery Addressing on the second indictment. because he had already been convicted of claim, defendant’s double battery assault and upon a different victim to the testimony Court looked introduced arising out of the fight. The defen- at the first trial which established that the that, dant argued regardless many of “how defendant had sold alcohol twice to the soever of assaults and batteries he may minor, once in morning and once have during period committed of ex- Again, reciting afternoon. without any ball, citement at they the all amounted in test, particular the Court looked to the ” law to but one offence.... Id. at 253. testimony introduced at the second trial “test,” Without reciting particular the it, too, and found that established that the Court looked to the testimony introduced defendant had sold alcohol twice to the and, at the first trial emphasizing the evi- minor, morning same once in the and once presented, dence Howеver, found that the the afternoon. defendant the Court not- nothing ed that in the record of either the committed two assaults and bat- first or second trial identified whether the against teries two different arising victims convictions were for morning the sale or fight. from the same Thus, Id. at 253-54. sale, the afternoon and that the indict- no double violation occurred. merely ments gave the date but did not Elder, In (1879), State v. 65 Ind. 282 the differentiate between day the time of the defendant was indicted for three counts of crimes occurred. The found Court that a because, required new trial was “by attempting produce the a miscarriage upon mode, adopted by the prosecution, giv- (1) by: Elizabeth Bradburn inserting an ing evidence as to both sales on each in- (2) uterus; instrument into her using the dictment, may both convictions have been (3) another; hand. of administering secured for the same selling.” Id. at 79. large quantity of medicine. Before the problematic Court found this because trial, case went to the defendant filed an trial, jury the in the first “having the answer asserting alleged evidence as to both sales before bar, affirmative arguing previ- that he had them, morning [could found that have] [the ously acquitted prosecution been in a established, satisfactorily sale] was not but charging child, the murder of “a certain ” the [afternoon was.... Id. sale] unnamed, Bradburn, by one Elizabeth Then, in the second trial: ... inserting [an] instrument into the uter- the alleged evidence as to both sales was Bradburn, us of the said Elizabeth given, and the court was satisfied that fetus, passing it about the thereby causing sale], morning regarded [the as not the miscarriage of the said Elizabeth proved by trial], jury [in first Bradburn, and the death of said child.” trial], was not proved the second [in but Id. 283-84. The trial court found for was, that the [afternoon sale] and con- the defendant and dismissed the second

victed the defendant [of the afternoon sale]; justified the conviction Writing would be indictment. for a unanimous by State, evidence and the Court, reversed, Judge Biddle32 articulat- defendant be twice convicted for the ing the test as follows: if the facts show same [the offence afternoon sale]. offenses, two or more but “the lesser of- Id. fence necessarily is not involved in the State, greater, necessary

In and when the facts Greenwood v. 64 Ind. 250 (1878), the defendant challenged his con- convict on second would not Judge (1851). Horace P. Judge Biddle was also Biddle also Constitution delegates to the 1851 Constitutional Conven- joined opinions the aforementioned in Green adopted tion our state Double State, (1878), wood v. Brink Clause. Journal the Convention man v. 57 Ind. 76 People of the State to Amend the first,” reciting at 134.

necessarily any have convicted offered.” Id. Without test, particular it that “[t]he con- held evidence prevent will not fairly shows that the for which the offence victions, though “the offenсes were even appellant first [at was convicted trial] at the same time and committed both is the same as described indict- finding act.” Id. at 285. the same ment in the case bar.” Id. See also being prose- was not twice the defendant 55, 61, Foran v. Ind. N.E. offense, not- cuted for (“The charged offenses ed: law, must not same in as would An indictment for the murder of the the instruments which shown unnamed child of Elizabeth Bradburn offenses, but that such of- charged means as an by no indictment fact.”). must be the same in fenses charging employment of certain Beginning Davidson v. means, procure with the intent (1885), however, Court, without Bradburn, miscarriage of Elizabeth al- expressly overruling noting or a precedent though the means were used to same change jurisprudence, in shifted its consid- in both The commit the offence cases. from away eration the available evidence not in the lesser offence is involved statutory to requirements.33 the In his the are not greater; offences committed trial, first the defendant was convicted of the and against person, same bear no carrying weapon. a unlawfully deadly In a other, in fact resemblance to each either subsequent prosecution, he was convicted intent; necessary the support or facts to of threatening during to use a the pistol [miscarriage charge] a conviction on the same transaction. found The Court these convicted, have necessarily would not not jeopardy, convictions did violate double have they nor would even tended to even the though prosecutions grew “two convict, upon charge]. the [murder of, out and were upon, based same concluded, The Id. at 286. Court “We can at Id. 367. The Court transaction.” stat- States, in adopt held some rule ed is charged the test whether the not, case, any that the accused can “are so far crimes distinct evi- upon but the same facts convicted once dence which would one would sustain they when constitute different of- sustain the other.” Id. at 368. The ” .... Id. at fences 286-287. (1) charged unlawfully crimes were carry- defendant in Jenkins The ing deadly weapon, threatening and (1881), Ind. 138 was tried convicted of to pistol. use a The looked to Court battery. assault and He was also tried statutory elements and held that “a mate- and convicted in a second trial for assault rial difference between two [existed] battery, his claim despite of double by offences defined 1984 [drawing section jeopardy. The reversed Court the second or to threatening weapon], use a and those conviction, noting always “[i]t nec- [carrying declared section con- essary jeopar- for one [claims who weapon carrying weapon open- cealed dy] someone], ly to show that the offence for hе injure with intent even was convicted is same as conceding that involved that the pistol used every in the in which the evidence is instance.” Id. at 367. (cid:127) instruments, i.e., charging

33. Defendant Richardson refers cases after tions "the conjunction 1884 that use the term “facts” in in which the are charged.” manner offenses Kokenes, our test. Rather, with 213 Ind. at See statutory it reviewed the elements (" 13 N.E.2d at 526 'When accordingly. based its decision See also two or constitute more offences facts Blockburger, 284 U.S. 52 S.Ct. at at Elder, 285) (em- (quoting at 65 Ind. ("whether [statutory] at 309 L.Ed. each added). However, Kokenes, phasis provision requires proof of an additional fact inquire Court did not into the evidence intro- not”) added). (emphasis does which the other specific allega- duced at trial or the factual Reed, argument relying upon any partic- 81 N.E. without State (1907), test, jeop- no double finding the Court found ular that the statute “defines trial, when, ardy violation in one defen- separate and distinct” crimes. Id. at charged giving liquor an 585, dant Looking N.E. at 87. the statu- person in of statute intoxicated violation definitions, tory the court held: (on then different trial convicted gravamen The first offense de- liquor to day) selling the same fined the section of statute under person intoxicated in violation of the same consideration is the unlawful in- sale of that the The Court held statute statute. toxicating liquors by person without a selling, three crimes: defined license, while that second offense away liquor to bartering, giving defined keeping is the and operating of a at N.E. person. intoxicated Id. place liquors where such are sold The Court articulated the test as law, having violation of or the of such “ same evidence be follows: “would the liquors possession for such purpose. necessary to secure a conviction in the ” former, prosecution?’ 585-86, 114 pending, as Id. at at 87. N.E. (quoting Id. 81 N.E. at 572 Smith 370, 183 In Durke v. 204 Ind. N.E. (1882)). 553, 557 (1932), the defendant was convicted of identity then looked to the burglary and then of conspiracy convicted conviction, challenged focusing on the es- felony (burglary), to commit a arising out necessary to sential elements convict: of the same transaction. He claimed dou intoxicating “Proof of a liquor by sale of jeopardy prohibited ble the second convic in appellee person to the named the indict- “ that tion. The Court noted ‘[t]he courts ment was one of the of the of- elements this state ... more strongly of have leaned case, charged proof fense in the of test, “identity to the of offense” which is ” was conviction.... essential to Id. the must charge second be for the However, case, sale, “in the former not a crime same identical act and as first [the gift, liquor by a intoxicating appellee but of ” 377-78, offense].’ Id. at 183 N.E. at 100 person the the to namеd in affidavit was Foran, 60, 144 (quoting 195 Ind. at N.E. at essential be element to established “ 530). This test ‘Would the asks: same the evidence to secure conviction.” Id. at necessary be to secure a evidence convic 591-92, Thus, 81 N.E. at 572. the Court in pending, prose tion the in the former as held, “It is evident that the evi- therefore 378, cution.’” Id. at 183 N.E. at 100 necessary appellee’s dence to secure con- 60, 144 Foran, (quoting at N.E. 195 Ind. at a in charge selling viction of of violation of 557) (other Smith, (quoting Ind. at justified § 2219 ... would have his omitted)). citations Instead of looking to in violation giving conviction the specific actually the evidence introduced at section the charged former case.” trial, the Court to what looked evidence 592, at Id. 81 N.E. at 572. would, general, necessary be to secure The defendant Woodworth convictions for both crimes: 582, (1916), Ind. pled N.E. prosecution in a proof [T]he essential for guilty charge that he sold alcohol to burglary would sufficient to con- not be person May a 1 without a license. The charged vict one the crime known with defendant was thereafter convicted of a felony”— as a “conspiracy to commit separate charge operating keeping sold, burglary. In latter case the evi- place a where alcohol was also on uniting dence must a or confedera- May 1. show The defendant contended that the persons tion of two to commit evidence of the also the or more sale was evidence and, burglary. In order to convict of the keeping operating place therefore, case, it being present that he convicted for offense would not was rejected actual necessary prove partic- same offense. The Court his out “whether if what is set in order to evidence” test: felony, but

ipation proved had been in the second indictment there burglary, with charged convict one first, a could have been under the there party with connecting the proof must conviction, way: would or stated another act. the overt necessary to secure evidence be burglary would Thus, prosecution Id. pending, as in the for a conviction conspiracy prohibit Foran, 195 (quoting Id. prosecution.” mer also (burglary). Id. See felony commit 530). 60, 144 Similarly, the at N.E. at Ind. 551, 553-54, 548, State, 241 Ind. Dunkle v. what it called “the Elmore Court defined 657, (looking to 659-60 173 N.E.2d of offense’ or ‘same Blockburger ‘identity statutory con- rules of “well established test,” 382 N.E.2d at evidence’ id. struction, upon well as definition as “ lack of differ ‘the difference or ... conclusion then is [o]ur used the terms necessary to establish ence in the evidence purview weapon within that to draw compared crime as particular and distinct § ... is a ” the other crime.’ required establish aiming pointing from that of offense (quoting at 896 Id. at § Appеllant under 452.... weapon Dunkle, 173 N.E.2d at for but one twice convicted not therefore 658) (citations omitted). From this com ....”)(cid:127) offense concluded parison, the Elmore Court involving analysis in cases “our method analysis under In closely paralleled multiple count offenders merged with the Indiana Constitution employed by federal methodology that we test:34 “Now federal constitutional protecting Fifth Amendment courts for Double by the federal are bound Id. guarantees.” Clause, necessary than ever that it is more El in line with federal standards.” Tawney we be this Court (Ind.1982), introduced a more 439 N.E.2d 582 El Although reviewing court which a approach, new manner in erroneously concluded that the to “look to the required more Court charged the offenses are required Supremacy federal Clause35 claims, statutory definitions of the merely to the all Indiana govern federal test analysis This offenses.” Id. 588. Court, by consid clear that this it is allegations specific factual looked to Jeopardy the Indiana Double ered both charged which the regarding the means Jeopardy the federal Double Clause alleged to have been com- offenses were statuto require the same test —a Clause noted, “Tawney did we have mitted. As “identity or “same evidence” of offense” ry requirement to attribute this additional similarity” (noting the “obvious test. Id. jeopardy pro- independent state double jeop double between the state federal in Article tection found Section standards). Thus, Elmore when the ardy State, 686 Carter v. Indiana Constitution.” jeopardy merged our state (Ind.1997). Rather, it re- jeopardy the federal double analysis with jury instruction upon lesser-included lied departure it was not a radical analysis, at 588. Tawney, case law. See constitutional then-existing from our state following El- During twenty years defined analysis. The Elmore Court more, frequently decided double or “same this Court “identity of offense” Indiana’s (the U.S. Constitution U.S. art. VI asserting of the fed- 35. For claims violations Const, 34. Clause, land; Jeopardy to be "the test supreme eral Double applied law of the "shall be the whether there are to determine there- judges every state shall be bound one, only [statuto- is whether each offenses or by....”). requires proof additional ry] provision of an Blockburger, which the other does not.” fact S.Ct. at 76 L.Ed. 284 U.S. at by looking issues to the offenses earliest interpreting cases and applying provision, we charged, believing approach conclude that Indiana’s Double Jeopardy Clause was required by federal double intended to prevent the being State from pro- able to jurisprudence, referring pass and often against person ceed twice for the same ing to the Indiana Constitution. haveWe criminal transgression. While none of the recently recognized that this methodology early presentеd cases comprehensive is an inaccurate statement of federal dou analysis, test, a generally articulated or a jeopardy law ble as established Block standard of review for double jeopardy Carter, 837; burger. 686 N.E.2d at Grin claims, holdings in these decisions do stead, Games, 486; 684 N.E.2d at reflect a common theme. A criminal Considering N.E.2d at 474. Elmore’s transgression person’s was a conduct that merger of Indiana double law statutorily violated a defined crime. analysis into federal constitutional and its seeking to determine whether two criminal declaration that our state’s double jeopar same, transgressions were the this Court dy jurisprudence must “be in with line in its earliest decisions did not restrict its standards,” federal 269 Ind. at review to a comparison of statutory surprising N.E.2d at it is not that we elements of analysis the crime or to an separately did not evaluate the Indiana language charging instruments. additional, Constitution as an independent Rather, this Court also reviewed the actual source of In jeopardy protection. presented evidence at trial when available. stead, generally we jeop addressed double ardy by applying claims the prevailing un considerations, Synthesizing these derstanding jurisprudence of federal and we therefore conclude and hold that two or merely referred to the Indiana Double more offenses are the “same offense” today recog I, Clause. This Court violation of Article Section 14 of the post-Elmore, pre-Games Constitution, if, nizes that these respect cases do not precedent regard statutory constitute either the elements of the chal ing application lenged of the Indiana Double crimes or the actual evidence used convict, Jeopardy Clause. action today Our should essential elements of one challenged supercede be understood to offense also these cases.36 establish the essen

tial elements of another challenged off From our review of considerations, the consti ense.37 Both of these text, tutional history and circum statutory elements test and the actual evi surrounding test, stances its adoption, dence are components of the double following 36. These include jurisprudence cases: Neal v. and did not refer to our state State, (Ind. 1995); See, 659 N.E.2d 122 provision. e.g., Kennedy Chiesi v. constitutional v. State, (Ind.1994); State, (Ind.1996); 644 N.E.2d 104 v. gory-B Buie 674 N.E.2d 966 State, Gre State, (Ind.1994); (Ind.1996); ey 633 N.E.2d 250 v. Webster v. 669 N.E.2d 154 li Col State, State, (Ind.1994); (Ind.1995); Campbell 628 N.E.2d 1212 ns v. 659 N.E.2d 509 vi Bi State, State, (Ind.1993); (Ind.1994); v. 622 N.E.2d ns v. 642 Wills v. N.E.2d 928 State, State, (Ind. 1992); (Ind.1993); Jackson v. 625 N.E.2d 595 N.E.2d 242 Woodcoxv. State, State, (Ind. (Ind.1993); 1992); Derado v. 591 N.E.2d 1019 Woods v. State, State, (Ind.1984). (Ind. 1989); Bean v. 460 N.E.2d 936 547 N.E.2d 772 Ellis v. State, (Ind.1988); 528 N.E.2d 60 Jones v. State, (Ind.1988); 523 N.E.2d 750 companion Jones v. 37. While this case and its cases State, (Ind.1988); King probe important aspects N.E.2d 479 of state and federal State, (Ind.1988); 517 N.E.2d 383 jeopardy jurisprudence, double our review Hansford State, (Ind. 1986); Malott v. and discussion are not to be intended exhaus- State, (Ind.1985); Rather, 485 N.E.2d 879 Flowers v. tive. the “same offense” issue is but (Ind.1985); 481 N.E.2d 100 aspect jeopardy jurisprudence. Deamus v. one of double (Ind.1985); circumstances, 479 N.E.2d 1319 Bevill v. Under some even when (Ind.1985). 472 N.E.2d 1247 Some of more offenses constitute the same offense un- however, test, during period, our decisions der a federal or state "same offense” no understanding jeopardy involved our of federal double violation will be found statutory elements essential under considers the analysis offense” “same identity of the offense determine the Indiana Constitution. manner not evaluate the charged, but does Separate Test: Could Statutory Elements or means which the offenses are al- by Established? Be Offenses committed, unless the leged to have been is to objective of this test The comprise an essential manner or means elements the essential determine whether the essential elements element. Once charged crimes could statutory offense have been identi- charged each test, In this hypothetically. be established fied,40 determine reviewing court must identified38 are charged offenses the chal- the elements of one of whether statutory elements the essential comparing could, be hypothetically, offenses lenged with the essential offense charged not that does also evidence established charged the other statutory elements elements of the oth- the essential establish relevant statutes Inspecting the offense. charged er offense.41 identify charging instrument and the case, defendant Rich In this established which must be elements those statute,39 his convictions for ardson contends that this review under the to convict Arizona, See, separate offenses are involved. e.g., shows that 434 U.S. have occurred. 497, charged (holding example, with L.Ed.2d 717 For if a defendant S.Ct. B, inqui- Jeopardy murdering does further murdering Clause A and that the federal Double a the mistrial was prohibit ry a retrial when whether the offenses are the "same into necessity,” even if the mistrial is purposes "manifest is not offense” for objection); U.S. the defendant’s charged declared over are crimes warranted because Dinitz, S.Ct. U.S. They their face. involve different different on (1976) (holding that federal L.Ed.2d 267 charged Similarly, if a defendant victims. reprose- not bar Jeopardy Clause does Double Monday robbing particular store on when the defen- are, offense cution for mistried again Friday, offenses and then mistrial); acquiesced in the requested or dant facially, If a defendant is ar- not the same. Lanza, S.Ct. 260 U.S. United States v. possess both cocaine and rested and found that, (1922) (holding under 67 L.Ed. 314 marijuana person, possession of co- on his Clause, a convic- Double federal 35-48-4-6 caine under Code section Indiana acquittal jurisdiction does in one tion or an possession marijuana ‍‌‌​‌​‌‌​‌​‌‌‌‌‌‌‌​​​​​‌​‌​‌​​​‌​​​‌​​‌‌​​‌‌‌‌‌​‌‍under Indiana jurisdic- by another reprosecution bar are, facially, not the Code section 35-48-4-11 offense”); States v. United tion for the "same same offense. Perez, Wheat.) (9 6 L.Ed. 165 Jeop- Double (holding that the federal test, statutory which is one 41.This elements reprosecution ardy does not bar Clause analysis component of our "same offense” when offense a defendant for mistried jeopardy provision of the under the double verdict). jury These is unable to reach Constitution, is similar to "same however, at in this aspects, are not issue other test, comprises the federal elements” case. analysis Blockburger. under Blockburger the federal stan- The Court stated test, charge must 38. Under this "the second dard as follows: act and identical crime same Durke, 204 Ind. at [the first offense].” applicable rule is that where Foran, (quoting 183 N.E. at 100 a violation of act or transaction constitutes 530). must said "[I]t 144 N.E. statutory provisions, the test to two distinct prosecution for bur proof the in a essential are applied to determine whether there glary to convict would not be sufficient one, each or is whether offenses 'conspiracy charged known as with the crime requires proof additional provision of an felony' burglary.” Id. See also commit — not. fact which the other does Reed, 588, 571. 81 N.E. 304, 182, at Blockburger, 284 U.S. at 52 S.Ct. Blockburger, the Su- at 309. Before L.Ed. "[IJdentity upon the evidence depend 39. tests already preme had stated: convict, required not the statute] the [under has "The test is not whether the defendant actually Si- introduced trial.” evidence act, already for the same but been tried mon, added). supra, (emphasis at 273 put jeopardy for the whether he has been may single act be an of- simple same offense. A inquiry quite when a facial This 40. statutes; against two and if each stat- charged clearly fense comparison the crimes of A robbery battery nig by using and class misdemeanor or threatening the use of jeopardy. Robbery violate double as a force.” Record at 4. statutory Under the felony test, is defined as follows: class C elements we on focus the essential elements comprising charged the knowingly intentionally A who or offense person (1) (2) robbery: of the property person takes from another or defendant knowing- (1) (3) ly the or presence person: intentionally from of another took property from (4) (5) by using threatening or the use of force Koenig by using threatening or the (2) any person; on or putting any use of Koenig. force on The defendant fear; person robbery, commits a class could not be convicted at trial if these felony. C essential elements were not established.42 Although may so, the State choose to do it § 35^42-5-1 The defen- Ind.Code required to include detailed factual dant charged as follows: “Robert M. allegations in the charging II day Richardson ... on or about the instrument. 31st § See Ind.Code August, of 1996 ... then 35-34-1-2.43 For example, did and there case, in this knowingly intentionally property or take the State could charged have person, Richardson, from another to-wit: a wallet con- II, as follows: M. on Robert taining belonging to Jeffrey W. Koe- or about day $700 the 31st of August 1996 did requires proof ule of an additional fact defendant is not essential under the statute not, acquittal which the other does an or only requires type because the statute some under conviction either statute does not ex- However, property Koenig. be taken from empt the defendant from statute, carjacking under specific type the the punishment under the other.” property motor vehicle—would be an —a States, 338, 342, Gavieres v. United 220 U.S. determining essential identity element 421, 422, 489, (1911) 31 S.Ct. 55 L.Ed. § of the offense. See Ind.Code 35-42-5-2 434) (quoting Morey, (quoted 108 Mass. at (1993) ("A person knowingly who or inten- 304, part Blockburger, 284 U.S. at 52 S.Ct. tionally takes a motor vehicle from another 182, 309). recently, 76 L.Ed. at More person presence per- or from the of another Court has indicated: (1) by using threatening son: or the use of Blockburger proof test focuses [T]he on the any person; force on putting any or necessary prove statutory elements fear; person carjacking, commits a Class B rather than actual evidence to be added). felony.”) (emphasis presented at trial. we Thus stated that if " requires proof 'each statute of an addi- ” statute, Interpreting specifi we have not,' tional fact other does cally charging held that the instrument does offenses are not the same the Block- under not have to include “additional facts describ burger test. Vitale, 410, ing 416, injury inflicted or how it Illinois v. was inflict U.S. 100 S.Ct. 2260, (1980) (cita- Moody ed.” L.Ed.2d omitted). (Ind. 1983). tions The Court charging also noted: "The instrument in Blockburger applying As and other decisions appellant statutory formed offense with reveal, principle application its the Court's charged, place which he was the time and the statutory of the test focuses on the elements offense, identity of the commission of the requires proof of the offense. If each of a crime, type of the victim of the and the not, fact that Blockburger the other does weapon he used. We hold the information satisfied, notwithstanding test is a substan- specificity was drafted with sufficient to in overlap proof tial offered to establish appellant charge form nature of the the crimes. against him.” Id. See also Evans States, Iannelli v. United 785 n. (Ind.1986) (rejecting defen 1294 n. 43 L.Ed.2d argument required dant's that the State was (1975) (citations omitted). 627 n. 17 specify physical acts which constituted robbery, stating, charging "Where the in statutory language regarding "putting 42. The strument informs the defendant of the offense person any in fear” is essential ele- charged, with which he is the time and the charged ment in this case because the State him with commission, place identity its victim's "using threatening the use of used, type weapon and the the instrument Similarly, force.” the exact manner or specificity is drafted with sufficient by imposed and need means which force was is not essential, specific by not disclose only as the State need conduct the defen show that (citation type actually injury.”) some of force dant which led used. Addi- to the omit ted). tionally, type property stolen necessary is not that the same evidence belonging to property intentionally take Durke, 204 force. Had for both offenses. See Koenig by using convict Jeffrey W. Foran, so, charging (citing to do at N.E. at 100 chosen the State valid, as the (citing have been at 530 would N.E. information 195 Ind. 557)). case, specified. Smith, were elements In this essential 85 Ind. at battery elements of the offense of essential in this case at issue offense The second include the ele A misdemeanor as a class The A misdemeanor. battery, as a class injury, resulting bodily which is ment of a who person provides “[a] statute elements of included the essential another intentionally touches knowingly or Furthermore, battery requires rude, insolent, robbery. angry or man- in a person rude, insolent, angry § or man touching 35- battery....” commits ner Ind.Code (1993). ner, requires the robbery merely becomes a whereas The offense 42-2-1 Also, bodily if “it results threat of force. essential A misdemeanor use or class The person.” Id. injury any robbery taking other is the element of the that the de- alleged charging Koenig, instrument which property from type some day of Au- the 31st “on or about fendant from the essential separate and distinct knowing- ... and there did then gust, battery. our statu elements of the Under person in intentionally touch another ly or test, each offense of which tory elements rude, angry manner that or insolent contains at defendant was convicted injury in that the said bodily resulted separate that is one essential element least Jeffrey W. Koe- beat a certain defendant offense, and, the other and distinct from extent that the said nig with his fist therefore, hypothetically could State bodily injury.” Record [Koenig] suffered using without prove separate offenses of the class A essential elements at 5. The Thus, statutory under the same evidence. (1) are: battery charge misdemeanor test, no there is elements (2) intentionally knowingly or defendant violation.45 (5) (3) (4) rude, in a inso- Koenig touched lent, resulting in bodi- angry manner or Separate Actual Evidence Test: Were Koenig.44 ly injury to at Trial? Established Offenses noted, the exam As previously identified the essential

Having at trial presented ination of the evidence offense, com we comprising elements component of the double integral was an of the two elements pare the essential employed those deci jeopardy analysis must Each offense challenged offenses. immediately following this sions of sepa which is contain at least one element Jeopardy Double adoption of our other offense so and distinct from the rate felony statutory murder. In injury of the offense bodily and the 44. The exact nature of possibility any example, the touch- exact or manner there is no means The ing not essential elements. occurred are statuto could establish the essential evidence rude, type that some State need show charge felony murder with ry elements of the insolent, bodily angry touching some establishing statutory the essential out also supra and ac- injury See note 43 occurred. charge. charged robbery of the elements companying text. one essential robbery does not contain least from the that is and distinct element contrast, Double the Indiana charged felony offense. But a defen murder violated under this essential Clause would be placed dant would not be twice when, example, a defendant elements test for under the Indiana the "same offense” robbery sentenced for both is convicted and if, example, he is Jeopardy Clause Double killing felony of a murder based on the robbery and for both convicted and sentenced See, robbery. e.g., clerk in the course of the felony of the victims and the identities murder 382 N.E.2d Mitchell robbery are different. the murder and the charging identifies If the instrument See, e.g., Reaves v. robbery for both the as the basis counts, (Ind. 1992). proof felony robbery murder and the robbery an essential element would be

53 component, significantly this the differs from federal preserve jurispru Clause. We test, 304, separate Blockburger, as a consid- dence under 284 U.S. at evidence actual 182, “same analyzing 52 S.Ct. at 76 L.Ed. at 309. to be used the “The eration nothing Blockburger claim under the Indiana test has to do with issue in a offense” presented Even if the first the evidence at trial. It is con Jeopardy Double Clause. test, consideration, statutory solely statutory cerned the the elements elements charged.” Grady viola- of the v. not disclose a offenses Cor does tion, bin, 508, 12, 110 2084, 495 521 n. may. the actual evidence test Under U.S. S.Ct. 12, 548, 109 inquiry, presented the actual evidence 2093 n. L.Ed.2d 564 n. 12 (1990), trial on other grounds, is examined determine whether overruled United Dixon, 688, by was challenged offense established States v. 509 U.S. 113 S.Ct. each (1993) (second 2849, facts. To that L.Ed.2d separate and distinct show 125 556 em added).47 the challenged phasis two offenses constitute claim jeopar- “same offense” in a of double argument, At oral the asserted State dy, a must a rea- defеndant demonstrate that, the because number of statutes and evidentiary that the possibility sonable grown has exponentially offenses since our by used fact-finder to establish facts ratified, Indiana Constitution was and be- may essential of one elements offense clear, Blockburger provides bright- cause have been to establish also used the essen- test, adopt line double should we a second of- challenged tial elements of govern state Blockburger our Double fense.46 hand, Clause. Jeopardy On the other argued This in our Double second test defendant that this Court should Jeopardy analysis “same “manner in adopt Clause offense” offenses 508, 2084, Grady, early 46. Our are not as to U.S. cases conclusive 495 110 S.Ct. 109 applied. Grady, the the standard of review to be Brinkman, In L.Ed.2d 548. Prior to Court fo 76, statutory may exclusively have 57 Ind. cused elements in possibility prosecution evi- considered the that the same cases of both successive and mul may separate tiple punishment. dence con- was have resulted two Until it overruled cases, however, 1993, Grady victions. the Court Dixon in added a "second other ap- prong” Blockburger did standard for not utilize this but rather test successive cases, pears engaged requiring to have in its own a court to consid assessment pro- underlying reasonably to determine if evidence the of er whether conduct Grady independent vided factual nor basis for fenses was same. Neither Dix See, e.g., Wininger, multiple punishments, except offenses. on dealt with 540; 250; Jenkins, Greenwood, 64 Ind. 78 multiple punishment analy reaffirm that Grady prob 133. We believe that the use of sis not affected was /Dixon Games, imple- possibility” fairly “reasonable standard & lems. See 684 N.E.2d 476 n. 11 protections of the (discussing noting ments the Indiana Double Dixon and the Su permits also multiple Clause and convictions preme punish Court's treatment of multiple protract- committed in a offenses unchanged remained since the ear ments has episode prose- ed criminal when the case is ly and that treatment of 1900s the Court’s multiple cuted in a manner insures prosecution analysis changed successive guilty verdicts are not based on the same years Grady only the three between evidentiary States, facts. Dixon). Rutledge See also United 292, 1241, 517 U.S. 116 S.Ct. 134 L.Ed.2d 333, Games, 466, Albernaz, (1996); 450 U.S. 101 S.Ct. 47. The result in 419 275; 410, 1137, Vitale, change upon any not based 67 L.Ed.2d U.S. federal multi- 2260, 228; Whalen, ple punishments jurisprudence resulting 65 L.Ed.2d from 100 S.Ct. Dixon, 684, 1432, 715; Supreme S.Ct. L.Ed.2d the U.S. Court decision in U.S. Iannelli, 2849, 770, 1284, S.Ct. 420 U.S. S.Ct. 509 U.S. 125 L.Ed.2d 616; upon Blockburger, U.S. 556. Games was based Dixon L.Ed.2d 306; particular, Ebeling Morgan, upon federal S.Ct. 76 L.Ed. but jurisprudence general. 59 L.Ed. 1151 As we noted 237 U.S. S.Ct. Games, Devine, (1915); Morgan Supreme with the Dixon dealt U.S. Gavieres, (1915); prosecutions, 59 L.Ed. Court's of successive S.Ct. treatment changed years under 55 L.Ed. 489. which had recent U.S. resulting of prove the element dence to disagree with analysis. We charged” are separate from this conduct.48 bodily injury of original application both, believing the that presented, we find to be From the evidence Jeopardy Clause Double the Indiana a reason- approaches. the defendant has demonstrated these than broader evidentiary facts that the possibility able case, pre- evidence the present In the to establish the essential jury used the following the establishes trial sented to robbery were also used elements of 31, 1996, people many August facts. On elements of the establish the essential consuming alcohol lake area at a were battery. Application A class misdemeanor noticed that The defendant drugs. using test thus discloses the actual evidence of Koenig, ap- Jeff present, of those sentencing defen- convicting and that of amount a considerable possess peared these offenses violates dant on both of defendant, along Koenig The money. Jeopardy Clause. Indiana Double men, an automobile got into other and two The party. to another drive apparently are two convictions When bridge, a stopped on automobile prin to contravene double found vehicle, ostensibly to re- men exited remedy the reviewing may court ciples, a Koenig exited the lieve themselves. When a by reducing either conviction to violation vehicle, with a beer hit from behind he was offense if form of the same less serious The ground. to the and knocked bottle See, the violation. doing so will eliminate and beat him. kicked repeatedly three men e.g., Campbell Koenig down then held Two of the men (Ind.1993) (affirming reduction of class C from Koenig’s billfold third took while the B bat felony battery to class misdemeanor removed, was After his billfold pocket. his jeopardy). If it will tery to avoid double the side of the over Koenig pushed not, be vacat one of the convictions must Koenig and returned men left bridge. The judicial In the interest of efficient ed. they what had about bragging party, administration, trial court need not just done. reevaluation, sentencing a full undertake reviewing court will make but rather the contends that the evi- defendant itself, being mindful robbery to the this determination beating prior of the dence trial consequences that the court penal convictions. We basis of both forms the case, appropriate. present found In the note, however, presented evidence that the in a that, robbery does not exist after the the crime demonstrated at trial also felony, less serious than the class C companions Koenig beat form and his defendant was convicted. for which the defendant completing his billfold—thus took result, a battery form of could Koenig off the But lesser pushed then robbery thеy— of the class B misdemeanor the absence conduct bridge. post-robbery While this resulting bodily injury, instead subsequent, element of indicate potentially could misdemeanor, A for which he of the class battery justifying sep- factually separate if considered conviction, no actual evi- was convicted. Even there was arate pre- bodily jury Record at 41. The instructions Although the lack of evidence being help- resulting jury shoved off the injury from of counsel to the can sentations (as separate required and inde- bridge reviewing analysis court in its of the ful to the battery) is de- pendent A misdemeanor class jury whether a actual evidence to determine terminative, the clos- we further observe that multiple used the same evidence to establish counsel, discussing ing arguments Because the court’s instructions offenses. battery, solely the evi- proof focused evidence, are not how- and counsel's remarks ever, beating preceded the remov- dence of the would be determinative neither Furthermore, prelimi- al of the wallet. jury presence actual evidence that the rea- nary one-day advised in this trial instructions independently sonably es- could have used charge alleged jury battery that the the essential elements tablish [Koenig] with his fist to the "defendant beat offenses. injury.” [Koenig] bodily extent that suffered however, class, there is a reason- because it reduced lesser-included offense of possibility evidentiary robbery), Wethington able facts (Ind.1990) jury to establish the essential N.E.2d used (vacating a con- robbery elements of would also be used to viction for theft because it was a lesser- battery as a B misdemean- robbery). establish class included offense of or. Because both convictions therefore However, this category does not include stand, cannot we vacate the conviction with situations where the two crimes have dif- penal consequences the less severe and victims, State, e.g., ferent Reaves v. standing robbery leave conviction. (Ind.1992), or where the separate crimes occur independent and Conclusion other, State, e.g., each Bean v. 460 N.E.2d Because the defendant’s convictions for 936, (Ind.1984). robbery battery both and as a class A 2. Conviction punishment for misdemeanor, under the circumstances crime which very consists same act presented, violate the Double as another crime which the for defendant Constitution, Clause of the Indiana we va- has been punished. convicted and An ex- cate the conviction and sentence for bat- ample State, of this situation is Jones v. tery as a class A misdemeanor. This (Ind.1988) 523 N.E.2d (vacating a cause is remanded to the trial court for battery conviction because the information disposition with opinion. consistent showed that touching the identical SHEPARD, C.J., concurs. SULLI- conviction). basis of a second battery VAN, J., separate opinion. concurs with punishment Conviction and for SELBY, J., separate concurs in result with crime which consists the very same act BOEHM, J., opinion. concurs result an element crime another for SELBY, J., separate opinion, in which has been pun- convicted and defendant concurs. ished. Mr. Richardson’s situation in this category. case falls into this Another ex- SULLIVAN, Justice, concurring. State, ample Wethington 560 N.E.2d I congratulate Justice Dickson on his 496, (Ind.1990) (vacating confinement comprehensive enlightening analysis. conviction because the confinement was I concur I because believe his formulation with the coextensive behavior or harm nec- encompasses those limited spe- number of essary robbery to establish an element of a (deemed cific situations “superseded”) conviction). unwilling

where this Court has been relief, however, We have not extended impose multiple punishments upon a de- subject situations where the behavior or fendant who commits two crimes at the harm separate is either from or more ex- very same time against same victim. necessary tensive than that to constitute time, however, At this I am unwilling to Examples the element of the first crime. beyond extend this formulation these situ- being relief denied on this basis include ations. State, Webster v. 628 N.E.2d My analysis own suggests that these (Ind.1994) (affirming attempted rape, crim- situations fall into five categories: inal deviate conduct and confinement con- punishment 1.Conviction victions because confinement extended for crime which is a beyond necessary lesser-included that an ele- establish offense of another crime ivhich the attempted rape has ment of the criminal defendant convictions); been punished. Examples convicted and deviate conduct Purter v. (Ind.1987) (af- State, provided by of this situation are such cases 515 N.E.2d as Bivins v. 642 N.E.2d 945 firming rape and confinement convictions (Ind.1994) (vacating a conviction for theft beyond because the confinement extended 495, 500 Campbell v. 622 N.E.2d an to establish element necessary (Ind.1993) enhance- (reducing a Class C conviction); Edwards v. rape because the battery to a conviction ment (Ind.1985) (affirming injury that was very bodily same serious and confinement convic- rape attempted enhancement was the basis of the Class C extended the confinement because

tions A enhancement to also the basis of a Class an ele- necessary to establish beyond conviction). burglary conviction). rape attempted ment of hand, vic- On the other where punishment 4. Conviction or harm tims are involved or behavior the en a crime where enhancement of is the of the enhancеment basis very same imposed is hancement for pro- relief will be separate, distinct and no as another crime or harm behavior for State, N.E.2d v. vided. See Woods has been convicted (Ind.1997) defendant (affirming a Class A 501-02 provid has legislature punished. robbery to a conviction be- enhancement classification punishment ed that bodily injury that was cause the serious if the may be enhanced certain crimes separate the basis of the enhancement crime is constitutes the behavior which and distinct from that which was the basis addition specified State, certain accompanied conviction); v. a murder Jackson (Ind.1993) specified (same); certain ad al behavior or causes N.E.2d State, where a de In situations v. 490 N.E.2d ditional harm.1 Hansford (Ind.1986) A (affirming Class enhance- of one crime been convicted fendant has robbery convictions burglary ments to additional specified engaging for bodily injuries that because the serious additional causing specified behavior or were the bases of the enhancements were harm, harm cannot also or that behavior victims). inflicted on different separate of a be used as an enhancement crime; sep or the either the enhancement punishment 5. Conviction for examples Recent conspiracy arate crime is vacated. where the overt act crime of State, conspir- 659 N.E.2d that constitutes an element Kingery include another (Ind.1995), acy charge very is the same act as and Moore has been crime which the (Ind.1995), a reducing both N.E.2d defendant punished. Conspiracy convicted and re- robbery a convic A enhancement to Class quires agreement by peo- two or more very killing that was tion because the a and an overt act ple commit crime was also the the basis of the enhancement a agreement. furtherance of the While Today’s de murder conviction. basis of a conspiracy guilty defendant can be of both State, 717 in McIntire v. cision underlying a crime and the to commit (Ind.1999), category. into this also falls itself, catego- what is at in this crime stake provide closely A related set of cases ry assuring conspiracy that indeed the a defendant’s con- that to the extent that act the under- separate and distinct from for en- viction for one crime is enhanced concretely, in situa- lying crime. Put more behavior or gaging particular additional act itself is no more tions where the overt harm, causing crime, additional particular any time two or underlying than the crime, also used as commit a at least one persons behavior or harm cannot more conspiracy and the guilty crime. See will be of both an enhancement of deadly weap- Robbery, a while armed with a example, person commits committed 1. For knowingly intentionally felony, by or bodily injury any person Class C on or results taking property person or from from another And the crime is other than defendant. using presence person by or the threatening of another felony if it results in enhanced to Class A any person use of force on bodily injury any person other than serious However, by putting any person in fear. § 35-42-5-1 a defendant. Ind.Code felony a Class B if it is crime is enhanced to underlying agree- many crime—the element of what for thought citizens is to be a straightforward can inferred from their concerted person ment idea—a cannot be act tried twice for the join action and the overt found their same crime. I opinion Justice Boehm’s commission of the crime. because I believe it is the most consistent with what point explained This Chiesi jeopardy ought to be under Article (Ind.1994). 644 N.E.2d I, § 14 of the Indiana Constitution. charged There the defendant was Conspiracy both to Commit Murder and BOEHM, Justice, concurring in result. Murder. While this case turned to some I agree, Court, as do all members of the adequacy charging extent on the that the test for permitting convictions information, the defendant cited Buie v. two or more counts the same trial is as (Ind.1994), majority However, it. formulates I authority setting conspiracy aside the today’s conclude that may case be decided noted, conviction. But “It we is evident without resort to constitutional doctrine that in Buie the conspiracy to commit and because the dual convictions here are subject virtually crime were committed by statutory barred and common law doc- simultaneously only and that the overt act trines, irrespective of constitutional consid- completing conspiracy was the murder erations. broadly, More I believe that itself.... Buie where the con- [U]nlike dual in single convictions do case not spiracy killing single constituted a of- present an Indiana constitutional double fense, bar, appellant only case I, jeopardy claim at all. Rather Article entered into a lengthy conspiracy but com- § 14 should be invoked as a bar to mitted several overt following acts the con- subsequent prosecutions. Because the spiracy in in participate carry- order majority pro- addresses the constitutional Chiesi, ing out of the actual murder.” vision, I agree impor- and because that the Guffey N.E.2d at 106-07. tant and scope unsettled matter of the of (Ind.1999), N.E.2d 103 which we decide jeopardy protection double under today into this category. falls Indiana Constitution must be resolved Court, this I express my views on that SELBY, J., concurring in result. subject. I jeopardy?” What is “double believe points Justice Sullivan to recent deci- (1) that when question, peo- asked this most sions that prohibit of this Court convic- Hoosiers, ple, and indeed say most would tion punishment for a lesser included that it is to be tried twice for the same of offense another crime for which the likely just crime. The answer would pun- defendant has been convicted and (2) ished; simple, regard this without to notions punishment of conviction and convictions, multiple punishment, act; dual two crimes that consist of the same (3) meaning of an offense and the like. Dou- punishment conviction and for a crime principle ble is bedrock of our that consists of the same act an element as constitutional law. Mary- See Benton v. of another crime for which the defendant land, (4) 23 has punished; been convicted and en- (1969); L.Ed.2d 707 Elmore v. 269 hancement of a crime where the enhance- 382 N.E.2d 893 Never- ment imposed is for the same behavior or theless, out, points as Justice Boehm “con- harm that enhanced another crime or the fusion over double new.” same behavior that constitutes another Although N.E.2d at 59. the decisions crime for which the defendant has been today fairly announced characterize the punished; convicted and conviction importance of concept jeop- of and punishment conspira- for the crime of law, ardy to criminal they sight cy lose of where the overt act that constitutes an rejected by every conspiracy is the state doctrines charge element Equally significant, crime Justice on this Court. another for which as same act precedent support our does not and cer- pun- been convicted has defendant below, tainly regard that we does not demand explained I reasons For the ished. multiple implicating cases as punishment announced or followed the rules believe Double Clause in their re- are correct precedents these Indiana Constitution. accurate are statements sults and they represent In most cases law. Indiana subsequent majority pros- relies on law. Indiana principles long-standing crafting ecution a test for the cases However, they I are not constitu- believe multiple punishment context because “this rather direct but are either tional rules distinguished between dou- Court has not legitimate descendants applications multiple jeopardy protections pun- ble at common law and even followed rules in subsequent ishment and those cases law.1 To the extent Greek and Roman agree I do not prosecution cases.” refer to the Indiana precedents uniformly treated this Court has the two resolving multiple punish- Constitution explained as identical. As Part I.A. are relatively the decisions re- ment cases both and after the federal Double before incorrectly unnecessarily de- cent and applicable held Jeopardy Clause was law prior precedent common scribe prosecutions explicitly state Re- Indiana Constitution. based on the multiple punishments imposed stated that rules, I origin of gardless of the these a double present jeopar- one trial do not law this state. agree they are the dy issue there was no because “former they produce multiple punishment cases jeopardy.” Finally, my complaints about majority’s analysis the same results as finding jeopardy implications in test, with yields. agree I the which also multiple grounded are not punishment as majority describes “actual evi- the merely in for doctrinal purity. a need dence,” evaluating have the whether we Mixing multiple punishment and sub- supporting convictions. strands, same act sequent as has oc- law, jeopardy curred in federal double re- majority opinion I that recognize unsatisfactory compromise sults an that much of accurately precedent recounts impairs breeds the impor- confusion and Jeopardy under the Double Clause underlying tant the Double Jeopar- values this state and other similar constitution of dy Clause. freely I provisions. also constitutional sum, I, § In I Article many that of recent decisions believe reflects concede I, § important in a value that most to Article albeit sub- refer However, believe, sequent prosecution I A as the ma- context. test that passing. out, correctly fortify none of the Double points Jeopardy that intended to jority to with the Clause but accommodates the purports these cases deal needs punishment Fifth ends apart multiple up from the doctrine im- Indiana Constitution Amendment, justify my willingness pairing important I to the most function of the And, provision. explained cases as constitutional as challenge these constitutional I.C., precedent constitutionalizing on the basis that there is no Part these infra punishment in this common precedent multiple state as to the law rules consistent legislature’s provision. nothing this does to restrict meaning explained As below, in a many precedents ability “pile punishments single of these rest on on” all, most, if it It very shaky footing and if not case wishes to do so. thus adds protection identity nothing complication seem to and but assume of federal Understanding L.J. 262 Jeopardy, Twice in 75 Yale See Joshua Dressler, Criminal Comment, (1991); 199[A][1] § Procedure Clause, differing Double claims Jeopardy arise the Double afforded procedural varying as well fact postures so at some cost. and does patterns. The clause has been invoked Precedent I. Double multiple punishments imposed both Purpose and subsequent same trial and to prosecutions process “due jeopardy,” like “Double Frequently same defendant. has law,” umbrellа term that evolved is an dealing prece cases with one context cite several discrete time embraces over from commenting dent another without Thus to under- important it is concepts. any potential between the two. difference the various circumstances and stand frequently, More after find cases we procedural postures different Pearce, correctly citing North Carolina v. asserted. Situa- jeopardy has been 2072, 23 L.Ed.2d 656 claimed give defendants have tions that (1969), for. proposition that “double include: to a claim double rise multiple jeopardy” punishments bars with (1) multiple act stat- single that violates focusing out on whether federal and (sale no common elements utes with state constitutions are identical in this re dealing as both cocaine to minor or spect, precisely what Pearce meant (2) a contributing delinquency); single view, however, my sub language. statutes multiple violates act sequent prosecutions for a act and single elements and distinct ele- both common multiple single in a convictions for crimes (3) molest); and child “includ- (rape ments entirely prosecution turn on different con all the elements of one offenses” where ed siderations 3—some constitutional (co- among of the other are those crime treatm require some not—and different possession possession and cocaine caine opinion, “multiple ent.4 As used (4) deliver); single act that with intent latter, shorthand for the punishments” is creates single statute but more violates although may fairly oth the term describe murders commit- (multiple one victim than im including may some that er situations (5) bomb); single ted with bullet con plicate constitutional injure closely related acts cerns. (robbery battery such as we victim case); closely in this related have A. Indiana Constitutional and Com- injuries.2 create The separate acts that Precedent mon Law raised these jeopardy double concerns is not jeopardy the same. None- Confusion over double various contexts are not theless, below, years ago, twenty fre- new. Over this Court as elaborated courts for of- interchangeable. punishment multiple them addressed treat as quently cutting prosecutions give opportu- example also the State an 2. An is the seminal multi- nity presentation proof, mailbags its ple incident rehearse described 625, increasing thus the risk of an erroneous Ebeling Morgan, U.S. S.Ct. in 710, v. 237 35 (1915). conviction for one or more of the offenses 59 L.Ed. 1151 charged. 518, 2084, 508, U.S. 495 110 S.Ct. 109 Grady v. 3. As the Court observed in Corbin: (citations omitted), L.Ed.2d over- 548 however, prosecutions, 688, Successive whether Dixon, by v. ruled United States convictions, following acquittals or raise 2849, (1993). 113 S.Ct. 125 L.Ed.2d 556 beyond merely that concerns extend possibility of an sentence: question jeopardy enhanced ... 4.The whether the double power all State with resources right its distin under the Indiana Constitution repeated settings should not be allowed to make ex guishes these two between ago attempts years an individual an pressly convict in Games reserved offense, 466, 1997), State, (Ind. alleged thereby subjecting him to 476 n. 11 684 N.E.2d embarrassment, (Ind.1997), expense reh’g, 690 N.E.2d ordeal and on 211 modified cert. - U.S. -, 98, denied, compelling continuing him in a state S.Ct. 142 to live 119 (1998). insecurity.... Multiple anxiety L.Ed.2d 78 60 670, 270, State, 35 N.E.2d and v. 218 Fifth Amendment under

fenses (1941)). Arti- portion decisions The relevant of our recent “several reviewed in conflict.” El I, to be provides person § 14 that shall appear[ed] “[n]o cle 532, 533, State, 269 Ind. more for the same put be twice recently- As we N.E.2d pointed As Justice Scalia out offense.” no there is au in Games noted Revenue Department his dissent in “establishing an this Court from thority Ranch, Montana v. Kurth U.S. jeopardy protec independent state 128 L.Ed.2d 767 S.Ct. “ of the Indiana analysis upon based tion (1994): not put jeopardy’ does ‘[t]o N.E.2d 473 n. Constitution.” remotely punished,’ ‘to so its mean (Ind.1997), reh’g, 690 N.E.2d modified multiple provision prohibits, this terms — U.S. -, denied, (Ind.1997), cert. only multiple prosecu- punishments, but (1998).5 Spe 142 L.Ed.2d 78 tions.” been, remains, cifically, there has law Second, in the decisional confusion widespread authority pro- does not commentary to what consti and in the footing applying vide sound offense,” and what under tutes the “same multiple punishment cases. against dou protection circumstances that very Indeed it is clear some of I Although may be invoked. ble proposition cases cited for the seminal today’s case is decided concede that I, punishments implicate Article multiple relatively prece recent light of several § 14 stand for of the Indiana Constitution assuming multiple stating or dents precisely opposite conclusion. The impli the same offense punishments for multiple punish- majority suggests notion right, cate the constitutional I, § 14 challenges Article first ment under in either constitutional lacks foundation appearing in the 1930s. See 717 began au text, principle or solid constitutional n. the eleven cases N.E.2d 25. Of thority. men- majority, cited seven neither jeopardy” tion “double nor refer to either I, syntax, Article a matter of First as the federal or the state constitution.7 multiple deal with appear § 14 does in- Three other cases recite defendant’s recently at all. As this Court punishments jeopardy” protection, vocation of “double context, “the cardinal observed another analysis but the Court’s turns on common [is] construction principle of constitutional re- principles.8 remaining law case to be considered as used that words are jects claim that “constitu- the defendant’s Ajabu v. ordinary sense.” their (Ind.1998) jeopardy” (quoting prohibits Tucker tional double it, following subsequent cases 7. Sutton v. Games State, 232, Todd, example, (1966); Haak v. 695 N.E.2d 944 v. 243 Ind. 184 Dowd State, (Ind.1998), v. 688 N.E.2d and Valentin State, (1962); Tungate 4 v. 238 Ind. (Ind.1997), specifically declined to ad- 412 State, 48, (1958); v. N.E.2d 232 Mims (1957); 147 issues. Neither Indiana constitutional dress did 439, Ind. 140 N.E.2d 878 236 Haven modify they purport to address or statuto- State, 148, 125 N.E.2d 25 er v. 234 Ind. dealing ry doctrines with or common law State, 598, (1955); Woods v. 234 Ind. 130 multiple punishments. State, (1955); 139 Carter v. 229 Ind. N.E.2d 205, (1951). 273 96 N.E.2d declaring jeopar- large body 6. The law that sup- dy jury sworn also attaches when the is See, ports e.g., this conclusion. United States 476, State, v. 213 Ind. 13 8. See Kokenes Co., 564, 569, Supply v. Martin Linen offenses); (1938) (lesser included N.E.2d 524 1349, (1977) (jeopar- 97 S.Ct. dy 51 L.Ed.2d State, 583, N.E. 266 v. 202 Ind. Lawson sworn); jury when Maddox attaches (1931) (separate support and distinct offenses State, 92, 230 Ind. 102 N.E.2d 225 State, 417, convictions); Pivak v. 202 Ind. (same); (1998). § see also Ind.Code 35-41-4-3 (1931) (same). 175 N.E. only single There event in a trial one such regardless of the number of counts. State, (1860), 14 Ind. drawing aiming a fire- was cited for convictions arm, Blockburger and rules of statu- citing proposition that “the state cannot split tory construction.9 one crime in up prosecute parts.” it made Jackson no mention of the constitu- explicitly did not This Court itself state only tion and cites common law authorities. in multiple punishments proceed- Elder, Kokenes also cited State Ind. I, § 14 until ing violated Article Bevill v. (1879), recognized which the common (Ind.1985), law roots of jeopardy” the “former doc- clearly which incorrect citing earlier trine and concluded that: authority assertion. To for this under- begin stand with Kokenes v. point, person No put shall be twice (1938), 13 N.E.2d 524 213 Ind. for the same offense is a common-law as an majority example cites of a which, believe, principle, we is incorpo- multiple punishment jeopardy case. rated into the constitutions of each of That for great- case held that convictions compose the States which the United (armed er and offense lesser included rob- however, States. has provision, This bery robbery) could not It is stand. interpreted applied been uniformly however, not at all that Kokenes is a clear throughout In all the States. some it constitutional double case under been has held to mean no more than the either or state the federal constitution. principle. common.law First, Kokenes cites although some double Id. at 284. The Elder court summarized dealing with subsequent cases the then of the already confusing state law is no mention in prosecutions, there Ko- of principles, a set all of which dealt only kenes of either constitution. The with whether subsequent prosecution “jeopardy” mention term point It its brought. supported could sum- out because defendant convicted mary of the law with a series of citations to robbery in robbery and armed distinguished day treatises of its jeopardy.”10 case no “there was former very clearly problem dealt Id. at N.E.2d at 526 (emphasis subsequent prosecutions11 long and a list Nonetheless, original). con- robbery of cases from Indiana and elsewhere. The viction out Kokenes was thrown because Jackson, first two cited Indiana cases are may a defendant not be “convicted of com- and Bruce v. mitting robbery committing a rob- cases Neither of these made armed, bery where the while same identi- any mention of either the state federal cal Id. at robbery is involved.” prosecu- constitution. Each held a second spoke only N.E.2d at 526. The Court thus prosecu- a prior tion barred reason of language, law common constitu- tion, prose- citing “rule” that an earlier terms, tional and invoked rule that bars cution for the offense would bar a same the dual while in the very convictions second. opinion a claim of rejecting jeop- “former ardy.” Maryland, Benton U.S. (1969), cited 23 L.Ed.2d 707 authorities Kokenes also Fifth purely that it was for the first time held the Amend- demonstrate common example, applicable law For v. ment Double Clause holding. Jackson 548, State, See, prosecution. e.g., 9. Dunkle 241 Ind. 173 N.E.2d Wharton, Francis Amer- (6th 1868). (1961). 657 ed. ican Criminal Law noteworthy It is that the indexes 11.The title cited section in Wharton's to crimi- of the 10. 1868) (6th early nal law nineteenth and ed. "au- texts of the twen- Law American Criminal "formerly acquit” acquit- tieth not use the trefois which means centuries do term "double jeopardy” jeopar- according to ted” 134 but rather refer "former” to Black's Dictionary Law (6th ed.1990). dy, subsequent suggesting a sole focus on 62 next used the term “double proceedings. the same The Court

to state criminal of an re- jeopardy” opinion course the federal doc- announced year Pearce claim that his con- jecting defendant’s applied Fifth Amendment to trine that the asportation kidnaping victions years Three later multiple punishments. were error because the two were State, 587, Ind. 290 259 Thompson 665, Neal v. 266 366 offenses. Ind. (1972), explicitly this N.E.2d Court only “It is when two N.E.2d jeopardy ap- that double rejected claima proof require of the same fact offenses punishments, citing both plied multiple to jeopardy act that considerations I, § and Art. 14 of the Fifth Amendment 667, both.” at bar a Id. the Indiana Constitution: at The Court not cite N.E.2d 651. did Jeopardy clause is assur The Double proposition. either constitution ‍‌‌​‌​‌‌​‌​‌‌‌‌‌‌‌​​​​​‌​‌​‌​​​‌​​​‌​​‌‌​​‌‌‌‌‌​‌‍for this will not be allowed to ance that the State Elmore, 532, at 269 Ind. at attempts make to convict repeated 893, case with seems be the first to deal for the same offense. U.S. accused solely as punishments a constitu- multiple CONST, XIV; amen. V and IND. Elmore, cit- tional double issue. 1, 14; § Art. See Benton v. CONST. Pearce, ing solely viewed the issue as 784, (1969), Maryland, 395 U.S. 89 S.Ct. Fifth made no problem Amendment 707; L.Ed.2d Green United constitution. Elmore mention state (1957), States, S.Ct. correctly that expressly observed 199; Ar 2 L.Ed.2d A.L.R.2d was incorrect insofar as it dеalt Thompson State, (1938), 214 Ind. with the federal constitutional standard. mentrout v. question But Elmore did address Appellant has 15 N.E.2d 363. Since Thompson a correct whether remained judicial subjected pro been common law. El- statement charged, his ceeding for the offenses single pro- trial that more dealt claim inappropri of double duced convictions for both theft and con- ate. to commit theft. spiracy The Court 591-92, 259 Ind. at at 726 Appeals, invoking the common law doc- (emphasis original). Thompson none- “merger,” trine of held that two convic- impermis- theless held the dual conviction “merged.” transfer this Court tions On sible, federal or state not as a matter of view, took the which was inconsistent with doctrine, constitutional both and then recent13 author- venerable12 but a matter of state law: “[w]e rather as ities, “[tjoday, problem that of when may judg- hold the court enter that before may impose multiple punish- trial court upon impose multiple ment and sentence convictions on counts upon multiple ments counts, at trial single problem facts rise to various is a controlled giving largely by Clause of Double independently support- offenses must be the Fifth Id. at Amendment.” able, Id. separate and distinct.” Applying Blockburger, N.E.2d at 894. 727. I take it 290 N.E.2d at found were convictions applied multiple as punish- formulation proper they because were based on essentially ments amounts the same offense. more thing today’s majority’s precise way of rea- putting it—there should no au Elmore noted that earlier Indiana sonable had evi possibility set thorities “same developed rights facts test “to found supports convictions. dence” secure See, Elder, e.g., test at 282. 14.This is not the same advanced Ind. 12. presented majority. It turned on the evidence See, e.g., Candler v. trial, not the evidence used the trier (Ind.1977); N.E.2d 1233 Williams v. fact to convict. (Ind. 1978). N.E.2d 142

63 (Ind.1995) 77 provision of the state Brown v. 653 N.E.2d jeopardy the double (unreasonable seizure); that constitution”15 and observed search or Collins holdings pun (Ind.1994) previous multiple Court’s N.E.2d 72 Day, (equal , feder ishments were consistent with immunities); often and privileges Price State they al even if jeopardy (1993) (free double did speech). 622 N.E.2d 954 In 536, to from it. Id. at seem derive deed, opinions all of the in this case tread N.E.2d at 896. Because Fifth Amendment path. this independent had been held applicable significant16 post The first -Elmore au- Benton, proceedings to state criminal I, thority expressly § to refer Article to that we are “[n]ow Elmore concluded that appears of the Indiana Constitution to be Jeopardy bound the federal Double Bevill, 1247, 472 N.E.2d at which cited Clause, that necessary it more than ever Thompson authority, paired as the Indiana we be in line with federal standards.” Pearce, referring prohibi- with “the to 537, at Ind. at 382 N.E.2d 896. Constitution, I, tions of the Article any implication Insofar as Elmore has § 14 the Fifth Amendment constitution, for it on the the state turns against United States Constitution multi- proposition Dou- that because the federal ple punishments for the offense.” same states, applies ble to the Clause It Id. at 1253. is of correct that course (whether law or the state doctrine common Pearce stated that doctrine as to the Fifth constitutional) be conformed to fed- should Thompson, Amendment. But which dealt contrary eral constitutional law. This is to pos- with convictions trial for current state constitutional law in Indiana dealing drugs, sessing and held sure, and other To be have states. we that unequivocally had often adopted federal constitutional rules nothing punishment. to do with multiple counterpart. their interpreting state 1985, Only after Bevill was decided do See, e.g., Ajabu, (adopt- N.E.2d at 927 referring we find cases to double Burbine, ing Moran v. 475 U.S. the rule of state and citing federal constitutions 412, 1135, (1986), 89 L.Ed.2d S.Ct. punishments. dealing multiple incrimination). frequent- as to But self we instance, noted, every And in as Games ly history judicial precedent, find Indiana suggestion any no there is there is re- other factors dictate a different difference between the two constitutions. provision, sult under the state even where cases, tex- line of I take it that federal and state constitutions are From this See, tually e.g., notwithstanding suspect17 similar or even identical. the somewhat Durke v. 204 Ind. referred to the oft re- Elmore cited 17.One commentator 15. quote proposition. peated as the Su- 183 N.E. 97 for this above from Pearce Elmore, preme saying.” Dressler, See Ind. at 382 N.E.2d Court's "favorite subsequent prosecution supra, interesting § 896. Durke was It is that the au- 199[C]. multiple punishment proposi- case in which this Court found no bar thority it on a Lange, second because was based tion is Parte 18 Wall. Durke, (1873), Lange distinct offense. Ind. at 21 L.Ed. where incorrectly N.E. at 100. Elmore described carrying convicted of crime sentence of dealing $200, ‘'reprosecu- this case with both as one year or a fine of but sentenced punishment” multiple tion and issues. 269 year in.prison. $200 fine of and one to both a Ind. at paid, the fine was the error was discov- After Lange ered the trial court resentenced Dragon Supreme prison 16. The Court term. The Court held (1979), resentencing impermissible. defen- This se- N.E.2d 1046 recited the rape quential punishment dant’s claim his convictions issue bears little relation which, I, multiple today kidnaping punishments § did violated Article but to the infra, nothing purport really except explained to rule on the state issue to the entail more legislative pro- ruling implied by that a intent to extent state follow- than a review See, ing applying up- penalties. e.g., Blockburger Elmore vide United cumulative Rutledge, hold the U.S. convictions. States v. shows, years cases have in recent Pearce that the federal these in announcement a number multiple propositions been cited for Jeopardy Clause bars Double the holding barring multiple punishment no for same is such there punishments, However, I decisions that the extent that a number act. believe the except to Indiana decades, provi- found Indiana’s constitutional bound have last of cases sion, counterparts it existed or its other constitu- doctrine as constitutional federal tions, prohibit multiple punishments to Supreme Court decision before U.S. most, Dixon, if not cases unneces- many, 118 S.Ct. have U.S. (1993), artillery sarily invoked constitutional sometimes 125 L.Ed.2d rule, or law rifle usually citing statutory where common recited federal the job. cases would do Although these more recent Pearce. to claims under both resolve purported noted, Kokenes held that a lesser As constitutions, so they did and federal state cannot result a convic- included offense to any as how or where without discussion offense, but greater tion addition to the state rule arose. why this newfound solely so as a matter of common law. did contending was that there anyone no case that making also case law clear We have the two constitu- a difference between

was stand if the conspiracy conviction cannot law tions. Because federal constitutional object is overt act the crime is the Court, refer- binding on this these cases’ single that a element can- agreement, pure to state constitution ence enhance two offenses and that cases, is an These of which Bevill dicta. consequences support act cannot same Pearce for example, cited appropriately multiple Multiple convictions. convictions multiple proposition punishments rule es- in these cases are barred jeopardy protec- implicate federal in Thompson that “before the tablished any cited they But the extent tion. may sen- judgment impose court enter for the authority, example Thompson, for counts, upon giv- the facts multiple tence proposition under Indiana Con- ing various must rise offenses stitution, and con- they inaccurately, so did supportable, separate and independently holding Thompson. trary express to the Ind. at 290 N.E.2d at distinct.” 259 that, although there is Candler, The sum of this 727. See also 266 Ind. on the no case great point, deal of dicta (same); Williams, N.E.2d at 1233 whether from this Court has considered (same); at 642 high- a bar the Indiana Constitution raises Franks v. Amend- than or different from the Fifth

er (convictions and sentences for see, I can in no case ment. And far as as mur- felony premeditated murder and both until Indiana’s under- Games conformed were wherе der error there standing of federal double killing). Although the Elmore decision Dixon, note any potential did the Court disapproved Thompson rule that facts difference. rise must giving to various offenses “independently supportable, separate and

B. Doctrines Non-Constitutional appropriate distinct” standard Punish- Dealing Multiple multiple Fifth punishment Amendment ments challenges, I conclude that it is nonethe- I do not mean to less a viable under Indiana com- suggest doctrine law, demonstrated, finding multiple pun- bars mon as Bevill even if cases the Con- incorrectly incorrectly ishment in their Bevill attributed it to were decided As opinion results. Sullivan’s stitution. Justice (1996); Missouri L.Ed.2d 535 L.Ed.2d

Hunter, U.S. S.Ct. an through Dixon back to entrenched sup- are then law doctrines common These Blockburger analysis. At legisla- rule that and refortified by the well-settled ported a statute has been assumption expressed, after tive reenactment the time this imply see, will that the was, the courts explicit I no construed there as far as can interpreta- with the adopted “was statute that suggestion contention or the state which said courts construction tion and dif- provision might constitutional have a McIntyre v. had enumerated.” Amendment, from the Fifth ferent content (1908). 168, 164, N.E. Certainly Thompson suggests. as Games the more recent cases or not Whether of both constitu- expressed a different view in were correct announcing these rules event, even if the any tions as of 1972. part from they that are derived claiming correct, it assumption Commission’s I, § 14 or Article federal constitution does not amount commitment Constitution, can be there the Indiana future Indiana state law to unknown feder- ap- rules have been that these no doubt Rather, at best developments. al doctrinal Accord- years. over the repeatedly plied law it that double recognition is in- legislature may we assume ingly, it understood in 1976 is reflected as was interpreted be criminal laws to tended the statutory provisions. some or all of these point This these doctrines. in concert with However, noted, already at least some as light of the powerful particularly common rules are derived from of these criminal code on the the 1976 adoption of and predated that both state law doctrines then recent decisions heels of the go extent constitutions and to some federal Thompson and Candler. consti- requirements of either beyond the statutory prohi- in Indiana also have We under- They are nonetheless well tution. the Model Penal Code bitions based on principles workable generally stood and (1) conspiracy for convictions prohibit footing. require no constitutional crime; attempt to commit and multiple punishments problem The attempt- crime attempt and the handlеd as a matter of com- can thus be (1998). § As not- 35-41-5-3 ed. Ind.Code statutory or construc- mon law doctrines II, statutory prohibi- we have a ed Part tion, by explicit either direction guided for both against sentencing person tion the cited statutes legislature, from the offense” in the crime and an “included rules of by commonly cited provide, § same case. Id. 35-38-1-6. legis- presumed statutory construction were taken provisions These lative intent. and have coun- the Model Penal Code from but never terparts proposed in the then Basis Finding Constitutional C. The adopted Federal Criminal Code. Ac- Punishment Doctrines Multiple Study Law Commission Indiana Criminal Little complishes con- that the state and federal “assumed” dimension Finding a constitutional were coextensive. provisions stitutional Study under double cases multiple punishment Commission, Indiana Law CRIMINAL pro- to the does not add jeopardy doctrine Final Draft Penal Code PROPOSED provi- afforded under other already tection (1974). was made at the assumption This constitutions. of the state and federal at- sions was under severe Blockburger time it in his put tack,18 As Justice Souter before the federal consti- long in Dix- dissenting opinion Grady, concurring doctrine moved first tutional Draft, therefore, to use the is careful not argument appro- beyond that the 18. It seems years priate Blockburger approach the number of and to this extent sentence and punished for an offense which a man shall existing changes Federal law. rationally a function of number is not statutory Working Papers National Commission into which his conduct violations (1970). Criminal Laws Reform of Federal parsed by pleader. may clever on, punishing completed of dou- also the punishment branch Mbit multiple States, designed to ensure transaction.” Albrecht v. United law ble for one of- 71 L.Ed. 505 receiving “is not S.Ct. the accused Appeals autho- punishment The Indiana Court sim- than fense more observed, ilarly rized.” 509 U.S. this, To howev- achieve L.Ed.2d 556. prevent Legis- there was nothing

er, further constitutional basis need no we enacting making lature from a statute of the Four- than Process Clause the Due sale of step leading up each to the intox- course of the due teenth Amendment unlawful, beverage icating liquor as a our Constitution. law of provision and, so, doing possession it made the by A in excess of that authorized sentence intoxicating and the mainte- liquor of It provisions and more. law these violates place a to persons congre- nance of for post merely an unconstitutional ex is not drinking for the of gate purpose sepa- sentence; imposi- an facto it is increase rate offenses. never at all. tion a authorized penalty Thompson Ind.App. such, resort

As it invalid. Thus plainly is (1929). can imagine 167 N.E. One unnecessary is jeopardy wholly to double finely grad- a calibrated criminal code with penal- to invalidate a sentence outside aggravating uated sentences for each ele- is ties statute. The issue provided produce ment that would in net result the the statute does or does simply whether punishments as multiple same sentence punishment. authorize of crimes under ex- various combinations way, it point isting Assembly another law. has To make the same General wisely to chosen Jeopardy complicate the Double Clause not to matters trivializes does, code, it, with with criminal if equate as federal doctrine such intricate but so, example, our there no legislative jeopar- intent.19 For it did would be bodily bar.20 If all must dy legislature held one serious do to courts have robbery impose higher penalties properly is injury cannot elevate both identi- fy A Odom one combined offense where were battery to Class felonies. out, (Ind.Ct.App.1995). formerly spelled Double Jeopardy N.E.2d 377 However, presents legislative create a check on legislature could Clause no objective Similarly, “AA” that consist of on.” if one “piling new felonies class battery bodily injury by the Double is or to “inflicting ought serious Clause discretion, penalties a with restriction of robbery” prosecutorial the course of equal present sentences for the omnibus restrict that dis- to the sum crime does cretion, if Supreme A felonies. As the viewed as the alternative to the two Class component is under sixty years ago, “[t]here list of crimes current noted prevents law. But the is also nothing legislature in the Constitution which free ascendingly each punishing separately complex create series of Congress from crimes, step each included of those leading to consummation lesser power pro- regime, prosecuto- it has it. Under transaction which above such (1975) (citation omitted). guarantee "[T]he "[D]ouble role constitutional assuring is court does not protection against punishments limited to that the is cumulative by impos- legislative exceed its authorization sentencing designed to ensure that discre- ing punishments of- multiple for the same is tion of courts confined to the limits estab- Ohio, 161, 165, U.S. fense.” Brown Johnson, legislature.” Ohio v. lished (1977). L.Ed.2d "The test S.Ct. 493, 499, U.S. S.Ct. L.Ed.2d Blockburger generally articulated in serves identifying congressional similar function of impose separate intent to sanctions for multi- complex 20. For the view crime is ple arising single course of a offenses component from the of its different collection U.S., 420 U.S. act or transaction.” Iannelli v. crimes, see the Comment cited in footnote 1. 770, 785, n. 43 L.Ed.2d wrong subsequent prose- crime to be rule for select the rial discretion un- smorgasbord from this in order to charged cutions avoid undesired results bounded, multiple give the just as counts multiple punishment on the front. The major today. prosecutor bargaining power has phenomenon occurred in federal leg- Ultimately the decision rests with jurisprudence. As Justice or not prosecu- islature to vest vest wider it in his put concurring White charge discretion to crimes with torial dissenting opinion in Dixon: penalties. remains greater or lesser This statutory To focus on the elements of a view has of the Double true whatever crime makes sense cumulative where Jeopardy Clause. stake, punishment is at there the aim D. Constitutional Provisions Other in- simply legislative to uncover Punishment Deal with Excessive .... ... legisla- tent But adherence un- The conclusion that double very tive will has little to do with the I, § implicated by 14 is der Article not interests important by advanced in trial is multiple punishments the same jeopardy safeguards successive against that, fact the federal by fortified the unlike The prosecutions. purpose central constitution, in- the Indiana Constitution being the to Jeopardy Double Clause restrict the provisions cludes other that protect against multiple prose- vexatious “pile to ability prosecutor of a or a court cutions, go beyond these well interests by finding multiple statutory on” violations prevention of punish- unauthorized I, First, § in action. Article single a ment. requirement penalties a that be imposes of- to the nature of the “proportioned Although (emphasis substantial- citations omit-

fense.” courts defer L.Ed.2d and ted). ly legislative judgment setting to crimes, penalties legisla- for defined problem mixing multiple punish- this not free from under

ture is restraint subsequent high- is ment See, State, provision. e.g., v. Conner by single a act multi- lighted that violates (Ind.1993). Second, appel- N.E.2d 803 or, statute, ple violating single a statutes late courts of state are authorized injures multiple victims. Under current VII, §§ under Article 4 and 6 to “review law, everyone agree seems to that it must sentences, on occasion do and revise” Mils possible charge to a who person judgment punish- so based on that the people with two The term two murders. to the crime ment is excessive relation simply offense” cannot to the “same refer of the the char- or the nature offense and crime, un- statutory same or it would be Appellate the offender. acter of See prosecute per- constitutional 17(B).21 Rule for two murders at differ-

son committed Juggle in Trying E. The Problem places. times and But order to ent Two Strands Double reach the conclusion that we have crimes, we look at the facts different must that from confound- The mischief arises crimes, only of the two and not the stat- ing the two branches into one doctrine hand, if they utes offend. On the other is it restricts solely actions of the the “offense” provision in the subse- application acсused, impossible impose it would be quent most prosecution arena where it is my up murdering view two vic- greater punishment needed. we have ended See, State, J.); State, (Sullivan, Gregory v. e.g., v. 644 N.E.2d 543 Archer 21. State, 1994) (Ind. C.J.); (Shepard, Beatty 1997) J.); (Ind. (Selby, Weeks v. (Ind. 1991) (Dickson, J.); N.E.2d 1134 1998) (Ind. (Boehm, J.). N.E.2d 28 (Ind.1996) Mayberry N.E.2d 1262 act, a nonconstitution- burning estoppel as example Collateral tims reprosecutions. al can bar some two inhabitants.22 doctrine killing down a house However, prose- persistent I do think by single Timothy McVeigh, who Take be a constitu- of the same act should cution in the federal act victims murdered and, result, tional as Griffin If that City building in Oklahoma (Ind.1999), today, decided N.E.2d 73 also prosecutors in this state could occurred demonstrates, estoppel imposes collateral times, not- try McVeigh 168 charge and reprosecution. minimal restrictions on they until multiple acquittals, withstanding estoppel prin- collateral is derived Because evi- the actual a conviction because obtain grounded and is cipally litigation from civil of a victim would of the death dence judicial economy fair- doctrines con- case? must also different each We ness, do into its rules not take consider- in one of a conviction possibility sider important ation the concerns underlie trials, includ- but on a lesser of the earlier I, Article Section Fifth both resulting sentence ed in a lesser offense include the Amendment.23 These onerous prosecu- penalty. than the death Can toll that even successful exacted until it ob- pursuing McVeigh keep tion deep rooted historically ap- defense and multiple penalty after the death even tains king should not be prehension I cite produce that result? trials do pursue repeatedly. a citizen permitted McVeigh hypothetical to dramatize However, problem substantially arises This is the same point. same issue Swenson, multiple presented in Ashe v. place that was more common scenarios 436, 1189, 90 25 of reck- L.Ed.2d 469 victims. Should driver accused S.Ct. (1970), majority face where a of the by running light a red substantial less homicide Supreme there States Court held that separate prosecutions four because United estoppel constitutionally a driver collateral passengers were three hit? in the Fifth Amendment Double grounded car the driver The actual evidence Ashe, the Fifth all of these Clause. presumably permit test would repeated of the to bar reprosecutions because element Amendment held by dif- on different victims supplied prosecutions victim—could be based crime—a allegedly at evidence each case. whom defendant robbed ferent many two con causes to fail. See Earlier double law held claims Dressler, 22. States, ("The estoppel § 358 supra, victions barred. Lаdner v. United collateral 207[B] doc 209, 169, 79 S.Ct. L.Ed.2d 199 U.S. 3 value practical trine is of limited to criminal discharge shotgun injured (single from defendants.”). Indeed, particularly if the first supports only count two federal officers acquittal, jury's of the result is an the basis deadly weapon). with a This is not of assault Appellate ruling is often unascertainable. re State, today. Kelly See v. 527 N.E.2d the law panacea view is no because settled federal (Ind.Ct.App.1988), 539 1148 summ. aff'd. appellate precludes law re 1989) (Ind. (where deaths N.E.2d 25 several Linen, see, acquittals, e.g., view of Martin 430 single injuries or occur in course of a the. 564, 1349, 642, 97 51 L.Ed.2d U.S. at S.Ct. sev incident the offense has been committed and, Indiana, acquittal at least in cannot also, times); 4 eral see G. Joseph Cook, Consti by special verdicts and be illuminated inter (3d Rights § 7 29.40 n. tutional of the Accused 49; rogatories. See Ind. Trial Rule Ind.Crim. 1996) (collecting sustaining ed. convic cases Supreme 21. As the Stales Rule United act). charges multiple single tions context, recently observed in a different "it is exactly why jury impossible to know found a 23. Perhaps estoppel would come to collateral guilty charge.” defendant not on a certain aid, McVeigh’s but it is a reed indeed slender 148, Watts, 155, v. U.S. 117 United States 519 requires general because it that the facts 633, (1997) (per 136 cu S.Ct. L.Ed.2d 554 McVeigh requiring as of a asserts dismissal riam) (holding acquittal pre does that an subsequent necessarily indictment be basis courts, imposing when clude federal district sentences, acquittal conviction. See for the earlier State, 727, (Ind. considering underly from conduct v. 632 731 Townsend N.E.2d 1994). showing difficulty making ing acquitted charge). 447, game. ported authority. at at least some Indiana poker Id. S.Ct. State, example, For v. L.Ed.2d It seems me that Clem 42 Ind. 420 (1873), Dixon, Blockburger no more by retreating to which is “isolated” than any between several other rejecting multiple opinions difference erratic histo- ry of subsequent prosecutions, de- punishments this State rejects as a scribed in implicitly majority’s opinion. also Ashe matter Cf. (citing at N.E.2d at the following federal constitutional law. U.S. cases 704-05, employing analysis 125 L.Ed.2d 556. statutory both ele- ments and the conduct of the defendant: Indiana cases after Ashe but decided State, (1859)) Wininger 13 Ind. find a applied Dixon Ashe to bar to before (“[t]he be, question would the one act “necessarily the use of evidence of facts other?”); Durke, included in the See, prior e.g., in a trial. decided” Kuchel at 183 N.E. at 97 (describing (Ind.1991) 570 N.E.2d “identity of the offense” test whether as N.E.2d (citing Little charge the second was for the “identical (Ind.1986)). A speak barring few “the first).24 act” as the It is also the test relitigation reintroduction or facts al- by Thompson embraced although applying See, first trial. ready established” prohibitions law mul- against common Boles v. e.g., tiple punishment. 259 Ind. at (Ind.Ct.App.1992). These Indiana authori- (“facts giving rise to the estoрpel ties find collateral notions to be various must independently offenses based, constitutionally Ashe im- clearly distinct”). supportable, deal, But these cases ex- plied. least only with plicitly, the federal constitution Grady comparison held that mere of the not mention and do Double statutory elements was insufficient they Jeopardy Clause. Unless are also subsequent prosecutions. jeopar- Double grounded in the state found constitu- dy, requiring comparison addition to tion, Dixon seems to leave these notions statutes, proscribed “any subse- footing. without constitutional prosecution in quent govern- which the ment, to an essential element of establish Kuchel, result, The Ashe followed in as prosecution, an offense in that charged will cases, Little and other Indiana is essential- that an offense prove conduct constitutes that ly the double doctrine I be- which has already for the defendant been lieve should be under the followed state 521, prosecuted.” 495 at 110 U.S. S.Ct. subsequent prosecu- constitution. For (footnote omitted). 2084, 109 548 tions, L.Ed.2d I would follow the “same conduct” Grady only for how- years, survived three that analysis adopted Grady, in ever, 508, 2084, rejected by in Dixon favor at U.S. S.Ct. L.Ed.2d 548, apparent return the “same ele- for federal law in the Dixon, Blockburger. prosecution in ments” test of subsequent context. This is See 712, 2849, most cases more the same 509 U.S. at 113 S.Ct. thing or less as facts” Among the “same from earlier Indiana L.Ed.2d the reasons offered Scalia, writing five-justice cases. The conduct” test Justice for sup- “same Elder, nan, J., majority concurring). points 24. The at I find Elder to some- 282, rejected thing what it called "same set of a derelict on the of our state waters Clem, permit a of facts test” and seems to law. It no mention of subse- makes 420, earlier, quent prosecution essentially years act could have decided six injured agree sweeping where it I been two victims. decided on its facts with less case, case, although language given apparently not a constitutional that the defendant contrary urge. attempts interesting- to the I It made two to cause the abor- result distinct single ly only charged is the court case cited tion and the first was in the first state in Ashe example along as an with some federal cases indictment. None of the other cases seems to Ashe, subsequent rejects. prosecution to permit of the doctrine Ashe 397 U.S. claim (Bren- at 90 S.Ct. 25 L.Ed.2d 469 based on actions. subsequent agree an as seemed to Grady, was overruling in majority jeopardy con- trigger double consistency prosecutions be doctrinal need for serted 114 S.Ct. 511 U.S. at and subse cerns. punishment multiple tween Grady longer is no Although If L.Ed.2d 767. lines. a different quent Double the law under the federal prose subsequent applied methodology Clause, agreе with the views generally I would cutions, “same offense” phrase White, Souter, Stevens, meaning on Justices depending than one have more Blackmun, Grady Dixon. who defended 704, 113 S.Ct. Id. the context. 743-763, id. at S.Ct. See L.Ed.2d 556. Souter, J., concur- (opinion of L.Ed.2d 556 anomalous to find it seems agree I and dissent- part ring judgment in the same consti- different standards analysis beyond part).25 Some ing the con- depending on provision tutional re- statutory always will raw elements attempt reconcile Rather than text. con- subsequent prosecution quired Constitution, I two under con- seems to text. Indeed Dixon itself issues multiple punishment resolve

would firm this.26 law and stat- the common by reference to sum, I answer to the In believe the Grady “same with the utes and remain here is not claims raised constitutional subsequent prosecutions. test for conduct” name of noted, a uniform test in the Indeed, adoption already Justice Scalia Dixon, Rather it is to rec- consistency. Ranch, year after doctrinal just one Kurth States, Supreme of the United States recently, Hudson v. United 25. Most issue under the federal Dixon resolved this L.Ed.2d 450 S.Ct. constitution, now, with a return to at least for (1997), concurring opinion in a Justice Souter Blockburger, impediment to our but I see no Blockburger permit as the test for endorsed point. charting its own course on this state prosecution under a differ ting subsequent proof facts requiring of different ent statute genealogy proceeding. Id. The first from the of the under- need to take some stock 26. The explain Blockburger may some of the blur dealing subsequent lying when facts itself, important between ring differences prosecutions of the Dixon not- is illustrated multiple punish subsequent prosecutions Grady. writing withstanding the demise of Blockburger convic itself sustained majority that overruled ments. the five-member separate counts based on the same Grady, emphasized that the fed- tions Justice Scalia (a narcotics) the two stat inquiry traditionally because fo- act sale eral double Dixon, (sale original drug of its Blockburger outside utes test. cuses on 703-12, drug prop without a package and sale of 125 L.Ed.2d U.S. hand, required proof purchaser) request addressing er from the the case at 556. But when Blockburger cited Gavi beyond different and of elements. the statutes Justice Scalia looked 338, States, 220 U.S. 31 S.Ct. finding jeop- v. United eres the in a double considered facts Albrecht, 421, (1911) and 273 splintered L.Ed. 489 ardy approach 55 violation—an 505, 1, 250, away 71 L.Ed. for this agreed U.S. at 47 S.Ct. block that to do the five-member 697-703, permitted subsequent a proposition. Grady. Gavieres S.Ct. See id. at 113 with J., Scalia, 2849, prosecution act based a dif (opinion for same on L.Ed.2d 556 of 125 It, however, J.). relied on a Mas ferent statute. joined by Kennedy, Chief Justice Rehn- approval with in Carter separately point sachusetts case cited noted quist wrote on this and 181, MсClaughry, (if U.S. 22 S.Ct. 46 inconsistency) of irony not internal Gavieres, at focusing analysis: "By L.Ed. 236 on the Justice Scalia’s Carter, turn, specif- 55 L.Ed. 489. 31 S.Ct. a facts to show violation needed case, multiple-count a indictment involved in this and not ic court orders involved upheld Similarly, proceeding. generic Albrecht ... same elements of the crime on the selling possessing analysis and convictions for Scalia's double Justice striking 273 U.S. at 47 S.Ct. to that found liquor. same bears a resemblance cases, excep expect in an Grady line of with the one would L.Ed. 505. This what —not Gavieres, Grady.” Id. at multiple-count opinion deals that overrules tion of indictments, (opinion prosecutions, S.Ct. 125 L.Ed.2d subsequent not J., O'Connor, C.J., joined by multiple punishment Rehnquist, and Gavieres relies on Thomas, J.). view, its, holding. my for incorrect cases arising addressing issue, of a punishment precisely out I ognize that would it present jeop- apply according to its terms and single forego trial does Indeed, earlier, judicially reliance fashioned ardy issue. as noted remedies general under the much more Due Process going concern in Indiana cases back to Clause. . quoted rules announced Elder clearly prose-

Kokenes is whether second II. Resolution this Case pursued, not may cution be whether Under Statutes may charged crimes be convictions and Common Law proceeding.27 result complains I believe correctly Richardson conviction, of his dual but not on constitu- note, I As a final do believe grounds. tional As Justice Sullivan ob- subsequent can ade- prosecution issue serves, we have held that “conviction and quately handled other constitutional punishment for a crime that is a lesser provisions. Due Process Clause included offense of another crime for sug- has also federal constitution been which the has defendant been convicted prosecutions as a to gested subsequent bar punished” prohibited.28 Amar, act. Akhil for See Reed (Sullivan, J., concurring). We also Simple, Double Law Made prohibits have a statute that conviction for (1997). Although Yale L.J. 1807 at some § an included See offense. 35- Ind.Code point repetitive prosecution may run afoul (1998); § also 38-1-6 see 35-41- Ind.Code Clause, of the Due Process under least (1998) offense”). (defining 1-16 “included subsequent precedent, prosecu- current typically Because we do not resort to essentially tions the same action have constitutional where a statutory resolution permitted been forward go without do, I one will would decide this case under process mention of due as Elder other Bayh Sonnenburg, the statute. See cases in Ashe More- cited demonstrate. (Ind.1991) (it duty N.E.2d is “the over, gives process guidance little due upon of the court not to enter the consid- Rather, enough enough. when invoked eration of a questions constitutional where prosecution, a bar it subsequent as perceive ground court can another seems akin to Justice famous Stewart’s may its upon properly it rest deci- obscenity: test for must know it when we sion”) (citing Bureau Motor Vehicles v. Ohio, we see it. See Jacobellis v. U.S. Scott, (Ind.1986)). 184, 197, 1676, 12 L.Ed.2d J., (Stewart, matter, concurring). preliminary Because As a we must be have specific provision inquiry. we constitutional clear about the nature following robbery necessary 27. Elder deter- when the offered rules to facts —and provisions subsequent prosecution were mine whether convict on a second would nec- first, permitted. essarily have convicted on then judgment first to final will be 1. When the facts but one of- constitute a bar to the second. fense, though susceptible may it divi- 3.But the same facts constitute two when larceny stealing parts, sion into offenses, lesser or more wherein the offense property several articles of time, at the greater, necessarily in the is not involved belonging person, pros- to the same a necessary and when to convict on the facts part judgment stealing for a ecution to final prosecution necessarily not second would subsequent the will to a of articles be a bar first, on the then the first have convicted stealing any part other second, articles, prosecution will not be a bar to the by the stolen the same act. although both the offenses were committed facts 2. When the constitute two or more offenses, by at the same time and the same act. wherein the lesser offense is nec- greater 65 Ind. at 285. essarily involved in an as- the —as battery, sault involved in assault is an and See, State, e.g., battery an Bivins 642 N.E.2d as assault and is involved in an (Ind. 1994); Wethington batteiy intent to commit a assault with (Ind.1990). felony, larceny as a is in a involved only underlying felony. claim that the does not The statute evaluating a statute can battery and by for both triggered any convictions be of several permit felonies etc.). the (arson, need look at whether robbery, robbery, we rape, Ind.Code by proof 35-42-1-1(2) (3) (1998). “is established included offense § & And even if than all material elements or less list, robbery only felony were the required to establish elements the material one would still need to examine the charg- charged.” of the offense the commission ing instrument or the evidence know 35-41-1-16(1) § See Ind.Code the robbery supporting felony whether the an necessarily involves more than This robbery resulting murder is the same the statutory elements examination robbery the conviction. of both the evidence requires inspection The resolution of Richardson’s case is charging at trial and the instru- produced controlled the lesser included offense sure, “in- To the definition of ment. charged statute. Richardson was § 35-41- cluded offеnse” Indiana Code battery bodily injury “that resulted 1-16(1) the of the of- looks to “elements” that the defendant a certain Jeffrey beat 35-34-l-2(d), fense, § which re- unlike Koenig W. with his fist to the extent that identify charging instrument quires [Koenig] bodily injury.” suffered He can However, the the “facts” of the offense. in this proceeding be convicted that the specifically also states definition battery, just any battery not old some “proof’ look to of the ele- court must the place. time or other Evidence trial ments, necessarily at both requiring a look demonstrated the use of force and the evidence charging instrument robbery beating me, Koenig Richardson’s conclusion, is at trial. The it seems to result, with his fist. As a we know that em- that an “offense” under both sections statutory battery constituting the force prohibition, charg- braces the ‍‌‌​‌​‌‌​‌​‌‌‌‌‌‌‌​​​​​‌​‌​‌​​​‌​​​‌​​‌‌​​‌‌‌‌‌​‌‍robbery battery the accused is the ing instrument the acts of same as the convicted, that violate statute. which Richardson tossing Koenig bridge.29 off the The when inescapable This conclusion seems fact that trial supported evidence at of a con implications one considers uncharged battery per this other does not Surely robbery trary view. is not jury uncharged mit the to convict on that robbery of a same “offense” another crime, battery, any for that other mat day merely on be different victim another ter, charged. that was not Hobson v. cause the same statute breached. (Ind. 675 N.E.2d 1095 n. felony on a example of a murder based 1996) (“A may defendant not be found killing robbery incident to a also illustrates guilty charged of a crime that is not charged A with a point. defendant him, convicted, against and if so ver felony murder cannot convicted of both law.”). contrary Accordingly, dict is felony underlying murder and the felo battery constituting an element of the rob See, ny. Many e.g., cases so hold. Swaf cannot also bery support independent 1191-92 ford (Ind.1986). it battery conviction because But in reach that estab order to lished “less than all the material needs than ex ele conclusion one to do more required to felony the statutes. The murder ments establish the commis amine robbery as the identify robbery. statute does sion” elevated majority certainly pass battery actu- causing 29. The states that there was no muster as bodily injury injury resulting bodily challenge al evidence of from if this based were a Nonetheless, Koenig sufficiency pushing bridge. off Because the evidence. "bodily injury” physical pain, we know that cannot be includes Richardson convicted (1998), battery Koenig § pushing 35-41-1-4 conclude that I involved in off Code bridge charged support there was evidence to a second bat- because he was with bat- tery. Tossing beating bridge tery by Koenig would fist. someone off with his conclude, I consistent with discus above,

sion that the definition included §

offense under Indiana Code 35-41-1-

16(1) necessarily involves look

charging proof instrument and at trial. that, we do we see that Richardson’s

When robbery battery

convictions for both Code, permitted

are not under the Indiana

irrespective jeop constitutional double

ardy considerations. The dual convictions rule, fall

also under often invoked with statute,

out reference to the that one crime

cannot enhance another and sup both also See,

port e.g., King conviction. (Ind.

ery v. 495-496

1995).

SELBY, J., concurs. GRIFFIN, Defendant-Appellant,

Eddie Indiana, Plaintiff-Appellee.

STATE

No. 18S02-9910-CR-505.

Supreme of Indiana. 1, 1999.

Oct.

Case Details

Case Name: Richardson v. State

Court Name: Indiana Supreme Court

Date Published: Oct 1, 1999

Citation: 717 N.E.2d 32

Docket Number: 67S01-9910-CR-506

Court Abbreviation: Ind.