Court of Appeals of Indiana | Memorandum Decision 02A05-1509-CR-1400 | April 6, 2016 Page 1 of 7

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Randy M. Fisher

Deputy Public Defender

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

J.T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Roger E. Carlson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

April 6, 2016

Court of Appeals Case No.

02A05-1509-CR-1400

Appeal from the Allen Superior 

Court

The Honorable John F. Surbeck, 

Jr., Judge

Trial Court Cause No.

02D04-1411-FA-48

Baker, Judge.
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[1] Roger Carlson appeals following his convictions for Rape,1 a class A felony,

two counts of Criminal Deviate Conduct,2 a class A felony, and Criminal 

Confinement,3 a class A felony. Carlson argues that the rape and criminal 

deviate conduct convictions violate the prohibition against double jeopardy. 

The trial court ordered the sentences for rape and criminal deviate conduct to 

be served consecutively, which Carlson contends was erroneous. Finding that 

the convictions do not place Carlson in double jeopardy and finding no 

sentencing error, we affirm.

Facts

[2] On June 24, 1999, around 11:00 p.m., V.C., who was in her twenties, went to a 

bar in Fort Wayne. While at the bar, V.C. met and spoke with a stranger who 

identified himself only as “Mike.” It was later determined that “Mike” was 

Carlson. Carlson and V.C. talked, danced, and had drinks together throughout 

the evening. 

[3] Sometime after midnight, V.C. left the bar to walk home. Carlson approached 

her in his truck and offered her a ride. She declined. He then forced V.C. into 

his truck at gunpoint and drove to a cornfield in northern Allen County. Once 

they arrived at the cornfield, Carlson forced V.C. to remove her clothes and 

 

1

Ind. Code § 35-42-4-1.

2

I.C. § 35-42-4-2.

3

I.C. § 35-42-3-3.
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wrapped her bra around her neck. He forced V.C. to perform oral sex on him 

and choked her with her bra if she did something he did not like. Carlson 

repeatedly forcibly penetrated V.C.’s vagina and anus with his penis. V.C. was 

afraid that Carlson would kill or seriously injure her.

[4] After these assaults continued for some time, Carlson then forced V.C. back 

into his truck and drove to another location near a railroad track. Once there, 

Carlson made V.C. pull down her pants and he raped her again. When she 

screamed, Carlson struck her in her vocal cords. Carlson held a large rock up 

over V.C.’s head and she prayed that she would see her children again. He 

said, “You’re lucky I’m not going to kill you,” and then he let her go, left her 

there, and drove away. Tr. p. 38. V.C. eventually made her way to a store and 

called her mother, who took her to a hospital. V.C. sustained pain in her head, 

neck, and leg, bruising, vaginal tears, widespread redness to her labial and anal 

areas, and blunt force trauma to her sexual organs.

[5] A sexual assault examination took place at the Sexual Assault Treatment 

Center, and evidence, including DNA samples and vaginal, cervical, anal, and 

oral swabs, was collected with a sexual assault kit. Law enforcement was 

unable to identify a suspect in 1999 and the case was closed, but the kit and the 

evidence were preserved. Around 2013, the Fort Wayne Police Department 

began reevaluating cold cases involving sexual assaults. The evidence from 

V.C.’s assault was submitted to a national database of DNA profiles. The 

evidence indicated that Carlson was V.C.’s attacker.
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[6] On November 19, 2014, the State charged Carlson with class A felony rape, 

two counts of class A felony criminal deviate conduct, and class A felony 

criminal confinement. A jury trial was held on July 29 and July 30, 2015, and 

the jury found Carlson guilty as charged. Following an August 27, 2015, 

sentencing hearing, the trial court sentenced Carlson to thirty years 

imprisonment for the rape and criminal deviate conduct convictions, to be 

served consecutively, and to ten years for the criminal confinement conviction, 

to be served concurrently with the other sentences, for an aggregate sentence of 

ninety years imprisonment. Carlson now appeals.

Discussion and Decision

I. Double Jeopardy

[7] First, Carlson argues that his convictions for rape and criminal deviate conduct 

violate the prohibition against double jeopardy. A double jeopardy claim 

presents a pure question of law to which we apply a de novo standard of 

review. Sloan v. State, 947 N.E.2d 917, 920 (Ind. 2011). Under Article 1, 

Section 14 of the Indiana Constitution, two offenses are the same offense in 

violation of this double jeopardy provision where, with respect to either the 

statutory elements of the challenged offenses or the actual evidence used to 

convict, the essential elements of one of the offenses also establishes the 

essential elements of the other challenged offense. Spivey v. State, 761 N.E.2d 

831, 832 (Ind. 2002).
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[8] Carlson concedes that the statutory elements of rape and criminal deviate 

conduct are not the same, arguing solely that the same actual evidence was used 

to support both convictions. In considering this argument, an appellate court 

will find a double jeopardy violation only where there is a reasonable possibility 

that the evidentiary facts used by the factfinder to establish the essential 

elements of one of the offenses may also have been used to establish all the 

essential elements of the other challenged offense or offenses. Hines v. State, 30 

N.E.3d 1216, 1222 (Ind. 2015). Our Supreme Court has emphasized that as 

long as “each conviction require[s] proof of at least one unique evidentiary 

fact,” there is no violation of the actual evidence test. Bald v. State, 766 N.E.2d 

1170, 1172 (Ind. 2002).

[9] The evidence supporting Carlson’s rape conviction included the fact that he had 

vaginally penetrated V.C. The evidence supporting the criminal deviate 

conduct convictions, on the other hand, included the respective facts that 

Carlson had orally and anally penetrated V.C. In other words, each of these 

convictions requires proof of a unique evidentiary fact. We find no violation of 

double jeopardy principles and decline to overturn the convictions on this basis.

II. Consecutive Sentences

[10] Next, Carlson argues that the consecutive sentences for his rape and criminal 

deviate conduct convictions was erroneous. He frames his argument by citing 

to the continuing crime doctrine. This doctrine, however, is “limited to 

situations where a defendant has been charged multiple times with the same 
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offense.” Hines, 30 N.E.3d at 1219. Here, as noted above, Carlson was charged 

and convicted of three distinct offenses, each requiring proof of unique and 

distinct facts. Therefore, the continuing crime doctrine does not apply. 

[11] We suspect that Carlson intended to argue that his crimes constituted a single 

episode of criminal conduct, rendering consecutive sentences erroneous. See 

Slone v. State, 11 N.E.3d 969, 972 (Ind. Ct. App. 2014) (holding that to 

determine whether crimes are a single episode of criminal conduct, focus is on 

the timing of the offenses and the simultaneous and contemporaneous nature of 

the crimes). Even if Carlson had made this argument, however, he would not 

have succeeded. Carlson forced V.C. into his truck at gunpoint and drove her 

to a cornfield, where he forced her to remove all of her clothes, choked her with 

her bra, and assaulted her orally, vaginally, and anally. Just when she thought 

the nightmare was over, he forced her back into the truck and drove her to a 

second secluded location. The second time, he forced her to take off her pants 

and committed a new, second round of sexual assaults against her, this time 

striking her in the vocal cords. In other words, he committed multiple sexual 

assaults on his victim in two places, at two times, in different ways, separated 

by a subsequent confinement and after transporting her by force a second time. 

We do not find that these actions constitute a single episode of criminal 

conduct; consequently, we find no error in the trial court’s decision to order the 

sentences be served consecutively.
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[12] The judgment of the trial court is affirmed.

May, J., and Brown, J., concur.