ATTORNEYS FOR APPELLANT			ATTORNEYS FOR APPELLEE

Susan K. Carpenter					Jeffrey A. Modisett

Public Defender of Indiana				Attorney General of Indiana

Gregory L. Lewis					Geoff Davis

Deputy Public Defender				Deputy Attorney General

Indianapolis, Indiana					Indianapolis, Indiana

In The

INDIANA SUPREME COURT

ROBERT RICHARDSON, II			)	

		Defendant-Appellant,		)			

							)

		v.					)	67S01-9910-CR-506

							)					 STATE OF INDIANA,				)

		Plaintiff-Appellee.			)

                          ________________________________________________  

APPEAL FROM PUTNAM CIRCUIT COURT

The Honorable Diana LaViolette, Judge

Cause No. 67C01-9609-CF-74

                        _________________________________________________

On Petition To Transfer

October 1, 1999

DICKSON, J.

	With today's decision, we address the application of the Indiana Double Jeopardy

Clause, Article I, Section 14 of the Indiana Constitution, as distinct from its federal

counterpart in the Fifth Amendment to the United States Constitution.

	The defendant-appellant, Robert Richardson, II, was convicted of robbery as a class C felony1 and battery as a class A misdemeanor.2  The defendant was sentenced to eight years imprisonment for the robbery and one year for the battery.  The sentences

were to run consecutively for a total of nine years imprisonment.  On appeal, he contends

that the convictions violate the Double Jeopardy Clause of the Indiana Constitution.  The

Court of Appeals affirmed the convictions.  Richardson v. State, 687 N.E.2d 241 (Ind. Ct. App. 1997).  We grant transfer.

	Prohibitions against double jeopardy protect the integrity of jury acquittals and the

finality interest of defendants, shield against excessive and oppressive prosecutions, and

ensure that defendants will not undergo the anxiety and expense of repeated prosecution

and the increased probability of conviction upon reprosecution.3  Robert Matz, Note, Dual Sovereignty and the Double Jeopardy Clause:  If at First You Don't Convict, Try, Try Again, 24 Fordham Urb. L.J. 353, 356-57 (1997) (citations omitted).  While double jeopardy provisions are found in both the U.S. Constitution and the Indiana Constitution, the defendant in this case does not allege any violation of the federal Double Jeopardy

Clause.4  Rather, he claims the protection of the Indiana Double Jeopardy Clause.

	The analysis and application of double jeopardy provisions have proven to be a

significant judicial challenge.  Commentators note that double jeopardy provisions, which

appear straightforward and simple, are often extremely difficult to apply and the

underlying jurisprudence enormously challenging and complex.5  Recently, in a series of decisions, this Court acknowledged that some of our decisions during the past twenty

years misapplied federal double jeopardy jurisprudence.  See Grinstead v. State, 684 N.E.2d 482 (Ind. 1997); Games v. State, 684 N.E.2d 466 (Ind. 1997), modified on other grounds, 690 N.E.2d 211 (Ind. 1997).  We did not, however, address whether the Double Jeopardy Clause of the Indiana Constitution provides identical or different protections

than its federal counterpart.6  Today, with our opinions in this case and its companion cases, we address this issue.

The Double Jeopardy Clause of the Indiana Constitution

	Questions arising under the Indiana Constitution are to be resolved by "examining

the language of the text in the context of the history surrounding its drafting and

ratification, the purpose and structure of our constitution, and case law interpreting the

specific provisions."  Indiana Gaming Comm'n v. Moseley, 643 N.E.2d 296, 298 (Ind. 1994).  In construing the Constitution, "'a court should look to the history of the times,

and examine the state of things existing when the constitution or any part thereof was

framed and adopted, to ascertain the old law, the mischief, and the remedy.'"  Bayh v. Sonnenburg, 573 N.E.2d 398, 412 (Ind. 1991) (quoting State v. Gibson, 36 Ind. 389, 391 (1871)).  Because the "intent of the framers of the Constitution is paramount in determining the meaning of a provision," Eakin v. State ex rel. Capital Improvement Bd. of Managers, 474 N.E.2d 62, 64 (Ind. 1985), this Court will consider "the purpose which induced the adoption," id. at 65, "in order that we may ascertain what the particular constitutional provision was designed to prevent," Northern Ind. Bank & Trust Co. v. State Bd. of Fin., 457 N.E.2d 527, 529 (Ind. 1983).

	When this State was founded in 1816, the framers and ratifiers adopted a double

jeopardy provision which provided that, "in all criminal prosecutions, the accused . . .

shall not . . . be twice put in jeopardy for the same offence."  Ind. Const. art 1, § 13 (1816).  However, our ability to discern the framers' intentions is limited because the

journal of the 1816 Constitutional Convention does not report the delegates' remarks or

disclose procedural matters informative to the issue.7

	When the present version of our Constitution was adopted in 1851, the original

double jeopardy provision was only slightly modified.  Article I, Section 14 provides in

part:  "No person shall be put in jeopardy twice for the same offense."8  The provision was adopted with no debate and has not been modified to date.  The "'cardinal principle

of constitutional construction [is] that words are to be considered as used in their ordinary

sense.'"  Ajabu v. State, 693 N.E.2d 921, 929 (Ind. 1998) (quoting Tucker v. State, 218 Ind. 614, 670, 35 N.E.2d 270, 291 (1941)).  Contemporaneous with the adoption of the

1851 Constitution, "offense" was defined as a "crime" or "transgression of law."  Noah Webster, An American Dictionary of the English Language 768 (1856).  This definition of "offense," however, does not explain the meaning of "same offense," which

has become a term of art.  It is not surprising that, "[f]or decades, commentators and

judges have attempted to define which offenses are the same, and the problem continues

to be the focus of much of the contemporary scholarly criticism of double jeopardy

doctrine."  Nancy J. King, Portioning Punishment:  Constitutional Limits on Successive and Excessive Penalties, 144 U. Pa. L. Rev. 101, 129 n.81 (1995).

	Despite the lack of discussion at the 1850-51 Convention regarding Indiana's

Double Jeopardy Clause, this Court has recognized that the intent of the framers and

ratifiers derived from English common law double jeopardy principles.  See State v. Elder, 65 Ind. 282, 284 (1879) ("That no person shall be put in jeopardy twice for the same offence is a common-law principle, which, we believe, is incorporated into the

constitution of each of the States which compose the United States.").  With the

understanding that the constitutional protection against double jeopardy is one of the

"least understood" and "most frequently litigated provisions of the Bill of Rights,"

Whalen v. United States, 445 U.S. 684, 699, 100 S.Ct. 1432, 1442, 63 L.Ed.2d 715, 728- 29 (1980) (Rehnquist, J., dissenting), "[i]t has always been an accepted judicial technique

to have resort to the common law in order to ascertain the true meaning of the double

jeopardy clause," Jay A. Sigler, A History of Double Jeopardy, 7 Am. J. Legal Hist. 283, 283 (1963) (hereinafter Sigler, History).  Thus, understanding our Double Jeopardy Clause requires that we go beyond its text.  The common law is helpful in determining the framers' understanding of the term "same offense."

	Scholars trace double jeopardy principles back to ancient Greek,9 Roman,10 and biblical11 sources.  While some historians trace double jeopardy protections in England to the dispute between King Henry II and Archbishop Thomas à Becket in 1176,12 the earliest treatise on the English common law, published in the late twelfth century, did not

directly mention double jeopardy protections.  Sigler, History, supra, at 291 (referring to Ranulf de Glanville, A Treatise on the Laws and Customs of the Kingdom of England Composed in the Time of King Henry the Second).  In the English case reporters between 1290 and 1535, "the word 'jeopardy' occurs only eleven times in reports involving criminal cases, and in only three of these instances was it used in the

statement that a man's life shall not be twice 'put in jeopardy' for the same offense." 

Marion S. Kirk, "Jeopardy" During the Period of the Year Books, 82 U. Pa. L. Rev. 602, 604-05 (1934) (footnotes omitted).

	During the 1600s and 1700s, double jeopardy protections were further examined

by Lord Edward Coke and William Blackstone.13  Lord Coke only found double jeopardy protections in the three pleas of autrefois acquit (former acquittal), autrefois convict (former conviction), and former pardon.  Sigler, History, supra, at 296.  By the late 1700s, a fourth plea of autrefois attaint14 was also recognized.  Id.  Writing 100 years after Coke, Blackstone began using the phrase "jeopardy" more often, noting that "the

plea of autrefois acquit, or a former acquittal, is grounded on this universal maxim of the common law of England that no man is to be brought into jeopardy of his life, more than

once, for the same offence."  4 William Blackstone, Commentaries on the Laws of England *329 (1769).

	As a further indicator of the framers' understanding of the common law of double

jeopardy, we note that the early American colonies departed in some respects from

English common law, recognizing broader double jeopardy protections.  For example, the bar against double jeopardy for Lord Coke depended on the reasons for the prior

acquittal,15 whereas early American double jeopardy law barred retrial for any prior acquittal.  Blackstone described double jeopardy protections as applying only to criminal

felony prosecutions, whereas early American double jeopardy protections applied to all criminal prosecutions.  Under English common law, jeopardy did not attach until a

verdict or acquittal was actually rendered, thus allowing retrials following hung juries or

mistrials, whereas early American double jeopardy law barred reprosecution in certain

hung jury or mistrial circumstances.  Further, early English double jeopardy protections

were developed in the context of criminal law practice and procedure different from that

which existed and continues to exist in this country.  When Coke formulated the double

jeopardy prohibition against second prosecutions for the same offense, there did not exist

the same number of closely related offenses as we have today.  As one commentator has

noted, "the law distinguished among rape, arson, and murder, but not between

'intimidating any person from voting' and 'interfering with his right to vote.'"  Larry

Simon, Note, Twice in Jeopardy, 75 Yale L.J. 262, 279 (1965).16  "At the time of Henry III there were only eleven felonies.  In Coke's time the number had risen to thirty."  Id. at 279 n.75.  By the time the U.S. Constitution was ratified, England had 160 different

felonies.  Id.

	Also, early American colonies and states embodied double jeopardy principles in

statutory and organic laws, unlike England.  In 1641, the Bay Colony of Massachusetts

drafted the Body of Liberties, which led to the adoption of the Massachusetts Code of

1648.  "The fact that the Bay Colony reduced double jeopardy protection to a written

form and expanded it beyond the common law guarantee demonstrates that the colonists

regarded the concept to be fundamental."  Charles L. Cantrall, Double Jeopardy and Multiple Punishment:  An Historical and Constitutional Analysis, 24 S. Tex. L.J. 735, 765 (1983).17  Although New Hampshire was the first (and only) state to include double jeopardy protections in its state constitution prior to the ratification of the U.S. Constitution,18 id. at 766, almost every state has now included some type of protection against double jeopardy in its state constitution, Sigler, History, supra, at 307-08; Simon, supra, at 262.

	As states developed and applied their respective double jeopardy principles, two divergent analyses appeared for determining whether the offenses are the same:  (1) the

behavioral approach; and (2) the evidentiary approach.  Id. at 269-70.  The "behavioral approach focuses on the defendant's conduct rather than on the prosecutor's evidence. 

Courts which use this approach adopt an act, transaction, or intent test."  Id. at 270 (emphasis omitted).  This behavioral approach (also referred to as the same transaction or

same conduct approach) was explicitly rejected early by the Indiana Supreme Court in

State v. Elder, 65 Ind. 282 (1879).19  The Elder Court noted that two lines of Double Jeopardy Clause interpretation appeared throughout the nation.  One line held that state

double jeopardy clauses provide "a more liberal rule . . . in favor of the accused."  Id. at 284.  This more liberal rule was the same transaction/conduct test, which prohibited

multiple prosecutions arising out of the "same state of facts, although they may include

several offences."  Id. at 285.  Under the other line of interpretation, the evidentiary approach, state double jeopardy clauses "mean no more than the common-law principle." 

Id. at 284.  After reviewing Indiana court decisions and the decisions from other state and federal courts, the Elder Court rejected the more liberal test, stating that it could "not adopt the rule held in some States, that the accused can not, in any case, be convicted but

once upon the same facts when they constitute different offences . . . ."  Id. at 286-87.

	The evidentiary approach (also referred to as the same evidence test) is apparent in

the English common law case of The King v. Vandercomb & Abbot, 2 Leach 708, 168 Eng. 455 (1796).  That court explained the test as follows:  "if crimes are so distinct that

evidence of the one will not support the other, it is as inconsistent with reason, as it is

repugnant to the rules of law, to say that they are so far the same that an acquittal of the

one shall be a bar to a prosecution for the other."  Id. at 717, 168 Eng. at 460.20  However, American jurisprudence in the last two centuries provides no single, generally accepted articulation of the same evidence test.  Rather, the test has assumed three separate

formulations:  a "required evidence test,"21 an "alleged evidence test,"22 and an "actual evidence test."23  Simon, supra, at 269-270.  See also Haynes v. State, 288 S.E.2d 185, 188-90 (Ga. 1989) (discussing these three tests in extensive detail).

	In discerning the approach required by the Indiana Constitution, we first note that

"[e]arly decisions of this Court interpreting our Constitution . . . have been accorded

strong and superseding precedential value."  Collins v. Day, 644 N.E.2d 72, 76 (Ind. 1994).24  In seeking the proper interpretation of our Double Jeopardy Clause, we draw from cases involving subsequent prosecutions because double jeopardy claims in multiple

punishments cases did not emerge until after 1930,25 and because this Court has not distinguished between double jeopardy protections in multiple punishment cases and

those in subsequent prosecution cases.  Our double jeopardy case law appears to fall into

five different subsequent prosecution categories–those following a conviction;26 a mistrial or the discharge of the jury or defendant;27 a successful appeal;28 an acquittal;29 and a civil action.30

	Our earliest jurisprudence demonstrates that this Court did not limit itself to any

single formulation of the evidence test, such as an "actual evidence test," a "required

evidence test," or an "alleged evidence test," in determining whether the offenses were

the same.  In the cases most contemporaneous (1859 to 1884) with the adoption of the

1851 Constitution, this Court did not identify a singular test or restrict the double

jeopardy inquiry to the statutory elements or charging instruments, but instead considered

all of the circumstances and evidence available to the reviewing court to determine

whether the offenses were the same.

	After the ratification of our Constitution in 1851, the Indiana Supreme Court considered whether the convictions were the "same offense" in Winiger v. State, 13 Ind. 540 (1859).  In Winiger, the defendant was first convicted of assault and battery and then tried for the crime of riot, each arising out of the same event.  Noting "conflict in the

decisions of some of the sister states," the Winiger Court considered whether double jeopardy was violated, holding that "the true rule, in prosecutions for offenses of this

character, is, that where the gravamen of the riot consists in the commission of an assault

and battery, then, a conviction for that assault, &c., would be a bar to a prosecution for a

riot . . . ."  Id. at 541.  However, "where the commission of an assault and battery was merely incidental to the riot, then a conviction for the one would not bar a prosecution for

the other . . . ."  Id.  Thus, "[t]he question would be, is the one act included in the other?"31  Id.  Looking to the evidence introduced at trial, the Court reversed the second conviction, finding that the Double Jeopardy Clause was violated because "the gravamen

of the riot was the assault and battery."  Id. 

	In Brinkman v. State, 57 Ind. 76 (1877), the defendant was indicted twice for selling alcohol to a minor on the same day.  He was tried and convicted on the first

indictment, and then tried and convicted on the second indictment.  Addressing the defendant's double jeopardy claim, the Court looked to the testimony introduced at the

first trial which established that the defendant had sold alcohol twice to the minor, once

in the morning and once in the afternoon.  Again, without reciting any particular test, the

Court looked to the testimony introduced at the second trial and found that it, too,

established that the defendant had sold alcohol twice to the same minor, once in the

morning and once in the afternoon.  However, the Court noted that nothing in the record

of either the first or second trial identified whether the convictions were for the morning

sale or the afternoon sale, and that the indictments merely gave the date but did not

differentiate between the time of day the crimes occurred.  The Court found that a new

trial was required because, "by the mode, adopted by the prosecution, of giving evidence

as to both sales on each indictment, both convictions may have been secured for the same

selling."  Id. at 79.  The Court found this problematic because the jury in the first trial, "having the evidence as to both alleged sales before them, [could have] found that [the

morning sale] was not satisfactorily established, but that the [afternoon sale] was . . . ." 

Id.  Then, in the second trial:

	the evidence as to both alleged sales was given, and the court was satisfied

that [the morning sale], regarded as not proved by the jury [in the first trial],

was not proved [in the second trial], but that the [afternoon sale] was, and

convicted the defendant [of the afternoon sale]; the conviction would be

justified by the evidence for the State, and the defendant be twice convicted

for the same offence [the afternoon sale]. 

Id.

	In Greenwood v. State, 64 Ind. 250 (1878), the defendant challenged his conviction for a second assault and battery because he had already been convicted of

assault and battery upon a different victim arising out of the same fight.  The defendant

argued that, regardless of "how many soever of assaults and batteries he may have

committed during the period of excitement at the ball, they all amounted in law to but one

offence . . . ."  Id. at 253.  Without reciting a particular "test," the Court looked to the testimony introduced at the first trial and, emphasizing the evidence presented, found that

the defendant committed two separate assaults and batteries against two different victims

arising from the same fight.  Id. at 253-54.  Thus, no double jeopardy violation occurred.

	In State v. Elder, 65 Ind. 282 (1879), the defendant was indicted for three counts of attempting to produce a miscarriage upon Elizabeth Bradburn by:  (1) inserting an

instrument into her uterus; (2) using the hand of another; and (3) administering a large

quantity of medicine.  Before the case went to trial, the defendant filed an answer

asserting double jeopardy as an affirmative bar, arguing that he had previously been

acquitted in a prosecution charging the murder of "a certain child, unnamed, of one

Elizabeth Bradburn, by . . . inserting [an] instrument into the uterus of the said Elizabeth

Bradburn, and passing it about the fetus, thereby causing the miscarriage of the said

Elizabeth Bradburn, and the death of said child."  Id. at 283-84.  The trial court found for the defendant and dismissed the second indictment.  Writing for a unanimous Court,

Judge Biddle32 reversed, articulating the test as follows:  if the facts show two or more offenses, but "the lesser offence is not necessarily involved in the greater, and when the

facts necessary to convict on a second prosecution would not necessarily have convicted

on the first," double jeopardy will not prevent two convictions, even though "the offences

were both committed at the same time and by the same act."  Id. at 285.  In finding that the defendant was not being twice prosecuted for the same offense, the Court noted:

	An indictment for the murder of the unnamed child of Elizabeth Bradburn

is by no means the same as an indictment charging the employment of

certain means, with the intent to procure the miscarriage of Elizabeth

Bradburn, although the same means were used to commit the offence in

both cases.  The lesser offence is not involved in the greater; the offences

are not committed against the same person, and bear no resemblance to

each other, either in fact or intent; the facts necessary to support a

conviction on the [miscarriage charge] would not necessarily have

convicted, nor would they even have tended to convict, upon the [murder

charge].

Id. at 286.  The Court concluded, "We can not adopt the rule held in some States, that the accused can not, in any case, be convicted but once upon the same facts when they

constitute different offences . . . ."  Id. at 286-287.

	The defendant in Jenkins v. State, 78 Ind. 133 (1881), was tried and convicted of assault and battery.  He was also tried and convicted in a second trial for assault and

battery, despite his claim of double jeopardy.  The Court reversed the second conviction,

noting that "[i]t is always necessary for one who [claims double jeopardy] to show that

the offence for which he was convicted is the same as that involved in the prosecution in which the evidence is offered."  Id. at 134.  Without reciting any particular test, it held that "[t]he evidence fairly shows that the offence for which the appellant was convicted

[at the first trial] is the same as that described in the indictment in the case at bar."  Id.  See also Foran v. State, 195 Ind. 55, 61, 144 N.E. 529, 531 (1924) ("The offenses charged must not only be the same in law, as would be shown by the instruments which

charged the offenses, but that such offenses must be the same in fact.").

	Beginning in Davidson v. State, 99 Ind. 366 (1885), however, this Court, without expressly overruling precedent or noting a change in jurisprudence, shifted its

consideration away from the available evidence to the statutory requirements.33  In his first trial, the defendant was convicted of unlawfully carrying a deadly weapon.  In a

subsequent prosecution, he was convicted of threatening to use a pistol during the same

transaction.  The Court found these convictions did not violate double jeopardy, even

though the "two prosecutions grew out of, and were based upon, the same transaction." 

Id. at 367.  The Court stated that the test is whether the charged crimes "are so far distinct that the evidence which would sustain one would not sustain the other."  Id. at 368.  The charged crimes were (1) unlawfully carrying a deadly weapon, and (2) threatening to use a pistol.  The Court looked to the statutory elements and held that "a material difference

[existed] between the two offences defined by section 1984 [drawing or threatening to

use a weapon], and those declared by section 1985 [carrying a concealed weapon or

carrying a weapon openly with intent to injure someone], even conceding that the same

pistol is used in every instance."  Id. at 367.

	In State v. Reed, 168 Ind. 588, 81 N.E. 571 (1907), the Court found no double jeopardy violation when, in one trial, the defendant was charged with giving liquor to an intoxicated person in violation of statute and then convicted in a different trial (on the

same day) of selling liquor to the same intoxicated person in violation of the same statute.  The Court held that the statute defined three separate crimes:  selling, bartering, and

giving away liquor to an intoxicated person.  Id. at 590, 81 N.E. at 572.  The Court articulated the test as follows:  "'would the same evidence be necessary to secure a

conviction in the pending, as in the former, prosecution?'"  Id. at 591, 81 N.E. at 572 (quoting Smith v. State, 85 Ind. 553, 557 (1882)).  The Court then looked to the identity of the challenged conviction, focusing on the essential elements necessary to convict: 

"Proof of a sale of intoxicating liquor by appellee to the person named in the indictment

was one of the elements of the offense charged in this case, the proof of which was

essential to conviction . . . ."  Id.  However, "in the former case, not a sale, but a gift, of intoxicating liquor by appellee to the person named in the affidavit was an essential

element to be established by the evidence to secure conviction."  Id. at 591-92, 81 N.E. at 572.  Thus, the Court held, "It is evident therefore that the evidence necessary to secure appellee's conviction of a charge of selling in violation of § 2219 . . . would not have

justified his conviction of the giving in violation of the same section charged in the

former case."  Id. at 592, 81 N.E. at 572.

	The defendant in Woodworth v. State, 185 Ind. 582, 114 N.E. 86 (1916), pled guilty to the charge that he sold alcohol to a person on May 1 without a license.  The

defendant was thereafter convicted of a separate charge of keeping and operating a place

where alcohol was sold, also on May 1.  The defendant contended that the evidence of

the sale was also the evidence of keeping and operating the place and, therefore, that he

was being convicted for the same offense.  The Court rejected his argument without

relying upon any particular test, finding that the statute "defines two separate and

distinct" crimes.  Id. at 585, 114 N.E. at 87.  Looking to the statutory definitions, the court held:

	The gravamen of the first offense defined by the section of the statute under

consideration is the unlawful sale of intoxicating liquors by a person

without a license, while that of the second offense defined is the keeping

and operating of a place where such liquors are sold in violation of law, or

the having of such liquors in possession for such purpose.

Id. at 585-86, 114 N.E. at 87.

	In Durke v. State, 204 Ind. 370, 183 N.E. 97 (1932), the defendant was convicted of burglary and then convicted of conspiracy to commit a felony (burglary), arising out of

the same transaction.  He claimed double jeopardy prohibited the second conviction.  The

Court noted that "'[t]he courts of this state . . . have leaned more strongly to the 'identity

of offense' test, which is that the second charge must be for the same identical act and crime as [the first offense].'"  Id. at 377-78, 183 N.E. at 100 (quoting Foran, 195 Ind. at 60, 144 N.E. at 530).  This test asks:  "'Would the same evidence be necessary to secure a

conviction in the pending, as in the former prosecution.'"  Id. at 378, 183 N.E. at 100 (quoting Foran, 195 Ind. at 60, 144 N.E. at 530 (quoting Smith, 85 Ind. at 557)) (other citations omitted)).  Instead of looking to the specific evidence actually introduced at

trial, the Court looked to what evidence would, in general, be necessary to secure

convictions for both crimes:

	[T]he essential proof in a prosecution for burglary would not be sufficient

to convict one charged with the crime known as "conspiracy to commit a

felony"—burglary.  In the latter case the evidence must show a uniting or

confederation of two or more persons to commit the burglary.  In order to

convict of the offense in the present case, it would not be necessary to

prove actual participation in the felony, but in order to convict one charged

with burglary, there must be proof connecting the party with the overt act.

Id.  Thus, a prosecution for burglary would not prohibit a prosecution for conspiracy to commit a felony (burglary).  Id.  See also Dunkle v. State, 241 Ind. 548, 551, 553-54, 173 N.E.2d 657, 659-60 (1961) (looking to "well established rules of statutory construction,

as well as upon the definition of the terms used . . . [o]ur conclusion then is that to draw a

weapon within the purview of § 448 . . . is a separate and distinct offense from that of

pointing or aiming a weapon under § 452 . . . .  Appellant was not therefore twice

convicted for but one offense . . . .").

	In 1978, the analysis under the Indiana Constitution was merged with the federal constitutional test:34  "Now that we are bound by the federal Double Jeopardy Clause, it is more necessary than ever that we be in line with federal standards."  Elmore v. State, 269 Ind. 532, 537, 382 N.E.2d 893, 896 (1978).  Although the Elmore Court erroneously concluded that the federal Supremacy Clause35 required that the federal test govern all Indiana claims, it is clear that this Court, by 1978, considered both the Indiana Double Jeopardy Clause and the federal Double Jeopardy Clause to require the same test–a

statutory "identity of offense" or "same evidence" test.  Id. (noting the "obvious similarity" between the state and federal double jeopardy standards).  Thus, when the

Elmore Court merged our state double jeopardy analysis with the federal double jeopardy analysis, it was not a radical departure from our then-existing state constitutional

analysis.  The Elmore Court defined Indiana's "identity of offense" or "same evidence" test:  "whether if what is set out in the second indictment had been proved under the first,

there could have been a conviction, or stated another way:  would the same evidence be

necessary to secure a conviction in the pending, as in the former prosecution."  Id. (quoting Foran, 195 Ind. at 60, 144 N.E. at 530).  Similarly, the Elmore Court defined what it called "the Blockburger 'identity of offense' or 'same evidence' test," id. at 540, 382 N.E.2d at 897, as "'the difference or lack of difference in the evidence necessary to establish one particular crime as compared with that required to establish the other

crime.'"  Id. at 537, 382 N.E.2d at 896 (quoting Dunkle, 241 Ind. at 551, 173 N.E.2d at 658) (citations omitted).  From this comparison, the Elmore Court concluded that "our method of analysis in cases involving multiple count offenders closely paralleled the

methodology employed by federal courts for protecting Fifth Amendment guarantees." 

Id.

	In 1982, this Court in Tawney v. State, 439 N.E.2d 582 (Ind. 1982), introduced a new approach, in which a reviewing court was required to "look to the manner in which

the offenses are charged and not merely to the statutory definitions of the offenses."  Id. at 588.  This analysis looked to the specific factual allegations regarding the means by

which the charged offenses were alleged to have been committed.  As we have noted,

"Tawney did not attribute this additional requirement to an independent state double jeopardy protection found in Article 1, Section 14 of the Indiana Constitution."  Carter v. State, 686 N.E.2d 834, 838 (Ind. 1997).  Rather, it relied upon lesser-included jury instruction case law.  See Tawney, 439 N.E.2d at 588.

	During the twenty years following Elmore, this Court frequently decided double jeopardy issues by looking to the offenses as charged, believing that this approach was

required by federal double jeopardy jurisprudence, and often referring in passing to the

Indiana Constitution.  We have recently recognized that this methodology is an inaccurate

statement of federal double jeopardy law as established by Blockburger.  Carter, 686 N.E.2d at 837; Grinstead, 684 N.E.2d at 486; Games, 684 N.E.2d at 474.  Considering Elmore's merger of Indiana double jeopardy law into federal constitutional analysis and its declaration that our state's double jeopardy jurisprudence must "be in line with federal

standards," 269 Ind. at 537, 382 N.E.2d at 896, it is not surprising that we did not

separately evaluate the Indiana Constitution as an additional, independent source of

double jeopardy protection.  Instead, we generally addressed double jeopardy claims by

applying the prevailing understanding of federal jurisprudence and merely referred to the

Indiana Double Jeopardy Clause.  This Court today recognizes that these post-Elmore, pre-Games cases do not constitute precedent regarding the application of the Indiana Double Jeopardy Clause.  Our action today should be understood to supercede these

cases.36

	From our review of the constitutional text, the history and circumstances

surrounding its adoption, and the earliest cases interpreting and applying the provision,

we conclude that Indiana's Double Jeopardy Clause was intended to prevent the State from being able to proceed against a person twice for the same criminal transgression. 

While none of the early cases presented a comprehensive analysis, a generally articulated

test, or a standard of review for double jeopardy claims, the holdings in these decisions

do reflect a common theme.  A criminal transgression was a person's conduct that

violated a statutorily defined crime.  In seeking to determine whether two criminal

transgressions were the same, this Court in its earliest decisions did not restrict its review

only to a comparison of statutory elements of the crime or to an analysis of the language

in the charging instruments.  Rather, this Court also reviewed the actual evidence

presented at trial when available.

	Synthesizing these considerations, we therefore conclude and hold that two or

more offenses are the "same offense" in violation of Article I, Section 14 of the Indiana

Constitution, if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also

establish the essential elements of another challenged offense.37  Both of these considerations, the statutory elements test and the actual evidence test, are components of

the double jeopardy "same offense" analysis under the Indiana Constitution.

Statutory Elements Test:  Could Separate Offenses Be Established?

	The objective of this test is to determine whether the essential elements of separate

statutory crimes charged could be established hypothetically.  In this test, the charged

offenses are identified38 by comparing the essential statutory elements of one charged offense with the essential statutory elements of the other charged offense.  Inspecting the

relevant statutes and the charging instrument to identify those elements which must be

established to convict under the statute,39 this review considers the essential statutory elements to determine the identity of the offense charged, but does not evaluate the

manner or means by which the offenses are alleged to have been committed, unless the manner or means comprise an essential element.  Once the essential elements of each

charged offense have been identified,40 the reviewing court must determine whether the elements of one of the challenged offenses could, hypothetically, be established by

evidence that does not also establish the essential elements of the other charged offense.41

	In this case, defendant Richardson contends that his convictions for robbery and class A misdemeanor battery violate double jeopardy.  Robbery as a class C felony is

defined as follows:

	A person who knowingly or intentionally takes property from another

person or from the presence of another person:  (1) by using or threatening

the use of force on any person; or (2) by putting any person in fear;

commits robbery, a class C felony.

Ind. Code § 35-42-5-1 (1993).  The defendant was charged as follows:  "Robert M. Richardson II . . . on or about the 31st day of August, 1996 . . . did then and there

knowingly or intentionally take property from another person, to-wit:  a wallet containing

$700 belonging to Jeffrey W. Koenig by using or threatening the use of force."  Record at

4.  Under the statutory elements test, we focus on the essential elements comprising the

charged offense of robbery:  (1) the defendant (2) knowingly or intentionally (3) took

property from (4) Koenig (5) by using or threatening the use of force on Koenig.  The

defendant could not be convicted at trial if these essential elements were not

established.42  Although the State may choose to do so, it is not required to include detailed factual allegations in the charging instrument.  See Ind. Code § 35-34-1-2.43  For example, in this case, the State could have charged as follows:  Robert M. Richardson, II,

on or about the 31st day of August 1996 did intentionally take property belonging to

Jeffrey W. Koenig by using force.  Had the State chosen to do so, the charging

information would have been valid, as the essential elements were specified.

	The second offense at issue in this case is battery, as a class A misdemeanor.  The

statute provides that "[a] person who knowingly or intentionally touches another person

in a rude, insolent, or angry manner commits battery . . . ."  Ind. Code § 35-42-2-1 (1993).  The offense becomes a class A misdemeanor if "it results in bodily injury to any

other person."  Id.  The charging instrument alleged that the defendant "on or about the 31st day of August, 1996 . . . did then and there knowingly or intentionally touch another

person in a rude, insolent or angry manner that resulted in bodily injury in that the said

defendant beat a certain Jeffrey W. Koenig with his fist to the extent that the said

[Koenig] suffered bodily injury."  Record at 5.  The essential elements of the class A misdemeanor battery charge are:  (1) the defendant (2) knowingly or intentionally (3)

touched (4) Koenig (5) in a rude, insolent, or angry manner (6) resulting in bodily injury

to Koenig.44

	Having identified the essential elements comprising the offense, we compare the

essential elements of the two challenged offenses.  Each offense must contain at least one

element which is separate and distinct from the other offense so that the same evidence is

not necessary to convict for both offenses.  See Durke, 204 Ind. at 378, 183 N.E. at 101 (citing Foran, 195 Ind. at 60, 144 N.E. at 530 (citing Smith, 85 Ind. at 557)).  In this case, the essential elements of the offense of battery as a class A misdemeanor include the

element of a resulting bodily injury, which is not included in the essential elements of

robbery.  Furthermore, battery requires a touching in a rude, insolent, or angry manner,

whereas robbery merely requires the use or threat of force.  Also, an essential element of

the robbery is the taking of some type of property from Koenig, which is separate and

distinct from the essential elements of the battery.  Under our statutory elements test,

each offense of which the defendant was convicted contains at least one essential element

that is separate and distinct from the other offense, and, therefore, the State could

hypothetically prove separate offenses without using the same evidence.  Thus, under the statutory elements test, there is no double jeopardy violation.45

Actual Evidence Test:  Were Separate Offenses Established at Trial?

	As previously noted, the examination of the evidence presented at trial was an

integral component of the double jeopardy analysis employed in those decisions of this

Court immediately following the adoption of our Double Jeopardy Clause.  We preserve

this component, the actual evidence test, as a separate consideration to be used in

analyzing the "same offense" issue in a claim under the Indiana Double Jeopardy Clause. 

Even if the first consideration, the statutory elements test, does not disclose a double

jeopardy violation, the actual evidence test may.  Under this inquiry, the actual evidence

presented at trial is examined to determine whether each challenged offense was

established by separate and distinct facts.  To show that two challenged offenses

constitute the "same offense" in a claim of double jeopardy, a defendant must

demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the

essential elements of a second challenged offense.46

	This second test in our Indiana Double Jeopardy Clause "same offense" analysis

differs significantly from federal jurisprudence under Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309.  "The Blockburger test has nothing to do with the evidence presented at trial.  It is concerned solely with the statutory elements of the offenses charged."  Grady v. Corbin, 495 U.S. 508, 521 n.12, 110 S.Ct. 2084, 2093 n.12, 109 L.Ed.2d 548, 564 n.12 (1990), overruled on other grounds, United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (second emphasis added).47

	At oral argument, the State asserted that, because the number of statutes and

offenses has grown exponentially since our Indiana Constitution was ratified, and

because Blockburger provides a clear, bright-line double jeopardy test, we should adopt Blockburger to govern our state Double Jeopardy Clause.  On the other hand, the defendant argued that this Court should adopt the "manner in which the offenses are

charged" analysis.  We disagree with both, believing the original application of the

Indiana Double Jeopardy Clause to be broader than these two approaches.

	In the present case, the evidence presented at trial establishes the following facts. 

On August 31, 1996, many people were at a lake area consuming alcohol and using

drugs.  The defendant noticed that one of those present, Jeff Koenig, appeared to possess

a considerable amount of money.  The defendant, along with Koenig and two other men,

got into an automobile apparently to drive to another party.  The automobile stopped on a

bridge, and the men exited the vehicle, ostensibly to relieve themselves.  When Koenig

exited the vehicle, he was hit from behind with a beer bottle and knocked to the ground. 

The three men repeatedly kicked and beat him.  Two of the men then held Koenig down

while the third took Koenig's billfold from his pocket.  After his billfold was removed, Koenig was pushed over the side of the bridge.  The men left Koenig and returned to the

party, bragging about what they had just done.

	The defendant contends that the evidence of the beating prior to the robbery forms

the basis of both convictions.  We note, however, that the evidence presented at trial also

demonstrated that, after the defendant and his companions beat Koenig and took his

billfold—thus completing the robbery—they then pushed Koenig off the bridge.  While this post-robbery conduct could potentially indicate a subsequent, factually separate

battery justifying a separate conviction, there was no actual evidence to prove the element

of resulting bodily injury from this separate conduct.48  From the evidence presented, we find that the defendant has demonstrated a reasonable possibility that the evidentiary facts

used by the jury to establish the essential elements of robbery were also used to establish

the essential elements of the class A misdemeanor battery.  Application of the actual

evidence test thus discloses that convicting and sentencing the defendant on both of these

offenses violates the Indiana Double Jeopardy Clause.

	When two convictions are found to contravene double jeopardy principles, a

reviewing court may remedy the violation by reducing either conviction to a less serious 

form of the same offense if doing so will eliminate the violation.  See, e.g., Campbell v. State, 622 N.E.2d 495, 500 (Ind. 1993) (affirming reduction of class C felony battery to class B misdemeanor battery to avoid double jeopardy).  If it will not, one of the

convictions must be vacated.  In the interest of efficient judicial administration, the trial

court need not undertake a full sentencing reevaluation, but rather the reviewing court

will make this determination itself, being mindful of the penal consequences that the trial

court found appropriate.  In the present case, the crime of robbery does not exist in a form

less serious than the class C felony, for which the defendant was convicted.  But a lesser

form of battery could result, a class B misdemeanor in the absence of the element of

resulting bodily injury, instead of the class A misdemeanor, for which he was convicted. 

Even if considered in this reduced class, however, there is a reasonable possibility that

the evidentiary facts used by the jury to establish the essential elements of robbery would

also be used to establish battery as a class B misdemeanor.  Because both convictions

therefore cannot stand, we vacate the conviction with the less severe penal consequences

and leave standing the robbery conviction.

Conclusion

	Because the defendant's convictions for both robbery and battery as a class A

misdemeanor, under the circumstances presented, violate the Double Jeopardy Clause of the Indiana Constitution, we vacate the conviction and sentence for battery as a class A

misdemeanor.  This cause is remanded to the trial court for disposition consistent with

this opinion.

	SHEPARD, C.J., concurs.  SULLIVAN, J., concurs with separate opinion. 

SELBY, J., concurs in result with separate opinion.  BOEHM, J., concurs in result with

separate opinion, in which SELBY, J. concurs.  

Attorneys for Appellant

Susan K. Carpenter

Public Defender of Indiana

Gregory L. Lewis

Deputy Public Defender

Indianapolis, Indiana

Attorneys for Appellee

Jeffrey A. Modisett

Attorney General of Indiana

Geoff Davis

Deputy Attorney General

Indianapolis, Indiana

	IN THE

	INDIANA SUPREME COURT

ROBERT RICHARDSON II,

	Appellant (Defendant below),

	v.

STATE OF INDIANA,

	Appellee (Plaintiff below).

)

)	Supreme Court No.

)	67S01-9910-CR-506

)

)	Court of Appeals No.

)	67A01-9705-CR-143

)

)

	APPEAL FROM THE PUTNAM CIRCUIT COURT

	The Honorable Diana LaViolette, Judge

	Cause No. 67C01-9609-CF-74

	ON PETITION TO TRANSFER

October 1, 1999

SULLIVAN,  Justice, concurring.

	I congratulate Justice Dickson on his comprehensive and enlightening analysis.  I

concur because I believe his formulation encompasses those limited number of specific situations (deemed “superseded”) where this court has been unwilling to impose multiple

punishments upon a defendant who commits two crimes at the very same time against the

same victim.  At this time, however, I am unwilling to extend this formulation beyond these

situations.  

	My own analysis suggests that these situations fall into five categories:

	1.	Conviction and punishment for a crime which is a lesser included offense of another crime for which the defendant has been convicted and punished.  Examples of this situation are provided by such cases as Bivins v. State, 642 N.E.2d 928, 945 (Ind. 1994) (vacating a conviction for theft because it was a lesser-included offense of robbery), and

Wethington v. State, 560 N.E.2d 496, 506 (Ind. 1990) (vacating a conviction for theft because it was a lesser-included offense of robbery).

	However, this category does not include situations where the two crimes have

different victims, e.g., Reaves v. State, 586 N.E.2d 847, 851 (Ind. 1992), or where the crimes occur separate and independent of each other, e.g.,  Bean v. State, 460 N.E.2d 936, 943 (Ind. 1984).

	2.	Conviction and punishment for a crime which consists of the very same act as another crime for which the defendant has been convicted and punished.  An example of this situation is Jones v. State, 523 N.E.2d 750, 754 (Ind. 1988) (vacating a Battery conviction because the information showed that the identical touching was the basis of a second Battery

conviction).

	3.	Conviction and punishment for a crime which consists of the very same act as an element of another crime for which the defendant has been convicted and punished.  Mr. Richardson’s situation in this case falls into this category.  Another example is Wethington v. State, 560 N.E.2d 496, 508 (Ind. 1990) (vacating a Confinement conviction because the confinement was coextensive with the behavior or harm necessary to establish an element

of a Robbery conviction).

	We have not extended relief, however, in situations where the subject behavior or

harm is either separate from or more extensive than that necessary to constitute the element

of the first crime.  Examples of relief being denied on this basis include Webster v. State, 628 N.E.2d 1212, 1214 (Ind. 1994) (affirming Attempted Rape, Criminal Deviate Conduct

and Confinement convictions because the confinement extended beyond that necessary to

establish an element of the Attempted Rape and Criminal Deviate Conduct convictions);

Purter v. State, 515 N.E.2d 858, 860 (Ind. 1987) (affirming Rape and Confinement convictions because the confinement extended beyond that necessary to establish an element

of the Rape conviction); Edwards v. State, 479 N.E.2d 541, 545 (Ind. 1985) (affirming Attempted Rape and Confinement convictions because the confinement extended beyond that necessary to establish an element of the Attempted Rape conviction).

	4.	Conviction and punishment for an enhancement of a crime where the enhancement is imposed for the very same behavior or harm as another crime for which the

defendant has been convicted and punished.   The legislature has provided that the punishment classification of certain crimes may be enhanced if the behavior which

constitutes the crime is accompanied by certain specified additional behavior or causes

certain specified additional harm.49  In situations where a defendant has been convicted of one crime for engaging in the specified additional behavior or causing the specified

additional harm, that behavior or harm cannot also be used as a enhancement of a separate

crime; either the enhancement or the separate crime is vacated.  Recent examples include

Kingery v. State, 659 N.E.2d 490, 496 (Ind. 1995) and Moore v. State, 652 N.E.2d 53, 60 (Ind. 1995), both reducing a Class A enhancement to a Robbery conviction because the very

same killing that was the basis of the enhancement was also the basis of a Murder

conviction.  Today’s decision in Scott E. McIntire, No. 79S00-9706-CR-381, — N.E.2d — (Ind. October 30, 1999), also falls into this category.

	A closely related set of cases provide that to the extent that a defendant's conviction

for one crime is enhanced for engaging in particular additional behavior or causing

particular additional harm, that behavior or harm cannot also be used as an enhancement of

a separate crime. See Campbell v. State, 622 N.E.2d 495, 500 (Ind. 1993) (reducing a Class C enhancement to a Battery conviction because the very same serious bodily injury that was

the basis of the Class C enhancement was also the basis of a Class A enhancement to a

Burglary conviction).  

	On the other hand, where separate victims are involved or the behavior or harm that

is the basis of the enhancement is distinct and separate, no relief will be provided.  See Woods v. State, 677 N.E.2d 499, 501-02 (Ind. 1997) (affirming Class A enhancement to a Robbery conviction because the serious bodily injury that was the basis of the enhancement

was separate and distinct from that which was the basis of a Murder conviction); Jackson v. State, 625 N.E.2d 1219, 1222 (Ind. 1993) (same); Hansford v. State, 490 N.E.2d 1083, 1089 (Ind. 1986) (affirming Class A enhancements to Burglary and Robbery convictions because

the serious bodily injuries that were the bases of the enhancements were inflicted on

different victims).

	5.	Conviction and punishment for the crime of conspiracy where the overt act that constitutes an element of the conspiracy charge is the very same act as another crime for

which the defendant has been convicted and punished.  Conspiracy requires an agreement by two or more people to commit a crime and an overt act in furtherance of the agreement. 

While a defendant can be guilty of both conspiracy to commit a crime and the underlying

crime itself, what is at stake in this category is assuring that indeed the conspiracy is a

separate and distinct act from the underlying crime.  Put more concretely, in situations

where the overt act itself is no more than the underlying crime, any time two or more

persons commit a crime, at least one will be guilty of both conspiracy and the underlying

crime — the element of agreement can be inferred from their concerted action and the overt

act found in their commission of the crime.  

	This point was explained in Chiesi v. State, 644 N.E.2d 104, 106 (Ind. 1994).  There the defendant was charged with both Conspiracy to Commit Murder and Murder.  While this

case turned to some extent on the adequacy of the charging information, the defendant cited Buie v. State, 633 N.E.2d 250, 261 (Ind. 1994), as authority for setting aside the conspiracy conviction.  But we noted that, “It is evident that in Buie the conspiracy to commit and the subject crime were committed virtually simultaneously and that the only overt act

completing the conspiracy was the murder itself . . . . [U]nlike Buie where the conspiracy and killing constituted a single offense, in the case at bar, appellant not only entered into a

lengthy conspiracy but committed several overt acts following the conspiracy in order to

participate in the carrying out of the actual murder.”  Chiesi, 644 N.E.2d at 106-07.  Donald Guffey v. State, No. 33S04-9910-CR-507, — N.E.2d — (Ind. October 30, 1999), which we decide today falls into this category. 

ATTORNEY FOR APPELLANT			ATTORNEYS FOR APPELLEE

Susan K. Carpenter					Jeffrey A. Modisett

Public Defender of Indiana 				Attorney General of Indiana

Gregory L. Lewis					Geoff Davis				

Deputy Public Defender				Deputy Attorney General

Indianapolis, Indiana					Indianapolis, Indiana

IN THE 

INDIANA SUPREME COURT

ROBERT RICHARDSON II,		)

						)

	Appellant (Defendant below)		)	Supreme Court No.

						)	67S01-9910-CR-506

		v.				)	

						)	

STATE OF INDIANA,			)	

						)

	Appellee (Plaintiff below).		)

APPEAL FROM THE PUTNAM SUPERIOR COURT

The Honorable Diana LaViolette, Judge

		Cause No. 67C01-9609-CF-74

ON PETITION TO TRANSFER

October 1, 1999

SELBY, J., concurring in result.

	What is “double jeopardy?”  I believe that when asked this question, most people,

and indeed most Hoosiers, would say that it is to be tried twice for the same crime.  The

answer likely would be just this simple, without regard to notions of multiple punishment, dual convictions, the meaning of an offense and the like.  Double jeopardy is a bedrock

principle of our constitutional law.  See Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); Elmore v. State, 382 N.E.2d 893 (Ind. 1978).  Nevertheless, as Justice Boehm points out, “confusion over double jeopardy is not new.” 

__ N.E.2d __, __ (Ind. 1999) , Slip op at 6.  Although the decisions announced today

fairly characterize the importance of the concept of double jeopardy to criminal law, they

lose sight of what for many citizens is thought to be a straightforward idea -- a person

cannot be tried twice for the same crime.  I join in Justice Boehm’s opinion because I

believe that it is the most consistent with what double jeopardy ought to be under Article

I, § 14 of the Indiana Constitution.  

ATTORNEY FOR APPELLANT

Susan K. Carpenter 

Public Defender of Indiana

Gregory L. Lewis

Deputy Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Jeffrey A. Modisett

Attorney General of Indiana

Christopher L. LaFuse

Deputy Attorney General

Indianapolis, Indiana		

	IN THE

	SUPREME COURT OF INDIANA

							)

ROBERT RICHARDSON II,			)

							)

	Appellant (Defendant below),		)	Supreme Court

							)	Cause No. 67S01-9910-CR-506

	v.						)	

							)	Court of Appeals	

STATE OF INDIANA,				)	Cause No. 67A01-9705-CR-143

							)

	Appellee (Plaintiff below).			) 

							)

	APPEAL FROM THE PUTNAM SUPERIOR COURT

	The Honorable Diana LaViolette, Judge

	Cause No. 67C01-9609-CF-74

	ON PETITION TO TRANSFER

BOEHM, Justice, concurring in result.

	I agree, as do all members of the Court, that the test for permitting convictions on two

or more counts in the same trial is as the majority formulates it.  However, I conclude that

today’s case may be decided without resort to constitutional doctrine because the dual convictions here are barred by statutory and common law doctrines, irrespective of

constitutional considerations.  More broadly, I believe that dual convictions in a single case

do not present an Indiana constitutional double jeopardy claim at all.  Rather Article I, § 14

should be invoked only as a bar to subsequent prosecutions.  Because the majority addresses

the constitutional provision, and because I agree that the important and unsettled matter of

the scope of double jeopardy protection under the Indiana Constitution must be resolved by

this Court, I express my views on that subject.  

	Justice Sullivan points to  recent decisions of this Court that prohibit (1) conviction

and punishment for a lesser included offense of another crime for which the defendant has

been convicted and punished; (2) conviction and punishment for two crimes that consist of

the same act; (3) conviction and punishment for a crime that consists of the same act as an

element of another crime for which the defendant has been convicted and punished; (4)

enhancement of a crime where the enhancement is imposed for the same behavior or harm

that enhanced another crime or the same behavior that constitutes another crime for which

the defendant has been convicted and punished; and (5) conviction and punishment for the

crime of conspiracy where the overt act that constitutes an element of the conspiracy charge

is the same act as another crime for which the defendant has been convicted and punished. 

For the reasons explained below, I believe the rules announced or followed in these

precedents are correct in their results and are accurate statements of Indiana law.  In most

cases they represent long-standing principles of Indiana law.  However, I believe they are

not constitutional rules but are rather either direct applications or legitimate descendants of rules followed at common law and even in Greek and Roman law.50  To the extent Indiana precedents refer to the Indiana Constitution in resolving multiple punishment cases the

decisions are relatively recent and incorrectly and unnecessarily describe prior common law

precedent as based on the Indiana Constitution.  Regardless of the origin of these rules, I

agree that they are the law of this state.  In multiple punishment cases they produce the same

results as the majority’s analysis yields.  I also agree with the test, which the majority

describes as “actual evidence,” for evaluating whether we have the same act supporting two

convictions.  

	I recognize that the majority opinion accurately recounts much of the precedent under

the Double Jeopardy Clause of the constitution of this state and other similar constitutional

provisions.  I also freely concede that many of the recent decisions refer to Article I, § 14,

albeit only in passing. However, I believe, as the majority correctly points out, that none of

these cases purports to deal with the Indiana Constitution apart from the Fifth Amendment. 

I justify my willingness to challenge these cases as constitutional precedent on the basis that

there is no consistent precedent in this state as to the meaning of this provision.  As

explained below, many of these precedents rest on very shaky footing and most, if not all,

seem to assume an identity of federal and state doctrines that is rejected by every Justice on

this Court.  Equally significant, our precedent does not support and certainly does not

demand that we regard multiple punishment cases as implicating the Double Jeopardy Clause of the Indiana Constitution.  

	The majority relies on subsequent prosecution cases in crafting a test for the multiple

punishment context because “this Court has not distinguished between double jeopardy

protections in multiple punishment cases and those in subsequent prosecution cases.”  I do

not agree that this Court has uniformly treated the two as identical.  As explained in Part

I.A. both before and after the federal Double Jeopardy Clause was held applicable to state

prosecutions this Court explicitly stated that multiple punishments imposed in one trial do

not present a double jeopardy issue because there was no “former jeopardy.”  Finally, my

complaints about finding double jeopardy implications in multiple punishment are not

grounded merely in a need for doctrinal purity.  Mixing the multiple punishment and

subsequent prosecution strands, as has occurred in federal double jeopardy law, results in an

unsatisfactory compromise that breeds confusion and impairs the important values

underlying the Double Jeopardy Clause.

	In sum, I believe Article I, § 14 reflects a value that is most important in the

subsequent prosecution context.  A test that is intended to fortify the Double Jeopardy

Clause but accommodates the needs of multiple punishment doctrine ends up impairing the

most important function of the constitutional provision.  And, as explained infra in Part I.C, constitutionalizing these common law multiple punishment rules does nothing to restrict the

legislature’s ability to “pile on” punishments in a single case if it wishes to do so.  It thus

adds nothing but complication to the protection afforded by the Double Jeopardy Clause,

and does so at some cost. 

I. Double Jeopardy Precedent and Purpose

	“Double jeopardy,” like “due process of law,” is an umbrella term that has evolved over time and embraces several discrete concepts.  Thus it is important to understand the

various circumstances and the different procedural postures in which double jeopardy has

been asserted.  Situations that defendants have claimed give rise to a claim of double

jeopardy include: (1) a single act that violates multiple statutes with no common elements

(sale of cocaine to a minor as both dealing and contributing to delinquency); (2) a single act

that violates multiple statutes with both common elements and distinct elements (rape and

child molest); (3) “included offenses” where all the elements of one crime are among those

of the other (cocaine possession and cocaine possession with intent to deliver); (4) a single

act that violates a single statute but creates more than one victim (multiple murders

committed with a single bullet or bomb); (5) closely related acts that injure the same victim

(robbery and battery such as we have in this case); and (6) closely related acts that create

separate injuries.1  The double jeopardy concerns raised in these various contexts are not the same.  Nonetheless, as elaborated below, courts frequently treat them as interchangeable.  

	Double jeopardy claims arise in differing procedural postures as well as varying fact

patterns.  The clause has been invoked in both multiple punishments imposed in the same

trial and to subsequent prosecutions of the same defendant.  Frequently the cases dealing

with one context cite precedent from another without commenting on any potential difference between the two.  More frequently, after 1969, we find cases correctly citing

North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed 2d 656 (1969), for the proposition that “double jeopardy” bars multiple punishments without focusing on whether

the federal and state constitutions are identical in this respect, or precisely what Pearce meant by that language.  In my view, however, subsequent prosecutions for a single act and

convictions for multiple crimes in a single prosecution turn on entirely different

considerations2 – some constitutional and some not – and require different treatment.3  As used in this opinion, “multiple punishments” is shorthand for the latter, although the term

may fairly describe other situations including some that may implicate constitutional double

jeopardy concerns.

	A. Indiana Constitutional and Common Law Precedent

	Confusion over double jeopardy is not new.  Over twenty years ago, this Court

addressed punishment for multiple offenses under the Fifth Amendment and reviewed

“several of our recent decisions which appear[ed] to be in conflict.”  Elmore v. State, 269 Ind. 532, 533, 382 N.E.2d 893, 894 (1978).  As we recently noted in Games v. State, there is no authority from this Court “establishing an independent state double jeopardy protection

based upon an analysis of the Indiana Constitution.”  684 N.E.2d 466, 473 n.7 (Ind. 1997), modified on reh’g, 690 N.E.2d 211 (Ind. 1997), cert. denied,     U.S.    , 119 S. Ct. 98, 142 L. Ed. 2d 211 (1998).4  Specifically, there has been, and remains, widespread confusion in the decisional law and in the commentary as to what constitutes the “same offense,” and

under what circumstances the protection against double jeopardy may be invoked.  Although

I concede that today’s case is decided in the light of several relatively recent precedents

stating or assuming that multiple punishments for the same offense implicate the

constitutional right, this notion lacks foundation in either constitutional text, constitutional

principle or solid authority. 

	First as a matter of syntax, Article I, § 14 does not appear to deal with multiple

punishments at all.  As this Court recently observed in another context, “the cardinal

principle of constitutional construction [is] that words are to be considered as used in their

ordinary sense.”  Ajabu v. State, 693 N.E.2d 921, 929 (Ind. 1998) (quoting Tucker v. State, 218 Ind. 614, 670, 35 N.E.2d 270, 291 (1941)).  The relevant portion of Article I, § 14

provides that “[n]o person shall be put in jeopardy twice for the same offense.”  As Justice

Scalia pointed out in his dissent in Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 798, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994): “‘[t]o be put in jeopardy’ does

not remotely mean ‘to be punished,’ so by its terms this provision prohibits, not multiple

punishments, but only multiple prosecutions.”5  	

	Second, Indiana authority does not provide a sound footing for applying double

jeopardy to multiple punishment cases.  Indeed it is very clear that some of the seminal

cases cited for the proposition that multiple punishments implicate Article I, § 14 of the

Indiana Constitution stand for precisely the opposite conclusion.  The majority suggests that

multiple punishment challenges under Article I, § 14 first began appearing in the 1930s.  See     N.E.2d    ,      (Ind. 1999), Slip op. 14 n. 25.  Of the eleven cases cited by the majority, seven neither mention “double jeopardy” nor refer to either the federal or the state

constitution.6  Three other cases recite a defendant’s invocation of “double jeopardy” protection, but the Court’s analysis turns on common law principles.7  The remaining case rejects the defendant’s claim that “constitutional double jeopardy” prohibits separate

convictions for drawing and aiming a firearm, citing Blockburger and rules of statutory construction.8  

	This Court itself did not explicitly state that multiple punishments in one proceeding

violated Article I, § 14 until Bevill v. State, 472 N.E.2d 1247, 1253 (Ind. 1985), which was clearly incorrect in citing earlier authority for this assertion.  To understand this point, begin

with Kokenes v. State, 213 Ind. 476, 13 N.E.2d 524 (1938), which the majority cites as an example of a multiple punishment double jeopardy case.  That case held that convictions for

a greater and lesser included offense (armed robbery and robbery) could not stand.  It is not

at all clear however, that Kokenes is a constitutional double jeopardy case under either the federal or state constitution.  First, although Kokenes cites some double jeopardy cases dealing with subsequent prosecutions, there is no mention in Kokenes of either constitution.  The only mention of the term “jeopardy” is to point out that because defendant was

convicted of robbery and armed robbery in the same case “there was no former jeopardy.”9 Id. at 480, 13 N.E.2d at 526 (emphasis in original).  Nonetheless, the robbery conviction was thrown out in Kokenes because a defendant may not be “convicted of committing a robbery and committing a robbery while armed, where the same identical robbery is

involved.”  Id. at 479, 13 N.E.2d at 526.  The Court thus spoke only in common law language, not in constitutional terms, and invoked a rule that bars the dual convictions while

in the very same opinion rejecting a claim of “former jeopardy.” 

	The authorities cited by Kokenes also demonstrate that it was purely a common law holding.  For example, Jackson v. State, 14 Ind. 327, 328 (1860), was cited for the proposition that “the state cannot split up one crime and prosecute it in parts.”  Jackson made no mention of the constitution and cites only common law authorities.  Kokenes also cited State v. Elder, 65 Ind. 282 (1879), which recognized the common law roots of the “former jeopardy” doctrine and concluded that: 

	No person shall be put in jeopardy twice for the same offense is a common-law 

	principle, which, we believe, is incorporated into the constitutions of each of the 

	States which compose the United States.  This provision, however, has not been 

	interpreted and applied uniformly throughout all the States.  In some it has been held 

	to mean no more than the common law principle.  

Id. at 284.  The Elder court summarized the then already confusing state of the law in a set of principles, all of which dealt with whether a subsequent prosecution could be brought. 

It supported its summary of the law with a series of citations to the distinguished treatises

of its day that very clearly dealt only with the problem of subsequent prosecutions10 and a long list of cases from Indiana and elsewhere.  The first two cited Indiana cases are Jackson, 14 Ind. at 327, and Bruce v. State, 9 Ind. 206 (1857).  Neither of these cases made any mention of either the state or federal constitution.  Each held a second prosecution barred by

reason of a prior prosecution, citing the “rule” that an earlier prosecution for the same

offense would bar a second. 

	In 1969, Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969), for the first time held the Fifth Amendment Double Jeopardy Clause applicable to state

criminal proceedings.  In the same year Pearce announced the federal doctrine that the Fifth Amendment applied to multiple punishments.  Three years later in Thompson v. State, 259 Ind. 587, 290 N.E.2d 724 (1972), this Court explicitly rejected a claim that double jeopardy

applied to multiple punishments, citing both the Fifth Amendment and Art. I, § 14 of the

Indiana Constitution:

	The Double Jeopardy clause is assurance that the State will not be allowed to make repeated attempts to convict an accused for the same offense.  U.S. CONST. amen. V and XIV; IND. CONST. Art.1, § 14;  See Benton v. Maryland, (1969), 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707; Green v. United States, (1957), 335 U.S. 184, 78 S.Ct. 221, 23 L.Ed.2d 199, 61 A.L.R.2d 1119; Armentrout v. State, (1938), 214 Ind. 273, 15 N.E.2d 363.  Since Appellant has been subjected to only one judicial proceeding for the offenses charged, his claim of double jeopardy is inappropriate.

259 Ind. at 591-92, 290 N.E.2d at 726 (emphasis in original).  Thompson nonetheless held the dual conviction impermissible, not as a matter of federal or state constitutional double

jeopardy doctrine, but rather as a matter of state law: “[w]e hold that before the court may enter judgment and impose sentence upon multiple counts, the facts giving rise to the

various offenses must be independently supportable, separate and distinct.” Id. at 592, 290 N.E.2d at 727.  I take it that this formulation as applied to multiple punishments amounts to

essentially the same thing as today’s majority’s more precise way of putting it -- there

should be no reasonable possibility that the same set of facts supports two convictions.

	The Court next used the term “double jeopardy” in the course of an opinion rejecting

the defendant’s claim that his convictions for asportation and kidnaping were error because

the two were separate offenses.  Neal v. State,  266 Ind. 665, 366 N.E.2d 650 (1977).  “It is only when two offenses require proof of the same fact or act that double jeopardy

considerations bar a prosecution for both.”  Id. at 667, 366 N.E.2d at 651.  The Court did not cite either constitution for this proposition. 

	Elmore, 269 Ind. at 382, N.E.2d at 893, seems to be the first case to deal with multiple punishments solely as a constitutional double jeopardy issue.  Elmore, citing Pearce, viewed the issue solely as a Fifth Amendment problem and made no mention of the state constitution.  Elmore expressly and correctly observed that Thompson was incorrect insofar as it dealt with the federal constitutional standard.  But Elmore did not address the question whether Thompson remained a correct statement of Indiana common law.  Elmore dealt with a single trial that produced convictions for both theft and conspiracy to commit

theft.  The Court of Appeals, invoking the common law doctrine of “merger,” held that the

two convictions “merged.”  On transfer this Court took the view, which was inconsistent with both venerable11 and then recent12 authorities, that “[t]oday, the problem of when a trial court may impose multiple punishments upon convictions on multiple counts at a single trial

is a problem controlled largely by the Double Jeopardy Clause of the Fifth Amendment.” Id. at 533, 352 N.E.2d at 894.  Applying Blockburger, the Court found that the convictions were proper because they were not based on the same offense.

	Elmore noted that earlier Indiana authorities had developed a “same evidence”13 test “to secure the rights found in the double jeopardy provision of the state constitution”14 and observed that this Court’s previous holdings on multiple punishments were often consistent

with federal double jeopardy even if they did not seem to derive from it.  Id. at 536, 352 N.E.2d at 896.  Because Fifth Amendment double jeopardy had been held applicable to state

criminal proceedings in Benton, Elmore concluded that “[n]ow that we are bound by the federal Double Jeopardy Clause, it more necessary than ever that we be in line with federal

standards.”  269 Ind. at 537, 382 N.E.2d at 896.

	Insofar as Elmore has any implication for the state constitution, it turns on the proposition that because the federal Double Jeopardy Clause applies to the states, the state

doctrine (whether common law or constitutional) should be conformed to federal

constitutional law.  This is contrary to current state constitutional law in Indiana and other

states.  To be sure, we have often adopted federal constitutional rules in interpreting their

state counterpart.  See, e.g., Ajabu, 693 N.E.2d at 927 (adopting the rule of Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986), as to self incrimination).  But we frequently find Indiana judicial precedent, history or other factors to dictate a

different result under the state provision, even where the federal and state constitutions are

textually similar or even identical.  See, e.g., Brown v. State, 653 N.E.2d 81 (Ind. 1995) (unreasonable search or seizure); Collins v. Day, 644 N.E.2d 72 (Ind. 1994) (equal privileges and immunities); Price v. State, 622 N.E.2d 954 (1993) (free speech).  Indeed, all of the opinions in this case tread this independent path.

	The first significant15 post-Elmore authority to refer expressly to Article I, § 14 of the Indiana Constitution appears to be Bevill, 472 N.E.2d at 1247, which cited Thompson as the Indiana authority, paired with Pearce, in referring to “the prohibitions of the Indiana Constitution, Article I, § 14 and the Fifth Amendment of the United States Constitution

against multiple punishments for the same offense.”  Id. at 1253.  It is of course correct that Pearce stated that doctrine as to the Fifth Amendment.  But Thompson, which dealt with convictions in the same trial for possessing and dealing the same drugs, held unequivocally

that double jeopardy had nothing to do with multiple punishment.  Only after Bevill was decided in 1985, do we find cases referring to double jeopardy and citing state and federal

constitutions in dealing with multiple punishments.  And in every instance, as Games noted, there is no suggestion that there is any difference between the two constitutions.  

	From this line of cases, I take it that notwithstanding the somewhat suspect16 announcement in Pearce that the federal Double Jeopardy Clause bars multiple punishments, there is no such holding in Indiana except to the extent that a number of cases in the last two

decades, bound by federal constitutional doctrine as it existed before the U.S. Supreme

Court decision in U.S. v. Dixon, 509 U.S. 688, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993), sometimes recited this federal rule, usually citing Pearce.  Although these more recent cases purported to resolve claims under both the state and federal constitutions, they did so

without any discussion as to how or where or why this newfound state rule arose.  In no

case was anyone contending that there was a difference between the two constitutions.  Because federal constitutional law is binding on this Court, these cases’ reference to the

state constitution was pure dicta.  These cases, of which Bevill is an example, appropriately cited Pearce for the proposition that multiple punishments implicate federal double jeopardy protection.  But to the extent they cited any authority, for example Thompson, for the same proposition under the Indiana Constitution, they did so inaccurately, and contrary to the

express holding of Thompson.

	The sum of this is that, although there is a great deal of dicta on the point, no case

from this Court has considered whether the Indiana Constitution raises a bar higher than or

different from the Fifth Amendment.  And as far as I can see, in no case until Games conformed Indiana’s understanding of federal double jeopardy to Dixon, did the Court note any potential for difference.  

	B. Non-Constitutional Doctrines Dealing with Multiple Punishments

	I do not mean to suggest that the Indiana cases finding bars to multiple punishment

were incorrectly decided in their results.  As Justice Sullivan’s opinion shows, these cases

have in recent years been cited for a number of propositions barring multiple punishment for

the same act.  However, I believe the decisions that have found Indiana’s constitutional

provision, or its counterparts in other constitutions, to prohibit multiple punishments have

in many, if not most, cases unnecessarily invoked constitutional artillery where a statutory

or common law rifle would do the job.  

	As noted, Kokenes held that a lesser included offense cannot result in a conviction in addition to the greater offense, but did so solely as a matter of common law.  We also have case law making clear that a conspiracy conviction cannot stand if the overt act is the crime

that is the object of the agreement, that a single element cannot enhance two offenses and

that the same act and consequences cannot support multiple convictions.  Multiple

convictions in these cases are barred by the rule established in Thompson that “before the court may enter judgment and impose sentence upon multiple counts, the facts giving rise

to the various offenses must be independently supportable, separate and distinct.”  259 Ind.

at 592, 290 N.E.2d at 727.  See also Candler, 266 Ind. at 440, 363 N.E.2d at 1233 (same); Williams, 266 Ind. at 668, 366 N.E.2d at 642 (same); Franks v. State, 262 Ind. 649, 323 N.E.2d 221 (1975) (convictions and sentences for both felony murder and premeditated

murder were error where there was only one killing).  Although the Elmore decision disapproved the Thompson rule that facts giving rise to various offenses must be “independently supportable, separate and distinct” as the appropriate standard for Fifth

Amendment multiple punishment challenges, I conclude that it is nonetheless a viable

doctrine under Indiana common law, as Bevill demonstrated, even if Bevill incorrectly attributed it to the Constitution.

	These common law doctrines are supported by the well-settled rule that legislative

reenactment after a statute has been construed by the courts will imply that the statute “was

adopted with the interpretation and construction which said courts had enumerated.” 

McIntyre v. State, 170 Ind. 163, 164, 83 N.E. 1005, 1006 (1907).  Whether or not the more recent cases announcing these rules were correct in claiming that they are derived in part

from the federal constitution or Article I, § 14 of the Indiana Constitution, there can be no doubt that these rules have been applied repeatedly over the years.  Accordingly, we may

assume the legislature intended the criminal laws to be interpreted in concert with these

doctrines.  This point is particularly powerful in light of the adoption of the 1976 criminal

code on the heels of the then recent decisions in Thompson and Candler.

	We also have in Indiana statutory prohibitions based on the Model Penal Code that

prohibit convictions for (1) conspiracy and attempt to commit the same crime; and (2) an

attempt and the crime attempted.  Ind. Code § 35-41-5-3 (1998).  As noted in Part II, we have a statutory prohibition against sentencing a person for both a crime and an “included

offense” in the same case.  Id. § 35-38-1-6.

	These provisions were taken in 1976 from the Model Penal Code and have

counterparts in the then proposed but never adopted Federal Criminal Code.  The Indiana

Criminal Law Study Commission “assumed” that the state and federal constitutional

provisions were coextensive. Criminal Law Study Commission, Indiana Penal Code Proposed Final Draft 51 (1974).  This assumption was made at the time Blockburger was under severe attack,17 and long before the federal constitutional doctrine moved first to Grady, then through Dixon back to an entrenched and refortified Blockburger analysis.  At the time this assumption was expressed, there was, as far as I can see, no explicit contention

or suggestion that the state constitutional provision might have a different content from the

Fifth Amendment, as Games suggests.  Certainly Thompson expressed a different view of both constitutions as of 1972.  In any event, even if the Commission’s assumption was

correct, it does not amount to a commitment of Indiana state law to unknown future federal

doctrinal developments.  Rather, at best it is a recognition that double jeopardy law as it was

understood in 1976 is reflected in some or all of these statutory provisions.  However, as

already noted, at least some of these rules are derived from common law doctrines that

predated both state and federal constitutions and to some extent go beyond the requirements

of either constitution.  They are nonetheless well understood and generally workable

principles that require no constitutional footing.

	The problem of multiple punishments can thus be handled as a matter of common law

doctrines or statutory construction, guided either by explicit direction from the legislature,

as the cited statutes provide, or by commonly cited rules of statutory construction and

presumed legislative intent.  

	C. Finding Constitutional Basis for Multiple Punishment Doctrines Accomplishes

	    Little

	Finding a constitutional dimension in multiple punishment cases under double jeopardy doctrine does not add to the protection already afforded under other provisions of

the state and federal constitutions.  As Justice Souter put it in his separate concurring and

dissenting opinion in Dixon, the multiple punishment branch of double jeopardy law is designed to ensure that the accused “is not receiving for one offense more than the

punishment authorized.” 509 U.S. at 744.  To achieve this, however, we need no further

constitutional basis than the Due Process Clause of the Fourteenth Amendment and the due

course of law provision of our Indiana Constitution.  A sentence in excess of that authorized

by law violates these provisions and more.  It is not merely an unconstitutional ex post facto

increase of sentence; it is an imposition of a penalty never authorized at all.  As such, it is

plainly invalid.  Thus resort to double jeopardy is wholly unnecessary to invalidate a

sentence outside the penalties provided by statute.  The issue is simply whether the statute

does or does not authorize the punishment.  

	To make the same point another way, it trivializes the Double Jeopardy Clause to

equate it, as federal doctrine does, with legislative intent.18  For example, our courts have held that one serious bodily injury cannot elevate both robbery and battery to Class A

felonies.  Odom v. State, 647 N.E.2d 377 (Ind. Ct. App. 1995).  However, the legislature could create a new class of “AA” felonies that consist of “inflicting serious bodily injury by

battery in the course of a robbery” with penalties equal to the sum of present sentences for two Class A felonies.  As the Supreme Court noted sixty years ago, “[t]here is nothing in the

Constitution which prevents Congress from punishing separately each step leading to the

consummation of a transaction which it has the power to prohibit and punishing also the

completed transaction.”  Albrecht v. United States, 273 U.S. 1, 47 S. Ct. 250, 71 L. Ed. 505 (1927).  The Indiana Court of Appeals similarly observed, 

	there was nothing to prevent the Legislature from enacting a statute making each step 

	leading up to the sale of intoxicating liquor as a beverage unlawful, and, in doing so, 

	it made the possession of intoxicating liquor and the maintenance of a place for 

	persons to congregate for the purpose of drinking separate offenses.  

Thompson v. State, 89 Ind. App. 555, 559, 167 N.E. 345, 346 (1929).  One can imagine a  calibrated criminal code with finely graduated sentences for each aggravating element that

would produce in net result the same sentence as multiple punishments for various

combinations of crimes under existing law.  The General Assembly has wisely chosen not

to complicate matters with such an intricate criminal code, but if it did so, there would be no

double jeopardy bar.19  If all the legislature must do to impose higher penalties is properly identify one combined offense where two were formerly spelled out, the Double Jeopardy

Clause presents no check on legislative “piling on.”  Similarly, if one objective of the

Double Jeopardy Clause is or ought to be restriction of prosecutorial discretion, the omnibus

crime  does restrict that discretion, if viewed as the alternative to the list of component

crimes under current law.  But the legislature is also free to create a series of ascendingly complex crimes, each a lesser included of those above it.  Under such a regime,

prosecutorial discretion to select the crime to be charged from this smorgasbord is

unbounded, just as multiple counts give the prosecutor major bargaining power today. 

Ultimately the decision rests with the legislature to vest or not vest wider prosecutorial

discretion to charge crimes with greater or lesser penalties.  This remains true whatever view

one has of the Double Jeopardy Clause.

	D. Other Constitutional Provisions Deal with Excessive Punishment

	The conclusion that double jeopardy under Article I, § 14 is not implicated by

multiple punishments in the same trial is fortified by the fact that, unlike the federal

constitution, the Indiana Constitution includes other provisions that restrict the ability of a

prosecutor or a court to “pile on” by finding multiple statutory violations in a single action. 

First, Article I, § 16 imposes a requirement that penalties be “proportioned to the nature of

the offense.”  Although courts defer substantially to legislative judgment in setting the

penalties for defined crimes, the legislature is not free from restraint under this provision.  See, e.g., Conner v. State, 626 N.E.2d 803 (Ind. 1993).  Second, the appellate courts of this state are authorized under Article VII, §§ 4 and 6 to “review and revise” sentences, and on

occasion do so based on a judgment that the punishment is excessive in relation to the crime

or the nature of the offense and the character of the offender.  See Ind. Appellate Rule 17(B).20

	E. The Problem in Trying to Juggle Two Strands of Double Jeopardy

	The mischief that arises from confounding the two branches into one doctrine of

double jeopardy is that it restricts the application of the provision in the subsequent

prosecution arena where it is most needed.  In my view we have ended up with the wrong

rule for subsequent prosecutions in order to avoid undesired results on the multiple

punishment front.  The same phenomenon has occurred in federal double jeopardy

jurisprudence.  As Justice White put it in his separate concurring and dissenting opinion in Dixon:

	To focus on the statutory elements of a crime makes sense where cumulative

punishment is at stake, for there the aim is simply to uncover legislative intent. . . . 

But . . . adherence to legislative will has very little to do with the important interests

advanced by double jeopardy safeguards against successive prosecutions.  The

central purpose of the Double Jeopardy Clause being to protect against vexatious

multiple prosecutions, these interests go well beyond the prevention of unauthorized

punishment.  

Id. 509 U.S. at 735 (emphasis and citations omitted).   

	The problem of mixing multiple punishment and subsequent prosecution is

highlighted by a single act that violates multiple statutes or, in violating a single statute,

injures multiple victims.  Under current law, everyone seems to agree that it must be

possible to charge a person who kills two people with two murders.  The term “same

offense” cannot refer simply to the same statutory crime, or it would be unconstitutional to

prosecute the same person for two murders committed at different times and places.  But in order to reach the conclusion that we have two different crimes, we must look at the facts of

the two crimes, and not only the statutes they offend.  On the other hand, if the “offense” is

solely the actions of the accused, it would be impossible to impose a greater punishment for

murdering two victims by the same act, for example burning down a house and killing two

inhabitants.21 

	Take Timothy McVeigh, who by a single act murdered 168 victims in the federal

building in Oklahoma City in 1995.  If that occurred in this state could prosecutors charge

and try McVeigh 168 times, notwithstanding multiple acquittals, until they obtain a

conviction because the actual evidence of the death of a victim would be different in each

case?  We must also consider the possibility of a conviction in one of the earlier trials, but

on a lesser included offense or resulting in a lesser sentence than the death penalty.  Can the

prosecution keep pursuing McVeigh until it obtains the death penalty even after multiple

trials do not produce that result?  I cite the McVeigh hypothetical to dramatize the point. 

However, the same issue arises in more commonplace scenarios with multiple victims. 

Should a driver accused of reckless homicide by running a red light face four separate

prosecutions because there were three passengers and a driver in the car the driver hit?  The actual evidence test would presumably permit all of these reprosecutions because the

element of the crime -- a victim -- could be supplied by different evidence in each case.

	Collateral estoppel as a nonconstitutional doctrine can bar some reprosecutions. 

However, I do not think persistent prosecution of the same act should be a constitutional

result, and, as Griffin v. State,     N.E.2d     (Ind. 1999), also decided today, demonstrates, collateral estoppel imposes only minimal restrictions on reprosecution.  Because collateral

estoppel is derived principally from civil litigation and is grounded in doctrines of judicial

economy and fairness, its rules do not take into consideration the important concerns that

underlie both Article I, Section 14 and the Fifth Amendment.22  These include the onerous toll that is exacted by even a successful defense and a historically deep rooted apprehension

that the king should not be permitted to pursue a citizen repeatedly.

	This is substantially the same problem that was presented in Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970), where a substantial majority of the

United States Supreme Court held that collateral estoppel is constitutionally grounded in the

Fifth Amendment Double Jeopardy Clause.  In Ashe, the Fifth Amendment was held to bar repeated prosecutions based on different victims whom the defendant allegedly robbed at the

same poker game.  Id. at 447.  It seems to me that Dixon, by retreating to Blockburger and rejecting any difference between multiple punishments and subsequent prosecutions, also

implicitly rejects Ashe as a matter of federal constitutional law.  509 U.S. at 704-05.  

	Indiana cases decided after Ashe but before Dixon applied Ashe to find a bar to the use of evidence of facts “necessarily decided” in a prior trial.  See, e.g., Kuchel v. State, 570 N.E.2d 910, 916 (Ind. 1991) (citing Little v. State, 501 N.E.2d 412, 415 (Ind. 1986)).   A few speak of barring “the reintroduction or relitigation of facts already established” in the

first trial. See, e.g., Boles v. State, 595 N.E.2d 272, 274 (Ind. Ct. App. 1992).  These Indiana authorities find collateral estoppel notions to be constitutionally based, as Ashe clearly implied.  But these cases deal, at least explicitly, only with the federal constitution and do

not mention the Indiana Double Jeopardy Clause.  Unless they are also found to be

grounded in the state constitution, Dixon seems to leave these notions without constitutional footing.  	The Ashe result, as followed in Kuchel, Little and other Indiana cases, is essentially the double jeopardy doctrine that I believe should be followed under the state

constitution.  For subsequent prosecutions, I would follow the “same conduct” analysis that

was adopted in Grady, 495 U.S. at 508, for federal double jeopardy law in the subsequent prosecution context.  This is in most cases more or less the same thing as the “same facts” from earlier Indiana cases.  The “same conduct” test is supported by at least some Indiana

authority.  For example, Clem v. State, 42 Ind. 420 (1873), which is no more “isolated” than several other opinions in the erratic history of double jeopardy in this State described in the

majority’s opinion.  Cf.      N.E.2d   ,      (Ind. 1999), Slip op at 17, 24 (citing the following cases employing analysis of both statutory elements and the conduct of the defendant:

Winiger v. State, 13 Ind. 540, 541 (1859) (“[t]he question would be, is the one act included in the other?”); Durke, 204 Ind. at 370, 183 N.E. at 97 (describing the “identity of the offense” test as whether the second charge was for the “identical act” as the first).23  It is also the test embraced by Thompson although applying only common law prohibitions against multiple punishment.  259 Ind. at 592, 290 N.E.2d at 727 (“facts giving rise to the

various offenses must be independently supportable, separate and distinct”).  

	Grady held that mere comparison of the statutory elements was insufficient for subsequent prosecutions.  Double jeopardy, in addition to requiring a comparison of the

statutes, proscribed “any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that

constitutes an offense for which the defendant has already been prosecuted.” 495 U.S. at

521 (footnote omitted).  Grady survived for only three years, however, and was rejected by Dixon in favor of an apparent return to the “same elements” test of Blockburger.  See Dixon, 509 U.S. at 712.  Among the reasons offered by Justice Scalia, writing for a five-justice

majority in overruling Grady, was an asserted need for doctrinal consistency between the multiple punishment and subsequent prosecution lines.  If a different methodology applied

to subsequent prosecutions, the phrase “same offense” would have more than one meaning

depending on the context.  Id. at 704.  

	I agree that it seems anomalous to find two different standards in the same

constitutional provision depending on the context.  Rather than attempt to reconcile the two

under the Indiana Constitution, I would resolve multiple punishment issues by reference to

the common law and statutes and remain with the Grady “same conduct” test for subsequent prosecutions.  Indeed, as already noted, Justice Scalia in Kurth Ranch, just one year after Dixon, seemed to agree that only subsequent prosecutions trigger double jeopardy concerns.  511 U.S. at 798.  Although Grady is no longer the law under the federal Double Jeopardy Clause, I generally agree with the views of Justices Souter, Stevens, White, and Blackmun,

who defended Grady in Dixon.  See id. at 743-763 (opinion of Souter, J., concurring in the judgment in part and dissenting in part).24  Some analysis beyond the raw statutory elements will always be required in the subsequent prosecution context.  Indeed Dixon itself seems to confirm this.25  

	In sum, I believe the answer to the constitutional claims raised here is not adoption of a uniform test in the name of doctrinal consistency.  Rather it is to recognize that

punishment arising out of a single trial does not present a double jeopardy issue.  Indeed, as

noted earlier, the concern in Indiana cases going back to the rules announced in Elder and quoted in Kokenes is clearly whether a second prosecution may be pursued, not whether two crimes may be charged and convictions result in the same proceeding.26 

	As a final note, I do not believe the subsequent prosecution issue can be adequately

handled by other constitutional provisions.  The Due Process Clause of the federal

constitution has also been suggested as a bar to subsequent prosecutions for the same act.  See Akhil Reed Amar, Double Jeopardy Law Made Simple, 106 Yale L. J. 1807 (1997).  Although at some point repetitive prosecution may run afoul of the Due Process Clause, at least under current precedent, subsequent prosecutions for essentially the same action have

been permitted to go forward without mention of due process as Elder and other cases cited in Ashe demonstrate.  Moreover, due process gives little guidance to when enough is enough.  Rather, invoked as a bar to subsequent prosecution, it seems akin to Justice

Stewart’s famous test for obscenity: we must know it when we see it.  See Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S. Ct. 1676, 12 L. Ed. 2d 793 (1964) (Stewart, J., concurring).  Because we have a specific constitutional provision addressing precisely this issue, I would

apply it according to its terms and forego reliance on judicially fashioned remedies under the

much more general Due Process Clause. 

II.  Resolution of this Case Under Indiana Statutes and Common Law

	I believe Richardson correctly complains of his dual conviction, but not on constitutional grounds.  As Justice Sullivan observes, we have held that “conviction and

punishment for a crime that is a lesser included offense of another crime for which the

defendant has been convicted and punished” is prohibited.27      N.E.2d     ,      (Ind. 1999) (Sullivan, J. concurring). Slip op. 2.  We also have a statute that prohibits conviction for an

included offense.  See Ind. Code § 35-38-1-6 (1998); see also Ind. Code § 35-41-1-16 (1998) (defining “included offense”).  Because we typically do not resort to a constitutional

resolution where a statutory one will do, I would decide this case under the statute.  See Bayh v. Sonnenburg, 573 N.E.2d 398, 402 (Ind. 1991) (it is “the duty of the court not to enter upon the consideration of a constitutional questions where the court can perceive

another ground upon which it may properly rest its decision”) (citing Bureau of Motor Vehicles v. Scott, 497 N.E.2d 557, 559 (Ind. 1986)).

	As a preliminary matter, we must be clear about the nature of the inquiry.  In

evaluating a claim that the statute does not permit convictions for both battery and robbery,

we need to look at whether the included offense “is established by proof of the same

material elements or less than all the material elements required to establish the commission

of the offense charged.”  See Ind. Code § 35-41-1-16(1) (1998).  This necessarily involves more than an examination of the statutory elements and requires inspection of both the

evidence produced at trial and the charging instrument.  To be sure, the definition of “included offense” in Indiana Code § 35-41-1-16(1) looks to the “elements” of the offense,

unlike § 35-34-1-2(d), which requires a charging instrument to identify the “facts” of the

offense. However, the definition also specifically states that the court must look to the

“proof” of the elements, necessarily requiring a look at both the charging instrument and the

evidence at trial.  The conclusion, it seems to me, is that an “offense” under both sections

embraces the statutory prohibition, the charging instrument and the acts of the accused that

violate the statute.  

	This conclusion seems inescapable when one considers the implications of a contrary

view.  Surely one robbery is not the same “offense” as another robbery of a different victim

on another day merely because the same statute is breached.  The example of a felony

murder based on a killing incident to a robbery also illustrates this point.  A defendant charged with a felony murder cannot be convicted of both the felony murder and the

underlying felony.  Many cases so hold.  See, e.g., Swafford v. State, 498 N.E.2d 1188, 1191-92 (Ind. 1986).  But in order to reach that conclusion one needs to do more than

examine the statutes.  The felony murder statute does not identify a robbery as the only

underlying felony.  The statute can be triggered by any of several felonies (arson, robbery,

rape, etc.).  Ind. Code § 35-42-1-1(2) & (3) (1998).  And even if robbery were the only felony in the list, one would still need to examine the charging instrument or the evidence

to know whether the robbery supporting the felony murder is the same robbery resulting in

the robbery conviction.

	The resolution of Richardson’s case is controlled by the lesser included offense

statute.  Richardson was charged with a battery “that resulted in bodily injury in that the

defendant beat a certain Jeffrey W. Koenig with his fist to the extent that [Koenig] suffered

bodily injury.”  He can be convicted in this proceeding only of that battery, not just any old

battery at some other time or place.  Evidence at trial demonstrated that the use of force in

the robbery was Richardson’s beating Koenig with his fist.  As a result, we know that the

battery constituting the force in the robbery is the same as the battery of which Richardson

was convicted, and not the tossing of Koenig off the bridge.28  The fact that the evidence at trial supported this other uncharged battery does not permit the jury to convict on that

uncharged battery, or any other crime, for that matter, that was not charged.  Hobson v. State, 675 N.E.2d 1090, 1095 n.2 (Ind. 1996) (“A defendant may not be found guilty of a crime that is not charged against him, and if so convicted, the verdict is contrary to law.”). 

Accordingly, the battery constituting an element of the robbery cannot also support an

independent conviction for battery because it is established by “less than all the material

elements required to establish the commission” of the elevated robbery.  

	I conclude, consistent with the discussion above, that the definition of included

offense under Indiana Code § 35-41-1-16(1) necessarily involves a look at the charging

instrument and the proof at trial. When we do that, we see that Richardson’s convictions for

both robbery and battery are not permitted under the Indiana Code, irrespective of

constitutional double jeopardy considerations.  The dual convictions also fall under the rule,

often invoked without reference to the statute, that one crime cannot both enhance another

and also support a separate conviction.  See, e.g., Kingery v. State, 659 N.E.2d 490, 495-496 (Ind. 1995).

	SELBY, J., concurs.