ATTORNEYS FOR APPELLANT		ATTORNEYS FOR APPELLEE

Susan K. Carpenter					Jeffrey A. Modisett	

Public Defender of Indiana			Attorney General of Indiana

David P. Freund					Priscilla J. Fossum

Deputy Public Defender				Deputy Attorney General

Indianapolis, Indiana				Indianapolis, Indiana

In The

INDIANA SUPREME COURT

                  						)

LEONARD EMERY,				)	

		Defendant-Appellant,		)	

							)

		v.					)	76S04-9910-CR-509

							)	

STATE OF INDIANA,				)

		Plaintiff-Appellee.			)

                          ________________________________________________  

APPEAL FROM THE STEUBEN CIRCUIT COURT

The Honorable Allen Wheat, Judge

Cause No. 76C01-8908-CF-42

                        _________________________________________________

On Petition To Transfer

October 1, 1999

DICKSON, J.

	The defendant was convicted of attempted rape while armed with a deadly weapon1 and sexual battery while armed with a deadly weapon.2  The Court of Appeals affirmed.  Emery v. State, 696 N.E.2d 872 (Ind. Ct. App. 1998).  On transfer, he contends that his convictions violate the statutory provision prohibiting a judgment and sentence

for both an offense and an included offense.  We grant transfer to address this issue but

otherwise summarily affirm the decision of the Court of Appeals.  Ind. Appellate Rule

11(B)(3).   

	The defendant’s claim is based on the following statutory provision:3  

	Whenever: 

				(1)  a defendant is charged with an offense and an included offense in

separate counts; and 

		(2)  the defendant is found guilty of both counts; 

	judgment and sentence may not be entered against the defendant for the included

offense.

Ind. Code § 35-38-1-6 (1988).  He argues that the statutory definition for “included offense” renders the offense of sexual battery while armed with a deadly weapon a lesser-

included offense of attempted rape while armed with a deadly weapon:

	“Included offense” means an offense that:

				(1) 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;

				(2)  consists of an attempt to commit the offense charged or an offense

otherwise included therein; or 

				(3)  differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest,

or a lesser kind of culpability, is required to establish its

commission.

Ind. Code § 35-41-1-16 (1988).			

	The Court of Appeals declined to address the defendant’s statutory argument,

believing the statute was an embodiment of the federal constitutional protection against

double jeopardy and treating the issue strictly as a federal double jeopardy claim.  Emery, 696 N.E.2d at 876 n.2.  To the contrary, the statutory language operates independently

from double jeopardy jurisprudence under the federal constitution.  To the extent that

these and related statutes may originally have been intended to implement such federal

double jeopardy principles, we cannot now disregard the express statutory provisions

simply because of changes in federal constitutional jurisprudence.  

	Construing and applying the plain language of the statutes, we observe that the

offense of attempted rape while armed with a deadly weapon is established by proof that

a person (1) knowingly or intentionally (2) took a substantial step towards (3) having

intercourse with a person of the opposite sex (4) while armed with a deadly weapon (5)

when the other person is compelled by force or threat of force, unaware that intercourse

is occurring, or mentally unable to consent.  Ind. Code §§ 35-42-4-1 & 35-41-5-1 (1988).  The offense of sexual battery while armed with a deadly weapon is established by proof

that a person (1) touched another person (2) with the intent to arouse his own sexual

desires or the sexual desires of another person (3) while armed with a deadly weapon (4)

when the other person is compelled to submit by force or threat of force or is mentally unable to give consent.  Ind. Code § 35-42-4-8 (1988).   

	Turning first to subsection (1) of the statutory provision defining “included

offense,” we must determine whether the proof of attempted rape while armed necessarily

establishes the elements of sexual battery while armed.  Both offenses contain the same

elements regarding compulsion without consent and commission while armed.  But proof

of the remaining elements of attempted rape—knowingly or intentionally taking a

substantial step toward having intercourse—does not necessarily establish the remaining

elements of sexual battery—a touching with intent to arouse.  Thus subsection (1)

defining “included offense” is not applicable.  

	The inapplicability of subsection (2) to this case requires no discussion, but

subsection (3) provides an alternative definition of  “included offense.”  Citing Griffin v. State, 583 N.E.2d 191 (Ind. Ct. App. 1991), the defendant asserts that the Court of Appeals has previously considered whether sexual battery is an included offense of

attempted rape.  In applying subsection (3) to vacate a conviction for sexual battery while

leaving stand a conviction for attempted rape, the Griffin court misunderstood Bowling v. State, 560 N.E.2d 658, 660 (Ind. 1990), to “implement the legislative intent that a defendant shall not be convicted and punished for an offense that constitutes a less

serious harm to the victim.”  583 N.E.2d at 196.  However, our opinion in Bowling was based only upon our then-prevailing understanding of federal double jeopardy

jurisprudence, and did not construe or apply the statutory provision prohibiting a separate

conviction for a lesser included offense.   Now that we have recognized that our prior view of such federal jurisprudence was flawed,4 it is particularly inappropriate to perpetuate such a mistaken interpretation in construing the statute.  The plain language of

the statute therefore should control.    

	In applying subsection (3) of the statute to the present case, we consider whether

sexual battery while armed differs from attempted rape while armed “only in the respect

that a less serious harm or risk of harm to the same person . . . is required to establish its

commission.”  Ind. Code § 35-41-1-16(3).  While the harm or risk of harm occasioned by a non-consensual touching with intent to arouse sexual desires may be less serious than

the harm or risk of harm resulting from an attempted rape, this is not the only way in which the two offenses differ.  Attempted rape does not require completion of the act or

any touching of the victim.  Sexual battery, however, requires an actual touching to have

occurred.  The two offenses thus do not differ only with respect to severity of harm, as required by subsection (3), and the defendant was not convicted of both an offense and an

“included offense.” 

	Transfer is granted.  The judgment of the trial court is affirmed.  

	SHEPARD, C.J., concurs.  SULLIVAN, J., concurs in result, believing that the

“included offense” statute is not implicated where, as in this case, the facts “support

convictions for two separate acts, despite their temporal proximity.”  Emery v. State, 696 N.E.2d 872 (Ind. Ct. App. 1998).  BOEHM, J., concurs in result with separate opinion in

which SelbyELBY, J., concurs.  

ATTORNEYS FOR APPELLANT

Susan K. Carpenter          

Public Defender of Indiana

David P. Freund

Deputy Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Jeffrey A. Modisett

Attorney General of Indiana

Priscilla J. Fossum  

Deputy Attorney General

Indianapolis, Indiana  

	IN THE

	SUPREME COURT OF INDIANA

LEONARD EMERY,     	 		)

   						)

	Appellant (Defendant Below),	)	Indiana Supreme Court

						)	Cause No. 76S04-9910-CR-509

	      v.					)	

 						)	Indiana Court of Appeals 

STATE OF INDIANA,	    		)	Cause No. 76A04-9706-CR-228

						)

	Appellee (Plaintiff Below).	)

	APPEAL FROM THE STEUBEN CIRCUIT COURT

	The Honorable Allen Wheat, Judge 

	Cause No. 76A04-9706-CF-42

	ON PETITION TO TRANSFER

BOEHM, Justice, concurring in result.

	For the reasons spelled out in Justice Dickson’s opinion, I agree that sexual battery

is not, in the abstract, necessarily a lesser included offense of attempted rape.  Wright v. State, 658 N.E.2d 563 (Ind. 1995), for purposes of whether an instruction on the lesser offense is necessary, describes this relationship between two crimes as an “inherently” lesser

included offense.  I also agree wholeheartedly that the Court of Appeals was incorrect in

concluding that the statute amounts to a delegation to the federal courts to conform our

substantive law to federal constitutional doctrine.  Rather, for the reasons set forth in my

concurrence in Richardson v. State,     N.E.2d    ,     (Ind. 1999), in my view the statute is a codification of the law as it was understood in 1975.  And, as also elaborated in Richardson, that law requires reference to more than the statutory elements to determine whether one

“offense” is a “lesser included” offense of another.

	Although I agree with Justice Dickson’s analysis of the statute, in my view a

determination that sexual battery is not inherently a lesser included offense of attempted rape

is not the end of the analysis.  Just as in dealing with instructions, to determine whether an

offense is lesser included for purposes of the statute, we need to determine whether one

crime is, to use Wright’s terminology, “factually” a lesser included offense of the other.  As I observed in Richardson, a comparison of the two criminal statutes cannot be the end of the analysis.  If it were, a defendant could not be convicted for the murder victim A on day 1 and

also for murder of victim B on day 2.  Although the statutory elements of these two offenses

are the same, we need to look at the facts to see whether we have one or two crimes. 

Similarly, the substantial step in the attempted rape may or may not be the touching required

for the sexual battery.  Without looking to the facts of the case and the charging instruments,

this cannot be determined.

	When we do look at the facts in this case, we see that Emery committed two separate crimes, albeit in relatively close temporal proximity.  He first groped the victim’s breast and

then became more violent by pinning her down and pulling her shirt out of her pants, either

of which could clearly have been the substantial step in the attempted rape.  These events

comprise two separate crimes, and so I concur in affirming the convictions.  But I believe it

is inescapable that a determination of a “lesser included” offense in some cases requires a

look at the charging instrument, and sometimes also the instructions and the evidence,

depending on how the crime was charged.  This is an example of when that is required.

	SELBY, J., concurs.