statutory elements test in Indiana

2024Id. (“Even if the ... statutory elements test[] does not disclose a double jeopardy violation, the actual evidence test may.”); see, e.g., Guffey v. State, 717 N.E.2d 103, 105-07 (Ind. 1999) (finding convictions for aiding in the commission of armed robbery and conspiracy to commit armed robbery violated Article 1, Section 14 under the actual-evidence test, although the differing elements of the two offenses meant the statutory-elements test was not met). [89] My colleagues focus almost exclusively on the statutory elements of Schoeff’s charged offenses, rather than the evidence introduced to

2020Karenke does not claim that his convictions violate the statutory elements test; rather, he claims that his convictions run afoul of the actual evidence test requiring that we examine the actual evidence presented at trial “to determine whether each challenged offense was established by separate and distinct facts.” Richardson, 717 N.E.2d at 53 .

2020To determine whether the statutory elements test is violated, we apply the federal test: “whether each provision requires proof of an additional fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304 , 52 S. Ct. 180, 182 (1932).

2020To determine whether the statutory elements test is violated, we apply the federal test: “whether each provision requires proof of an additional fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304 , 52 S. Ct. 180, 182 (1932).

2013We therefore do not address the federal double jeopardy provision other than to note that the statutory elements test of the Indiana double jeopardy clause and the Fifth Amendment test as enunciated in Blockburger v. United States, 284 U.S. 299 (1932), are substantially the same, Brown v. State, 912 N.E.2d 881, 896 (Ind. Ct. App. 2009), trans. denied, and our courts have held that convictions of both rape and criminal confinement are not precluded under the Blockburger test, see Purter v. State, 515 N.E.2d 858, 860 (Ind. 1987). 4 II.

2013See Brown v. State, 912 N.E.2d 881, 896 (Ind.Ct.App.2009) (asserting that the statutory elements test is identical to the standard set forth in Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932)), trans. denied.

2013Goldsberry v. State, 821 N.E.2d 447, 459 (Ind. Ct. App. 2005) (citation omitted).

2012To determine whether two offenses are the same under the statutory elements test, we review “whether each statutory provision requires proof of an additional fact which the other does not.” Id. at 459 .

2015Thus, Haupert does not challenge his conviction under the statutory elements test; rather, he asserts that his conviction violates the “actual evidence test.” See id. at 1233-34 . [14] Applying the actual evidence test, “we examine the actual evidence presented at trial in order to determine whether each challenged offense was established by separate and distinct facts.” Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013).

2014Smith concedes that his convictions do not violate the statutory elements test; rather, Smith argues that his convictions for murder and possession of a firearm by a serious violent felon violate the actual evidence test.1 “Under the actual evidence test, we examine the actual evidence presented at trial in order to determine whether each challenged offense was established by separate and distinct facts.” Id.

2017Wieland v. State, 736 N.E.2d 1198, 1204 (Ind. 2000).

2017Wieland v. State, 736 N.E.2d 1198, 1204 (Ind. 2000).

2019See Thy Ho v. State, 725 N.E.2d 988, 992 (Ind. Ct. App. 2000) (charges of armed robbery and theft Court of Appeals of Indiana | Memorandum Decision 18A-CR-2624 | May 23, 2019 Page 15 of 21 did not violate statutory elements test; the offenses as charged involved different victims and different types of property). [40] When the statutory elements test does not disclose a double jeopardy violation, we turn to the second part of the Richardson analysis, the actual elements test. 717 N.E.2d at 52 .

2003Id. 992-993 . 4 In Hopkins, the robbery and confine *1259 ment convictions rested upon evidence of separate transgressions.

2017However, Neville correctly observes that “[e]ven where no constitutional violation has occurred, multiple convictions may nevertheless violate the ‘rules of statutory construction and common law that are often described as double jeopardy, but are not governed by the constitutional test set forth in Richardson.’” Appellant’s Reply Br. at 16-17; Vandergriff, 812 N.E.2d at 1088 (quoting Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002)).

2015In Leggs v. State, we stated: "A defendant is subjected to double jeopardy 'where a felony is elevated in class based on the same statutory factor and factual basis that was used to elevate another felony in class, [thus] [sic] the two cannot stand together and one must be reduced in class.’ ” 966 N.E.2d 204, 208-09 (Ind.Ct.App.2012) (quoting Pierce, 761 N.E.2d at 830 ) (first alteration original to Leggs).

2015Williams v. State, 889 N.E.2d 1274, 1278 (Ind. Ct. App. 2008) (citing Davis v. State, 770 N.E.2d 319, 323 (Ind. 2002)), trans. denied.

2005Id. *459 The statutory elements analysis is the same as the test enunciated by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932).

2019See Sloan v. State, 947 N.E.2d 917, 924 (Ind. 2011) (“Sloan concedes that the statutory Court of Appeals of Indiana | Memorandum Decision 18A-CR-2027 | June 28, 2019 Page 6 of 14 elements of Class A felony child molesting and Class C felony child molesting are different.”) [14] Under the actual evidence test, the evidence presented at trial is examined to determine whether each challenged offense was established by separate and distinct facts.

2011See Sloan v. State, 947 N.E.2d 917, 924 (Ind.2011) (“Sloan concedes that the statutory elements of Class A felony child molesting and Class C felony child molesting are different.

2019Spears v. State, 735 N.E.2d 1161, 1166 (Ind. 2000), reh’g denied.

2019Spears v. State, 735 N.E.2d 1161, 1166 (Ind. 2000), reh’g denied.

2017However, Neville correctly observes that “[e]ven where no constitutional violation has occurred, multiple convictions may nevertheless violate the ‘rules of statutory construction and common law that are often described as double jeopardy, but are not governed by the constitutional test set forth in Richardson.’” Appellant’s Reply Br. at 16-17; Vandergriff, 812 N.E.2d at 1088 (quoting Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002)).

2013And “[e]ven where no constitutional violation has occurred, multiple convictions may nevertheless violate the ‘rules of statutory construction and common law that are often described as double jeopardy, but are not governed by the constitutional test set forth in Richardson.’” Vandergriff v. State, 812 N.E.2d 1084, 1088 (Ind. Ct. App. 2004) (citing Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002)), trans. denied.

2015There is no double jeopardy violation where “the evidentiary facts establishing the essential elements of one offense also establish only one or even several, but not all, of the essential elements of a second offense.” Lee v. State, 892 N.E.2d 1231, 1234 (Ind. 2008). [24] The following evidence was used to prove that Lessing committed confinement:  Lessing was brandishing a machete;  Lessing repeatedly threatened Wagner with harm if she left the motel room;  At one point, Wagner left the room, at which point Lessing grabbed her by the hair and neck and pulled her back into the room;  Offi

2015Thus, Haupert does not challenge his conviction under the statutory elements test; rather, he asserts that his conviction violates the “actual evidence test.” See id. at 1233-34 . [14] Applying the actual evidence test, “we examine the actual evidence presented at trial in order to determine whether each challenged offense was established by separate and distinct facts.” Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013).

2024Id. (“Even if the ... statutory elements test[] does not disclose a double jeopardy violation, the actual evidence test may.”); see, e.g., Guffey v. State, 717 N.E.2d 103, 105-07 (Ind. 1999) (finding convictions for aiding in the commission of armed robbery and conspiracy to commit armed robbery violated Article 1, Section 14 under the actual-evidence test, although the differing elements of the two offenses meant the statutory-elements test was not met). [89] My colleagues focus almost exclusively on the statutory elements of Schoeff’s charged offenses, rather than the evidence introduced to

2020See also McElroy v. State, 864 N.E.2d 392, 397 (Ind. Ct. App. 2007) (concluding that, under “either the statutory elements test or the actual evidence test,” each charged offense “requires” proof of facts not required by the other).

2020“On appeal, the defendant bears the burden to show that his convictions violated his constitutional right to be free from double jeopardy.” Johnston v. State, 126 N.E.3d 878, 889 (Ind. Ct. App. 2019), trans. denied. [8] Hunter presents no argument that his conviction violates the statutory elements test; rather, Hunter contends that his conviction violates the actual evidence test.

2019See Ramsey v. State , 723 N.E.2d 869 , 872-73 (Ind. 2000) ; Yerden v. State , 682 N.E.2d 1283 , 1286 (Ind. 1997).

2019Rexroat v. State, 966 N.E.2d 165, 169 (Ind. Ct. App. 2012), trans. denied.

2016Hines v. State, 30 N.E.3d 1216, 1222 (Ind. 2015).

2015Williams v. State, 889 N.E.2d 1274, 1278 (Ind. Ct. App. 2008) (citing Davis v. State, 770 N.E.2d 319, 323 (Ind. 2002)), trans. denied.

2015In Leggs v. State, we stated: "A defendant is subjected to double jeopardy 'where a felony is elevated in class based on the same statutory factor and factual basis that was used to elevate another felony in class, [thus] [sic] the two cannot stand together and one must be reduced in class.’ ” 966 N.E.2d 204, 208-09 (Ind.Ct.App.2012) (quoting Pierce, 761 N.E.2d at 830 ) (first alteration original to Leggs).

2015See Guyton, 771 N.E.2d at 1143 ; Richardson, 717 N.E.2d at 55-56 (Sullivan, J., concurring). [19] To the extent that Hayden argues that his convictions for Count I, robbery as a class C felony, and Count II, unlawful possession of a firearm by a serious violent felon, violate the statutory elements test, we observe that the objective of the statutory elements test is to determine whether the essential elements of separate statutory crimes charged could be established hypothetically.

2013Thomas v. State, 840 N.E.2d 893, 900 (Ind. Ct. App. 2006). 13 directs us to Thomas v. State, 840 N.E.2d 893 (Ind. Ct. App. 2006), in support of his position that the same evidentiary facts that were used to establish Counts I and II were also used to establish the elements of Count III.

2013Thomas v. State, 840 N.E.2d 893, 900 (Ind. Ct. App. 2006). 13 directs us to Thomas v. State, 840 N.E.2d 893 (Ind. Ct. App. 2006), in support of his position that the same evidentiary facts that were used to establish Counts I and II were also used to establish the elements of Count III.

2013We therefore do not address the federal double jeopardy provision other than to note that the statutory elements test of the Indiana double jeopardy clause and the Fifth Amendment test as enunciated in Blockburger v. United States, 284 U.S. 299 (1932), are substantially the same, Brown v. State, 912 N.E.2d 881, 896 (Ind. Ct. App. 2009), trans. denied, and our courts have held that convictions of both rape and criminal confinement are not precluded under the Blockburger test, see Purter v. State, 515 N.E.2d 858, 860 (Ind. 1987). 4 II.

2012We applied that rule in Peckinpaugh v. State, 743 N.E.2d 1238, 1242 (Ind.Ct.App. 2001), trans. denied, in which we held that, “where ... a double jeopardy challenge is premised upon convictions of multiple counts of the same offense, the statutory elements test is inapplicable, because a defendant may be charged with as many counts of an offense as there are separate acts committed.” Rexroat contends that that statement from Peckinpaugh “overstates the case” because “the language from Richardson states that a charging information that clearly alleges different acts at different times will easi

2012We applied that rule in Peckinpaugh v. State, 743 N.E.2d 1238, 1242 (Ind.Ct.App. 2001), trans. denied, in which we held that, “where ... a double jeopardy challenge is premised upon convictions of multiple counts of the same offense, the statutory elements test is inapplicable, because a defendant may be charged with as many counts of an offense as there are separate acts committed.” Rexroat contends that that statement from Peckinpaugh “overstates the case” because “the language from Richardson states that a charging information that clearly alleges different acts at different times will easi

2012See Boles v. State, 595 N.E.2d 272, 273 (Ind. Ct. App. 1992) (citing Blockburger v. United States, 284 U.S. 299 , 52 S. Ct. 180 (1932)).

2007Jack is claiming a violation under the actual evidence test, and in a challenge under that test, “the appellant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may have also been used to establish the essential elements of a second challenged offense.” Holden v. State, 815 N.E.2d 1049, 1057 (Ind.Ct.App.2004), trans. denied.