Richardson actual evidence test in Indiana

2018However, this argument, even if sustained, does not violate the Richardson actual evidence test because, as noted, under that test, “the Indiana Double Jeopardy Clause is not violated when 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.” Spivey, 761 N.E.2d at 833 .

2016“In other words, under the Richardson actual evidence test, the Indiana Double Jeopardy Clause is not violated when 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.” Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002).

2024See I.C. § 35-31.5-2-168. [22] To find a double jeopardy violation under the Richardson actual-evidence test, “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.” 717 N.E.2d 32, 53 (Ind. 1999); see also Lee v. State, 892 N.E.2d 1231, 1236 (Ind. 2008) (explaining that the existence of a “‘reasonable possibility’ turns on a practical assessment of whether the jury may have latched on to exactly the sam

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

2016Our supreme court explained that “under the Richardson actual evidence test, the Indiana Double Jeopardy Clause is not violated when 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.” Guyton v. State, 771 N.E.2d 1141, 1142 (Ind. 2002) (quoting Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002)). [15] Purnell does not challenge the evidence establishing the underlying elements of burglary and robbery.

2015Our supreme court explained that “under the Richardson actual evidence test, the Indiana Double Jeopardy Clause is not violated when 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.” Guyton v. State, 771 N.E.2d 1141, 1142 (Ind. 2002) (quoting Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002)).

2024In fact, the Court’s 15 other double jeopardy cases citing Spivey do not establish an actual-evidence test that is different from Richardson’s version. 13 [69] For instance, in Lee v. State, 892 N.E.2d 1231, 1234 (Ind. 2008), our Supreme Court simply described Spivey as “explain[ing]” the Richardson actual-evidence test.

2024See I.C. § 35-31.5-2-168. [22] To find a double jeopardy violation under the Richardson actual-evidence test, “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.” 717 N.E.2d 32, 53 (Ind. 1999); see also Lee v. State, 892 N.E.2d 1231, 1236 (Ind. 2008) (explaining that the existence of a “‘reasonable possibility’ turns on a practical assessment of whether the jury may have latched on to exactly the sam

2016Grinstead v. State, 845 N.E.2d 1027, 1037 (Ind. 2006) (citing Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002)).

2002As we recently explained, "[U]nder the Richardson actual evidence test, the Indiana Double Jeopardy Clause is not violated when 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." Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002). *1143 In addition to the instances covered by Richardson , "we have long adhered to a series of rules of statutory construction and common law that are often described as double jeopardy, but are not governed by the constitutional test set forth i

2014See Calvert v. State, 930 N.E.2d 633, 642 (Ind.Ct.App.2010); but see Alexander v. State, 772 N.E.2d 476, 478 (Ind.Ct.App.2002) (finding a violation of the Richardson actual-evidence test “where the evidentiary fact(s) establishing one or more elements of one challenged offense establish all of the elements of the second challenged offense”), trans. denied. 12 .

2013However, “under the Richardson actual evidence test, the Indiana Double Jeopardy Clause is not violated when the eviden-tiary 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.” Spivey, 761 N.E.2d at 833 (emphases added); but cf. Alexander v. State, 772 N.E.2d 476, 478 (Ind.Ct.App.2002), trans. denied (reasoning that under Richardson/Spivey actual evidence test, dual convictions are barred if evidentiary facts establishing one or more elements of either challenged offense also establish a

2020See id. (finding “no reason why the Richardson actual evidence test would not apply any time there are multiple verdicts, not simply multiple convictions, on the same facts”).

2015Calvert v. State, 14 N.E.3d 818, 822 (Ind. Ct. App. 2014). “[T]wo or more offenses are the same offense in violation of Article I, Section 14 11 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.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999) (quotation marks omitted) (emphasis in original). “[I]n order to find a double-jeopardy violation pursuant to the Richardson actual evidence

2013The Court was unequivocal: “[W]e choose not to extend the Richardson actual evidence test to this situation.” Id. at 202.

2013Because of the availability of the doctrine of collateral estoppel, we choose not to extend the Richardson actual evidence test to this situation.” Buggs, 844 N.E.2d at 201-02 .

2014Notwithstanding the phrasing of the Richardson actual evidence test, “in application our Supreme Court has consistently overturned convictions [on] double jeopardy grounds where the evidentiary facts establishing an essential element of one offense also establish all of the essential elements of the second challenged offense.” Alexander v. State, 768 N.E.2d 971, 974 (Ind. Ct. App. 2002) (emphasis in original), trans. denied; see also Spears v. State, 735 N.E.2d 1161 (Ind. 2000), Logan v. State, 729 N.E.2d 125 (Ind. 2000), Hampton v. State, 719 N.E.2d 803 (Ind. 1999) (in all cases, convictions

2008In this respect, although we concluded there is a reasonable possibility the jury used the same evidentiary facts to establish the essential elements of burglary and the substantial step element of attempted robbery, there is still no double jeopardy violation based on a literal application of the actual evidence test. 3 As our supreme court explained in Spivey v. State, 761 N.E.2d 831, 833 (Ind.2002), “under the Richardson actual evidence test, the Indiana Double Jeopardy Clause is not violated when the evidentiary facts establishing the essential elements of one offense also establish only o

2014See Calvert v. State, 930 N.E.2d 633, 642 (Ind.Ct.App.2010); but see Alexander v. State, 772 N.E.2d 476, 478 (Ind.Ct.App.2002) (finding a violation of the Richardson actual-evidence test “where the evidentiary fact(s) establishing one or more elements of one challenged offense establish all of the elements of the second challenged offense”), trans. denied. 12 .

2013However, “under the Richardson actual evidence test, the Indiana Double Jeopardy Clause is not violated when the eviden-tiary 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.” Spivey, 761 N.E.2d at 833 (emphases added); but cf. Alexander v. State, 772 N.E.2d 476, 478 (Ind.Ct.App.2002), trans. denied (reasoning that under Richardson/Spivey actual evidence test, dual convictions are barred if evidentiary facts establishing one or more elements of either challenged offense also establish a

2014Notwithstanding the phrasing of the Richardson actual evidence test, “in application our Supreme Court has consistently overturned convictions [on] double jeopardy grounds where the evidentiary facts establishing an essential element of one offense also establish all of the essential elements of the second challenged offense.” Alexander v. State, 768 N.E.2d 971, 974 (Ind. Ct. App. 2002) (emphasis in original), trans. denied; see also Spears v. State, 735 N.E.2d 1161 (Ind. 2000), Logan v. State, 729 N.E.2d 125 (Ind. 2000), Hampton v. State, 719 N.E.2d 803 (Ind. 1999) (in all cases, convictions

2002In addressing the double jeopardy implications of the two convictions using the Richardson actual evidence test, the Court stated, "there is at least a reasonable possibility- *975 if not a near certainty-that the same evidence used by the jury to establish the essential elements of murder was also included among the evidence establishing an essential element of robbery as a Class A felony." Id. at 1165 (emphasis supplied).

2014The “reasonable possibility” that the fact-finder used the same facts to support two convictions cannot be speculative or remote, Griffin v. State, 717 N.E.2d 73, 89 (Ind. 1999), cert. denied, 530 U.S. 1247 (2000), and it must be more than a “logical possibility,” Lee v. State, 892 N.E.2d 1231, 1236 (Ind. 2008).

2013The “reasonable possibility” that the fact-finder used the same facts to support two convictions cannot be speculative or remote, Griffin v. State, 717 N.E.2d 73, 89 (Ind. 1999), cert. denied, 530 U.S. 1247 (2000), and it must be more than a “logical possibility,” Lee v. State, 892 N.E.2d 1231, 1236 (Ind. 2008).

2013As our Supreme Court observed in Spivey v. State: [U]nder the Richardson actual evidence test, the Indiana Double Jeopardy Clause is not violated when the eviden-tiary facts establishing the essential elements of one offense also establish one or even several, but not all, of the essential elements of a second offense. 761 N.E.2d 831, 833 (Ind.2002); see also Redman v. State, 743 N.E.2d 263, 267 (Ind.2001) (stating that under Richardson it is “necessary to show a possibility that the same evidentiary facts were used to prove the body of essential elements that comprise each” of the two offense

2003See also Redman v. State, 743 N.E.2d 263, 267 (Ind.2001).

2007Miller v. State, 790 N.E.2d 437, 439 (Ind. 2003) (quotations omitted; citing Richardson v. State, 717 N.E.2d 32 (Ind.1999)).

2007Miller v. State, 790 N.E.2d 437, 439 (Ind. 2003) (quotations omitted; citing Richardson v. State, 717 N.E.2d 32 (Ind.1999)).

2010Then, the Court in Spivey v. State, 761 N.E.2d 831, 833 (Ind.2002) held "[U]nder the Richardson actual evidence test, the Indiana Double Jeopardy Clause is not violated when 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." In Ho v. State, 725 N.E.2d 988, 992 (Ind.Ct.App.2000), we confronted a double jeopardy claim arising from a defendant's convictions for robbery and carrying a handgun without a license.

2010Then, the Court in Spivey v. State, 761 N.E.2d 831, 833 (Ind.2002) held "[UJnder the Richardson actual evidence test, the Indiana Double Jeopardy Clause is not violated when 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." In Ho v. State, 725 N.E.2d 988, 992 (Ind.Ct.App.2000), we confronted a double jeopardy claim arising from a defendant's convictions for robbery and carrying a handgun without a license.

2014Notwithstanding the phrasing of the Richardson actual evidence test, “in application our Supreme Court has consistently overturned convictions [on] double jeopardy grounds where the evidentiary facts establishing an essential element of one offense also establish all of the essential elements of the second challenged offense.” Alexander v. State, 768 N.E.2d 971, 974 (Ind. Ct. App. 2002) (emphasis in original), trans. denied; see also Spears v. State, 735 N.E.2d 1161 (Ind. 2000), Logan v. State, 729 N.E.2d 125 (Ind. 2000), Hampton v. State, 719 N.E.2d 803 (Ind. 1999) (in all cases, convictions

2002In Logan v. State, 729 N.E.2d 125 (Ind.2000), the Court again considered a challenge to two convictions under the Richardson actual evidence test.

2003However, “under the Richardson actual evidence test, the Indiana Double Jeopardy Clause is not violated when 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.” Bald v. State, 766 N.E.2d 1170, 1172 (Ind.2002) (quoting Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002)).

2003However, "under the Richardson actual evidence test, the Indiana Double Jeopardy Clause is not violated when 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." Bald v. State, 766 N.E.2d 1170, 1172 (Ind.2002) ( quoting Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002)).

2024In Troutner v. State, 951 N.E.2d 603, 610 (Ind. Ct. App. 2011), trans. denied, a panel of this Court rejected the State’s claim that, in light of Spivey, a “complete evidentiary overlap” between the robbery and misdemeanor battery offenses was required before those dual convictions would satisfy the Richardson actual-evidence test.

2024In Troutner v. State, 951 N.E.2d 603, 610 (Ind. Ct. App. 2011), trans. denied, a panel of this Court rejected the State’s claim that, in light of Spivey, a “complete evidentiary overlap” between the robbery and misdemeanor battery offenses was required before those dual convictions would satisfy the Richardson actual-evidence test.

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

2024See Cleary, 23 N.E.3d at 673 .

2019Chappell v. State, 966 N.E.2d 124, 131 (Ind. Ct. App. 2012) (citing Lee v. State, 892 N.E.2d 1231, 1234 (Ind. 2008)), trans. denied.

2016Hardley v. State, 893 N.E.2d 1140, 1145 (Ind. Ct. App. 2008), summarily aff’d on this ground, 905 N.E.2d 399, 404 (Ind. 2009).

2016See id.

2016Hardley v. State, 893 N.E.2d 1140, 1145 (Ind. Ct. App. 2008), summarily aff’d on this ground, 905 N.E.2d 399, 404 (Ind. 2009).

2016See Grinstead v. State, 845 N.E.2d 1027, 1037-38 (Ind. 2006) (concluding that convictions for both robbery and conspiracy to commit robbery constituted double jeopardy where the overt act alleged was the act of robbing the victim, but that convictions for murder and conspiracy to commit murder did not constitute double jeopardy where overt 1 In addition to the Richardson actual evidence test, our courts have long adhered to a series of rules of statutory construction and common law that were often described as double jeopardy, but were not governed by the constitutional test set forth in Richa

2016Grinstead v. State, 845 N.E.2d 1027, 1037 (Ind. 2006) (citing Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002)).

2015We have previously explained that “convictions for robbery and burglary do not violate the Richardson actual evidence test as each crime requires proof of a fact that the other does not; robbery requires proof that the defendant took property from another person and burglary requires proof that the defendant broke and entered a structure.” Smith v. State, 872 N.E.2d 169, 176 (Ind. Ct. App. 2007).

2015Calvert v. State, 14 N.E.3d 818, 822 (Ind. Ct. App. 2014). “[T]wo or more offenses are the same offense in violation of Article I, Section 14 11 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.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999) (quotation marks omitted) (emphasis in original). “[I]n order to find a double-jeopardy violation pursuant to the Richardson actual evidence

2014Notwithstanding the phrasing of the Richardson actual evidence test, “in application our Supreme Court has consistently overturned convictions [on] double jeopardy grounds where the evidentiary facts establishing an essential element of one offense also establish all of the essential elements of the second challenged offense.” Alexander v. State, 768 N.E.2d 971, 974 (Ind. Ct. App. 2002) (emphasis in original), trans. denied; see also Spears v. State, 735 N.E.2d 1161 (Ind. 2000), Logan v. State, 729 N.E.2d 125 (Ind. 2000), Hampton v. State, 719 N.E.2d 803 (Ind. 1999) (in all cases, convictions

2014Notwithstanding the phrasing of the Richardson actual evidence test, “in application our Supreme Court has consistently overturned convictions [on] double jeopardy grounds where the evidentiary facts establishing an essential element of one offense also establish all of the essential elements of the second challenged offense.” Alexander v. State, 768 N.E.2d 971, 974 (Ind. Ct. App. 2002) (emphasis in original), trans. denied; see also Spears v. State, 735 N.E.2d 1161 (Ind. 2000), Logan v. State, 729 N.E.2d 125 (Ind. 2000), Hampton v. State, 719 N.E.2d 803 (Ind. 1999) (in all cases, convictions