Blockburger test in Indiana

2019“Under the Blockburger test, a defendant’s conviction upon multiple offenses will not be precluded by double jeopardy principles under the federal constitution if each statutory offense ‘requires proof of a fact which the other does not.’” Brown v. State, 912 N.E.2d 881, 892 (Ind. Ct. App. 2009) (quoting Blockburger, 284 U.S. at 304 ).

2019“Under the Blockburger test, a defendant’s conviction upon multiple offenses will not be precluded by double jeopardy principles under the federal constitution if each statutory offense ‘requires proof of a fact which the other does not.’” Brown v. State, 912 N.E.2d 881, 892 (Ind. Ct. App. 2009) (quoting Blockburger, 284 U.S. at 304 ).

1998The purpose of the Blockburger analysis is to determine whether “as defined by the legislature, any two or more [offenses] are the same offense.” Games, 684 N.E.2d at 476 (citing United States v. Dixon, 509 U.S. 688, 745 , 113 S.Ct. 2849, 2881-82 , 125 L.Ed.2d 556, 599-600 ).

1998The purpose of the Blockburger analysis is to determine whether “as defined by the legislature, any two or more [offenses] are the same offense.” Games, 684 N.E.2d at 476 (citing United States v. Dixon, 509 U.S. 688, 745 , 113 S.Ct. 2849, 2881-82 , 125 L.Ed.2d 556, 599-600 ).

2019“Under the Blockburger test, a defendant’s conviction upon multiple offenses will not be precluded by double jeopardy principles under the federal constitution if each statutory offense ‘requires proof of a fact which the other does not.’” Brown v. State, 912 N.E.2d 881, 892 (Ind. Ct. App. 2009) (quoting Blockburger, 284 U.S. at 304 ).

2019“Under the Blockburger test, a defendant’s conviction upon multiple offenses will not be precluded by double jeopardy principles under the federal constitution if each statutory offense ‘requires proof of a fact which the other does not.’” Brown v. State, 912 N.E.2d 881, 892 (Ind. Ct. App. 2009) (quoting Blockburger, 284 U.S. at 304 ).

1999See also Iannelli v. United States, 420 U.S. 770 , 785 n. 17, 95 S.Ct. 1284 , 1294 n. 17, 43 L.Ed.2d 616 , 627 n. 17 (1975) (the Blockburger test “focuses on the statutory elements of the offense”) (citations omitted).

1999See also Iannelli v. United States, 420 U.S. 770 , 785 n. 17, 95 S.Ct. 1284 , 1294 n. 17, 43 L.Ed.2d 616 , 627 n. 17 (1975) (the Blockburger test “focuses on the statutory elements of the offense”) (citations omitted).

2012Id. at 50 n. 41 (discussing the Blockburger standard).

2012Id. at 50 n. 41 (discussing the Blockburger standard).

1999Jewell v. State, 672 N.E.2d 417, 427 (Ind.Ct.App.1996), trans. denied.

1999Jewell v. State, 672 N.E.2d 417, 427 (Ind.Ct.App.1996), trans. denied.

1997More recently, the Court, in Illinois v. Vitale, 447 U.S. 410 , 100 S.Ct. 2260 , 65 L.Ed.2d 228 (1980), stated: [T]he Blockburger test focuses on the proof necessary to prove the statutory ele- merits, rather than on the actual evidence to be presented at trial.

1997More recently, the Court, in Illinois v. Vitale, 447 U.S. 410 , 100 S.Ct. 2260 , 65 L.Ed.2d 228 (1980), stated: [T]he Blockburger test focuses on the proof necessary to prove the statutory ele- merits, rather than on the actual evidence to be presented at trial.

1996This decision was overruled by United States v. Dixon, 509 U.S. 688 , 113 S.Ct. 2849 , 125 L.Ed.2d 556 (1993), when the Court reestablished the primacy of the traditional Blockburger analysis. [18] See, e.g., Brown v. Ohio, 432 U.S. 161, 167-68 , 97 S.Ct. 2221, 2226-27 , 53 L.Ed.2d 187 (1977), where the U.S. Supreme Court applied this "lesser included offense" analysis to the crimes of joyriding and auto theft.

1996This decision was overruled by United States v. Dixon, 509 U.S. 688 , 113 S.Ct. 2849 , 125 L.Ed.2d 556 (1993), when the Court reestablished the primacy of the traditional Blockburger analysis. [18] See, e.g., Brown v. Ohio, 432 U.S. 161, 167-68 , 97 S.Ct. 2221, 2226-27 , 53 L.Ed.2d 187 (1977), where the U.S. Supreme Court applied this "lesser included offense" analysis to the crimes of joyriding and auto theft.

1999Games, 684 N.E.2d at 473, n. 7 ; Grinstead, 684 N.E.2d at 485-486 . 3 Indiana has a more stringent double jeopardy analysis that goes beyond the simple evaluation and comparison of statutory provisions under the Blockburger test; the court must also examine the manner in which the State actually charged the offenses to ascertain whether a single act constituted the basis for multiple punishment.

1999Games, 684 N.E.2d at 473, n. 7 ; Grinstead, 684 N.E.2d at 485-486 . 3 Indiana has a more stringent double jeopardy analysis that goes beyond the simple evaluation and comparison of statutory provisions under the Blockburger test; the court must also examine the manner in which the State actually charged the offenses to ascertain whether a single act constituted the basis for multiple punishment.

1998However, he argues that Indiana should adopt the test previously articulated in Derado v. State, 622 N.E.2d 181 (Ind.1993) and Tawney v. State, 439 N.E.2d 582 (Ind.1982) and their progeny because a “strict and mechanical application of the Blockburger test will seldom result in two offenses being the same” and, thus, “leaves a defendant with little double jeopardy protection.” The issue Moore presents is one of first impression.

1998However, he argues that Indiana should adopt the test previously articulated in Derado v. State, 622 N.E.2d 181 (Ind.1993) and Tawney v. State, 439 N.E.2d 582 (Ind.1982) and their progeny because a “strict and mechanical application of the Blockburger test will seldom result in two offenses being the same” and, thus, “leaves a defendant with little double jeopardy protection.” The issue Moore presents is one of first impression.

2020See, e.g., Purter v. State, 515 N.E.2d 858, 860 (Ind. 1987) (citing Elmore, 269 Ind. 532 , 382 N.E.2d 893 , for the proposition that “[t]his court has adopted” the federal Blockburger test).

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.

2020See also Bigler v. State, 602 N.E.2d 509, 520 (Ind. Ct. App. 1992) (noting that “analysis of legislative intent” in Indiana, unlike the federal Blockburger test, “does not end with an evaluation and comparison of the specific statutory provisions which define the offenses”)[, reh’g denied, trans. denied].

2020See also Bigler v. State, 602 N.E.2d 509, 520 (Ind. Ct. App. 1992) (noting that “analysis of legislative intent” in Indiana, unlike the federal Blockburger test, “does not end with an evaluation and comparison of the specific statutory provisions which define the offenses”).24 This brings us to the second step of our inquiry. 23This definition is a variation of the Model Penal Code’s included-offense statute, adopted in Indiana in 1976.

2012Goldsberry v. State, 821 N.E.2d 447, 459 (Ind. Ct. App. 2005).

2012Goldsberry v. State, 821 N.E.2d 447, 459 (Ind. Ct. App. 2005).

2012See Jewell v. State, 957 N.E.2d 625 , 631 n. 10 (Ind.2011) (noting that Blockburger test requires examination of whether each statutory offense requires proof of a fact which the other does not) (citing Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932)); Pontius v. State, 930 N.E.2d 1212, 1218 (Ind.Ct.App.2010), trans. denied (noting that convictions for two offenses constitute double jeopardy under the Richardson statutory elements test if the statutory elements of one challenged offense also establish the statutory elements of another offense); Brown v. Sta

2012See Jewell v. State, 957 N.E.2d 625 , 631 n. 10 (Ind.2011) (noting that Blockburger test requires examination of whether each statutory offense requires proof of a fact which the other does not) (citing Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932)); Pontius v. State, 930 N.E.2d 1212, 1218 (Ind.Ct.App.2010), trans. denied (noting that convictions for two offenses constitute double jeopardy under the Richardson statutory elements test if the statutory elements of one challenged offense also establish the statutory elements of another offense); Brown v. Sta

2012See Jewell v. State, 957 N.E.2d 625 , 631 n. 10 (Ind.2011) (noting that Blockburger test requires examination of whether each statutory offense requires proof of a fact which the other does not) (citing Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932)); Pontius v. State, 930 N.E.2d 1212, 1218 (Ind.Ct.App.2010), trans. denied (noting that convictions for two offenses constitute double jeopardy under the Richardson statutory elements test if the statutory elements of one challenged offense also establish the statutory elements of another offense); Brown v. Sta

2012See Jewell v. State, 957 N.E.2d 625 , 631 n. 10 (Ind.2011) (noting that Blockburger test requires examination of whether each statutory offense requires proof of a fact which the other does not) (citing Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932)); Pontius v. State, 930 N.E.2d 1212, 1218 (Ind.Ct.App.2010), trans. denied (noting that convictions for two offenses constitute double jeopardy under the Richardson statutory elements test if the statutory elements of one challenged offense also establish the statutory elements of another offense); Brown v. Sta

2012Id. (citing Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002)).

2012Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002).

1998Chiesi , 644 N.E.2d at 106-07 . 1: See also , e.g. , Jewell v. State , 672 N.E.2d 417, 427 (Ind. Ct. App. 1996), trans. denied (Indiana double jeopardy jurisprudence distinct from federal); Channell v. State , 658 N.E.2d 925, 930 (Ind. Ct. App. 1996) (same), trans. denied ; Smith v. State , 655 N.E.2d 532, 545 (Ind. Ct. App. 1995) (same), trans. denied ; Ott v. State , 648 N.E.2d 671, 673 (Ind. Ct. App. 1995) (same); Shipley v. State , 620 N.E.2d 710 , 717 n.2 (Ind. Ct. App. 1993) (same). 2: Chiesi was a unanimous decision making no reference, express or implied, to the federal constitution.

1998Chiesi , 644 N.E.2d at 106-07 . 1: See also , e.g. , Jewell v. State , 672 N.E.2d 417, 427 (Ind. Ct. App. 1996), trans. denied (Indiana double jeopardy jurisprudence distinct from federal); Channell v. State , 658 N.E.2d 925, 930 (Ind. Ct. App. 1996) (same), trans. denied ; Smith v. State , 655 N.E.2d 532, 545 (Ind. Ct. App. 1995) (same), trans. denied ; Ott v. State , 648 N.E.2d 671, 673 (Ind. Ct. App. 1995) (same); Shipley v. State , 620 N.E.2d 710 , 717 n.2 (Ind. Ct. App. 1993) (same). 2: Chiesi was a unanimous decision making no reference, express or implied, to the federal constitution.

1998Chiesi , 644 N.E.2d at 106-07 . 1: See also , e.g. , Jewell v. State , 672 N.E.2d 417, 427 (Ind. Ct. App. 1996), trans. denied (Indiana double jeopardy jurisprudence distinct from federal); Channell v. State , 658 N.E.2d 925, 930 (Ind. Ct. App. 1996) (same), trans. denied ; Smith v. State , 655 N.E.2d 532, 545 (Ind. Ct. App. 1995) (same), trans. denied ; Ott v. State , 648 N.E.2d 671, 673 (Ind. Ct. App. 1995) (same); Shipley v. State , 620 N.E.2d 710 , 717 n.2 (Ind. Ct. App. 1993) (same). 2: Chiesi was a unanimous decision making no reference, express or implied, to the federal constitution.

1998Chiesi , 644 N.E.2d at 106-07 . 1: See also , e.g. , Jewell v. State , 672 N.E.2d 417, 427 (Ind. Ct. App. 1996), trans. denied (Indiana double jeopardy jurisprudence distinct from federal); Channell v. State , 658 N.E.2d 925, 930 (Ind. Ct. App. 1996) (same), trans. denied ; Smith v. State , 655 N.E.2d 532, 545 (Ind. Ct. App. 1995) (same), trans. denied ; Ott v. State , 648 N.E.2d 671, 673 (Ind. Ct. App. 1995) (same); Shipley v. State , 620 N.E.2d 710 , 717 n.2 (Ind. Ct. App. 1993) (same). 2: Chiesi was a unanimous decision making no reference, express or implied, to the federal constitution.

1998Chiesi , 644 N.E.2d at 106-07 . 1: See also , e.g. , Jewell v. State , 672 N.E.2d 417, 427 (Ind. Ct. App. 1996), trans. denied (Indiana double jeopardy jurisprudence distinct from federal); Channell v. State , 658 N.E.2d 925, 930 (Ind. Ct. App. 1996) (same), trans. denied ; Smith v. State , 655 N.E.2d 532, 545 (Ind. Ct. App. 1995) (same), trans. denied ; Ott v. State , 648 N.E.2d 671, 673 (Ind. Ct. App. 1995) (same); Shipley v. State , 620 N.E.2d 710 , 717 n.2 (Ind. Ct. App. 1993) (same). 2: Chiesi was a unanimous decision making no reference, express or implied, to the federal constitution.

1998Chiesi , 644 N.E.2d at 106-07 . 1: See also , e.g. , Jewell v. State , 672 N.E.2d 417, 427 (Ind. Ct. App. 1996), trans. denied (Indiana double jeopardy jurisprudence distinct from federal); Channell v. State , 658 N.E.2d 925, 930 (Ind. Ct. App. 1996) (same), trans. denied ; Smith v. State , 655 N.E.2d 532, 545 (Ind. Ct. App. 1995) (same), trans. denied ; Ott v. State , 648 N.E.2d 671, 673 (Ind. Ct. App. 1995) (same); Shipley v. State , 620 N.E.2d 710 , 717 n.2 (Ind. Ct. App. 1993) (same). 2: Chiesi was a unanimous decision making no reference, express or implied, to the federal constitution.

2020See, e.g., Purter v. State, 515 N.E.2d 858, 860 (Ind. 1987) (citing Elmore, 269 Ind. 532 , 382 N.E.2d 893 , for the proposition that “[t]his court has adopted” the federal Blockburger test).

2020See, e.g., Purter v. State, 515 N.E.2d 858, 860 (Ind. 1987) (citing Elmore, 269 Ind. 532 , 382 N.E.2d 893 , for the proposition that “[t]his court has adopted” the federal Blockburger test).

1998The purpose of the Blockburger analysis is to determine whether “as defined by the legislature, any two or more [offenses] are the same offense.” Games, 684 N.E.2d at 476 (citing United States v. Dixon, 509 U.S. 688, 745 , 113 S.Ct. 2849, 2881-82 , 125 L.Ed.2d 556, 599-600 ).

1998The purpose of the Blockburger analysis is to determine whether “as defined by the legislature, any two or more [offenses] are the same offense.” Games, 684 N.E.2d at 476 (citing United States v. Dixon, 509 U.S. 688, 745 , 113 S.Ct. 2849, 2881-82 , 125 L.Ed.2d 556, 599-600 ).

1997See Albernaz, 450 U.S. at 340 , 101 S.Ct. at 1143 , 67 L.Ed.2d at 282 (with clear legislative intent, whether or not the Blockburger statutory element test is satisfied is irrelevant: “[t]he Blockburger test is a ‘rule of statutory construction,’ and because it serves as a means of discerning congressional purpose [it] should not be controlling where, for example, there is a clear indication of contrary legislative intent”).

1997See Albernaz, 450 U.S. at 340 , 101 S.Ct. at 1143 , 67 L.Ed.2d at 282 (with clear legislative intent, whether or not the Blockburger statutory element test is satisfied is irrelevant: “[t]he Blockburger test is a ‘rule of statutory construction,’ and because it serves as a means of discerning congressional purpose [it] should not be controlling where, for example, there is a clear indication of contrary legislative intent”).

1989As Justice Rehnquist has observed, “the Blockburger test itself could be viewed as nothing but a rough proxy for such analysis [of legislative history], since, by asking whether two separate statutes each include an element the other does not, a court is really asking whether the legislature manifested an intention to serve two different interests in enacting the two statutes.” Whalen v. United States (1980), 445 U.S. 684, 713-14 , 100 S.Ct. 1432, 1449 , 63 L.Ed. 2d 715 (Rehnquist, J., dissenting).

1989As Justice Rehnquist has observed, “the Blockburger test itself could be viewed as nothing but a rough proxy for such analysis [of legislative history], since, by asking whether two separate statutes each include an element the other does not, a court is really asking whether the legislature manifested an intention to serve two different interests in enacting the two statutes.” Whalen v. United States (1980), 445 U.S. 684, 713-14 , 100 S.Ct. 1432, 1449 , 63 L.Ed. 2d 715 (Rehnquist, J., dissenting).

1997In particular, the four Justices would not overrule Grady v. Corbin, 495 U.S. 508 , 110 S.Ct. 2084 , 109 L.Ed.2d 548 (1990), which added a "second prong” to the Blockburger test requiring a court to consider whether the conduct underlying the offenses was the same, thus violating the Double Jeopardy Clause.

1997In particular, the four Justices would not overrule Grady v. Corbin, 495 U.S. 508 , 110 S.Ct. 2084 , 109 L.Ed.2d 548 (1990), which added a "second prong” to the Blockburger test requiring a court to consider whether the conduct underlying the offenses was the same, thus violating the Double Jeopardy Clause.

1998However, he argues that Indiana should adopt the test previously articulated in Derado v. State, 622 N.E.2d 181 (Ind.1993) and Tawney v. State, 439 N.E.2d 582 (Ind.1982) and their progeny because a “strict and mechanical application of the Blockburger test will seldom result in two offenses being the same” and, thus, “leaves a defendant with little double jeopardy protection.” The issue Moore presents is one of first impression.

1998However, he argues that Indiana should adopt the test previously articulated in Derado v. State, 622 N.E.2d 181 (Ind.1993) and Tawney v. State, 439 N.E.2d 582 (Ind.1982) and their progeny because a “strict and mechanical application of the Blockburger test will seldom result in two offenses being the same” and, thus, “leaves a defendant with little double jeopardy protection.” The issue Moore presents is one of first impression.

1998Chiesi , 644 N.E.2d at 106-07 . 1: See also , e.g. , Jewell v. State , 672 N.E.2d 417, 427 (Ind. Ct. App. 1996), trans. denied (Indiana double jeopardy jurisprudence distinct from federal); Channell v. State , 658 N.E.2d 925, 930 (Ind. Ct. App. 1996) (same), trans. denied ; Smith v. State , 655 N.E.2d 532, 545 (Ind. Ct. App. 1995) (same), trans. denied ; Ott v. State , 648 N.E.2d 671, 673 (Ind. Ct. App. 1995) (same); Shipley v. State , 620 N.E.2d 710 , 717 n.2 (Ind. Ct. App. 1993) (same). 2: Chiesi was a unanimous decision making no reference, express or implied, to the federal constitution.

1997See also Chiesi v. State, 644 N.E.2d 104, 106-07 (Ind.1994) (citing Indiana Constitution, not federal constitution, and applying Blockburger test to charging informations and proof at trial).