The following post is from Andy Krull of the Indiana Public Defender Council in response to a double jeopardy inquiry.
TITLE: Miller v. State
CITE: (6-25-03), Ind., 790/437
SUBJECT: Double jeopardy – repeated use of single weapon to enhance several convictions
HOLDING: Ct. has recognized a series of statutory construction & common law that supplements constitutional protections afforded by Indiana Double Jeopardy Clause. Pierce v. State, 761/826 (Ind. 2002). Pierce applied rule that two crimes may not be enhanced by same bodily injury. This was application of broader rule previously expressed by Justice Sullivan prohibiting conviction & punishment for enhancement of crime where enhancement is imposed for “very same behavior or harm” as another crime for which D has been convicted & punished. Repeated use of weapon to commit multiple separate crimes is not “the very same behavior” precluding its use to separately enhance resulting convictions. Rather, as here, use of single deadly weapon during commission of separate offenses may enhance level of each offense. Gates v. State, 759/631 (Ind. 2001). D’s convictions for class B felony criminal confinement, class B felony robbery, & two counts of class A felony criminal deviate conduct did not violate Indiana Double Jeopardy Clause. Held, transfer granted, memorandum opinion of Ct.App. vacated, judgment affirmed; Sullivan, J., concurring.
RELATED CASES: Rawson, App., 865/1049 (because D’s conduct involved multiple victims & separate & distinct acts, there was no DJ violation for convictions of attempted aggravated battery, intimidation & criminal recklessness); Marshall, App., 832/615 (Ct. affirmed multiple enhancements on three counts of child molesting even though D only held knife to victim’s throat once); Rodriguez, App., 795/1054 (enhancing D’s convictions for Rape as class A felony & Criminal Confinement as class B felony because a shotgun was used during both crimes did not violate prohibition against double jeopardy)
Holloway, App., 773/315 (D’s convictions for both criminal deviate conduct & rape as Class A felonies violated common law double jeopardy principles because serious bodily injury supporting both convictions stemmed from single criminal episode, despite fact that multiple blows were delivered)
Spears, 735/1161 (Ct. reduced Class A robbery conviction to C felony because jury used same evidentiary facts to support murder & elevated robbery convictions)
Walker, App., 758/563 (it was improper for evidence of use of handgun to be used to enhance both voluntary manslaughter conviction & robbery conviction)
TITLE: Vandergriff v. State
CITE: (5th Dist., 8-6-04), Ind.App., 812/1084
SUBJECT: Double jeopardy claim – battery & neglect of dependent
HOLDING: D’s convictions for neglect of dependent & battery of his infant son (CV) did not violate Indiana Double Jeopardy Clause. D challenged his conviction under actual evidence test, which prohibits multiple convictions if there is a reasonable possibility that evidentiary facts used by fact-finder to establish essential elements of one offense may also have been used to establish essential elements of second challenged offense. Davis v. State, 770/319 (Ind. 2002). Here, even assuming jury relied on same incident to establish two offenses, additional evidentiary facts were required to prove each offense. D’s act of touching CV establishes that he knowingly placed CV in situation that endangered his life or health, resulting in bodily injury, & that D knowingly touched CV in a rude, insolent or angry manner, resulting in bodily injury. Yet, to find D guilty of neglect, jury also had to find that CV was a dependent & that D had the care, custody, & control of CV. To find D guilty of Class D felony battery, jury was required to find that CV was less than fourteen years of age & D was at least eighteen years of age. While same evidence may have established that CV was a dependent & under fourteen years of age, clearly additional evidentiary facts were required to prove that D had the care, custody & control of CV & that D was at least eighteen years of age. Thus, there was no constitutional double jeopardy violation. Considering statutes, charging instruments, evidence & arguments of counsel, Ct. also held that two convictions did not violate common law rule prohibiting dual convictions for same act. Facts supporting these two crimes were separate & distinct, thus there was no common law double jeopardy violation. Held, judgment affirmed.
Howard 481/1315 (convictions for both neglect & battery violated double jeopardy; cause remanded with instructions to vacate sentence imposed for battery).
