Moore v. State

Decision Date24 July 1998
Docket NumberNo. 48A04-9711-CR-473,48A04-9711-CR-473
Citation698 N.E.2d 1203
PartiesThomas O. MOORE, Appellant-Defendant, v. STATE of Indiana, Appellee.
CourtIndiana Appellate Court
OPINION

SULLIVAN, Judge.

Appellant, Thomas O. Moore (Moore), by this interlocutory appeal challenges the denial of his motion to dismiss the charge of Attempted Criminal Deviate Conduct.

We affirm.

The interlocutory appeal presents one issue, which we restate as follows:

Whether double jeopardy considerations preclude retrial upon the charge of Count I, Attempted Criminal Deviate Conduct, in light of his conviction upon Count II, the included offense of Criminal Confinement.

In 1989, Moore was convicted of Count I, Attempted Criminal Deviate Conduct, 1 and Count II, Criminal Confinement. 2 In 1991, this court reversed the Attempted Criminal Deviate Conduct conviction due to the trial court's refusal to give a jury instruction upon the included offense of battery. Moore v. State, 573 N.E.2d 483 (Memorandum Decision upon Petition for Rehearing).

In 1993, Moore was once again convicted upon Count I. The facts supporting Moore's conviction for Attempted Criminal Deviate Conduct are recited in Moore v. State (1995) Ind.App., 653 N.E.2d 1010, 1014, trans. denied, in which the second conviction was reversed due to improper admission of a prior unrelated crime. In reaching the decision, this court held that if Moore was convicted upon retrial for attempted criminal deviate conduct, the confinement conviction would become an included offense of the greater crime. Id. at 1020. Such a result was mandated because permitting both convictions to stand would have subjected Moore to multiple punishments for the same occurrence. Id.

On November 13, 1996, Moore filed a motion to dismiss Count I upon double jeopardy grounds. The trial court denied the motion and certified the matter for interlocutory appeal on November 7, 1997.

We accept the issue as phrased by the trial court in its certification:

"Whether the defendant's conviction on Count II, Criminal Confinement, a class D[B] felony a lesser included offense of Count I, Attempted Criminal Deviate Conduct, a Class A felony, precludes a retrial upon reversal of the defendant's conviction on Count I in Moore v. State, N.E.2d 1010 (Ind.Ct.App.1995) and pursuant to the Motion to dismiss filed on May 13, 1996?" Record at 394.

MULTIPLE PROSECUTIONS

Moore contends that retrial upon the charge of Attempted Criminal Deviate Conduct violates his right to be free from multiple prosecutions for the same offense. We disagree. The prohibition against double jeopardy protects against three specific harms: (1) reprosecution for the same offense after acquittal; (2) reprosecution for the same offense after conviction; and (3) multiple punishments for the same offense. Grinstead v. State (1997) Ind., 684 N.E.2d 482, 485. Moore's argument that double jeopardy precludes retrial fails because his conviction for Attempted Criminal Deviate Conduct was reversed upon grounds other than sufficiency of the evidence. Van Donk v. State (1997) Ind.App., 676 N.E.2d 349, 352.

As noted in Moore, supra, 653 N.E.2d at 1019:

"The retrial of a defendant upon a charge is not necessarily a 'punishment.' Indeed, once a court has vacated the conviction of an accused to grant a new trial, that person is placed in a position as if he had never been tried upon that charge at all. (Citation omitted). It is only where a conviction has been premised upon the insufficiency of the evidence that retrial is barred."

INCLUDED OFFENSE

The State maintains that the case law upon which this Court relied to determine that Moore's conviction for confinement became an included offense has been overruled. It contends that convictions for Confinement and Attempted Criminal Deviate Conduct would not subject Moore to double jeopardy because each statute contains elements which require proof of an additional fact which the other does not require. See Games v. State (1997) Ind., 684 N.E.2d 466, 477, opinion modified on other grounds, Games v. State (1997) Ind., 690 N.E.2d 211.

We disagree with this conclusion for two reasons: (1) the State has construed the holding in Games too narrowly; and (2) recent Supreme Court precedent regarding jury instructions mandates that an offense be considered a factually included offense if the charging instrument alleges that the means used to commit the crime charged includes all of the elements of the alleged included offense.

To support a conviction for Criminal Confinement as a class D felony, under the circumstances presented, the State must prove that Moore: (1) knowingly or intentionally; (2) confined another person; (3) without her consent. To convict Moore for Attempted Criminal Deviate Conduct as a class A felony, the State must prove that he: (1) knowingly or intentionally; (2) took a substantial step; (3) using either force or threat of force to compel a person; (4) to perform or submit to; (5) deviate sexual conduct; (6) while armed with a deadly weapon.

The State is correct in maintaining that the element of "deviate sexual conduct" is a separate and distinct element not found within the statutory definition of Confinement. However, we disagree with the State's contention that "confinement" is a separate and distinct statutory element not present in any of the statutory elements defining the crime of Attempted Criminal Deviate Conduct.

In Games, the Indiana Supreme Court adopted the "same elements" test in interpreting double jeopardy challenges premised upon multiple punishments. The Court held that, in determining whether multiple convictions violated double jeopardy, courts should look only to the "statutory elements of the offenses, not to the charging information, the jury instructions outlining the elements of the crime, or the underlying proof needed to establish the elements." Games, supra, 684 N.E.2d at 477.

The State interprets Games as holding that double jeopardy analysis is limited to a strict comparison of specific statutory terms used to define the elements of each crime. We hold that such interpretation of Games is overly narrow and incorrectly limits the focus of double jeopardy analysis to the presence of precise vocabulary terms. Instead, we read Games and its progeny to direct trial courts to include in its comparison of the statutory elements an inquiry as to whether facially distinct elements are truly distinct before permitting multiple convictions.

In this instance, the State contends double jeopardy is not implicated because the element of confinement is not present in the offense of Attempted Criminal Deviate Conduct. Indiana Supreme Court analysis regarding the existence of included offenses, however, leads to the opposite conclusion.

In Goudy v. State (1997) Ind., 689 N.E.2d 686, 698, reh'g denied, our Indiana Supreme Court held that carjacking was an included offense of robbery, as a class A felony.

Robbery, as a Class A felony, is defined as:

"A person who knowingly or intentionally takes property from another person or from the presence of another person:

(1) by using or threatening the use of force on any person; or

(2) by putting any person in fear;

commits robbery ... [as a] class A felony if it results in serious bodily injury to any person other than a defendant." I.C. 35-42-5-1 (Burns Code Ed. Repl.1985).

Carjacking, as a class B felony, is defined as:

"A person who knowingly or intentionally takes a motor vehicle from another person or from the presence of another person:

(1) by using or threatening the use of force on any person; or

(2) by putting any person in fear;

commits carjacking, a class B felony." I.C. 35-42-5-2 (Burns Code Ed. Supp.1993).

Under the State's interpretation of Games, convictions for both Carjacking and Robbery would have been permissible because Carjacking and Robbery each contain elements not present in the other. (Robbery includes the taking of "property", while Carjacking includes the taking of a "motor vehicle").

The Court in Goudy, however, clearly looked past facial differences between the statutory elements of "property" and "motor vehicle" to reach its decision. Instead of conducting a strict and cursory comparison of dictionary terms, the Court determined that because the property taken was a motor vehicle, "property" and "motor vehicle" could not be treated as distinct statutory elements. The Court's decision entailed a type of case-by-case, substantive comparative analysis of the elements of "property" and "motor vehicle", which the State would argue is prohibited by Games. The Court stated:

"In vacating the conviction in this case, we emphasize that Carjacking would not necessarily always be an included offense within Robbery. If a person was convicted of Carjacking for the taking of a motor vehicle and of Robbery for the taking of some other property, then ordinarily no "included offense" problems would arise. However, in this case, the Attempted Carjacking charge and the Attempted Robbery Charge had identical elements of proof, both being based upon the taking of the same motor vehicle." Id. at 698.

A reading of Games in an unduly narrow context might lead some to conclude that it stands for the proposition that if separate statutes each contain at least one element which has the capacity to exist independent of any of the other statute's elements, double jeopardy is not implicated. For example, numerous behaviors or acts other than confinement might well establish the occurrence of the "substantial step" element contained in the Attempted Criminal Deviate Conduct statute. Therefore, it would be claimed that "confinement" and "substantial step" are distinct elements, and...

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