Thomas v. State, No. 34A04-0106-CR-230.

Docket NºNo. 34A04-0106-CR-230.
Citation764 N.E.2d 306
Case DateMarch 13, 2002
CourtCourt of Appeals of Indiana

764 N.E.2d 306

Reginald J. THOMAS, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Appellee

No. 34A04-0106-CR-230.

Court of Appeals of Indiana.

March 13, 2002.


764 N.E.2d 307
John (Jack) F. Crawford, Crawford & DeVane, Indianapolis, IN, Attorney for Appellant

Steve Carter, Attorney General of Indiana, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MATHIAS, Judge.

Reginald Thomas ("Thomas") was charged and pled guilty to conspiracy to deliver cocaine in Cass Superior Court. He was also charged with dealing in cocaine,1 as a Class B felony, in Howard Superior Court, and that same, alleged offense was also one of the overt acts charged in the conspiracy in Cass Superior Court. He filed a motion to dismiss the charge in Howard Superior Court, which was denied. He has filed this interlocutory appeal raising one issue: whether the trial court erred when it denied his motion to dismiss under the Indiana Double Jeopardy Clause, which protects against a second prosecution for the same offense.

We reverse.

764 N.E.2d 308
Facts and Procedural History

On January 14, 1999, Thomas was charged with dealing in cocaine in Howard Superior Court. The charging information reads as follows:

[O]n or about the 19th day of November, 1998, at the County of Howard and the state of Indiana, REGINALD J. THOMAS, did then and there unlawfully, knowingly, or intentionally deliver cocaine, pure or adulterated in an aggregate weight of less than three (3) grams to Confidential and Reliable Informant 5662, at or near the Bob Evans Restaurant, located at 1850 U.S. 31 By Pass South, Kokomo, Howard County, Indiana.

Appellant's App. p. 7 (emphases added).

Also in January 1999, Thomas was charged with conspiracy to deliver cocaine,2 as a Class A felony, in Cass Superior Court. On March 2, 2000, an amended information was filed in Cass Superior Court and provided:

[O]n or about November, 1998—February, 1999, Reginald J. Thomas conspired with Confidential Informant 4981 to deliver cocaine to Cass County, State of Indiana, to-wit: from Cass County, Confidential Informant 4981 contacted Reginald J. Thomas in Indianapolis to arrange for Reginald J. Thomas to provide cocaine to Confidential Informant 4981, and thereafter (1) on November 19, 1998 both Confidential Informant 4981 and Reginald J. Thomas drove to Kokomo, Indiana to effect the transfer of cocaine from Reginald J. Thomas to Confidential Informant 4981; (2) on December 1, 1998 both Confidential Informant 4981 and Reginald J. Thomas drove to Westfield, Indiana to effect the transfer of more than three (3) grams of cocaine from Reginald J. Thomas to Confidential Informant 4981; and (3) on February 12, 1999, both Confidential Informant 4981 and Reginald J. Thomas drove to Westfield, Indiana to effect the transfer of more than three (3) grams of cocaine from Reginald J. Thomas to Confidential Informant 4981 and after each transfer of cocaine Confidential Informant 4981 returned to Cass County, Indiana.

Appellant's App. p. 22 (emphases added). Confidential Informant 5662 noted in the Howard County charging information is the same person as Confidential Informant 4981 in the Cass County charging information. Appellant's App. p. 57.

On March 2, 2000, Thomas pled guilty to the charge of conspiracy to deliver cocaine, as a Class A felony, in Cass Superior Court. At the guilty plea hearing he admitted to the charges set forth in the charging information and specifically admitted that he did in fact transfer cocaine to the Confidential Informant in Howard County on November 19, 1998, in furtherance of the conspiracy. Appellant's App. pp. 36, 38. He was sentenced to serve twenty years with sixteen years suspended, four years executed, and placed on probation for sixteen years.

On November 13, 2000, Thomas filed a motion to dismiss the pending charge of dealing in cocaine in Howard County. In his motion, Thomas argued that prosecution of the Howard County charge was barred by Article I, Section 14 of the Indiana Constitution because Thomas was previously prosecuted, convicted, and sentenced in Cass Superior Court for the same acts specified in the charging information in Howard County. The motion was denied and Thomas then filed a request for certification of the trial court's order denying his motion to dismiss for

764 N.E.2d 309
interlocutory appeal. The trial court granted his request, and on June 11, 2001, our court accepted jurisdiction of this interlocutory appeal

Discussion and Decision

Thomas argues that the trial court erred when it denied his motion to dismiss because he has been convicted and punished in Cass County for conspiracy to deliver cocaine upon the same evidence used to charge him with dealing in cocaine in Howard County; therefore, prosecution of Thomas in Howard County for dealing in cocaine is barred by the Indiana Double Jeopardy Clause. Because the issue before us is a question of law, we review the matter de novo. Wilcox v. State, 748 N.E.2d 906, 909 (Ind.Ct.App.2001), trans. denied.

Article I, Section 14 of the Indiana Constitution provides "[n]o person shall be put in jeopardy twice for the same offense." The Double Jeopardy Clause protects against a second prosecution for the same offense after conviction. Berry v. State, 725 N.E.2d 939, 944 (Ind.Ct.App. 2000).

Prohibitions against double jeopardy protect the integrity of jury acquittals and the finality interest of defendants, shield against excessive and oppressive prosecutions, and ensure that defendants will not undergo the anxiety and expense of repeated prosecution and the increased probability of conviction upon re-prosecution.

Richardson v. State, 717 N.E.2d 32, 37 (Ind.1999) (citing Robert Matz, Note, Dual Sovereignty and the Double Jeopardy Clause: If at First You Don't Convict, Try, Try Again, 24 Fordham Urb. L.J. 353, 356-57 (1997) (citations omitted)). In Richardson, our supreme court concluded that two convictions are the same offense in violation of the Indiana Double Jeopardy Clause 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." Id. at 49. These tests are referred to as the "statutory elements test" and the "actual evidence test." Id. at 50, 52.

Under the statutory elements test, "[e]ach offense must contain at least one element which is separate and distinct from the other offense so that the same evidence is not necessary to convict for both offenses." Id. at 52.3 Under the actual evidence test, to show that the two challenged offenses constitute the same offense "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...

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2 practice notes
  • Daniels v. State , No. 20A03–1104–CR–165.
    • United States
    • Indiana Court of Appeals of Indiana
    • November 29, 2011
    ...the gun because such a conviction would require proof of the same conduct that supported his first conviction. See Thomas v. State, 764 N.E.2d 306, 311 (Ind.Ct.App.2002), trans. denied. Any variance between the charging information and proof at trial for the intimidation charge was not fata......
  • Hammons v. Jenkins-Griffith, No. 67A01-0104-JV-145.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 13, 2002
    ...The Great-Grandparents acknowledged in their petition that "they are not a[sic] parent or grandparent," (App. at 25), and we decline 764 N.E.2d 306 to expand the plain meaning of the statute by including great-grandparents as "grandparents"1 for purposes of the application of the Grandparen......
2 cases
  • Daniels v. State , No. 20A03–1104–CR–165.
    • United States
    • Indiana Court of Appeals of Indiana
    • November 29, 2011
    ...the gun because such a conviction would require proof of the same conduct that supported his first conviction. See Thomas v. State, 764 N.E.2d 306, 311 (Ind.Ct.App.2002), trans. denied. Any variance between the charging information and proof at trial for the intimidation charge was not fata......
  • Hammons v. Jenkins-Griffith, No. 67A01-0104-JV-145.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 13, 2002
    ...acknowledged in their petition that "they are not a[sic] parent or grandparent," (App. at 25), and we decline 764 N.E.2d 306 to expand the plain meaning of the statute by including great-grandparents as "grandparents"1 for purposes of the application of the Grandparent V......

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