Rucker, J.
We hold that the “actual evidence” test announced in Richardson v. State, 717 N.E.2d 32 (Ind. 1999) is applicable to cases in which there has been an acquittal on one charge and retrial on another charge after a hung jury. We conclude however that the post-conviction court properly denied the petitioner’s claim that counsel rendered ineffective assistance in failing to pursue this issue at trial or on direct appeal.
. . . .
Second, “[t]he notion that ‘jeopardy’ is ‘risk’ is the very core of double jeopardy jurisprudence.” Bryant v. State, 660 N.E.2d 290, 299 (Ind. 1995) (citing Breed v. Jones, 421 U.S. 519, 528 (1975)). Jeopardy is the risk of trial and conviction, not punishment. Id. (citing Price v. Ga., 398 U.S. 323, 326 (1970)). In other words, double jeopardy protection prohibits twice subjecting an accused to the risk that he will be convicted of a single crime. Therefore it is not surprising that we have previously recognized a double jeopardy violation where a defendant demonstrated “that he might have been acquitted or convicted on the former trial” of the same crime for which he was convicted at the second trial. Brinkman v. State, 57 Ind. 76, 79 (1877). Finally, we see 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. In fact, the plain language of the test refers not just to convictions: “[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.” Richardson, 717 N.E.2d at 53 (emphasis added).
II.Double Jeopardy Violation
In the first trial the State charged Garrett with two separate, but identically worded, counts of rape. The charges read as follows:
Count I
On or about June 9, 2007, Juan Garrett did knowingly have sexual intercourse with [A.W.], a member of the opposite sex, when [A.W.] was compelled by force or the imminent threat of force, and further said act was committed while armed with a deadly weapon, that is: a knife;
Count II
On or about June 9, 2007, Juan Garrett did knowingly have sexual intercourse with [A.W.], a member of the opposite sex, when [A.W.] was compelled by force or the imminent threat of force, and further said act was committed while armed with a deadly weapon, that is: a knife[.]
Appellant’s Direct Appeal App. at 28. At trial, evidence was presented of two separate incidents of rape, one of which preceded the other. For clarity, we will sometimes refer to the first-in-time alleged rape as “Rape A” and the second-in-time alleged rape as “Rape B.” Garrett contends (and the State does not contest) that neither the charging informations nor the parties’ evidence and argument at trial specifically linked either charged count with a particular rape event, Rape A or Rape B. In the first trial, the jury acquitted Garrett on Count I but was unable to reach a unanimous verdict on Count II.2 Garrett was then retried on Count II.
Garrett contends that because the State never linked the Counts to the individual rape events in the first trial, it is impossible to know whether the jury’s decision with respect to Count I acquitted him of Rape A or Rape B. The State counters it is reasonable to infer that Count I charged Rape A — the first-in-time alleged offense, and Count II charged Rape B — the second-in-time alleged offense. This is so, according to the State, because (1) both counts were Class A felonies that occurred in chronological order, (2) this is how counsel for both parties understood the charges, (3) A.W.’s testimony presented the allegations in that order, and (4) the deputy prosecutor referred to the alleged rapes in that order in closing argument. We agree with the State on this point: the record supports the conclusion that the jury found Garret not guilty of alleged Rape A — the first-in-time offense; but could not reach a unanimous verdict on alleged Rape B. Thus there was no procedural bar in conducting a retrial on alleged Rape B — the second-in-time offense. The question remains whether the evidence presented at retrial resulted in a double jeopardy violation based on the Richardson actual evidence test.
We pause here to note the record reflects that the evidence of Rape B — the second in- time alleged offense — was actually more extensive in the first trial than on retrial. The only evidence presented on retrial of Rape B was A.W.’s testimony that after the older man told her she could leave, one of the younger men prevented her from leaving; but she was eventually allowed to leave “after he [the older man] put his penis in me again.” Tr. 2 at 367. This is the sum total of the evidence presented on retrial concerning Count II — the second-in-time alleged offense and the very count that all parties agreed was at stake on retrial. In any event even if the converse were true it would make no difference in this case. That is to say even if all parties agreed that Garrett was actually acquitted of alleged Rape B, the second-in-time offense, and thus retrial was confined to alleged Rape A, the first-in-time offense, the fact remains that essentially the same evidence was presented at both trials.
Under our traditional formulation, in order to find a double-jeopardy violation pursuant to the Richardson actual evidence test, we must conclude there is “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.” Richardson, 717 N.E.2d at 53. As slightly modified, we hold today that a double jeopardy violation under the Richardson actual evidence test may also rest on our conclusion that there is a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of the offense for which the defendant was acquitted may also have been used to establish all of the essential elements of the offense for which the defendant was convicted.
We acknowledge that in a different factual context this modified test may prove challenging in its application. But here the facts are fairly straightforward. In essence on retrial the State presented the same evidence of Rape A — the first-in-time rape — on which the State relied in the first trial and upon which the jury found Garrett not guilty. And given the relative paucity of evidence on retrial concerning Rape B — the second-in-time rape — we conclude there is reasonable possibility that the evidentiary facts used by the jury in the first trial to establish the essential elements of Rape, for which Garrett was acquitted, may also have been used on retrial to establish all of the essential elements of Rape for which Garrett was convicted. [Footnote omitted.] We conclude therefore that Garrett was twice prosecuted for the same offense in violation of article 1, section 14 of the Indiana Constitution.
Dickson, C.J., and David and Rush, JJ., conur.
Massa, J., concurs in result:
I agree that, for reasons clearly stated in Part III of the Court’s opinion, the post-conviction court properly denied Garrett’s ineffectiveness claim; thus, I concur in result. I do not, however, share my colleagues’ belief that “there is a reasonable possibility that the evidentiary facts used by the jury in the first trial to establish the essential elements of Rape, for which Garrett was acquitted, may also have been used on retrial,” and therefore I cannot join the Court’s conclusion “that Garrett was twice prosecuted for the same offense in violation of Article 1, Section 14 of the Indiana Constitution.” Slip op. at 15.
As the Court notes, Garrett was retried to the bench, not to a jury. The record is clear that, in this second trial, the trial court, prosecution, and defense all understood that the two separate rapes were charged in chronological order and that Garrett was being retried for the alleged “Rape B” only. Slip op. at 14. This does not mean that the victim had to confine her testimony in the second trial solely to Rape B, omitting all details of what transpired earlier in the evening; our jurisprudence does not require such a stilted, redacted and devoid-of-context presentation. (How, for instance, could she testify she was raped “again” without mentioning the first rape?) We trust trial judges to separate wheat from chaff, permitting them, for instance, to render a verdict even after being exposed to inadmissible evidence that would irreparably taint a lay jury. . . . .
I am confident that the experienced trial judge in this case performed just such a threshing here. Although the judge heard a fuller account of the victim’s terrible ordeal, I presume—as our precedent requires I presume, where, as here, there is no evidence to the contrary—that she deliberated only on the evidence supporting Rape B. Thus, the defendant was not “put in jeopardy twice for the same offense” as we have interpreted that language from our Indiana Constitution in Richardson and its evolving progeny.