Dickson, J.
. . . [C]orrectional officer Regina Bougher escorted him to another room in the infirmary to get a change of clothes from his property, which was kept in a tote. After the defendant retrieved his clothes, he bent over to push the tote with his hands and then lunged towards the officer, striking her on the left side of her ribs with his head and shoulder. Having pinned the officer to the wall, the defendant hit the officer’s head against a filing cabinet or wall and then held her in a headlock with his left hand on her right arm and his right hand over her mouth and face. After not “very long”—less than five minutes, the officer was able to break from the defendant’s grip and radio for assistance. Tr. at 174. She suffered a cut in her mouth, pain and bruising in her ribs, a bruise on her right arm, and a concussion as a result of the attack. The State charged the defendant with Criminal Confinement as a Class C felony and Battery as a Class D felony. A jury found him guilty as to both charges, and the trial court sentenced the defendant to concur-rent terms of eight years for Criminal Confinement and three years for Battery. The Court of Appeals affirmed.
….
The defendant focuses on his common law argument on transfer, arguing that the continuous crime doctrine applies regardless of whether actions are charged as the same or distinct offenses and that the defendant’s act of pushing the officer constitutes just one criminal conviction. . . . .
The continuous crime doctrine is a rule of statutory construction and common law limited to situations where a defendant has been charged multiple times with the same offense. “The continuous crime doctrine does not seek to reconcile the double jeopardy implications of two distinct chargeable crimes; rather, it defines those instances where a defendant’s conduct amounts only to a single chargeable crime.” . . . .
….
The continuous crime doctrine does not apply to the facts of this case. The defendant was convicted of Criminal Confinement as a Class C felony [footnote omitted] and Battery as a Class D felony. [Footnote omitted.] He was not convicted of multiple charges of criminal confinement, nor multiple charges of bat-tery. Nor is Battery a crime for which all of the elements necessary to impose criminal liability are also elements found in Criminal Confinement, or vice versa. Criminal Confinement and Battery are two distinct chargeable crimes to which the continuous crime doctrine does not apply.
….
On appeal, the defendant contends that his convictions violate this “actual evidence” test because, in his view, the evidence used to show his lunge into the officer was the same evidence used to show the force he used to pin her against the wall and therefore the same act. In re-sponse, the State divides the defendant’s actions into a lunge striking and injuring the officer’s ribs (the battery) and a headlock pinning the officer against a wall and injuring her right arm (the confinement). The fact that the same evidence may have been used to establish a single element of each of two offenses does not constitute a double jeopardy violation, Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002), but proper application of the actual evidence test in light of the totality of circumstances otherwise compels the conclusion that one of the defendant’s two convictions must be vacated on double jeopardy grounds.
….
. . . Here, the defendant concedes the State’s trial strategy was to support the battery charge with the lunge and the confinement charge with the act of pinning the officer against the wall. Whatever its strategy, however, at trial the State failed to specifically allege and communicate to the jury what different evidence supported what charge.
In this case, the final instructions—essentially identical to the charging information—did not inform the jury what different evidence supported each charge. . . . These instructions left open the reasonable possibility that the fact-finder could use the same evidence to establish substantial interference with the liberty of a person for confinement and grabbing in a rude, insolent, or angry manner for battery.
During opening argument, the State seemed to describe the sequence of events as one continuous lunge/pin assault[.] . . . .
During closing argument, the State read the two charges for battery and confinement but then described the sequence of events without tying each fact to the charge it supported[.]
…..
This case is analogous to several cases also involving charges of battery and criminal confinement where the courts found a reasonable possibility that the fact-finder used the same evidentiary fact to establish the essential elements of both offenses. See, e.g., Ransom v. State, 850 N.E.2d 491, 500–01 (Ind. Ct. App. 2006) (finding the jury instructions could portray separate incidents but the State did not clearly explain to the jury that certain evidentiary facts alleg-edly constituted the battery and that separate evidentiary facts allegedly constituted the confine-ment), trans. not sought; Stafford v. State, 736 N.E.2d 326, 331–32 (Ind. Ct. App. 2000) (finding a double jeopardy violation because evidence of putting a rope around the victim’s neck consti-tuted the basis for both charges, namely battery with a deadly weapon and criminal confinement “being armed with a deadly weapon, to wit: a rope), trans. denied;8 Ely v. State, 655 N.E.2d 372, 374–75 (Ind. Ct. App. 1995) (finding a double jeopardy violation because evidence of grabbing the victim and pointing a knife at her chest area constituted the basis for both charges), trans. not sought. In a similar case, this Court found a reasonable possibility that the jury used the same evidence, namely restraining the victim while suffocating with a pillow and tying a cord around her neck, to establish the essential elements for both criminal confinement and murder by as-phyxiation. Lowrimore v. State, 728 N.E.2d 860, 868 (Ind. 2000).
Based on the charging information, jury instructions, and arguments of counsel, we find a reasonable possibility that the same evidence used by the jury to establish the essential elements of battery was also included among the evidence used by the jury to establish the essential ele-ments of criminal confinement. Thus, under our actual evidence test, the defendant was twice prosecuted for the same offense in violation of Article 1, Section 14 of the Indiana Constitution. Accordingly, we remand to the trial court with instructions to vacate the battery conviction, the conviction carrying the lesser sentence. [Footnote omitted.]
Rush, C.J., and Rucker and David, JJ., concur.
Massa, J., concurs in result.