Najam, J.
William D. Bradley appeals his convictions for two counts of child molesting, each as a Level 1 felony; one count of child molesting, as a Level 4 felony; and one count of incest, as a Level 4 felony. Bradley raises the following five issues for our review:
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2. Whether Bradley’s convictions for child molesting, as a Level 4 felony, and incest were based on the very same acts on which his two Level 1 child molesting convictions were based and, as such, violated his right to be free from double jeopardy.
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We affirm in part, reverse in part, and remand with instructions to vacate Bradley’s convictions for child molesting, as a Level 4 felony, and incest, as a Level 4 felony.
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… Article 1, Section 14 of the Indiana Constitution provides that “[n]o person shall be put in jeopardy twice for the same offense.” Our Supreme Court has interpreted that clause to prohibit multiple convictions based on the same “actual evidence used to convict.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). …
Bradley’s convictions are not in violation of the actual evidence test under Article 1, Section 14. … As the “evidentiary footprints” of each of Bradley’s four convictions were not the same, his convictions do not run afoul of Article 1, Section 14.
However, the Indiana Supreme Court has also “long adhered to a series of rules of statutory construction and common law that are often described as double jeopardy but are not governed by the constitutional test set forth in Richardson.” Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002) (quotation marks omitted). One such rule prohibits “[c]onviction and punishment for a crime which consists of the very same act as another crime for which the defendant has been convicted and punished.” Id.
Although our Supreme Court has expressly identified that “very same act” test as distinct from the actual evidence test, id., Indiana’s subsequent case law has not clearly delineated the two tests or articulated how they might be different. For example, in Quiroz v. State, we held that “[t]he only evidence supporting” the defendant’s two convictions “consist[ed] of the very same act,” and, as such, his convictions were “improper under the Richardson actual evidence test.” 963 N.E.2d 37, 41 (Ind. Ct. App. 2012), trans. denied. On the other hand, in Taylor v. State, we acknowledged that the very same act test is different than the actual evidence test, and we held that the very same act test applies when the defendant’s “behavior” underlying one offense is “coextensive with the behavior . . . necessary to establish an element of” another offense. Taylor v. State, 101 N.E.3d 865, 972 (Ind. Ct. App. 2018).
While Taylor articulates a logical test to determine whether the very same act underlies multiple convictions, under that reasoning the actual evidence test is superfluous, as the evidentiary facts underlying only one element of multiple offenses is thus sufficient to find a double jeopardy violation. Cf. Spivey, 761 N.E.2d at 833 … That is, a defendant cannot demonstrate a violation of the actual evidence test without showing the same act underlies both convictions, see id., but once the defendant has met that marginal burden there is no need to proceed to the other elements under the actual evidence test, see Taylor, 101 N.E.3d at 972.
Be that as it may, our Supreme Court has concluded that the very same act test is a test apart from the actual evidence test. Guyton, 771 N.E.2d at 1143. As such, following the reasoning of Taylor, we conclude that there is a reasonable possibility that the behavior underlying Bradley’s convictions for Count 1 and Count 2 was coextensive with the behavior underlying his convictions for Count 3 and Count 4. Although the “reasonable possibility” language is most commonly associated with the actual evidence test, see, e.g., Richardson, 717 N.E.2d at 53, we have also used that language to determine whether a double jeopardy violation may have occurred under the very same act test, e.g., Vandergriff v. State, 812 N.E.2d 1084, 1089-90 (Ind. Ct. App. 2004), trans. denied.
A “reasonable possibility” that the trier of fact used the same facts to reach two convictions requires substantially more than a logical possibility. Lee v. State, 892 N.E.2d 1231, 1236 (Ind. 2008). “‘[R]easonable possibility’ turns on a practical assessment of whether the jury may have latched on to exactly the same facts for both convictions.” Id. In determining the facts used by the jury to establish the elements of each offense, we consider the charging information, jury instructions, and arguments of counsel. Id. at 1234.
Again, the act underlying Count 3 was Bradley’s “fondling or touching” of T.S. Neither the charging information nor the jury instructions more specifically identified an act on which to base Count 3. And neither did the attorneys in their arguments to the jury. …
The State argues that Count 3 might have been based on fondling or touching other than those acts that formed the bases of Count 1 and Count 2 and that it is speculation to surmise otherwise. But neither the charging information, the prosecutor’s arguments to the jury, nor the jury instructions directed the jury to consider for Count 3 only behavior other than the behavior that was the basis for Count 1 or Count 2. … Thus, it is reasonably possible that the jury latched onto the behavior that formed the bases for Count 1 and Count 2 as the factual predicate for Count 3. Accordingly, Bradley’s conviction for Count 3, child molesting, as a Level 4 felony, is reversed.
The same analysis applies to Bradley’s conviction for Count 4. The behavior underlying Count 4 was the same behavior that the State alleged as the premise for Count 1 and Count 2. Indeed, in his closing argument, the prosecutor did not attempt to delineate a different act but, instead, informed the jury that if it found Bradley guilty on Count 1 and Count 2 then the incest allegation was a “slam dunk.” We reverse Bradley’s conviction for Count 4, incest, as a Level 4 felony.
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In sum, we affirm Bradley’s convictions for Count 1, child molesting, as a Level 1 felony, and Count 2, child molesting, as a Level 1 felony. However, as it is reasonably possible that the jury found Bradley guilty on Count 3 and Count 4 for the very same acts that were the bases of his convictions for Count 1 and Count 2, we reverse Bradley’s convictions for Count 3, child molesting, as a Level 4 felony, and Count 4, incest, as a Level 4 felony. We remand with instructions that the trial court vacate Bradley’s convictions and sentences on Count 3 and Count 4 accordingly.
Affirmed in part, reversed in part, and remanded with instructions.
Crone, J., and Pyle, J., concur.