Goff, J.
Historically, the prohibition against double jeopardy applied as a procedural bar to a subsequent prosecution for the same offense, whether after acquittal or conviction. Over time, the protection evolved beyond the procedural context to embody a substantive bar to multiple convictions or punishments for the same offense in a single trial. Today, courts often treat these two strands of double jeopardy alike, applying the same analysis regardless of context. The historical record reveals our own vacillation on the issue. But just over two decades ago, this Court, in Richardson v. State, resolved any lingering doubt by treating both strands with equal reverence under the Indiana Constitution.
In settling this issue, the Richardson Court adopted a comprehensive analytical framework—consisting of a “statutory elements” test and an “actual evidence” test—for deciding all substantive double-jeopardy claims under article 1, section 14. Subsequent application of these tests, however, proved largely untenable, ultimately forcing the Court to retreat from its all-inclusive analytical framework. What we’re left with today is a patchwork of conflicting precedent and inconsistent standards, ultimately depriving the Indiana bench and bar of proper guidance in this area of the law.
To be sure, we commend our predecessors on the Richardson Court for their exhaustive survey, insightful analyses, and critical commentaries on the nuances of double-jeopardy law in Indiana (and beyond). At its very core, Richardson is a true work of legal scholarship. But when our case law evolves in unexpected and contradictory ways, we would be remiss in preserving the status quo.
To that end, we expressly overrule the Richardson constitutional tests in resolving claims of substantive double jeopardy. Going forward, and with a focus on statutory interpretation, we adopt an analytical framework that applies the statutory rules of double jeopardy. See infra Section I.B.3. This framework, which applies when a defendant’s single act or transaction implicates multiple criminal statutes (rather than a single statute), consists of a two-part inquiry: First, a court must determine, under our included offense statutes, whether one charged offense encompasses another charged offense. Second, a court must look at the underlying facts—as alleged in the information and as adduced at trial—to determine whether the charged offenses are the “same.” If the facts show two separate and distinct crimes, there’s no violation of substantive double jeopardy, even if one offense is, by definition, “included” in the other. But if the facts show only a single continuous crime, and one statutory offense is included in the other, then the presumption is that the legislation intends for alternative (rather than cumulative) sanctions. The State can rebut this presumption only by showing that the statute—either in express terms or by unmistakable implication—clearly permits multiple punishment.
The defendant here stands convicted of several offenses for leaving the scene of an accident after twice striking and seriously injuring his victim while driving drunk. Because we interpret the statutory offenses charged as alternative sanctions, we hold that the defendant’s multiple convictions violate the statutory rules of substantive double jeopardy. Accordingly, we affirm in part, reverse in part, and remand with instructions for the trial court to vacate all but one of his convictions: Level 3 felony leaving the scene of an accident. And because this conviction alone justifies the penalty imposed, we further instruct the trial court to leave in place his sixteen-year sentence with two years suspended to probation.
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Wadle argues that the jury used the evidence supporting the elevation of his leaving-the-scene offense to also prove the elements of his OWI-SBI offense, a violation of the Indiana Double Jeopardy Clause under the Richardson “actual evidence” test. The State counters that Wadle’s convictions simply reflect punishment for two separate and sequential harms: OWI-SBI followed by leaving the scene of an accident. Urging deference to “the express directive of the legislature,” the State contends that Wadle’s convictions must stand because they represent “two independent criminally culpable decisions,” resulting in two different crimes.
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In Richardson v. State, this Court adopted analytical variations of both the “statutory elements” test and the “actual evidence” test. 717 N.E.2d at 49. As formulated by a majority of the Court, “two or more offenses are the ‘same offense’ in violation” of the Indiana Double Jeopardy Clause “if, with respect to either [1] the statutory elements of the challenged crimes or [2] the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.” 9 Id. The “statutory elements” test generally tracks the federal Blockburger analysis. Id. at 50 n.41. The “actual evidence” test, on the other hand, examines whether—based on the charging information, jury instructions, and arguments of counsel at trial—there’s a “reasonable possibility” that the jury used the same evidence to support two or more convictions. Id. at 53; Garrett v. State, 992 N.E.2d 710, 720 (Ind. 2013). By articulating these tests, the Court in Richardson set out to create a “single comprehensive rule” for resolving all substantive double-jeopardy claims under the Indiana Constitution. Spivey v. State, 761 N.E.2d 831, 832 (Ind. 2002). But despite this lofty goal, subsequent application of the rule quickly proved untenable, ultimately forcing the Court to retreat from its all-inclusive analytical framework.
To begin with, the adoption of two tests, rather than one, did little to reconcile decades of conflicting precedent. See Richardson, 717 N.E.2d at 49 (drawing upon several early Indiana cases, none of which “presented a comprehensive analysis, a generally articulated test, or a standard of review for double jeopardy claims”). This generated more confusion than clarity, causing some courts to conflate the separate tests. In Berg v. State, for example, the Court of Appeals concluded that the actual-evidence test could not be met when one offense “required” certain evidence that “the other offense did not.” 45 N.E.3d 506, 510 (Ind. Ct. App. 2015) (emphasis added). See also McElroy v. State, 864 N.E.2d 392, 397 (Ind. Ct. App. 2007) (concluding that, under “either the statutory elements test or the actual evidence test,” each charged offense “requires” proof of facts not required by the other).
Although likely devised for analytical flexibility in resolving complex double-jeopardy claims, the Richardson either/or approach has also led to inconsistent results, as courts selectively apply one test over another.
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A strict application of the actual-evidence test can also lead to illogical results—and not just in “complex criminal enterprise cases.” ” In Vestal v. State, the defendant appealed his conviction for burglary and theft—the latter crime committed during the former. 745 N.E.2d 249 (Ind. Ct. App. 2001), aff’d in part, vacated in part, 773 N.E.2d 805 (Ind. 2002). Because the evidence proving the defendant’s intent to commit theft (a necessary element of burglary as the intended felony) established the theft itself, application of the actual-evidence test would have resulted in a finding of double jeopardy. The absurdity here, as the Court of Appeals correctly observed, is that the test treats the burglar who enters but fails to commit the theft just as harshly as the burglar who enters and completes the crime. 745 N.E.2d at 252. “The injustice,” the court added to emphasize its point, “would be exacerbated if the underlying crime to the burglary were rape, murder or other more serious crime.” Id. Concluding that Richardson “could not have intended such a result,” the Court of Appeals interpreted “same evidence” to mean “evidence of the same act.” Id. And because the defendant committed “two distinct acts” (burglary and theft), the court let both convictions stand. Id. On transfer, a majority of this Court found no double-jeopardy violation, reasoning that the evidence presented at trial “merely describe[d] the theft intended and did not compel the jury to find the completed theft as an element of the burglary.” 773 N.E.2d at 807. This lack of persuasive reasoning compelled Justice Boehm to write separately, concurring in result but opining that the Court had effectively abandoned the actual-evidence test. Id. at 808.
Around the time these cases were decided, the Court’s standard for analyzing actual-evidence test claims began to shift. As first articulated in Richardson, the test required a defendant to show “a reasonable possibility” that the jury used the same evidence “to establish the essential elements of one offense” and “the essential elements of a second challenged offense.” 717 N.E.2d at 53. Subsequent formulations of this standard required the defendant to show that the “same evidence used by the jury to establish the essential elements” of one offense was “included among the evidence establishing the essential elements” of another offense. Chapman v. State, 719 N.E.2d 1232, 1234 (Ind. 1999) (emphasis added). But in early 2002, the Court declared the test as “not merely whether the evidentiary facts used to establish one of the essential elements of one offense may also have been used to establish one of the essential elements of a second challenged offense.” Spivey, 761 N.E.2d at 833. Rather, the Court specified, there is no violation of the Double Jeopardy Clause “when the evidentiary facts establishing the essential elements of one offense” establish less than all of “the essential elements of a second offense.” Id. Put simply, the “actual evidence” test, following Spivey, applies “to all the elements of both offenses.” Garrett, 992 N.E.2d at 719 (emphasis added).
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Failing to resolve all double-jeopardy claims under “a single comprehensive rule,” the Court increasingly turned to the rules of statutory construction and common law announced by Justices Sullivan and Boehm in their respective Richardson concurrences. See, e.g., Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002). Under this analytical framework, described as “separate from and additional to” the protections under the actual-evidence test, Guyton v. State, 771 N.E.2d 1141, 1145 (Ind. 2002) (Dickson, J., concurring in result), the Court has retreated even further from Richardson, generating confusion among the bench and bar over the proper standard to address claims of double jeopardy, see Joel Schumm, The Mounting Confusion over Double Jeopardy in Indiana, Res Gestae, Oct. 2002, at 27–29
What we’re left with, then, is a patchwork of conflicting precedent, a jurisprudence of “double jeopardy double talk” that underscores Richardson’s inherent flaws. See Akhil Reed Amar, Double Jeopardy Law Made Simple, 106 Yale L.J. 1807, 1807 (1997). The shifting standards and inconsistent application of controlling tests create an unpredictable approach to double jeopardy, ultimately depriving our courts of clear guidance and preventing the Indiana bar—defense counsel and prosecutors alike—from effectively preparing their cases and representing their clients.
For these reasons, we expressly overrule the constitutional tests formulated in Richardson as they apply to claims of substantive double jeopardy. We must now decide on the proper analytical framework for resolving these claims going forward.
What’s the proper analytical framework for resolving claims of substantive double jeopardy?
The “statutory elements” test and the “actual evidence” test have both proven inadequate, rendering our substantive double-jeopardy law either too restrictive or too generous of protection. The latter test, as we have seen, is fair in principle but unwieldly in practice, subject to illogical results and vulnerable to confusion and misapplication. The “statutory elements” test, on the other hand, though relatively easy to apply, offers little protection to criminal defendants: so long as one charged offense diverges from another charged offense based on a single element of proof, prosecutors can easily circumvent the test.
The more practical approach, we believe, follows the familiar rules of statutory construction embraced by Justice Boehm in his concurring Richardson opinion. By adopting this methodology, we recognize the importance of charting a clear path going forward. To that end, we begin (1) by reassessing the protective scope of our Double Jeopardy Clause and (2) by clarifying the basic protections against multiple punishments in a single trial. We then (3) articulate an analytical framework in which to resolve claims of substantive double jeopardy and (4) consider other constitutional protections on which defendants may rely to supplement these claims.
The Indiana Double Jeopardy Clause protects only against successive prosecutions for the same offense.
The question of whether constitutional double-jeopardy analysis applies to both the successive-prosecution and multiple-punishment contexts is a divisive one. Anne Bowen Poulin, Double Jeopardy and Multiple Punishment: Cutting the Gordian Knot, 77 U. Colo. L. Rev. 595, 600 (2006) (citing cases and commentary espousing opposite views). Courts often treat both strands the same, and “cases dealing with one context cite precedent from another without commenting on any potential difference between the two.” Richardson, 717 N.E.2d at 59 (Boehm, J., concurring). After all, the reasoning goes, “the prosecution may not do in one trial what it is prohibited from doing in two trials.” Elmore, 269 Ind. at 534, 382 N.E.2d at 894–95. But such an approach, Justice Boehm opined in Richardson, “results in an unsatisfactory compromise that breeds confusion and impairs the important values underlying the Double Jeopardy Clause.” 717 N.E.2d at 58. We agree.
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To be sure, both strands of double jeopardy—substantive and procedural—share a “core policy” of preventing the state “from prosecuting and punishing arbitrarily, without legitimate justification.” Twice in Jeopardy, 75 Yale L.J. at 267. But the procedural bar to double jeopardy, “whether following acquittals or convictions,” placates “concerns that extend beyond merely the possibility of an enhanced sentence” or excessive punishment. See Grady v. Corbin, 495 U.S. 508, 518 (1990), overruled by United States v. Dixon, 509 U.S. 688 (1993).19 And for this reason, our Double Jeopardy Clause should focus its protective scope exclusively on successive prosecutions for the “same offense.” Our conclusion here does not suggest that defendants enjoy no protection from multiple punishments in a single proceeding; it does, however, shift our analysis to other sources of protection—statutory, common law, and constitutional.
The substantive bar to double jeopardy restrains the judicial power to impose multiple punishments for the same offense, not the legislative authority to define crimes and fix punishments.
Indiana has long recognized the common-law principle that a “lesser included” offense is the “same” as its greater (encompassing) offense. See, e.g., Kokenes, 213 Ind. at 479, 13 N.E.2d at 525–26 (“A prosecution for any part of a single crime, bars any further prosecution based upon the whole or a part of the same crime.”); Wininger, 13 Ind. at 541 (relying on the same rule). Applying variations of this principle, this Court has declined to convict and punish a defendant in a single trial for (1) an offense and its lesser-included offense, (2) two offenses consisting of the same act, (3) one offense consisting of the same act as an element of another offense, (4) an elevation of an offense imposed for the same “behavior or harm” as another offense, and (5) a conspiracy where the overt act is the same act as another offense. See Richardson, 717 N.E.2d at 55–56 (Sullivan, J., concurring) (citing cases). And today, we have legislation codifying these principles. See I.C. § 35-38-1-6 (2019) (prohibiting a trial court from entering judgment of conviction and sentence for both an offense and an “included offense”); I.C. § 35-41-5-3 (prohibiting conviction of “both a conspiracy and an attempt with respect to the same underlying crime” and prohibiting conviction of “both a crime and an attempt to commit the same crime”).
Under these sources of authority, the substantive bar to double jeopardy restrains the courts’ power to impose multiple punishments for the same offense, not the legislative authority to define crimes and fix punishments. See Richardson, 717 N.E.2d at 55 (Sullivan, J., concurring) (citing precedent in which “this Court has been unwilling to impose multiple punishments” in a single trial); id. at 65 (Boehm, J., concurring) (concluding that courts should resolve substantive double-jeopardy claims “either by explicit direction from the legislature . . . or by commonly cited rules of statutory construction and presumed legislative intent”).
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With this premise in mind, we now proceed to articulate an analytical framework in which to resolve claims of substantive double jeopardy.
Analysis of a substantive double jeopardy claim considers (a) the statutory offenses charged as well as (b) the facts underlying those offenses.
Substantive double jeopardy claims come in two principal varieties: (1) when a single criminal act or transaction violates a single statute but harms multiple victims, and (2) when a single criminal act or transaction violates multiple statutes with common elements and harms one or more victims. Our decision today in Powell v. State, — N.E.3d — (Ind. 2020), implicates the former scenario; this case implicates the latter. In either circumstance, the dispositive question is one of statutory intent. See Paquette v. State, 101 N.E.3d 234, 239 (Ind. 2018) (single statutory offense/multiple victims); Emery v. State, 717 N.E.2d 111, 112–13 (Ind. 1999) (multiple statutory offenses/single victim).
a. The Statutory Offenses Charged
When multiple convictions for a single act or transaction implicate two or more statutes, we first look to the statutory language itself. (The mere existence of the statutes alone is insufficient for our analysis.) If the language of either statute clearly permits multiple punishment, either expressly or by unmistakable implication, the court’s inquiry comes to an end and there is no violation of substantive double jeopardy. If, however, the statutory language is not clear, a court must then apply our included-offense statutes to determine statutory intent. See Collins v. State, 645 N.E.2d 1089, 1093 (Ind. Ct. App. 1995) (noting that, to resolve a claim of substantive double jeopardy, our included-offense statutes guide judicial “analysis of legislative intent”), aff’d in part, vacated in part on other grounds, 659 N.E.2d 509 (Ind. 1995).[See Ind. Code § 35-31.5-2-168].
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If neither offense is an included offense of the other (either inherently or as charged), there is no violation of double jeopardy. If, however, one offense is included in the other (either inherently or as charged), the court must then look at the facts of the two crimes to determine whether the offenses are the same. Richardson, 717 N.E.2d at 67 (Boehm, J., concurring). See also Bigler v. State, 602 N.E.2d 509, 520 (Ind. Ct. App. 1992) (noting that “analysis of legislative intent” in Indiana, unlike the federal Blockburger test, “does not end with an evaluation and comparison of the specific statutory provisions which define the offenses”). This brings us to the second step of our inquiry.
b. The Facts Underlying the Charged Statutory Offenses
Once a court has analyzed the statutory offenses charged, it must then examine the facts underlying those offenses, as presented in the charging instrument and as adduced at trial. Bigler, 602 N.E.2d at 521. Based on this information, a court must ask whether the defendant’s actions were “so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.” Walker v. State, 932 N.E.2d 733, 735 (Ind. Ct. App. 2010), cited with approval by Hines, 30 N.E.3d at 1219.
If the facts show two separate and distinct crimes, there’s no violation of substantive double jeopardy, even if one offense is, by definition, “included” in the other. But if the facts show only a single continuous crime, and one statutory offense is included in the other, then the prosecutor may charge these offenses only as alternative (rather than as cumulative) sanctions. The State can rebut this presumption only by showing that the statute—either in express terms or by unmistakable implication—clearly permits multiple punishment.
The bar against multiple punishments in a single trial enjoys other state constitutional protections.
Our conclusions today do not suggest that protection from multiple punishments in a single prosecution falls beyond the constitutional pale. To the contrary, legislators and prosecutors do not necessarily have free rein to authorize multiple punishments or to indict on multiple overlapping offenses. The Indiana Bill of Rights offers a larger framework of constitutional guarantees designed to protect Hoosiers “from the excesses of government.” Chief Justice Randall T. Shepard, Second Wind for the Indiana Bill of Rights, 22 Ind. L. Rev. 575, 576 (1989). Our constitution also authorizes independent appellate review and revision of a criminal sentence found “inappropriate in light of the nature of the offense and the character of the offender.” Ind. Appellate Rule 7(B) (implementing article 7, sections 4 and 6 of the Indiana Constitution). Substantive double jeopardy protections in Indiana operate in harmony with, not in isolation from, these supplemental constitutional protections. And their importance to our decision today warrants more than passing reference.
a. Article 1, Section 16
Article 1, section 16 of the Indiana Constitution requires that all penalties be “proportioned to the nature of the offense.” While the responsibility for defining crimes and setting penalties lies with the legislative branch, section 16 “makes clear that the State’s ability to exact punishment for criminal behavior is not without limit.” Conner v. State, 626 N.E.2d 803, 806 (Ind. 1993).
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Still, other circumstances implicating section 16’s proportionality clause clearly call for judicial intervention. Specifically, this Court has long interpreted section 16 as prohibiting the legislature from imposing “punishment for a lesser included offense which is greater in years . . . than the greater offense.” Dembowski v. State, 251 Ind. 250, 253, 240 N.E.2d 815, 817 (1968). To impose such a penalty amounts to an abuse of “Constitutional power to define criminal offenses and set penalties thereof.” Id. at 252, 240 N.E.2d at 817. See also Heathe v. State, 257 Ind. 345, 349, 274 N.E.2d 697, 699 (1971) (“The constitutional mandate that ‘all penalties shall be proportioned to the nature of the offense’ requires that the maximum for a lesser offense be less than the maximum for a higher offense.”).
b. Article 1, Section 13
Our Bill of Rights also constrains the prosecutor’s broad discretionary power to pursue multiple charges for the same offense. Article 1, section 13 of the Indiana Constitution guarantees the defendant’s right, in “all criminal prosecutions,” to “demand the nature and cause of the accusation against him.” This protection entitles the defendant to “clear notice of the charge or charges against which the State summons him to defend” at trial. Wright v. State, 658 N.E.2d 563, 565 (Ind. 1995). Clear notice, by way of the prosecutor’s indictment or information, allows the defendant to prepare his defense and protects him “from being placed twice in jeopardy for the same offense.” Id. And due process entitles him to limit that defense to the crimes charged. Young v. State, 30 N.E.3d 719, 720 (Ind. 2015). “If there is reasonable doubt as to what the charge includes, such doubt must be resolved in favor of the defendant.” Id. at 723 (cleaned up).
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Finally, we note that, while the legislature may enact procedures for amending a charging instrument, it’s limited in how it regulates amendments of substance (rather than of form). And these procedural measures may never interfere with the defendant’s due process right to clear notice of the charges against him. See, e.g., Hinshaw v. State, 188 Ind. 147, 153, 122 N.E. 418, 420 (1919) (striking down as void, “so far as it applies to indictments,” an act requiring the “opposing party” to move for specificity of allegations in all criminal pleadings).
c. Article 7, Sections 4 and 6
The preceding sections under our Bill of Rights aren’t the only potential constitutional remedies for a defendant facing cumulative punishment. Article 7, section 4 of the Indiana Constitution vests in this Court “the power to review all questions of law and to review and revise the sentence imposed.” Our Court of Appeals exercises similar authority in criminal cases, “to the extent provided by rule.” Ind. Const. art. 7, § 6. These constitutional mandates, as implemented through Indiana Appellate Rule 7(B), permit a criminal offender to challenge the trial court’s sentence as “inappropriate in light of the nature of the offense and the character of the offender.”
Despite the criticism it’s received, article 7’s review-and-revise clause stands as an effective check on the legislative proliferation of overlapping criminal offenses and on the prosecutor’s multi-count indictment. See Serino v. State, 798 N.E.2d 852, 857 (Ind. 2003) (recognizing, as one factor driving the potential need to revise a cumulative sentence, the prosecutor’s decision “to charge multiple aspects of the same event as separate counts defined by separate criminal statutes”). To be sure, article 7 vests no authority in an appellate court to vacate a conviction, potentially increasing the defendant’s vulnerability to habitual-offender status or leaving him with no remedy to mitigate the collateral consequences of his offense.
Because the statutory offenses charged indicate alternative (rather than multiple) punishments, Wadle’s convictions violate double jeopardy.
To reiterate our test, when multiple convictions for a single act or transaction implicate two or more statutes, we first look to the statutes themselves. If either statute clearly permits multiple punishment, whether expressly or by unmistakable implication, the court’s inquiry comes to an end and there is no violation of substantive double jeopardy. But if the statutory language is not clear, then a court must apply our included offense statutes to determine whether the charged offenses are the same. See I.C. § 35-31.5-2-168. If neither offense is included in the other (either inherently or as charged), there is no violation of double jeopardy. But if one offense is included in the other (either inherently or as charged), then the court must examine the facts underlying those offenses, as presented in the charging instrument and as adduced at trial. If, based on these facts, the defendant’s actions were “so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction,” then the prosecutor may charge the offenses as alternative sanctions only. But if the defendant’s actions prove otherwise, a court may convict on each charged offense.
Here, of the four offenses for which Wadle stands convicted, the State concedes that two of them—OWI endangering a person (Count IV) and OWI with a blood-alcohol concentration of 0.08 or more (Count V)— violate double jeopardy. We agree, even under our new analytical framework. Neither statute clearly permits cumulative punishment and the latter offense is an included offense of the former. See Kovats v. State, 982 N.E.2d 409, 414 (Ind. Ct. App. 2013) (holding that misdemeanor OWIs are lesser included offenses of a felony OWI). What’s more, neither party insists that the facts show two distinct crimes.
That leaves Wadle with two convictions: (1) leaving the scene of an accident, and (2) OWI causing serious bodily injury (or OWI-SBI). An “operator of a motor vehicle” commits the first offense, a Class B misdemeanor, when he or she “knowingly or intentionally” leaves the scene of an accident without providing the necessary information and assistance. I.C. § 9-26-1-1.1(a), (b) (2015 Supp.). This offense becomes a Level 3 felony when, as here, the operator leaves the scene of an accident “during or after the commission of the offense of operating while intoxicated causing serious bodily injury (IC 9-30-5-4).” I.C. § 9-26-1- 1.1(b)(4). The second offense, OWI-SBI, occurs when a person “causes serious bodily injury to another person when operating a vehicle . . . while intoxicated.” I.C. § 9-30-5-4(a) (2014). This offense rises from a Level 6 felony to a Level 5 felony if, at the time of committing the offense, the person had been convicted of OWI within the preceding five years. Id.
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With no statutory language clearly permitting multiple convictions, we now analyze the offenses charged under our included-offense statutes.
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Having determined that one offense is included in the other, we must now look at the facts to determine whether the two offenses are the same. Within a matter of “minutes,” Wadle physically attacked Woodward in the parking lot, retreated to his car, struck his victim twice, pinned him under a guardrail, and then fled the scene. Tr. Vol. 1, pp. 118, 247. Wadle, according to the prosecutor, had but a single objective—he “wanted a fight so he started one and he finished it by running over a man twice his age.” Id. at 61. Elaborating on the mayhem caused that fateful night, the prosecutor, in both opening and closing arguments, characterized Wadle’s actions as a virtually seamless string of events: “There was one person who was acting up in the bar that night. One person asking for a fight, one person who took off their shirt. One person who used his vehicle to chase down and strike a man,” the prosecutor continued, “one person who drove over the curb across the grass, one person who backed up and drove over that man a second time. One person who didn’t stop until he hit a guard rail. One person who fled the scene.” Id. at 60.
Because Wadle’s actions were “so compressed in terms of time, place, singleness of purpose, and continuity of action,” we consider them “one continuous transaction.” See Walker, 932 N.E.2d at 735. Cf. id. at 737–38.
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Still, the State contends that the legislature intended to punish Wadle “for the two separate and sequential harms that he caused: OWI causing serious bodily injury and then leaving the scene of an accident.” Appellee’s Br. at 8 (emphasis added). In other words, because “Wadle committed OWI causing serious bodily injury before he left the scene of the accident,” the State argues that his conviction for both offenses resulted in no double-jeopardy violation. Id. at 11. We disagree and find no such evidence of legislative intent.
Our General Assembly defined the leaving-the-scene offense as a Level 3 felony when the operator leaves the scene of an accident “during or after” committing OWI-SBI. See I.C. § 9-26-1-1.1(b)(4) (Supp. 2015). But that phrase articulates no definite period in which one offense begins and the other ends. See Hines, 30 N.E.3d at 1220 (noting that “our Legislature has the inherent power to define crimes, including when a crime may subsist for a definite period or cover successive, similar occurrences”) (citations omitted). Without clear legislative guidance, there’s “simply no way to make sense out of the notion that a course of conduct is ‘really’ only one act, rather than two or three, or, indeed, as many as one likes.” Peter Westen & Richard Drubel, Toward a General Theory of Double Jeopardy, 1978 Sup. Ct. Rev. 81, 114. Accord Eddy v. State, 496 N.E.2d 24, 27–28 (Ind. 1986) (declining to interpret the phrases “during” or “while committing” as requiring the “chronological completion” of one offense before the completion of another offense). And prosecutors cannot avoid double jeopardy “by the simple expedient of dividing a single crime into a series of temporal or spatial units.” Brown v. Ohio, 432 U.S. 161, 169 (1977). Accord Jackson v. State, 14 Ind. 327, 328 (1860) (“The state cannot split up one crime and prosecute it in parts.”). Even if we could distinguish Wadle’s acts to find two separate offenses, the prosecutor made no temporal distinction in either the charging instrument or the jury instructions, both of which alleged that Wadle “knowingly or intentionally fail[ed] to stop . . . at the scene of the accident as required by law during or after he caused serious bodily injury” to Woodward.
In sum, we conclude that the separate statutory offenses—Level 5 felony OWI-SBI and Level 3 felony leaving the scene of an accident— present alternative (rather than cumulative) sanctions on which to charge Wadle.
When the defendant is found guilty of both the included offense and the greater offense, the trial court may not enter judgment and sentence for the included offense. I.C. § 35-38-1-6 (2014 Repl.). To remedy Wadle’s conviction for both offenses, then, we accept the State’s proposal of vacating his Level 5 felony OWI-SBI conviction (Count III) while leaving in place his Level 3 felony conviction for leaving the scene (Count II).36 (See Appellee’s Br. at 14.) And because this conviction alone justifies the penalty imposed, see I.C. § 35-50-2-5, we further instruct the trial court to leave in place Wadle’s sixteen-year sentence with two years suspended to probation.
Conclusion
For the reasons above, we hold that Wadle’s multiple convictions violate the statutory prohibition against substantive double jeopardy. Accordingly, we affirm in part, reverse in part, and remand with instructions for the trial court to vacate his convictions on all counts, save for his Level 3 felony conviction for leaving the scene of an accident (Count II). And because this conviction alone justifies the penalty imposed, see I.C. § 35-50-2-5, we further instruct the trial court to leave in place Wadle’s sixteen-year sentence with two years suspended to probation.
Rush, C.J., and David, Massa, and Slaughter, JJ., concur.