Tavitas, J.
After a fracas during which Raymond Demby struck and shot both his exgirlfriend and her adult daughter after entering their home, Demby fled. The State charged Demby with the following: Count I, burglary of a dwelling resulting in bodily injury, a Level 1 felony; 1 Count II, aggravated battery, a Level 3 felony; Count III, domestic battery by means of a deadly weapon, a Level 5 felony; Count IV, battery by means of a deadly weapon, a Level 5 felony; Count V, invasion of privacy, a Level 6 felony; Count VI, auto theft, a Level 6 felony; and Count VII, resisting law enforcement, a Level 6 felony. The State subsequently added Count VIII, attempted murder, a Level 1 felony, and a count alleging a sentencing enhancement, use of a firearm, with respect to Count II. The case went to trial, and a jury convicted Demby of all counts.
At sentencing, the trial court vacated the domestic battery conviction, reduced the burglary conviction from a Level 1 felony to a Level 3 felony “for double jeopardy purposes,” and imposed an aggregate eighty-four-year sentence. Tr. Vol. IV pp. 236-37; Appellant’s App. Vol. III pp. 159-60. Demby now argues that, under our Supreme Court’s nascent Wadle precedent, his convictions for attempted murder, aggravated battery, and burglary violated Indiana’s prohibition on double jeopardy. Concluding that only Demby’s conviction for aggravated battery violated the prohibition against double jeopardy, we affirm in part, reverse in part, and remand with instructions to vacate Demby’s conviction for aggravated battery.
Demby raises a single issue, which we restate as whether Demby’s convictions for attempted murder, aggravated battery, and burglary violate the prohibition against substantive double jeopardy.
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Demby argues that his convictions for attempted murder, aggravated battery, and burglary violate the prohibition against substantive double jeopardy.
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Though Demby was sentenced prior to our Supreme Court’s handing down of Wadle and Powell, his brief was submitted after those opinions were issued. Accordingly, we will apply the analysis set forth in Wadle and Powell in our review of Demby’s double jeopardy claims.
In Wadle, our Supreme Court noted that “[s]ubstantive 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.” Wadle, 151 N.E.3d at 247. Powell addressed the first variety, while Wadle addressed the second. Here, the second variety is implicated. In Wadle, our Supreme Court wrote: “[W]e 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.” 151 N.E.3d at 235. Accordingly, we apply the analytical framework set forth in Wadle. We recognize, however, that the framework does not fit every substantive double jeopardy situation.
The Wadle framework, a series of consecutively applied tests, provides:
[W]hen 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. Id. at 253.
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The first step in the Wadle test is to determine whether “either statute clearly permits multiple punishment, whether expressly or by unmistakable implication.” Wadle, 151 N.E.3d at 253. “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.” Id. at 248 (footnote omitted).
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We find that none of the implicated statutes “clearly permit[ ] multiple punishment, whether expressly or by unmistakable implication.” Wadle, 151 N.E.3d at 253. Accordingly, we proceed to the second step in the Wadle analytical framework.
Wadle’s second step requires that we “apply our included-offense statutes to determine whether the charged offenses are the same.” Id. We determine whether either offense is included in the other—“either inherently or as charged”—under the included-offense statutes. Id.
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We turn, then, to the question of whether attempted murder includes aggravated battery, either inherently or as charged. We find aggravated battery is not inherently included. In order for it to be so, it must be true—in every scenario—that proving the elements of attempted murder would necessarily prove aggravated battery. If the greater offense is proved, so too must the lower offense have been. One can be guilty, however, of attempted murder without “knowingly or intentionally inflict[ing] injury on a person,” as required by the aggravated battery statute. For example, if a defendant shot at a victim in an attempt to kill, but missed completely, thereby taking a substantial step towards murder, but failing to inflict an injury, he would be guilty of attempted murder but not aggravated battery. Accordingly, aggravated battery is not an inherently included lesser offense of attempted murder.
We do find, however, that, here, aggravated battery is included in attempted murder as charged, as defined by Indiana Code Section 35-31.5-2-168. Thus, the judgment and sentence for aggravated battery are in violation of Indiana Code Section 35-38-1-6. In so finding, we rely on the fact that the State’s firearm enhancement filing required proof of the use of a firearm in the commission of aggravated battery. We further rely on the State’s eleventh hour amendment of the attempted murder charging document, including the factual allegation “. . . by hitting said Courtney Madison with a hammer or shooting her with a firearm. . . .” Appellant’s App. Vol. III p. 13. To find that, as charged, Demby utilized the firearm in attempting murder, one would necessarily have to find that all of the material elements of aggravated battery, as the State charged it here, were met. Thus, the aggravated battery count was a lesser included offense of the attempted murder count pursuant to Indiana Code Section 35-31.5-2-168.
Pursuant to Indiana Code Section 35-38-1-6 we are required to vacate the judgment and sentence for aggravated battery. Accordingly, our analysis is complete. We pause, however, to address what we view as an inevitable difficulty with the Wadle analytical framework. As Judge Vaidik recently observed:
Because the ground recently shifted in double-jeopardy analysis, our Court and the trial courts will be asked to sort out scenarios we can only now imagine. It is attractive, yet unrealistic, to believe that these two tests can be superimposed on any future contingencies and provide the answer to all our double-jeopardy queries. Neither test may provide the perfect fit. Instead of trying to cram each possibility into the Wadle bucket or the Powell bucket, we should be guided by the principles expounded in the two cases.
Jones v. State, 159 N.E.3d 55, 67 (Ind. Ct. App. 2020) (Vaidik, J., concurring). This is one of those situations.
We find that the aggravated battery conviction violates the lesser included offense statute. Where a defendant is found guilty of both the greater offense and the lesser-included offense, the proper procedure is to vacate the conviction for the lesser-included offense and enter a judgment of conviction and sentence only upon the greater offense…We therefore remand to the trial court to vacate Demby’s conviction and sentence for aggravated battery, as well as the sentencing enhancement for use of a firearm attached thereto.
Although Demby argues that his convictions for burglary, attempted murder, and aggravated battery violate the prohibition against double jeopardy, we conclude that only Demby’s aggravated battery conviction was a violation of the prohibition against substantive double jeopardy. Accordingly, we affirm in part, reverse in part, and remand with instructions to vacate the conviction and sentence entered on Count II, aggravated battery.
Affirmed in part, reversed in part, and remanded.
Bailey, J., and Robb, J., concur.