Riley, J.
Appellant-Plaintiff, the State of Indiana, brings this interlocutory appeal of the trial court’s grant of Appellee-Defendant’s, Jarod Johnson (Johnson), Motion to Dismiss.
We reverse and remand for trial.
The State presents this court with one issue, which we restate as: Whether Indiana’s double jeopardy statute barred it from prosecuting Johnson on state criminal charges following his acquittal in federal court on a charge stemming from the same incident.
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The State appeals following the trial court’s grant of Johnson’s Motion to Dismiss the pending state criminal charges against him.
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The State contends that it is not barred from prosecuting Johnson on charges of attempted murder, aggravated battery, battery by means of a deadly weapon, battery resulting in serious bodily injury, and intimidation following his acquittal on the federal kidnapping charge. State and federal governments are considered to be separate or “dual” sovereigns. Smith, 993 N.E.2d at 1189. Our Indiana state and federal Constitutions do not bar overlapping convictions between dual sovereign entities. See Dill v. State, 82 N.E.3d 909, 911 (Ind. Ct. App. 2017), trans. denied. However, our state legislature has provided protection against multiple prosecutions from different jurisdictions through Indiana’s double jeopardy statute [Ind. Code § 35-41-4-5…Put another way, a prior conviction or acquittal in another jurisdiction bars a subsequent Indiana state prosecution for the “same conduct.” See id.; see also State v. Allen, 646 N.E.2d 965, 967-68 (Ind. Ct. App. 1995), trans. denied. The determination of whether a prosecution is barred pursuant to Indiana’s double jeopardy statute because it is based upon the same conduct does not entail application of the ‘actual evidence’ or ‘statutory elements’ tests formerly deployed when we engaged in constitutionally-based double jeopardy analysis following Richardson v. State, 717 N.E.2d 32, 49-50 (Ind. 1999). Smith, 993 N.E.2d at 1190. Rather, Indiana’s double jeopardy statute requires us to consider the “‘overt acts’ alleged in the sister jurisdiction’s charge in juxtaposition with the allegation in the State’s charge.” Brewer v. State, 35 N.E.3d 284, 286 (Ind. Ct. App. 2015) (quoting Allen, 646 N.E.2d at 972). Our approach to this analysis has also been characterized by this court as “comparing the statutory charges brought and the evidence in support of the allegations.” Dill, 82 N.E.3d at 912. Therefore, our analysis centers on comparing the substance of the specific factual allegations contained in the charging instruments to determine if the offenses alleged therein are based on the same conduct. See Smith, 993 N.E.2d at 1190 (“The plain language of the statute requires a comparison of the conduct alleged to constitute an offense in Indiana with the conduct alleged to constitute an offense in another jurisdiction[.]”).
Here, Johnson was charged in the federal case with kidnapping, 18 U.S.C. 1201(a)(1), in relevant part as follows: On or about April 14, 2019, and continuing to on or about April 15, 2019, . . . [Johnson] did unlawfully and willfully seize, confine, kidnap, abduct, and carry away, and held [Green], an adult person, for information concerning a witness in a criminal case, and otherwise. In committing and in furtherance of the commission of the offense, [Johnson] did willfully use a means, facility, and instrumentality of interstate commerce[.] (Appellant’s App. Vol. II, p. 47). Thus, the overt acts alleged in the federal charge were that Johnson unlawfully and willfully seized, confined, kidnapped, abducted, carried away, and held Green, and that, in doing so, he used a means, facility, and instrumentality of interstate commerce. Although the United States also alleged that Johnson committed these acts “for information concerning a witness in a criminal case[,]” motive is not an element of the federal kidnapping offense. (Appellant’s App. Vol. II, p. 47). See 18 U.S.C. 1201(a)(1). Therefore, we conclude that portion of the federal charge was mere surplusage.
The State charged Johnson with attempted murder as follows: [O]n or about April 14, 2019, . . . Johnson, while acting with the intent to kill, did knowingly attempt to kill another human being, to wit: [] Green, by shooting and wounding [] Green with a deadly weapon, to wit: a firearm[.] (Appellant’s App. Vol. II, p. 10). The United States’ federal kidnapping charge made no reference to Johnson’s alleged intent to kill, shooting or wounding Green, or his use of a firearm. These are the operative allegations of the State’s attempted murder charge, and they are not the same overt acts alleged in the federal kidnapping case. Therefore, we conclude that the State is not statutorily barred from prosecuting Johnson for attempted murder following his acquittal on the federal kidnapping charge.
The State charged Johnson with aggravated battery as follows: [O]n or about April 14, 2019, . . . Johnson did knowingly or intentionally inflict injury on [] Green that created a substantial risk of death[.] (Appellant’s App. Vol. II, p. 10). The federal kidnapping charge did not allege any physical injury to Green, let alone one that created a substantial risk of death. Because the United States did not allege that Johnson injured Green and created a substantial risk of her death, we conclude that the State’s charge is not based on the same conduct as the federal charge and that the State may prosecute Johnson for the alleged aggravated battery offense.
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In reaching these conclusions, we observe, as did the trial court in its remarks from the bench, that there is scant Indiana caselaw applying section 35-41-4-5. Although both parties cite to several Indiana state cases in support of their appellate arguments, none of the authority cited by either party involves a state prosecution following a federal acquittal on charges pertaining to conduct that occurred on the same day involving the same victim over an approximately two-hour time-span. Nevertheless, our approach today is grounded in settled law, as set forth above, that Indiana statutory double jeopardy analysis centers on comparing the conduct alleged in the charging instruments. We are unconvinced by the rationale relied upon by the trial court and as argued by Johnson on appeal that the State may not prosecute him for the charged state offenses because “both the state and federal prosecutions involve the same conduct and series of events that occurred over a relatively short period of time on April 14, 2019,” as no Indiana cases to date stand for the proposition that the Indiana double jeopardy statute bars prosecution under circumstances such as those presented here, and it is unclear to us whether the trial court’s analysis was based primarily on its comparison of the factual allegations contained in the federal and state charging instruments. (Appellant’s App. Vol. II, p. 241).
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We also reject Johnson’s contention that, because the United States presented evidence and argument relating to his participation in the events which will be presented at his trial on the state charges, the state charges are based on the same conduct as the federal charge. As shown in the portions of the federal trial transcript Johnson designated in support of his Motion to Dismiss, one of Johnson’s defense theories to the federal kidnapping charge was that Green was mistaken when she identified him by his voice when he spoke to her after he got into the car. The State’s presentation of evidence of Johnson’s actions, including the shooting and infliction of injury on Green, were relevant to addressing that defense. The fact that the United States sought to contextualize Johnson’s participation in Green’s kidnapping and his actions after he was in the car, all of which was necessary to respond to Johnson’s defense theory, did not change the fact that Johnson was not charged with, and thus was not placed in legal jeopardy for, any of the conduct forming the basis of the state charges. Accordingly, we are “left with a definite and firm conviction” that the trial court erred when it concluded that the conduct alleged in the State’s F1-27 charges was the same conduct which had formed the basis for the federal kidnapping charge. See Smith, 993 N.E.2d at 1189.
Based on the foregoing, we conclude that the State’s prosecution on the F1-27 charges is not barred by Indiana’s double jeopardy statute following Johnson’s acquittal on the federal kidnapping charge.
Reversed and remanded for trial.
Robb, J. and Molter, J. concur