Vaidik, J.
In a criminal jury trial where the State presents evidence of “a greater number of separate criminal offenses” than charged and doesn’t designate the specific act or acts on which it relies for conviction, a general unanimity instruction doesn’t suffice. The jury should be instructed that they must either unanimously agree that the defendant committed the same act or acts or that the defendant committed all the acts alleged. However, where multiple similar acts are part of one continuous episode, this special unanimity instruction isn’t required.
Here, a jury found Curtis Baker guilty of domestic battery and strangulation after the State presented evidence that he punched a woman, threw her to the ground, pinned her to the ground, and choked her twice. Baker now appeals, arguing that the jury should have been given the special unanimity instruction. Because the alleged acts were all part of a single continuous attack, we disagree and affirm.
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Baker contends that the lack of a more specific unanimity instruction amounted to fundamental error and that as a result his convictions must be reversed and the case remanded for a new trial. In the alternative, he argues that the two convictions constitute double jeopardy under Wadle v. State, 151 N.E.3d 227 (Ind. 2020), and that one of the convictions must be vacated.
In arguing that the jury should have been given a more detailed unanimity instruction, Baker relies on our Supreme Court’s decision in Baker v. State, 948 N.E.2d 1169 (Ind. 2011), reh’g denied. There, the Court held that where “evidence is presented of a greater number of separate criminal offenses than the defendant is charged with,” and the State doesn’t “designate a specific act (or acts) on which it relies,” the jury “should be instructed that in order to convict the defendant they must either unanimously agree that the defendant committed the same act or acts or that the defendant committed all of the acts described by the victim and included within the time period charged.” Id. at 1175-77. Baker argues that without such an instruction in this case, some jurors might have found him guilty of domestic battery believing he choked Humphrey, some might have believed he punched her, and some might have believed both. Likewise, he contends that some jurors might have found him guilty of strangulation believing he choked Humphrey against the car, some might have believed he choked her on the ground, and some might have believed both.
…When our Supreme Court, in its Baker decision, used the phrase “a greater number of separate criminal offenses than the defendant is charged with,” it was referring to situations where evidence is presented of entirely separate criminal incidents, each of which could be used to support a conviction. The defendant in that case was charged with three counts of child molesting—one count each for three girls—and the State presented evidence that he molested each girl multiple times on separate occasions over a period of three years. This Court addressed a similar situation in Castillo v. State, 734 N.E.2d 299 (Ind. Ct. App. 2000), reh’g denied, summarily aff’d, 741 N.E.2d 1196 (Ind. 2001). There, we held that a specific unanimity instruction should have been given because the State charged the defendant with one count of dealing cocaine but presented evidence of two deals at different times and locations.
Here, on the other hand, the State presented evidence of a single continuous attack, albeit an attack that included multiple acts of violence—Baker punching Humphrey, throwing her to the ground, pinning her to the ground, and choking her twice. Under the continuous-crime doctrine, “actions that are sufficient in themselves to constitute separate criminal offenses may be 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), reh’g denied. Citing this doctrine, we have held that where multiple acts that could each support a guilty verdict are all part of a continuous episode, a Baker unanimity instruction isn’t required. See Benson v. State, 73 N.E.3d 198 (Ind. Ct. App. 2017) (one count of attempted murder based on evidence that defendant shot at police officer twice during a continuous ninety-second pursuit), trans. denied; see also Vest v. State, 930 N.E.2d 1221 (Ind. Ct. App. 2010) (holding that a specific unanimity instruction wasn’t required where the State charged the defendant with one count of resisting law enforcement and presented evidence that the defendant fled from three officers during a continuous two-minute pursuit), reh’g denied, trans. denied.
In this case, the State charged Baker with two offenses—domestic battery and strangulation—and it presented evidence of a single continuous attack that included both offenses. Therefore, the lack of a specific unanimity instruction wasn’t error, let alone fundamental error.
Alternatively, Baker argues that “one of his convictions should be vacated on substantive double jeopardy grounds” under Wadle v. State, 151 N.E.3d 227 (Ind. 2020), because the jury “may have” convicted him of both strangulation and domestic battery based on the “same act” of choking. Appellant’s Br. p. 18. As an initial matter, we think it is highly unlikely the jury found Baker guilty on both counts based on the same act of choking. In its closing argument, the State’s discussion of the strangulation charge focused on the evidence of choking, while its discussion of the domestic-battery charge focused on the evidence that Baker punched Humphrey, threw her to the ground, and pinned her to the ground. See Tr. pp. 173-77.
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Because neither offense is included in the other, either inherently or as charged, we don’t reach the third step of the Wadle test.
Affirmed.
Bradford, J., and Brown, J., concur.