Crone, J.
After a bench trial, Thomas Stone was convicted of three counts of level 3 felony rape that he committed against R.M. One of those counts alleged that he committed forcible vaginal intercourse, and another alleged that he committed forcible anal intercourse. On appeal, Stone argues that those convictions violate substantive double jeopardy principles. We disagree and therefore affirm.
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On appeal, Stone no longer asserts that only one of his three rape convictions may stand due to substantive double jeopardy concerns. Instead, he focuses only on his rape conviction “supported by the act of sexual intercourse” and his rape conviction “supported by the act of anal sex”; according to Stone, “[t]he separation of the single crime into multiple convictions violates [his] right against double jeopardy[.]” Id. at 4, 8. We disagree with Stone’s contention.
In Wadle v. State, 151 N.E.3d 227 (Ind. 2020), and Powell v. State, 151 N.E.3d 256 (Ind. 2020), “our Supreme Court adopted two new tests for addressing claims of ‘substantive double jeopardy’ (i.e., claims concerning multiple convictions in a single prosecution, as opposed to ‘procedural double jeopardy’ claims, which concern convictions for the same offense in successive prosecutions).” Carranza v. State, 184 N.E.3d 712, 715 (Ind. Ct. App. 2022) (citing Wadle, 151 N.E.3d at 248-49, and Powell, 151 N.E.3d at 263). “The Wadle test applies ‘when a single criminal act or transaction violates multiple statutes with common elements[.]’” Id. (quoting Wadle, 151 N.E.3d at 247). “The Powell test applies ‘when a single criminal act or transaction violates a single statute and results in multiple injuries.’” Id. (quoting Powell, 151 N.E.3d at 263).
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Here, although Stone’s convictions are based on the same subsection of the rape statute, they are based on separate—indeed, mutually exclusive—criminal acts: forcible sexual intercourse and forcible other sexual conduct, i.e., anal sex. Before July 2014, Stone’s acts were punishable as separate offenses under separate statutes. See Ind. Code § 35-42-4-1(a)(1) (effective through June 30, 2014) (defining class B felony rape in pertinent part as when a person “knowingly or intentionally has sexual intercourse with a member of the opposite sex when … the other person is compelled by force or imminent threat of force”); Ind. Code § 35-42-4-2(a)(1) (effective through June 30, 2014) (defining class B felony criminal deviate conduct in pertinent part as when a person “knowingly or intentionally causes another person to perform or submit to deviate sexual conduct when … the other person is compelled by force or imminent threat of force”); Ind. Code § 35-31.5-2-94(1) (effective through June 30, 2014) (defining deviate sexual conduct in pertinent part as “an act involving … a sex organ of one (1) person and the mouth or anus of another person”). Like the Carranza and Koziski panels, we do not believe that the legislature’s decision to delineate separate crimes in one statute should control which double-jeopardy test is applicable, and we conclude that Wadle applies to Stone’s claim.
“Wadle requires a multi-step analysis to evaluate substantive double jeopardy claims that arise when a single criminal act implicates multiple statutes.” Carranza, 184 N.E.3d at 716 (citing Wadle, 151 N.E.3d at 235). First, we look to the statutes. Id. If they explicitly allow for multiple punishments, no double jeopardy occurs, and our inquiry ends. Id. at 248. If the statutes are unclear, we apply Indiana’s included-offense statute. Id. (citing Ind. Code § 35-31.52-168). If either offense is included in the other, we proceed to the second step and ask whether the defendant’s actions are “so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.” Id. at 249. If the facts show only a single crime, judgment may not be entered on the included offense. Id.
Subsection (a) of the rape statute does not explicitly allow for multiple punishments for multiple acts of rape. Accordingly, we turn to Indiana Code Section 35-31.5-2-168, which defines included offense as an offense that (1) is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged; (2) consists of an attempt to commit the offense charged or an offense otherwise included therein; or (3) differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser kind of culpability, is required to establish its commission.
As indicated above, sexual intercourse and other sexual conduct are mutually exclusive material elements of rape, and the “attempt” and “less serious harm” provisions of the included-offense statute are inapplicable. Because neither of Stone’s rape convictions is included in the other, they do not constitute double jeopardy under Wadle. Therefore, we affirm both convictions.
Affirmed.
Pyle, J., and Tavitas, J., concur.