Massa, J.
Does Indiana double jeopardy law apply to a juvenile in possession of a firearm with a novel Glock switch feature that turns it into a machine gun? We know that “[c]onfusion over double jeopardy is not new.” Richardson v. State, 717 N.E.2d 32, 59 (Ind. 1999) (Boehm, J., concurring in result). More than three years ago, this Court in Wadle v. State, 151 N.E.3d 227 (Ind. 2020), attempted to clarify double jeopardy by overturning the constitutional tests announced in Richardson, which itself sought to institute a “single comprehensive rule” that combined a “statutory elements” test with an “actual evidence” test for resolving “substantive” double jeopardy claims; in other words, claims based on multiple punishments for the same act in a single proceeding, not multiple trials. Wadle, 151 N.E.3d at 240–41. But Richardson ultimately proved to be unworkable in practice—in part, because it presented an “either/or” option for courts to apply one test over another. Id. at 241. This reflected a checkered form of “double jeopardy double talk,” see Akhil Amar, Double Jeopardy Law Made Simple, 106 Yale L.J. 1807, 1807 (1997), that engendered “a patchwork of conflicting precedent and inconsistent standards,” Wadle, 151 N.E.3d at 235. In response, Wadle introduced a three-part test focused on statutory interpretation. Id. at 248. Courts have since wrestled with applying the Wadle framework, and at times have misapplied its instructions by resurrecting a version of the “actual evidence” test from Richardson—first in dicta, see Phillips v. State, 174 N.E.3d 635, 646–47 (Ind. Ct. App. 2021), which then became part of a published decision, see Harris v. State, 186 N.E.3d 604, 611–12 (Ind. Ct. App. 2022). We disapprove any opinion that relies on this principle and reiterate the Wadle test for resolving substantive double jeopardy claims, albeit with a small but crucial adjustment at Step 2, where courts will now construe ambiguities from charging instruments in favor of defendants.
But first, we have a case to resolve. A.W. challenges his multiple juvenile adjudications for possession of a machine gun, a Level 5 felony if committed by an adult, and dangerous possession of a firearm, a Class A misdemeanor. We reach three conclusions about these adjudications. First, we find that A.W.’s exclusive possession of a handgun—one with a Glock switch attached, which transformed the semiautomatic gun into a fully-automatic one—coupled with his abrupt flight, supports the finding that he “knowingly or intentionally” possessed a machine gun in violation of Indiana Code section 35-47-5-8. Second, we clarify that while Article 1, Section 14 of the Indiana Constitution could apply in juvenile proceedings, constitutional avoidance counsels against deciding that issue today. Third, we hold that possession of a dangerous firearm is a “lesser included” offense of possession of a machine gun, and thus violated A.W.’s right to be free from substantive double jeopardy under Wadle.
Accordingly, we affirm the sufficiency of the evidence, but reverse the adjudication that A.W. committed dangerous possession of a firearm.
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A.W. challenges the sufficiency of the evidence to sustain the juvenile court’s adjudication of possession of a machine gun. He argues that he did not know the Glock switch converted the firearm from a semiautomatic weapon to a machine gun, and therefore his “mere possession” of this feature was insufficient evidence to establish his mens rea. A.W. Pet. to Trans. at 6. The trial court considered the facts and found that A.W. “knowingly or intentionally” possessed a modified machine gun. Tr. at 60.
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Applying Indiana’s exclusive possession precedent to A.W., we conclude that his exclusive possession of the gun while the officers were chasing him for at least thirty seconds supplied the trial court with a reasonable inference that he knew the gun was, in fact, a modified machine gun. See id. And the juvenile court finding that his corresponding conduct—his abrupt flight from the traffic stop—also supports a reasonable inference that he knew the gun was a machine gun. See Stokes, 922 N.E.2d at 764. We acknowledge this presents a close call, but our standard of review requires that we reject any invitation to the contrary today because it would amount to an impermissible reweighing of evidence. See J.C. v. State, 131 N.E.3d 610, 612 (Ind. Ct. App. 2019). We thus affirm the juvenile court’s finding that A.W.’s exclusive possession of the weapon, coupled with his abrupt flight, is sufficient evidence that he “knowingly or intentionally” possessed a machine gun.
Article 1, Section 14’s protective scope for procedural double jeopardy could apply in juvenile proceedings, but we decline to answer that question due to constitutional avoidance.
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To be sure, there is an important doctrinal distinction in Indiana between procedural and substantive double jeopardy. In Wadle, this Court bifurcated the analysis for procedural and substantive double jeopardy claims, grounding the procedural strand in the state constitution and the substantive strand in the statutory law. For the former type, Wadle confirmed that the “protective scope” of Article 1, Section 14 is restricted to “successive prosecutions for the same offense.” 151 N.E.3d at 246 (emphasis added). We acknowledge that same protective scope could apply in the juvenile context to restrain successive adjudications for the same offense. And yet while we are open to considering whether Article 1, Section 14—applicable to claims of procedural double jeopardy—applies to juveniles, we reserve that constitutional question for another day.
We must now assess whether A.W.’s multiple adjudications are the “same offense” under Wadle, which we assume without deciding applies.
A.W.’s multiple adjudications violated his right to be free from substantive double jeopardy.
Unlike procedural double jeopardy under Article 1, Section 14 (which bars successive prosecutions for the same offense), substantive double jeopardy refers to claims related to multiple convictions for the same offense in a single proceeding. Wadle, 151 N.E.2d at 246–47. We thus look to Wadle, which established a three-part test based on statutory sources to more faithfully determine whether A.W.’s multiple adjudications were for the “same offense.” Today, we apply Wadle step by step, and clarify perhaps misunderstood directions, while adding a modification at Step 2.
We start with the statutory language of the offenses. “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).
If the statutory language does not clearly permit multiple punishments, “a court must then apply our included-offense statutes to determine statutory intent.” Id. (emphasis added) (citing Collins v. State, 645 N.E.2d 1089, 1093 (Ind. Ct. App. 1995) (highlighting that our included-offense statute helps courts ascertain “legislative intent”), aff’d in part, vacated in part on other grounds, 659 N.E.2d 509 (Ind. 1995)). An “included offense,” as defined by the General Assembly, is an offense.
(1) that “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) that “consists of an attempt to commit the offense charged or an offense otherwise included therein,” or
(3) that “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.”
I.C. § 35-31.5-2-168. “If neither offense is an included offense of the other (either inherently or as charged), there is no violation of double jeopardy” and the analysis ends—full stop. Wadle, 151 N.E.3d at 248. But if one offense is included in the other, the court must proceed to Step 3. See id.
Confusion abounds about the meaning and application of two key phrases: “inherently” and “as charged.” We take this opportunity to bridge any analytical gaps. Wadle defined an “inherently included” offense as one that “may be established by proof of the same material elements or less than all the material elements defining the crime charged,” or if “the only feature distinguishing the two offenses is that a lesser culpability is required to establish the commission of the lesser offense.” Id. at 251 n.30 (quoting Young v. State, 30 N.E.3d 719, 724 (Ind. 2015)). Wadle thus approved subsection (1) and the last part of subsection (3) of the included-offense statute to be within the inherently included inquiry. Id. Today, we clarify that this evaluation should be made under all three subsections. Thus, to constitute an inherently included offense, it must fit within one of those enumerated subsections. I.C. § 35-31.5-2-168.
Wadle does not define the meaning of “as charged.” See 151 N.E.3d at 248. But this phrase makes more sense when analyzed at Step 2 within the factually included inquiry. These two concepts—as charged and factually included—should be treated as synonymous under Wadle: “the charging instrument alleges that the means used to commit the crime charged include all of the elements of the alleged lesser included offense.” Id. at 251 n.30 (quoting Young, 30 N.E.3d at 724) (cleaned up).
But that leaves us with another open question about the scope of the factually included inquiry at Step 2. We conclude that when assessing whether an offense is factually included, a court may examine only the facts as presented on the face of the charging instrument. This includes examining the “means used to commit the crime charged,” which must “include all of the elements of the alleged lesser included offense.” Id. Step 2 has core constraints: it does not authorize courts to probe other facts, such as evidence adduced from trial. Cf. Phillips, 174 N.E.3d at 647. The factually included inquiry at this step is thus limited to facts on the face of the charging instrument. Otherwise, Step 2 would be another formulation of the now-retired Richardson approach. Richardson’s “either/or” regime was rejected because it gave courts options, which thus led to a selective application of “one test over another.” Wadle, 151 N.E.3d at 241. Using their discretion, courts typically focused on actual evidence rather than the statutory elements, which led to a mélange of inconsistency. Compare Hines v. State, 30 N.E.3d 1216, 1222 (Ind. 2015) (double jeopardy violation existed “because the facts establishing criminal confinement would also establish battery[,]” though the facts establishing the latter offense would not have established the former), with Carrico v. State, 775 N.E.2d 312, 314 (Ind. 2002) (no double jeopardy violation where evidence establishing murder established only one element of B felony robbery, even though evidence establishing the latter crime may have established the former).
Inconsistency breeds confusion, and confusion imperils the rule of law. In addressing this axiom, Wadle attempted to combat any potential legitimacy concerns by restoring order to Indiana’s double jeopardy jurisprudence: it focused on the included-offense statute. See 151 N.E.3d at 235. Wadle thus assigned the “underlying” factual inquiry—which includes evidence from trial—to Step 3. Id. at 249. In other words, Step 3 is authorized, but only if one offense is included in the other under Step 2. Wadle contains clear stopping points in its analytical sequence: if Step 2 is not met, the analysis ends. We thus conclude that courts must confine their Step 2 analysis to (1) the included-offense statute (whether the offenses are “inherently” included), and (2) the face of the charging instrument (whether the offenses “as charged” are factually included).
The Step 2 analysis has produced confusion beginning with Phillips, 174 N.E.3d 635, an appellate decision that resurrected the actual evidence test by importing similar language from Richardson. In Phillips, the Court of Appeals found that two offenses “could be factually included depending on the manner in which the State charged the defendant and the evidence produced at trial. In other words, a prosecutor cannot secure two convictions for the same act using the exact same evidence.” Id. at 647 (emphasis added). Phillips determined the offenses were inherently included, but then observed in dicta that possession and dealing in methamphetamine were factually included based on the charging instrument and evidence at trial, the latter which included the State’s closing statements when explaining the evidence of the two offenses. Id. at 646–47. Simply put, Phillips engrafted Richardson-style language onto Step 2, and panels have since used phrases like “evidence produced at trial” and “exact same evidence,” to revive an actual evidence test at this step. But Phillips improperly conflates (a) facts on the face of the charging instrument and (b) evidence presented at trial, the former which is part of the factually included inquiry and the latter which reflects Richardson.
The case before us today is a consequence of Phillips, as the panel cited Phillips for the proposition that two offenses “could be factually included depending on the manner in which the State charged the defendant and the evidence produced at trial.” A.W., 192 N.E.3d at 232 (emphasis added) (citing Phillips, 174 N.E.3d at 647). It also stated that “[a] prosecutor cannot secure two convictions for the same act using the exact same evidence.” Id. (emphasis added) (quotations omitted). We disapprove any opinion that relies on the Phillips interpretation. Step 2 does not allow courts to examine evidence adduced at trial, but only facts presented in the charging instrument, including the “means used.” Wadle, 151 N.E.3d at 251 n.30.
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Our adjustment to Wadle today aligns with how courts typically construe ambiguities in the criminal context against the State when the State is the drafter. See State v. Smith, 71 N.E.3d 368, 371 (Ind. 2017) (“Ambiguities are construed against the drafter; in this case that is the State, which prepared the plea agreement.”). And “the prohibition against cumulative punishment, absent clear statutory language to the contrary, corresponds with the principles of due process rooted in the constitutional rule of lenity.” Wadle, 151 N.E.3d at 249 n.28. The rule of lenity also executes a similar function in resolving ambiguities in the defendant’s favor rather than the State’s. Fix v. State, 186 N.E.3d 1134, 1139 (Ind. 2022) (explaining that the rule of lenity “requires us to construe a penal statute strictly against the State while resolving any ambiguities in favor of the defendant”). In short, our decision today balances the scales by placing a defendant’s rights “beyond the reach” of unfair prosecutorial discretion, while securing the State’s opportunity to later rebut a violation at Step 3.
We have now arrived at the final step in Wadle. If a court has found that one offense is included in the other—either inherently or as charged—the court must then (and only then) “examine the facts underlying those offenses, as presented in the charging instrument and as adduced at trial.” Wadle, 151 N.E.3d at 249 (emphasis added) (citing Bigler v. State, 602 N.E.2d 509, 521 (Ind. Ct. App. 1992), trans. denied). Step 3 functions as a cabined version of Richardson’s actual evidence test, and it serves an important, practical role in our double jeopardy analysis: to facilitate the distinction between what would otherwise be two of the “same” offenses. See id. at 249 n.27. So, at this final step, a court may only then probe the underlying facts—as presented in the charging instrument and adduced at trial—to determine whether a defendant’s actions were “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 underlying facts reveal the two offenses are indeed “separate,” there is no Wadle violation, “even if one offense is, by definition, ‘included’ in the other.” Id. That said, 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 cumulative) sanctions.” Id.
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Here, “neither statute clearly permits multiple punishments, either expressly or by unmistakable implication.” Wadle, 151 N.E.3d at 254. And so because the statutory language is unclear, we must now analyze these two offenses under our included-offense statute, bringing us to Step 2.
At Step 2, we reach two independent conclusions. First, we conclude that dangerous possession of a firearm is “inherently included” within possession of a machine gun. Here, subsection (3) of the included-offense statute supports this conclusion. See I.C. § 35-31.5-2-168(3). The State contends the two offenses address “separate” harms. See Appellee’s Br. at 12–14. But being a juvenile in possession is “a less serious harm . . . to the . . . public interest” than possession of a machine gun. See Wadle, 151 N.E.3d at 254 (stating that OWI-SBI, a Level 5 felony, is the “same” offense of leaving the scene of an accident, a Level 3 felony). We thus conclude that dangerous possession is inherently included in machine gun possession.
Our second conclusion is equally supported. On review of the face of the charging instrument, these offenses are also “factually included” because they punish the same conduct as charged against A.W. in the juvenile delinquency proceeding. In Count V Possession of a Machine Gun, the State charged that “[A.W.] did knowingly or intentionally own or possess a machine gun, to-wit; fully automatic Glock firearm[.]” Appellant’s App. Vol. II, p. 61 (emphasis added). The State also charged in Count II Dangerous Possession of a Firearm that “[A.W.] did knowingly, intentionally, or recklessly possess a firearm for any purpose other than a purpose described in Indiana Code Section 35-47-10-1[.]” Id. at 60 (emphasis added). Based on these charges, A.W. is both a “child” and a “person.” And “machine gun” is tucked within the broad category of “dangerous firearm.” These classifications overlap and thus punish the same conduct. The State even conceded at oral argument that a child who possesses a machine gun also possesses a dangerous firearm. It just theorized they were separate offenses with distinct harms. But that concession does not offset the fact that, as charged, a child who possesses a machine gun necessarily possesses a dangerous firearm. And the extent to which there is factual ambiguity about whether the “means used” as presented in the charging instrument was the same weapon—a machine gun—to commit dangerous possession, the lesser-included offense, see Wadle, 151 N.E.3d at 251 n.30, we construe any ambiguity in favor of A.W. See Smith, 71 N.E.3d at 371. Thus, the offenses are factually included here.
And that brings us to the final step of Wadle. Having determined that dangerous possession of a firearm is inherently and factually included within possession of a machine gun, Step 3 instructs that we examine the underlying facts to determine whether the two offenses are the same. Wadle, 151 N.E.3d at 248. Based on the facts in the charging instrument and facts adduced at the hearing, we conclude that A.W. possessed the same weapon—a fully automatic Glock—for at least thirty seconds, and is thus “compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.” Id. at 253. Accordingly, we find this tight compression to show a Wadle violation.
We thus hold that the juvenile court’s multiple adjudications violate the substantive prohibition against double jeopardy, and the adjudication that A.W. committed “dangerous possession of a firearm” must be vacated.
For these reasons, we affirm in part and reverse in part.
Rush, C.J., and Slaughter and Molter, JJ., concur.
Goff, J., concurs in the judgment with separate opinion.
Goff, J., concurring in the judgment.
Indiana’s criminal code forbids convicting a criminal defendant for both a greater offense and a lesser, included offense in the same proceedings. Not long ago, this Court laid out a three-step analysis implementing this protection, hoping to bring clarity to a vexed area of the law. Today, the Court strives to resolve lingering uncertainties. It succeeds only in part. Though well-intentioned, the Court’s opinion, in my view, modifies the included-offense analysis in a manner that introduces ambiguity and inconsistency. It also undermines the stability of the law. For these reasons, I concur only in the judgment.
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Rather than pursue an ever-receding perfect double-jeopardy rule, we should remember the other devices in the “legal toolbox.” Id. at 253. Appellate Rule 7(B) is available to “curb cumulative punishment in a single proceeding.” Id. Article One, Section Thirteen of the Indiana Constitution entitles the defendant to clear notice of the offenses charged, which may help detect included offenses and avoid multiple convictions. Id. at 250–51. Where a charging instrument leaves it unclear whether two alleged offenses arise from the same facts, a defendant may move for a “more definite statement” of the charges under Trial Rule 12(E). Alternatively, a defendant may prefer ambiguity over whether a charged offense includes other offenses or not, hoping to leave the door open to conviction on a lesser, included offense.
In sum, I would clarify that Wadle’s step two is restricted to the statutory elements and the facts alleged in the charging instrument, ante, at 11, and otherwise leave the standard alone. Aside from that, I agree with the Court’s decision on the sufficiency of the evidence, id. at 6–7, and its ultimate conclusion that A.W. was wrongly adjudicated liable for the included offense of dangerous possession of a firearm, id. at 18–20. I therefore concur in the judgment.