Mathias, J.
The Delaware Circuit Court entered a judgment of conviction against Michael Schoeff for Level 1 felony aiding, inducing, or causing dealing in a controlled substance resulting in death and adjudicated Schoeff a habitual offender. Schoeff appeals, raising two issues, which we restate as: I. Whether the trial court erred under the Indiana Constitution and Indiana Code section 35-41-4-3(a) when it allowed the State to retry Schoeff for Level 1 felony aiding, inducing, or causing dealing in a controlled substance resulting in death after the jury in his first trial could not reach a verdict on that charge but did find him guilty of Level 5 felony conspiracy to commit dealing; and, II. Whether the State presented sufficient evidence to prove that Schoeff committed Level 1 felony aiding, inducing, or causing dealing in a controlled substance resulting in death.
We affirm.
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Schoeff claims that the second prosecution for Level 1 felony aiding, inducing, or causing dealing in a controlled substance resulting in death violated his procedural double jeopardy rights. Specifically, he argues that his Level 5 felony conspiracy to commit dealing conviction was a lesser-included offense of his Level 1 felony conviction; therefore, the second prosecution of the Level 1 felony dealing resulting in death charge was barred by Indiana Code section 3541-4-3(a) and the Article 1, Section 14 of the Indiana Constitution. Schoeff does not argue that his retrial for the Level 1 felony offense was barred based only on the hung jury for that allegation.
The Indiana Constitution forbids the State from placing a person twice in jeopardy.3 Ind. Const. Art. 1, § 14. In implementing this principle, Indiana Code section 35-41-4-3(a) provides in pertinent part:
(a) A prosecution is barred if there was a former prosecution of the defendant based on the same facts and for commission of the same offense and if:
(1) the former prosecution resulted in an acquittal or a conviction of the defendant (A conviction of an included offense constitutes an acquittal of the greater offense, even if the conviction is subsequently set aside.) . . . .
(Emphases added.) After his first trial, the trial court entered a judgment of conviction against Schoeff for the offense of conspiracy.
Accordingly, to demonstrate that a successive trial is prohibited under that statute, Schoeff argues that the State sought to use the same evidence twice against him for the commission of the same offense—namely, for the purported included offense of conspiracy to commit dealing. In turn, Shoeff asserts that his conviction for that offense acted as an implied acquittal of the aiding, inducing, or causing dealing in a controlled substance resulting in death conviction. See, e.g., Cleary v. State, 23 N.E.3d 664, 668 (Ind. 2015) (observing that Indiana Code section 35-41-4-3(a) “incorporates an ‘implied acquittal’ principle”).
An offense may be inherently or factually included in another offense. We therefore first recognize that our case law establishes that Level 5 felony conspiracy to commit dealing charge is not an inherently included offense of Level 1 felony aiding, inducing, or causing dealing in a controlled substance resulting in death.
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“Indiana treats the offense of conspiracy to commit an offense as a separate crime from the underlying offense because the ‘agreement itself constitutes the criminal act.’” Littlefield v. State, 215 N.E.3d 1081, 1088 (Ind. Ct. App. 2023) (quoting Coleman v. State, 952 N.E.2d 377, 382 (Ind. Ct. App. 2011)); see also Ind. Code § 35-41-5-2(b) (providing that the State “must allege and prove that either the person or the person with whom he or she agreed performed an overt act in furtherance of the agreement”). As the conspiracy and its underlying crime are based on different statutory elements, conspiracy is not inherently included in the underlying crime.
More specifically, conspiracy to deal and accomplice dealing contain distinct statutory elements: the conspiracy count required an agreement and an overt act in furtherance of that agreement, and the accomplice dealing count required the State to prove that Schoeff aided, induced, or caused dealing in a controlled substance that resulted in Hart’s death. Appellant’s App. pp. 163-64. Accordingly, we disagree with Schoeff’s claim that his Level 5 felony conspiracy to commit dealing conviction was procedurally a lesser-included offense to the charge of Level 1 felony aiding, inducing, or causing dealing in a controlled substance resulting in death. Again, Indiana Code section 35-41-43(a) bars a second prosecution when there has been an acquittal or a conviction for a lesser-included offense. See Clearly, 23 N.E.3d at 670. For these reasons, section 35-41-4-3(a) did not bar a second prosecution for Schoeff’s Level 1 felony aiding, inducing, or causing dealing in a controlled substance resulting in death charge.
Next, Schoeff urges us to apply the Richardson actual-evidence test and conclude that his conviction for Level 5 conspiracy is factually included in the Level 1 felony allegation. But before we address Schoeff’s argument that application of the actual-evidence test formulated in Richardson v. State establishes a procedural double jeopardy violation, we observe that the continued viability of that test is uncertain. In Wadle v. State, our supreme court overruled the double jeopardy tests “formulated in Richardson as they apply to claims of substantive double jeopardy.” 151 N.E.3d 227, 244 (Ind. 2020). However, in a footnote, the court observed that the Richardson actual-evidence test “applies to the bar against procedural double jeopardy.” Id. at 244 n. 15. The court then stated that, “[b]ecause Wadle’s case presents no question of procedural double jeopardy, we expressly reserve any conclusion on whether to overrule Richardson in that context.” Id.
In Wadle, our supreme court thoroughly explained the confusion caused by application of Richardson. 151 N.E.3d at 241-43. And earlier this year, the Court doubled-down on Wadle in A.W., 229 N.E.3d at 1068, and expressly rejected formulations of the Wadle test that effectively “revived” Richardson’s actual evidence test. As for procedural double jeopardy, the Wadle Court held that Article 1, Section 14 of the Indiana Constitution “operates only as a procedural bar to successive prosecutions for the same offense.” 151 N.E.3d at 237.
Until our supreme court concludes otherwise, we must continue to apply the Richardson actual-evidence test to claims of procedural double jeopardy. Moreover, regardless of the precise test used to discern if the “same facts” were twice used against Schoeff, our conclusion here is the same: they were not. See I.C. § 35-31.5-2-168.
To find a double jeopardy violation under the Richardson actual-evidence test, “a defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.”
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Here, both offenses required proof of dealing a controlled substance. But the Level 5 felony conspiracy charge required proof of an agreement between Schoeff and Morgan. During Schoeff’s first trial, the State used Schoeff’s admission that he and Morgan were dealing heroin and text messages between them to establish the agreement required for the conspiracy. The State also argued that it had proved the Level 1 felony aiding, inducing, or causing dealing resulting in death charge because Schoeff aided Morgan by driving her to the gas station to meet Hart to complete the dealing transaction, and Hart died as a result of ingesting the controlled substance Morgan gave to her. But the jury deadlocked on the Level 1 felony charge.
In the retrial, the State used this same evidence to prove that Schoeff committed the distinct crime of aiding, inducing, or causing dealing resulting in death. We conclude that there is no reasonable possibility that the evidentiary facts used to establish the Level 5 felony conspiracy charge were also used to establish all of the essential elements for the Level 1 felony aiding, inducing, or causing dealing resulting in death charge during either of Schoeff’s trials.
Clearly, Schoeff’s guilty verdict and conviction in the first trial for conspiracy to commit dealing was not an “implied acquittal” of the Level 1 felony aiding, inducing, or causing dealing resulting in death charge. An implied acquittal occurs when the “jury convicts the defendant of a lesser-included offense without commenting on the greater-offense.” Cleary, 23 N.E.3d at 671 (citing Kocielko v. State, 938 N.E.2d 243, 249 (Ind. Ct. App. 2010)) (emphasis in original). Here, the jury was deadlocked on the Level 1 felony charge.
For all of these reasons, Schoeff’s conviction for conspiracy to commit dealing was not included in the State’s allegation that he had committed Level 1 felony aiding, inducing, or causing dealing resulting in death. Therefore, retrial on the Level 1 felony charge did not violate his procedural double jeopardy rights.
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Schoeff also claims that his Level 1 felony conviction is not supported by sufficient evidence.
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As he did at trial, Schoeff is attempting to cast doubt on the credibility of Stockton’s testimony describing what occurred on October 16. But his arguments are merely a request for our court to reweigh the evidence and the credibility of the witnesses, which we will not do. For all of these reasons, we conclude that the State presented sufficient evidence to prove that Schoeff committed Level 1 felony aiding, inducing, or causing dealing in a controlled substance resulting in death.
Schoeff’s right to be free from double jeopardy was not violated when the State was allowed to retry him for Level 1 felony aiding, inducing, or causing dealing in a controlled substance resulting in death after the jury was unable to reach a verdict on that charge in his first trial. In addition, the State presented sufficient evidence to prove that he committed the offense. We therefore affirm his Level 1 felony conviction.
Affirmed.
Tavitas, J., concurs with separate opinion.
Weissmann, J., concurs in part and dissents in part, with separate opinion.
Tavitas, Judge, concurring.
Since 1851, the Indiana Constitution has provided, in relevant part: “No person shall be put in jeopardy twice for the same offense.” IND. CONST., art. 1, § 14; Richardson v. State, 717 N.E.2d 32, 38 (Ind. 1999). Double jeopardy analysis under the Indiana Constitution today, however, is in a state of flux. “Historically, the prohibition against double jeopardy applied as a procedural bar to a subsequent prosecution for the same offense, whether after acquittal or conviction. Over time, the protection evolved beyond the procedural context to embody a substantive bar to multiple convictions or punishments for the same offense in a single trial.” Wadle v. State, 151 N.E.3d 227, 235 (Ind. 2020) (emphasis added). Richardson previously governed both procedural and substantive double jeopardy under the Indiana Constitution. In Wadle, our Supreme Court made significant changes to our substantive double jeopardy analysis and held that Richardson no longer governs the substantive double jeopardy analysis. The Court, however, left reconsideration of our analysis in the procedural double jeopardy context for another day.
Here, Schoeff raises arguments under the Successive Prosecution Statute, Indiana Code Section 35-41-4-3, and Article 1, Section 14 of the Indiana Constitution to challenge his retrial for aiding, inducing, or causing dealing in a controlled substance resulting in death after he was previously convicted of conspiracy to commit dealing in a narcotic drug in the first trial.8 The issue, thus, is one of procedural double jeopardy. I concur with Judge Mathias that Schoeff’s second trial was barred by neither the Successive Prosecution Statute nor the Indiana Constitution under Richardson. I write separately, however, for two reasons: (1) because I disagree with the dissent’s analysis of our Successive Prosecution Statute; and (2) to emphasize that the constitutional procedural double jeopardy analysis under Richardson is unworkable.
Schoeff argues that his second trial was barred under the Successive Prosecution Statute because the conspiracy offense “is essentially a lesser” included offense of the aiding offense for which Schoeff was convicted in the first trial.
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I agree with Judge Mathias that Schoeff’s second trial was not barred by our Successive Prosecution Statute because the conspiracy offense and the aiding offense here require proof of distinct statutory elements and, therefore, are not “included” offenses. Judge Mathias is correct that, in analyzing “included offense” under subsection (a)(1) of the Successive Prosecution Statute, we should refer to the Included Offense Statute, Indiana Code Section 35-31.5-2168, not the Richardson actual-evidence test.
I respectfully disagree with the dissent’s analysis, which appears to conclude that a “same offense” under the Richardson actual-evidence test is an “included” offense under the statutes, and that the second prosecution here is, therefore, barred both by the Successive Prosecution Statute and Article 1, Section 14. I conclude that the proper analysis is to first determine whether the offenses are barred under the Successive Prosecution Statute. In interpreting “included offense” under this statute, we look to the Included Offense Statute, not Richardson. Second, only if the second trial is not barred by the Successive Prosecution Statute, we determine whether the second trial is barred under Article 1, Section 14 of the Indiana Constitution, and this inquiry is currently governed by Richardson.
I reach this analysis for two reasons. First, analyzing the statutes before analyzing Article 1, Section 14 is consistent with the “familiar canon of statutory interpretation that statutes should be interpreted so as to avoid constitutional issues.” Ind. Right to Life Victory Fund v. Morales, 217 N.E.3d 517, 522 (Ind. 2023). Under this canon of statutory interpretation, we determine whether the two offenses are “included” under the Successive Prosecution Statute before we decide the constitutional issue here.
Second, analyzing the concept of “included offense” without reference to the Richardson actual-evidence test is more faithful to the text of the statutes. The dissent uses the actual evidence introduced at trial to determine that the two offenses are “included.” The Included Offense Statute, however, defines an included offense, in part, as one 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.” Ind. Code § 35-31.5-2-168(1). The Included Offense Statute’s use of “elements” refers to the statutory elements of the charged offenses, not the evidence introduced at trial to prove those elements. Indeed, in analyzing the Included Offense Statute under Wadle in substantive double jeopardy cases, we compare the statutory elements without reference to the evidence introduced at trial. See Wadle, 151 N.E.3d at 253.
Our Supreme Court recently noted in A.W. v. State, 229 N.E.3d 1060, 1068 (Ind. 2024), that “[i]nconsistency breeds confusion, and confusion imperils the rule of law.” Here, it would be inconsistent to analyze the Included Offense Statute differently in substantive double jeopardy cases under Wadle and in procedural double jeopardy cases under Richardson. For these reasons, I disagree with the dissent’s statutory procedural double jeopardy analysis.
As a matter of procedural double jeopardy under the Indiana Constitution, although Richardson remains the governing test, Richardson’s actual-evidence test is unworkable. Prior to Richardson, our courts “did not separately evaluate the Indiana Constitution as an additional, independent source of double jeopardy protection. Instead, we generally addressed double jeopardy claims by applying the prevailing understanding of federal jurisprudence and merely referred to the Indiana Double Jeopardy Clause.” Richardson, 717 N.E.2d at 49.
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It is true, as my colleagues acknowledge, that Wadle “expressly reserve[d] any conclusion on whether to overrule Richardson” as the governing test for procedural double jeopardy under the Indiana Constitution. Wadle, 151 N.E.3d at 244 n.15. Richardson, thus, has not formally been overruled as the governing test for procedural double jeopardy claims under the Indiana Constitution.
The confusion and disagreement espoused by Richardson’s actual-evidence test, however, exist just as profoundly in the procedural double jeopardy context as it did in the substantive double jeopardy context. Compare Garrett v. State, 992 N.E.2d 710 (Ind. 2013) (applying the actual-evidence test in a procedural double jeopardy context), with Cleary v. State, 23 N.E.3d 664 (Ind. 2015) (declining to apply the actual-evidence test in a procedural double jeopardy context). This panel’s split decision is evidence thereof.
Moreover, the entire premise that Richardson’s actual-evidence test applies in the procedural double jeopardy context raises questions. Richardson, of course, was a substantive double jeopardy case. Our Supreme Court did not apply the actual-evidence test to a procedural double jeopardy case until it decided Garrett, 992 N.E.2d 710. But Garrett belies the difficulty in applying the actual evidence test in typical procedural double jeopardy cases.
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Our Supreme Court held in Garrett, however, that Richardson’s actual evidence test “is applicable to cases in which there has been an acquittal on one charge and retrial on another charge after a hung jury.” Garrett, 992 N.E.2d at 714. The Court further held that there was a “reasonable possibility that the evidentiary facts used by the jury in the first trial to establish the essential elements of Rape, for which Garrett was acquitted, may also have been used on retrial to establish all of the essential elements of Rape for which Garrett was convicted” in the second trial, which violated Article 1, Section 14 of the Indiana Constitution. Id. at 723-25.
Because Garrett involved an appeal after the second trial had concluded, the Court had the benefit of comparing the evidence offered in each trial. But this masks obvious difficulties in applying Richardson’s actual-evidence test in the procedural double jeopardy context. To preserve the issue for appeal, a defendant must generally object to the second trial on double jeopardy grounds before that trial commences. See, e.g., Jester v. State, 551 N.E.2d 840, 842 (Ind. 1990). But in ruling on such a motion, the trial court can only speculate as to whether the second trial risks a conviction based on the same “actual” evidence presented in the first trial.
Trial courts, thus, are faced with a Hobson’s choice. They may either: (1) hold a second trial that, in retrospect, turns out to violate a defendant’s double jeopardy rights; or (2) decline to hold a second trial, presuming double jeopardy. The actual-evidence test essentially requires trial courts to peer into a crystal ball and speculate as to whether a second trial risks a procedural double jeopardy violation.
The actual-evidence test, thus, is as unworkable in the procedural double jeopardy context as it is in the substantive double jeopardy context. The test simply does not work in the trenches when procedural double jeopardy issues arise. Judges, prosecutors, and defendants deserve a test that is clearer, nonspeculative, and lends itself to consistent application.
Weissmann, Judge, concurring in part and dissenting in part.
I respectfully dissent because I believe my colleagues are misapplying the actual-evidence test from Richardson v. State, 717 N.E.2d 32 (Ind. 1999). The analysis in Judge Mathias’s lead opinion resembles the Richardson statutory elements test, which does not apply in procedural double jeopardy cases. Meanwhile, Judge Tavitas’s concurring opinion bypasses the Richardson actual evidence test in favor of the “included offense” analysis from Indiana Code § 35-31.5-2-168 (Lesser Included Offense Statute), which is inadequate by itself to address the multi-tiered double jeopardy question presented here.
As our Supreme Court has aptly noted, the Richardson actual-evidence test fell into disfavor because courts inconsistently applied it, leading to disparate interpretations of “same offense” within the meaning of our constitution’s Double Jeopardy Clause. Wadle v. State, 151 N.E.3d 227, 240-44 (Ind. 2020); Ind. Const. art. 1, § 14 (“No person shall be put in jeopardy twice for the same offense.”). But in Schoeff’s situation, the actual-evidence test is up to the task.
While Schoeff was serving prison time for Level 5 felony conspiracy to commit dealing in a controlled substance (Conspiracy to Deal), the State tried him again. In the second trial, the State used the same key evidence from the first trial to prove Schoeff guilty of Level 1 felony aiding, inducing, or causing dealing in a controlled substance resulting in death (Accessory Dealing Resulting in Death). In other words, the State sought to convict him in the second trial of being an accessory to dealing the same drugs that formed the basis of his conviction in the first trial. This was a procedural double jeopardy violation barred by the Indiana Constitution and the statutory prohibition against successive prosecutions for the same offense. See Ind. Const. art. 1, § 14; Ind. Code § 35-41-4-3.
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But despite the differences between substantive and procedural double jeopardy, Richardson managed to unite the two branches under a “single comprehensive rule” for more than two decades before Wadle. Spivey v. State, 761 N.E.2d 831, 832 (Ind. 2002). Unhappy with courts’ disparate applications of Richardson that “created more confusion than clarity,” our Supreme Court carved out a new test for substantive double jeopardy in Wadle. 151 N.E.3d at 235, 238-244. The only portion of Richardson left intact by Wadle was the actual-evidence test, with its relevance limited to procedural double jeopardy questions. Id. at 244 n.15.
In reaching this landmark decision, the Court made clear that going forward, substantive double jeopardy analysis would concentrate on statutory interpretation. Id. at 235. Procedural double jeopardy analysis, however, would remain focused on whether the State prosecuted the defendant twice for the “same offense.” Id. at 239-40. This “same offense” determination “calls for an analysis of the evidence as applied to, rather than as required by, each element of the statutory offense.” Id. at 239. In other words, the actual-evidence test “looks beyond the elements of a crime to determine whether two offenses are the ‘same.’” Id. at 240. Thus, the Wadle Court left intact a procedural double jeopardy test that is highly fact sensitive.
Richardson’s actual-evidence test, by focusing on the evidence (an inherently factual pursuit), offers value in the procedural double jeopardy context that the Wadle Court found lacking in substantive double jeopardy applications. Although courts applying the actual-evidence test have not always followed a singular path, our Supreme Court precedent provides the necessary throughline to resolve Schoeff’s procedural double jeopardy claim.
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Our Supreme Court has applied the actual-evidence test in only one procedural double jeopardy case since Garrett: Cleary v. State, 23 N.E.3d 664 (Ind. 2015). Cleary was tried on five counts and three infractions, all arising from a single drunk driving incident that killed one person. The jury returned verdicts of guilty on two of the misdemeanor counts of operating a motor vehicle while intoxicated (OMVI) and also found that Cleary had committed the infractions. The jury deadlocked, however, on the three remaining counts: two felony and one misdemeanor OMVI counts. The trial court refused to enter judgment on the guilty verdicts and ultimately ordered a retrial on all eight counts.
On appeal, Cleary claimed his second trial violated Article 1, Section 14. But the Court found Article 1, Section 14 protections were never triggered because Cleary was neither convicted nor acquitted of any crime before his retrial on all the counts. Id. at 674-75; see Ind. Code § 35-41-4-3 (barring successive prosecutions for the same offense only after acquittal or conviction). Cleary therefore offers little guidance here in applying Garrett’s modified actual evidence test in procedural double jeopardy cases.
What I glean from this review of the law is that the complete evidentiary overlap seemingly derived from Spivey has never been put into practice by our Supreme Court when applying Richardson’s actual-evidence test. Although Wadle suggested vagaries in the test when applied in a substantive double jeopardy context, I believe Richardson’s actual-evidence test works in Schoeff’s procedural double jeopardy case. The test offers an intuitive, fact-sensitive approach to determining whether the State is improperly taking two bites of the same apple by prosecuting a defendant again based on evidence of the same criminal act for which the defendant already was convicted or acquitted.
Guided by Richardson and Garrett, and helped by our statutory prohibition against successive prosecutions (Indiana Code § 35-41-4-3), I would find that the evidence from Schoeff’s first trial reveals the State used the same evidence to encourage the jury to convict him of both Conspiracy to Deal and Accessory Dealing Resulting in Death. Once Schoeff was convicted of Conspiracy to Deal, the State could not prosecute him for Accessory Dealing Resulting in Death.
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Given that the evidence used to prove all the essential elements of Conspiracy to Deal also was used to prove most of the essential elements of Accessory Dealing Resulting in Death, the State could not—and did not—prove each of these offenses “by separate and distinct facts.” Richardson, 717 N.E.2d at 53. Said differently, the evidence used to prove Schoeff guilty of Accessory Dealing Resulting in Death necessarily also proved him guilty of Conspiracy to Deal. Therefore, for purposes of Article 1, Section 14, Conspiracy to Deal and Accessory Dealing Resulting in Death are the “same offense.” Schoeff could not be convicted of both under Article 1, Section 14.
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The Included Offense Statute, like the Richardson statutory-elements test, focuses on the statutory definition of the crimes in determining whether a double jeopardy violation has occurred. Applying the Included Offense Statute is also the first step in substantive double jeopardy analysis under Wadle. 151 N.E.3d at 248-49. The concurring opinion, by relying on substantive double jeopardy analysis in a procedural double jeopardy case, blurs the line between the two branches.
For these reasons, I would find that both Article 1, Section 14 and the Successive Prosecution Statute barred Schoeff’s second trial and resulting conviction for Accessory Dealing Resulting in Death, given his earlier conviction for Conspiracy to Deal based on the same evidence. I would also find that Schoeff was impliedly acquitted of Accessory Dealing Resulting in Death when he was convicted of Conspiracy to Deal. Accordingly, I would reverse Schoeff’s conviction for Accessory Dealing Resulting in Death and order reinstatement of Schoeff’s conviction and sentence for Conspiracy to Deal.