Mathias, J.
The State charged Lee White with two counts of Level 4 felony child molesting under Indiana Code section 35-42-4-3(b) (2015), for which he was later convicted. The State’s charging information alleged in both counts that White “did perform” fondling or touching of his victim under that statute, but the second count added the disjunctive possibility that White “did perform or submit to” such fondling or touching. Appellant’s App. Vol. 2, p. 108 (emphasis added). The charges tracked the statutory language; did not allege any specific, delineating facts; and, aside from the disjunctive addition to the second count, were identically worded.
On appeal, White argues that his two convictions violate his substantive double-jeopardy right to be free from multiple convictions under the same statutory language for the same discrete act as announced by our Supreme Court in Powell v. State, 151 N.E.3d 256 (Ind. 2020). The State responds that, because the second count included statutory language not in the first count, the proper test to apply here is the test for whether the same facts were used to prosecute White across different statutory language as announced by our Supreme Court in Wadle v. State, 151 N.E.3d 227 (Ind. 2020).
On this question of first impression, we conclude that both Powell and Wadle apply. In particular, we apply Powell to the overlapping statutory language in the two counts to discern if White was twice subjected to jeopardy for the same discrete act. We then apply Wadle to the distinct and disjunctive “did perform” and “did . . . submit to” allegations to discern if the State twice subjected White to jeopardy across varying statutory language. Applying those tests accordingly, we affirm White’s convictions.
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Much of the parties’ dispute on appeal is focused on which of our Supreme Court’s double-jeopardy tests to apply here.
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Stated another way, our Supreme Court’s analysis in Powell applies where the question is whether the State has alleged or shown discrete, prosecutable acts under identical statutory language, and our Supreme Court’s analysis in Wadle applies where the question is whether the State has alleged or used the same evidence to show violations of different statutory language.
The parties here thus dispute whether the two counts set out in the charging information are captured by Powell or by Wadle. Both arguments have merit; Count I and Count II identify as their factual bases the same statutory language, namely, that White “did perform” fondling or touching of A.G. under Indiana Code section 35-42-4-3(b). Appellant’s App. Vol. 2, p. 108. Count II then adds an additional disjunctive basis that White “did perform or submit to” fondling or touching of A.G. Id. (emphasis added). Whether Powell or Wadle should apply in such circumstances is a question of first impression for our Court.
But, while the parties argue that either Powell or Wadle must apply, we conclude that they both apply. The State’s information simply tracks the same statutory language across two counts with the only distinction between the counts being the inclusion of a disjunctive alternative in the second count. We have repeatedly been called upon to solve the problems caused when the State simply tracks statutory language in the charging information without referencing specifically alleged facts, and this is yet another example. See, e.g., Eversole v. State, 251 N.E.3d 604, 608 (Ind. Ct. App. 2025), trans. denied; Ratliff v. State, 242 N.E.3d 1070, 1078 (Ind. Ct. App. 2024), trans. denied; Bradshaw v. State, 239 N.E.3d 864, 868 (Ind. Ct. App. 2024). The State’s charges here allege both the possibility of two convictions under the exact same statutory language and also the possibility of two convictions under differing statutory language. Thus, the two counts, as written, implicate both the single-statute analysis under Powell and also the multiple-statutes analysis under Wadle, and we address each analysis in turn.
We begin by applying Powell to the overlapping “did perform” allegations…Under Powell, we first determine the “unit of prosecution” for the statutory offense at issue…We have no qualms with that assertion. Indiana Code section 35-42-4-3(b) proscribes “any fondling or touching” of “either” “a child under fourteen (14) years of age . . . or the older person[] with intent to arouse or to satisfy the sexual desires of either . . . .”3 We agree with White that the “unit of prosecution” under that statute is the conduct of “any fondling or touching” of “a child” or the defendant with the requisite mens rea. See Powell, 151 N.E.3d at 265-66. But that simply means that, for each charge under the same statutory language, the State must prove a discrete act; it does not mean that the State cannot bring multiple charges against a defendant under the same statutory language for multiple, discrete acts. Accordingly, we proceed to determine under Powell whether the State’s charges allege or prove discrete acts under Indiana Code section 35-42-4-3(b).
Under the second step of the Powell test, we must determine “whether the facts—as presented in the charging instrument and as adduced at trial—indicate a single offense or whether they indicate distinguishable offenses.” Id. To answer this question, “we 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. (quotation marks omitted).
As to this step, we agree with White that our Supreme Court’s recent guidance in A.W. v. State, 229 N.E.3d 1060, 1067-69 (Ind. 2024), which clarified the similarly-worded second step of the Wadle test, is instructive here. In particular, in A.W. our Supreme Court clarified that we first look to the face of the charging instrument to discern the identified factual bases for the charges. Id. at 1068-69. But, as the prosecutor may “unilaterally decide how much” information “to include (or not include) in the charging instrument,” this step creates a risk of “an asymmetrical benefit to the State.” Id. at 1069. Thus, to eliminate that asymmetry, we will construe any ambiguities in the charging information in the defendant’s favor. Id…And, as Count I and Count II, as we are considering them here, are identical, we conclude that the charges as written do not unambiguously demonstrate two discrete acts. We therefore conclude that the charges demonstrate a presumptive double-jeopardy violation under Powell.
We thus turn to the final step of the Powell analysis (as clarified by A.W.), namely, whether the State’s evidence and arguments at trial rebutted the presumptive double-jeopardy violation, and we conclude that the State did so.
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We next apply Wadle to the alternative and disjunctive language that White “did perform” fondling or touching against A.G. in Count I and also “did . . . submit to” fondling or touching from her in Count II…Under the first step of the Wadle test, we look to the statutory language of the offenses at issue; if that language “clearly permits multiple punishments,” then “there is no violation of substantive double jeopardy.” A.W., 229 N.E.3d at 1066. The State concedes that this step is not dispositive, and so we proceed to step two of the Wadle test.
At step two, as clarified by our Supreme Court in A.W., we look to the face of the charging information to discern if the factual bases identified for the charges implicate our statutory definitions of an “included offense.”
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We conclude that the face of the charging information plainly distinguishes the bases for Count I and Count II as relevant to the Wadle analysis….Count I alleges that White performed an act on A.G., and Count II alleges that White submitted to an act performed by A.G. The parties have not presented us with a plausible reading of those charges that might show that both acts could be demonstrated by the same facts. 4 We therefore conclude that there is no substantive double-jeopardy violation under Wadle with respect to White’s two convictions.
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For all of the above-stated reasons, we affirm White’s two Level 4 felony child molesting convictions.
Affirmed.
Foley, J., concurs.
Felix, J., concurs in result with separate opinion.
Felix, J., concurring in result.
I concur in the result but respectfully disagree with the majority’s analysis. Given the extremely general nature of the charging information in this case, I understand the difficulty in choosing whether the Powell analysis or the Wadle analysis best fits the situation. However, both the Powell analysis and the Wadle analysis presume that a single criminal act or transaction has occurred. Wadle v. State, 151 N.E.3d 227, 247–48 (Ind. 2020); Powell v. State, 151 N.E.3d 256, 263 (citing Wadle, 151 N.E.3d at 247–48). Neither of these analytical frameworks are necessary here because it is abundantly clear that White violated the same statute on different occasions. See Henson v. State, 237 N.E.3d 1160, 1168 (Ind. Ct. App.), trans. denied, 244 N.E.3d 907 (Ind. 2024) (no double jeopardy analysis where defendant convicted for separate acts).
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Based on A.G.’s testimony, the charging information, the State’s closing argument, and the fact that this was a bench trial, I believe White’s convictions are for two separate acts such that there is no double jeopardy question before us. That is, White is not being punished twice for the same offense. I therefore concur and would also affirm White’s convictions.