Opinion
24A-CR-846
11-27-2024
Timothy W.Vaughn, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Andrew Bernlohr Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General, Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Vanderburgh Circuit Court The Honorable Kelli E. Fink, Magistrate Trial Court Cause No. 82C01-2307-F1-4225
ATTORNEY FOR APPELLANT Andrew Bernlohr Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General, Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BAILEY, JUDGE
Case Summary
[¶1] Timothy W.Vaughn appeals following his convictions for child molesting, as a Level 1 felony, and incest, as a Level 4 felony. Vaughn presents one issue for our review, namely, whether his convictions for both child molesting and incest is contrary to Indiana's protection against substantive double jeopardy. We reverse and remand with instructions.
I.C. § 35-46-1-3.
Facts and Procedural History
[¶2] One night in 2018, nine-year-old K.V., who is Vaughn's daughter, fell asleep in Vaughn's bed wearing jeans and a t-shirt. At some point, she woke up to her "jeans gettin' undone" and pushed down to her "mid-thigh." Tr. Vol. 2 at 214. K.V. felt "some kind of ointment of something" getting rubbed "[a]ll over [her] vagina." Id. at 215. She then "got penetrated" by Vaughn's penis and felt "thrusting." Id. at 216. Vaughn then "pull[ed] out," and K.V. pretended to be asleep. Id.
[¶3] K.V. did not initially tell anyone what had happened because she was scared that Vaughn "was going to hurt [her] again" or that Vaughn would not let her "have any contact" with her maternal relatives. Id. at 224. But on Mother's Day 2023, following an altercation with Vaughn, K.V. ultimately told several family members about the offense. K.V. was then taken to Holly's House for a forensic interview, where she disclosed "sexual acts." Id. at 169. Thereafter, the State charged Vaughn with one count of child molesting, as a Level 1 felony, and one count of incest, as a Level 4 felony.
[¶4] The trial court held a jury trial on Vaughn's charges. During the trial, K.V. testified about the offense. Some of her family members, the investigating officer, and the forensic interviewer also testified. At the conclusion of the trial, the jury found Vaughn guilty on both counts. The court entered judgment of conviction accordingly and sentenced Vaughn to thirty-five years in the Department of Correction for the Level 1 felony conviction and a concurrent term of six years for the Level 4 felony conviction. This appeal ensued.
Discussion and Decision
[¶5] On appeal, Vaughn contends that his convictions for both Level 1 felony child molesting and Level 4 felony incest are contrary to Indiana's protections against double jeopardy. We review such questions de novo. A.W. v. State, 229 N.E.3d 1060, 1064 (Ind. 2024).
[¶6] Indiana's protection against substantive double jeopardy prohibits "multiple convictions for the same offense in a single proceeding." Id. at 1066. To determine if a substantive double jeopardy violation has occurred, we apply a "three-part test based on statutory sources ...." Id. The first step is to look to the statutory language of the offenses at issue; if that language "clearly permits multiple punishment," then "there is no violation of substantive double jeopardy." Id. (quotation marks omitted). Here, Vaughn and the State agree that neither the child molesting nor incest statutes clearly permit multiple punishments. We therefore turn to the second step.
[¶7] Under the second step, 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." Id. In particular, the Indiana Code defines an 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.Ind. Code § 35-31.5-2-168. As our Supreme Court further clarified, an offense is an included offense under that statute where the charging information states that the "means used" to commit the alleged greater offense "include all of the elements of the alleged lesser included offense." A.W., 229 N.E.3d at 1067 (quotation marks omitted); see also Demby v. State, 203 N.E.3d 1035, 1045 (Ind.Ct.App. 2021) (finding that all of the material elements of aggravated battery were necessarily found to demonstrate the means used to commit attempted murder), trans. denied.
[¶8] Here, the face of the charging information simply tracks the statutory language for both offenses. In particular, the Level 4 felony incest allegation stated that Vaughn, "being at least eighteen years of age, did engage in sexual intercourse with [K.V.]; knowing that [K.V.] is related to the defendant biologically as a child" and less than sixteen years of age," while the Level 1 felony child molesting allegation stated that Vaughn, "a person of at least twenty-one (21) years of age, did perform sexual intercourse with [K.V.], a child under the age of fourteen years (14)." Appellant's App. Vol. 2 at 19; see also I.C. §§ 35-46-1-3 (incest), 35-42-4-3(a)(1) (child molesting).
[¶9] Those facts alone do not demonstrate that the offenses were separate offenses, as the means used to commit the greater offense, child molesting, could have included all of the elements of the alleged lesser offense, incest, based on the face of the information. See A.W., 229 N.E.3d at 1067. Specifically, the means used to show that K.V. was subjected to sexual intercourse by Vaughn in the child molesting allegation could include all of the elements required to demonstrate the incest allegation. Stated differently, Vaughn could not have committed child molesting as to K.V. without also having committed incest, and, as such, the two charges "punish the same conduct." Id. at 1072.
[¶10] Because the State's charging information fails to make clear that the factual bases for those two offenses were different, the charging information is deemed to be ambiguous. In such circumstances, we "must construe those ambiguities in the defendant's favor" and find that the offenses are factually included. Id. at 1069. We thus "find a presumptive double jeopardy violation" at this step in the analysis. Id. We therefore proceed to step three of the double-jeopardy analysis.
[¶11] Under step three, the State may rebut the presumptive double jeopardy violation by using the facts presented at trial to demonstrate a "distinction between what would otherwise be two of the 'same' offenses." Id. at 1071. However, "if the facts show only a single continuous crime, and one statutory offense is included in the other," the State may not obtain cumulative convictions. Id. (quotation marks omitted).
[¶12] Here, the State cannot demonstrate a distinction between the allegation of child molesting and the allegation of incest based on the facts from trial. To the contrary, the uncontroverted evidence presented at trial demonstrates that only one incident of sexual intercourse occurred between Vaughn and K.V. Indeed, K.V. detailed the one offense that had occurred during 2018. Then, when asked if anything "ever happen[ed] again," K.V. responded: "No." Tr. Vol. 2 at 222. Accordingly, the State failed to rebut the presumptive double jeopardy violation under step three of our substantive double jeopardy analysis.
Conclusion
[¶13] Vaughn's convictions for both child molesting, as a Level 1 felony, and incest, as a Level 4 felony, are contrary to Indiana's protections against double jeopardy. We therefore reverse Vaughn's conviction for Level 4 felony incest and remand to the trial court for it to vacate that conviction and corresponding sentence.
[¶14] Reversed and remanded with instructions.
Altice, C.J., and Vaidik, J., concur.