Ronald Rexroat v. State of Indiana , 2012 Ind. App. LEXIS 157 ( 2012 )

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DARREN BEDWELL GREGORY F. ZOELLER
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
J.T. WHITEHEAD
Deputy Attorney General
Indianapolis, Indiana
FILED
Apr 04 2012, 9:23 am
IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
RONALD REXROAT, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1107-CR-594
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Steven J. Rubick, Magistrate
Cause No. 49G01-1004-FC-27893
April 4, 2012
OPINION - FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Ronald Rexroat appeals his convictions for two counts of child molesting, as Class
C felonies, and the sentence imposed following a jury trial. Rexroat presents the
following issues for review:
1. Whether his convictions for two counts of child molesting violate
federal or state double jeopardy principles where the two charges are
worded identically.
2. Whether a condition of probation requiring Rexroat to have no
contact with any person under the age of eighteen unless approved
by probation is overbroad and violates Rexroat‟s First Amendment
rights.
We affirm.
FACTS AND PROCEDURAL HISTORY
Julie and Delbert Ray Ledbetter have three children, a daughter S.L. born on
March 28, 2001, and two sons D.L. and C.L. For several months in 2008 and 2009, the
Ledbetter family rented the upstairs of a two-story house from Rexroat, their longtime
friend and the home‟s first-floor tenant. The children referred to Rexroat as “Uncle
Ronnie,” and Rexroat spent time alone with the children, including S.L. Transcript at
100. In early 2009, when S.L. was eight or nine years old, the Ledbetter family moved to
another home, but they continued to see Rexroat several times a week.
During 2008 and 2009, Rexroat occasionally took S.L. places without taking her
brothers along. For example, he took her to visit a common friend Donna Smitley or to
McDonald‟s to buy chicken nuggets. When S.L.‟s parents became suspicious of Rexroat
in late 2009, Julie questioned S.L. S.L. had been taught that there are three places on her
body that others should not touch her: the places she uses to pee, her “butt,” and her
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chest. Transcript at 64. S.L. told Julie that on three separate occasions Rexroat had
“touched” her with his finger in the place she “use[] to go pee” and made circles with his
finger while touching her. Id.
On December 21, 2009, Julie reported the abuse of S.L. to the Department of
Child Services (“DCS”).1 DCS interviewed S.L. on December 22, but the recording
equipment did not work. DCS interviewed S.L. again on March 17, 2010. And on
April 6, the State charged Rexroat with two identically worded counts of child molesting,
as Class C felonies.2 Following a trial on June 1, 2010, the jury found Rexroat guilty on
both counts. The trial court entered judgment of conviction accordingly and sentenced
Rexroat to six years on each count, to be served concurrently, with three years suspended
to probation. One of the conditions of Rexroat‟s probation is that he “shall have no
contact with any person under the age of 18 unless approved by probation. Contact
includes face-to-face, telephonic, written, electronic, or any indirect contact via third
parties.” Appellant‟s App. at 82. Rexroat now appeals.
1
The Affidavit for Probable Cause states that Julie reported the abuse to the Department of Child
Services (“DCS”) on December 21, 2010, and that DCS interviewed S.L. for the first time on December
22, 2010. The reference to 2010 is apparently a typographical error because the Affidavit was signed on
April 6, 2010.
2
The State did not charge Rexroat for the first incident, which occurred at a lake and was
reported by S.L. as the first incident of abuse.
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DISCUSSION AND DECISION
Issue One: Double Jeopardy
Rexroat contends that his double jeopardy rights under the federal and state
constitutions were violated when the State charged him with two identically worded
counts of child molesting, as Class C felonies. Specifically, he argues that his
convictions violate both the same elements test under the United States Constitution as
well as the statutory elements test and the actual evidence test under the Indiana
Constitution. We address each contention in turn.
Generally, the constitutional protection against double jeopardy under the Federal
or Indiana Constitution prohibits a person from being punished twice for the same
offense. Our supreme court has explained the purpose of that right:
Prohibitions against double jeopardy protect against: (1) reprosecution for
an offense after a defendant has already been convicted of the same offense
in a previous prosecution; (2) reprosecution of a defendant after an
acquittal; (3) multiple punishments for the same offense in a single trial; (4)
reprosecution of a defendant after the conviction has been reversed for
insufficient evidence; (5) criminal reprosecution of a defendant in limited
circumstances following a previous civil prosecution; (6) reprosecution of a
defendant in limited circumstances after a mistrial has been declared.
Richardson v. State, 717 N.E.2d 32, 37 n.3 (Ind. 1999) (citations omitted). Whether
convictions violate double jeopardy is a pure question of law, which we review de novo.
See Grabarczyk v. State, 772 N.E.2d 428, 432 (Ind. Ct. App. 2002).
The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution, applicable to the states through the Fourteenth Amendment, provides: “Nor
shall any person be subject for the same offence to be twice put in jeopardy of life or
limb.” U.S. Const. amend. 5. Double jeopardy protection under the Constitution is
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evaluated under the “same elements” test set out in Blockburger v. United States, 284
U.S. 299, 304 (1932). That test provides: “where the same act or transaction constitutes
a violation of two distinct statutory provisions, the test to be applied to determine whether
there are two offenses or only one, is whether each provision requires proof of a fact that
the other does not.” Blockburger, 284 U.S. at 304. In other words, the Blockburger test
contemplates whether a defendant can be convicted for conduct in a single incident under
two separate statutory provisions. See id. The same elements test does not apply in cases
where multiple offenses based on separate acts, especially on separate dates, have been
charged under the same statute. See id.
And Article I, Section 14 of the Indiana Constitution prohibits double jeopardy,
providing that “[n]o person shall be put in jeopardy twice for the same offense.” In
Richardson, our supreme court set out a two-pronged “same offense” test for determining
double jeopardy violations under the Indiana Constitution. The court held that
two or more offenses are the “same offense” in violation of Article I,
Section 14 of the Indiana Constitution, if, with respect to either the
statutory elements of the challenged crimes or the actual evidence used to
convict, the essential elements of one challenged offense also establish the
essential elements of another challenged offense. Both of these
considerations, the statutory elements test and the actual evidence test, are
components of the double jeopardy “same offense” analysis under the
Indiana Constitution.
717 N.E.2d at 49-50 (emphases in original).
Under the statutory elements test, the objective “is to determine whether the
essential elements of separate statutory crimes charged could be established
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hypothetically.”3 Id. at 50. Thus, “the charged offenses are identified by comparing the
essential statutory elements of one charged offense with the essential statutory elements
of the other charged offense” by “inspecting the relevant statutes and the charging
instrument to identify those elements which must be established to convict under the
statute.” Id. “Under this test, the second charge must be for the same identical act and
crime as [the first offense].” Id at 50 n.38 (internal quotation marks and citation omitted)
(alteration in original). Thus, like the same elements test under the United States
Constitution, the statutory elements test does not apply where multiple charges are based
on a single statute.
Under the second prong of Indiana double jeopardy analysis, the actual evidence
test, “the actual evidence presented at trial is examined to determine whether each
challenged offense was established by separate and distinct facts.” Id. at 53. To show
that two challenged offenses constitute the “same offense” under that prong, 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.” Id.
This second test in our Indiana Double Jeopardy Clause “same offense”
analysis differs significantly from federal jurisprudence under Blockburger,
284 U.S. at 305 . . . . “The Blockburger test has nothing to do with the
evidence presented at trial. It is concerned solely with the statutory
elements of the offenses charged.”
Id. (some citations omitted) (emphases in original). “Application of the actual evidence
test requires the court to identify the essential elements of each of the challenged crimes
3
The “statutory elements” test under the Indiana Constitution is “substantially equivalent to the
„same elements‟ test used in [the] federal double jeopardy analysis under Blockburger v. United States,
284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).” Lee v. State, 892 N.E.2d 1231, 1233 (Ind. 2008).
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and to evaluate the evidence from the [fact-finder‟s] perspective.” Lee v. State, 892
N.E.2d 1231, 1234 (Ind. 2008) (internal quotation marks and citation omitted) (alteration
in original). “In determining the facts used by the fact-finder to establish the elements of
each offense, it is appropriate to consider the charging information, jury instructions, and
arguments of counsel.” Id. (citations omitted). Our supreme court has further clarified
that
[w]hen separate and distinct offenses occur, even when they are similar acts
done many times to the same victim, they are chargeable individually as
separate and distinct criminal conduct. This Court has clearly stated: “We
do not approve any principle which exempts one from prosecution from all
the crimes he commits because he sees fit to compound or multiply them.
Such a principle would encourage the compounding and viciousness of the
criminal acts.”
Brown v. State, 459 N.E.2d 376, 378 (Ind. 1984) (regarding multiple counts of rape and
sexual deviate conduct arising from series of acts occurring immediately after one
another) (citations omitted).
Here, Rexroat first contends that his federal right to be free from double jeopardy
was violated when the State charged him with two identically worded counts of child
molesting, as Class C felonies. He maintains that “two identical charges brought under
the same statute are one and the same under the Blockburger [same elements] test”
because it would be “impossible for the State to present evidence that established the
elements of one offense without also establishing the elements of the other.” Appellant‟s
Brief at 8. Rexroat misunderstands the Blockburger test.
Again, the Blockburger test is limited to cases involving multiple charges for the
“same act or transaction[.]” Blockburger, 284 U.S. at 304. Thus, the Blockburger test
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does not apply in cases involving multiple violations of a single statute. See id.;
Sanabria, 437 U.S. at 70 n.24; Braverman v. United States, 317 U.S. 49, 54 (1942)
(distinguishing Blockburger, where charges were filed under two statutes, from cases
involving a “single continuing agreement” of conspiracy). Here, the State charged
Rexroat with two different offenses under the same statute. Thus, the Blockburger same
elements test is inapplicable in this case. Rexroat has not shown a double jeopardy
violation under the Federal Constitution.
We next consider Rexroat‟s argument that his right under the Indiana Constitution
to be free from double jeopardy was violated in this case. Rexroat first argues that,
because the charges are identically worded, the statutory elements test set out in
Richardson has been met. But in Richardson our supreme court specifically stated that,
when applying the statutory elements test, “the second charge must be for the same
identical act and crime as [the first offense].” 717 N.E.2d at 50 n.38 (internal quotation
marks and citations omitted) (alteration in original). Because the conduct charged in two
counts here arose from two separate incidents, the statutory elements test does not apply.
We applied that rule in Peckinpaugh v. State, 743 N.E.2d 1238, 1242 (Ind. Ct.
App. 2001), trans. denied, in which we held that, “where . . . a double jeopardy challenge
is premised upon convictions of multiple counts of the same offense, the statutory
elements test is inapplicable, because a defendant may be charged with as many counts of
an offense as there are separate acts committed.” Rexroat contends that that statement
from Peckinpaugh “overstates the case” because “the language from Richardson states
that a charging information that clearly alleges different acts at different times will easily
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pass the „statutory elements‟ test, but does not say that the statutory elements test does
not apply.” Appellant‟s Brief at 7. Rexroat is incorrect. Again, under Richardson the
statutory elements test only applies where multiple charges arise from the same identical
act and crime. 717 N.E.2d at 50 n.38. We did not “overstate” the case in Peckinpaugh
when we held that a defendant may be charged with as many counts of an offense as
there are separate acts. And, in any event, the rule as stated in Richardson does not
support Rexroat‟s argument.
Finally, we consider Rexroat‟s contention that his convictions fail the second
prong of Richardson‟s “same offense” test, the actual evidence test. First, Rexroat
contends that it is “impossible to determine from [the charging information and the jury
instructions] whether the jury based both verdicts on a single episode.” Appellant‟s Brief
at 9. Again, to satisfy the 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.” Id. The Supreme Court later expanded upon
this analysis:
The test is not merely whether the evidentiary facts used to establish one of
the essential elements of one offense may also have been used to establish
one of the essential elements of a second challenged offense. In other
words, under the Richardson actual evidence test, the Indiana Double
Jeopardy Clause is not violated when the evidentiary facts establishing the
essential elements of one offense also establish only one or even several,
but not all, of the essential elements of a second offense.
Pontius v. State, 930 N.E.2d 1212, 1217 (Ind. Ct. App. 2010) (quoting Spivey v. State,
761 N.E.2d 831, 833 (Ind. 2002) (emphasis in original)), trans. denied.
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Rexroat is correct that we may consider the charging information and the jury
instructions when applying the actual evidence test. But he completely ignores
consideration of the evidence itself. Again, and as the name implies, the actual evidence
test considers the evidence actually admitted at trial and used to convict the defendant.
Richardson, 717 N.E.2d at 53. At trial S.L. testified that Rexroat molested her at two
different times in two completely different locations, one time in a truck in an alley
behind a family friend‟s home and another time in a truck at a storage facility. The
evidence clearly shows two different incidents and therefore does not satisfy the actual
evidence test.
In Pontius this court held that
“[m]ultiple convictions do not violate Indiana‟s Double Jeopardy Clause if
they logically could have been based on the same facts, but in light of the
evidence, the instructions, the charges, and the argument of counsel, there
is no reasonable possibility that the jury actually used exactly the same set
of facts to establish both convictions.”
930 N.E.2d at 1219 (quoting Lee, 892 N.E.2d at 1232). Rexroat argues that Pontius was
“wrongly decided and should be disapproved.” Appellant‟s Brief at 10. But he says
nothing of our supreme court‟s opinion in Lee on which we relied. We are bound by
supreme court precedent. DAP, Inc. v. Akaiwa, 872 N.E.2d 1098, 1103 (Ind. Ct. App.
2007). And, in any case, we do not disagree with the holding in Pontius or Lee.
Rexroat is incorrect that, “[w]henever two counts are identically worded, it will be
impossible for the State to prove one without also proving the other.” Appellant‟s Brief
at 12. Where, as here, there is evidence that shows that the defendant committed multiple
offenses at separate times, the State will be able to prove multiple counts of the same
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offense. Here, S.L. testified that Rexroat molested her the same way at two separate and
distinct locations on different days. Although the charging information and the jury
instructions worded the two child molesting counts identically, there was clear evidence
of two separate incidents, and the State emphasized that point in closing argument. As
such, Rexroat has not demonstrated a reasonable possibility that the evidentiary facts
used by the jury to establish the essential elements of one count of child molesting were
also used to establish the essential elements of the second child molesting count. See
Richardson, 717 N.E.2d at 53. Rexroat‟s challenge under the actual evidence test must
fail.
Issue Two: Probation Condition
Rexroat next contends that one of the conditions of his probation violates his
rights under the First Amendment to the United States Constitution. The trial court
included as a condition of Rexroat‟s probation that he “shall have no contact with any
person under the age of 18 unless approved by probation.” Appellant‟s App. at 82.
Rexroat asserts that that condition is overbroad and “impinges on [his] constitutionally
protected liberty interests and his right to association” under the First Amendment.
Appellant‟s Brief at 12. We cannot agree.
We initially observe that
[a] trial court enjoys broad discretion when determining the
appropriate conditions of probation. Freije v. State, 709 N.E.2d 323, 324
(Ind. 1999). This discretion is limited only by the principle that the
conditions imposed must be reasonably related to the treatment of the
defendant and the protection of public safety. Carswell v. State, 721
N.E.2d 1255, 1258 (Ind. Ct. App. 1999). Where, as here, the defendant
challenges a probationary condition on the basis that it is unduly intrusive
on a constitutional right, we will evaluate that claim by balancing the
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following factors: (1) The purpose to be served by probation, (2) the extent
to which constitutional rights enjoyed by law-abiding citizens should be
enjoyed by probationers, and (3) the legitimate needs of law enforcement.
Smith v. State, 779 N.E.2d 111, 117 (Ind. Ct. App. 2002), trans. denied. We also
observed that “child molesters molest children to whom they have access.” Id. (citation
omitted). Thus, in Smith we held that probation conditions barring Smith from being
alone with or having contact with any person under eighteen years of age unless pre-
approved and related conditions would reduce his access to children and were related to
his rehabilitation. Id. Therefore, we held that such conditions did not constitute an abuse
of discretion. Id.
And we have discussed the constitutional challenge to a similar probation
condition in another Smith case:
The “overbreadth doctrine” is “designed to protect innocent persons
from having the legitimate exercise of their constitutionally protected
freedoms fall within the ambit of a statute written more broadly than
needed to proscribe illegitimate and unprotected conduct.” The
authoritative construction of statutes by state courts controls overbreadth
analysis. The crucial question is whether [Indiana Code Section] 35-38-2-
2.4[, which allows as a condition of probation a prohibition on contact with
any person under sixteen years of age,] “sweeps within its prohibitions a
substantial amount of conduct which may not be punished under the First
and Fourteenth Amendments.” A statute is not overbroad merely because
an appellant may conceive of a single impermissible application.
A trial court has broad discretion to impose conditions of probation
which will produce a law abiding citizen and protect the public. Within
certain parameters, the condition may impinge upon the probationer‟s
exercise of an otherwise constitutionally protected right. The Constitution
does not prohibit the State from punishing dangerous behavior or
attempting to prevent recidivism by those who engage in criminal behavior
through their associational relationships.
Smith v. State, 727 N.E.2d 763, 767 (Ind. Ct. App. 2000) (citations omitted).
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In the 2000 Smith case, we balanced the three factors listed above to determine
whether a probation condition that required the defendant to avoid all contact with
minors, including inadvertent or unintentional contact, was unduly intrusive on his
constitutional rights. The defendant argued that the second prong, the extent to which
constitutional rights enjoyed by law-abiding citizens should be enjoyed by probationers,
weighed in his favor because the condition required him to avoid even inadvertent or
unintentional contact with children. We held that “a condition of probation requiring a
probationer to avoid even inadvertent or unintentional contact with children is
unworkable and too broad to be reasonably related to the purposes of Indiana Code
[Section] 35-38-2-2.4.” Id. at 768. But we also concluded that “the failure of [that
statute] to explicitly address inadvertent or unintentional contact does not render the
statute facially overbroad.” Id. Thus, we upheld the probation condition as to intentional
contact with persons under sixteen as constitutional, but we also held that “it is inherent
in [Indiana Code Section 35-38-2-2.4] that a probationer is not required to avoid
inadvertent or unintentional contact with persons less than sixteen years of age.” Id.
(citation omitted).
Here, Rexroat argues that “the prohibition of incidental contact between the
probationer and persons less than eighteen years of age would make it effectively
impossible for him to leave his house without violating his probation inadvertently.”
Appellant‟s Brief at 13. But the condition at issue does not explicitly prohibit incidental
contact. And Rexroat ignores the holding in Smith, above, that a probationer is not
required to avoid inadvertent or unintentional contact with minors. Just as we have
13
determined that the statute on which the probation condition at issue is based cannot be
read to include inadvertent or unintentional contact with minors, neither may we construe
Rexroat‟s similar condition of probation to prohibit incidental contact with minors. That
the condition includes minors who are sixteen and seventeen years of age is of no
moment, nor does Rexroat contend as much. Rexroat has not shown that the probation
condition regarding contact with minors is unconstitutional.
Affirmed.
ROBB, C.J., and VAIDIK, J., concur.
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